We published a final rule in the Federal Register on November 30, 2020, (85 FR 76420-76428), that included changes to the Cancellation and Termination Dates in the Sunflower Seed Crop Insurance provisions and the Insurance Period in the Dry Pea Crop Insurance provisions. Changes were published in the final rule that were inadvertently not incorporated when the changes were made in the Code of Federal Regulations (CFR) as currently reflected in the electronic CFR. Additionally, there was a typo in one of the changes. This rule makes the required corrections.

This correction is being published to correct section 4, Cancellation and Termination Dates, in the Sunflower Seed Crop Insurance Provisions. The table that provided specific state and county cancellation and termination dates was inadvertently omitted. Additionally, a comma is being removed in section 11, Settlement of Claim. The correction to the Dry Pea Crop Insurance Provisions will replace the phrase “the sales closing date” with “its sales closing date” that was inadvertently omitted in section 7, Insured Crop. Additionally, the word “types” was inadvertently included twice in a row in section 9, Insurance Period; that section is being edited to remove the repetitive word.

Accordingly, 7 CFR part 457 is corrected by making the following correcting amendments:

This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 946, as amended (7 CFR part 946), regulating the handling of Irish potatoes grown in Washington. Part 946 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.”

The State of Washington Potato Committee (hereinafter referred to as the “Committee”) locally administers the Order and is comprised of producers and handlers of Irish potatoes operating within the production area.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not intended to have retroactive effect.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to a marketing order may file with USDA a petition stating that the marketing order, any provision of the marketing order, or any obligation imposed in connection with the marketing order is not in accordance with law and request a modification of the marketing order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

The Committee meets regularly to consider recommendations for modification, suspension, or termination of the Order's regulatory requirements. Committee meetings are open to the public and interested persons may express their views at these meetings. USDA reviews Committee recommendations, including information provided by the Committee and from other available sources, and determines whether modification, suspension, or termination of the regulatory requirements will tend to effectuate the declared policy of the Act.

On June 11, 2020, the Committee met and, after much deliberation, unanimously recommended that USDA terminate the Order. Additionally, the Committee recommended that the Order's reporting and assessment requirements—the only regulatory activities of the Order in effect at the time—be suspended while the recommendation for termination is being processed by USDA. The termination is a separate regulatory action from the suspension of administrative requirements.

Section 946.41 of the Order provides authority for the Committee to assess handlers for their pro rata share of the Committee expenses authorized each fiscal period. Section 946.70 of the Order authorizes the Committee to collect reports and other information necessary for the Committee to perform its duties under the Order. This rule suspends—or “stays”—§ 946.248, which establishes a continuing assessment rate of $0.0025 per hundredweight, effective for the 2013-2014 and subsequent fiscal periods, and § 946.143, which requires monthly reporting of fresh potato shipments from the production area.

The Order has been in effect since 1949, providing the Washington potato industry authority for grade, size, quality, maturity, pack, and container requirements, as well as authority for inspection requirements. Based on the Committee's recommendation in 2010, USDA suspended the Order's handling requirements for Russet potatoes. The Committee believed that the costs of inspection outweighed the benefits provided from having the Order's regulatory requirements in effect for that type potato.

In 2013, also upon the recommendation of the Committee, USDA suspended handling requirements temporarily, through June 30, 2014, for all yellow flesh and white type potatoes. The Committee believed that the costs of inspection outweighed the benefits provided from regulation for these type potatoes as well.

In 2014, the handling requirements for red type potatoes were indefinitely suspended. Also in 2014, the temporary suspension of handling requirements for yellow flesh and white types was extended indefinitely. The sum of the previous actions effectively suspended the handling requirements for all types of Washington potatoes after the 2013-2014 marketing year. The Committee believed operating without handling regulation offered Washington potato handlers a cost savings through the elimination of mandatory inspection fees. Also, the Committee had determined that the potential negative market impact of operating without mandatory quality and inspection requirements was minimal.

Following the suspension of the handling requirements in 2014, the Committee continued to levy assessments and to maintain its administrative function. The Committee believed that it should continue to fund its full operational capability, collect industry statistics on an ongoing basis, and maintain the program if regulating quality was again deemed necessary.

The Committee met on June 11, 2020, to discuss the status of the Washington potato industry and the relevance of the Order. The Committee determined that the suspension of the Order's handling requirements has not negatively impacted the industry and that there is no longer a need for the Order. Also, the Committee concluded that the collection of information under the Order's authority is redundant, as the Washington Potato Commission has similar handler reporting requirements as the Order, and that the statistical information collected by the Commission is provided to the industry. Thus, the Committee unanimously recommended terminating the Order.

In addition, the Committee determined that there is no need to continue collecting assessments and requiring reports while USDA considers its termination recommendation. Therefore, the Committee also unanimously recommended that the assessment and reporting requirements of the Order be immediately suspended. This action relieves handlers of the assessment and reporting burden during the pendency of the termination process.

At the June meeting, the Committee recommended a budget of $41,150 for the indefinite period leading up to the termination of the Order. The budgeted amount was established based on the funds remaining in the Committee's monetary reserve and expected future expenses. The budget, in its entirety, will provide for such operating expenses as are necessary during the termination process, including a final financial review and management compensation.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) has considered the economic impact of this final rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 250 producers of Washington potatoes and approximately 26 fresh potato handlers in the production area subject to regulation by the Order.

Small agricultural service firms are defined by the Small Business Administration (13 CFR 121.201) as those having annual receipts of less than $30,000,000, and small agricultural producers are defined as those having annual receipts of less than $1,000,000.

According to USDA Market News, the average shipping point price for fresh Washington potatoes during the 2019 shipping season was approximately $15.79 per hundredweight. The Committee reported 2019-2020 marketing year fresh potato shipments were 9,687,170 hundredweight. Using the average price and shipment information along with the number of handlers, average annual receipts for a handler were significantly less than $30,000,000 ($15.79 times 9,687,170 hundredweight equals $152,960,414, divided by 26 handlers equals $5,883,093 per handler).

In addition, USDA National Agricultural Statistics Service reported an average producer price of $8.20 per hundredweight for the 2019 crop. Given the number of Washington potato producers, the average annual producer revenue is well below $1,000,000 ($8.20 times 9,687,170 hundredweight equals $79,434,794, divided by 250 producers equals $317,739 per producer). Therefore, most handlers and producers of fresh Washington potatoes may be classified as small agricultural businesses.

This final rule suspends the reporting and assessment requirements of the Order. The handler reporting requirement that is suspended is the monthly collection of Washington fresh potato shipment information. The assessment rate that is suspended is the $0.0025 per hundredweight rate that was established beginning July 1, 2013. The Committee also recommended a budget of expenditures of $41,150 for the period beginning July 1, 2020 and ending with termination of the Order. The budget was based on the Committee's estimated financial resources on June 30, 2020. Budgeted expenditures include administrative expenses and a final financial review.

The Committee made the recommendation to suspend the reporting and assessment requirements as an adjunct to the recommendation to terminate the Order. As such, the only other alternative discussed by the Committee was to maintain the status quo, continue to assess handlers, and to require monthly handling reports. After consideration, the Committee determined that the Order is no longer beneficial to the industry and that the best recourse was to cease operations and terminate the Order.

This action suspends the Order's reporting and assessment obligations imposed on handlers. When in effect, assessments are applied uniformly on all handlers, and some of those costs may be passed on to producers. Suspension of the reporting and assessment requirements reduces the regulatory burden on handlers and is also expected to reduce the burden on producers.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178 Vegetable and Specialty Crops. This final rule suspends those information collection requirements, and any reporting and recordkeeping requirements under the Order.

As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this final rule.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The Committee's meeting was widely publicized throughout the Washington potato industry, and all interested persons were invited to attend the meeting and participate in Committee deliberations on all issues. Like all Committee meetings, the June 11, 2020, meeting was a public meeting, and all entities, both large and small, were able to express their views on these issues.

A proposed rule concerning this action was published in the Federal Register on October 13, 2020 (85 FR 64415). Copies of the proposal were provided by the Committee to members and handlers. Finally, the proposed rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending December 14, 2020, was provided to allow interested persons to respond to the proposal. No comments were submitted. Accordingly, no changes have been made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: http://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agriculture Marketing Service amends 7 CFR part 946 as follows:

This rule affecting 7 CFR part 1206 (the Order) is authorized under the Commodity Promotion, Research, and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Orders 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

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

In addition, this rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have a retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order issued under the Act may file a written petition with USDA stating that the order, any provision of the order, or any obligation imposed in connection with the order, is not established in accordance with the law, and request a modification of the order or an exemption from the order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

The Mango Promotion, Research, and Information Order (Order) took effect in November 2004 (69 FR 59120), and assessment collection began in January 2005 for fresh mangos. The Order is administered by the National Mango Board (Board) with oversight by the U.S. Department of Agriculture. Currently, the program is funded by assessments on first handlers and importers of fresh and frozen mangos, and is focused on maintaining and expanding existing markets and uses for fresh and frozen mangos through its research, promotion and information efforts.

Frozen mangos as a covered commodity was added to the Order on February 21, 2019 (84 FR 5335), and a referendum was held in 2019 to determine whether the industry favored the inclusion of frozen mangos as a covered commodity under the Order. In the 2019 referendum, 52.5 percent of first handlers and importers of fresh and frozen mangos were in favor of the amendment to add frozen mangos to the Order. Since the vote passed by a small margin, the frozen mango industry asked the Board to conduct another referendum on whether frozen mangos should continue as a covered commodity under the Order.

The Order prescribes that every five years, the USDA conduct a referendum to determine if first handlers and importers of mangos favor the continuation of the Order. Such a referendum was required to be conducted in 2020. At the Board's September 2019 meeting, it was unanimously recommended to the USDA to add a second question to the continuance referendum ballot concerning frozen mangos as a covered commodity. USDA conducted a referendum from September 21 through October 9, 2020, among eligible first handlers and importers to (1) ascertain whether the continuance of the Order is favored by eligible first handlers and importers covered under the Order, and (2) ascertain whether the continuance of frozen mangos as a covered commodity in the Order is favored by eligible first handlers and importers (including frozen mango importers) covered under the Order. The results were announced on October 20, 2020, stating that 60 percent of mango first handlers and importers voting were in favor of continuing the Order. On the question as to whether to continue frozen mangos as a covered commodity in the Order, 42 percent voted to keep frozen mangos in the Order, 49 percent voted to eliminate frozen mangos and 9 percent did not vote on this question. Of those representing frozen mangos, 83 percent voted to eliminate frozen mangos as a covered commodity.

Section 522 of the 1996 Act (7 U.S.C. 7421) and § 1206.72 of the Order (7 CFR 1206.72) provide that if the Secretary determines that provisions of the Order are not favored by persons voting in a referendum, the Secretary shall terminate those provisions. In accordance with the 1996 Act and Order, this rule removes the provisions of frozen mangos as a covered commodity under the Order including: Removing definitions for frozen mangos and foreign processor of frozen mangos; reducing the Board's membership from 21 to 18 by eliminating two importers of frozen mangos and one foreign processor of frozen mangos; removing assessment collection provisions for frozen mangos at a rate of $0.01 per pound and thereby eliminating assessments on frozen mango imports; and removing the exemption of assessment for importers who import less than 200,000 pounds of frozen mangos annually. In addition, this rule makes clarifying and conforming changes to other provisions of the Order.

In accordance with § 1206.72, the following changes are necessary to terminate and remove the provisions regarding frozen mangos from the Order. In addition, §§ 1206.6 and 1206.9 which define the terms “first handler” and “importer,” respectively, are revised to add the reference that first handlers and importers, respectively, must receive or import 500,000 or more pounds of mangos; this volume is added for the purpose of clarity.

Section 1206.8, which defines the term “foreign producers and foreign processor of frozen mangos or foreign processor”, is revised to remove the definitions of “foreign processor of frozen mangos or foreign processor” because they are no longer covered under the Order. The definition for “foreign producer” will remain.

The definition of “mangos” in § 1206.11 is revised to mean all fresh fruit of Mangifera indica L. of the family Anacardiaceae. The term “frozen mangos” is removed as it is no longer a covered commodity.

Section 1206.30, which establishes the Board's membership, is revised to reduce its size from 21 to 18 members due to the removal of three members; i.e., two importers of frozen mangos and one foreign processor. The three members are removed from the Board once this rule is effective. The remaining 18-member Board will be comprised of 8 importers, 1 first handler, 2 domestic producers, and 7 foreign producers. In addition, eligibility requirements for Board members from the frozen mango industry are removed, and only those eligibility requirements for the first handler and fresh mango importers remain. Lastly, the four “Importer Districts” that were unintentionally removed from the CFR when this section was amended, are restored to section 1206.30 as paragraphs (b)(1)-(4).

Section 1206.31, which describes the procedures for nominating and appointing Board members to the Board, is revised to remove procedures for nominating foreign processors and importers of frozen mangos. Section 1206.32, which specifies that Board members serve for a 3-year term of office and may serve a maximum of two consecutive 3-year terms, is revised to remove the references to importers of frozen mangos and foreign processors.

Section 1206.34 specifies quorum requirements for Board meetings, and with the reduction of the Board from 21 to 18, a decrease in quorum requirements is necessary. Therefore, this section is revised to specify that a quorum at a Board meeting exists when at least 10 of the 18 Board members are present.

Section 1206.42 specifies the assessment rate for fresh mangos and frozen mangos. Paragraph (b) is revised to remove the provisions assessing importers of frozen mangos one cent ($0.01) per pound, and paragraph (d)(2), which includes the Harmonized Tariff Schedule (HTS) of the United States that applies to imported frozen mangos (number 0811.90.5200), is removed from the Order. Assessments on frozen mango importers shall be terminated. The termination of assessment collection on frozen mango importers will be effective one day after publication of this rule.

In § 1206.43, paragraphs (a) and (b) are revised to remove references to frozen mango exemptions as frozen mangos are no longer a covered commodity.

Subpart B of part 1206 specifies procedures for conducting a referendum. In § 1206.101, paragraphs (c), (d), and (e) are revised to delete the references to eligibility of frozen mango importers to vote in referenda, as frozen mangos are no longer a covered commodity, and to restore definitions prior to when this section was amended.

Finally, this rule updates the OMB control number specified in § 1206.108 from 0581-0209 to 0581-0093.

In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of the rule on small entities. Accordingly, AMS has considered the economic impact of this action on such entities.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The Small Business Administration defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (first handlers and importers) as those having annual receipts of no more than $7.5 million.

According to the Board, there are five first handlers of fresh mangos. Based on 2019 Customs data, the majority of first handlers handled less than $7.5 million worth of fresh mangos and would thus be considered small entities.

Based on 2019 Customs data, 1 there are about 100 importers of fresh mangos and 70 importers of frozen mangos. The majority of fresh and frozen mango importers import less than $7.5 million worth of fresh or frozen mangos and would also be considered small entities. This action will remove frozen mango importers from the requirements associated with this research and promotion Order and result in a regulatory relaxation, and is therefore expected to reduce costs for frozen mango importers.

This rule amends AMS's regulations regarding the mango research and promotion program to remove frozen mangos as a covered commodity under the Order. A continuance referendum was conducted September 21 through October 9, 2020, among eligible first handlers and importers to (1) ascertain whether the continuance of the Order is favored by eligible first handlers and importers covered under the Order, and (2) ascertain whether the continuance of frozen mangos as a covered commodity in the Order is favored by eligible first handlers and importers (including frozen mango importers) covered under the Order. The results were announced on October 20, 2020, stating that 60 percent of mango first handlers and importers voting were in favor of continuing the Order. On the question as to whether to continue frozen mangos as a covered commodity in the Order, 42 percent voted to keep frozen mangos in the Order, 49 percent voted to eliminate frozen mangos, and 9 percent did not vote on this question. Of those representing frozen mangos, 83 percent voted to eliminate frozen mangos as a covered commodity.

This rule removes references to frozen mangos as a covered commodity under the Order including: Removing definitions for frozen mangos and foreign processor of frozen mangos; reducing the Board's membership from 21 to 18 by eliminating two importers of frozen mangos and one foreign processor of frozen mangos; removing assessment collection provisions for frozen mangos at a rate of one cent ($0.01) per pound and thereby eliminating assessments on frozen mango imports; removing the exemption of assessment for importers who import less than 200,000 pounds of frozen mangos annually; removing definitions for frozen mango importers concerning eligibility in a referendum; and clarifying and conforming changes to other provisions of the Order. This rule will also update the OMB number 0581-0209 listed in § 1206.108 to OMB number 0581-0093.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements previously approved by the OMB and titled Frozen Mango Research, Promotion and Information Program, and assigned OMB No. 0581-0314 will be submitted to OMB for withdrawal as these forms and information collection regarding frozen mangos are no longer needed.

The information collection package (0581-0314) that imposes a total burden of 166 hours and 475 responses for 190 respondents will be terminated.

The industry voted in a referendum held September 21, through October 9, 2020, to remove frozen mangos as a covered commodity from the Order. On October 20, 2020, the Department announced through a notice to trade that 42 percent of mango first handlers and importers voted to keep frozen mangos as a covered commodity, 49 percent of mango first handlers and importers voting were not in favor of frozen mangos as a covered commodity and 9 percent did not vote on this question. Of those representing frozen mangos 83 percent voted to eliminate frozen mango as a covered commodity under the Order.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

USDA has determined that several provisions of the Order (7 CFR part 1206) are not favored by persons voting in a referendum conducted pursuant to the Act. USDA has determined that this rule is consistent with and will effectuate the purposes of the 1996 Act. Pursuant to 5 U.S.C. 553, it is also found and determined upon good cause that it is impracticable, unnecessary, and contrary to the public interest to give preliminary notice prior to putting this rule into effect, and good cause exists for not postponing the effective date of this rule until 30 days after publication in the Federal Register because: (1) This action removes provisions referencing frozen mangos as a covered commodity under the Order, thereby relieving importers and foreign processors of frozen mangos from the burden to remit assessments and to complete information collection requirements; (2) the termination of frozen mangos as a commodity covered by the Order was favored by 49 percent of mango first handlers and importers voting in the referendum; (3) of those representing frozen mangos, 83 percent voted to eliminate frozen mangos as a covered commodity under the Order; and (4) this interim rule provides a 60-day comment period, and all comments timely received will be considered prior to finalization of this rule.

For the reasons set forth in the preamble, 7 CFR part 1206 is amended as follows:

In May 2020, the Board approved a notice of proposed rulemaking  1 (proposal or proposed rule) that amended the NCUA's share insurance regulation governing the requirements for a share account to be insured separately as a joint account. 2 Specifically, the proposal addressed the requirement for separate joint account insurance that each co-owner of a joint account has personally signed a membership card or account signature card. In the event a federally insured credit union (FICU) could not produce from its records such membership cards or account signature cards, the proposal explicitly permitted the use of other evidence contained in a FICU's account records to satisfy the signature card requirement.

The proposed amendment mirrors a change made by the Federal Deposit Insurance Corporation (FDIC) in 2019 for federally insured depository institutions. 3 In proposing the change, the Board intended to better facilitate the prompt payment of share insurance in the event of a FICU's failure by explicitly providing alternative methods that the NCUA could use to determine the owners of joint accounts, consistent with the NCUA's statutory authority. The Board emphasizes that this change was not proposed, and is not being finalized, in reaction to any observed current problem with respect to identifying qualifying joint accounts at credit unions and processing insurance payments timely. Rather, the Board issued the proposed rule because it is important to maintain parity between the nation's two Federal deposit/share insurance programs and to provide credit union members with equal access to insurance coverage. The Board proposed these regulatory changes with the belief that they will promote further confidence in the credit union system and embody a forward-looking approach that will explicitly permit the use of new and innovative technologies and processes to meet the NCUA's policy objectives.

Under the Federal Credit Union Act (FCU Act), the NCUA is responsible for paying share insurance to any member, or to any person with funds lawfully held in a member account, in the event of a FICU's failure up to the standard maximum share insurance amount (SMSIA), which is currently set at $250,000. 4 The FCU Act states that the determination of the net amount of share insurance paid “shall be in accordance with such regulations as the Board may prescribe” and requires that, “in determining the amount payable to any member, there shall be added together all accounts in the credit union maintained by that member for that member's own benefit, either in the member's own name or in the names of others.”  5 However, the FCU Act also specifically authorizes the Board to “define, with such classifications and exceptions as it may prescribe, the extent of the share insurance coverage provided for member accounts, including member accounts in the name of a minor, in trust, or in joint tenancy.”  6

The NCUA has implemented these requirements by issuing regulations recognizing particular categories of accounts, such as single ownership accounts and joint ownership accounts. 7 If an account meets the requirements for a particular category, the account is insured up to the $250,000 limit separately from shares held by the member in a different account category at the same FICU. For example, provided all requirements are met, shares in the single ownership category will be separately insured from shares in the joint ownership category held by the same member at the same FICU.

Section 745.8 of the NCUA's regulations governs insurance coverage for joint ownership accounts. 8 Joint ownership accounts include share accounts held pursuant to various forms of co-ownership under state law. For example, joint tenants could each hold an equal, undivided interest in a share account. Section 745.8 provides that only “qualifying joint accounts” are insured separately from individually owned share accounts maintained by the co-owners. 9 “Qualifying joint accounts” generally must satisfy two requirements: (1) Each co-owner has personally signed a membership card or account signature card; and (2) each co-owner possesses withdrawal rights on the same basis. 10 If a joint account is not a qualifying joint account, each co-owner's actual ownership interest in the account is considered individually owned and added to any other accounts individually owned by the co-owner and insured up to the SMSIA in the aggregate. 11 This may result in some uninsured shares if a member's single ownership accounts at the same FICU, including shares in any non-qualifying joint accounts, exceed $250,000. Additionally, it is worth reiterating that, with limited exceptions, the FCU Act generally limits NCUA share insurance coverage to “member accounts.”  12 Despite this general limitation, the FCU Act  13 and the NCUA's regulations  14 do allow a nonmember to become a joint owner with a member on a joint account with right of survivorship. The regulations provide that a nonmember's interest in such accounts will be insured in the same manner as the member joint-owner's interest.

The signature requirement has been included in the regulation governing insurance coverage since its inception in 1971. 15 The FDIC has had a substantially similar signature requirement since 1967. 16 In originally adopting this requirement, the FDIC “intended to address practices such as the addition of nominal co-owners to an account solely to increase deposit insurance coverage.”  17 The NCUA thereafter adopted a substantially similar requirement  18 and views it as a reliable indicator of account ownership and important to ensuring consistency with the FCU Act, which expressly limits the net amount of share insurance payable to any member, or person with funds lawfully held in a member account, based on the member account classifications prescribed by the Board. 19

Neither the FCU Act nor the NCUA's regulations define the terms “membership card” or “account signature card.” In implementing § 745.8, the NCUA has not required any particular format for a membership card or account signature card. Therefore, the agency has previously permitted FICUs to satisfy the requirement through various forms of documentation used in their account opening processes. The Board also wishes to reiterate that, consistent with the Electronic Signatures in Global and National Commerce Act (E-Sign Act), 20 the signature requirement may be satisfied electronically. This has been the NCUA's long-standing position.

The May 2020 proposed rule amended § 745.8 to explicitly provide for an alternative method to satisfy the signature card requirement. The proposed rule specifically allowed the signature card requirement to be satisfied by information contained in the account records of the FICU establishing the co-ownership of the share account, such as evidence that the FICU has issued a mechanism for accessing the account to each co-owner or evidence of usage of the share account by each co-owner. For example, under the proposal, the requirement could be satisfied by evidence that a FICU has issued a debit card to each co-owner of the account or evidence that each co-owner of the account has conducted transactions using the share account. These examples, however, were not intended to define the only forms of evidence of co-ownership that could satisfy the signature requirement. To the contrary, the evidence found in a FICU's account records could take many other forms.

The proposed amendment mirrors a change made by the FDIC in 2019 for federally insured depository institutions. 21 As noted in the proposal, the Board believes that the change would better facilitate the prompt payment of share insurance in the event of a FICU's failure by explicitly providing alternative methods that the NCUA could use to determine the owners of joint accounts, consistent with the NCUA's statutory authority. In the proposal, the Board emphasized that this proposed change was not in reaction to any observed current problem with respect to identifying qualifying joint accounts at FICUs and processing insurance payments timely. Rather, the Board issued the proposed rule because it is important to maintain parity between the nation's two Federal deposit/share insurance programs and to provide credit union members with equal access to insurance coverage. The Board proposed these regulatory changes with the belief that they will promote further confidence in the credit union system and embody a forward-looking approach that will explicitly permit the use of new and innovative technologies and processes to meet the NCUA's policy objectives.

The proposed rule emphasized that the change would not introduce any new requirements for an account to be insured as a joint account, and would not reduce or affect insurance coverage for any account for which the existing joint account requirements are satisfied. The proposed rule simply would provide an alternative method to satisfy the existing signature card requirement for share insurance coverage as a qualifying joint account. Under the proposal, if each co-owner of a joint account signs, or has previously signed, a membership card or account signature card in accordance with the existing requirement and the FICU can produce it, then the proposed alternative method would be unnecessary. Assuming that the remaining qualifying joint account requirement is satisfied—that is, both co-owners possess equal withdrawal rights—and all other membership requirements are met, 22 the account would be insured as a joint account. The proposal noted that the change would apply to all FICUs and would not impose any increased burden or new recordkeeping requirements for joint accounts.

In the proposal, the Board also detailed the non-quantifiable benefits to owners of joint accounts. By explicitly providing alternative methods that the NCUA could use to determine the owners of joint accounts, the proposed rule would further support a prompt share insurance determination in the event of a FICU's failure, alleviating delays in the recognition of account ownership and uncertainty regarding the extent of share insurance coverage. The Board concluded that these benefits would promote confidence in the credit union system and NCUA-insured shares.

This final rule follows publication of the May 2020 proposed rule. After carefully considering the comments and conducting further analysis, the Board affirms its rationale for issuing the proposal and is adopting the final rule as proposed, with one clarifying change. Specifically, the Board is using alternative language to better convey that the examples of evidence of co-ownership in the proposed regulatory text do not define the only form of evidence that could satisfy the signature requirement. Pursuant to a suggestion from a commenter, the final rule revises proposed § 745.8(c)(2) by replacing “such as” with the phrase “including, but not limited to,” before the word “evidence.” Section 745.8(c)(2) will now state that the signature card requirement may be satisfied by information contained in the account records of the federally insured credit union establishing co-ownership of the share account, “including, but not limited to,” evidence that the institution has issued a mechanism for accessing the account to each co-owner or evidence of usage of the share account by each co-owner. The Board finds that the phrase suggested by the commenter carries the same meaning as wording in the proposed rule and may eliminate any ambiguity that evidence in the account records other than the examples provided may be sufficient to establish joint ownership of a share account.

The Board also wishes to emphasize several key points made in the proposed rule and further discussed in response to comments received on the proposed rule.

First, the Board strongly emphasizes that this final rule only affects a requirement in the NCUA's regulations that must be satisfied for a share account to be separately insured as a joint account; it does not affect any other legal requirements applicable to FICUs. FICUs may, and likely will, for legal or other reasons, find it appropriate or necessary to continue collecting customers' signatures. 23 The changes made by this final rule do not modify or affect any state law requirements generally applicable to FICUs, including those that necessitate the collection and maintenance of customers' signatures.

Second, this final rule also does not affect the general principles contained in § 745.2 of the NCUA's share insurance regulations applicable in determining insurance of accounts. 24 These general principles applicable in determining insurance of accounts continue to apply to all share accounts, including joint ownership accounts.

Finally, the Board believes it is important to reiterate that the final rule does not introduce any new requirements for an account to be insured as a joint account, and would not reduce or affect insurance coverage for any account for which the existing joint account requirements are satisfied. The final rule simply provides an alternative method to satisfy the existing signature card requirement for share insurance purposes. If each co-owner of a joint account signs, or has previously signed, a membership card or account signature card in accordance with the existing requirement and the FICU can produce it, then the alternative method would be unnecessary. Assuming that the remaining qualifying joint account requirement is satisfied—that is, both co-owners possess equal withdrawal rights—and all other membership requirements are met, 25 the account would be insured as a joint account. The final rule applies to all FICUs and does not impose any increased burden or new recordkeeping requirements for joint accounts.

The Board has issued this final rule pursuant to its authority under the FCU Act. Under the FCU Act, the NCUA is the chartering and supervisory authority for FCUs and the Federal supervisory authority for FICUs. 26 The FCU Act grants the NCUA a broad mandate to issue regulations governing both FCUs and FICUs. Section 120 of the FCU Act is a general grant of regulatory authority and authorizes the Board to prescribe rules and regulations for the administration of the FCU Act. 27 Section 207 of the FCU Act is a specific grant of authority over share insurance coverage, conservatorships, and liquidations. 28 Section 209 of the FCU Act is a plenary grant of regulatory authority to the NCUA to issue rules and regulations necessary or appropriate to carry out its role as share insurer for all FICUs. 29 Accordingly, the FCU Act grants the Board broad rulemaking authority to ensure that the credit union industry and the NCUSIF remain safe and sound.

The NCUA received 11 comments on the proposed rule. All 11 commenters noted their support for the proposed rule. Rationale commenters offered for supporting the rule included: A belief that the proposed rule would provide increased flexibility and would maximize the opportunity for legitimate joint account holders to receive the proper share insurance coverage; recognition that the proposed rule would facilitate the prompt payment of share insurance in the event of a FICU's failure; and agreement with the proposed rule's assertion that “it is important to maintain parity between the nation's two Federal deposit/share insurance programs and to provide credit union members with equal access to insurance coverage.” Several commenters also emphasized that the proposed change is especially important given the challenges posed by COVID-19 and the resulting economic uncertainty.

While all 11 commenters supported the proposed rule, commenters did provide a number of suggestions for improving the rule. As discussed more thoroughly below, suggestions for improvement focused on two areas: (1) The type of evidence the NCUA could look to for evidence of co-ownership that would fulfill the signature card requirement; and (2) clarifications regarding the applicability of state law. The NCUA also received comments noting appreciation for the NCUA's longstanding position that the signature requirement may be satisfied electronically, consistent with the E-SIGN Act. Additionally, the NCUA received one comment addressing co-owned revocable trust accounts. Co-owned revocable trust accounts are outside the scope of this rulemaking.

Several commenters asked the NCUA to consider including additional examples of account information that may be used as evidence of co-ownership. One of the commenters suggested two additional possible examples: (1) Use of the account via a mobile banking application or online access platform; and (2) a co-owner having agreed to receive electronic statements via their email address. Another of these commenters asked the NCUA to promptly provide additional examples because, while they appreciate the agency not limiting the scope, they felt it would be helpful to provide examples of what information can be used as new technologies are developed and utilized by credit unions.

In asking the NCUA to consider adding additional examples to the text of the regulation or its “Official Staff Commentary,” one commenter suggested that the examples need to more concretely describe the types of evidence that may be used. The commenter expressed concern that the evidence described in the rule itself is somewhat vague and that the examples in the proposed rule's preamble may be confusing. The commenter said that, for example, the fact that an account holder has a debit card issued for another person's use ( e.g., a parent supplying a card for their child to use) does not establish that the other person is actually a co-owner of the account. The commenter noted that the other party would simply be authorized to access the account, but would not own the funds nor qualify for joint share insurance coverage. Related to this example, the commenter acknowledged that § 745.8(c)(1) states that “the signature requirement does not apply to . . . any accounts maintained by an agent,” but felt that this may not be explicit enough to avoid confusion.

The Board disagrees that additional or more concrete examples would be beneficial or are necessary because, contrary to the commenters' intentions, they could be viewed as limiting flexibility. The examples provided in the proposed rule, and adopted in the final rule, are neither intended to be all-inclusive nor dispositive. Instead, they are merely intended to illustrate the types of evidence the NCUA may consider when determining whether an account is co-owned and the signature card requirement in place for coverage as a qualifying joint account satisfied. The change is intended to provide the NCUA with the maximum flexibility possible to evaluate a FICU's account records and properly determine if an account is co-owned. When it is necessary for the NCUA to evaluate alternative evidence to determine if an account is co-owned, the NCUA will holistically evaluate all of the information in a FICU's account records that properly aid it in making this determination. In other words, the NCUA will not look at evidence, like the issuance of a debit card to a minor, as de facto evidence of co-ownership, but will use such evidence to help it accurately determine the actual account ownership.

Relatedly, one commenter suggested revising the text of proposed § 745.8(c)(2) to better reflect the proposed rule's intention, as noted in the preamble, that the examples of evidence of co-ownership were not intended “to define the only form of evidence”  30 that would satisfy the signature requirement. The commenter suggested that, to minimize the opportunity for confusion in the future, the NCUA consider modifying proposed § 745.8(c)(2) by replacing “such as” with the phrase “including, but not limited to,” before the word “evidence.” The commenter reasoned that this would make clear on the face of the regulation that other evidence in the account records may be sufficient to establish qualifying joint ownership of a share account. As discussed in section II of this preamble, the Board agrees that this language would help to eliminate ambiguity and reflects the intent of the proposed rule. Accordingly, the Board has adopted it in the final rule. Section 745.8(c)(2) will now state that the signature card requirement may be satisfied by information contained in the account records of the federally insured credit union establishing co-ownership of the share account, “including, but not limited to,” evidence that the institution has issued a mechanism for accessing the account to each co-owner or evidence of usage of the share account by each co-owner.

One commenter provided a detailed comment asking the NCUA to add language to the regulation or its “Official Staff Commentary” clearly stating that the proposed change only addresses the evidence that the NCUA may accept to treat an account as joint for share insurance coverage purposes, with no bearing on the legality or enforceability of an account that lacks joint account holders' signatures on an account agreement. The Board addressed this issue in the preamble to the proposed rule  31 and again reiterates now that the alternative method for satisfying the signature card requirement adopted in this final rule is only relevant for purposes of determining share insurance coverage. The final rule has no bearing on any other legal requirement that FICUs are subject to, including all applicable state laws. The final rule does not eliminate the need for FICUs to obtain signatures when opening an account, it merely allows the NCUA to use alternative evidence in a FICU's account records to find the signature card requirement for coverage as a qualifying joint account satisfied even if signed membership or account signature cards are absent from a liquidated FICU's records.

In addressing this issue, the commenter acknowledged that the preamble to the proposed rule speaks to this issue, 32 but felt it critical that FICUs understand that the proposed rule: (1) Would only impact share insurance coverage; and (2) would not eliminate any requirement under state law or contracts common law related to the need for joint account holders to sign account agreements. The commenter correctly emphasized that the proposed change would not open the door for FICUs to establish accounts without proper, signed agreements in place among all account holders.

The commenter noted that signatures are statutorily required in their state to create a joint account and that, even absent a statutory requirement, the common law calls for contracts to be signed. The commenter stated that without the signatures of all joint account holders to a contract or account agreement, credit unions lack a legal basis for enforcing the account's terms against those account holders. The commenter emphasized that the lack of a legally enforceable, signed joint account agreement could lead to credit unions being caught in the middle of potential disputes among parties and their heirs when one or more account holders die.

While the Board again reiterates the alternative method for satisfying the signature card requirement adopted in this final rule is only relevant for purposes of determining share insurance coverage, it declines to add additional language to the text of the regulation explicitly stating that credit unions are still subject to other applicable legal requirements. The Board appreciates the commenter's concern, but does not believe it appropriate or necessary to include such language. The Board believes it is clear in the text of the regulation that the alternative method is only relevant for evaluating whether the signature card requirement is satisfied for purposes of determining proper share insurance coverage. Further, the Board thinks it inappropriate to explicitly state in a regulation that the regulation does not preempt other applicable law or apply to subjects outside the scope of the regulation when there is no indication the provision intends to preempt other laws or apply in other contexts. Inclusion of such language would only increase confusion and raise doubts about provisions that do not contain similar language.

The Regulatory Flexibility Act (RFA) generally requires that, in connection with a final rule, an agency prepare a final regulatory flexibility analysis that describes the impact of a rule on small entities. A regulatory flexibility analysis is not required, however, if the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include FICUs with assets less than $100 million) and publishes its certification and a short, explanatory statement in the Federal Register together with the rule. The final rule explicitly allows the NCUA to look to information contained in the account records of a FICU in order to satisfy the signature card requirement at the time of a FICU's failure. As a result, it will not cause any increased burden on FICUs and will not have an impact on small credit unions. Accordingly, the NCUA certifies that the final rule will not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency creates new or amends existing information collection requirements. 33 For the purpose of the PRA, an information collection requirement may take the form of a reporting, recordkeeping, or a third-party disclosure requirement. The final rule does not contain information collection requirements that require approval by OMB under the PRA. 34 The final rule will merely allow the NCUA to look to information contained in the account records of a FICU in order to satisfy the signature card requirement at the time of a FICU's failure.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles, the NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the Executive order. This rulemaking will not have a substantial direct effect on the states, on the connection between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that this final rule does not constitute a policy that has federalism implications for purposes of the Executive order.

The NCUA has determined that this final rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999. 35

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) generally provides for congressional review of agency rules. A reporting requirement is triggered in instances where the NCUA issues a final rule as defined by section 551 of the Administrative Procedure Act. An agency rule, in addition to being subject to congressional oversight, may also be subject to a delayed effective date if the rule is a “major rule.” The NCUA does not believe this rule is a “major rule” within the meaning of the relevant sections of SBREFA. As required by SBREFA, the NCUA will submit this final rule to the Office of Management and Budget for it to determine if the final rule is a “major rule” for purposes of SBREFA. The NCUA also will file appropriate reports with Congress and the Government Accountability Office so this rule may be reviewed.

For the reasons discussed in the preamble, the Board amends 12 CFR part 745 as follows:

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0173, dated August 5, 2020 (EASA AD 2020-0173) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all ATR-GIE Avions de Transport Régional Model ATR72 airplanes.

Airplanes with an original airworthiness certificate or original export certificate of airworthiness issued after December 12, 2019 must comply with the airworthiness limitations specified as part of the approved type design and referenced on the type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-13-04, Amendment 39-19677 (84 FR 35028, July 22, 2019) (AD 2019-13-04). AD 2019-13-04 applied to certain ATR-GIE Avions de Transport Régional Model ATR72 airplanes. The NPRM published in the Federal Register on November 2, 2020 (85 FR 69272). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in an EASA AD.

The FAA is issuing this AD to address fatigue cracking and damage in principal structural elements, which could result in reduced structural integrity of the airplane. See the MCAI for additional background information.

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

The applicability of the proposed AD identified the affected airplanes as Model ATR72 airplanes. The FAA has revised the applicability of this AD to identify model designations as published in the most recent type certificate data sheet for the affected models. For ATR72 airplanes, the type certificate data sheet designations are as follows: Model ATR72-101, -102, -201, -202, -211, -212, and -212A airplanes.

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

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

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

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

EASA AD 2020-0173 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires ATR ATR72 Time Limits Document, Revision 16, dated January 30, 2018, which the Director of the Federal Register approved for incorporation by reference as of August 26, 2019 (84 FR 35028, July 22, 2019).

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

The FAA estimates that this AD affects 23 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2019-13-04 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 727 airplanes. The NPRM published in the Federal Register on November 27, 2020 (85 FR 75969). The NPRM was prompted by a determination that excessive sealant coating on internal wing SSIs may not reveal cracks during inspections required by AD 98-11-03 R1, Amendment 39-10983 (64 FR 989, January 7, 1999) (AD 98-11-03 R1). The NPRM proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate inspections that will give no less than the required DTR for certain SSIs of the wing. The NPRM also proposed to require repetitive inspections for cracking of the affected SSIs and repair if necessary.

The FAA is issuing this AD to address excessive sealant coating on internal wing SSIs that may prevent the detection of cracks during inspections. This condition, if not addressed, could result in propagation of structural cracks that could lead to the inability of a wing SSI to sustain limit load and result in loss of control of the airplane.

The FAA gave the public the opportunity to participate in developing this final rule. The FAA has considered the comment received. Boeing indicated its support for the NPRM.

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

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

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

The FAA reviewed Boeing 727 Supplemental Structural Inspection Document D6-48040-1, Volume I, Temporary Revision 08-1001, dated February 2020; and Boeing 727 Supplemental Structural Inspection Document D6-48040-1, Volume II, Temporary Revision 11-1001, dated February 2020. In combination, this service information describes repetitive inspections for cracking of internal wing SSIs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 40 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

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

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

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

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

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

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

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

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

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued TCCA AD CF-2020-12, dated April 17, 2020 (TCCA AD CF-2020-12) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain Bombardier, Inc., Model BD-100-1A10 airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-0859.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the Federal Register on October 1, 2020 (85 FR 61881). The NPRM was prompted by reports of failure of a certain FIREX control unit. The NPRM proposed to require replacing FIREX control units having a certain part number. The FAA is issuing this AD to address the failure of a FIREX control unit, which could result in the loss of the ability to detect a fire. See the MCAI for additional background information.

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

NetJets requested that paragraph (i) of the proposed AD be revised to allow operators to review airplane maintenance records to determine the part number of the FIREX control unit installed on an airplane. The commenter stated that for the airplane having serial number (S/N) 20662 the logbook delivery document specifies that the -3 FIREX control unit is installed. The commenter explained that there is not a signoff sheet for Bombardier Service Bulletin 350-26-001, but that the serialized parts list clearly indicates that the -3 FIREX control unit is installed.

The FAA disagrees with the commenter's request because this AD does not mandate the method an operator must use to determine what FIREX control unit part number is installed on an airplane. As specified in paragraph (c) of this AD, this AD is only applicable to Bombardier, Inc., Model BD-100-1A10 airplanes fitted with FIREX control unit part number (P/N) 474112-2. If an operator is able to confirm that FIREX control unit P/N 474112-3 is installed on an airplane the requirements of this AD are not applicable to that airplane. This AD requires operators to remove FIREX P/N 474112-2 and install P/N 474112-3. The FAA has not changed this AD in regard to this issue.

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

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

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

Bombardier has issued Service Bulletin 100-26-01, Revision 01, dated December 5, 2019; and Service Bulletin 350-26-001, Revision 01, dated December 5, 2019. This service information describes procedures for replacing FIREX control units having P/N 474112-2 with units having P/N 474112-3. These documents are distinct since they apply to different airplane configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 223 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0127, dated June 4, 2020 (EASA AD 2020-0127) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Dassault Aviation Model Falcon 10 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2019-03-27, Amendment 39-19579 (84 FR 7801, March 5, 2019) (AD 2019-03-27). AD 2019-03-27 applied to all Dassault Aviation Model Falcon 10 airplanes. The NPRM published in the Federal Register on November 2, 2020 (85 FR 69269). The NPRM was prompted by a report indicating that certain wing anti-ice outboard flexible hoses were found damaged, likely resulting from the installation process, and the development of an improved wing anti-ice flexible hose. The NPRM proposed to continue to require the actions in AD 2019-03-27, as specified in an EASA AD. The NPRM also proposed to require adding a new life limit for the improved wing anti-ice flexible hose, as specified in EASA AD 2020-0127.

The FAA is issuing this AD to address damaged wing anti-ice outboard flexible hoses, which could lead to a loss of performance of the wing anti-ice protection system that is not annunciated to the pilot, and could result in reduced control of the airplane. See the MCAI for additional background information.

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

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

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

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

EASA AD 2020-0127 describes procedures for repetitive detailed inspections of certain wing anti-ice outboard flexible hoses, replacement of certain wing anti-ice outboard flexible hoses, a new life limit for certain wing anti-ice outboard flexible hoses, and optional terminating actions for the repetitive inspections (replacement of all damaged affected wing anti-ice outboard flexible hoses or accomplishing and passing an inspection on an affected wing anti-ice outboard flexible hose after it has accumulated 100 flight cycles since installation on an airplane). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE CF6-80C2A1, CF6-80C2A2, CF6-80C2A3, CF6-80C2A5, CF6-80C2A5F, CF6-80C2A8, CF6-80C2B1, CF6-80C2B1F, CF6-80C2B2, CF6-80C2B2F, CF6-80C2B4, CF6-80C2B4F, CF6-80C2B5F, CF6-80C2B6, CF6-80C2B6F, CF6-80C2B6FA, CF6-80C2B7F, CF6-80C2B8F, and CF6-80C2D1F model turbofan engines. The NPRM published in the Federal Register on April 10, 2020 (85 FR 20211). The NPRM was prompted by reports of incidents that resulted in a significant fuel loss during flight and an IFSD of the engine. The incidents resulted from inserts on the HMU/MEC idler adapter on the AGB assembly pulling out of the housing. An investigation by the manufacturer discovered improperly cut threads on the inserts and erroneous instructions in the maintenance manual, which contributed to poor thread engagement. In the NPRM, the FAA proposed to require initial and repetitive shim checks of the HMU/MEC idler adapter on the AGB assembly and, depending on the results of the shim check, possible replacement of the inserts on the HMU/MEC idler adapter. As a terminating action to the repetitive shim checks, the NPRM proposed to require a protrusion check and a pull-out test, and the replacement of inserts on the HMU/MEC idler adapter that fail either test. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from four commenters. The commenters were All Nippon Airways (ANA), Delta Air Lines, Inc. (DAL), FedEx Express (FedEx), and Japan Airlines (JAL). All commenters requested changes, some of which resulted in changes to this AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

DAL requested that paragraph (c), Applicability, of this AD be updated to align with the effectivity in GE CF6-80C2 Service Bulletin (SB) 72-1577 R01, dated August 16, 2019 (GE CF6-80C2 SB 72-1577 R01), which includes the part numbers (P/Ns) of the affected HMU/MEC idler adapters.

The FAA agrees. The FAA confirmed with the manufacturer that only the P/Ns of the HMU/MEC idler adapter listed in GE CF6-80C2 SB 72-1577 R01 are affected. The FAA updated the applicability of this AD to include the P/Ns of the affected HMU/MEC idler adapter. The number of engines affected by this AD is unchanged from the NPRM.

DAL requested that paragraph (h), Terminating Action, of this AD also terminate the initial shim check of the HMU/MEC idler adapter inserts required by paragraph (g)(1) of this AD. DAL reasoned that since the NPRM proposed to allow for terminating the repetitive shim checks of the HMU/MEC idler adapter inserts, that this AD should add a terminating action for the initial shim check of the HMU/MEC idler adapter inserts if the action was performed within 1,200 flight hours (FHs) after the effective date of this AD.

The FAA agrees. The FAA updated paragraph (h) of this AD to terminate the actions required by paragraph (g) of this AD.

DAL requested that the FAA remove the shim check of the HMU/MEC idler adapter inserts in paragraph (g)(3)(ii) of the NPRM. DAL reasoned that performing this shim check is not necessary because the (g)(3)(ii) shim check is already required by paragraph (g)(3)(i) of this AD. Additionally, DAL stated that referencing paragraph (g)(1) of this AD to perform the shim check may confuse operators as paragraph (g)(1) of this AD includes the requirement to perform the shim check within 1,200 FHs after the effective date of this AD. Therefore, DAL suggested that paragraph (g)(3)(ii) of this AD should only address the requirement to perform the terminating action if the shim check fails.

The FAA partially agrees. The FAA disagrees that paragraph (g)(3)(ii) of this AD should only address the requirement to perform the terminating action if the shim check of the HMU/MEC idler adapter inserts fails. After retorque of the bolts at each bolt location that failed the shim check, operators must perform the shim check again. If that shim check fails, then the terminating action is required. The FAA agrees that referencing paragraph (g)(1) of this AD may confuse operators whether to perform the shim check after the aircraft operated for some time or within 1,200 FHs after the effective date of this AD. The FAA updated paragraph (g)(3)(ii) of this AD to reference the service information when performing the shim check rather than paragraph (g)(1) of this AD.

ANA, DAL, FedEx, and JAL requested updates to paragraph (i), Credit for Previous Actions, of this AD. ANA requested adding credit for the repetitive shim checks of the HMU/MEC idler adapter inserts and terminating action. DAL and FedEx requested credit for the terminating action. JAL requested credit for the repetitive shim checks of the HMU/MEC idler adapter inserts, retorque of the bolts that failed the shim check, and the terminating action. The commenters reasoned that GE CF6-80C2 SB 72-1577 R00, dated October 31, 2018 (GE CF6-80C2 SB 72-1577 R00), instructs the operator to perform the same tasks required by GE CF6-80C2 SB 72-1577 R01. Therefore, credit should be allowed for initial and repetitive shim checks of the HMU/MEC idler adapter inserts and the terminating action.

The FAA agrees. The FAA reviewed GE CF6-80C2 SB 72-1577 R00, and determined that the instructions are consistent with GE CF6-80C2 SB 72-1577 R01. The FAA updated this AD to allow credit for the initial and repetitive shim checks of the HMU/MEC idler adapter inserts, retorque of the bolts that failed the shim check, and the terminating action, if performed before the effective date of this AD using GE CF6-80C2 SB 72-1577 R00.

ANA requested that the FAA approve an alternate marking area to show compliance with performing the terminating action of this AD. ANA stated that the marking areas indicated in GE CF6-80C2 SB 72-1577 R01, are difficult to access because many components are installed to AGB assembly.

The FAA disagrees with approving an alternate marking area. The manufacturer provided two possible marking areas in GE CF6-80C2 SB 72-1577 R01, and confirmed the suitability of the areas.

DAL requested that the FAA not mandate the provision in GE CF6-80C2 SB 72-1577 R01 to mark the HMU/MEC idler adapter to show compliance with the terminating actions of this AD. DAL reasoned that the NPRM did not propose to apply to all engines and therefore should not be required.

The FAA disagrees. Marking the HMU/MEC idler adapter identifies if the terminating action of this AD has been completed. As noted in a previous comment response, the FAA revised the applicability of this AD to limit applicability to affected engines with certain HMU/MEC idler adapter P/Ns installed. Operators who determine that their engines are not applicable to this AD do not need to perform the terminating action or mark the HMU/MEC idler adapter.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed GE CF6-80C2 SB 72-1577 R01, dated August 16, 2019. The SB describes procedures for performing shim checks of the HMU/MEC idler adapter and for replacing the HMU/MEC idler adapter inserts. 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 ADDRESSES .

The FAA estimates that this AD affects 555 engines installed on airplanes of U.S. registry.

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

The FAA estimates the following costs to do any necessary replacements that are required based on the results of the shim check. The agency has no way of determining the number of aircraft that might need these replacements:

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

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

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

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

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

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

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

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

The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0113, dated May 20, 2020 (EASA AD 2020-0113) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all Dassault Aviation Model FALCON 2000 airplanes.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-02-21, Amendment 39-19833 (85 FR 7860, February 12, 2020) (AD 2020-02-21). AD 2020-02-21 applied to all Dassault Aviation Model FALCON 2000 airplanes. The NPRM published in the Federal Register on November 3, 2020 (85 FR 69519). The NPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. The NPRM proposed to require revising the existing maintenance or inspection program, as applicable to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2020-0113. The FAA is issuing this AD to address reduced controllability of the airplane. See the MCAI for additional background information.

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

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

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

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

EASA AD 2020-0113 describes new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires Chapter 5-40, Airworthiness Limitations, Revision 20, dated November 2018, of the Dassault Aviation Falcon 2000 Maintenance Manual, which the Director of the Federal Register approved for incorporation by reference as of March 18, 2020 (85 FR 7860, February 12, 2020).

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

The FAA estimates that this AD affects 168 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-02-21 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

On August 31, 2020, OSHA published a final rule revising the standards for occupational exposure to beryllium and beryllium compounds in the construction and shipyard sectors (85 FR 53910). The document inadvertently failed to revise paragraph (k)(7)(ii) of both standards in the Code of Federal Regulations (CFR), as the final rule purported to do. The document also failed to include the correct language for these revised provisions in two tables in the Economic Feasibility Analysis and Regulatory Flexibility Certification section of the preamble. OSHA is publishing this document to correct these errors.

OSHA has determined that these corrections are not subject to the procedures for public notice and comment specified in Section 4 of the Administrative Procedures Act (5 U.S.C. 553) or Section 6(b) of the Occupational Safety and Health Act of 1970 (29 U.S.C. 655(b)). This rulemaking only corrects minor errors and does not affect or change any existing rights or obligations. No stakeholder is likely to object to these corrections. Therefore, the agency finds good cause that public notice and comment are unnecessary within the meaning of 5 U.S.C. 553(b)(3)(B), 29 U.S.C. 655(b), and 29 CFR 1911.5.

In FR Doc. 2020-18017 appearing on page 53910 in the Federal Register of August 31, 2020 (85 FR 53910), make the following corrections in the Economic Feasibility Analysis and Regulatory Flexibility Certification section of the preamble.

1. On page 53991, in the third column, in Table VI.1, the sixth paragraph is corrected to read as follows:

“Added a new requirement in paragraph (k)(7)(ii) that the employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee.”

2. On page 53994, in the third column, in Table VI.2, the first paragraph is corrected to read as follows:

“Added a new requirement in paragraph (k)(7)(ii) that the employer must ensure that, as part of the evaluation, the employee is offered any tests deemed appropriate by the examining physician at the CBD diagnostic center, such as pulmonary function testing (as outlined by the American Thoracic Society criteria), bronchoalveolar lavage (BAL), and transbronchial biopsy. If any of the tests deemed appropriate by the examining physician are not available at the CBD diagnostic center, they may be performed at another location that is mutually agreed upon by the employer and the employee.”

Amanda L. Edens, Deputy Assistant Secretary of Labor for Occupational Safety and Health, U.S. Department of Labor, directed the preparation of this notice pursuant to 29 U.S.C. 653, 655, and 657, Secretary of Labor's Order 8-2020 (85 FR 58393; Sept. 18, 2020), and 29 CFR part 1911.

For reasons stated in the preamble, the Occupational Safety and Health Administration corrects 29 CFR parts 1915 and 1926 with the following correcting amendments:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the temporary rule takes place after the closure of the Sault Saint Marie Locks on a frozen waterway with no anticipated vessel traffic. Further, delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with the events taking place during Red Bull's filming of the snowmachine stunts across the waterway.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceeding paragraph, waiting for a 30-day notice period to run would be impracticable and contrary to the public interest.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Duluth (COTP) has determined that this rule is necessary to protect the safety of people, vessels, vehicles, and the navigable waters within the safety zone immediately before, during, and after the scheduled event.

The COTP establishing a safety zone from 9 a.m. through 4 p.m. daily from February 25, 2021 through March 5, 2021. The safety zone covers all navigable waters from Connor's Point Marina, along the Blatnik Bridge (Interstate 535 Bridge) to Rice's Point Landing, extending 100 yards on either side of the barges along the waterway. The duration of the zone is intended to protect the safety of persons, vehicles, vessels, and these navigable waters immediately before, during, and after the scheduled event. No vessel, vehicle, or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on on the size, location, duration, and time-of-day of the safety zone. There is no expected vessel traffic on Lake Superior due to the closure of the Sault Saint Marie Locks and buildup of ice. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and under certain conditions, the rule would allow vessels to transit to seek permission to enter the zone from the COTP or a designated representative.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.

There is no expected vessel traffic on Lake Superior due to the closure of the Sault Saint Marie Locks and buildup of ice, so there this proposed rule would not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting four hours over six consecutive days that would prohibit entry within 100 yards of the barges alongside Blatnik Bridge (Interstate 535 Bridge). Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be contrary to the public interest. Providing a public notice and comment period would be contrary to the security zone's intended objective of protecting the official party and the public.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule is contrary to the public interest because the Coast Guard must establish this security zone by March 10, 2021 to ensure the safety and security during the official's visit.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector San Diego (COTP) has determined that the official's visit presents a potential target for terrorist acts, sabotage, or other subversive acts, accidents, or other causes of a similar nature. Given the close proximity of the waterways to the official's visit site, this security zone is necessary to protect the official party, the public, and the surrounding waterways in the vicinity of U.S. Coast Guard Sector San Diego.

This rule establishes a security zone from 6 a.m. on March 10, 2021 through 6 p.m. on March 11, 2021. The security zone will be enforced from 6 a.m. through 6 p.m. on both of these dates. The security zone will cover all navigable waters of the San Diego Bay bound landward of a line by connecting the following points: Beginning at latitude 32°43′37.2″ N, longitude 117°10′45.0″ W (point A); thence southeasterly to latitude 32°43′36.2″ N, longitude 117°10′41.5″ W (point B); thence southwesterly to latitude 32°43′20.2″ N, longitude 117°10′49.5″ W (point C); thence northwesterly to latitude 32°43′25.7″ N, longitude 117°11′04.6″ W (point D); thence northeasterly to latitude 32°43′35.7″ N, longitude 117°10′59.5″ W (point E); thence generally easterly along the air station boundary to the point of beginning (point A). No vessel may enter, transit through, anchor in, or remain in the zone during its enforcement unless permission is obtained from the COTP or a designated representative. The duration of the zone is intended to protect the Commandant and the Commandant's party in the vicinity of this waterway.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on size, location, duration, and time-of-day of the security zone. Vessel traffic will be able to safely transit around this security zone which would impact a small designated area of San Diego Bay where commercial traffic is typically low.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the security zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a security zone that will prohibit entry within a portion of the navigable waters in the vicinity of U.S. Coast Guard Sector San Diego, CA. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

On May 14, 2020, the Postal Service published a notice of proposed rulemaking (85 FR 28917-28918) to revise the time limit for extra service refunds on all classes of mail except Priority Mail Express®. The Postal Service elected to issue a second revised proposed rule on January 7, 2021, (86 FR 1080-1081) that included revising the timelines for Priority Mail Express with an extra service. One formal response was received as follows:

Comment: The commenter requested the time limit for extra service refunds be revised on all classes of mail except Priority Mail Express.

USPS Response: The Postal Services believes this revision to extend the time limits for filing a refund for all classes of mail will provide consistency within the refund policy.

Currently, DMM Exhibit 604.9.2.1, Postage and Fees Refunds, provides that for Priority Mail Express with an extra service a customer must apply for an extra service refund no sooner than 10 days, or no later than 30 days, and for all other classes of mail with an extra service a customer must apply for an extra service refund no sooner than 10 days, or no later than 60 days, from the date the service was purchased.

Certain extra services ( e.g., Certified Mail®) have workflow timelines that extend beyond the current 10-day limit to initially file for a refund. As a result, to meet the required workflow timelines for these extra services, and for consistency in application of the refund processes, the Postal Service is extending the current Priority Mail Express with an extra service timeline to no sooner than 30 days, or no later than 60 days. For all other classes of mail with an extra service, the 10-day time limit will be extended to a 30-day time limit before a customer can file for a refund.

We believe this revision will provide customers with a more efficient process and a more consistent customer experience.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

Accordingly, 39 CFR part 111 is amended as follows:

Throughout this document “we,” “us,” and “our” means the EPA. In our October 6, 2020 proposal for this action (85 FR 63066) we inadvertently referred to the May 8, 2019 submittals as May 10, 2019 submittals. The cover letters to these submittals are dated May 10, but they were actually received by EPA on the 8th.

The background for this action is discussed in detail in our October 6, 2020 proposal (85 FR 63066). In that document we proposed to approve various revisions to the Colorado SIP that were submitted to the EPA on May 31, 2017, May 14, 2018 and May 8, 2019. In particular, we proposed to approve certain area source rules to meet the 2008 8-hour ozone national ambient air quality standards (NAAQS) RACT requirements for Moderate nonattainment areas that were not acted on in our July 3, 2018 rulemaking approving the State's attainment demonstration and various SIP elements. 1 We also proposed to approve into the SIP the submitted revisions to Colorado's Reg. 7 that we have not previously acted on, except for Sections XII and XVIII (from the May 2018 submittal) and Sections XVI.D.4.b.(i) and XVI.D.4.d. (from the two May 2019 submittals), which we will be acting on at a later date (see Tables 4 and 5 of the preamble to the proposed rule). Finally, we proposed to approve IBR material that was submitted in May 2017 but inadvertently excluded from our July 3, 2018 action. The factual and legal background for this action is discussed in detail in our October 6, 2020 proposed approval. The proposal provides a detailed description of the revisions and the rationale for EPA's proposed actions. We did not receive any comments on the proposal.

The EPA is approving submitted revisions to Sections I, II, III, V, VI, VII  2 , VIII, IX, X, XI, XIII, XIV, XV, XVI, XVII, XIX and XX of Reg. 7 from the State's May 31, 2017, May 14, 2018 and May 8, 2019 submittals as shown in Table 1, except for those revisions we are not acting on as represented in Table 2. We are approving Colorado's determination that the above rules constitute RACT for the specific categories addressed in Tables 3 and 4, except for the aerospace category, which we are conditionally approving. We are also finding that for VOC RACT requirements at major non-CTG VOC sources, Colorado has RACT-level controls in place for the DMNFR Area under the 2008 8-hour ozone standard. We are not finalizing our RACT determination for major sources of NO X in this document because there are certain NO X source categories as to which we have not yet determined that the State has met RACT requirements. We will be addressing those categories and requirements in a future action  3 4 .

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

On September 3, 2020 (85 FR 54952), the EPA proposed to approve the following rules into the California SIP:

We proposed to approve these rules because we determined that they comply with the relevant CAA requirements. Our proposed action and associated TSDs contain more information on the rules and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received eight comments. Each of the comments were supportive of the proposed action.

No comments were submitted that change our assessment of the rules as described in our proposed action. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rules into the California SIP.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the SCAQMD and the VCAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 26, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

This document of the Environmental Protection Agency was signed on December 11, 2020, by John Busterud, Regional Administrator, Region IX, pursuant to a consent decree entered on December 4, 2020 in Our Childrens Earth Foundation v. Wheeler, 4:20-cv-00396-JSW (N.D. Cal.). That document with the original signature and date is maintained by EPA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned EPA Official re-signs the document for publication, as an official document of the Environmental Protection Agency. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, the Environmental Protection Agency amends Part 52, Chapter I, Title 40 of the Code of Federal Regulations as follows:

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

The EPA is publishing this rule without prior proposal because the Agency views this as a noncontroversial action and anticipates no adverse comments. However, in the Proposed Rules section of today's Federal Register publication, the EPA is publishing a separate document that will serve as the proposal to fully approve North Dakota's title V program revisions if relevant adverse comments are filed.

If the EPA receives adverse comments, the EPA will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. The EPA will address all public comments in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

Title V of the CAA as amended (42 U.S.C. 7401 et seq. ) directs states to develop, and submit to the EPA, programs for issuing operating permits to all major stationary sources and to certain other sources. 1 As required under title V, the EPA has promulgated regulations establishing the minimum elements of an approvable state title V program and defined the corresponding procedures by which the EPA will approve, oversee and, when necessary, withdraw approval of a state title V program. 2 After review of the state's initial program submittal, the EPA may alternatively grant interim approval of a program which substantially meets the requirements of title V and part 70 but which is not fully approvable. In the case of such an interim approval, the EPA will specify the changes that must be made before the program can receive full approval and the state shall resubmit the modified program before expiration of the interim approval. 3

North Dakota first received interim approval of its title V program effective August 7, 1995 (60 FR 35335). North Dakota's program later received final, full approval effective on August 16, 1999 (64 FR 32433). On August 6, 2018, the State of North Dakota submitted to the EPA a formal request for approval of title V program recodifications and revisions made to facilitate the transfer of permitting authority from the North Dakota Department of Health (NDDH) to a newly established North Dakota Department of Environmental Quality (NDDEQ). 4 During North Dakota's review of the NDAC for recodification and submittal to the EPA for approval, North Dakota found limitations in state law provisions for judicial review in state courts. Accordingly, the Attorney General's Opinion that accompanied North Dakota's submission explained those limitations and committed to submit an addendum to the Opinion when the State adopted rules consistent with the full judicial review requirements in 40 CFR 70.4(b)(3)(x)-(xii). 5 After review, the EPA found that the recodified and revised program substantially met the minimum requirements of the CAA and part 70, but that the EPA could not fully approve the program transfer until the State revised its rules to provide the full legal authority necessary for judicial review. 6 Accordingly, the EPA promulgated an interim approval of North Dakota's title V program transfer effective March 15, 2019. EPA stated that interim approval would expire on March 19, 2020, and required the State to submit changes to the program addressing the judicial review deficiencies no later than six months prior to the expiration of the interim approval. 7 A subsequent action delayed the interim approval's effective date to April 30, 2019, which then delayed the expiration date to May 1, 2020. 8 Accordingly, North Dakota's program revisions addressing the judicial review deficiencies were due no later than November 1, 2019.

In our action granting interim approval of North Dakota's title V program transfer, the EPA concluded that North Dakota's title V program transfer was not fully approvable due to a lack of full authority required for judicial review. 9 The EPA explained that interim approval would allow North Dakota to make minor revisions to NDAC section 33.1-15-14-06.8 and update the State Attorney General's Opinion to reflect revised legal authorities. 10 The EPA received an Addendum, dated December 12, 2018, to the August 16, 2018 State Attorney General's Opinion Operating Permits Program (August 16, 2018 Opinion), which states that the regulations regarding petitions for judicial review identified in the August 16, 2018 Opinion “have been lawfully adopted and shall be fully effective by the time the program is approved.”  11 The State of North Dakota also submitted clean and redlined copies of the revised NDAC section 33.1-15-14-06.8 with the December 12, 2018 Addendum to the Opinion, which are available in the docket for this action. The revisions to NDAC section 33.1-15-14-06.8 became effective on January 1, 2019. 12

The December 12, 2018 Addendum to North Dakota's Attorney General's Opinion, together with the August 16, 2018 Opinion, affirm that the State revised the title V program provisions for judicial review as codified in NDAC section 33.1-15-14-6.8, effective as amended January 1, 2019. Therefore, North Dakota timely submitted revisions to address the deficiencies identified in our interim approval action within six months prior to the interim approval's expiration. Accordingly, the EPA finds that the North Dakota title V program fulfills all criteria for full final approval of the transfer. The EPA is now acting to fully approve the North Dakota title V program under 40 CFR part 70 and CAA section 502.

Under the CAA, the Administrator is required to approve a state title V program submittal that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7661a(d); 40 CFR 70.1(c), 70.4(i). Thus, in reviewing title V program submittals, the EPA's role is to approve state choices, provided they meet the criteria of the CAA and the criteria, standards and procedures defined in 40 CFR part 70. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because Operating Permits Program approvals are exempted under Executive Order 12866;

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

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

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

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

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

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

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

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, this action is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 26, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 70 is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0233 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 26, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0233, by one of the following methods:

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

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

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

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

In the Federal Register of December 15, 2017 (82 FR 59604) (FRL-9970-50), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 7F8558) by Bayer CropScience, 2 T.W. Alexander Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the insecticide, tetraniliprole in or on tuberous and corm vegetables, crop group 1C at 0.015 parts per million (ppm); potato, wet peel at 0.02 ppm; leafy vegetables, crop group 4-16 at 20 ppm; Brassica head and stem vegetables, crop group 5-16 at 1.5 ppm; fruiting vegetables, crop group 8-10 at 0.40 ppm; tomato paste at 1.5 ppm; citrus fruit, orange subgroup 10-10A at 0.50 ppm; citrus fruit, lemon/lime subgroup 10-10B at 0.80 ppm; citrus fruit, grapefruit subgroup 10-10C at 0.50 ppm; citrus oil at 4.0 ppm; pome fruit, crop group 11-10 at 0.40 ppm; stone fruit, crop group 12-12 at 1.0 ppm; plum, dried (prune) at 2.0 ppm; small fruit, vine climbing subgroup, except fuzzy kiwi, crop subgroup 13-07F at 1.5 ppm; tree nuts, crop group 14-12 at 0.03 ppm; almond hulls at 4.0 ppm; corn, field, grain at 0.015 ppm; corn, field, forage at 4.0 ppm; corn, field, stover at 15 ppm; corn, pop, grain at 0.015 ppm; corn, pop, stover at 15 ppm; corn, sweet, kernel plus cobs with husks removed at 0.01 ppm; corn, sweet, forage at 6.0 ppm; corn, sweet, stover at 20 ppm; cottonseed, crop group 20C at 0.40 ppm; cotton, gin byproducts at 30 ppm; soybean seed at 0.20 ppm; soybean hulls at 0.60 ppm; aspirated grain fractions at 45 ppm; soybean forage at 0.07 ppm; soybean hay at 0.20 ppm; alfalfa, forage and hay at 0.06 ppm; forage, fodder and straw of cereal grains, crop group 16, except field, pop and sweet corn at 0.10 ppm; foliage of legume vegetables, crop group 7, except soybeans at 0.03 ppm; milk at 0.06 ppm; fat of cattle, horses, sheep and goats at 0.30 ppm; muscle of cattle, horses, sheep and goats at 0.03 ppm; meat by-products of cattle, horses, sheep and goats at 0.30 ppm. That document referenced a summary of the petition prepared by Bayer CropScience, the registrant, which is available in the docket, http://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA has modified the levels at which tolerances are being established as well as some of the commodity definitions used. The reasons for these changes are explained in Unit IV.D.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The submitted animal toxicity studies on tetraniliprole demonstrate low toxicity, which is expected based on two factors. Tetraniliprole is an anthranilimide insecticide that targets the activation of insect ryanodine receptors, which leads to insect paralysis and death. In contrast, mammalian ryanodine receptors are substantially less sensitive ( i.e., 350 to >2,500 times less sensitive) to the effects of anthranilic diamides than insect ryanodine receptors. Moreover, available data indicate that tetraniliprole has limited absorption at the higher dose levels (>20 mg/kg), which may contribute to the low toxicity seen in the animal testing.

In subchronic toxicity studies (28-day and 90-day) in rats and mice, no adverse effects were seen at dose levels ranging from approximately 600 to 1,228 mg/kg/day. In the subchronic studies (28-day and 90-day) in dogs, an increase in the incidence and frequency of salivation was found, but this finding did not show a dose related-response, was a common occurrence in dogs, and was not considered to be adverse.

No systemic or dermal toxicity was seen in a 28-day dermal toxicity study at 1,000 mg/kg/day; this finding was consistent with rather low dermal absorption as the DAF for humans was estimated to be approximately 9% (upper limit).

No adverse maternal or developmental effects were found at the limit dose (1,000 mg/kg/day) in the developmental toxicity studies in rats and rabbits. In the reproduction study, the offspring effect, slight decrease in pup weight near and above the limit dose, was found in the absence of any adverse parental effect. Because the potential increase in susceptibility occurred at the limit dose and on postnatal days (PND) 14 to 21 at which time the pups were exposed to the test material through both milk and food resulting in a higher compound intake, the Agency's concern for the potential risk to infants and children is low. Tetraniliprole did not cause any effects on reproductive parameters.

The combined chronic/carcinogenicity study in rats showed a decrease in body weights, increased incidence of squamous cell hyperplasia in the cervix and vagina, and corpora lutea depletion in the ovary at the limit dose. In addition, a slight increase in the incidence of uterine tumor was observed at a dose slightly above the limit dose. No genotoxic potential was detected in the battery of genotoxicity studies. There were no treatment-related tumors seen in mice and no adverse effects were observed in male rats. The only adverse effects observed in female rats occurred at the limit dose, which was the only dose where pre-neoplastic or neoplastic lesions were observed. Furthermore, there is no concern for mutagenicity and none of the identified structurally-related compounds induced tumors in rats or mice. Based on the available data that indicates that the increased incidence of uterine tumor was seen in only one species (rat), one sex (female), and is only slightly outside of the historical control range, EPA has classified tetraniliprole as having “suggestive evidence of carcinogenic potential.”

Typically, for chemicals so classified, EPA recommends that a non-linear or RfD approach be used because the RfD would be protective for all toxicity, including carcinogenicity. However, in the case of tetraniliprole, EPA determined that the existing data do not support establishing toxicity endpoints and that a qualitative assessment is more appropriate for assessing tetraniliprole. This analysis is discussed more fully in Unit III.B. below. Similarly, because of the suggestive nature of the carcinogenicity effects and the fact that the only tumor effects are seen at doses above the limit dose, EPA has determined that a qualitative risk assessment would be appropriate in this case to account for all toxicity including carcinogenicity.

No acute and subchronic neurotoxicity studies were submitted for tetraniliprole because this requirement was waived. However, no evidence of neurotoxicity was seen in any of the other studies in the tetraniliprole database.

Specific information on the studies received and the nature of the adverse effects caused by tetraniliprole as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document titled “Tetraniliprole: New Active Ingredient, First Food Use. Human Health Risk Assessment for the Establishment of Permanent Tolerances on Brassica Head and Stem Vegetables, Corn (Field, Pop and Sweet), Citrus Fruit, Fruiting Vegetables, Leafy Vegetables, Pome Fruit, Small Fruit Vine Growing (except Fuzzy Kiwifruit) including Grape, Soybean, Stone Fruit, Tree Nuts, and Tuberous and Corm Vegetables, Plus Registration for Seed Treatment Uses on Corn (Field, Pop and Sweet), Use on Tobacco, and Use on Golf Course Turf, Sport Fields, and Sod Farms” on pages 33-69 in docket ID number EPA-HQ-OPP-2017-0233.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/assessing-human-health-risk-pesticides.

Based on a thorough analysis of the toxicology database of tetraniliprole, the Agency has determined that a qualitative risk assessment is more appropriate for tetraniliprole based on the following reasons:

• All the adverse effects (decrease in pup body weights and non-neoplastic uterine lesions, characterized by prolapsed vagina, squamous cell hyperplasia in the cervix) in rats were found at or slightly above the limit dose. Although informative for hazard characterization for purposes of risk assessment, a toxicity test dose at or above the limit dose of 1,000 mg/kg/day represents an exposure that is not expected to occur either daily or over an extended period of time and therefore is not relevant to exposure levels expected from the use of tetraniliprole.

• EPA determined that the body weight reduction effects seen in the 90-day and 1-year oral studies with the dog, (approximately 500 mg/kg/day) were not robust enough to be employed as a toxicity endpoint for risk assessment, due to the marginal nature of those effects and the fact that the rat (for which effects were seen at the 1,000 mg/kg/day, limit dose) was more sensitive, based on a human equivalent dose analysis.

• Available data indicate no potential inhalation risk of concern.

• Available data indicate no adverse systemic effects at the limit dose (1,000 mg/kg/day) for dermal exposure.

• Potential offspring susceptibility was not of concern as the decrease in pup weight seen in the reproduction study was marginal and occurred at or above the limit dose (890/1,032 mg/kg/day (males/females)). In addition, the decrease occurred on postnatal days (PND) 14 to 21, at which time the pups were likely to be exposed to the test material through both milk and feed resulting in a much higher compound intake.

• Finally, taking into account expected exposures, EPA does not anticipate dietary exposure levels to occur daily, or over an extended period of time that would reach levels anywhere near that of the limit dose (1,000 mg/kg/day). An unrefined chronic dietary (food only) exposure estimate of tetraniliprole was calculated using tolerance-level residues for all crops and assuming 100% crop treated, as well as default processing factors. The screening estimate indicated that the highest exposure group is children 1 to 2 years old, with an estimated exposure of 0.027 mg/kg/day. To reach a dose of 1,000 mg/kg/day, an individual of this subpopulation would need to ingest 37,000 times the estimated dietary exposure. Further, the highest current application rate is approximately 0.18 lb ai/acre; and in order to yield residues that would lead to dietary exposures of 1,000 mg/kg/day, the application rate would have to be greater than 6,000 lb ai/acre. Consequently, EPA does not believe that an effect at or about the limit dose is relevant to human health risk assessment for tetraniliprole.

Taking all the foregoing into consideration, EPA has concluded that a qualitative analysis of tetraniliprole is appropriate.

1. Dietary exposure from food and feed uses. There is potential for exposure to tetraniliprole via food and feed based on the proposed uses. However, no adverse effects were observed in the submitted toxicological studies for tetraniliprole regardless of the route of exposure. Thus, no quantitative dietary exposure assessments are needed for EPA to conclude with reasonable certainty that dietary exposures to tetraniliprole do not pose a significant human health risk.

2. Dietary exposure from drinking water. There are no residues of toxicological concern expected in drinking water from the use of tetraniliprole. Thus, no drinking water exposure assessments are needed for the Agency to conclude with reasonable certainty that drinking water exposures to tetraniliprole do not pose a significant human health risk.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets).

Based upon the proposed labels, EPA does not anticipate residential handler exposures. Tetraniliprole is being proposed for registration as a liquid formulation for use on golf course turf and sports fields that could result in residential post-application exposures. However, no adverse effects were observed in the submitted toxicological studies for tetraniliprole regardless of the route of exposure; therefore, a quantitative residential post-application exposure assessment was not conducted. Thus, no residential exposure assessments are needed for the Agency to conclude with reasonable certainty that residential exposures to tetraniliprole do not pose a significant human health risk.

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

EPA has not found tetraniliprole to share a common mechanism of toxicity with any other substances, and tetraniliprole does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that tetraniliprole does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www2.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Section 408(b)(2)(C) requires the application of an additional tenfold margin of safety to account for potential risks to infants and children, in the case of threshold effects. For tetraniliprole, EPA has not identified any toxicological endpoints of concern associated with any threshold effects and is conducting a qualitative assessment. That qualitative assessment does not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. EPA has also evaluated the available data and concluded that there are no residual uncertainties concerning the potential risks to infants and children that would impact its conclusions about threshold effects.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

No adverse effects were observed in the submitted toxicological studies at doses relevant to human health pesticide risk assessment for tetraniliprole regardless of the route of exposure. Effects observed in the data base ( e.g. , decreased body weight) were both marginal, and only seen at doses not expected to occur daily or over an extended period. Based on a lack of toxicity at exposure levels expected from approved application rates and an expectation that aggregate exposures to residues of tetraniliprole will not reach the levels required to cause any adverse effects, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to tetraniliprole residues.

An adequate analytical method (01414) which uses high-performance liquid chromatography with tandem mass spectrometry (HPLC/MS/MS) to quantitate residues of tetraniliprole in various crops is available for enforcement. An adequate HPLC/MS/MS method, Method FV-002-A16-01, is proposed as the enforcement method for determination of residues of tetraniliprole in livestock matrices. The methods may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address: residuemethods@epa.gov.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established any MRLs for tetraniliprole.

Five comments were received to the notice of filing. Four of the comments were not related specifically to tetraniliprole or pesticides in general, dealing instead with “anti-environmental morons”, electric cars, and wind farms and their impact on birds and bats. The fifth comment was submitted on behalf of the Center for Biological Diversity that was primarily concerned about EPA's consideration of the impacts of tetraniliprole on the environment, pollinators, and endangered species. None of these comments are relevant to the Agency's evaluation of safety of the tetraniliprole tolerances under section 408 of the FFDCA, which requires the Agency to evaluate the potential harms to human health, not effects on the environment.

The Agency is establishing tolerances based on the Organization for Economic Cooperation and Development (OECD) rounding class practice and to reflect the preferred commodity definitions currently used by the Agency, which results in some variations between established tolerances and the tolerances the petitioner requested.

For field corn and popcorn, the available data support a tolerance of 0.01 ppm, slightly lower than the petitioned-for tolerance (0.015 ppm).

The petitioner requested tolerances on dried fruit (prune) and potato wet peel. The available data indicates that residues on those commodities do not concentrate so the new tolerances on stone fruit group 12-12 (1.0 ppm) and vegetable, tuberous and corm, subgroup 1C (0.015 ppm), respectively, are adequate to cover residues in these commodities.

For citrus fruits (subgroups 10-10A, 10B, and 10C), the Agency used the OECD statistical calculation procedures to determine the appropriate tolerance value based on the available field trial residue data, which resulted in a higher tolerance value for each of these subgroups than what the petitioner requested.

Based on the highest average field trial (HAFT) (0.767 ppm) for lime and using a processing factor of 8.6, the Agency calculated that a tolerance of 7 ppm is necessary to cover residues in citrus oil. Similarly, based on the HAFT (0.136 ppm) for soybean seed and using a processing factor of 2.6, the Agency determined that a tolerance of 0.4 ppm is appropriate for soybean hulls.

Although the petitioner did not expressly identify certain tolerances as intended to cover indirect or inadvertent residues in rotational crops, because certain crops are only approved as crops that may be rotated into treated fields on the label, EPA is establishing tolerances for indirect or inadvertent residues for those commodities: alfalfa, forage at 0.015 ppm; alfalfa, hay at 0.06 ppm; cottonseed subgroup 20C at 0.4 ppm; cotton, gin byproducts at 30 ppm; grain, cereal, forage, fodder, and straw, group 16, except field corn, popcorn, and sweet corn at 0.1 ppm; and vegetable, foliage of legume, except soybean, subgroup 7A.

All the proposed tolerances for livestock commodities were revised based on calculation of the dietary burden.

Therefore, tolerances are established for residues of tetraniliprole, including its metabolites and degradates. Compliance with the tolerance levels is to be determined by measuring only tetraniliprole 1-(3-chloro-2-pyridinyl)-N-[4-cyano-2-methyl-6-[(methylamino)carbonyl]phenyl]-3-[[5-(trifluoromethyl)-2H-tetrazol-2-yl]methyl]-1H-pyrazole-5-carboxamide, in or on almond, hulls at 4 ppm; cattle, fat at 0.04 ppm; cattle, meat at 0.02 ppm; cattle, meat byproducts at 0.3 ppm; corn, field, forage at 4 ppm; corn, field, grain at 0.01 ppm; corn, field, stover at 15 ppm; corn, pop, grain at 0.01 ppm; corn, pop, stover at 15 ppm; corn, sweet, forage at 6 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 20 ppm; fruit, citrus, group 10-10, oil at 7 ppm; fruit, pome, group 11-10 at 0.5 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 1.5 ppm; fruit, stone, group 12-12 at 1 ppm; goat, fat at 0.04 ppm; goat, meat at 0.02 ppm; goat, meat byproducts at 0.3 ppm; grain, aspirated fractions at 50 ppm; grapefruit subgroup 10-10C at 0.9 ppm; horse, fat at 0.04 ppm; horse, meat at 0.02 ppm; horse, meat byproducts at 0.3 ppm; lemon/lime subgroup 10-10B at 1.5 ppm; milk at 0.05 ppm; nut, tree, group 14-12 at 0.03 ppm; orange subgroup 10-10A at 1 ppm; sheep, fat at 0.04 ppm; sheep, meat at 0.02 ppm; sheep, meat byproducts at 0.3 ppm; soybean, forage 0.07 ppm; soybean, hay at 0.2 ppm; soybean, hulls at 0.4 ppm; soybean, seed at 0.2 ppm; tomato, paste at 1.5 ppm; vegetable, brassica, head and stem, group 5-16 at 1.5 ppm; vegetable, fruiting, group 8-10 at 0.4 ppm; vegetable, leafy, group 4-16 at 20 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.015 ppm.

Additionally, tolerances are established for inadvertent residues of tetraniliprole, including its metabolites and degradates. Compliance with the tolerance levels is to be determined by measuring only tetraniliprole 1-(3-chloro-2-pyridinyl)-N-[4-cyano-2-methyl-6-[(methylamino)carbonyl]phenyl]-3-[[5-(trifluoromethyl)-2H-tetrazol-2-yl]methyl]-1H-pyrazole-5-carboxamide in or on alfalfa, forage at 0.015 ppm; alfalfa, hay at 0.06 ppm; cotton, gin byproducts at 30 ppm; cottonseed subgroup 20C at 0.4 ppm; grain, cereal, forage, fodder and straw, group 16, except field corn, popcorn, and sweet corn at 0.1 ppm; and vegetable, foliage of legume, except soybean, subgroup 7A at 0.03 ppm.

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

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

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

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

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

Therefore, 40 CFR chapter I is amended as follows:

HHS is informing the public that it is exercising its discretion in how it applies the Privacy, Security, and Breach Notification Rules under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)  1 and the Health Information Technology for Economic and Clinical Health (HITECH) Act  2 (“HIPAA Rules”) during the nationwide public health emergency declared by the Secretary of HHS. 3

The Office for Civil Rights (OCR) at HHS is responsible for enforcing certain regulations issued under HIPAA and the HITECH Act, to protect the privacy and security of protected health information (PHI), namely the HIPAA Privacy, Security, and Breach Notification Rules (“HIPAA Rules”).

During the COVID-19 national emergency, 4 which also constitutes a nationwide public health emergency, 5 certain covered health care providers, 6 including some large pharmacy chains and public health authorities, 7 or their business associates acting for or on behalf of such providers, may choose to use online or web-based scheduling applications (collectively, “WBSAs”) for the limited purpose of scheduling individual appointments for COVID-19 vaccination. For the purposes of this Notification, a WBSA is a non-public facing online or web-based application that provides scheduling of individual appointments for services in connection with large-scale COVID-19 vaccination. “Non-public facing” means that a WBSA, as a default, allows only the intended parties ( e.g., a covered health care provider, the individual or personal representative scheduling the appointment, and a WBSA workforce member, if needed to provide technical support) to access data created, received, maintained, or transmitted by the WBSA. For the purposes of this Notification, a WBSA does not include appointment scheduling technology that connects directly to electronic health records (EHR) systems used by covered entities.

The HIPAA Privacy Rule permits a business associate of a HIPAA covered entity to use and disclose PHI to conduct certain activities or functions on behalf of the covered entity, or provide certain services to or for the covered entity, but only pursuant to the explicit terms of a business associate contract or other written agreement or arrangement under 45 CFR 164.502(e)(2) (collectively, “business associate agreement” or BAA), or as required by law. During the COVID-19 public health emergency, covered health care providers need to quickly schedule large numbers of individuals for appointments for COVID-19 vaccination and may use WBSAs to do so. Some of these applications, and the manner in which HIPAA covered health care providers or their business associates use the applications, may not fully comply with the requirements of the HIPAA Rules. Additionally, the vendors of such applications may not be aware that HIPAA covered health care providers are using their products to create, receive, maintain, or transmit electronic protected health information (ePHI), and that a WBSA vendor may, as a result, meet the definition of business associate under the HIPAA Rules. 8

OCR will exercise its enforcement discretion and will not impose penalties for noncompliance with regulatory requirements under the HIPAA Rules against covered health care providers and their business associates, including WBSA vendors meeting the definition of a business associate, in connection with the good faith use of a WBSA for scheduling appointments for individuals for COVID-19 vaccination during the COVID-19 nationwide public health emergency, as described below.

This Notification applies to all HIPAA covered health care providers and their business associates  9 when such entities are, in good faith, using WBSAs to schedule individual appointments for COVID-19 vaccination.

This Notification also applies to all vendors of WBSAs whose technology is being used by a covered health care provider or its business associate to schedule individuals to receive a COVID-19 vaccine. OCR will exercise enforcement discretion with regard to WBSA vendors regardless of whether the WBSA vendor has actual or constructive knowledge that it meets the definition of a business associate under the HIPAA Rules as described in this Notification.

OCR encourages covered health care providers and their business associates using WBSAs in good faith for the scheduling of individual appointments for COVID-19 vaccination to implement reasonable safeguards to protect the privacy and security of individuals' PHI. OCR recommends that covered health care providers and their business associates consider the following recommended reasonable safeguards:

• Using and disclosing only the minimum PHI necessary for the purpose ( e.g., an individual's name and phone number may be the minimum necessary PHI for scheduling the appointment).

• Using encryption technology to protect PHI.

• Enabling all available privacy settings ( e.g., adjusting WSBA calendar display settings, as needed, to hide names or show only individuals' initials instead of full names on calendar screens).

• Ensuring that storage of any PHI (including metadata that constitutes PHI) by the vendor is only temporary ( e.g., the PHI is returned to the covered health care provider or destroyed as soon as practicable, but no later than 30 days after the appointment). 10

• Ensuring the WBSA vendor does not use or disclose ePHI in a manner that is inconsistent with the HIPAA Rules ( e.g., does not engage in the sale of ePHI  11 collected from individuals using the WBSA to schedule a COVID-19 vaccination).

Although covered health care providers and business associates are encouraged to implement these reasonable safeguards when using a WBSA to schedule individuals for appointments for COVID-19 vaccination, OCR will exercise its enforcement discretion and not impose penalties for noncompliance with the regulatory requirements under the HIPAA Rules against covered health care providers or their business associates in connection with the good faith provision of COVID-19 vaccination during the COVID-19 nationwide public health emergency. Failure to implement the recommended reasonable safeguards above will not, in itself, cause OCR to determine that a covered health care provider or its business associate failed to act in good faith for purposes of this Notification.

Covered health care providers and their business associates that seek additional privacy protections for ePHI collected while using WBSAs are encouraged to use application vendors that represent that their WBSAs support compliance with the HIPAA Rules and that the vendors will enter into BAAs in connection with the use of their WBSAs.

This Notification does not apply to activities of a covered health care provider and its business associates other than the scheduling of COVID-19 vaccinations. Other activities, such as the handling of PHI unrelated to the scheduling of COVID-19 vaccinations, are not included within the scope of this exercise of enforcement discretion. Potential HIPAA penalties still apply to all other HIPAA-covered operations of the covered health care provider and its business associates, unless otherwise stated by OCR. 12

Additionally, this Notification does not apply to a covered health care provider or business associate when it fails to act in good faith. For example, OCR will not consider a covered health care provider or business associate to be acting in good faith with respect to the use of a WBSA for the scheduling of individual appointments for COVID-19 vaccination where the covered health care provider or business associate uses a WBSA:

• Whose terms of service prohibit the use of the WBSA for scheduling health care services or state that the WBSA may sell personal information that it collects.

• To conduct services other than scheduling appointments for COVID-19 vaccination ( e.g., to determine individuals' eligibility for COVID-19 vaccination).

• Without reasonable security safeguards ( e.g., access controls) to prevent the PHI from being readily accessed or viewed by unauthorized persons.

• To screen individuals for COVID-19 prior to individuals' in-person health care visits.

This Notification of Enforcement Discretion creates no legal obligations and no legal rights. Because this notice imposes no information collection requirements, it need not be reviewed by the Office of Management and Budget under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

CNCS, which operates as AmeriCorps, is updating its National Service Criminal History Check (NSCHC) regulations. The agency first established its NSCHC regulation in 2007. In 2009, Congress codified NSCHC requirements in Section 189D of the National and Community Service Act of 1990 (NCSA), as amended by the Serve America Act. The agency issued regulations in 2009 and 2012 implementing the Serve America Act NSCHC provisions.

Grant recipient and subrecipient compliance with the NSCHC requirements has been an ongoing challenge. Successful implementation of the NSCHC process by grant recipients has been frustrated, in part, by variable access to state sources of criminal history record information, requirements of state law, and restrictions on sharing information. As such, Congressional hearings and the agency's Office of the Inspector General (OIG) reports have highlighted grantee noncompliance with this important statutory requirement.

Improving the agency's core functions—including eliminating barriers to compliance—is a primary goal of the agency's Transformation and Sustainability Plan. In pursuit of that goal, the agency approved vendors that grant recipients may use to obtain the required NSCHC components. Since November 2018, grant recipients and subrecipients have been able to establish accounts and obtain the required National Sex Offender Public website (NSOPW.gov), state, and FBI components of the NSCHC through the approved vendors. Additionally, to help ensure grantee compliance with NSCHC requirements, the agency made grant funds available so that grant recipients could recheck persons who needed to have an NSCHC conducted. And for those grant recipients who took the opportunity to ensure compliance by rechecking persons in covered positions, the agency announced that it would not, except in limited circumstances, take enforcement action for past noncompliance. As of July 2020, grant recipients have conducted over 233,000 check components through the agency-approved vendors.

Grant recipients must ensure that they identify individuals who need an NSCHC and ensure that it is done on time. The NSCHC must be conducted as a matter of law, and as a condition of receiving grant funds for individuals in covered positions working or serving under: operational grants provided by AmeriCorps State and National, Foster Grandparent Program Grants, Retired and Senior Volunteer Program Grants, Senior Companion Program Grants, AmeriCorps Seniors Demonstration Program Grants that receive funding from CNCS, Martin Luther King, Jr. Day of Service Grants, September 11th Day of Service Grants, Social Innovation Fund Grants, Volunteer Generation Fund Grants, AmeriCorps VISTA Program Grants, or AmeriCorps VISTA Support Grants. Section 189D of the NCSA and these regulations do not apply to AmeriCorps NCCC and or AmeriCorps VISTA members, who serve in Federally-operated programs that have separate criminal history check requirements. For the purpose of the NSCHC, individuals in covered positions are: The staff working under these grants, AmeriCorps State and National members, AmeriCorps Seniors volunteers in the Foster Grandparent and Senior Companion programs who receive a stipend.

The agency published a notice of proposed Federal rulemaking in the Federal Register on January 8, 2020, 85 FR 859. The final rule reflects the agency's consideration of the comments received and clarifies several requirements. In addition, the rule reflects technical corrections to the proposed language.

Agency-approved vendors provide grant recipients a path to obtaining the required NSCHC components. As stated in the Notice of Proposed Rulemaking, preliminary analysis of the agency's FY 2019 Improper Payments Elimination and Recovery Act (IPERA) test transactions demonstrated that use of the CNCS-approved NSCHC vendors by grantees resolved the NSCHC component of the improper payment transactions in 88% of the transactions for which the NSCHC component rendered the payment improper. The intent of the final rule is to emphasize the impact and availability of agency-approved vendors and to clarify and simplify the NSCHC requirements.

The final rule does not require grant recipients to establish accounts and conduct checks through the agency-approved vendors. However, the vendors remain a proven pathway for timely NSCHC compliance. Many commenters stated that they had access to affordable NSCHC component checks, other than those provided by the agency-approved vendors. The agency strongly encourages the use of the agency-approved vendors because use of the vendors allows grant recipients to reliably demonstrate compliance and eligibility. In addition, the final rule clarifies that individuals who turn 18 while working or serving in a covered position must get an NSCHC if they serve a consecutive term.

The final rule retains many of the other proposed changes. As proposed, the final rule establishes a single set of NSCHC check components, regardless of whether an individual has recurring access to vulnerable populations. The final rule also establishes that the NSCHC must be completed before an individual works or serves in a covered position. Further, it establishes a requirement that, by November 1, 2021, staff, members, or volunteers who remain on or after November 1, 2021 in a position for which an NSCHC is required under the final rule complete an NSCHC that complies with the final rule.

The agency published the proposed rule on January 8, 2020 (84 FR 859), in the Federal Register with a 60-day comment period and received over 280 comments. More than 75 percent of the commenters indicated they were current AmeriCorps State and National or AmeriCorps Seniors grant recipients subject to the rule.

Generally, the commenters opposed the proposed mandatory use of the agency-approved vendors to obtain the NSCHC component checks—the nationwide NSOPW check of all jurisdictions, including Tribes, states, and territories; state criminal history repository checks; and fingerprint-based FBI checks. While timely use of the vendor would ensure grant recipients' statutory compliance and, accordingly, reduce the agency's improper payment rate, commenters articulated how mandatory use of the vendors complicated their processes, and, in response to those comments, the agency has decided not to make agency-approved vendors the sole option for grant recipients and subrecipients to obtain NSCHC components.

Some commenters suggested that the agency decouple NSCHC from its Improper Payments Elimination and Recovery Act (IPERA) testing. The agency has never linked or targeted NSCHC compliance as a specific line of inquiry in its Improper Payments Elimination and Recovery Act (IPERA) testing. The guidance for executing IPERA is established by the Office of Management and Budget. Under that guidance and the IPERA statutes, payments to covered individuals who have incomplete or missing NSCHC checks when they received a payment that is included within an IPERA sample qualify as improper payments, as eligibility cannot be established at the time of payment (even if the individuals involved are later cleared in compliant checks). The frequency of NSCHC-based IPERA findings arises from the fact that a large portion of the agency's grant funds are used to make compensation and other payments to covered individuals. Nothing that the agency could write in its NSCHC regulations would alter the frequency that use of grant funds trigger NSCHC requirements, or that incomplete, incorrect or undocumented NSCHC checks will be considered improper payments under IPERA.

Commenters generally reflected an appreciation for the value of a criminal history background check as part of a comprehensive screening process. And many commenters articulated how they are subject to several background check requirements from various sources and have tailored their screening and vetting procedures to conform with those required by state law or best practices or site requirements. The commenters asserted that the agency's requirements are yet another burden and suggested that the agency remove the requirement or broaden exemptions. The agency's legislation is prescriptive and creates an obligation to ensure that grant recipients comply with the law. The agency wants to ensure that grant recipients meet the basic requirements of the rule and can easily document compliance with the requirements. Commenters expressed a desire for ease of administration and minimal duplication of process. However, the IPERA data reflects that many grant recipients could not demonstrate that they conducted the required components on time, and the agency does not find a sufficient basis to embrace the relaxed approach suggested by some commenters.

Commenters supported elimination of the requirement for staff to obtain criminal history checks under planning grants, non-profit capacity building grants, and on fixed-award grants, again, with some commenters expressing support for expansion of categories of exemptions. In addition, commenters expressed support for the elimination of the requirement to conduct criminal history checks of individuals under the age of 18 at the time they start service or employment. And, commenters also expressed support for extending the time period for which a grant recipient must re-check a person after a break in service or employment with the same organization from 120 days to 180 days.

The final rule has been modified in response to the comments provided. The comments and CNCS's responses are set forth below:

Comment: CNCS received positive comments on eliminating the requirement for grant recipients to conduct criminal history checks on employees of organizations with planning grants and staff on fixed-amount grants. Some commenters requested that exemptions from NSCHCs extend to additional CNCS grants such as the Volunteer Generation Fund, and the Martin Luther King and 9/11 Day of Service grants.

Response: The agency balanced the statutory requirements articulated in 42 U.S.C. 12645g to protect vulnerable populations being served by programs, the needs of the agency to efficiently monitor programs, and the administration of the requirements by grant recipients. Fixed-amount grant recipients receive a fixed amount per member service year and do not identify specific staff positions on a grant budget. Relying on information provided in the narrative text of fixed-amount grant applications to identify persons for whom the NSCHC was required, led, at times, to requiring checks for persons who would never be included if the program were funded under a cost reimbursement grant. It also led to uncertainty in determining whether a position was covered or not. Fixed-amount grants are intended to optimize efficiency in grantmaking. Fixed-amount grant recipients are provided a sum of money that is significantly less than what is needed to implement the program. The additional resources required to implement the program are the responsibility of the recipient. Fixed-amount grant recipients are not required to track spending or a specified percentage of matching funds, and federal agencies focus on grant recipient performance rather than grant recipient accounting. To require fixed-amount grantees to track funds in the same manner that cost reimbursement grant recipients do, for the purpose of determining whether or not a person is covered by the rule, would disrupt the statutory scheme of fixed-amount grants. In order to eliminate ambiguity and create a rule that can be easily applied with parity, the agency determined that the staff who implement fixed-amount grants should be exempt from the criminal history check requirement, under its authority to exempt individuals from the requirements for good cause under section 189D. While the agency encourages organizations to implement criminal history checks as part of a comprehensive screening procedure to reduce risk to vulnerable populations, which could include staff who implement fixed-amount grant activities, the agency finds that clarifying the applicability of the rule resolves the current ambiguous state.

The agency considered the comments regarding eliminating the applicability of the NSCHC to other grants, such as the Martin Luther King, Jr. and September 11th Day of Service grants and Volunteer Generation Fund grants. The agency declines to exempt these grants from the NSCHC requirements, as the grants issued are used to pay the salaries of persons reflected on a grant award who are implementing a day of service grant or otherwise covered grant program and the agency did not find a sufficient basis to exclude them from the statutory requirements.

Comment: The agency received positive comments about not requiring an NSCHC for individuals under the age of 18 at the start of their service. Some commenters expressed a desire for the agency to expand exemptions to participants and employees who may already receive criminal history checks because of their profession.

Response: The agency finds that good cause exists to exempt those under the age of 18 from the NSCHC requirements and establishes the person's start date as the operative date for determining the person's age. Congress specified that a check for those serving with vulnerable populations applied only for those who were 18 or older, but did not specify the age requirement for being subject to the NSCHC for persons who serve with nonvulnerable populations, leaving it subject to the regulations and requirements established by the agency. Because Congress provided language in the statute that stated additional NSCHC components were required only for those 18 or older, the agency finds the age specified in the legislation to be a reasonable basis to establish parity in the age at which a baseline NSCHC is required. The agency encourages grant recipients to ask all applicants about any disqualifying criminal history and conduct an NSOPW search, but in the interest of clarity and consistency in application of the final rule, finds that an NSCHC for those under 18 years of age is not required by the regulation.

The agency has considered exemptions for certain professions in the past, and understands that there may be a reasonable basis to exempt certain professions from the NSCHC requirement. However, due to the variability of states' standards for rendering clearance decisions, and in pursuit of clarity in application and ease of monitoring, the agency has decided against including profession-based exceptions in the final rule. For situations where grant recipients demonstrate that an administrative modification to the rule is necessary, the final rule includes a waiver provision. Rather than codifying exemptions, the agency may evaluate facts and circumstances, in a particular case or in a class of cases, that necessitate administrative modifications to the process through the waiver provision.

Comment: Some commenters expressed support for requiring programs to obtain criminal history check results through designated vendors because it simplified the process and provided a consistent, timely and reliable method. However, many commenters expressed objections to the requirement for mandatory use of designated vendors based on administrative burden, geographical and technical challenges, asserted inadequacy of the information provided, challenges with the service, added costs to programs and challenges in establishing accounts with vendors. For commenters who acknowledged the benefit of the vendor, some indicated that while use of agency-approved vendors may satisfy the statutory requirements, grant recipients also use the criminal history check results to make determination of suitability in addition to eligibility. Agency-approved vendor criminal history check results—which, in the case of the FBI check provides a “cleared” or “not cleared” recommendation based on whether or not the individual has been convicted of murder or an offense requiring registration as a sex offender, rather than providing a list of arrests and convictions—do not help a grant recipient determine suitability based on other criteria ( e.g., a program that involves driving wanting to know if a person had recent DUI convictions). As a result, grant recipients must conduct duplicate or supplemental criminal history checks at additional expense, which is an allowable cost under grants, in order to meet local requirements. Commenters also noted that no criminal history check vendor has complete coverage or access to all state criminal history record repositories, creating coverage gaps for locations excluded from vendor access. In these circumstances, the vendor check may not satisfy local clearance requirements. In other instances, commenters noted that, for them, getting results through a state repository may be more economical and convenient than working through agency-approved vendors. Commenters also articulated that using agency-approved vendors required a level of technological savviness or accessibility that some grantee organizations or some people working or serving under the grants might not have. Commenters also noted that in some areas, vendor fingerprint collection locations may be prohibitively inconvenient for persons who do not have transportation or who need a location that is accessible to those with disabilities. Several commenters suggested that having both agency-approved vendors and state repositories as options for obtaining NSCHC components was satisfactory.

Response: The agency strongly encourages use of the approved vendors, though use of the approved vendors is not the sole method through which a grant recipient or subrecipient may obtain NSCHC components. The grant recipient community dramatically improved NSCHC compliance through use of the vendors, as reflected in the agency's IPERA analysis. Use of the vendors allows for timely compliance monitoring, which reduces the risk of adverse enforcement action. However, after careful consideration of the comments and the expression by commenters that they are able to obtain NSCHC checks that more closely meet their specific needs using methods other than the agency-approved vendors, the agency decided not to include the requirement to use the agency-approved vendors in the final rule. The agency will continue to implement effective enforcement to ensure grant recipients demonstrate timely compliance with the requirements of the final rule.

Comment: The agency received comments on the requirement to conduct, review, and adjudicate a person's criminal history check results before the person may start service or work under a grant. Some commenters expressed that it was inconvenient to complete the background checking process before the start of service or employment because, at times, there may be delays or lack of responsiveness on the part of criminal history repositories, vendors, or because of other aspects of their onboarding process. Commenters stated they believe the new requirement would result in delayed startup and was unnecessary, as most programs conduct training and orientation in the first few days of service, which limits access to vulnerable populations. Further, some commenters stated that the agency's timing of grant awards makes compliance unduly burdensome, as they are unable to take steps to enroll members, including the NSCHC, under the grant until it is awarded.

Response: The agency considered the challenges posed by potential delayed return of criminal history results and determined that establishing a clear requirement would eliminate longstanding confusion about when the NSCHC needs to be performed, how accompaniment of individuals with pending checks should be documented, and whether an individual has been determined to be eligible prior to a grant recipient incurring costs. Further, determining by the day before a person begins work or service on the grant that they do not have a disqualifying conviction protects program beneficiaries and the community from potential harm. The desire to resolve any uncertainty related to NSCHCs outweighs the impact on programs that desire to start employees or participants before they are cleared. Some of the commenters also suggested that because the statute does not require the check to be completed prior to service, the agency should not specify a time by which NSCHCs should be completed. The agency declines to adopt the proposed change because the value of the NSCHC is in knowing in advance whether a person has been convicted of murder or a sex offense requiring registration. Some commenters stated that there is not an ineligibility problem in the agency's programs—meaning that the rate at which ineligible individuals are discovered through the NSCHC process is so low as to make the process unnecessary. Commenters implied that not having a significant number of ineligible individuals in covered positions should be a basis to have a rule flexible enough for individuals in covered positions to fulfill the NSCHC requirements on the last day of service or even after service ends. However, the agency views the fact that most persons who apply to serve through the agency's programs are eligible as a reason to continue to ensure that minimal screening takes place prior to service, to ensure that ineligible individuals do not serve. The agency encourages grant recipients who have onboarding challenges related to the timing of a grant being awarded to contact the agency. The agency will work with the grantee to ensure that timing of the grant award does not unreasonably prevent a grant recipient from taking timely action to comply with the rule.

Comment: Commenters objected to the requirement to check, within 180 days, any covered individuals not previously cleared through the designated vendors. Many commenters expressed this was burdensome and unnecessary. Some commenters asserted that to require individuals cleared under a prior rule was contrary to law, as the agency had limited authority to change a condition of the grant after it was awarded.

Response: After considering the comments, the agency decided to retain the requirement that within 180 days of the effective date of the rule, any individual who continues in a covered position must have an NSCHC that complies with the final rule, in order to establish clarity and consistency in the NSCHC requirements. That is, each person in a covered position who continues to work or serve on or after November 1, 2021 must have a check that complies with this regulation. They must be able to show that all three required components—the NSOPW, the state check(s), and the FBI check—were conducted and reviewed before November 1, 2021. While the November 1, 2021 date is slightly more than 180 days from the effective date, the agency believes that the additional three calendar days and first of the month start date will allow for easier administration. By providing this extended compliance window, it is expected that most individuals in covered positions who remain in work or service in a covered position who did not have a three-part check will be able to obtain the missing state(s) or FBI check, as applicable, by the deadline. This requirement is prospective in applicability, not retroactive. That is, no action is required by individuals who do not continue to work or serve in a covered position. The rule establishes the future condition for continued service and establishes a uniform set of requirements that must be met by a future date certain. A defined date supports clarity of applicability and uniformity in monitoring. For entities that participated in the exemption period and conducted all three component checks, additional action may not be required for most individuals.

Comment: Many commenters objected to the requirement to conduct three-part checks for all covered individuals, regardless of their access to vulnerable populations. A number of commenters asserted that the agency had exceeded its legal authority in imposing this requirement and that two-part checks were satisfactory for covered persons who do not have access to vulnerable populations. Other commenters said it was excessively burdensome for covered persons and grantees to obtain an extra level of clearance when it is not required by the statute, especially since it had to be completed prior to service starting.

Response: The agency declines to modify the rule to have a distinction between checks for those serving vulnerable populations and those without recurring access to vulnerable populations. The need to establish consistency across grant programs and to simplify the requirements, as well as concerns for the safety of vulnerable populations, outweighed concerns about grant recipient preference. Commenters asserted that the statutory language is plain and does not give the agency discretion regarding the NSCHC component checks for those not working with vulnerable populations; the statute, they argue, gives the choice of NSCHC components to the grant recipient. The agency does not take this view.

Section 189D(a) of the NCSA states that entities “shall, subject to the regulations and requirements established by the Corporation, conduct criminal history background checks” on specified individuals. (Emphasis added). Section 189D(b) states that the criminal history background check under section (a) “shall, except in cases approved for good cause by the Corporation, include” a name-based sex offender check, and state checks for the state of service and state of residence at time of application, or a fingerprint-based FBI check.

Section 189D(b) establishes the minimum requirements that the agency must consider in exercising its authority under 189D(a) and understands the “or” in 189D (b)(2) to be read as permitting the agency to establish an NSCHC that permits a state component, an FBI component, or both.

The agency's regulatory requirement aligns with the statute. A check of all three components meets the statutory requirement that the agency not require less than a sex offender check and either the state or FBI checks. The operative phrase in 189D(b) is “shall . . . include.” It is permissive and, read in the context of 189D(a), vests implementation to the discretion of the agency.

The scope of agency discretion would be different had the language said “shall consist of” or “shall be limited to” or “shall not exceed,” or other such discretion-limiting language. Section 189D(b) requires the agency to include the specified components, but does not require the agency to limit itself to those components.

Congress similarly specified the requirements for those serving vulnerable populations. At minimum, all three components must be present in the agency's requirements for those who work with vulnerable populations. The agency retains discretion—that is, what is required for the NSCHC is still “subject to the requirements and regulations established by the Corporation”—and could require additional components, although the agency has opted to establish a check that mirrors the statutory language for those who work or serve with vulnerable populations.

Comment: Several commenters felt that replacing the current Alternative Search Procedure process with a new waiver process lacked clarity. They expressed concern because there has been a widespread history of needing Alternative Search Procedures to resolve situations where programs lacked access, or timely access, to criminal history check results and they were unsure how the proposed waiver process was intended to work.

Response: The agency believes that with agency-approved vendors available, there should be less need for alternative procedures or to waive elements of the requirements for criminal history checks. However, the agency recognizes that circumstances change, and new factual situations may emerge, and expects to use the waiver process to address those situations. Those who would like a waiver may request it through the specified email address and the agency will provide a written response.

Comment: The agency noted that the proposed rule may have created confusion about the role of the budget in determining applicability of the NSCHC in section 201(a)(4). That section specified that an individual had to be paid a salary and on the budget.

Response: The statutory requirement to conduct an NSCHC applies to persons who serve under a grant award—whether they are paid directly from federal funds or if their time and effort are reflected on the grant as match under a cost reimbursement award. The budget document, historically, has been a strong indicator of persons who would be subject to the rule, but the budget document at the time of application, alone, does not determine who is in a position that requires an NSCHC. Persons whose activities are attributed to funding on a CNCS grant or subgrant are always covered.

Comment: Several commenters expressed a desire for more frequent and impactful training for grant recipients to help them be more compliant. Many commenters provided suggestions for ways to improve training and training materials.

Response: The agency welcomes the suggestions for improving training and will consider them when it develops training programs or supporting materials.

Comment: The agency received several comments regarding its approach to enforcement. Commenters expressed disapproval of an enforcement scheme that required grant recipients to return grant funds to the agency when the grant recipients did not comply with the regulatory requirements.

Response: The agency did not propose making its enforcement guidance part of this rulemaking, as enforcement for noncompliance with grants is addressed under 2 CFR 200.338. With the agency-approved vendors, all grant recipients have an established pathway to compliance and the costs of the NSCHC and any other checks required for persons in covered positions remain allowable under grants. With the added clarity provided by the final rule, the expectation remains that grant recipients will obtain the required checks in a complete and timely manner. Accordingly, the agency appreciates the feedback regarding its approach to enforcement, and declines to respond to specific comments, as they are beyond the scope of the rulemaking.

The final rule is effective on May 1, 2021.

This rule is not an “economically significant” rule within the meaning of E.O. 12866 because it is not likely to result in: (1) An annual effect on the economy of $100 million or more, or an adverse and material effect on a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal government or communities; (2) the creation of a serious inconsistency or interference with an action taken or planned by another agency; (3) a material alteration in the budgetary impacts of entitlement, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) the raising of novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 605 (b)), the agency certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This regulatory action will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, Federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, the agency has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) for major rules that are expected to have such results.

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in either Federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

The rule specifies that specific pieces of information must be obtained and maintained in order to demonstrate compliance with the regulatory procedures.

This requirement constitutes one set of information under the Paperwork Reduction Act (PRA), 44 U.S.C. 507 et seq. OMB, in accordance with the Paperwork Reduction Act, has previously approved information collections for the NSCHC requirement. The OMB Control Number is 3045-0145.

Under the PRA, an agency may not conduct or sponsor a collection of information unless the collections of information display valid control numbers. This rule's collections of information are contained in 45 CFR 2540.204 and .206.

This information is necessary to ensure that only eligible individuals serve in covered positions under agency grants.

The likely respondents to these collections of information are persons interested in, or seeking to serve in, covered positions, and grant recipients.

Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has Federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rule does not have any Federalism implications, as described above.

For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapter XXV, title 45 of the Code of Federal Regulations, as follows:

This is a summary of the Commission's Order, FCC 20-172, MD Docket No. 20-64, adopted on December 7, 2020 and released on December 10, 2020, which is the subject of this rulemaking. The full text of this document is available for public inspection and copying by downloading the text from the Commission's website at https://www.fcc.gov/document/closure-lockbox-used-collect-fee-payments-media-bureau.

1. Section 603 of the Regulatory Flexibility Act, as amended, requires a regulatory flexibility analysis in notice and comment rulemaking proceedings. See 5 U.S.C. 603(a). As we are adopting these rules without notice and comment, no regulatory flexibility analysis is required.

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

3. The Commission will not send a copy of the Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties. See 5 U.S.C. 804(3)(C).

4. In the Order, we reduce expenditures by the Commission and modernize procedures by amending § 1.1104 of our rules, 47 CFR 1.1104, which sets forth the application fees for services administered by the FCC's Media Bureau (MB). The rule amendment reflects the closure of the lockbox (P.O. Box)  1 used for such manual payment of filing fees for nine types of IB services: (1) Commercial TV Services; (2) Commercial AM Radio Stations; (3) Commercial FM Radio Stations; (4) FM Translators; (5) TV Translators and LPTV Stations; (6) FM Booster Stations; (7) TV Booster Stations; (8) Class A TV Services; and (9) Cable Television Services. We discontinue the option of manual fee payments and instead require the use of an electronic payment for each service listed above.

5. Section 1.1104 of the Commission's rules, 47 CFR 1.1104, provides a schedule of application fees for proceedings handled by MB. The rule had also directed filers that do not utilize the Commission's on-line filing and fee payment systems to send manual payments to P.O. Box 979089 at U.S. Bank in St. Louis, Missouri. In recent years, there have been a decreasing number of lockbox filers, and it now is rare that the Commission receives a lockbox payment.

6. The Commission has begun to reduce its reliance on P.O. Boxes for the collection of fees, instead encouraging the use of electronic payment systems for all application and regulatory fees and closing certain lockboxes. We find that electronic payment of fees for the services processed by MB reduces the agency's expenditures (including eliminating the annual fee for the bank's services) and the cost of manually processing each transaction, with little or no inconvenience to the Commission's regulatees, applicants, and the public.

7. As part of this effort, we are now closing P.O. Box 979089 and modifying the relevant rule provision that requires payment of fees via the closed P.O. Box. The rules changes are contained in the Appendix of the Order and the Final Rules of this document. We make these changes without notice and comment because they are rules of agency organization, procedure, or practice exempt from the general notice-and-comment requirements of the Administrative Procedure Act, see 5 U.S.C. 553(b)(A).

8. Implementation. As a temporary transition measure, for 90 days after publication of this document in the Federal Register , U.S. Bank will continue to process payments to P.O. Box 979089. After that date, payments for these MB services must be made in accordance with the procedures set forth on the Commission's website, https://www.fcc.gov/licensing-databases/fees/application-processing-fees (Media Bureau Fee Filing Guide). For now, such payments will be made through the Fee Filer Online System (Fee Filer), accessible at https://www.fcc.gov/licensing-databases/fees/fee-filer. As we assess and implement U.S. Treasury initiatives toward an all-electronic payment system, we may transition to other secure payment systems with appropriate public notice and guidance.

9. Accordingly, it is ordered , that pursuant to sections 4(i), 4(j), 158, 208, and 224 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 158, 208, and 224, the Order is hereby adopted and the rules set forth in the Appendix of the Order are hereby amended effective March 26, 2021.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 1 as follows:

This is a summary of the Commission's 5G Fund Adjustment Values Public Notice in GN Docket No. 20-32, DA 20-1361, released on November 16, 2020. The full text of this document is available on the Commission's website at https://www.fcc.gov/document/oea-and-wcb-adopt-adjustment-factor-values-5g-fund. To request materials in accessible formats for people with disabilities, send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

1. The Office of Economics and Analytics (Office) and the Wireline Competition Bureau (Bureau) adopt 5G Fund adjustment factor values to help direct more 5G Fund support to harder to serve areas. Specifically, the values we adopt will increase support levels for bids to serve areas where the terrain elevation variation raises the expected costs of deploying 5G networks, and/or where the business case for 5G otherwise is likely to be weaker, relative to the support for bids for easier to serve areas. Likewise, the adjustment factor values will also be used in the process of disaggregating legacy high-cost support to account for differences between recipients' subsidized service areas. These adjustment factor values will help ensure that additional 5G Fund support goes to the areas that need it the most.

2. In the 5G Fund NPRM and Order, 85 FR 31636, May 26, 2020, 85 FR 34525, Jun. 5, 2020, the Federal Communications Commission (Commission) proposed to distribute up to $9 billion in two phases using multi-round, descending clock auctions to assign support for the deployment of 5G service in rural areas. To account for differences in the cost of providing service and business case considerations across eligible areas, the Commission proposed incorporating an adjustment factor into the 5G Fund auctions that would assign a weight to each geographic area, which would be applied to bidding for support amounts to make the areas most difficult to serve more attractive to bidders and increase the support to such areas. In addition to incorporating an adjustment factor into the 5G Fund auctions, the Commission proposed to apply this adjustment factor to the methodology for disaggregating legacy high-cost support in the transition to 5G Fund support.

3. Legacy high-cost support is currently provided to a competitive eligible telecommunications carrier's entire study area, with no attribution to particular sub-areas within that study area. To illustrate the role of the adjustment factor in the disaggregation of legacy support, consider a hypothetical carrier serving one mountainous census tract and one flat census tract of equal size in its subsidized service area. Such a carrier might require 75% of its support to serve the mountainous tract and 25% to serve the flat tract. Were an unsubsidized carrier to enter the flat tract, which may be more likely given the relatively lower costs in the flat tract, if we did not apply the adjustment factor in calculating disaggregated support, the carrier would lose 50% of its funding and would be unable to continue serving the mountainous tract. However, applying an adjustment factor of three to the mountainous area would result in the carrier retaining 75% of its original support amount and allow it to continue serving the mountainous tract.

4. On June 5, 2020, the Office and Bureau released the Adjustment Factor Public Notice, 85 FR 36522, Jun. 17, 2020, which sought comment on the proposed adjustment factor values, the three analyses that inform the values, and the application of the adjustment factor to the disaggregation of legacy support.

5. In the 5G Fund Report and Order, 85 FR 75770, Nov. 25, 2020, the Commission adopted its proposal to incorporate an adjustment factor into the 5G Fund auctions that will assign a weight to each geographic area and apply that adjustment factor to bidding for support amounts; this adjustment factor also will be applied to the methodology for disaggregating legacy high-cost support. For a 5G Fund auction, the Commission deferred the final determination of the precise manner in which the adjustment factor will be incorporated into the auction mechanism to the pre-auction process. We provide herein the adjustment factor values, and we discuss the studies underlying our decision to adopt these values for use in a 5G Fund auction and in the methodology for the disaggregation of legacy high-cost support.

6. Adjustment Factor Values. In the 5G Fund Adjustment Factor Public Notice, we proposed values for an adjustment factor that operates along two dimensions: Terrain elevation variation and demand, using median household income as a proxy. These two dimensions were included to account for differences in network deployment costs and business case considerations that stem from the geographic and economic variations in the United States. We proposed that areas be sorted into terrain elevation variation and demand factor groups according to their characteristics. The terrain elevation variation dimension is intended to address, in part, network cost differences across areas, while the demand factor is intended to address differences in expected revenues across areas. Under the approach proposed in the 5G Fund Adjustment Factor Public Notice, an area's terrain classification is determined by its average standard deviation of elevation. Areas are separated into one of three categories: (1) Flat (standard deviation of 40 meters or less); (2) hilly (standard deviation between 40 and 115 meters); and (3) mountainous (standard deviation greater than 115 meters). Similarly, areas' demand classification is determined by the areas' median household income. We note that the category thresholds for the medium- and high-income categories represent 2017 median household incomes that are 150% and 200% of the poverty line for a family of three, respectively. Consistent with the adjustment factor values we adopt herein, we will use the latest available data on terrain and median household income appropriate for such purposes to classify areas into the adjustment factor categories concurrent with the Commission's release of the map of final areas eligible for 5G Fund Phase I support.

7. We adopt the adjustment factor values in Fig. 1, as proposed in the 5G Fund Adjustment Factor Public Notice. We find that these adjustment factor values, informed by the three economic analyses laid out in the 5G Fund Adjustment Factor Public Notice, appropriately reflect the relative cost of serving areas with differing terrain characteristics, as well as the potential business case for each area, with less profitable areas receiving greater weight and therefore more support. Using these values to help distribute 5G Fund support to, and disaggregate legacy support in, a range of areas across the country that are geographically and economically diverse serves the public interest.

8. Use of An Adjustment Factor in Bidding. Commenters generally support the use of an adjustment factor to increase support in higher-cost, less-profitable areas, and no commenter suggests alternative adjustment factor values to those proposed in the 5G Fund Adjustment Factor Public Notice. Although no commenter objects to the use of terrain elevation variation and median household income in the determination of the adjustment factor, several commenters suggest that the adjustment factor should consider other variables, such as differences in the cost of labor and transportation to both deploy and operate 5G service, differences in the cost of utility and other operating costs, and the existing infrastructure in an area.

9. We are not persuaded by these arguments and decline to increase the number of components or categories that make up the adjustment factor. We acknowledge that terrain elevation variation and median household income do not exhaust the list of potentially relevant variables. Likewise, we acknowledge that when we separate areas into categories, the areas near the midpoint of the category will have their relative costs and business cases more accurately represented by the adjustment factor values than areas at the margins. Nevertheless, as noted in the 5G Fund Report and Order, the adjustment factor adopted by the Commission is not intended to fully offset the differences inherent in providing service to different types of areas. Rather, it is intended to “make the most difficult areas to serve more attractive at auction in order to encourage more bidding for these areas.” Moreover, we selected terrain elevation variation and median household income as the two dimensions for the adjustment factor characteristics because they are important factors in characterizing deployment costs and business case considerations, respectively, and because there is more readily available and verifiable data with which to apply these two factors. As we discussed in the 5G Fund Adjustment Factor Public Notice, terrain elevation variation captures differences in network costs because “wireless network engineering principles indicate that greater variability of terrain in a given geographic area reduces the signal strength received by a mobile user, which requires wireless carriers to build more sites to provide the same quality of service.” As a result, areas with higher terrain elevation variation generally have higher capital expenditures, operating expenditures, and leasing costs. Similarly, we also discussed in the 5G Fund Adjustment Factor Public Notice the importance of demand factors and the role that expected revenues play in carriers deployment decisions. The Entry Model Adjustment Factor study found that, all else equal, areas with higher median household incomes are more likely to be covered, a finding consistent with the basic assumption that higher income areas are more profitable.

10. Economic Analyses. To inform the proposed adjustment factor values, the Office and Bureau included three economic analyses. The first analysis (the Entry Model) used coverage data to estimate the effect that an area's physical and demographic characteristics have on carriers' network deployment decisions. The second analysis (the Cell Site Density Model) examined how cell site spacing changes as terrain roughness increases. The third analysis (the Auction Bidding Model) used Mobility Fund Phase I (Auction 901) bidding data to estimate how terrain roughness and other factors affected carriers' bids.

11. Discussion of the economic analyses in the record is limited, and no party submitted an alternative economic analysis. Some commenters argue that the Auction Bidding Model should not be used to determine the adjustment factor values because (1) bidding data from the Mobility Fund Phase I auction is distorted, (2) the Mobility Fund Phase I auction is not an appropriate analogue because it provided one-time funding for capital expenditures versus long-term support for capital expenditures and operational expenses, (3) bidding decisions were based on 2012 pricing that is not comparable to today's pricing, and (4) at the time of the Mobility Fund Phase I auction, carriers could still use network equipment from low-cost equipment suppliers that have since been designated by the Commission as national security threats.

12. We acknowledge the contextual differences between the Mobility Fund Phase I auction and the upcoming 5G Fund auctions, but do not find that such differences unduly undermine the analysis. While the timing and one-time funding nature of the Mobility Fund Phase I auction and the presence of Huawei and ZTE as low-cost equipment options for Mobility Fund Phase I support recipients may have influenced the absolute bid amounts, the commenters fail to explain why the relative bid amounts would differ significantly compared with a more recent long-term funding auction where bidders could not use Huawei and ZTE equipment. The absolute level of the bids does not necessarily affect the relative differences across areas. For example, if all bids were 20% lower in absolute level due to factors related to the auction's context, the ratio of bids across areas would be unaffected. We find it more likely that the calculated adjustment factor should be largely invariant to differences in funding type and radio equipment costs. There are two cases to consider. In the case where the costs to build and operate towers are the same across terrain types and more towers are needed to cover rougher terrain, the cost of radio equipment would have no effect on the calculated adjustment factors. In the case where towers cost more to build and operate in rougher terrain, the absolute cost of radio equipment could affect the adjustment factor. However, given that radio equipment costs are a very low percentage of the overall costs to build and operate a network, the change in the calculated adjustment factor would be negligible.

13. Similarly, arguments that the Mobility Fund Phase I auction is not an appropriate point of comparison because it did not provide funding for both capital and operational expenditures likewise do not undermine our analysis here because the adjustment factor values we adopt are meant to capture the relative differences in cost and business case for different areas. That is, reliance upon bid amounts in an auction that did not award operational expenses should not affect the relative differences in costs because bidders in the 5G Fund auctions will be able to consider the entirety of costs (including both capital and operational expenditures). Thus, any additional operational expenses will be reflected in higher bidding values in the auction but the relative differences between areas is likely to remain the same. Moreover, our conclusions about the appropriateness of using Mobility Fund Phase I auction data are also consistent with all three models producing comparable adjustment factor estimates. We find that the information regarding the relative bidding incentives across areas produced by the Auction Bidding Model outweighs any concerns with the absolute levels of the bidding data.

14. Use of an Adjustment Factor for Disaggregation of Legacy High-Cost Support. In the 5G Fund Adjustment Factor Public Notice, the Office and Bureau sought comment on the appropriate adjustment factor values for the disaggregation of legacy high-cost support to account for differences in costs across areas and the underlying methodologies that could be used to develop the values. In cases where the transition of legacy support occurs across areas of different types, such as eligible areas and ineligible areas, the adjustment factor would be used to scale the actual square kilometers associated with each disaggregated area. In the 5G Fund Report and Order, the Commission concluded that the adjustment factor values that are adopted by the Office and Bureau for a 5G Fund auction also would be used for the disaggregation of legacy high-cost support. Accordingly, we adopt the adjustment factor values proposed in the 5G Fund Adjustment Factor Public Notice, as set forth in Fig. 1 herein, for use in the process of disaggregating legacy support.

15. We note that some commenters oppose using the adjustment factor in the disaggregation process. They generally argue that, because the adjustment factor does not capture all of the characteristics of the particular service areas for which legacy support is provided ( e.g., foliage) and the terrain categories are too broad, thereby disadvantaging the areas near the margins, it is not appropriate to apply the factor when disaggregating legacy support. They propose instead that the Commission rely on service providers' knowledge of their subsidized areas to estimate the costs of deploying in those areas.

16. In the 5G Fund Report and Order, the Commission rejected the argument that the adjustment factor should not be applied to the disaggregation of legacy support, finding that “[u]sing an adjustment factor is appropriate because it will alleviate potential concerns over a carrier losing a disproportionate amount of its legacy support resulting from a disaggregation methodology in which more costly areas would be treated the same as less costly areas with respect to subsidies received.” As the Commission indicated, this approach will help ensure that legacy high-cost support is available for harder-to-serve areas.

17. We also note that there are other reasons to apply the adjustment factor to the disaggregation of legacy high-cost support. Using an adjustment factor to disaggregate legacy support is preferable to the administrative burdens that would arise from requiring service providers to disaggregate their costs, and furthermore, it avoids the potential incentive issues associated with service providers self-reporting their own costs. For example, where part of a legacy support recipient's service area would be served by a 5G Fund winner while its remaining area would continue to receive legacy support, the legacy support recipient would have the incentive to overestimate the amount of high-cost support flowing to the area that would continue to receive legacy support, thus maximizing the funds it would receive through preservation of service support. In addition, while we acknowledge that the adjustment factor does not account for all factors that affect network costs, the Commission indicated that the adjustment factor is meant to give an estimate of how a carrier may allocate legacy high-cost support within the area for which it receives such support. It is not meant to reflect the actual cost of deployment in that area. We maintain that applying an adjustment factor in the disaggregation process will lead to a more equitable distribution of legacy funding. Applying the adjustment factor will better reflect the distribution of high-cost support by accounting for cost differences arising from terrain elevation variation and business case differences arising from income disparities within a service area. Thus, we will use the adjustment factor values in Fig. 1 for the disaggregation of legacy high-cost support.

This is a synopsis of the Commission's Report and Order, MB Docket No. 20-155, adopted December 21, 2020, and released December 23, 2020. The full text of this Commission decision is available online at http://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

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

NMFS and the Gulf Council manage reef fish resources in the Gulf exclusive economic zone (EEZ) under the Reef Fish FMP. NMFS, and both the Gulf Council and South Atlantic Fishery Management Council (Councils) manage the CMP fishery under the CMP FMP. The Gulf Council prepared the Reef Fish FMP and the Councils jointly prepared the CMP FMP. NMFS implements the FMPs through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801, et seq. ).

On July 28, 2020, NMFS published a proposed rule for the framework action and requested public comment (85 FR 45363). The proposed rule and the framework action outline the rationale for the actions contained in this final rule. A summary of the management measures described in the framework action and implemented by this final rule is described below.

In Gulf Federal waters, each person aboard a vessel with a Federal Gulf charter vessel/headboat permit for reef fish or CMP species (for-hire permit) that is on a for-hire trip greater than 24 hours in duration is allowed to possess two daily recreational bag limits for species in the Reef Fish FMP and CMP FMP, except for speckled hind, warsaw grouper, and Gulf migratory group cobia (50 CFR 622.38(c) and 50 CFR 622.382(a)(2)). Speckled hind and warsaw grouper have daily recreational bag limits of one fish per vessel per day; therefore, the possession limit is two vessel limits, or two fish per vessel on a trip that exceeds 24 hours (50 CFR 622.38(c)). Gulf migratory group cobia is a limited harvest species under 50 CFR 622.383(b), which specifies that no person may possess more than two cobia per person per day regardless of the duration of a trip, and this final rule does not revise that provision. A trip begins with departure from a dock, berth, beach, seawall, or ramp and terminates with return to a dock, berth, beach, seawall, or ramp (50 CFR 622.2).

Currently, for the reef fish or CMP possession limit to apply, the for-hire vessel must have two licensed captains on board, and every passenger must have a receipt for the fishing trip which verifies the length of the trip (50 CFR 622.38(c) and 50 CFR 622.382(a)(2)). In addition, the possession limit does not apply until after the first 24 hours of the trip (50 CFR 622.11). Therefore, during the first 24 hours of a trip, each person (or vessel in the case of speckled hind and warsaw grouper) may only possess one daily recreational bag limit. The allowance for the possession of two daily bag or vessel limits for reef fish and CMP species does not begin until the second 24-hour period on a multi-day trip begins.

The Gulf Council heard public testimony at its June 2019 meeting that some for-hire vessel captains may have misinterpreted the current regulations as allowing the possession of two daily recreational bag limits at any time during a trip that lasts more than 24 hours. Additional testimony showed that allowing recreational for-hire fishers the ability to retain the possession limit at any time during a multi-day trip could increase the efficiency of the trip and reduce regulatory discards. For example, some vessel operators would prefer to target one species at a time in locations in which that species is abundant, fishing until the possession limit for the planned multi-day trip has been retained. After fishers harvest the possession limit, the vessel's operator would attempt to avoid that species for the remainder of the multi-day trip. However, because the current possession limit does not apply until after the first 24 hours of the trip, vessel operators cannot plan a trip in this manner, but must resume fishing for the target species after the first 24-hours if they want to allow fishers to obtain the second daily bag limit.

This final rule modifies the requirements to retain the possession limit on-board vessels that have been issued valid Gulf reef fish or CMP for-hire permits. This final rule increases the trip duration threshold to greater than 30 hours, but allows fishers to retain a second daily bag limit at any time during a trip of at least that duration. The Council determined that since fishers would be allowed to possess the second daily bag limit at any time during the trip, the trip duration should clearly exceed 24 hours. All other requirements to retain the recreational possession limit are unchanged through this final rule. The for-hire vessel must have two licensed operators aboard, and each passenger must have in their possession a receipt issued to them on behalf of the vessel that verifies the length of the trip. This final rule requires that the receipt specify the date and time of departure, and clarifies that the entire trip must occur on days when the harvest and possession of the applicable reef fish species are allowed.

In addition to the measure described in the framework action, this final rule revises language related to reporting under the Gulf Council's individual fishing quota (IFQ) programs during catastrophic conditions. The Gulf currently has two IFQ programs, one for commercial harvest of red snapper and one for commercial harvest of groupers and tilefishes. These programs require participants to record information electronically. However, both programs include a provision that allows for the use of some paper-based forms if catastrophic conditions occur (50 CFR 622.21(a)(3)(iii) and 622.22(a)(3)(iii)). This provision states that if the Regional Administrator (RA) determines that catastrophic conditions exist, NMFS will provide each IFQ dealer in the affected areas the necessary paper forms, sequentially coded, and instructions for submission of the forms to the RA.

NMFS initially required the use of sequentially numbered paper forms as a method intended to prevent fraud. Although NMFS has provided dealers with these forms, to date, these forms have not been used after the RA has determined catastrophic conditions exist, and NMFS has determined that maintaining them in this manner is not practical or cost effective. Therefore, NMFS is removing the references to sequentially coded paper forms in both 50 CFR 622.21(a)(3)(iii) and 622.22(a)(3)(iii). If an IFQ dealer requests paper forms for use during catastrophic conditions, NMFS will provide unnumbered forms.

NMFS received 14 comments on the proposed rule. The majority of comments (eight) were in favor of the framework action and the proposed rule. Some comments in support of the proposed rule stated that the changes to the possession limit requirements will help resolve any confusion about when during the trip the possession limit may be retained, will allow for better operating efficiency for for-hire vessels, and will not negatively impact fish populations. NMFS agrees with these comments. Additionally, NMFS received one comment regarding the change to IFQ reporting requirements during catastrophic conditions that was in favor of that change.

Comments that were outside the scope of the framework action and the proposed rule and are not addressed in this final rule. Comments in opposition to the proposed rule are summarized below, followed by NMFS' respective responses.

Comment 1: Allowing fishers on for-hire vessels to retain the possession limit before the first 24 hours of the trip are complete will make it easier for vessel operators to circumvent the regulations, and more difficult to enforce the regulations. This change will also place an extra burden on law enforcement officers by requiring them to determine the actual versus the reported details of a for-hire trip.

Response: NMFS disagrees that the changes to the possession limit requirements implemented in this final rule will make the regulations more difficult to enforce or place extra burdens on law enforcement officers. Like the current regulations, the revised regulations will allow passengers on for-hire vessels to retain two daily bag limits on trips greater than a specified duration. The revised regulations will increase the duration of trip from greater than 24 hours to greater than 30 hours, and allow retention of the second daily bag limit at any time during that trip instead of requiring that passengers wait until the first 24 hours of the trip has passed. All of the other current requirements, which are in place to help enforce the provision, remain the same. These include that two licensed operators must be aboard, and that each passenger must have in their possession a receipt issued to them on behalf of the vessel that verifies the date and time of departure and length of the trip. Therefore, NMFS does not expect any significant changes in the responsibilities of law enforcement as result of the implementation of this final rule. Law enforcement will continue to operate in the same manner as before this final rule, using intercepts and reviews of the captain and vessel information, vessel harvest, and trip duration validation.

Comment 2: The changes to the possession limit regulations rely heavily on the full implementation of the Gulf of Mexico Electronic For-Hire Reporting final rule, which includes a requirement that Gulf reef fish and CMP for-hire vessels use vessel monitoring systems (VMS). NMFS has not fully implemented that final rule and this change to the possession limit regulations is a way for the Gulf Council and NMFS to increase acceptance of VMS.

Response: The changes to the possession limit regulations implemented through this final rule were developed independently from the Gulf of Mexico For-Hire Electronic Reporting final rule, and the Gulf Council's decision to make changes to the for-hire vessel possession limit was not contingent on the implementation of the VMS requirement.

Comment 3: Some trips that are planned for greater than 30 hours may need to end early because of weather, medical, or mechanical issues, which may create a problem if two daily bag limits have already been taken.

Response: NMFS understands that situations may occur where a trip that is expected to exceed 30 hours needs to end prematurely. If that occurs, fishers might already be in possession of two daily bag limits even though the vessel has not been on the trip for more than 30 hours, which would result in a violation of the regulations if the vessel must return to the dock before 30 hours elapses. However, NMFS does not expect this type of situation to occur routinely, and NMFS agrees with the public comments and discussion at Gulf Council meetings, which indicated that vessel captains have options to address this concern, such as demonstrating proper foresight prior to getting underway and anchoring offshore rather than pulling into the dock. Further, consistent with the NOAA Office of General Counsel Policy for the Assessment of Civil Administrative Penalties and Permit Sanctions, enforcement officers must assess each situation and, depending on the nature and seriousness of the violation, respond accordingly. This policy is available at the website https://www.gc.noaa.gov/documents/Penalty-Policy-CLEAN-June242019.pdf.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the Reef Fish and CMP FMPs, other provisions of the Magnuson-Stevens Act, and other applicable law.

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

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

The Magnuson-Stevens Act provides the statutory basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purposes of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this preamble. The objectives of this final rule are to promote efficiency in the utilization of the reef fish and CMP resources, decrease regulatory discards, and establish reporting requirements in the IFQ programs that would be more practical and cost effective for NMFS during catastrophic conditions.

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

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