The Department of Agriculture (USDA) is issuing this rule in conformance with Executive Orders 13563 and 13175. In accordance with Executive Order 13175, AMS has not identified any tribal implications as a result of this rule. This rule falls within a category of regulatory actions that the Office of Management and Budget exempted from Executive Order 12866 review.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform.

Borrowing authority was originally added to the Order as a result of an amendatory rulemaking in a 2016 final rule (81 FR 44761, July 11, 2016) with unanimous support of RAC members and overwhelming support from industry members. This support is indicated by the results of the producer referendum (81 FR 11678) conducted March 9-16, 2016, with 93 percent of voters in support of this provision.

In 2018, a final rule amending the Order was published in the Federal Register (83 FR 53965). The 2018 amendments established and revised several provisions of the Order; however, AMS inadvertently omitted a provision in 7 CFR 989.80(c) that authorizes RAC to borrow money from financial institutions. AMS identified the missing provision during a routine file review of the Order and through this action will reinstate the omitted provision.

During the referendum on the 2018 amendments conducted by AMS December 4-15, 2017 (82 FR45517), voters did not notice the borrowing authority provision was missing from § 989.80(c). AMS reviewed administrative records from 2016-2018 and reaffirmed that no comments from industry or RAC members addressed the missing provision or expressed the desire to remove borrowing authority from the Order. As well, AMS confirmed that removal of borrowing authority was not discussed at the hearing for the 2018 rulemaking and did not appear as a question on the referendum ballot. RAC confirmed to AMS that having borrowing authority in the Order is in the best interest of the raisin industry and asked for this error to be rectified as soon as possible.

Accordingly, this action restores the borrowing authority provision, which provides the RAC operational flexibility to continue conducting business affairs in the event of interrupted cash flow due to circumstances affecting the collection of assessments.

This correction does not require action by any person or entity regulated by the Order.

Currently, as a result of the inadvertent omission, the Order does not authorize RAC to borrow from a commercial lending institution. This final rule reinserts the following language into § 989.80(c): “In the event cash flow needs of the committee are above cash available generated by handler assessments, the committee may borrow from a commercial lending institution.” This action restores RAC borrowing authority to the Order.

This final rule reflects an amendatory change to the Order following an unintentional error. This final rule restores language that was added in a 2016 rulemaking and that was inadvertently omitted in a subsequent rulemaking. AMS believes that this action is not controversial and will not generate adverse comments. However, if AMS does receive significant adverse comments during the comment period, it will publish, in a timely manner, a document in the Federal Register withdrawing this direct final rule.

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

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

Presently, there are approximately 22 handlers of raisins subject to regulation under the Order and approximately 2,000 raisin producers in the regulated area.

Small agricultural service firms are defined by the Small Business Administration (SBA) 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 (13 CFR 121.201).

AMS multiplied RAC estimated shipments of 327,323 tons for the 2020 season by the average handler price of $2,000 per ton to derive total estimated annual handler receipts of $474,646,000. Dividing the total estimated handler receipts by the number of handlers (22) results in estimated average handler receipts of $21,574,818.

According to RAC estimates for the most recent year, the average raisin grower price was $1,300 per ton. Multiplying the average grower price by total 2020 production of 211,115 tons results in $274,449,500 estimated returns to growers. Dividing estimated grower returns by the total number of growers (2,000) provides an estimated return per grower of $137,225 for the 2020 season. Thus, the majority of raisin handlers and growers may be classified as small entities according to SBA definitions.

There are no known negative impacts or additional costs incurred by small handlers because of this action.

This rule contains no information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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 not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

For the reasons set forth in the preamble, 7 CFR part 989 is amended as follows:

Rural Development is a mission area within USDA comprising the Rural Utilities Service, Rural Housing Service, and Rural Business-Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants and technical assistance through more than 40 programs aimed at creating and improving housing, business, and infrastructure throughout rural America. The Rural Microentrepreneur Assistance Program, administered by the Rural Business-Cooperative Service, was authorized by Section 379E of the Consolidated Farm and Rural Development Act (ConAct). The ConAct established the RMAP to provide loans and grants to support microentrepreneurs in the development and ongoing success of rural microenterprises. The loans establish or augment a rural microentrepreneur revolving loan fund and the grants provide technical assistance and training to microenterprises.

On May 28, 2010, the Agency published an interim rule with comments in the Federal Register (75 FR 30114) implementing RMAP. The interim rule was amended by the correcting amendments published in the Federal Register on July 19, 2010 (75 FR 41695). Twenty-nine combined comments were received from one industry respondent, five sponsoring organizations and one individual. The Agency reviewed and considered all comments that were received. The following discusses each comment and the Agency's response:

Comment: The Loan Loss Reserve Fund (LLRF) usage and replenishment is too restrictive and a more workable approach is to utilize the Intermediary Relending Program (IRP) regulation 7 CFR 4274-D.

Agency response: The Agency agreed, and the regulation has been revised to be more in line with the Intermediary Relending Program (IRP).

Comment: Having a hard deadline of 90 days to close the loans was too difficult to meet in some cases.

Agency response: The Agency agreed, and the language was changed to permit the Agency, with justification and at its sole discretion, to extend the closing date deadline when circumstances warrant.

Comment: Concern was expressed for only being able to draw down funds to make loans every quarter as being unworkable. The 30-day micro borrower loan closing should be eliminated.

Agency response: The Agency agreed, and language was changed from `must' to `should' for the draw of funds which will allow the drawdown of funds as needed. The Agency disagrees with a change to the microborrower 30-day loan closing requirements as a Microenterprise Development Organization's (MDO) should only draw down funds for an identified project. This prevents an MDO from paying interest on unused funds in their account that are not generating revenue for the program loan repayment.

Comment: The Agency should make it clear that one of the Agency's remedies for loan default was to withhold all mandatory grant payments until the microlender comes back into compliance.

Agency response: The Agency agreed, and the information has been delineated in the loan servicing section.

Comment: Making the Agency responsible to approve all key personnel changes is intrusive. The Legislative Affairs notification is set forth in another Rural Development regulation and is not needed here.

Agency response: The Agency agreed but will still require notification of significant personnel changes as such changes may impact the MDO's ability to manage a revolving loan fund. The Legislative Notification has been removed from Section 4280.313.

Comment: The technical assistance only grant portion of the regulation is not authorized by the Farm Bill, but rather technical assistance training grants are authorized by the Farm Bill. Additionally, the current regulation ignores the training aspect of the law.

Agency response: The technical assistance only grant provisions are in the authorizing statute and were not eliminated in the 2018 Farm Bill language. Agency agreed with the training provisions comment and the regulation has been changed in Section 4280.313 to reflect that these grants should be for training type technical assistance to active and potential mircoborrowers as well as any microlenders who may wish to strengthen their technical skills through training.

Comment: Most commenters included comments on scoring: abandon the dual application system, scoring is subjective, scoring is overly complex, TA grant scoring does not reflect operating realities, scoring disfavors microlenders who specialize in servicing traditionally underserved populations, disfavors smaller MDOs who need to use the legally allowed 10 percent for administrative expenses, scoring uses vague definitions of current and delinquent borrowers, disfavors non-rural MDOs, and disfavors MDOs who provide training versus those MDOs who only make loans.

Agency response: The Agency considered each of the comments and reviewed the scoring system for possible revisions. Changes are described in Section III below.

Comment: Several comments were made concerning application processing. One of the commenters stated that a Loan Fund Work Plan or Scope of Work should be required of all applicants, and that some forms listed for the applicant to complete were internal forms and should be deleted.

Agency response: The Agency agreed, and the regulation has been revised to require a work plan from all applicants (§ 4280.316(c)(1)) and internal forms have been removed from the applicant's requirements.

Comment: One group of commenters cited several existing laws which define significant outmigration as a locality which has a loss of 10 percent or more in population in the past 20 years.

Agency response: The Agency agreed, and the definition was changed to conform with the definition used by the Economic Research Service.

Comment: The definition of full-time equivalent does not agree with other Rural Development definitions.

Agency response: The Agency agreed, and the definition was revised to be similar to other Agency regulations.

Comment: The definition of delinquency should be redefined to the dollars and number of loans behind more than 30 days in any one-year period.

Agency response: The Agency agreed in principle and included in the definition that the year be the federal fiscal year. Delinquency parameters were added to § 4280.311(e)(4) to better define satisfactory performance.

Comment: Non-profit organizations cannot have citizenship and the wording should be changed to state organized under the laws of the state.

Agency response: The Agency agrees that non-profit entities have no ownership but retain its requirement that non-profit entities must be controlled by a majority of US citizens. The provisions for state organization of a non-profit remains in § 4280.310(a)(2) and a tribal provision is now included in that section as well.

Comment: The limited 20-year loan term should include a restructure provision that would permit extending beyond the initial 20-year limit. The deferral period should be 3 years and annual payments rather than monthly be utilized.

Agency response: The Agency retains its monthly loan payment requirement as a change to annual payments would reduce the amount of program funding available. The 20-year loan limitation and the 2-year deferral period are statutory requirements and cannot be changed.

Comment: USDA should use its current Intermediary Relending Program and Rural Business Enterprise Grant regulations which have been very successful to manage technical assistance grants and the Intermediary relending of monies through a revolving fund for many years now.

Agency's response: The RMAP program does utilize the technical assistance models utilized by other programs and requires MDO reporting to ensure that the program requirements are being met.

Comment: USDA is placing too much funding in the loan portion of the RMAP and insufficient funding for the grant portion of the program to ensure its success.

Agency's response: The Agency did not agree with this comment. The Agency takes into account, on a year to year basis, the needs of the stakeholders of the RMAP program based on funds available for that fiscal year.

Comment: USDA should relinquish its first lien position on all funds in the Rural Microentrepreneur Revolving Fund (RMRF) except those derived from the Rural Microenterprise loan itself.

Agency response: The Agency did not agree with this comment. The Agency must adhere to prudent lending practices which would require a first lien position on all assets in the revolving loan fund. An MDO is prohibited from co-mingling other entity funds with funds on deposit in its RMAP revolving loan account (§ 4280.311(e)(1)).

Comment: It was Congress' intent to permit the 5 percent LLRF funding requirement to be met using loan funds.

Agency response: Agency disagreed. The LLRF is intended to protect the Microenterprise Development Organization's (MDO) fund by maintaining the value of the fund as required by the servicing regulation, 7 CFR. Part 1951 (Subpart R). If loan funds were used to capitalize the LLRF, and consequently were distributed to cover losses (either by loan payments to the Agency or to cover liquidation costs of the microloan), the longevity of the fund might be in question. This stress would be enhanced if multiple loans required liquidation before the interest earned could rebuild the LLRF.

Comment: The 2 percent interest rate was double the 1 percent minimum rate set by Congress.

Agency response: The Agency disagreed. The current cost to maintain the program requires an interest rate of 2 percent. Microlenders in the Program for more than 5 years have the opportunity to borrow Agency funds at 1 percent when making an application for additional loan funds. (Section 4280.311(e)(4)) It is the Agency's position that the interest rate (cost of funds to the MDO) should be incorporated into the structure of their microloans.

Comment: The loan making process is too restrictive for a microloan program.

Agency response: The loan application process is used to ensure that program funds are awarded to entities with experience in managing revolving loan funds and technical assistance programs.

Comment: The $2.5 million MDO debt limitation was arbitrary, not in the law, and may unduly restrict an MDO's ability to meet demand.

Agency response: The Agency disagrees that the limit restricts an MDO's ability to make microloans. The $50,000 limitation to one microborrower would allow an MDO to have 50 or more loans outstanding at any time. MDOs with significant loan activity are also eligible to apply for IRP program awards for their revolving loan funds.

Comment: All the mandatory grants should be funded at the authorized 25 percent of the loan balances.

Agency response: The 2018 Farm Bill amended Section 379E of the Con Act to require that grant amounts to MDOs be in an amount equal to not less than 20 percent and not more than 25 percent of the total outstanding balance of microloans made by MDOs.

Comment: The current methodology of calculating the annual MDO grant based on the amount of outstanding loan balances is inadequate.

Agency response: The Agency disagrees with this comment as technical assistance funds are to be used for existing and potential microborrowers and offers no alternative methodology to determining the amount of technical assistance provided.

Comment: The Agency should accept collaborative applications stating that MDOs often partner to leverage areas of expertise, expand service areas, and lower costs.

Agency response: The Agency understands that entities will use collaborative resources to administer their programs and does allow for such in the applicant's scope of work and program management, including microborrower application reviews.

Comment: There are many reasons for communities to be considered underserved including but not limited to loss of major employer, natural disasters, chronic low income, and they suggested that the TA training grants be targeted to underserved communities.

Agency response: The Agency agrees that there are many reasons for a community to be considered underserved and elected not to define or limit the requirements for an underserved community as this is best applied by local knowledge.

Comment: The definition of microentrepreneur needs to be clarified to include the number of employees, ability to obtain conventional financing, and the maximum dollars needed for the project.

Agency response: An eligible microentrepreneur must meet the definition of a microenterprise, which is defined as an entity with 10 or fewer employees. The definition of microenterprise provides that business types may also include agricultural producers provided they meet the stipulations in this definition. The microentrepreneur is subject to a credit elsewhere test in Section 4280.322(d). The maximum loan amount for a project is the lesser of $50,000 or 75 percent of the project cost as stated in the regulation.

Comment: Several comments on the cost structure of projects. One commenter suggested utilizing the IRP regulation; two groups suggested that a microborrower's equity in its business be allowed to be considered for the 25 percent non-federal portion of the project. And, finally two groups of commenters point out that the 75 percent federal fund limitations do not apply to a micro borrower's project.

Agency Response: The Agency did not agree. The 25 percent non-federal funds requirement is to meet project equity and also for program leverage to protect the MDO from credit losses. This generally cannot be met by allowing only balance sheet equity.

Comment: The value of matching funds serves no purpose.

Agency response: The Agency did not agree as program leverage is used as a credit enhancement to the microborrower's project costs and protects the MDO from increased credit losses.

Comment: Priority designations for race and ethnicity within populations is discriminatory.

Agency response: The Agency does not agree with the comment as there is not a priority designation based on race and ethnicity and the application scoring criteria is based on the diversity of the MDO's loan portfolio matching the diversity of their program service area. The race and ethnicity criteria is often used in the determination of an underserved community and such information is also obtained voluntarily from applicants for compliance with Federal civil rights requirements.

The Agency has carefully reviewed the above comments and is modifying the regulation based on an analysis of responsive comments received, program delivery experience, and changes required by Section 379E of the 2018 Farm Bill.

The modifications to the Program's regulations will allow the Agency to implement the requirements of the 2018 Farm Bill, address comments received after publication of the interim regulation in 2010 and implement the final regulation.

This section presents the major changes to the existing RMAP interim rule.

The authority citation was updated from 7 U.S.C. 1989(a), 7 U.S.C. 2009s to accurately read as 7 U.S.C. 1989(a), 7 U.S.C. 2008s.

The definitions of “close relative”, “Indian tribe” and “rural or rural area” were modified to match the definitions in other RD programs. These changes will provide consistency across RD programs as well as clarify the definitions for applicants.

The definitions of “loan loss reserve fund (LLRF)” and “rural microloan revolving fund (RMRF)” were modified to remove the requirement for the deposit accounts to be interest-bearing. Microenterprise Development Organizations have found it difficult to obtain interest-bearing accounts and when they are available, the monthly bank fees often exceed the interest earned.

At § 4280.310, “Program requirements for MDOs,” a requirement for all applicants to be registered in the System for Awards Management (SAM) prior to submitting an application was added. This requirement was added as a result of the Office of Management and Budget's publication of revisions to OMB Guidance for Grants and Agreements (2 CFR part 200) at 85 FR 49506, on August 13, 2020.

At § 4280.310(c), the minimum score required to be considered eligible to participate in the program was reduced from 70 to 60 points. The Agency's experience shows that 70 points was too restrictive and eliminated many small, rural MDOs from the program.

Section 4280.311(e) was revised to more closely align with the application and servicing process flows.

Clarification was provided, at § 4280.311(e)(3), that, in the event that the repayment terms of a loan are modified by the Agency, the term of the loan may not exceed a 20-year period from the loan origination date.

As a satisfactory participation designation impacts lending practices of the MDO after the first five years of participation in the program, additional information was added to § 4280.311(e)(4) to expand and clarify the performance metrics that must be met to be considered in “satisfactory participation” for the program.

Provisions were added to § 4280.311(e)(10) to allow for a greater than 25 percent disbursement of loan proceeds at closing to the extent that there are commitments to fund projects within 60 days of loan closing. This provision allows MDOs to promote their programs and provide funds needed by the small business community.

The frequency of fund distribution was changed at § 4280.311(e)(11) from “not more often than quarterly” to “should be not more often than quarterly” to allow some flexibility to the MDOs to request funds to more readily meet the needs of their customers.

At § 4280.311(e)(14), the Agency strengthened the penalties for using revolving microloan revolving funds for other than approved purposes to include default due to non-performance rather than just restricting access to future withdrawals. This provides the Agency with an additional option in the event of egregious or multiple instances of improper use of loan funds.

In order to meet the requirements of the 2018 Farm Bill, § 4280.313(a) was modified to allow for microlenders to receive up to 25 percent of their new loan amount as a technical assistance grant. Currently, the amount is limited to 25 percent of the first $400,000 of loans, then 5 percent of any amount over $400,000. The change will potentially increase the amount of technical assistance available to microborrowers.

The Agency clarified the annual grant process at § 4280.313(a)(1). The additional language provides information to applicants and grantees regarding grant awards, that are non-competitive and based on the microlender's loan balance as of June 30th of each year, as well as replenishment levels and the process used to distribute funds if full replenishment is not possible within available grant funds. This clarification provides details needed by grantees for planning and budgeting purposes.

Applicants are reminded at § 4280.315(a) to provide the documentation listed for a complete application and scoring purposes. Some applicants were confused as to what constituted a complete application. The Agency believes this reminder will reduce that confusion.

The scoring criteria at § 4280.316 was modified to clarify requirements for applicants and emphasize Agency priorities for the overall delivery of the program. While there are numerous changes, the total score possible has not changed. These changes include:

• Replacing “within” with “between” at § 4280.316.(b)(3)(iii)(A) and (B) to more accurately state that the calculated ratio must be within the intervals of the listed ratio in each priority level.

• Increased points from 1 to 2 for applicants that provide success stories to demonstrate the effect of technical assistance on their clients at § 4280.316(b)(4)(ii). This change allows the Agency to further prioritize this action.

• Removed § 4280.316(b)(4)(iv) “Applicants that present their narrative clearly and concisely (five pages or less) and at a level expected by trainers and teachers will be awarded 1 point.” This paragraph was removed as the Agency determined that it was vague and too subjective.

• At § 4280.316(b)(5)(iii), § 4280.316(c)(8)(iii) and § 4280.316(d)(4)(iii) the Agency removed, “up to and including 10 percent”. This change made the criteria, “8 percent or greater, 0 points will be awarded”. The Agency prioritizes maximizing the amount of actual technical assistance provided. This change serves to meet the goal of reducing the amount of grant funds that will be used for administrative expenses.

• Changed § 4280.316(c)(5) to remove subjective scoring for references and recommendations from other entities, to awarding one point for each support letter received from potential program beneficiaries or a local organization. The maximum points for this section is unchanged at five points.

• Merged the previous § 4280.316(d)(1)(i) and (ii) into one item at § 4280.316(d)(1)(i). The previous § 4280.316(d)(1)(i) was a data collection request that was needed to support subsequent paragraphs and not a scoring priority in and of itself.

• Changed § 4280.316(d)(2)(iii) from subjective scoring of client evaluations to awarding 3 points if the Applicant conducts client evaluations. A scoring method for the evaluations is included with an additional 2 points awarded if the evaluation average is above 3.0 on a 5-point scale. The maximum total of 5 points for the criterion is unchanged.

• Changed § 4280.316(d)(4)(i) from “less than 5 percent” to “up to and less than 5.0 percent” so that 5.0 percent is included in this scoring criterion. Paragraph (ii) was changed to “more than 5.0 percent but less than 8 percent” from “between 5 percent and 8 percent, . . .” so that 5.0 percent is not included in this score and lastly § 4280.316(d)(4)(iii) was changed from “Between 8 percent up to and including 10 percent” to “8 percent or greater” so that all percentages greater than 8 are included.

• At § 4280.316(e)(3) information was added to provide information to applicants on how the Agency will handle unsuccessful applications under this section.

Application submission information at § 4280.317(a)(1) was updated to remove the requirement for the application package to be submitted in a three-ring binder.

Section 4280.317(a)(2) was modified to provide clarity to applicants on application submission and acceptance and funding cycles.

The Agency added clarifying language at § 4280.322(a) emphasizing that the total outstanding loan balance to any one microborrower may not exceed $50,000. The language was added as previous language limited individual loans to $50,000 not the total loans outstanding.

To comply with the provisions of Executive Order 13559 (Fundamental Principles and Policymaking Criteria for Partnerships With Faith-Based and Other Neighborhood Organizations), the Agency has added “Loans supporting explicitly religious activities, such as worship, religious instruction or proselytization” as an ineligible project type at § 4280.323(k). This addition provides additional guidance to applicants on activities that cannot be supported with Agency grant funds.

This rule has been determined to be not significant for purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

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

The Catalog of Federal Domestic Assistance (CFDA) number assigned to the Rural Microentrepreneur Assistance Program is 10.870. All active CFDA programs and the CFDA Catalog can be found at the following website: https://beta.sam.gov/ . The Government Printing Office (GPO) prints and sells the CFDA to interested buyers. For information about purchasing the Catalog of Federal Domestic Assistance from GPO, call the Superintendent of Documents at 202-512-1800 or toll free at 866-512-1800, or access GPO's on-line bookstore.

This program is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. Intergovernmental consultation will occur for the assistance to MDOs in accordance with the process and procedures outlined in 2 CFR part 415, subpart C. Assistance to rural microenterprises will not require intergovernmental review.

Rural Development will conduct intergovernmental consultation using RD Instruction 1970-I “Intergovernmental Review,” available in any Rural Development office, on the internet at http://www.rd.usda.gov/sites/default/files/1970i.pdf and in 2 CFR part 415, subpart C. Note that not all States have chosen to participate in the intergovernmental review process. A list of participating States is available at the following website: https://www.whitehouse.gov/omb/management/office-federal-financial-management/ .

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. The Agency has determined that this rule meets the applicable standards provided in section 3 of the Executive Order. In addition, all State and local laws and regulations that are in conflict with this rule will be preempted. No retroactive effect will be given to this rule, and, in accordance with Sec. 212(e) of the Department of Agriculture Reorganization Act of 1994 (7 U.S.C. Sec. 6912(e)), administrative appeal procedures, if any, must be exhausted before an action against the Department or its agencies may be initiated.

This rule contains no new reporting or recordkeeping burdens under OMB control number 0570-0062 that would require approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

The Regulatory Flexibility Act (5 U.S.C. 601-602) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (“APA”) or any other statute. The APA exempts from notice and comment requirements rules “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(a)(2)), so therefore an analysis has not been prepared for this rule.

This final rule contains no federal mandates (under the regulatory provisions of Title II of the Unfunded Mandates Reform Act of 1995) for state, local, and tribal governments or the private sector. Therefore, this rule is not subject to the requirements of § 202 and 205 of the Unfunded Mandates Reform Act of 1995.

The policies contained in this rule do not have any substantial direct effect on 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. Nor does this rule impose substantial direct compliance costs on state and local governments. Therefore, consultation with the states is not required.

This executive order imposes requirements on the Agency in the development of regulatory policies that have tribal implications or preempt tribal laws. The Agency has determined that the rule does not have a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian tribes. Thus, this rule is not subject to the requirements of Executive Order 13175. If tribal leaders are interested in consulting with RBCS on this rule, they are encouraged to contact USDA's Office of Tribal Relations or RD's Native American Coordinator at: AIAN@usda.gov to request such a consultation.

Rural Development is committed to the E-Government Act of 2002, which generally requires government agencies to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

Rural Development, a mission area for which RBCS is an agency, has reviewed this rule in accordance with USDA Departmental Regulation 4300-4, Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. Based on the analysis of the final rule, available data (including anecdotal), program purpose, application submission and eligibility criteria, issuance of this Final Rule is not likely to adversely or disproportionately impact very low, low and moderate-income populations, minority populations, women, Indian tribes or persons with disabilities, by virtue of their race, color, national origin, sex, age, disability, or marital or familiar status.

In accordance with Federal civil rights law and the Department's civil rights regulations and policies, the USDA, its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Persons with disabilities who require alternative means of communication for program information ( e.g., Braille, large print, audiotape, American Sign Language, etc.) should contact the Agency or USDA's TARGET Center at (202) 720-2600 (voice and TTY) or contact USDA through the Federal Relay Service at (800) 877-8339. Additionally, program information may be made available in languages other than English.

To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at https://www.usda.gov/oascr/how-to-file-a-program-discrimination-complaint and at any USDA office or write a letter addressed to USDA and provide in the letter all of the information requested in the form. To request a copy of the complaint form, call (866) 632-9992. Submit your completed form or letter to USDA by: (1) Mail: U.S. Department of Agriculture, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410; (2) fax: (202) 690-7442; or (3) email: OAC@usda.gov .

USDA is an equal opportunity provider, employer, and lender.

Accordingly, for the reasons discussed in the preamble, the Agency amends 7 CFR part 4280 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-25-04, Amendment 39-18342 (80 FR 76381, December 9, 2015), (AD 2015-25-04). AD 2015-25-04 applied to Agusta S.p.A (now Leonardo S.p.a.) Model A109A and A109A II helicopters. The NPRM published in the Federal Register on March 8, 2021 (86 FR 13232). In the NPRM, the FAA proposed to retain the initial and repetitive 25 hours time-in-service (TIS) inspections required by AD 2015-25-04 and depending on the inspection results, continue to require replacing the slider with an airworthy slider. Additionally, the NPRM proposed to require, within 800 hours TIS, removing slider part number (P/N) 109-0130-11-7 from service and replacing it with a modified slider P/N 109-0130-11-7 marked with an “R” after the serial number, which would provide a terminating action for the repetitive inspections. Finally, the NPRM proposed to prohibit installing certain sliders on any helicopter. The NPRM was prompted by EASA AD 2020-0142, dated June 25, 2020 (EASA AD 2020-0142), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Leonardo S.p.a. Model A109A and A109A II helicopters with a certain part-numbered slider. EASA AD 2020-0142 supersedes EASA AD 2015-0097, dated June 1, 2015 (EASA AD 2015-0097). EASA AD 2015-0097 was issued after unusual play was detected on a certain part-numbered slider. EASA advised in EASA AD 2015-0097 that investigation revealed excessive wear of the slider broaching at the point of contact with the tail rotor shaft but that the cause of the excessive play had not been determined. EASA AD 2015-25-04 prompted the FAA to issue AD 2015-25-04. EASA now advises that further investigation results identified the reason for the excessive play was a manufacturing issue. Accordingly, EASA AD 2020-0142 retains the repetitive inspections for a certain part-numbered slider, requires replacing a certain part-numbered slider with a modified slider, and provides a terminating action for the repetitive inspections.

The FAA received no comments on the NPRM or on the determination of the costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data 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 helicopters as proposed in the NPRM; however, the paragraphs have been restructured to meet current formatting requirements, and the responsible office for approving Alternative Methods of Compliance has been revised. These changes will neither increase the scope of the AD nor increase the economic burden on any operator.

The FAA reviewed Leonardo Helicopters Alert Service Bulletin No. 109-149, Revision A, dated May 18, 2020, which specifies procedures for repetitively inspecting the slider for play. This service information also references procedures for replacing the affected slider with a modified slider.

The EASA AD requires replacing the affected part-numbered slider within 60 months, while this AD requires replacing the affected slider within 800 hours TIS.

The FAA estimates that this AD affects 147 helicopters of U.S. Registry. The FAA estimates that operators may incur the following costs in order to comply with this AD. Labor costs are estimated at $85 per work-hour.

Inspecting the slider for play takes about 1 work-hour for an estimated cost of $85 per helicopter and $12,495 for the U.S. fleet per inspection cycle. Replacing a slider takes about 10 work-hours and parts cost about $4,068 for an estimated cost of $4,918 per helicopter and $722,946 for the U.S. fleet.

According to Leonardo Helicopters' service information, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected persons. The FAA does not control warranty coverage by Leonardo Helicopters. Accordingly, the FAA has included all costs in this cost estimate.

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

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

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

For the reasons discussed above, I certify 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-2020-47, dated November 18, 2020 (TCCA AD CF-2020-47) (referred to after this 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 on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0342.

This AD was prompted by a report of a number of low altitude engine surge incidents during takeoff. Under certain environmental conditions ( e.g., temperature/thermal inversion), the existing engine control features can lead to engine surge. The FAA is issuing this AD to address engine surges during takeoff, which can result in significant loss of engine thrust or even engine shutdown and can occur on both engines at the same time. See the MCAI for additional background information.

Bombardier has issued Section 02-04, “Systems Limitations,” of Chapter 02, “LIMITATIONS”; and Section 04-03 of Chapter 04, “NORMAL PROCEDURES”; of Challenger 300 Airplane Flight Manual (Imperial Version), Publication No. CSP 100-1, Revision 63, dated April 1, 2021. Section 02-04, “Systems Limitations,” of Chapter 02, “LIMITATIONS” provides a procedure for “Air Conditioning and Pressurization”; and Section 04-03 of Chapter 04, “NORMAL PROCEDURES” provides a procedure for “Taxi and Before Takeoff.” The procedures require the left and right engine bleeds to be “ON” during takeoff. (For obtaining the procedures for Bombardier Challenger 300 Airplane Flight Manual (Imperial Version), Publication No. CSP 100-1, use Document Identification No. CH 300 AFM-I.) This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires revising the existing airplane flight manual and applicable corresponding operational procedures to provide the flightcrew with procedures that require the engine bleeds to be “ON” during takeoff.

This AD requires including the information that is provided in the referenced AFM revision in paragraph (g) of this AD. The language in paragraph (g) of this AD is designed to allow incorporating the specific information, regardless of the revision level of the AFM in use, provided the language is identical to the referenced AFM revisions specified in paragraph (g) of this AD. The language in a later revision of the Challenger 300 Airplane Flight Manual, Publication No. CSP 100-1 that is the same as the language in Challenger 300 Airplane Flight Manual, Publication No. CSP 100-1, Revision 63, dated April 1, 2021, may be incorporated.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because engine surges during takeoff can result in significant loss of engine thrust or even engine shutdown and can occur on both engines at the same time. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0342; Project Identifier MCAI-2020-01547-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Jiwan Karunatilake, Aerospace Engineer, Airframe and Propulsion Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531; email 9-avs-nyaco-cos@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA considers this AD interim action. The engine manufacturer is in the process of developing new engine control software to address the problem of low altitude engine surges occurring under certain environmental conditions. Once this software is developed, approved, and available, the FAA might consider additional rulemaking.

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

The FAA estimates that this AD affects 356 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA has received a report indicating that a crack was found on the web attachment flange of the center wing upper forward corner fitting. Loose fasteners in the wing station 220 wing joint at the front beam web can cause internal load redistribution and consequent cracked center wing upper and lower corner fittings and failed fasteners in those fittings. This condition, if not addressed, could result in reduced structural integrity of the airplane and loss of control of the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed Lockheed Martin Aeronautics Company Alert Service Bulletin A382-57-99, Revision 1, dated February 17, 2021. This service information specifies procedures for an eddy current surface scan for cracks of the center wing upper and lower forward corner fittings and fasteners (including the exterior of the vertical flange of the corner fitting common to the front beam web and interior surfaces of the corner fitting horizontal and vertical flanges common to the beam cap), a torque check of left and right outer-wing-to-center-wing front-beam-web-joint-splice-angle fasteners (including checking for any loose, sheared, broken, or missing fasteners), retorqueing the outer-wing-to-center-wing front-beam-web-joint-splice-angle fasteners, and repair or replacement. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This AD requires accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this AD and the Service Information.”

Lockheed Martin Aeronautics Company Alert Service Bulletin A382-57-99, Revision 1, dated February 17, 2021, applies to Model 382, 382B, 382E, 382F, and 382G airplanes. This AD applies to Model C-130A, C-130B, C-130BL, C-130E, C-130H, C-130H-30, C-130J, C-130J-30, EC-130Q, HC-130H, KC-130H, NC-130B, NC-130, and WC-130H airplanes as well as the airplanes specified in Lockheed Martin Aeronautics Company Alert Service Bulletin A382-57-99, Revision 1, dated February 17, 2021. The FAA has confirmed that all airplanes identified in paragraph (c) of this AD can comply with the actions specified in Lockheed Martin Aeronautics Company Alert Service Bulletin A382-57-99, Revision 1, dated February 17, 2021.

In light of the heavy reliance on aviation for intrastate transportation in Alaska, the FAA has fully considered the effects of this AD (including costs to be borne by affected operators) from the earliest possible stages of AD development. This AD is based on those considerations, and was developed with regard to minimizing the economic impact on operators to the extent possible, consistent with the safety objectives of this AD. In any event, the Federal Aviation Regulations require operators to correct an unsafe condition identified on an airplane to ensure operation of that airplane in an airworthy condition. The FAA has determined in this case that the requirements are necessary and the indirect costs would be outweighed by the safety benefits of the AD.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because loose fasteners in the wing station 220 wing joint at the front beam web can cause internal load redistribution, and consequent cracked center wing upper and lower corner fittings and failed fasteners in those fittings, resulting in reduced structural integrity of the airplane and loss of control of the airplane. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include Docket No. FAA-2021-0341 and Project Identifier AD-2021-00325-T at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Fred Caplan, Aerospace Engineer, Airframe Section, FAA, Atlanta ACO Branch, 1701 Columbia Avenue, College Park, GA 30337; phone: 404-474-5507; fax: 404-474-5606; email: Frederick.N.Caplan@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 20 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 would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these replacements:

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:

Is not a “significant regulatory action” under Executive Order 12866.

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2021-0120-E, dated May 3, 2021 (EASA Emergency AD 2021-0120-E) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain ATR—GIE Avions de Transport Régional Model ATR42-500 and ATR72-212A airplanes.

This AD was prompted by reports of temporary loss of all display units and the IESI. The investigation is ongoing and the root cause is not yet known, but the initial investigation revealed that the battery toggle switch functional item number (FIN) 7PA and the contactor FIN 1PA were two potential contributors to the reported cases. The FAA is issuing this AD to address temporary loss of all display units and the IESI, which could result in loss of control of the airplane. See the MCAI for additional background information.

EASA Emergency AD 2021-0120-E describes procedures for revising the existing AFM to update a systems limitation for the transformer rectifier unit (TRU), limiting dispatch with certain equipment inoperative (which can be done by amending the operator's minimum equipment list (MEL)), performing an operational test of the contactor FIN 1PA for discrepancies ( i.e., a lack of power supply to DU 4 or a static inverter 1 INV FAULT not being displayed on 29VU), performing an electrical test of the battery toggle switch FIN 7PA, and corrective actions. Corrective actions include replacement of the contactor FIN 1PA and restoring wiring. EASA Emergency AD 2021-0120-E also describes procedures for reporting test results to ATR-GIE Avions de Transport Régional.

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

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

This AD requires accomplishing the actions specified in EASA Emergency AD 2021-0120-E described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

EASA Emergency AD 2021-0120-E requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. Therefore, including a requirement in this AD to operate the airplane according to the revised AFM would be redundant and unnecessary. Further, compliance with such a requirement in an AD would be impracticable to demonstrate or track on an ongoing basis; therefore, a requirement to operate the airplane in such a manner would be unenforceable.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA initially worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA Emergency AD 2021-0120-E is incorporated by reference in this final rule. This AD, therefore, requires compliance with EASA Emergency AD 2021-0120-E in its entirety, through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in the EASA AD. Service information specified in EASA Emergency AD 2021-0120-E that is required for compliance with EASA Emergency AD 2021-0120-E is available on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0365.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because temporary loss of all display units and the IESI could result in loss of control of the airplane. In addition, the compliance time for the required action is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0365; Project Identifier MCAI-2021-00527-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Shahram Daneshmandi, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3220; email shahram.daneshmandi@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

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

The FAA estimates that this AD affects 15 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Operators that have certain equipment affected by this AD are required to incorporate certain operational limitations. One way of doing so is revising the operator's existing FAA-approved MEL to include those operational limitations. If an operator chooses to revise their existing FAA-approved MEL, the FAA has determined that this revision takes an average of 90 work-hours per operator, although the FAA recognizes that this number may vary from operator to operator. Since operators incorporate MEL 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 total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

The FAA estimates that it takes about 1 work-hour per product to comply with the reporting requirement in this AD. The average labor rate is $85 per hour. Based on these figures, the FAA estimates the cost of reporting the test results on U.S. operators to be $1,275, or $85 per product.

The FAA estimates the following costs to do any necessary on-condition actions 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 actions:

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Wellsville Municipal Airport/Tarantine Field, Wellsville, NY, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 10892; February 23, 2021) for Docket No. FAA-2021-0033 to amend the Class E airspace extending upward from 700 feet above the surface at Wellsville Municipal Airport/Tarantine Field, Wellsville, NY. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 8.6-mile (increased from a 7.9-mile) radius of Wellsville Municipal Airport/Tarantine Field, Wellsville, NY; removes the Wellsville VORTAC and associated extension from the airspace legal description; removes the HALOS NDB and extension east of the airport from the airspace legal description as they are no longer required; adds an extension 2 miles each side of the 269° bearing from the airport extending from the 8.6 mile radius to 8.9 miles west of the airport; updates the name (previously Wellsville Municipal/Tarantine Field Airport, Wellsville, NY) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and removes the city associated with the airport in the header of the airspace legal description to comply with changes to FAA Order 7400.2M, Procedures for Handling Airspace Matters.

This action is the result of an airspace review caused by the decommissioning of the Wellsville VOR, which provided navigation information for the instrument procedures these airports, as part of the VOR MON Program.

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Jim Hogg County Airport, Hebbronville, TX, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 10891; February 23, 2021) for Docket No. FAA-2021-0055 to amend the Class E airspace extending upward from 700 feet above the surface at Jim Hogg County Airport, Hebbronville, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface at Jim Hogg County Airport, Hebbronville, TX, by removing the Hebbronville NDB and associated extension from the airspace legal description; and removes the cities associated with the airports to comply with changes to FAA Order 7400.2M, Procedures for Handling Airspace Matters.

This action is the result of an airspace review due to the decommissioning of the Hebbronville NDB which provided navigation information for the instrument procedures at this airport.

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class D airspace and revokes the Class E airspace extending upward from 700 feet or more above the surface at Gila Bend AF Aux Airport, Gila Bend, AZ, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 10880; February 23, 2021) for Docket No. FAA-2021-0008 to amend the Class D airspace and revoke the Class E airspace extending upward from 700 feet above the surface at Gila Bend AF Aux Airport, Gila Bend, AZ. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in paragraph 5000 and 6005, respectively, of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71:

Amends the Class D airspace at Gila Bend AF Aux Airport, Gila Bend, AZ, by updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replaces the outdated term “Airport/Facility Directory” with “Chart Supplement”;

And revokes the Class E airspace extending upward from 700 feet or more above the surface to at Gila Bend AF Aux airport as it is no longer required.

This action is the result of a biennial review of the airspace.

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Durant Regional Airport-Eaker Field, Durant, OK, to support instrument flight rule operations at this airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 10885; February 23, 2021) for Docket No. FAA-2021-0001 to amend the Class E airspace extending upward from 700 feet above the surface at Durant Regional Airport-Eaker Field, Durant, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order 7400.11E, dated July 21, 2020, and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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

This amendment to 14 CFR part 71 amends the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (decreased from a 6.9-mile) radius of Durant Regional Airport-Eaker Field, Durant, OK; updates the name (previously Eaker Field) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and removes the city associated with the airport in the header of the airspace legal description to comply with changes to FAA Order 7400.2M, Procedures for Handling Airspace Matters.

This action is the result of airspace reviews caused by the decommissioning of the Texoma VOR, which provided navigation information for the instrument procedures these airports, as part of the VOR MON Program.

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CRF part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Immediate action is needed to protect persons and property from the potential safety hazards associated with a fireworks display in the vicinity of Natchez, MS. The NPRM process would delay the establishment of the safety zone until after the date of the event and compromise public safety. We must establish this temporary safety zone immediately and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the firework display in the vicinity of Natchez, MS.

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 Lower Mississippi River (COTP) has determined that potential hazards associated with the firework display, would be a safety concern for all persons and vessels on the Lower Mississippi River between Mile Marker (MM) 364.5 and MM 365.5 in the vicinity of Natchez, MS. This rule is needed to protect persons, property, infrastructure, and the marine environment in all waters of the LMR within the safety zone during the firework display.

This rule establishes a temporary safety zone on May 15, 2021. The safety zone will cover all navigable waters of the LMR from MM 364.5 through MM 365.5 in the vicinity of Natchez, MS. The duration of this safety zone is intended to ensure the safety of waterway users on these navigable waters during the firework display.

Entry of persons or vessels into this safety zone is prohibited unless authorized by the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Sector Lower Mississippi River. Persons or vessels seeking to enter the safety zones must request permission from the COTP or a designated representative on VHF-FM channel 16 or by telephone at 901-521-4822. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative. The COTP or a designated representative will inform the public of the enforcement times and date for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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).

This regulatory action determination is based on the size, location, and duration of the safety zone. This emergency safety zone will temporarily restrict navigation on the LMR at MM 762 through 782 in the vicinity of Natchez, MS on May 15, 2021. Moreover, The Coast Guard will issue Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate. The rule allows vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone on the LMR at MM 364.5 through 365.5 in the vicinity of Natchez, MS that will prohibit entry into this zone.. It is categorically excluded from further review under paragraph L60 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:

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

Epidemiological studies have shown statistically significant correlations between elevated levels of PM 2.5 (particulate matter with a diameter of 2.5 microns or less) and premature mortality. Other important health effects associated with PM 2.5 exposure include aggravation of respiratory and cardiovascular disease, changes in lung function, and increased respiratory symptoms. Individuals particularly sensitive to PM 2.5 exposure include older adults, people with heart and lung disease, and children. 1 PM 2.5 can be emitted directly into the atmosphere as a solid or liquid particle (“primary PM 2.5 ” or “direct PM 2.5 ”) or can be formed in the atmosphere as a result of various chemical reactions among precursor pollutants such as nitrogen oxides (NO X ), sulfur oxides, volatile organic compounds, and ammonia (“secondary PM 2.5 ”). 2

EPA first established annual and 24-hour NAAQS for PM 2.5 on July 18, 1997. 3 The annual standard was set at 15.0 micrograms per cubic meter (µg/m 3 ), based on a 3-year average of annual mean PM 2.5 concentrations, and the 24-hour (daily) standard was set at 65 µg/m 3 , based on the 3-year average of the annual 98th percentile values of 24-hour PM 2.5 concentrations at each monitor within an area. 4 On October 17, 2006, EPA revised the level of the 24-hour PM 2.5 NAAQS to 35 µg/m 3 , based on a 3-year average of the annual 98th percentile values of 24-hour concentrations. 5 On January 15, 2013, EPA revised the annual standard to 12.0 µg/m 3 , based on a 3-year average of annual mean PM 2.5 concentrations. 6 We refer to this standard as the 2012 PM 2.5 NAAQS. The SIP submission at issue in this action pertains to the 2012 PM 2.5 NAAQS.

EPA designated and classified the Allegheny County Area as “Moderate” nonattainment for the 2012 PM 2.5 NAAQS. 7 On September 30, 2019, PADEP submitted the Allegheny County PM 2.5 Plan SIP revision, on behalf of ACHD, in order to meet the applicable requirements for Moderate areas and to provide for attainment of the 2012 PM 2.5 NAAQS in the Allegheny County Area. The SIP revision contains the attainment demonstration for the Allegheny County Area (also referred to as “the Allegheny County PM 2.5 Plan” or “the Plan”). On June 12, 2020 (85 FR 35852), EPA proposed to fully approve the following elements of the Allegheny County PM 2.5 Plan: The base year emissions inventory, the particulate matter precursor contribution demonstration, the reasonably available control measures/reasonably available control technology (RACM/RACT) element, the air quality modeling demonstration supporting attainment by the attainment deadline, the reasonable further progress (RFP) analysis, and the quantitative milestones to ensure timely attainment. 8

Having identified deficiencies (and having obtained a commitment to remedy those deficiencies within one year of final action), EPA proposed a conditional approval of the contingency measures and the 2021 motor vehicle emission budget (MVEB) element of the Allegheny County PM 2.5 Plan. Pennsylvania committed (via an April 20, 2020 letter to EPA) to submit a supplemental SIP revision to remedy those two elements of the Plan by no later than twelve months after EPA's final conditional approval action.

As part of our June 12, 2020 proposal, we proposed to find that the suite of PM 2.5 control requirements in the Allegheny County PM 2.5 Plan meets all RACM/RACT requirements for the control of direct PM 2.5 and PM precursors and to approve the PM 2.5 RACM evaluation as meeting the applicable nonattainment area plan requirements under CAA sections 172(c)(1) and 189(a)(1)(C) and 40 CFR 51.1009.

EPA also proposed to find that the attainment demonstration in the Allegheny County PM 2.5 Plan satisfies the requirements of sections 189(a)(1)(B) and 172(c)(1) of the CAA and 40 CFR 51.1011(a). In support of this proposal, we found that the ACHD relied upon acceptable modeling techniques to demonstrate attainment of the 2012 PM 2.5 NAAQS in the Allegheny County Area, and that the Plan demonstrates attainment of the 2012 PM 2.5 NAAQS as expeditiously as practicable. We determined that the Allegheny County PM 2.5 Plan provides a convincing justification that emission reductions from the control measures listed in the Plan will provide for timely attainment of the 2012 PM 2.5 NAAQS by the December 31, 2021 attainment date. Our June 12, 2020 proposed rule provides a more detailed discussion of our evaluation of the Plan. 9

Other specific requirements applicable to attainment plans under the 2012 PM 2.5 NAAQS and the rationale for EPA's proposed action are explained in the June 12, 2020 proposed rule, and its associated technical support documents (TSDs), and will not be restated here.

The June 12, 2020 proposed action to approve the Allegheny County PM 2.5 Plan opened a public comment period, which ended on July 13, 2020. Following a request for additional time from a public advocacy group, EPA published a document on July 31, 2020 reopening and extending the public comment period through August 13, 2020. 10 EPA received public comments from several environmental groups and several individual commenters. The comments received have been placed in the docket for this action. EPA's summary of the significant adverse comments received on the proposed action and our responses to those comments are listed below.

Comment 1: The commenter requests that EPA consider the lateness of ACHD submission of the Plan (nearly three years after the due date) when assessing the “credibility” of ACHD's attainment demonstration. The commenter contends that ACHD's stated reason for being late ( i.e., the complexity of the plan analysis) is inadequate justification for the lateness. The commenter states that if ACHD had not submitted a plan to EPA before the 18-month sanctions clock deadline, the Allegheny PM 2.5 nonattainment area would have been subject to sanctions, including a more stringent emissions offset ratio requirement applicable to new and modified major stationary sources. The commenter posits that the delay in submitting this Plan provides “context” for flaws in the submitted plan.

Response 1: Although the Commonwealth submitted the Allegheny County Plan well after the October 15, 2016 CAA statutory deadline, EPA disagrees with the commenter's assertion that this delay in submission must be presumed to result in a flawed Plan. Lateness of the Plan in and of itself does not interfere with the ability of ACHD to prepare an attainment plan meeting the CAA and related EPA regulatory requirements. Section 110(k) requires EPA to evaluate and to act upon SIP submissions from states. EPA has authority to approve, disapprove, or conditionally approve a SIP submission, in whole or in part, based upon whether the submission meets all applicable requirements. Lateness of a state's submission of the Plan to EPA does not affect EPA's obligation to evaluate and act upon the SIP submission based on its merits, consistent with those requirements. As explained in the proposed action, EPA has determined that the SIP submission from ACHD does meet most of the applicable requirements as submitted. However, EPA is herein requiring that Pennsylvania meet these applicable requirements when addressing the conditional approval of the contingency measures' requirement.

Regarding the sanctions process mentioned by the commenter, EPA's finding of failure to submit deficiency was remedied by EPA's November 1, 2019 letter determining that PADEP's September 30, 2019 SIP submittal of the Plan was complete. 11 At that point, sanctions under section 179 of the CAA for failing to submit the required nonattainment plan ceased to be applicable. If Pennsylvania fails to remedy the identified conditions of the conditional approval, converting those elements of the Plan to a disapproval, then that disapproval would constitute a new finding under the terms of CAA section 179(a), beginning a new 18-month period prior to potential application of sanctions described by CAA section 179(b). EPA's conversion of the proposed conditional approval into a final conditional approval by this action will prevent the further imposition of CAA section 179(b) sanctions unless Pennsylvania does not submit the required elements of the Plan by the deadline under the final conditional approval, i.e., one year from the date of EPA's final conditional approval.

Comment 2: The commenter states that EPA should require more rigorous analyses from ACHD for the Plan since it contains air quality modeling tailored to attaining the NAAQS of 12.0 μg/m 3 precisely, with no margin of safety. The commenter cites EPA's 2018 “Guidance for Attainment Demonstrations for PM 2.5 ,” which states that “supplemental evidence should accompany all model attainment demonstrations”  12 and that “generally, those modeling analyses that show that attainment will be reached in the future with some margin of safety will need more limited supporting material,”  13 and goes on to state that “for other attainment cases in which the projected future design value is closer to the NAAQS, more rigorous supporting analyses should be completed.”  14 The commenter points out that ACHD's modeling projects attainment at exactly the level of the NAAQS ( i.e., 12.0 μg/m 3 ) and the commenter thus believes EPA should adhere to its guidance by compelling ACHD to provide more rigorous analyses to support its attainment demonstration. 15

The commenter questions the credibility of ACHD's Plan, given public statements by ACHD that it is prohibited from developing a control strategy for NAAQS attainment that reduces emissions to levels that would result in air quality that is better than the level required for purposes of the 2012 PM 2.5 NAAQS. The commenter argues that ACHD's contention in the Plan that they are prevented by state/local law from adopting a control strategy that exceeds Federal requirements ( i.e., that provides emission reductions resulting in an attainment year design value below the 12.0 μg/m3 standard) is not supported by state or local law.

Response 2: EPA acknowledges that its guidance recommends that modeling demonstrations projecting PM 2.5 design value concentrations that are close to the level of NAAQS (as is the case for the Liberty Monitor at issue in the Plan) should have more supporting evidence and analyses. EPA's November 2018 Ozone, PM 2.5 and Regional Haze guidance directs that supplemental evidence should accompany all model attainment demonstrations and that, generally, those modeling analyses that show that attainment will be reached in the future with some margin of safety will need more limited supporting material. However, for other attainment cases in which the projected future design value is closer to the NAAQS, more rigorous supporting analyses should be completed. 16

Based on information provided in the weight of evidence (WOE) analysis submitted as part of the Allegheny County PM 2.5 Plan, including information from the electric grid operator for the area (PJM Interconnection, LLC), EPA has concluded that Allegheny County has performed a “more rigorous supporting analyses” in support of its modeling analysis demonstration that meets EPA's guidance. The Plan projects that all monitors in the Allegheny County PM 2.5 nonattainment area will comply with the 2012 PM 2.5 NAAQS by the required 2021 attainment date. 17 The commenter did not mention the Plan's WOE analysis or PJM data in its comment, so it is not clear if the commenter was aware of their existence. Allegheny County's WOE analysis shows declining PM 2.5 monitor concentrations, additional source emission reductions not included in the modeling analysis, precursor sulfur dioxide (SO 2 ) reductions imposed in Allegheny County's 1-hour SO 2 SIP, reductions in emissions due to electric generating unit (EGU) shutdowns within the PJM Interconnection territory, a comparison of model SO 2 /NO X EGU emissions showing potential excess precursor emissions in the projected year model inventory (see Appendix K of ACHD`s SIP submittal) which could lead to a model overprediction bias, overall emission reductions due to declining local population trends, and additional emission reductions associated with several local control measures. These represent additional analyses that would not be necessary if the modeling projected attainment at a design value below 12.0 μg/m 3 . Also, the commenter does not elaborate on why ACHD's analysis is inadequate, other than to assert that it should be more rigorous. Finally, the commenter did not provide any additional analyses or evidence supporting its assertion that Allegheny County's SIP will not provide for attainment of the PM 2.5 NAAQS by the statutory attainment date (see response to comment 4 regarding current PM 2.5 design values in Allegheny County). In the absence of any contrary evidence, upon EPA's review of the SIP submission including the modeling and additional evidence supporting the predicted attainment by the attainment date, EPA concludes that ACHD's Plan will bring the area into attainment.

The commenter asserts that there is no legal prohibition at the state or county level preventing the state or county from requiring a greater level of emission reductions of direct PM 2.5 or PM 2.5 precursors that would allow the Area to model attainment at a design value below 12.0 μg/m 3 . However, the existence or nonexistence of such a prohibition is not germane to the task at hand, which is determining whether the submitted Plan will result in attainment of the 2012 PM 2.5 NAAQS in Allegheny County by the attainment date. In this case, the attainment modeling projecting that the design value for this Area will meet the NAAQS limit by the attainment date is sufficient to demonstrate that the PM 2.5 NAAQS will be met, in accordance with CAA requirements.

Comment 3: The commenter claims that EPA's 2018 guidance does not allow the use of a Local Area Analysis (LAA) in order to disregard a modeled future ( i.e., attainment year) design value that is higher than the NAAQS. The commenter asserts this is not reasonable because the purpose of the attainment demonstration analysis is to facilitate a control strategy, rather than as a substitute for a forecast of nonattainment. The commenter states that after calculating a future design value of 12.6 μg/m 3 at the Liberty monitor using CAMx modeling, ACHD rejected the result and instead conducted a supplemental LAA, the results of which ACHD instead used to demonstrate that the attainment year design value test was met.

The commenter notes that ACHD acknowledges that the CAMx model, which is EPA's recommended model for PM 2.5 , can address local impacts as well as regional impacts by selecting certain available options within the CAMx model. The commenter also alleges that despite the fact that the CAMx modeling addressed local impacts, ACHD ignored those CAMx-derived local impacts in favor of a separate LAA that used AERMOD to determine those local impacts, which were then fed back into the CAMx model. 18 The commenter argues that this approach is not consistent with EPA's PM 2.5 attainment demonstration guidance. Further, the commenter states that the purpose of a LAA is not to engineer a design value that will just meet the NAAQS, but rather to supplement the results of the attainment test.

The commenter asserts that EPA's 2018 Guidance cites the relative attainment tests described in sections 4.2, 4.4.2 and 4.5 of the guidance as the primary modeling tools used in an attainment demonstration, and that use of a chemical transport grid model on a regional or local scale is the best tool available to judge the impacts of changes in future year emissions on concentrations. The commenter further argues that “while the Agency contemplates other models, the purpose is only to `supplement' the results of the modeled attainment test.”  19 The commenter notes that when EPA's guidance indicates that while use of such models “may be useful as a supplemental analysis . . .” it is speaking to the control strategy rather than to the attainment demonstration itself.

The commenter argues that EPA's guidance does not state that a supplemental dispersion model could be the basis for the actual attainment test, which is the result reached by ACHD. The commenter disagrees (both from a policy and a legal perspective) with ACHD's rationale, which seeks to characterize the sources contributing to levels of fine particulates at the Liberty Monitor, based on statements in ACHD's modeling demonstration that “Source characterization with CAMx was likely not fully representative of some sources near Liberty, specifically for some processes at the USS Clairton Plant,” and that “Refined modeling with AERMOD can more accurately account for many processes with the use of different source types . . .” The commenter argues that a question regarding relative contribution among sources is separate from a question regarding the reliability of modeling results obtained through the use of CAMx.

The commenter argues that ACHD's other rationales for use of a LAA are also invalid, surmising that if CAMx were conservative with its EGU assumptions, that would not make the CAMx modeling flawed. 20 Similarly, the commenter argues that if “some local primary PM 2.5 emissions were overestimated with the inventory used for the CAMx modeling,” that would not be a justification for abandoning the CAMx model. 21 The commenter further argues that suggestions that the spatial grading in the CAMx model is “likely too large to properly simulate localized impacts at Liberty” or that “species are not being properly apportioned by the modeled results” are also not justifiable. 22

The commenter argues that while EPA guidance contemplates that PM 2.5 measurement data from monitors may not be representative of “area-wide” air quality and therefore not suitable for comparison with the standard, this statement is limited to “micro-scale” and “middle-scale” sites. 23 The commenter contends that by preparing a LAA with “supplemental” modeling and then using this to replace the “primary” modeling analysis, ACHD has made a determination that the Liberty Monitor data is unsuitable for comparison with the NAAQS—a determination that is contradicted by the fact that the Liberty Monitor is a core PM 2.5 site (characterized in the monitoring plan as a “neighborhood” site) that is used to determine compliance with NAAQS. 24

The commenter argues that these supporting arguments prevent use of an alternative LAA to ignore the projected 2021 Liberty 12.5 µg/m 3 CAMx modeled design value from the primary analysis in lieu of the lower 12.0 µg/m 3 design value provided by ACHD's LAA.

Response 3: The Community Air Quality Model with Extensions  25 or CAMx, with a 1.33-kilometer (km) grid, projected 2021 model results are summarized in Table 5-4 of Allegheny County's main SIP document. Projected 2021 PM 2.5 design value concentrations for all Allegheny County monitors except for the Liberty Monitor, which was not included in the table, are below the 24-hr and annual PM 2.5 NAAQS. Results from EPA's Model Attainment Test Software (MATS, version 2.6.1) for all of the Allegheny County monitors are listed in Appendix I.1 of Allegheny County's SIP document. Projected 2021 PM 2.5 concentrations are included in Table 3.6 of Appendix I.1 (for annual PM 2.5 NAAQS) and Table 3.7 of Appendix I.1 (for the 24-hour PM 2.5 NAAQS). Liberty's CAMx projected 2021 annual PM 2.5 design value is 12.5 µg/m 3 and its projected 24-hour PM 2.5 design value is 38.6 µg/m 3 , which exceed both the Annual and 24-hour PM 2.5 NAAQS.

Allegheny County's SIP document outlines several reasons why it believes CAMx has overstated projected 2021 PM 2.5 design values at the Liberty Monitor (see page 32 of the main SIP document). These points include over-projections of future SO 2 and NO X in the EGU sector (see EPA's TSD regarding PJM Interconnection, LLC EGU fuel usage and projected year emission differences within the 4-km CAMx domain for additional support on this point), overestimated local primary PM 2.5 emissions, too coarse spatial resolution of CAMx domain (1.33 km) used in the projected 2021 PM 2.5 concentrations, and CAMx's uniform treatment of all emissions as emanating from stack point sources when a significant number of sources at some of the larger US Steel plants are better represented as (fugitive) volume or area source types. Additional discussion of these points can be found in Appendix I.2 and Appendix F.3 of the Allegheny County Plan SIP.

The commenter offers several points to counter Pennsylvania's LAA, but EPA's guidance clearly allows an option to utilize a Gaussian type air-dispersion model (such as AERMOD) to model the primary components of PM 2.5 (organic carbon (OC), elemental carbon (EC) and other primary PM 2.5 (OPP)) and to exclude chemically reactive components of PM 2.5 such as sulfate and nitrate. Per EPA's “Modeling Guidance for Demonstrating Air Quality Goals for Ozone, PM 2.5 and Regional Haze,” dated November 29, 2018, states that, “local influences creating large spatial gradients are likely to consist mostly of primary PM 2.5 (OC, EC, and OPP). These sources may be point sources, or they may be nearby roads or other mobile or area sources.”  26

PM 2.5 monitor concentrations in Allegheny County show there is a significant concentration (spatial) gradient near the Liberty Monitor site (see Allegheny County monitor's current 2017-19 PM 2.5 design value maps contained in the attached technical support document). Liberty's current design values are 16-29% higher on the annual basis and 34-48% higher on the 24-hour basis than the two nearest PM 2.5 monitors (Clairton and North Braddock). Furthermore, Liberty's PM 2.5 speciation breakdown from CAMx shows it has substantially higher values in its OC, EC and OPP components than the other monitors in Allegheny County (see Tables 3.6 and 3.7 in Appendix I.1). Documentation of high OC, EC and OPP is needed to justify using the Gaussian (AERMOD) dispersion model.

EPA's guidance directs that a grid model can be run at very high horizontal resolution (1 or 2 km or finer) or a Gaussian dispersion model can be used. 27 Grid-based models simulate chemical transformation and complex meteorological conditions, while dispersion models are generally more simplistic; being limited to a local-scale, using Gaussian approximations with little or no chemistry. Therefore, while dispersion models may not be an appropriate tool for determining secondary PM 2.5 or ozone concentrations, they work well for use in determining local primary PM 2.5 impacts.

The commenter asserts that the Allegheny County Area PM 2.5 plan's modeling demonstration “abandons” the (1.33 km) CAMx demonstration results. This significantly mischaracterizes ACHD's PM 2.5 SIP modeling demonstration. Allegheny County indicated that it was using the LAA for the Liberty Monitor to remodel the primary (nonreactive) PM 2.5 components of its modeling demonstration, while retaining the chemically reactive PM 2.5 species from CAMx. In essence, it is removing only the nonreactive portion of PM 2.5 generated by CAMx, in accordance with EPA guidance, and replacing values from the nonreactive chemical CAMx species with results from a Gaussian dispersion model (AERMOD). This AERMOD modeling was performed using the same meteorological Weather Research and Forecasting (WRF) model data set via EPA's Mesoscale Model Interface Program (MMIF) that was used in the CAMx modeling.

Allegheny County further justified developing and using its LAA based on improved model spatial resolution and source characterizations available via this pathway. The CAMx model, while relative fine-scaled (approximately 1.33 km grid spacing), is still coarse when considering some of the large primary PM 2.5 emission sources in Allegheny County. In essence, all emissions are inserted into CAMx at a horizontal scale of approximately 1.33 km and within specified vertical layers within CAMx. The CAMx model distributes emissions across the entire grid box in which they are emitted, and because of this artificial dilution the distribution of these emissions in CAMx may be represented in the model as artificially high outside of the source plume and artificially low within the source plume. Such artificial dilution is not problematic for regional scale air quality modeling purposes, but can impact local scale modeling of plumes, as is the case here. ACHD pursued plume-in-grid and AERMOD dispersion modeling to better resolve the emission sources' plume transport and dispersion that were not well resolved with the base CAMx modeling. To alleviate this issue, Allegheny County's CAMx modeling system utilized a plume in grid parameterization that withholds a portion of emissions from being directly released across the entire model grid cell; without plume in grid, CAMx would instantaneously disperse source emissions across a full grid when in reality the plume will spread more slowly from its release point.

Spatial resolution for a Gaussian dispersion model such as AERMOD is not limited in scale; and AERMOD can resolve emissions and processes more finely than the CAMx model. Additionally, AERMOD has multiple source characterizations available while CAMx can only model stack-like point source releases. CAMx treats fugitive emissions using a point source parameterization that does not resolve the emissions in sufficient detail to properly characterize the impacts of important PM 2.5 sources such as fugitive releases from the US Steel sources in this nonattainment area modeling demonstration. Near the Liberty Monitor, there are prominent fugitive emission sources that include coke oven emissions (oven leaks, pushing, charging, quenching and material handling). AERMOD can more finely resolve these fugitive emissions to ensure better placement of these emissions into the modeling domain, resulting in a better prediction of source impacts in the local area near the source and a better estimate of the projected DV. Allegheny County's SIP followed EPA guidance in the development, running and processing of its LAA.

For these reasons, EPA believes Allegheny County is justified in conducting a LAA using a Gaussian dispersion model (AERMOD) to more accurately project the Liberty Monitor's 2021 PM 2.5 design values. Furthermore, Allegheny County has fully documented that it has followed EPA's guidance in executing its LAA.

Comment 4: The commenter asserts that ACHD's 2021 modeling projection is flawed and unreasonable because the selected 2011 base year is unrepresentative of current and potential future meteorological conditions for the area. The commenter contends that the area experienced an unusually low number of atmospheric inversions and higher than normal annual precipitation in 2011. Given the importance of meteorological inputs in modeling, the commenter believes the 2011 meteorological data will result in lower modeled PM 2.5 concentrations for 2021 than modeling using another year's meteorological data. As evidence that 2011 is unrepresentative of current and future meteorological conditions, the commenter cites ACHD's meteorological analysis, which states, “more recent years have recorded above normal average temperatures along with precipitation amounts substantially above normal; therefore, the 2011 base year may well represent these more current conditions.” The commenter contends that while ACHD used the Weather Research and Forecasting (WRF) meteorological model for the Allegheny County domain, stating that is has been determined to produce appropriate representative meteorological conditions to provide meteorological inputs for the air quality modeling, they also cautioned that the accuracy of the modeling is dependent upon the “representativeness of the meteorological dataset.”

The commenter argues that 2011 had a lower than average number of temperature inversions (134 days versus an average of 157 days with inversions from 2008 to 2018), and that the location where temperature inversions are measured (the Pittsburgh International Airport) will have not only fewer temperature inversions in a year than the low-lying valleys that make up most of the nonattainment area, but also that the strength of the inversions will be greater in the valleys. The commenter argues that 2012 meteorological data would be more representative because it had only one more temperature inversion than the average from 2008 to 2018.

The commenter argues that with respect to precipitation, the selected 2011 base year is not representative because Allegheny County experienced 44.24 inches of precipitation that year, which is more than six inches greater than the NWS 30-year mean for the period 1981-2010  28 and was over four-and-one-half inches greater than the average between 1991-2019. The commenter contends that ACHD's choice of 2011 precipitation data is a statistical outlier, exceeded only five years in the most recent thirty. The commenter contends that ACHD is appealing to climate change as a basis for use of unrepresentative meteorological conditions in modeling future year emissions, contrary to EPA guidance. 29 Finally, the commenter contends that ACHD did not follow EPA's guidance by using meteorological inputs for modeling that are conducive to elevated PM 2.5 concentrations. 30

Response 4: Multiple factors are considered in selecting a base year for modeling purposes. ACHD considered meteorology, source emissions data, and monitoring data, and ultimately selected 2011, due to the availability of the 2011 National Emissions Inventory (NEI) as well as the availability of reasonably representative monitoring and meteorological data. In some cases, choice of available actual data eases the burden of adjusting or altering the data to represent other possible base years ( e.g., the availability of 2011 NEI year data lends itself to selection of a 2011 base year without adjustment). Allegheny County provided an overview of its base year selection in several sections of its SIP documentation, namely its Problem Statement (Section 2) of the SIP and the CAMx Model Protocol (Appendix F.2). Estimates of the effects of climate change over the short time periods and small spatial scales ( i.e., for the purpose of attainment of the PM 2.5 NAAQS by the attainment deadline) would be too uncertain to add value.

EPA reviewed Clean Air Council's climatological information for Pittsburgh International Airport (temperature and precipitation) and inversion strength information generated by the Allegheny County Health Department (ventilation rate). A more detailed analysis of Pittsburgh International Airport's 30-year temperature and precipitation as well as Allegheny County's inversion strength summary is included as a separate TSD. EPA will summarize its findings in the next several paragraphs.

EPA analyzed daily temperature and precipitation information collected at the Pittsburgh International Airport weather station over a 30-year period between 1990 to 2019, listed at the Pennsylvania State Climatological website. 31 EPA focused our review on the 2011 base year and the other years that are used to reconstruct the base year design values. All years that include 2011 in the Allegheny County monitoring design values, and that were used in the model attainment test, were considered ( i.e., the periods 2009-11, 2010-12 and 2011-13). While monthly and annual average temperatures and total precipitation values for 2011 do sometimes vary from the 30-year averages, they generally fall within 1 standard deviation of the mean. This means that while temperatures and precipitation totals may differ from their 30-year means, the differences in precipitation and temperature would not be considered statistically significant outliers in the normal distribution (for example several standard deviations from the 30-year means). Additionally, the commenter has not established that there is a strong correlation between the meteorological conditions ( i.e., temperature and precipitation values) at the Pittsburgh International Airport's weather station and the projected PM 2.5 design values for Allegheny County monitors, especially the Liberty Monitor.

EPA also reviewed and updated the inversion strength information that is developed by the Allegheny County Health Department as part of its assessment of daily dispersion characteristics. 32 Allegheny County has identified a correlation with inversions and elevated PM 2.5 concentrations within the county and has included it in several sections of its SIP documentation (problem statement section of the main SIP and more thoroughly discussed in Appendices B and F). EPA's review of Allegheny County's most recent 2019 annual inversion summary report, available on Allegheny County's website, shows that the 2011 model base year has an unusually low number of days without significant inversions and the number of inversion days in 2011 lies outside 1 standard deviation of the 2008-19 average. EPA's analysis also shows the Liberty Monitor's annual quarterly means and 98th percentile 24-hour PM 2.5 concentrations do appear to correlate well with Allegheny County's inversion day totals; PM 2.5 concentrations, both 24-hour and annual, are higher during years with more inversion days. EPA therefore finds merit with the commenter's point that Allegheny County's base year 2011 is unrepresentative of the yearly number of inversions because it has a significantly lower number of inversion days, which could lead the modeling to skew lower in its PM 2.5 concentrations.

While we acknowledge the commenter's concern that Allegheny County's 2011 meteorological data has a lower number of inversion days than other years, EPA disagrees with the commenter's assertion that Allegheny County's selection of 2011 as its base year will lead to projected 2021 PM 2.5 design values that are lower than would otherwise be projected using other years of meteorological data. The selection of a base year with fewer than usual number of inversion days will be mostly muted by how the modeled attainment test is constructed. This is because the PM 2.5 model demonstration uses modeling in a “relative” sense and not in an absolute sense. 33 That is, the predicted model PM 2.5 concentration for the projected year simulation is not directly used for attainment determination purposes, and instead is used to develop species-by-species PM 2.5 relative reduction factors that are applied to a weighted base year design value (for each individual component of PM 2.5 ). The influence of meteorology on model PM 2.5 concentrations is dampened because projections are done using ratios of concentrations based on the same meteorology; the base-year and projection-year meteorology are identical. Furthermore, the weighted design value concept that EPA's guidance utilizes generates a base year (2011) monitor design value that is taken from multiple years of monitoring data. This partially offsets the impacts of selecting one or more years with favorable meteorology that may contribute to lower modeled concentrations.

Furthermore, the commenter's assertion that the selection of a year with an unrepresentative number of inversions (2011) as Allegheny County's base year would lead to an under-estimation of future monitor design values, and therefore attainment, does not hold up when Allegheny County's final projected 2021 design values are compared to the most recent (2017-19) monitor design values. If anything, Allegheny County's modeling results are over-predicting based on current design values. 34 EPA used the modeled base year and future year design values for all of the Allegheny County monitors to calculate linear annual and 24-hour PM 2.5 trend lines, then applied the model calculated change in PM 2.5 concentration per year to generate a projected 2019 design value concentration. 35 Further information on EPA's calculation of the projected 2019 design value calculation is available in the TSD prepared for this action. These values could then be compared with the actual monitor values to see how well Allegheny County's modeling demonstration could reproduce actual monitor design values. In nearly every case, the model projected design values that were higher than the actual monitor design values, suggesting that the model projections are conservative with respect to actual monitor PM 2.5 design values. The most recent design values pulled from EPA's Air Quality System (AQS) indicate that only annual PM 2.5 design values at the Liberty monitor exceed the NAAQS; Liberty's 2017-19 annual design value is 12.4 µg/m 3 .

Based on Allegheny County's modeled yearly emission change (−0.24 µg/m 3 per year), EPA expects Liberty will achieve the PM 2.5 NAAQS by its projected attainment date of 2021. All other PM 2.5 monitors inside Allegheny County currently meet the 2012 PM 2.5 NAAQS, two years before the statutory attainment date. Allegheny County also included an unmonitored area analysis (Appendix I.3) to confirm the PM 2.5 NAAQS will be met across the entire (county) nonattainment area.

To summarize, EPA agrees with the commenter's point that the selected 2011 base year for the PM 2.5 modeling demonstration has a lower than typical number of inversion days, but this fact does not undermine Allegheny County's attainment demonstration, because the model is being used in a relative sense and not an absolute sense. Lower modeled PM 2.5 generation due to meteorology in the base year (fewer inversions) would likely lead to lower modeled relative reduction factors (that are applied to a multi-year-weighted base year design value). Furthermore, Allegheny County's projected PM 2.5 concentrations appear to be overpredicting current PM 2.5 design values (2017-19). All current PM 2.5 design values in Allegheny County meet the 2012 PM 2.5 NAAQS except for the annual PM 2.5 design value at Liberty. Using the Liberty Monitor's projected modeled PM 2.5 reduction rate, this monitor is projected to attain the NAAQS by the area's December 31, 2021 statutory attainment date. The CAMx modeling projects that all other monitors in the area will attain by the 2021 attainment deadline.

Comment 5: The commenter argues that instead of disregarding the CAMx modeled attainment year projected design value of 12.5 μg/m 3 at the Liberty Monitor, ACHD should have focused on strengthening the emission control strategy for U.S. Steel facilities in the Allegheny County PM 2.5 nonattainment area. Instead, the commenter alleges that during its process to propose the attainment demonstration, ACHD claimed that it is not appropriate to require companies to make emissions reductions in the context of preparing attainment demonstrations. The commenter argues that section 110(a)(2) of the CAA directs states to “include enforceable emission limitations and other control measures, or techniques . . . as may be necessary or appropriate to meet the applicable requirements of this chapter.” The commenter contends that federal rules, specifically 40 CFR 51.1009(a)(1), require a state to “identify, adopt, and implement control measures, including control technologies, on sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors,” in the attainment plan control strategy and that 40 CFR 51.1009(a)(2) requires the state to “identify all potential control measures to reduce emissions from all sources of direct PM 2.5 emissions and all sources of emissions of PM 2.5 plan precursors in the nonattainment area.”

In developing a control strategy to model attainment of the PM 2.5 NAAQS, the commenter argues that ACHD should seek emission reductions from the largest sources of fine particulates, which are the three U.S. Steel facilities that are responsible for over half of all point source PM 2.5 emissions in the nonattainment area. 36 Given the proximity of these facilities to the Liberty Monitor in the Mon Valley, which has typically been the violating monitor in the area for the PM 2.5 NAAQS, the commenter argues that the PM 2.5 plan control strategy does not adequately focus on reducing emissions contributions to the Liberty Monitor from the three U.S. Steel facilities in the Mon Valley. The commenter states that there is no change in the annual PM 2.5 emissions at the Edgar Thomson facility in Braddock (633.215 tpy) or the Irvin facility in West Mifflin (71.936 tpy), while the Clairton Coke Works will see a small reduction of 34.63 tpy between the 2011 base year and the 2021 attainment year inventory—a decrease of only about six percent over ten years. 37 The commenter points out that most of the emission reductions achieved at the Clairton Coke Works stem from two coking quench tower replacements (approximately 117.2 tpy)—with little progress in reducing emissions (less than one tpy) from coal handling or other coke manufacturing operations at that facility. The commenter notes that upgrades to Battery C (including tower replacement) resulted in a net increase in emission of 82.3 tpy—with the new Tower C for C Battery being installed in 2012, however, the emission reductions from the shutdown of the old towers it replaced occurred prior to the 2011 base year and are therefore not creditable as a control strategy in the PM 2.5 plan. The control strategy, including reductions at the Clairton Coke Works, for the PM 2.5 plan period of 2011 to 2021 results in a reduction of 35.1 tpy.

The commenter suggests that over six years have passed since the last significant emissions reduction measures were enacted at the U.S. Steel facilities and that additional reductions should be enacted as part of the attainment demonstration. The commenter suggests, among other things, that Clairton undertake projects to reduce emissions from leaking doors, lids, and offtakes from coke oven batteries, pursuant to the EPA National Emission Standards for Hazardous Air Pollutants (NESHAP) for charging, leaks, and bypass stacks at coke oven batteries. 38

Response 5: As explained in EPA's response to Comment 3, ACHD did not “disregard” any modeling results. EPA believes Allegheny County is justified in conducting a LAA using a Gaussian dispersion model (AERMOD) to develop more accurately the Liberty Monitor projected 2021 PM 2.5 design values. Furthermore, Allegheny County has fully documented that it has followed EPA's guidance in executing its LAA.

In a moderate area plan, a state is only obligated to adopt measures adequate to demonstrate attainment of the NAAQS. As explained in EPA's PM Implementation Rule, if a moderate area's attainment demonstration shows attainment by the attainment date “. . . without implementing all reasonably available control measures ( i.e., RACM/RACT and additional reasonable measures), the state would not be required to adopt certain otherwise reasonable measures if the state demonstrates that collectively such measures would not enable the area to attain the standard at least 1 year earlier ( i.e., `advance the attainment date' by one year). The EPA has long applied this particular test to satisfy the statutory provision related to an area demonstrating attainment `as expeditiously as practicable.' The EPA continues to believe that this approach provides an appropriate degree of flexibility to a state to tailor the control strategy in the Plan to the actual attainment needs of a particular PM 2.5 nonattainment area.”  39

ACHD's modeling projects attainment by the attainment date. The RACM analysis indicated that no measures would advance the attainment by 1 year. Therefore, additional controls at Clairton Coke Works or any other facility in the Area are not required to demonstrate attainment.

Comment 6: EPA should require that ACHD better substantiate its RACT evaluation for the U.S. Steel facilities in the Allegheny County Area, in light of more recent innovations in emission control technology. The commenter states that ACHD asserts that there are no feasible controls (or combination thereof) in the Area that would advance the attainment date by one year or more, and that already implemented controls represent reasonably available (or better) control technology. The commenter believes that ACHD has not substantiated the assertion that further reductions are not reasonably available from the three Mon Valley U.S. Steel facilities, which are collectively projected to emit 1,294 tpy of PM 2.5 in 2021 (588.7 tpy from Clairton Coke Works, 633 tpy from Edgar Thomson, and 71.9 tpy from Irwin).

The commenter provides multiple examples of sources at the U.S. Steel facilities where emissions could be reduced, for example reduction of fugitive emissions through improved coke oven door sealing measures at the Clairton Coke Works. The commenter also suggests that ACHD should have considered potential RACT controls involving enclosure of emission sources, where feasible, to fully or partially capture emissions, citing examples of this control in use in Japan. 40 The commenter also cites other additional resources for RACT comparison, including European Union Best Available Techniques for the iron and steel industry  41 and the website of the Institute for Industrial Productivity, which provides a list of coke manufacturing emission control innovations. 42

Response 6: The RACT requirements under subparts 1 and 4 of the CAA are focused on measures needed to attain the NAAQS. A state is not required to impose all potential emission control measures if existing measures are sufficient for the area to attain by the attainment date. EPA's PM Implementation Rule and EPA's General Preamble provide that: (i) RACT has historically been defined as `the lowest emission limit that a source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility'; (ii) RACT generally applies to stationary sources, both stack and fugitive emissions; (iii) major stationary sources ( i.e., sources with potential to emit 100 tons per year or more of direct PM 2.5 or any PM 2.5 precursor) should be the minimum starting point for a state's RACT analysis, but states are recommended to evaluate RACT for smaller stationary sources as needed for attainment and considering the feasibility of controls; and (iv) it is possible that a state could demonstrate that an existing source in an area should not be subject to a control technology especially where such technology is unreasonable in light of the area's attainment needs, or such technology is infeasible. In such a case, it could be concluded that no control technology is `reasonably available,' and RACT for the source could be considered to be no additional control. Thus, the RACT requirement under CAA subpart 4 is primarily focused on stationary sources and forms of emissions control that are technology based. 43

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

The background for this action is discussed in detail in our September 24, 2020 proposal (85 FR 60407). There, we proposed to determine that the Anderson and Freestone Counties and the Titus County nonattainment areas in Texas have attained the 2010 SO 2 NAAQS per the EPA's Clean Data Policy. A Clean Data Determination (CDD) suspends the requirements for an area to submit an attainment demonstration, a reasonable further progress plan, contingency measures, and other planning SIP revisions related to attainment of the 2010 SO 2 NAAQS until the area is formally redesignated or a violation of the NAAQS occurs.

The public comment period for this final action ended on September 24, 2020 and the EPA is responding to all relevant comments submitted in this final action.

The EPA received three comment letters on the proposal. The comments are included in the publicly posted docket associated with this action at https://www.regulations.gov. The EPA did not respond to one comment which failed to raise an issue relevant to this final action. We address the remaining relevant comments below. After careful consideration of all comments, we have determined that we should finalize this action with no changes from the proposed action.

Comment: One commenter expressed support of EPA's determination that the Anderson and Freestone Counties and Titus County areas have attained the 2010 SO 2 NAAQS.

EPA Response: The EPA acknowledges the commenter's support of this final action.

Comment: Sierra Club commented that issuance of this CDD would prevent attainment of the NAAQS as “expeditiously as practicable” in accordance with CAA “Sections 7409(b)(1) and 7502(c)(1).”

EPA Response: The EPA disagrees that issuance of this CDD prevents expeditious attainment of the SO 2 NAAQS. 1 A CDD is the EPA's formal determination that the air quality in a nonattainment area is currently in attainment of the NAAQS. Therefore, by its own terms, a determination that an area is in attainment does not delay or prevent attainment, rather it acknowledges that attainment has already been achieved. We do not agree that not issuing this final CDD would expedite attainment in any way since the areas have already attained the NAAQS.

Comment: Sierra Club asserts that the EPA should not issue a CDD in this case because doing so would thwart permanent attainment of the SO 2 NAAQS in these areas and would jeopardize maintenance. Sierra Club states that the EPA is not authorized to redesignate the two areas to unclassifiable or attainment and should make clear that EPA is not doing so in this action. Sierra Club claims that issuing this CDD would short circuit needed additional air quality planning requirements and delay permanent attainment.

EPA Response: The EPA disagrees that issuing a CDD for these areas would delay permanent attainment or jeopardize maintenance of the SO 2 NAAQS. We also clarify that we are not in this notice redesignating these areas to either unclassifiable or attainment, as is clearly stated in our proposal. 2 While it is sometimes the case that an area's attainment and monitored clean data results from temporary conditions, this is not true for these areas. As noted in the proposal, the EPA's determination of attainment for these areas is due in large part to the fact that the primary sources of SO 2 impacting these areas have permanently shut down. We therefore do not agree that the CDD's suspension of attainment planning requirements for these areas delays permanent attainment or jeopardizes maintenance. We do agree that the CAA's requirements for a redesignation to attainment have not been met; in particular, the state has not submitted a SIP revision under CAA section 107(d)(3)(E)(iv) that meets the requirements of CAA section 175A.

Comment: The commenter states that the EPA has not issued CDD regulations under the SO 2 NAAQS. The commenter claims that the only authority EPA points to for this action are CDD regulations and policy statements governing CDDs for PM and Ozone. The commenter continues that EPA cannot rely on regulations governing other NAAQS, especially where the Clean Air Act contains additional, wholly separate safeguards and mechanisms for monitoring, reporting, complying with, and enforcing those standards.

EPA Response: The EPA disagrees with Sierra Club's comment that the Agency was required to issue implementing regulations providing for a CDD for the SO 2 NAAQS. The EPA's authority to promulgate CDDs arises from our interpretation of the CAA's nonattainment planning provisions, and in this action, we are relying on that statutory interpretation, not regulations implementing other NAAQS. The fact that the Agency has elected to codify that interpretation in some NAAQS implementation rules is irrelevant to our statutory authority for this action. As noted in our proposed rulemaking, “the legal bases set forth in the various guidance documents and regulations establishing the Clean Data Policy for other pollutants are equally pertinent to all NAAQS.” The EPA cites the PM-2.5, 1997 8-hour Ozone, and the 2008 8-hour Ozone regulations as additional evidence of its longstanding, judicially upheld interpretation of the CAA's general NAAQS requirements.

EPA's interpretation of the statutory provisions governing “attainment planning” requirements throughout Part D of the CAA is that those requirements have no meaning for an area that is already attaining the NAAQS. Specifically, EPA's Clean Data Policy is that, where the Agency has made a determination that an area is attaining the standard, states are not obligated to submit: An air quality modeling demonstration showing how an area will achieve attainment of the NAAQS (including reasonably available control measures needed to achieve attainment), a demonstration that the area is making reasonable further progress towards attainment, and contingency measures to be triggered for areas that fail to timely attain. The Agency's interpretation of the Act is that the requirement to submit those attainment planning elements is suspended as long as an area continues to attain the standard. If the Agency makes a subsequent finding rescinding the CDD, the state's obligation to submit those requirements immediately springs back.

EPA has long applied its Clean Data Policy interpretation without codifying it in regulation, and courts have consistently acknowledged and upheld that application. See Sierra Club v. U.S. EPA, 99 F.3d 1551, 1555 (10th Cir. 1996) (upholding application of Clean Data Policy to ozone areas prior to such policy being codified into regulation); Latino Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 2009) (unpublished) (upholding application of Clean Data Policy for PM-10 area despite lack of regulation). In Latino Issues Forum, the court stated, “The Clean Data Policy expressly applies to areas currently attaining ozone and PM-2.5 standards, but there is no similar written regulation governing areas attaining PM-10 standards. It was not unreasonable, however, for the EPA to apply the policy to an area that was currently attaining the PM-10 standards. As the EPA rationally explained, if an area is in compliance with PM-10 standards, then further progress for the purpose of ensuring attainment is not necessary.” 315 Fed. Appx. at 652. The commenter's opinion that implementing the NAAQS in binding regulations is preferable to implementation via guidance does not diminish the EPA's judicially upheld CAA authority to promulgate a CDD for these areas.

The Agency agrees that mechanisms and safeguards for assessing an area's continued attainment of the NAAQS are a key component to the Clean Data Policy because the Agency must be able to determine whether an area continues to attain a NAAQS and whether the CDD's suspension of requirements continues to apply. However, such mechanisms may be reasonably tailored to the area in question. In the case of these two areas, the primary sources of SO 2 which caused the area to be in nonattainment have permanently shut down, and there are no other significant sources of SO 2 in the area. These factual circumstances do not warrant the Agency's requirement of a complex or comprehensive ongoing reporting or monitoring mechanism.

Comment: The commenter states that the EPA's Clean Data Policy is in conflict with the CAA. The plain language of the Act requires the EPA to ensure that the air stays clean and that no mandatory control requirement (requirements of part D) be lifted until a maintenance plan is in place. The commenter claims that the Clean Data Policy itself is arbitrarily inconsistent with the plain language of the CAA.

EPA Response: The EPA does not agree with the commenter that the Clean Data Policy contravenes the letter and purpose of the CAA. Multiple U.S. Courts of Appeals have heard and dismissed challenges to the Clean Data Policy that are similar to those raised by the commenter. NRDC v. EPA, 571 F.3d 1245, 1260-61 (D.C. Cir. 2009); Latino Issues Forum v. U.S. EPA, 315 Fed. Appx. 651, 652 (9th Cir. 2009); Sierra Club v. U.S. EPA, 99 F.3d 1551 (10th Cir. 1996).

In NRDC v. EPA, petitioners argued that the Clean Data Policy's suspension of attainment planning requirements circumvented the plain language of the Act. While the D.C. Circuit dismissed some of the petitioners' challenges because they were not raised in the comment period, the court rejected the remaining “plain language” claim that was properly preserved. It agreed with the Agency that “[t]he Act is . . . ambiguous as to what reductions are required when no further progress toward attainment is necessary—or for that matter, possible.” 571 F.3d at 1260. It held that “EPA reasonably resolved this ambiguity by concluding [reasonable further progress reductions] are simply inapplicable in that circumstance.” Id.

And, similar to the commenter here, the petitioners in NRDC also argued that the Clean Data Policy “violates the mandate that all Part D requirements remain in force until an area has an approved maintenance plan in place,” citing CAA section 175A(c). 571 F.3d at 1260. The D.C. Circuit similarly disagreed, holding that “[t]he Clean Data Policy does not effect a redesignation; an area must still comply with the statutory requirements before it can be redesignated to attainment. Furthermore, Part D . . . remains in force insofar as it applies, but, as we have just seen, the EPA has reasonably concluded the provisions of the Act [regarding reasonable further progress] do not apply to an area that has attained the NAAQS.” Id. at 1260-61.

The EPA has consistently interpreted the Act not to require the submission of planning requirements designed to achieve an area's attainment when the area is factually attaining the NAAQS. See Seitz Memo, 3 PM 2.5 Memo, 70 FR 71612 (Nov. 29, 2005) (Phase 2 ozone regulations), 4 SO 2 Implementation Guidance from 2014, 5 and PM-2.5 Implementation Rule from 2016. 6 That is, the EPA's position is that the Act's requirements that pertain specifically to achieving attainment remain in force for areas that have not yet been redesignated, but they are inapplicable or suspended while the area continues to attain the NAAQS. The two statutory provisions raised by the commenter—CAA section 172(c)(1) (requirement to submit an attainment demonstration and reasonably available control measures) and 172(c)(2) (requirement to submit provisions that require reasonable further progress)—state as follows: “Such plan provisions shall provide for the implementation of all reasonably available control measures . . . and shall provide for attainment of the national primary ambient air quality standards”; and “Such plan provisions shall require reasonable further progress.” These general nonattainment planning provisions found in Subpart 1 are either identical or functionally similar to the provisions at issue in the NRDC, Sierra Club, and Latino Issues Forum cases cited above, and the CAA is ambiguous as to whether a state is still required to submit, for example, a plan that provides for attainment of the NAAQS ( i.e., an attainment demonstration) even if the area is already attaining the NAAQS. Because we think the purpose of the attainment demonstration and other attainment planning provisions has been fulfilled for areas that are currently attaining the NAAQS, we interpret the Act as not requiring submission of those provisions so long as the area continues to attain. The commenter states, without explaining, that “the plain language of the Act requires EPA to ensure the air stays clean and that no mandatory control requirement be lifted until a maintenance plan is in place.” This may be the commenter's conclusion about the purpose of the CAA's requirements, but we do not think the commenter has pointed to any plain language of the Act that imposes a requirement for the EPA to “ensure the air stays clean” nor that “no mandatory control requirement be lifted until a maintenance plan is in place;” but in any case, the Clean Data Policy is not inconsistent with those purposes.

Comment: The commenter claims that issuance of a CDD for the Freestone and Anderson Counties (Big Brown Power Plant) and Titus County(Monticello power plant) areas is inconsistent with the EPA's guidance that determination of attainment will be based on monitoring data (when available) and modeling information for the area, and/or a demonstration that the control strategy in the SIP has been fully implemented. The commenter states that there is no modeling or the required three full years of monitoring data as evidence supporting a determination of attainment in the record and that EPA's only evidence is the relinquishment of permits for the two sources. The commenter also notes that there is no monitor near the Monticello plant. The commenter continues that there is no inventory of other emission sources in the area, or assessment of whether nearby sources, such as the Welsh Power Plant are impairing air quality in the nonattainment areas. The commenter then concludes that the EPA fails to meet the criteria in the CDD policy and does not provide evidence demonstrating that the areas are attaining the NAAQS and will maintain the NAAQS. Additionally, the commentor claims that without monitoring or modeling, the EPA cannot evaluate whether the area remains in attainment or ensure attainment.

EPA Response: We agree that EPA guidance suggests that three years of monitoring data and/or modeling over a three-year period is generally needed to determine attainment. This is particularly the case in areas where sources continue to emit SO 2 emissions whose contribution to ambient air quality can be monitored or modeled. However, as explained in our proposal, for areas designated based on air quality modeling alone and where the source determined to be the primary cause of the violation has been permanently shut down and is no longer emitting, the EPA finds that a streamlined analysis may be more appropriate, rather than requiring three years of monitoring and/or modeling. In this case, the allowable emissions limit for each areas' primary cause of violation has been lowered to zero. The EPA believes that the permanent cessation of SO 2 emissions from these primary sources in conjunction with relevant monitoring, emissions, and modeling data for each area provide sufficient evidence to support the findings of attainment.

We disagree with the commenter's claims that there is no evidence that the areas are attaining the NAAQS. The EPA's determination is supported by relevant modeling, emissions, and monitoring data. As discussed in the proposal action, the primary evidence is that the sources of SO 2 emissions in the nonattainment areas have ceased operations and have permanently shut down. Contrary to the commenter's statements, the EPA did perform an analysis of modeling data to support this clean data determination. 7 While neither the EPA nor Texas performed new modeling, the EPA analyzed the modeling that formed the basis of our initial nonattainment designations. A nonattainment area encompasses the area shown to be in violation of the standard and the principal source or sources that contributes to the violation. Our analysis of the maximum impacts of each area found that Big Brown and Monticello were responsible for almost 100% of the impacts on the maximum ambient concentration and thus, it was appropriate for these sources to be the only sources explicitly modeled. The EPA has no knowledge and Sierra Club provided no evidence of new sources, emissions, or operations that would contribute or cause a violation of the SO 2 NAAQS in either area. Therefore, the EPA determined that rerunning the initial modeling would be redundant since the only change would be to revise the emissions for the modeled sources to zero. Instead, the EPA performed an analysis of that initial modeling to determine how the shutdown of the two power plant sources would impact the modeling results for each area. This analysis zeroed out the power plant emissions in each area leaving only background concentrations which would show each area in attainment of the 2010 SO 2 NAAQS, as discussed at length in the proposed action.

The EPA also analyzed all available monitoring data at the time of the proposal indicating large drops in ambient concentrations due to the cessation of emission from the power plant sources and supporting the determination that the areas are attaining the standard. 8 With respect to the Freestone-Anderson nonattainment area, EPA noted in the proposal that while insufficient monitoring data for the period from 2017-2019 prevented calculation of a valid design value, the extremely low SO 2 concentrations after the 2018 shutdown of Big Brown indicated that a preliminary design value based on the monitored 99th percentile concentrations in the nonattainment area for that period had dropped to 41 ppb, well below the 75 ppb SO 2 NAAQS. At the time of this final action, we now have a full three years of data at the Big Brown monitor for the period 2018-2020; the Big Brown Power Plant ceased operations and emissions in February 2018 so this data primarily consists of monitored air quality without the major source of SO 2 emissions. While the data for 2020 is not yet certified, the preliminary 3-year design value is 17 ppb and the EPA anticipates that there will be no material changes to that design value when data for 2020 is certified.

Regarding the Titus County nonattainment area, the EPA noted in our proposal that the area did not have an installed monitor. However, in addition to the analysis of modeling data, the EPA determined that the monitoring data from the nearby Welsh Facility Monitor (approximately 12 miles from the Titus County Monticello Power Plant) could serve as an indicator of air quality in the Titus county area to support a CDD. The EPA performed a thorough analysis of the impacts the Monticello facility (Titus County) had on the Welsh Monitor before and after shutdown. The proposal indicated that the Welsh Monitor's 2017-2019 three-year design value is 28 ppb, in attainment of the standard. The EPA's analysis showed that there are no other sources in the area between the Monticello and Welsh Facility and that concentrations decrease as you move farther from the Welsh source toward the Titus County nonattainment area which supports the EPA's determination that concentrations in the Titus County nonattainment area are also in attainment. The Welsh monitor data was also evaluated to demonstrate the significant decrease in monitored concentrations post-shutdown when the monitor was downwind of the Monticello facility. Prior to the shutdown, the maximum concentration captured when wind blew from the direction of Monticello to the monitor was 112.7 ppb. After the shutdown, the maximum concentrations from that direction in 2018 and 2019 were 6.8 ppb and 6 ppb respectively. This significant change in maximum concentrations at the Welsh monitor provides additional evidence to support a CDD.

The commenter is incorrect in their claim that there was no inventory of other sources in the area. In our proposed action we reviewed the available emission inventory and stated that “Review of 2017 National Emission Inventory data shows one additional SO 2 emission source, Freestone Energy Center, within the Freestone/Anderson nonattainment area with total annual SO 2 emissions of only 11.7 tons. There are no other SO 2 emission sources in the Titus County nonattainment area.”  9 We also provided a complete inventory of the primary sources causing nonattainment, demonstrating reported emissions from before and after shutdowns.

Our analysis of the modeling, monitoring, and emissions data all support the determination that the area is attaining the standard. The commenter provides no new information or analysis to suggest otherwise. As a result of the permanent shutdown of the primary sources there are no significant SO 2 emission sources in the areas, and no nearby sources that could cause nonattainment in the areas. While the Agency agrees that monitoring and/or modeling can be important for evaluating whether an area continues to attain, it is not universally required, and the assessment of whether an area continues to attain can be tailored to the facts and area in question. Based on the above information, the Agency does not believe a complex or comprehensive ongoing reporting or monitoring mechanism is necessary. The EPA also notes that these areas remain designated nonattainment and will remain so until the CAA's redesignation criteria are satisfied. Therefore, any new major sources seeking to operate within the nonattainment area would be required to complete nonattainment new source review (NNSR) permitting that would evaluate any potential NAAQS impacts. 10 Because the two power plants have had their operating permits revoked, any resumption of operations would require the sources to apply for new permits as new sources. This evidence collectively supports the EPA's determination that the areas are now in attainment and the belief that it is highly unlikely that the areas will violate the standard in the future. Finally, the requirements for redesignation of a nonattainment area to attainment include a determination that the improvement in air quality is due to permanent and enforceable reductions in emissions and a fully approved maintenance plan for the area.

The EPA is taking final action to approve a CDD for the Anderson and Freestone Counties and the Titus County nonattainment areas based on each areas' current attainment of the 2010 SO 2 NAAQS. Pursuant to the EPA's longstanding and judicially upheld interpretation of the CAA and our SO 2 “Clean Data” policy provided for in the memorandum of April 23, 2014 from Steve Page, this action suspends certain required planning SIP revisions related to attainment of the 2010 SO 2 NAAQS on the condition that the area continues to attain the 2010 SO 2 NAAQS. 11 12 Specifically, as discussed in the proposal action (85 FR 60407), the obligation for Texas to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures for failure to attain or make reasonable progress, and other planning SIPs related to attainment of the 2010 SO 2 NAAQS shall be suspended until such time as: (1) The area is redesignated to attainment for the 2010 1-hour Sulfur Dioxide NAAQS, at which time the requirements no longer apply; or (2) EPA determines that the area has violated the 2010 SO 2 NAAQS, at which time the area is again required to submit such plans.

This action, which makes a determination of attainment based on emissions data, air quality planning information, air quality monitoring data, and air quality modeling data, will result in the suspension of certain Federal requirements, and thus will not impose any 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);

• 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, 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 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 does not apply on any Indian reservation land or in any other area where 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 July 13, 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).)

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 52 as follows:

In this interim final rule, the EPA is rescinding the final rule entitled, “Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process” (hereafter “Benefit-Cost Rule”). 1 For all of the reasons stated in this preamble, the EPA has determined that the Benefit-Cost Rule should be rescinded.

This rule does not regulate the conduct or determine the rights of any entity or individual outside the Agency, as this action pertains only to internal EPA practices. However, the Agency recognizes that any entity or individual interested in the EPA's regulations promulgated under the Clean Air Act (CAA) may be interested in this rule. In addition, this rule may be of particular interest to entities and individuals interested in how the EPA conducts and considers benefit-cost analyses (BCA).

The Agency is taking this action pursuant to CAA section 301(a)(1). 2 Section 301(a)(1) provides authority to the Administrator “to prescribe such regulations as are necessary to carry out his functions” under the CAA. As discussed in Section III of this preamble, the EPA has determined that the Benefit-Cost Rule was not “necessary” and lacked a rational basis under CAA section 301(a), and therefore the EPA lacked authority to issue it; we are accordingly rescinding the Rule.

On January 20, 2021, President Biden signed Executive Order 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,”  3 which, among other actions, directed the EPA to immediately review and consider suspending, revising, or rescinding the Benefit-Cost Rule. Accordingly, the EPA has conducted a comprehensive review of both the legal and factual predicates for the Benefit-Cost Rule and, in particular, the need for the regulations that the Agency promulgated in the Benefit-Cost Rule. As a result of this review, the EPA has determined that the changes to Agency practice required by the Benefit-Cost Rule were inadvisable, not needed, and untethered to the CAA, and is therefore rescinding the Rule.

The Benefit-Cost Rule was a procedural rule establishing requirements related to the development and consideration of BCA that the EPA would have been required to undertake when promulgating certain proposed and final regulations under the CAA. The final Benefit-Cost Rule stated, “[t]he purpose of this action is to codify procedural best practices for the preparation, development, presentation, and consideration of BCA in regulatory decision-making under the CAA. This codification will help ensure that the EPA implements its statutory obligations under the CAA, and describes its work in implementing those obligations, in a way that is consistent and transparent.”  4 The final Benefit-Cost Rule was effective upon publication in the Federal Register based on the procedural rule exemption from delayed effective-date requirements in the Administrative Procedure Act (APA). After publication, several parties filed petitions for review of the Benefit-Cost Rule in the U.S. Court of Appeals for the District of Columbia, and these consolidated cases are currently in abeyance. 5

The Benefit-Cost Rule included four independent elements. The first element required the EPA to prepare a BCA for all significant proposed and final regulations under the CAA. The Rule defined a significant regulation to include any proposed or final regulation that was determined to be significant by the Office of Management and Budget (OMB) under E.O. 12866 or was otherwise so designated by the EPA Administrator.

The second element codified specific practices for developing the BCAs required by the Rule. Those practices were drawn largely from, but not identical to, the EPA's Guidelines for Preparing Economic Analyses (hereafter “Economic Guidelines”)  6 and OMB's Circular A-4. 7 Such practices included providing a statement of need, analysis of regulatory options, and appropriate baseline. In addition, the Rule required the risk assessments used to support BCAs to follow certain methods for risk characterization and risk assessment, including a systematic review approach. These methods included a specific process for selecting health benefit endpoints for quantification, including the requirement that a clear causal or likely causal relationship between pollutant exposure and effect had been established; a systematic review process; use of particular models to quantify the concentration-response relationships; and a presentation of results that highlighted uncertainty associated with the estimated benefits. The BCA was also required to include specific methods for assessing uncertainty and an explanation for the methods chosen to analyze uncertainties. To the extent permitted by law, the Benefit-Cost Rule required the EPA to ensure that all information used in the development of the BCA would be publicly available. Any departures from the specified practices required a discussion of the likely effect on the results of the BCA.

The third element required the presentation of the BCA results in the preamble of the rulemakings subject to the Rule. In addition to a summary of the overall BCA results, the Benefit-Cost Rule required preambles to include a separate reporting of impacts that accrue to non-U.S. populations, an additional reporting of the public health and welfare benefits that pertain to the specific objective(s) of the CAA provision(s) under which the rule is promulgated, and a similar presentation of any costs that the CAA provision(s) specifies should be considered.

Finally, the fourth element required the Agency to consider the BCA in promulgating the regulation except where the CAA provision(s) under which the regulation is promulgated prohibit it. The Rule required that the Agency explain in the preamble how the Agency considered the BCA in its decision-making. The preamble indicated the EPA's intention that compliance with the Rule's requirements would be judicially reviewable.

The EPA cited CAA section 301(a)(1) as the sole source of authority for the Benefit-Cost Rule. That provision states, “[t]he Administrator is authorized to prescribe such regulations as are necessary to carry out his functions under this chapter.” The preamble to the Rule explained that the Agency had authority under that CAA provision because the “authority in Section 301(a)(1) extends to internal agency procedures that increase the Agency's ability to provide consistency and transparency to the public in regard to the rulemaking process under the CAA.”  8 The final Rule cited NRDC v. EPA, 22 F.3d 1125, 1148 (D.C. Cir. 1994) for the proposition that “[CAA section 301] is sufficiently broad to allow the promulgation of rules that are necessary and reasonable to effect the purposes of the Act.”  9

After review of the Benefit-Cost Rule and its record, the EPA has concluded that the Rule should be rescinded in its entirety for several reasons. The Agency stated that it had authority to promulgate the Rule under CAA section 301(a) because it asserted that the Rule's additional procedures were necessary to ensure consistency and transparency in CAA rulemakings. 10 However, as discussed in Section III.A of this preamble, the Agency failed to articulate a rational basis for the Rule, and did not explain how the existing CAA rulemaking process had created or was likely to create inconsistent or non-transparent outcomes, i.e., that an actual or theoretical problem existed. We have also determined, after reviewing each element of the Rule, that the additional procedures required under the Rule were not needed, useful, or advisable policy changes. In some cases, as discussed in this Section of the preamble, the new procedures could have hindered the EPA's compliance with the CAA and may not have even furthered the Rule's stated purposes of consistency and transparency. Our rationale for rescinding each of the four independent elements of the Rule is severable and provided below in Sections III.B-E of this preamble. Finally, in Section III.F we note that the existing public process provides ample ability for the public to participate in the EPA's CAA rulemakings.

As an initial matter, the EPA has determined that the Agency failed to provide a rational basis to support the Rule or explain why the Rule was needed or reasonable. The Rule did not provide any record evidence that the guidance and administrative processes already in place presented problems that justified the mandate imposed by the Rule. Indeed, the Rule failed to point to a single example of a rule promulgated under the CAA where problems emerged that would have been avoided had the mandate imposed by the rule been in place. Although the Agency asserted that the Benefit-Cost Rule's purported achievement of greater consistency and transparency in economic analyses across those CAA rulemakings affected by the Rule would “better allow the Agency to fulfill the purpose described in Section 101(b)(1) of the CAA `to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population,' ”  11 the mere assertion of “consistency” or “transparency” in the Rule did not adequately explain what the Agency was trying to accomplish. Furthermore, there was no discussion of how the requirements of the Rule improved the Agency's ability to accomplish the CAA's goals to protect and enhance air quality. 12

Some portions of the Rule suggested that it was intended to combat a theoretical threat. For example, the preamble of the final rule stated, “Without enforceable procedural regulations for BCA, future regulations may be promulgated without consideration of, and public accountability concerning, their costs and benefits. Thus, the EPA has determined that the Final Rule is necessary to ensure that BCA practices are implemented in a consistent fashion prospectively.”  13 The hypothetical threat that future significant CAA regulations would be promulgated without appropriate consideration of costs and benefits and without due public process is highly implausible. The Agency's consideration of all factors it is required to analyze under the specific provisions of the CAA is already subject to public notice and comment processes ( see Section III.F of this preamble) and enforceable judicial review. Moreover, as discussed in Section III.B of this preamble, there has been an unbroken, bipartisan, decades-long commitment from Presidential Administrations to conducting benefit-cost analyses for economically significant regulations issued in the United States. These analyses are rigorous, publicly available, subject to interagency review, and are conducted according to extensive peer-reviewed guidelines from OMB and the EPA. 14

We therefore rescind the Rule on the basis that it failed to articulate a rational basis justifying its promulgation.

In this section, we address the reasons for rescinding the Rule's expansion of BCA to “significant” CAA rulemakings that are not economically significant under E.O. 12866. While BCA is a useful analytic tool for informing regulatory actions, it is a resource-intensive undertaking. The Rule expanded the universe of CAA rulemakings for which the EPA would be required to conduct BCAs without justifying why such expansion was necessary or appropriate. We conclude that existing directives under E.O. 12866 and guidance to conduct BCAs for economically significant rules, while retaining flexibility in analyzing costs, benefits, and other factors for non-economically significant rules, strike the better balance between agency resources and the information provided by additional economic analysis for such rules.

BCA has been part of executive branch rulemaking for decades. Presidents since the 1970s have issued E.O.s directing agencies to conduct analyses of the economic consequences of regulations as part of the rulemaking development process. E.O. 12866, which is still in effect, requires that for all significant regulatory actions, an agency provide “an assessment of the potential costs and benefits of the regulatory action, including an explanation of the manner in which the regulatory action is consistent with a statutory mandate . . .”  15 Some statutes also impose analytical requirements for regulatory actions. For example, the Unfunded Mandates Reform Act of 1995 (UMRA) includes requirements that are similar to the analytical requirements under E.O. 12866. Both E.O. 12866 (and its predecessors) and its implementing guidance, Circular A-4, call for Agencies to focus resources on quantifying benefits and costs using BCA for those regulations that are anticipated to have the largest effects on the economy. Specifically, E.O. 12866 requires a quantification of benefits and costs to the extent feasible for any regulatory action that is “likely to result in a rule that may . . . have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”  16 Rules meeting any of these criteria are labelled as “economically significant.” Similarly, UMRA's analytical requirements pertain to all regulatory actions that include federal mandates “that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.”  17

The EPA estimates the anticipated impacts of its regulatory actions using methods and assumptions that are transparent, consistent with the best available science, and appropriate for the scope of the regulatory action. In performing analysis of regulatory action, the EPA adheres to the executive order requirements pertaining to economic analysis by following the guidance laid out by Circular A-4 and the Economic Guidelines. Per those directives and guidance, the BCAs and other types of analysis supporting significant CAA regulations are subject to internal review and an interagency review process under E.O. 12866 that involves application of the principles and methods defined in Circular A-4. The scientific information and models used within BCA and other analyses supporting regulatory decisions are also subject to EPA's peer review guidance  18 and OMB's guidance to federal agencies on what information is subject to peer review, the selection of appropriate peer reviewers, opportunities for public participation, and related issues. 19

Executive orders and subsequent guidance distinguish between analytical requirements for economically significant rules and other significant rules, both because of the resource intensity of regulatory analysis and because of substantive differences between types of rules. Developing a BCA for an economically significant CAA rule takes considerable Agency resources often spanning a year or more and frequently involves the development of policy-relevant emissions inventories, photochemical air quality modeling, engineering research assessments and analyses, engineering cost assessments, and benefits assessments for human health, climate, visibility, ecological and/or other categories of benefits. These complex and time-consuming analytical undertakings are appropriate for economically significant rules. However, these complex analyses may not always be the best use of Agency resources for smaller rules determined to be significant by OMB under E.O. 12866 because they raise novel legal or policy issues rather than because of the magnitude of their benefits or costs.

The Benefit-Cost Rule significantly expanded the set of rulemakings for which a BCA would have been conducted. As the Rule required BCA for all rules designated as significant under E.O. 12866, this would have included many actions that are not economically significant. For example, between January 2017 and January 2021, the EPA finalized 32 significant regulations under the CAA, including only 7 economically significant regulations. 20 This expansion to conduct BCA for a substantially larger set of CAA rules would have consumed significant EPA staff time and other resources, and the additional time such unwarranted analyses would have taken could have resulted in delays in fulfilling statutory obligations under the CAA. Removal of this requirement allows the Agency to better target analytic resources towards CAA rules that tend have larger economic consequences.

Under E.O. 12866, rules that are designated significant include those that may: “[h]ave an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities”; “[c]reate a serious inconsistency or otherwise interfere with an action taken or planned by another agency”; “[m]aterially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof”; or “[r]aise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive order.” Most significant CAA regulations that are not economically significant are determined to be significant for novel legal or policy reasons. These rules raise issues that may be unrelated to the magnitude of benefits or costs analyzed in BCA. As a result, key policy decisions in the context of these rules are often issues that can be fully addressed through a more targeted or different kind of analysis than a BCA. For significant rules that are not economically significant, other less resource-intensive and time-consuming analyses are prepared to inform and support the rulemaking. For example, instead of conducting a BCA, the EPA may instead examine the emission and cost impacts on particular regulated entities or conduct qualitative analyses for less consequential rules, which may regulate smaller sectors of economy, affect sectors that are not well connected with other parts of the economy, or have smaller effects to the economy overall. In addition, often in these situations data and methods for quantifying and monetizing overall net benefits may not be available. In such cases, less extensive analyses may provide sufficient information for the rulemaking. These analyses may also include elements of a BCA that contribute important information to the policy decision. For example, the Agency routinely prepares economic impact assessments for many rules, including risk and technology reviews for NESHAPs and new source performance standards. As noted above, though, the resources involved in doing a BCA may not be warranted when the focus of regulatory analysis is on novel legal or policy issues or other non-economic factors that make the action significant.

The Benefit-Cost Rule did not provide a justification for its expansion of the number of CAA rules for which the EPA must conduct a BCA, and after reviewing the Rule, we have concluded that we do not think a BCA is necessarily warranted for every CAA rule that is designated as significant under E.O. 12866. The EPA remains committed to the principles outlined in the Economic Guidelines and Circular A-4 when designing and conducting analysis of all significant regulations. As noted, these analyses are the most extensive— i.e., result in a BCA—for economically significant rules as those would most benefit from resource-intensive, complex inquiries into societal costs and benefits and a calculation of net benefits. The Rule did not provide an explanation for why BCAs are required for other CAA rules that OMB has designated “significant” for reasons other than the magnitude of their benefits or costs. Requiring a BCA even when the primary issues of importance are not economic unnecessarily complicates the rulemaking process, potentially diverts the Agency's resources from those aspects of the rule that warrant additional consideration ( i.e., the reasons why the rule was designated significant), and could delay rules needed for protection of public health and the environment. In addition, requiring a BCA for all significant CAA rules could delay BCAs for economically significant rules if staff time and resources are diverted.

The EPA is rescinding the Benefit-Cost Rule's codification of specific practices for the development of BCA in a regulation because this aspect of the Rule could have prevented the EPA from relying on best available science. First, because best practices for conducting a high-quality BCA cannot be established using a set formula, codification of specific practices could prevent situation-specific tailoring of BCA, which is always necessary. Second, best practices evolve over time, and the Benefit-Cost Rule would have locked the EPA into using outdated practices until it could have been amended via rulemaking, which could have delayed incorporation of new scientific information and methods. Third, some of the Rule's “best practice” requirements did not derive from the Economic Guidelines, Circular A-4, or the EPA's Science Advisory Board (SAB) advice. Below we discuss each rationale for rescission in turn.

Although the Benefit-Cost Rule stated that it was based on the requirements of Circular A-4 and the Economic Guidelines, codification of such requirements in regulation is inconsistent with the instructions in those same guidance documents to tailor an analysis to the specific situation. In the 2003 memo to the heads of executive agencies and establishments, Circular A-4 states: “You will find that you cannot conduct a good regulatory analysis according to a formula. Conducting high-quality analysis requires competent professional judgment. Different regulations may call for different emphases in the analysis, depending on the nature and complexity of the regulatory issues and the sensitivity of the benefit and cost estimates to the key assumptions.”  21 The Economic Guidelines similarly acknowledge that there are a wide variety of case-specific issues that arise in conducting a BCA, noting that “[the] most productive and illuminating approaches for particular situations will depend on a variety of case-specific factors and will require professional judgment.”  22 The Economic Guidelines emphasize that they are not intended to be a “rigid blueprint” or a “cookbook,”  23 as doing so would be unproductive and ultimately less helpful to analysts due to the diversity of analyses and situations requiring professional judgement. For example, the Benefit-Cost Rule required quantitative methods to analyze uncertainties in the assessment of costs, changes in air quality, assessment of likely changes in health and welfare endpoints, and the valuation of those changes, without allowing flexibility to tailor this requirement to the size or complexity of the rule being analyzed. In contrast, Circular A-4 recognizes that formal quantitative uncertainty analysis is most important to conduct for the largest rules: “For major rules involving annual economic effects of $1 billion or more, you should present a formal quantitative analysis of the relevant uncertainties about benefits and costs.”  24

In their review of the proposed Benefit-Cost Rule, the SAB commented on the tension created by codifying BCA requirements into regulation. The SAB “urge[d] EPA to consider carefully which aspects of BCA should be included in the final rule versus which aspects should be in guidance, given the case-by-case nature of BCA.”  25 The SAB also highlighted examples where a more flexible approach would be warranted, including recommending that “no `one size fits all' approach to causality be mandated because a variety of approaches may need to be taken.”  26 However, the EPA did not revise the requirements in the proposed Benefit-Cost Rule in response to this advice from SAB. After further review, the EPA has reconsidered the record of the Benefit-Cost Rule, including the public comments and SAB advice, and agrees that a “one size fits all” approach is not an appropriate approach to BCA in general or mandating specific practices for benefits assessment causality in particular.

In addition, the final Benefit-Cost Rule had no exemption for rules without costs or with de minimis costs or benefits, and certain limitations were only caveated by technical considerations rather than practicality or usefulness ( e.g., 40 CFR 83.3(a)(9)(vi) (“When sufficient data exist”); 40 CFR 83.3(a)(10)(iii) (“Where data are sufficient”)). Circular A-4 provides a contrary, more flexible and reasoned approach, stating that “[a]s with other elements of regulatory analysis, you will need to balance thoroughness with the practical limits on your analytical capabilities.”  27 Even the CAA provision (section 317) that requires economic impact assessments for certain proposed regulations under the CAA also requires the EPA to consider practicability, professional judgement, and the time and resources involved in determining the extent of any such assessment. 28 This disconnect between the need to adapt economic analyses to particular circumstances as articulated in Circular A-4 and CAA section 317, and the requirements in the Benefit-Cost Rule provides an additional rationale for rescinding the Benefit-Cost Rule. Existing guidance affords flexibility for the EPA to conduct the type of analysis warranted by a particular rulemaking.

Even the parts of the Benefit-Cost Rule that appeared to be intended to provide flexibility—such as certain caveats for benefits assessment like “to the extent possible”—would have unnecessarily constrained the Agency compared to the recommendations in the Economic Guidelines and Circular A-4. In practice, these caveats demonstrated one of the problems with attempting to codify BCA best practices into regulation, and the advantages of using guidance to conduct BCAs. Under the guidance documents, technical experts exercise their professional judgment to design and conduct analyses tailored to the situation at hand. The Benefit-Cost Rule's restrictive caveats like “to the extent possible” eliminated or at the very least cabined the ability for experts to exercise that judgment by potentially requiring the expert to first demonstrate that compliance with the requirement was not possible, before being able to select more appropriate methods and approaches.

Further, some of the requirements of the Benefit-Cost Rule were very unclear. For example, the requirement in 40 CFR 83.3(a)(9)(iii)(E) (“To the extent possible, the studies or analyses should be: [. . .] reliably distinguish [sic] the presence or absence (or degree of severity) of health outcomes”) did not provide clear direction to the analyst because multiple technical interpretations of the standard in the regulation were reasonable. The lack of clarity in these requirements would have created confusion within the Agency and with the public. The codification of such unclear requirements in regulation would undoubtedly have generated unnecessary and wasteful litigation by creating opportunities to question whether the EPA had strictly followed the letter of the Benefit-Cost Rule, rather than focusing on whether it had conducted scientifically sound analyses.

We conclude that reverting to the use of existing, well-vetted guidance allows the Agency to design BCAs and analyses that demand scientific rigor without forcing the Agency's economists and other scientists into choosing between complying with the Benefit-Cost Rule or exercising professional scientific and economic judgment.

As acknowledged in the Economic Guidelines, environmental policymaking and economic analysis evolves over time and new literature is continually published. 29 For this reason, the EPA adopted an approach described as the “loose-leaf” format  30 in the Economic Guidelines that provides flexibility to account for new information and the growth and development of economic tools over time. Circular A-4 also acknowledges the continual advancement of BCA methods: “New methods may become available in the future. This document is not intended to discourage or inhibit their use, but rather to encourage and stimulate their development.”  31 However, the final Benefit-Cost Rule failed to account for this constantly evolving environment by enshrining specific practices in regulation. If the EPA had retained the Benefit-Cost Rule, the Agency would have been required to amend the Rule before being allowed to incorporate new scientific, including economic, information or update methods that had evolved since the Benefit-Cost Rule was promulgated. Preventing the EPA from keeping up with evolving best practices and requiring the EPA to rely on potentially outdated methods until a revised rulemaking is completed is inconsistent with the CAA direction to make decisions based on the best scientific data available. 32

By freezing and defining what constituted “best practices” at a single point in time, the Benefit-Cost Rule elevated “consistency” over the exercise of sound judgment based on latest scientific knowledge and, given that revision by rulemaking would take a long time, would have slowed or discouraged progress in the development and use of newer and better methods. This risk was particularly notable for the highly prescriptive requirements in the Benefit-Cost Rule for benefits assessment and uncertainty analysis (as discussed below in this Section of the preamble). In contrast, since guidance is inherently less prescriptive than regulation, it can be more flexible in allowing agencies to keep up with the evolution of best practices to be used to support CAA regulations. 33 As further evidence of how best practices change over time, we note that the Economic Guidelines are in the process of being updated as part of a periodic review undertaken by the EPA. 34 In addition, President Biden issued a memorandum on January 20, 2021, on Modernizing Regulatory Review, 35 which directs OMB in consultation with other agencies to recommend revisions to Circular A-4. Therefore, the Benefit-Cost Rule, because it froze the requirement to use certain practices, may not have been consistent with the forthcoming updates to the Economic Guidelines or Circular A-4.

While the Benefit-Cost Rule purported to promote consistency, after further consideration we have concluded that it instead would have promoted inconsistency. Best practices for preparing BCA evolve and improve over time as scientific learning advances. The Benefit-Cost Rule sought, by codifying a discrete set of specific requirements as “best practices,” to lock in those specific practices and allow judicial review to enforce them until a future rulemaking was undertaken to update them. Because these requirements applied only to significant CAA rules, they would not have affected how the EPA conducts BCA for economically significant rules issued under other statutes. For these rules under other statutes, the EPA would have been able to conduct BCA by using the latest state-of-the-art methods, without waiting for updates to the Benefit-Cost Rule. The EPA has determined, consistent with the approach in the Economic Guidelines and Circular A-4, that a more flexible approach than the Benefit-Cost Rule is warranted, and thus the Rule should be rescinded in its entirety.

Implementation of some of the specific requirements of the Benefit-Cost Rule would also undermine the quality of the EPA's BCA for CAA regulations. Some of the requirements for health benefits assessment promoted particular types of data in a way that could have conflicted with the use of best scientific practices. As discussed in Sections III.C.1 and 2 of this preamble, the codification of BCA practices in regulation as opposed to guidance presents significant disadvantages; this problem is only compounded where there are requirements in the regulation that are scientifically problematic. While the EPA is not asserting that every requirement in the Benefit-Cost Rule conflicted with sound scientific or economic best practices, the problematic elements were significant and difficult to address in piecemeal fashion. These substantive problems provide further support that the Rule as a whole should be rescinded.

For example, the requirement in 40 CFR 83.3(a)(9)(iii)(C) to “employ or design an analysis that adequately addresses relevant sources of potential critical confounding” could have led to inferior selection of health studies or the potential exclusion of some health endpoints altogether. Specifically, this requirement could prioritize the selection of studies that attempt to control for confounding, 36 inappropriately or to an unwarranted extent, when scientific evidence demonstrates that a particular confounder is not important ( e.g., not well correlated with the health outcome) or if the model incorporating a particular confounder yields implausible or unstable statistical results. In addition, the SAB advised that the proposed requirement regarding consideration of confounders was “vague and would be difficult to implement” since “there is ample room for disagreement over which confounders are appropriate, or how to evaluate an actual confounding effect.”  37

As another example, the requirement in 40 CFR 83.3(a)(9)(iii)(D) to “consider how exposure is measured, particularly those that provide measurements at the level of the individual and that provide actual measurements of exposure” introduced a bias against some higher quality methods. Specifically, this requirement suggested that individual-level or “actual” measurements are more highly valued than other established and accepted methods of estimating exposure. Though individual measures of exposure would be preferred, no population-level study has yet gathered these data due in part to the resources that would be required. Rather, most epidemiologic studies of air pollution use measures or models of concentrations in ambient air as a surrogate for human exposure. Indeed, measured concentrations from air quality monitors may yield less accurate estimates of exposure among populations living further from a monitor compared to modeled exposure. In addition, codifying a preference for measured concentrations could discourage consideration of studies that combine both measured and modeled concentrations. For example, studies that estimate air quality and human exposure using a combination of approaches ( e.g., remote sensing techniques and/or models, ground-truthed by monitoring data) are preferred over those that use a single method ( e.g., measured concentrations), because the combination of multiple estimation methods can reduce statistical bias and generate higher-resolution exposure estimates than data from a single monitor. 38

Further, the requirement in 40 CFR 83.3(a)(9)(i)(A) that the process of selecting human health benefit endpoints would be based upon scientific evidence that indicates there is “a clear causal or likely causal relationship between pollutant exposure and effect” did not derive from the Economic Guidelines, Circular A-4, or SAB advice. In fact, the SAB criticized the requirement that benefits analyses for health endpoints should be limited to those with a “causal or likely causal” relationship. Specifically, the SAB recommended the Rule allow for inclusion of effects for which the relationship may be less certain ( e.g., “possibly causal”) if the impact would be substantial, as a way to more completely account for uncertainties. 39 The Benefit-Cost Rule did not address the SAB's recommendation.

The Benefit-Cost Rule in 40 CFR 83.3 also imposed disparate requirements on the consideration of costs and benefits that would have led to arbitrary and distorted BCAs. The Rule set a high bar for which benefits to include and how they should be calculated (scientific evidence indicates there is a clear causal or likely to be causal relationship between pollutant exposure and effect (40 CFR 83.3(a)(9)(i)(a)), a preference for “actual” measurements (40 CFR 83.3(a)(9)(iii)(D)), potentially prioritizing confounding controls over other considerations 40 CFR 83.3(a)(9)(iii)(C), etc.). By contrast, the Rule contained no requirements specific to how costs were to be calculated ( see generally 40 CFR 83.3). The EPA merely discussed in the preamble that certain approaches could generate “relatively precise” and “reasonable” estimates of a proposed regulation's compliance costs. The Benefit-Cost Rule did not justify this disparity between setting highly specific and very stringent requirements for assessing benefits and substantially less stringent requirements for assessing costs. In addition, this requirement in the Benefit-Cost Rule only applied to health benefits, which created an inconsistency with other categories of benefits ( e.g., visibility, ecological effects) that did not have this limitation. This could have led to misleading BCAs in future significant CAA rules. The Rule's inconsistencies with sound economic and scientific principles warrant the Rule's rescission.

We discuss in this section our reasons for rescinding the Rule's requirements in 40 CFR 83.4(a) and (b) to separately and selectively present certain subsets of benefits . The EPA already disaggregates benefit and cost estimates in BCAs, so these presentational requirements do not provide additional transparency. 40 Moreover, the presentational requirements seemingly invited partial net benefit calculations that are contrary to economic best practice.

Both the Economic Guidelines and Circular A-4 explain what BCA is and its purpose in regulatory analysis. BCAs assess economic efficiency by asking whether it is theoretically possible for those who gain from the policy to fully compensate those who lose and remain better off. When the answer to this question is `yes,' then net benefits are positive, and the policy is a movement toward economic efficiency. The Economic Guidelines state that a BCA “evaluates the favorable effects of policy actions and the associated opportunity costs of those actions” and “the calculation of net benefits helps ascertain the economic efficiency of a regulation.”  41 Circular A-4 further clarifies that “[w]here all benefits and costs can be quantified and expressed in monetary units, benefit-cost analysis provides decision makers with a clear indication of the most efficient alternative, that is, the alternative that generates the largest net benefits to society (ignoring distributional effects). This is useful information for decision makers and the public to receive, even when economic efficiency is not the only or the overriding public policy objective.”  42

Both guidance documents are clear that net benefits are calculated by subtracting total costs from total benefits, regardless of whether the benefits and costs arise from intended or unintended consequences of the regulation. As Circular A-4 notes, the “analysis should look beyond the direct benefits and direct costs of your rulemaking and consider any important ancillary benefits and countervailing risks,” where an ancillary benefit is defined as a “favorable impact of the rule that is typically unrelated or secondary to the statutory purpose of the rulemaking.”  43 This is particularly important in instances when unintended effects are important enough to potentially change the rank ordering of the regulatory options considered in the analysis or to potentially generate a superior regulatory option with strong ancillary benefits and fewer countervailing risks.

The Benefit-Cost Rule required the EPA to present in the preamble a summary of both the overall BCA results as well as an additional reporting of subsets of the total benefits of the rule. First, the Rule required a presentation of only the benefits “that pertain to the specific objective (or objectives, as the case may be) of the CAA provision or provisions under which the significant regulation is promulgated.”  44 Second, the Rule required that if any benefits and costs accrue to non-U.S. populations, they must be reported separately to the extent possible. 45 These presentational requirements are duplicative of existing information provided because the EPA already presents these types of benefits in disaggregated form in Regulatory Impact Analyses (RIAs), so there was no lack of transparency with respect to these subsets of benefits. The additional requirement to separately present and articulate these benefits was problematic because it could have resulted in, and seemingly invited, misleading net benefit calculations that excluded impacts that were due to the regulation. For example, in the final Affordable Clean Energy Rule, the EPA provided complete net benefit calculations consistent with economic best practices, but also used calculations of segregated benefits—like those required under the Benefit-Cost Rule—to create tables of “net” benefit calculations ( i.e., benefits minus costs) that accounted for only a subset of the rule's benefits. 46 In addition, requiring a separate presentation that excluded certain categories of benefits that Circular A-4 and the Economic Guidelines indicate should be considered could call into question, without justification, the significance of those benefits. Such an exclusion is inconsistent with the purpose of BCA and thus would have promoted arbitrary rather than informed decision-making.

In this section, we address the Rule's requirement that the Agency “consider” the required BCAs in decision making and the Rule's stated intention to make compliance with the Rule enforceable by outside parties through judicial review. As a preliminary matter, we did not intend these aspects of the Rule to be read as creating a substantive cause of action, and we do not think the record for the Benefit-Cost Rule supports such a position. Moreover, after reviewing the record for the Benefit-Cost Rule, we conclude that the Rule's failure to identify the CAA provisions to which it would apply, much less its lack of any explanation of how to reconcile the Rule's requirement to “consider” the BCA in the context of the various CAA provisions, as discussed in Sections E.1 and E.2 of this preamble, support rescission of the Rule. First, for CAA provisions where the EPA is prohibited from considering costs, the Rule's requirement to prepare a BCA and include it in the judicially reviewable rulemaking record solely for the purpose of providing “additional information” is not necessary to effect any purpose under the Act. Second, for CAA provisions that do permit some consideration of cost or other economic factors, the Rule did not explain why BCA is an appropriate way to consider cost, particularly given the existence of areas in which Congress required the EPA to regulate despite anticipating that few, if any, benefits could be monetized. Because the EPA would essentially have to give the newly required BCA little to no weight in such situations, we fail to see why the added procedure was a necessary one to carry out the statute. To the contrary, we conclude that the traditional, pre-existing manner of interpreting and implementing the CAA is the better way to interpret and apply the CAA.

Addressing the preliminary question noted above, to the extent that these aspects of the Benefit-Cost Rule could be read as requiring more than just an additional procedural step, such a reading would be impermissible. The EPA's general-rulemaking authority under CAA section 301(a) is broad, but the authority “to issue ancillary regulations is not open-ended, particularly when there is statutory language on point.”  47 Given the complexity of the CAA, including the numerous provisions addressing the authority of the Agency to consider costs, the EPA could not have issued a substantive rule along the lines of the Benefit-Cost Rule under our general rulemaking authority without substantial, additional analysis and explanation addressing the specific requirements of the Act. The EPA acknowledged as much in the preamble to the Benefit-Cost Rule in discussing our view that the Agency's compliance with what we characterized as “these procedural requirements” would be subject to judicial review but admitting also that we had not based the Rule on any interpretation of the substantive provisions of the CAA. 48 Notwithstanding this discussion, to the extent that some may have viewed the Benefit-Cost Rule as creating a new avenue for substantive judicial review of future CAA actions, which was not intended, we do not agree that the Benefit-Cost Rule and its record could support such a view, and this supports rescinding the Rule. At most, we believe that the procedural requirements in the Benefit-Cost Rule—similar to an Agency's failure to provide adequate notice under the APA or CAA 307(d)—could only have provided a basis for remanding a rule to the Agency to cure process flaws. Rescinding the Rule will avoid misunderstanding that the Rule created a substantive cause of action and will avoid unnecessary litigation contending that the Rule had substantive impacts that were not intended and not supported.

This view is consistent with provisions in the CAA indicating that Congress did not intend that additional analytical requirements such as those at issue in the Benefit-Cost Rule should play a substantive role in determining compliance with statutorily mandated agency action. In CAA section 317, Congress created a process by which it required the EPA to prepare an economic impact assessment prior to issuing proposed rulemakings for seven types of regulations under the Act. 49 However, Congress was careful to point out that the specific statutory mandates underlying the regulations are controlling and that failure to comply with the additional economic impact assessment requirements is not a basis upon which review can be obtained for the applicable rules. 50 Congress even explicitly stated that where a statutory provision required the Agency to consider costs, “the adequacy or inadequacy of any assessment required under [CAA section 317] may be taken into consideration, but shall not be treated for purposes of judicial review of any such provision as conclusive with respect to compliance or noncompliance with the requirement of such provision to take cost into account.” CAA section 317(g). If Congress did not want its own statutorily mandated economic impact assessments to provide a basis to invalidate CAA rules, then it is unlikely Congress would have granted the EPA authority to create a new substantive cause of action based on failure to comply with a procedural rule establishing BCA requirements.

The Benefit-Cost Rule's requirement to prepare a BCA applied to all significant CAA rulemakings, including those promulgated under CAA provisions that prohibit consideration of cost or other economic factors. The only waiver from the Rule's requirements for these rulemakings was that the BCA need not be “considered” in such cases where “the provision or provisions . . . prohibit the consideration of the BCA.”  51 In the final rule, the Agency reasoned that “while certain statutory provisions may prohibit reliance on BCA or other methods of cost consideration in decision-making, such provisions do not preclude the Agency from providing additional information regarding the impacts of a proposed or final rule to the public. For example, while the CAA prohibits the EPA from considering cost when establishing or revising requisite NAAQS for certain criteria pollutants, the EPA nonetheless provides RIAs to the public for these rulemakings.”  52 The desire to provide “additional information” for those rules where Congress prohibited the EPA from considering cost does not on its face fall within CAA section 301(a)'s authority to promulgate regulations as are necessary to carry out the statute. We therefore find the Rule's application to CAA provisions that prohibit the consideration of cost to be inconsistent with the Act.

To support the argument for broad application of the Benefit-Cost Rule, the EPA asserted equivalency between the Benefit-Cost Rule's requirements and the EPA's historic preparations of RIAs for rulemakings under which it was prohibited from considering costs, such as setting the NAAQS. We have concluded, however, that even where equivalent, the EPA's past practices do not provide support for a conclusion that such practices are necessary to carry out the Act. In addition, the new procedures promulgated under the Rule made two key changes to the existing process under which the EPA prepared RIAs for economically significant rulemakings. The Benefit-Cost Rule required that the EPA develop a BCA meeting very specific requirements (as opposed to one tailored to the rule at issue, as permissible under existing guidance, see Section III.C of this preamble), and perhaps more importantly, it required the EPA to include the results of the BCA and how the information was considered in the preambles to forthcoming proposed and final rules promulgated under the CAA. That is, the BCA mandated by the Rule was explicitly required to be part of the Agency's record for decision-making. In addition, the Benefit-Cost Rule's preamble stated the Agency's compliance with the Rule's requirements would be subject to judicial review. See the preamble to the final rule (“[T]he Final Rule is binding upon the Agency for significant CAA regulations, and . . . EPA's compliance is subject to judicial review in challenges to such rulemakings.”). 53 These changes are in stark contrast to the existing process for interagency review for rules such as the NAAQS, where the EPA does not include the RIA as part of its administrative record for the rulemaking, nor is compliance with the E.O. subject to judicial review. 54

The Benefit-Cost Rule's proffered explanations for why the Rule was necessary are expressly tied, in part, to these two changes. The Rule noted that one motivation for requiring BCAs was that “courts have noted the usefulness of BCA and have utilized the information provided therein to inform their analysis when reviewing agency-created BCAs and/or RIAs as evidence that an agency ignored alternatives or acted in an arbitrary or capricious manner when taking action.”  55 Similarly, the EPA articulated that it viewed enforceability of its new requirements as critical to its argument that the Rule was necessary. In the Response to Comments document, the Agency stated, “EPA has not had procedural enforceable regulations in place to ensure consistency in its past BCA practices. To the extent that commenters assert that EPA's past practice has been consistent and transparent, it is not due to an enforceable standardized approach that would ensure such a result. . . . Without enforceable procedural regulations for BCA, future regulations may be promulgated without consideration of, and public accountability concerning, their costs and benefits. Thus, the EPA has determined that the Final Rule is necessary to ensure that BCA practices are implemented in a consistent fashion prospectively.”  56

But neither of these reasons articulating the necessity of the Rule can extend to regulations promulgated under CAA provisions where the Agency is prohibited from considering cost or economic factors. Where Congress did not intend the EPA to consider cost, there would be no purpose for the EPA to incorporate a BCA into its rulemaking record, and it would be contrary to the CAA to subject a Congressionally-required rule to review based on failure to adhere to an agency-created mandate to prepare a BCA where the statute precludes consideration of cost.

The CAA contains a vast array of instructions about whether and how the EPA may consider benefits, costs, or other economic factors, and discerning Congress' intent with respect to those instructions requires analysis of statutory context. 57 Rather than grapple with any of the statutory provisions at issue, the Benefit-Cost Rule assumed that because Congress provided authority for the EPA to consider costs in making some regulatory decisions, and because courts have concluded that BCA may be an appropriate way for agencies to account for costs in some contexts, it was “necessary” and reasonable that the EPA should require consideration of BCA in all significant CAA rules where it was not precluded from doing so. However, this faulty logic does not constitute an adequate justification, and the EPA has concluded that the Rule's approach is inferior to the existing process of interpreting and applying the relevant CAA provisions.

Under the CAA, Congress granted the EPA broad powers to act on behalf of protecting and enhancing the nation's air resources. The Act specifically directs the EPA to, among other things, set NAAQS, establish emission standards for both stationary and mobile sources of air pollution, reduce emissions of nearly 200 specified hazardous air pollutants, regulate fuels and fuel additives, and issue permits and enforce the Act's emission limits. In these various authorities, Congress established a wide range of direction with respect to the EPA's consideration of benefits, costs, or other economic factors. 58 With respect to costs, the statutory text in some provisions explicitly indicates that the EPA should incorporate a consideration of cost or economic factors. 59 Other authorities suggest by implication that the EPA should or may consider costs, using language directing the EPA to establish standards that are “practicable,” “reasonably achievable,” or “feasible.”  60 And in many if not all of the CAA authorities, Congress made clear that the EPA was to give strong, if not overriding, consideration to the “benefits” of its regulations— i.e., beneficial effects on public health, welfare, risk prevention, the environment, safety, and visibility, to name but a few.

In the Benefit-Cost Rule, the EPA presumed that its requirements were permissible because it “was not aware of any impediment to this rulemaking.”  61 But the Rule failed to identify, much less discuss, any statutory provision governing the rules to which its requirements would have applied. The EPA is bound to look to the statutory language and context of a particular provision, and in some cases consider the factual circumstances of the issue the agency is attempting to address in determining whether and how the EPA may consider benefits, costs, and other factors. 62

The Benefit-Cost Rule's failure to examine the statutory provisions governing the regulations it would impact would have resulted in cases where the Rule required “consideration” of BCAs where it may not have been feasible to even produce a meaningful or useful BCA. Even for those CAA provisions where cost may be considered, BCA is not necessarily useful, and may even be misleading. As Circular A-4 has noted, “[w]here all benefits and costs can be quantified and expressed as monetary units, benefit-cost analysis provides decision makers with a clear indication of the most efficient alternative.”  63 Circular A-4 goes on to caution, however, that it is not always possible to quantify benefits (or costs), and “[w]hen important benefits and costs cannot be expressed in monetary units, BCA is less useful, and it can even be misleading, because the calculation of net benefits in such cases does not provide a full evaluation of all relevant benefits and costs.”  64

This caution is relevant as there are a number of authorities under the CAA authorizing or requiring the EPA to regulate pollutants where, in many cases, important benefits cannot readily be monetized. For example, in CAA section 112(d)(2), the Act prescribes that the EPA establish emission standards based on maximum achievable control technology or “MACT” for new and existing sources of hazardous air pollutants. Section 112 authorizes the EPA to consider costs at some steps in this process but not at the first step of establishing the minimum stringency emission limit, because Congress recognized the dangerous nature of hazardous and toxic air pollutants. Where the EPA can consider cost in this context ( e.g., requiring more stringent emission limits), it has not historically used BCA to establish appropriate emission standards. We note that as methods do not yet exist that can reliably quantify the value of changes in many HAP-related risks, a BCA would include only a qualitative assessment of the benefits of HAP reductions. In other words, while we know that there are important health outcomes associated with exposure to HAP that include cancer, birth defects, reproductive effects, and neurodevelopmental defects, we currently lack the ability to precisely quantify and fully monetize all of the benefits of a change in the MACT standard. In implementing section 112, the EPA has therefore historically employed other types of analyses, such as examining the cost per ton of emissions removed. 65

Perhaps recognizing the varied landscape presented by the CAA's provisions, the Benefit-Cost Rule ultimately only required that its BCA be “considered,” but prescribed no further instruction or requirement as to how the Agency should consider it. 66 The Agency had taken comment on the possibility of requiring a more substantive outcome, soliciting input “on approaches for how the results of the BCA could be weighed in future CAA regulatory decisions,” including “whether and under what circumstances the EPA could or should determine that a future significant CAA regulation be promulgated only when the benefits of the intended action justify its costs” or “only when monetized benefits exceed the costs of the action.”  67 Because the final Benefit-Cost Rule did not strictly direct how the Agency should weigh BCA in its future CAA rulemakings, the EPA could have formally complied with the Rule while giving the BCA little to no weight in its decision making. The need to adhere to the particular statutory language and context governing the significant CAA rulemaking at issue, including examples like the one cited above, would make that outcome plausible, if not likely. By appropriately allowing the EPA to determine how best to consider benefits, costs, and other factors in the context of a particular statutory provision, the Benefit-Cost Rule conceded that it may serve no purpose in helping the EPA to effectuate the purposes of the Act. At the same time, by acknowledging that the Agency's choice of analysis depends on what each CAA provision requires or permits, 68 the Benefit-Cost Rule refuted its claim that the Rule provided “consistency.”

Given the exacting demands of discerning Congressional intent in any given CAA provision, we conclude that returning to implementation of the CAA using the traditional process of statutory interpretation provides advantages over the Benefit-Cost Rule's presumption that consideration of BCA is “necessary” and reasonable to promulgate all significant CAA regulations regardless of statutory text and context. Under its pre-existing process, the Agency first looks to the text of the relevant statutory provision to determine whether Congress intended or permitted the Agency to consider cost or economic factors. If yes, the Agency further looks to the statutory context, legislative history, and the nature of the program or environmental problem to be addressed to determine a reasonable manner of considering cost. We conclude that this process of interpreting and discerning Congress' intent, subject to public notice and comment and judicial review, is superior to the Benefit-Cost Rule's presumptive imposition to consider BCA followed by a subsequent attempt to reconcile with the statutory text.

In the Benefit-Cost Rule the EPA also failed to establish that its requirements were needed with respect to process, in light of the existing procedures under the APA and, where applicable, CAA section 307(d). These requirements are more than adequate to accomplish the general good government goals of “consistency” and “transparency,” and the Benefit-Cost Rule failed to provide any support for its contention that the pre-existing process was deficient so as to warrant the Rule's new procedures.

When promulgating regulations under the CAA such as those targeted by the Benefit-Cost Rule, the EPA is already required by statute to provide “[g]eneral notice of proposed rulemaking” in “the Federal Register ,” including the legal authority under which the rule is proposed and the terms or substance of the proposed rule. 69 Moreover, the EPA must give interested persons an opportunity to participate in the rulemaking through submission of written data, views, or arguments. 70 For many rules promulgated under the CAA, including those designated by the Administrator, CAA section 307(d) further requires the establishment of a rulemaking docket, 71 and specifies that the notice of proposed rulemaking must include a summary of “the factual data on which the proposed rule is based,”  72 “the methodology used in obtaining the data and in analyzing the data,”  73 and “the major interpretations and policy considerations underlying the proposed rule.”  74 CAA section 307(d)(2) also requires the EPA to “set forth and summarize and provide a reference to any pertinent findings, recommendations, and comments by the Scientific Review Committee . . . and the National Academy of Sciences, and, if the proposal differs in any important respect from any of these recommendations, an explanation of the reasons for such differences.”

The EPA must respond to all significant comments it receives on its proposed regulations before issuing a final rule, including contentions from stakeholders that the EPA has failed to reasonably consider the costs or benefits of an action. See Home Box Office, Inc. v. FCC, 567 F.2d 9, 35-36 (D.C. Cir. 1977) (“[t]he opportunity to comment is meaningless unless the agency responds to significant points raised by the public); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971) (requiring reviewing court to assure itself that all relevant factors have been considered by the agency). Such comments can encompass arguments that by failing to conduct a BCA, the EPA has contravened the CAA or complaints that its data or analysis is flawed or arbitrary. Where the EPA promulgates a final CAA section 307(d) rule, the EPA is required to provide “a response to each of the significant comments, criticisms, and new data submitted in written or oral presentations during the comment period.”  75 The EPA is forbidden from promulgating a rule based on “any information or data which has not been placed in the docket as of the date of . . . promulgation.”  76

While “agencies should be free to fashion their own rules of procedure,”  77 and “are free to grant additional procedural rights in the exercise of their discretion,”  78 where Congress so carefully specified the procedural requirements for CAA rules (at least those enumerated in section 307(d)), we question the wisdom of adding to those procedures an additional BCA requirement, particularly where the EPA did not show that statutory procedures were deficient. 79

The Benefit-Cost Rule did not explain how the pre-existing ample public process was inadequate to accomplish the rule's stated goals of promoting consistency and transparency. The existing process already requires the EPA to present in a proposed notice published in the Federal Register its relevant interpretations of a particular statutory provision regarding whether and how it considers costs and benefits. The existing process already permits interested parties to promote during the public comment period a view that weighing the results of a BCA is a valuable or appropriate way for the EPA to consider costs, benefits, or other factors specified in the provision of the Act under which a rule is promulgated; any views asserting that the agency has not been transparent in providing factual data, methodologies, legal interpretations, and policy considerations; or any views asserting that the agency has been inconsistent in its interpretations. The existing process, under CAA section 307(b), already subjects any failure on the EPA's part to grapple with significant comments to review by the U.S. Courts of Appeals. 80

Therefore, the EPA has determined that the existing process already provides sufficient consistency and transparency.

In this action, the EPA is issuing an interim final rule to rescind the Benefit-Cost Rule in its entirety and requesting comment on that action. We intend to follow this interim final rule with a final rule that responds to comments received during this public comment period, if any, and reflects any accompanying changes to the Agency's approach. This interim final rule will stay in place until it is replaced by the final rule that responds to any public comments and makes any warranted changes. This interim final rule will become effective 30 days after publication.

Like the Benefit-Cost Rule that this rule rescinds, this interim final rule is a rule of agency organization, procedure, or practice. This procedural rule does not regulate any party outside of the EPA but instead exclusively governs the EPA's internal process for conducting benefit-cost analysis. This interim final rule does not regulate the rights and obligations of any party outside of the EPA nor does it have any legal force and effect on them. Any incidental impacts on voluntary behavior outside of the EPA do not render this a substantive rule.

While procedural rules are exempt from the APA's notice and public comment requirements, see 5 U.S.C. 553(b)(A), the EPA has nonetheless decided to voluntarily seek post-promulgation public comment on this procedural interim final rule and follow it with a final rule because the information and opinions the public may provide could inform the Agency's decision-making. 81 By electing to proceed with an interim final rule rather than a final rule, the EPA is acting consistently with Administrative Conference of the United States Recommendation 95-4, which recommends that agencies consider providing post-promulgation notice and comment even where an exemption is justified, be it a substantive rule relying on the “good cause” exception to notice and comment, 5 U.S.C. 553(b)(B), or a procedural rule such as this one. 82

Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2020-0044, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA is temporarily suspending its Docket Center and Reading Room for public visitors to reduce the risk of transmitting COVID-19. Written comments submitted by mail are temporarily suspended and no hand deliveries will be accepted. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

The EPA continues to carefully and continuously monitor information from the Centers for Disease Control and Prevention (CDC), local area health departments, and our Federal partners so that we can respond rapidly as conditions change regarding COVID-19.

If a member of the public requests one, the EPA will hold a virtual public hearing on this interim final rulemaking on Wednesday, June 9, 2021. Please note that any hearing would be a deviation from the EPA's typical approach because the President has declared a national emergency. Because of current CDC recommendations, as well as state and local orders for social distancing to limit the spread of COVID-19, the EPA cannot hold in-person public meetings at this time.

Upon publication of this document in the Federal Register , the EPA will accept requests for a public hearing. If a hearing is requested, the EPA will also begin pre-registering speakers and attendees for the requested hearing. The EPA will accept registrations on an individual basis. To register to speak at the virtual hearing, individuals may use the online registration form available via the EPA's Increasing Consistency and Transparency in Considering Costs and Benefits in the Rulemaking Process web page for this hearing ( https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule ) or contact Leif Hockstad at (202) 343-9432 or hockstad.leif@epa.gov. The last day to pre-register to speak at the hearing will be Wednesday, June 2, 2021. On Monday, June 7, 2021, if a hearing has been requested, the EPA will post a general agenda for the hearing that will list pre-registered speakers in approximate order at: https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing, if held; however, please plan for the hearing to run either ahead of schedule or behind schedule. Additionally, requests to speak will be taken the day of the hearing at the end of each session as timing allows. The EPA will make every effort to accommodate all speakers.

Each commenter will have 3 minutes to provide oral testimony. The EPA recommends submitting the text of your oral comments as written comments to the rulemaking docket. The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral comments and supporting information presented at the public hearing.

The EPA is also asking hearing attendees to pre-register for the hearing, if held, even those who do not intend to provide testimony. This will help the EPA ensure that sufficient phone lines will be available.

Please note that any updates made to any aspect of the hearing logistics, including potential additional sessions, will be posted online at the EPA's Rescission of the Benefit-Cost Rule website ( https://www.epa.gov/air-and-radiation/rescission-2020-benefit-cost-rule ). While the EPA expects the hearing, if held, to go forward as set forth above, please monitor our website or contact the person listed in the FOR FURTHER INFORMATION CONTACT section to determine if there are any updates.

If you require the services of a translator or special accommodations such as audio description, please pre-register for the hearing and describe your needs by Wednesday, June 2, 2021. The EPA may not be able to arrange accommodations without advanced notice.

This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket. The EPA does not anticipate that this rulemaking will have an economic impact on regulated entities. This is a rule of agency procedure and practice.

This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute. This action would not regulate any entity outside the federal government and is a rule of agency procedure and practice.

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

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

This action does not have tribal implications as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

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

This action is not a “significant energy action” within the meaning of Executive Order 13211. It is not likely to have a significant adverse effect on the supply, distribution or use of energy, and it has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs (OIRA).

This rulemaking does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard that results in disproportionate impacts on minority and low-income populations.

This rule is exempt from CRA because it is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of nonagency parties.

Table 1 includes the portions of the site (media and areas) to be partially deleted from the NPL.

The proposed rule was published at 86 FR 13278 on March 8, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to applying for channel 27. No other comments were received. In support, the Petitioner states that the Commission has recognized that VHF channels have certain propagation characteristics which may cause reception issues for some viewers, that the reception of VHF signals require larger antennas relative to UHF channels, and that many of the WRDW-TV viewers experience difficulty receiving its signal. In addition, operation on channel 27 will not result in any predicted loss of service.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-49; RM-11874; DA 21-524, adopted May 5, 2021, and released May 5, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of this 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:

The proposed rule was published at 86 FR 13516 on March 9, 2021. The Petitioner filed comments in support of the petition reaffirming its commitment to applying for channel 32. No other comments were received. In support, the Petitioner states that the Commission has recognized that VHF channels have certain propagation characteristics which may cause reception issues for some viewers, that the reception of VHF signals require larger antennas relative to UHF channels, and that many of the KFVS viewers experience difficulty receiving its signal. In addition, operation on channel 32 will not result in any predicted loss of service.

This is a synopsis of the Commission's Report and Order, MB Docket No. 21-50; RM-11875; DA 21-523, adopted May 5, 2021, and released May 5, 2021. The full text of this document is available for download at https://www.fcc.gov/edocs. To request materials in accessible formats for people with disabilities (braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of this 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:

This is a summary of Commission's Order, in WT Docket No. 02-55 (Terminated); FCC 21-41, adopted and released on April 22, 2021. The full text of this document is available for public inspection online at https://docs.fcc.gov/public/attachments/FCC-21-41A1.pdf.

In 2004, the Commission's Report and Order (800 MHz Report and Order) (69 FR 67823, November 22, 2004) initiated the 800 MHz rebanding program to alleviate harmful interference to 800 MHz public safety radio systems caused by their proximity in the band to the 800 MHz commercial cellular architecture systems, principally those operated by Sprint. To alleviate the interference, the Commission reconfigured the 800 MHz band to increase the spectral separation between cellular architecture systems and so-called, high site systems occupying the band. The Commission adopted a band plan that required the relocation of the bulk of Sprint's system (and the other similarly situated cellular-based licensees) to spectrum at the upper end of the band, and the relocation of public safety licensees (and the other similarly situated high site system operators) to spectrum at the lower end of the band. The Commission further required Sprint to pay the accumulated relocation costs incurred by public safety and other high-site licensees in addition to its own relocation costs, in exchange for which the Commission awarded Sprint 10 megahertz of spectrum rights in the 1.9 GHz band. The 800 MHz Report and Order required that “at the conclusion of band reconfiguration, the Transition Administrator shall provide an accounting of the funds spent to reconfigure the systems of incumbent operators in the 800 MHz band. This accounting shall include certifications from each relocated licensee that all necessary reconfiguration work has been completed and that Nextel and said licensee agree on the sum paid for such work.” Those requirements have been either complied with or waived.

Nearly seventeen years after the 800 MHz Report and Order, the 800 MHz band reconfiguration program has achieved its objective—substantially alleviating the interference risk to public safety in the 800 MHz band. The 800 MHz Transition Administrator, LLC (Transition Administrator) reports that 2,169 licensees have successfully completed physical reconfiguration of their systems, and that only two licensees remain with unresolved administrative matters.

In the 800 MHz Report and Order, the Commission adopted certain rules specifically relating to implementation of the rebanding program. With termination of the rebanding program, there is no continued need for these rules and we therefore delete them. We conclude that this deletion does not require notice and comment. An agency may forego notice and comment rulemaking “when the agency for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Here, notice and comment is unnecessary and contrary to the public interest because the termination of the rebanding program has rendered the rules moot in accordance with the Commission's rules and the foregoing waivers. As the rules no longer have any practical or legal effect, deleting them from the Code of Federal Regulations will avoid any potential confusion about their continuing applicability.

This document does not contain proposed information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed 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).

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

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 90 as follows:

Atlantic highly migratory species (HMS) fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated Atlantic HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

Under § 635.28(a)(1), NMFS publishes a closure notice in the Federal Register when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category, for the remainder of the fishing year, until the opening of the relevant subsequent quota period or until a specified date.

The Angling category season opened January 1, 2021, and continues through December 31, 2021. The current Angling category quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.

Based on reported landings from the NMFS Automated Catch Reporting System, NMFS has determined that the codified Angling category northern area trophy BFT subquota of 1.8 mt has been reached and exceeded and that a closure of the northern area trophy BFT fishery is warranted. Therefore, retaining, possessing, or landing large medium or giant BFT north of 39°18′ N lat., by persons aboard vessels with HMS Angling category permits and HMS Charter/Headboat-permitted vessels (when fishing recreationally) must cease fishing at 11:30 p.m. local time on May 11, 2021. This closure will remain effective through December 31, 2021. This action is intended to prevent further overharvest of the Angling category northern area trophy BFT subquota and is taken consistent with the regulations at § 635.28(a)(1). NMFS previously closed the 2021 trophy BFT fishery in the southern area on March 1, 2021 (86 FR 12548, March 4, 2021) and in the Gulf of Mexico area on May 4, 2021 (86 FR 24359, May 6, 2021). Therefore, with this closure of the northern area trophy BFT fishery, the Angling category trophy BFT fishery will be closed in all areas for 2021.

If needed, subsequent Angling category adjustments will be published in the Federal Register . Information regarding the Angling category fishery for Atlantic tunas, including daily retention limits for BFT measuring 27 inches (68.5 cm) to less than 73 inches and any further Angling category adjustments, is available at hmspermits.noaa.gov or by calling (978) 281-9260. HMS Angling category and HMS Charter/Headboat permit holders may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. Anglers are reminded that all BFT that are released must be handled in a manner that will maximize survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure.

HMS Angling category and HMS Charter/Headboat permitted vessel owners are also reminded that they are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov, using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with regulations at 50 CFR part 635, which were issued pursuant to section 304(c) of the Magnuson-Stevens Act and the Atlantic Tunas Convention Act, and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons: The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. The closure of the Angling category northern area trophy fishery is necessary to prevent any further overharvest of the northern area trophy subquota. NMFS provides notification of closures by publishing the notice in the Federal Register , emailing individuals who have subscribed to the Atlantic HMS News electronic newsletter, and updating the information posted on the Atlantic Tunas Information Line and on hmspermits.noaa.gov.

These fisheries are currently underway, and delaying this action would be contrary to the public interest as it could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the northern area trophy BFT fishery to prevent any additional landings of large medium and giant BFT. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.

The ocean salmon fisheries in the EEZ off the coasts of Washington, Oregon, and California are managed under a “framework” Fishery Management Plan (FMP). Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the FMP, by notification in the Federal Register . Regulations at 50 CFR 660.408 govern the establishment of annual management measures.

The management measures for the 2021 and early 2022 ocean salmon fisheries that are implemented in this final rule were recommended by the Council at its April 6 to 15, 2021, meeting.

The Council announced its annual preseason management process for the 2021 ocean salmon fisheries in the Federal Register on December 23, 2020 (85 FR 83896), and on the Council's website at www.pcouncil.org. NMFS published an additional notice of opportunity to submit public comments on the 2021 ocean salmon fisheries in the Federal Register on January 18, 2021 (86 FR 5143). These notices announced the availability of Council documents, the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures, and instructions on how to comment on the development of the 2021 ocean salmon fisheries. The agendas for the March and April Council meetings were published in the Federal Register (86 FR 2641, January 13, 2021, and 86 FR 14878, March 19, 2021, respectively), and posted on the Council's website prior to the actual meetings.

In accordance with the FMP, the Council's Salmon Technical Team (STT) and economist prepared four reports for the Council, its advisors, and the public. All four reports were made available on the Council's website upon their completion. The first of the reports, “Review of 2020 Ocean Salmon Fisheries,” was prepared in February when the first increment of scientific information necessary for crafting management measures for the 2021 and early 2022 ocean salmon fisheries became available. The first report summarizes biological and socio-economic data from the 2020 ocean salmon fisheries and assesses the performance of the fisheries with respect to the Council's 2020 management objectives as well as providing historical information for comparison. The second report, “Preseason Report I Stock Abundance Analysis and Environmental Assessment Part 1 for 2021 Ocean Salmon Fishery Regulations” (PRE I), provides the 2021 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2020 regulations and regulatory procedures were applied to the projected 2021 stock abundances. The completion of PRE I is the initial step in developing and evaluating the full suite of preseason alternatives.

Following completion of the first two reports, the Council met via webinar from March 2 to 11, 2021, to develop 2021 management alternatives for proposal to the public. The Council proposed three alternatives for commercial and recreational fisheries management, and six alternatives for treaty Indian fisheries management for analysis and public comment. These alternatives consisted of various combinations of management measures designed to ensure that stocks of coho and Chinook salmon meet conservation goals, and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and economist prepared a third report, “Preseason Report II Proposed Alternatives and Environmental Assessment Part 2 for 2021 Ocean Salmon Fishery Regulations” (PRE II), which analyzes the effects of the proposed 2021 management alternatives.

The Council sponsored public hearings via webinar to receive testimony on the proposed alternatives on March 23, 2021, for Washington and California, and on March 24, 2021, for Oregon. The States of Washington, Oregon, and California sponsored meetings in various forums that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office and electronic submissions via the Council's electronic portal.

The Council met from April 6 to 15, 2021, via webinar, to adopt its final 2021 ocean salmon management recommendations. Following the April Council meeting, the Council's STT and economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2021 Ocean Salmon Fisheries” (PRE III), which analyzes the environmental and socio-economic effects of the Council's final recommendations. After the Council took final action on the annual ocean salmon specifications in April, it transmitted the recommended management measures to NMFS, published them in its newsletter, and posted them on the Council website ( www.pcouncil.org ).

Historically, the annual salmon management cycle began May 1 and continued through April 30 of the following year. The Council adopted Amendment 20 to the FMP in September 2020 (86 FR 8750, February 9, 2021). This amendment, in part, changed the preseason schedule. NMFS approved Amendment 20 to the FMP on April 22, 2021 (86 FR 22622, April 22, 2012). Under the newly amended FMP, the management cycle now begins May 16 and continues through May 15 of the following year. This final rule is effective on May 16, 2021, consistent with the FMP as amended under Amendment 20. Fisheries that begin prior to May 16, 2021 are governed by the rule implementing the salmon fishery management measures for the 2020 ocean salmon season (85 FR 27317, May 8, 2020). The majority of fisheries recommended by the Council for 2021 begin May 16, 2021 and are authorized under this rule. Fisheries scheduled to begin before May 16, 2021, which were authorized under the 2020 rule, are the commercial fisheries from the U.S./Mexico border to Humboldt South Jetty, CA, and from Horse Mountain, CA, to the U.S./Mexico border, recreational fisheries from Cape Falcon, OR, to Humbug Mountain, OR, and from Horse Mountain, CA, to the U.S./Mexico border, and treaty Indian troll fisheries north of Cape Falcon. For purposes of analyzing the impacts of these fisheries on individual stocks relative to the applicable objectives in the FMP, Council analysts assumed fisheries prior to May 16, 2021, would be conducted under the 2020 management measures for the March 15 to May 15 time period, consistent with the effective date of the 2020 salmon management measures rule and subsequent inseason actions under 50 CFR 660.409. Several fisheries scheduled to open between March 15, 2021 and May 15, 2021, were modified through inseason action to shorten or delay the fisheries in response to updated salmon stock forecast information for 2021.

The environmental assessment (EA) for this action comprises the Council's documents described above (PRE I, PRE II, and PRE III), providing analysis of environmental and socioeconomic effects under NEPA. The EA and its related Finding of No Significant Impact are posted on the NMFS West Coast Region website ( www.fisheries.noaa.gov/region/west-coast ).

The FMP requires that the fisheries be shaped to meet escapement-based Annual Catch Limits (ACLs), Endangered Species Act (ESA) consultation requirements, obligations of the Pacific Salmon Treaty (PST) between the United States and Canada, and other conservation objectives detailed in the FMP. In addition, under the MSA, all regulations must be consistent with other applicable law. Because the ocean salmon fisheries are mixed-stock fisheries, this requires “weak stock” management to avoid exceeding limits for the stocks with the most constraining limits. Abundance forecasts for individual salmon stocks can vary significantly from one year to the next; therefore, the stocks that constrain the fishery in one year may differ from those that constrain the fishery in the next. For 2021, several stocks will constrain fisheries; these are described below.

Fisheries south of Cape Falcon are limited in 2021 primarily by conservation concerns for Klamath River fall-run Chinook salmon (KRFC). NMFS determined in 2018 that the KRFC stock was overfished, as defined under the MSA and the FMP. The Council developed a rebuilding plan for KRFC which NMFS has approved (85 FR 75920, November 27, 2020). Fisheries north of Cape Falcon are limited by conservation concerns for Washington coastal coho salmon stocks—primarily Queets River natural (Queets) and ESA conservation requirements for the Lower Columbia River natural (LCR) Chinook salmon evolutionarily significant unit (ESU)—primarily the tule component of the LCR Chinook salmon ESU. Queets coho salmon was determined in 2018 to be overfished; the Council has developed a rebuilding plan which NMFS has approved (86 FR 9301, February 12, 2021). The limitations imposed in order to protect these stocks are described below. The alternatives and the Council's recommended management measures for 2021 were designed to avoid exceeding these limitations. In addition to KRFC and Queets coho salmon, three other salmon stocks (Sacramento River fall-run Chinook salmon (SRFC), Strait of Juan de Fuca natural coho salmon, and Snohomish River natural coho salmon) were also determined in 2018 to be overfished, and the Council has recommended rebuilding plans for these stocks. NMFS has approved the rebuilding plan for SRFC (85 FR 75920, November 27, 2020) and the rebuilding plans for the Strait of Juan de Fuca and Snohomish River natural coho salmon stocks (86 FR 9301, February 12, 2021). Meeting conservation objectives for these three stocks being managed under rebuilding plans (SRFC, Strait of Juan de Fuca, and Snohomish River natural coho salmon) will not constrain fisheries in 2021.

KRFC (not ESA-listed): Abundance for this non-ESA-listed stock in recent years has been historically low, and the stock is currently overfished based on spawning escapement in 2015, 2016, and 2017. The FMP defines “overfished” status in terms of a three-year geometric mean escapement level and whether it is below the minimum stock size threshold (MSST). Forecast abundance for KRFC in 2021 is 181,508. This KRFC forecast is the seventh lowest on record and three percent lower than in 2020; the record low abundance forecast, 54,246, was in 2017. Fisheries in 2021 will be constrained in Oregon and California to meet the requirements of the KRFC harvest control rule in the FMP and the rebuilding plan, to meet a 25.0 percent de minimis exploitation rate, which results in a natural-area spawning escapement projection of 31,574, which is greater than the MSST (30,525 spawners), but below the maximum sustainable yield spawner escapement (S MSY ) (40,700 spawners). Fisheries south of Cape Falcon, particularly in the Klamath Management Zone (KMZ) from Humbug Mountain, OR, to Horse Mountain, CA, will be constrained to meet this goal.

Queets natural coho (not ESA-listed): The Queets coho salmon stock is managed in Council-area and in northern fisheries, subject to the provisions of the PST. In 2018, NMFS determined that Queets coho salmon was overfished, based on escapements in 2014, 2015, and 2016. Under the FMP and the Council's rebuilding plan, Queets coho salmon is managed for an escapement of 5,800 (S MSY ) natural adult spawners. However, the FMP provides that annual natural spawning escapement targets may vary from FMP conservation objectives if agreed to by WDFW and treaty tribes under the provisions of Hoh Indian Tribe v. Baldrige and United States v. Washington. The forecast abundance of Queets natural coho salmon in 2021, prior to any fishing impacts, is 3,919 adult coho, 50 percent of the 2020 forecast of 7,834 thousand adult coho salmon. The average preseason abundance forecast for Queets coho salmon over the past decade (2011-2020) was 12,873 adult coho salmon. The 2021 Queets coho salmon forecast is, therefore, well below the S MSY goal of 5,800 spawners. Under the criteria of the PST's Southern Coho Management Plan, Queets coho salmon abundance is in the “low” category in 2021 and subject to a total exploitation rate limit of 20 percent. The WDFW and treaty tribe co-managers have agreed to a spawning escapement goal of 3,150 spawners for Queets coho salmon in 2021. Both the exploitation rate limit and the derivation of the escapement goal account for salmon fishery impacts outside of Council-area salmon fisheries. Meeting the escapement goal of 3,150 spawners is expected to achieve salmon fishery impacts on Queets coho salmon that are consistent with limits required by the PST.

LCR Chinook salmon (ESA-listed threatened): The LCR Chinook salmon ESU comprises a spring component, a “far-north” migrating bright component, and a component of north migrating tules. The bright and tule components both have fall run timing. There are twenty-one separate populations within the tule component of this ESU. Unlike the spring or bright populations of the ESU, LCR tule populations are caught in large numbers in Council fisheries, as well as fisheries to the north and in the Columbia River. Therefore, this component of the ESU is the one most likely to constrain Council fisheries in the area north of Cape Falcon. Under the provisions of NMFS' 2012 biological opinion on the impact of Council-area salmon fisheries on LCR Chinook salmon, Council fisheries must be managed subject to an abundance-based management (ABM) framework, after accounting for anticipated impacts in northern fisheries and freshwater fisheries that are outside the action area. Applying the ABM framework to the 2021 preseason abundance forecast, the total LCR tule exploitation rate for all salmon fisheries is limited to a maximum of 38 percent. Fisheries will be constrained north of Cape Falcon in 2021 such that, when combined with all other salmon fisheries in the ocean and in the Columbia River below Bonneville Dam, the ESA requirement is met.

Southern Resident Killer Whale (SRKW) (ESA-listed endangered): The SRKW distinct population segment (DPS) was listed under the ESA as endangered in 2005 (70 FR 69903, November 18, 2005). NMFS issued a biological opinion analyzing the effects of the ocean salmon fisheries on SRKW in 2009 which concluded that these fisheries are not likely to jeopardize SRKW. NMFS reinitiated consultation on the effects of the ocean salmon fisheries on SRKW on April 12, 2019. To inform the new consultation, the Council formed an ad hoc workgroup (SRKW Workgroup), including salmon and SRKW experts, at its April 2019 meeting. The SRKW Workgroup was tasked to develop a long-term approach that included proposed conservation measures and management tools that would limit PFMC fishery impacts to prey availability for SRKW relative to implementing the FMP.

The SRKW workgroup developed a risk assessment report which suggests that Chinook salmon abundance north of Cape Falcon is consistently more important to SRKW than abundance in areas south of Cape Falcon. The report noted that the SRKW DPS is observed north of Cape Falcon in all seasons and likely has some direct overlap with the salmon fisheries every year, whereas there is likely limited overlap with the salmon fisheries in some years south of Cape Falcon. Furthermore, the contribution of Chinook salmon south of Cape Falcon to SRKW diet may also be largely confined to the winter/spring season, after maturing fall-run Chinook salmon adults that escaped the current year's fishery leave the ocean. The report also provided evidence that, after executing Council-area salmon fisheries, the percent of prey remaining and available to SRKW has increased coastwide over the last several decades. The SRKW Workgroup's risk assessment report provides the most current information on SRKW and their predator-prey interaction with Pacific salmon.

Based largely on the SRKW Workgroup's risk assessment report, the Council developed an approach to set a Chinook salmon annual abundance management threshold below which the Council and NMFS would implement specific measures to limit ocean salmon fishery impacts on Chinook salmon in order to increase salmon prey availability for SRKW. These measures include time and area closures, a quota limitation for the North of Falcon area, and temporal shifts in fishing. At its November 2020 meeting, the Council adopted this approach as an amendment to the FMP for recommendation to NMFS (if approved, this will be Amendment 21 to the FMP). NMFS has completed an ESA consultation on authorization of the ocean salmon fishery in the west coast EEZ through approval of the FMP and promulgation of regulations implementing the plan, including approval and implementation of Amendment 21. NMFS' biological opinion (WCRO-2019-04072, April 21, 2021) concluded that authorization of the ocean salmon fishery in the west coast EEZ through approval of the FMP and promulgation of regulations implementing the plan, including approval and implementation of Amendment 21, is not likely to jeopardize the continued existence of the SRKW DPS or destroy or adversely modify its designated or proposed critical habitat. The Council and NMFS considered the Chinook salmon abundance threshold approach in proposed Amendment 21, as analyzed in the 2021 biological opinion, when developing 2021 annual management measures. Because the pre-season estimate of the abundance of Chinook salmon in 2021 exceeds the threshold in the proposed amendment, the Council did not recommend implementation of the additional management measures included in Amendment 21. The 2021 management measures are consistent with the proposed action analyzed in the 2021 biological opinion.

Oregon Production Index area (OPI) coho salmon: The abundance forecast for OPI coho salmon in 2021, 1.73 million adult salmon, is the second largest on record (the 2001 abundance forecast for OPI coho was 1.76 million). The large forecast for OPI coho salmon, dominated by hatchery coho from the Columbia River Basin, will provide additional salmon fishery opportunities in the Columbia River management area, while salmon fisheries along the remainder of the coast are significantly constrained to protect KRFC and Washington coastal coho salmon stocks.

Annual Catch Limits (ACLs) are set for two Chinook salmon stocks, SRFC and KRFC, and one coho salmon stock, Willapa Bay natural coho salmon. The Chinook salmon stocks are indicator stocks for the Central Valley Fall Chinook salmon complex, and the Southern Oregon/Northern California Chinook salmon complex, respectively. The Far North Migrating Coastal Chinook salmon complex (FNMC) includes a group of Chinook salmon stocks that are caught primarily in fisheries north of Cape Falcon and other fisheries that occur north of the U.S./Canada border. No ACL is set for FNMC stocks because they are managed subject to provisions of the PST between the U.S. and Canada (the MSA provides an international exception from ACL requirements that applies to stocks or stock complexes subject to management under an international agreement, which is defined as “any bilateral or multilateral treaty, convention, or agreement which relates to fishing and to which the United States is a party” (50 CFR 600.310(h)(1)(ii)). Other Chinook salmon stocks caught in fisheries north of Cape Falcon are ESA-listed or hatchery produced, and are managed consistent with ESA consultations or hatchery goals. Willapa Bay natural coho salmon is the only coho salmon stock for which an ACL is set, as the other coho salmon stocks in the FMP are either ESA-listed, hatchery produced, or managed under the PST.

ACLs for salmon stocks are escapement-based, which means they establish a number of adults that must escape the fisheries to return to the spawning grounds. ACLs are set based on the annual potential spawner abundance forecast and a fishing rate reduced to account for scientific uncertainty. For SRFC in 2021, the overfishing limit (OFL) is S OFL = 270,958 (potential spawner abundance forecast) multiplied by 1−F MSY (1−0.78) or 59,611 returning spawners (F MSY is the fishing mortality rate that would result in maximum sustainable yield—MSY). S ABC (the spawner escapement that is associated with the acceptable biological catch) is 270,958 multiplied by 1−F ABC (1−0.70) (F MSY reduced for scientific uncertainty = 0.70) or 81,287. The S ACL is set equal to S ABC, i.e., 81,287 spawners. The adopted management measures provide for a projected SRFC spawning escapement of 133,913. For KRFC in 2021, S OFL is 42,098 (potential spawner abundance forecast) multiplied by 1−F MSY (1−0.71), or 12,208 returning spawners. S ABC is 42,098 multiplied by 1−F ABC (1−0.68) (F MSY reduced for scientific uncertainty = 0.68) or 13,471 returning spawners. S ACL is set equal to S ABC , i.e., 13,471 spawners. When KRFC potential spawner abundance is projected to be less than 54,267 natural-area adults, fisheries are managed under the de minimis portion of the control rule, which allows for some fishing opportunity but results in the expected escapement falling below 40,700 natural-area adult spawners (S MSY ). The adopted management measures provide for a projected KRFC spawning escapement of 31,574. For Willapa Bay natural coho in 2021, S OFL = 36,908 (potential spawner abundance forecast) multiplied by 1−F MSY (1−0.74) or 9,596 returning spawners. S ABC is 36,908 multiplied by 1−F ABC (1−0.70) (F MSY reduced for scientific uncertainty = 0.70) or 11,072. S ACL is set equal to S ABC , i.e., 11,072 spawners. The adopted management measures provide for a projected Willapa Bay natural coho ocean escapement of 23,452. In summary, for 2021, projected abundance of the three stocks with ACLs (SRFC, KRFC, and Willapa Bay natural coho salmon), in combination with the constraints for ESA-listed and non-ESA-listed stocks, are expected to result in escapements greater than required to meet the ACLs for all three stocks with defined ACLs.

As explained in more detail above under “Stocks of Concern,” fisheries north and south of Cape Falcon are constrained by impact limits necessary to protect ESA-listed LCR Chinook salmon, and to meet the management targets for non-ESA listed Queets natural coho salmon and KRFC. The management measures recommended by the Council are anticipated to result in spawning escapements for KRFC, SRFC, and Willapa Bay natural coho that are higher than the respective 2021 ACLs for these stocks.

The Council invited written comments on developing 2021 salmon management measures in their notice announcing public meetings and hearings (85 FR 83896, December 23, 2020). At its March meeting, the Council developed three alternatives for 2021 commercial and recreational salmon management measures having a range of quotas, season structure, and impacts, from the least restrictive in Alternative I to the most restrictive in Alternative III, as well as six alternatives for 2021 North of Cape Falcon treaty Indian troll salmon management measures. These alternatives are described in detail in PRE II. Subsequently, comments were taken at three public hearings held in March, staffed by representatives of the Council and NMFS. The Council received 253 written comments on 2021 ocean salmon fisheries via their electronic portal. The three public hearings were attended by a total of 158 people; 30 people provided oral comments. Comments came from individual fishers, fishing associations, fish buyers, processors, the general public, and conservation organizations. Written and oral comments addressed the 2021 management alternatives described in PRE II, and generally expressed preferences for a specific alternative or for particular season structures. Approximately half of the written comments that were submitted focused on fishery effects on ESA-listed SRKW. All comments were made available via the Council's online briefing book for the April 2021 Council meeting and were considered by the Council, which includes a representative from NMFS, in developing the recommended management measures transmitted to NMFS on April 22, 2021. In addition to comments collected at the public hearings and those submitted directly to the Council, several people provided oral comments at the April 2021 Council meeting. NMFS also invited comments to be submitted directly to the Council or to NMFS, via the Federal Rulemaking Portal ( www.regulations.gov ) in a notice (86 FR 5143, January 18, 2021); NMFS received no comments via the Federal Rulemaking Portal.

Comments on alternatives for commercial salmon fisheries. Many written comments did not identify the fishery being commented on, either by geography or sector. Relatively few written comments specifically addressed commercial salmon fisheries. Of those that did submit written comments specifically on commercial fisheries, eight supported Alternative III. Alternatives I and II each received one written comment of support. Those testifying on north of Cape Falcon commercial salmon fisheries at the Washington hearing supported the total allowable catch for Chinook salmon in Alternative I and the total allowable catch for coho salmon in Alternative II. Those testifying on south of Cape Falcon commercial salmon fisheries at the Oregon hearing divided their support among the three alternatives. Those testifying on south of Cape Falcon commercial salmon fisheries at the California hearing largely supported Alternative I. The Council adopted commercial fishing alternatives north and south of Cape Falcon that are within the range of the alternatives considered.

Comments on alternatives for recreational fisheries. As mentioned above, many written comments did not identify the fishery being commented on, either by geography or sector. Those that did submit written comments specifically on recreational fisheries supported Alternative I almost unanimously. Most spoke to maximizing fishing opportunity, which would be consistent with Alternative I. Many spoke to the economic benefit to businesses and communities from recreational fisheries. A few comments addressed water management as a key concern. Several written comments on the recreational salmon fishery in the Klamath Management Zone objected to what appeared to be a loss of recreational fishing days to the benefit of the commercial sector. In-person testimony on recreational fisheries at the three public hearings was similar to the written comments—support for maximizing fishing opportunity. The Council adopted recreational fishing alternatives north and south of Cape Falcon that are within the range of alternatives considered.

Comments from federally recognized tribes, including treaty tribe representatives. At its March and April meetings, the Council heard testimony from members of several federally recognized tribes including tribes with treaty rights for salmon harvest; additional comments were submitted in writing. Tribes expressed concern over the low forecasts for some stocks in 2021 and the ramifications for tribal fisheries. Tribes also expressed concern over a pattern of overforecasting abundance of OPI coho in recent years and the impact such forecasts have on ocean fishing opportunity, stocks of concern, and the preseason modeling process.

Comments on SRKW. The Council received 128 written comments for the April Council meeting on potential fishery effects on SRKW. Many comments were identical. Specific comments were made regarding reducing or closing ocean salmon fisheries, moving ocean salmon fisheries closer to terminal areas, and dam impacts on salmon abundance.

The Council, including the NMFS representative, took all of these comments into consideration. The Council's final recommendation generally includes aspects of all three alternatives, while taking into account the best available scientific information and ensuring that fisheries are consistent with impact limits for ESA-listed stocks, ACLs, PST obligations, other ESA requirements, MSA requirements, and tribal fishing rights. The Council and NMFS also considered comments on the NEPA analysis in preparing the final EA.

The Council's recommended ocean harvest levels and management measures for the 2021 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations to be responsive to the goals of the FMP, the requirements of the resource, and the socioeconomic factors affecting resource users. The recommendations are consistent with the requirements of the MSA, U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. The Council's recommended management measures are consistent with the proposed actions analyzed in NMFS' ESA consultations for those ESA-listed species that may be affected by Council fisheries, and are otherwise consistent with ESA obligations. Accordingly, NMFS, through this final rule, approves and implements the Council's recommendations.

North of Cape Falcon, 2021 management measures for non-Indian commercial troll and recreational fisheries have somewhat increased quotas for Chinook salmon compared to 2020; coho salmon quotas are substantially higher than in 2020, with most of the coho salmon quota dedicated to the Columbia River management area to access the abundant OPI coho salmon forecast. Overall north of Cape Falcon non-Indian commercial and recreational total allowable catch in 2021 is 58,000 Chinook salmon and 75,000 coho salmon marked with a healed adipose fin clip. The commercial troll fishery, north of Cape Falcon, will have a May-June Chinook salmon only fishery with a quota of 15,375 Chinook salmon, and a July-September fishery with a quota of 15,375 Chinook salmon or 5,000 marked coho salmon. The recreational fishery, north of Cape Falcon, will have a July-September fishery with a total allowable catch of 27,250 Chinook salmon and 70,000 marked coho salmon, with subarea quotas.

Quotas for the 2021 treaty-Indian commercial troll fishery North of Cape Falcon are 40,000 Chinook salmon and 26,500 coho in ocean management areas and Washington State Statistical Area 4B combined. These quotas provide more Chinook salmon and substantially more coho than in 2020. The treaty-Indian commercial fisheries include a May-June fishery with a quota of 20,000 Chinook salmon, and a July-September fishery, with quotas of 20,000 Chinook salmon and 26,500 coho salmon.

South of Cape Falcon, commercial troll and recreational fishery management measures are shaped to meet conservation and management goals for KRFC spawning escapement.

The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May of the same year. Therefore, this action also establishes the 2022 fishing seasons that open earlier than May 16. The Council recommended, and NMFS concurs, that the commercial and recreational seasons will open in 2022 as indicated in the “Season Description” section of this document. At the March and/or April 2022 meeting, NMFS may take inseason action, if recommended by the Council, to adjust the commercial and recreational seasons prior to the effective date of the 2022 management measures which are expected to be effective in mid-May 2022.

The following sections set out the management regime for the ocean salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2020 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard (USCG) Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the Federal Register as soon as practicable.

The following are the management measures recommended by the Council, approved, and implemented here for 2021 and, as specified, for 2022. Dates in the management measures that precede May 16, 2021, were promulgated in our 2020 rule (85 FR 27317, May 8, 2020) and modified by inseason action at the March and April 2021 Council meetings (86 FR 16540, March 30, 2021, and 86 FR 23872, May 5, 2021). These dates are included for information only and to provide continuity for the public and for states adopting conforming regulations each May that refer to the Federal rule for the same year.

Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions, and exceptions.

May 1-15;

May 16 through the earlier of June 29, or 15,375 Chinook salmon quota.

May-June quota of 15,375 Chinook salmon, no more than 5,680 of which may be caught in the area between the U.S./Canada border and the Queets River, and no more than 4,195 of which may be caught in the area between Leadbetter Point and Cape Falcon (C.8). In the area between the U.S./Canada border and the Queets River, the landing and possession limit is 75 Chinook salmon per vessel per landing week (Thursday-Wednesday) (C.1, C.6). In the area between Leadbetter Point and Cape Falcon, the landing and possession limit is 75 Chinook salmon per vessel per landing week (Thursday-Wednesday) (C.1, C.6). Open seven days per week (C.1). All salmon, except coho salmon (C.4, C.7). Chinook salmon minimum size limit of 27 inches total length (B). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). When it is projected that approximately 75 percent of the overall Chinook salmon guideline has been landed, or approximately 75 percent of any of the individual Chinook salmon subarea guidelines have been landed, inseason action will be considered to ensure the guideline is not exceeded. In 2022, the season will open May 1 consistent with all preseason regulations in place in this area and subareas during May 16-June 30, 2021, including subarea salmon guidelines and quotas, and weekly vessel limits, except as described below for vessels fishing or in possession of salmon north of Leadbetter Point. This opening could be modified following Council review at its March and/or April 2022 meetings.

July 1 through the earlier of September 30, or 15,375 Chinook salmon or 5,000 coho salmon (C.8).

Landing and possession limit of 20 marked coho salmon per vessel per landing week (Thursday-Wednesday) (C.1). Open seven days per week. All salmon, except no chum salmon retention north of Cape Alava, Washington in August and September (C.4, C.7). Chinook salmon minimum size limit 27 inches total length and coho salmon minimum size limit 16 inches total length (B, C.1). All coho salmon must be marked with a healed adipose fin clip (C.8.d). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).

For all commercial troll fisheries north of Cape Falcon: Mandatory closed areas include: Salmon troll Yelloweye Rockfish Conservation (YRCA) Area, Cape Flattery, and Columbia Control Zones, and beginning August 9, Grays Harbor Control Zone (C.5). Vessels must land and deliver their salmon within 24 hours of any closure of this fishery. Vessels fishing or in possession of salmon north of the Queet River may not cross the Queets River line without first notifying WDFW at 360-249-1215 with area fished, total Chinook salmon, coho salmon, and halibut catch aboard, and destination. Vessels in possession of salmon south of the Queets River may not cross the Queets River line without first notifying WDFW at 360-249-1215 with area fished, total Chinook salmon, coho salmon, and halibut catch aboard, and destination (C.11). In 2021, vessels may not land any species of fish east of Port Angeles or east of the Megler-Astoria Bridge. For delivery to Washington ports east of the Sekiu River, vessels must notify WDFW at 360-249-1215 prior to crossing the Bonilla-Tatoosh line with the area fished, total Chinook salmon, coho salmon, and halibut catch aboard, and destination with approximate time of delivery. In 2022, vessels may not land any species of fish east of the Sekiu River or east of the Megler-Astoria Bridge. Vessels fishing or in possession of salmon north of Leadbetter Point must land and deliver all species of fish in a Washington port and must possess a Washington troll and/or salmon delivery license. For delivery to Washington ports south of Leadbetter Point, vessels must notify the WDFW at 360-249-1215 prior to crossing the Leadbetter Point line with area fished, total Chinook salmon, coho salmon, and halibut catch aboard, and destination with approximate time of delivery. During any single trip, only one side of the Leadbetter Point line may be fished (C.11). Vessels fishing or in possession of salmon while fishing south of Leadbetter Point must land and deliver all species of fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land all species of fish in Garibaldi, Oregon. Under state law, vessels must report their catch on a state fish receiving ticket. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, Washington and Cape Falcon, Oregon to notify ODFW within one hour of delivery or prior to transport away from the port of landing by either calling 541-857-2546 or sending notification via email to nfalcon.trollreport@state.or.us. Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8).

March 20-April 30 (C.9.a).

All salmon except coho salmon, except as described below (C.4, C.7). Chinook salmon minimum size limit of 28 inches total length (B, C.1). All vessels fishing in the area must land their salmon in the state of Oregon. See gear restrictions and definitions (C.2, C.3). In 2022, the season will open March 15 for all salmon except coho salmon. Chinook salmon minimum size limit of 28 inches total length. Gear restrictions same as in 2021. This opening could be modified following Council review at its March 2022 meeting.

May 1-5, 10-15;

May 16-21, 26-31;

June 5-7, 12-14, 19-21, 26-28;

September 1-October 31 (C.9.a).

All salmon except coho salmon, except as described below (C.4, C.7). Beginning September 1, no more than 75 Chinook salmon allowed per vessel per landing week (Thursday-Wednesday). Chinook salmon minimum size limit of 28 inches total length (B, C.1). All vessels fishing in the area must land their salmon in the state of Oregon. See gear restrictions and definitions (C.2, C.3).

July 5-7, 12-14, 19-21, 26-28;

August 1-4, 8-10, 15-17 (C.9.a).

All salmon. All retained coho salmon must be marked with a healed adipose fin clip (C.4, C.7). If the coho quota for the combined area from Cape Falcon to Humbug Mountain of 10,000 marked coho is met, then the season continues for all salmon except coho on the remaining open days. Salmon trollers may take and retain or possess on board a fishing vessel no more than 20 coho per vessel per week (Thursday-Wednesday). All coho salmon retained, possessed on a vessel, and landed must not exceed a 1:1 ratio with Chinook salmon that are retained and landed at the same time. Coho salmon minimum size limit of 16 inches total length, and Chinook salmon minimum size limit of 28 inches total length (B, C.1). All vessels fishing in the area must land their salmon in the state of Oregon. See gear restrictions and definitions (C.2, C.3). In 2022, the season will open March 15 for all salmon except coho. Chinook salmon minimum size limit of 28 inches total length. Gear restrictions same as in 2021. This opening could be modified following Council review at its March 2022 meeting.

March 20-May 5, May 10-15;

May 16-21, 26-31;

June 1 through the earlier of June 30, or a 300 Chinook salmon quota;

July 1 through the earlier of July 31, or a 200 Chinook salmon quota (C.9.a).

June 1-July 31 weekly landing and possession limit of 20 Chinook salmon per vessel per week (Thursday-Wednesday). All salmon except coho salmon (C.4, C.7). Chinook salmon minimum size limit of 28 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Prior to June 1, all salmon caught in this area must be landed and delivered in the state of Oregon. Any remaining portion of Chinook salmon quotas may be transferred inseason on an impact neutral basis to the next open quota period (C.8.b). All vessels fishing in this area during June and July must land and deliver all salmon within this area or into Port Orford within 24 hours of any closure of this fishery and prior to fishing outside of this area. For all quota managed seasons (June and July), Oregon state regulations require fishers to notify ODFW within one hour of landing and prior to transport away from the port of landing by calling 541-857-2538 or sending notification via email to kmzor.trollreport@state.or.us, with vessel name and number, number of salmon by species, location of delivery, and estimated time of delivery.

In 2022, the season will open March 15 for all salmon except coho salmon. Chinook salmon minimum size limit of 28 inches total length. Gear restrictions same as in 2021. This opening could be modified following Council review at its March 2022 meeting.

Closed in 2021 (C.9).

In 2022, the season will open May 1 through the earlier of May 31, or a 3,000 Chinook salmon quota. Chinook salmon minimum size limit of 27 inches total length (B, C.1). Landing and possession limit of 20 Chinook salmon per vessel per day (C.8.f). Open five days per week (Friday-Tuesday). All salmon except coho (C.4, C.7). Any remaining portion of Chinook salmon quotas may be transferred inseason on an impact neutral basis to the next open quota period (C.8.b). All fish caught in this area must be landed within the area, within 24 hours of any closure of the fishery (C.6), and prior to fishing outside the area (C.10). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed (C.5.e). See California State regulations for an additional closure adjacent to the Smith River. This opening could be modified following Council review at its March or April 2022 meetings.

Closed.

For all commercial fisheries south of Cape Falcon: When the fishery is closed between the Oregon/California border and Humbug Mountain and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, Oregon prior to landing in California only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival (C.6).

August 1-17;

September 1-30 (C.9.b).

All salmon except coho (C.4, C.7). Chinook salmon minimum size limit of 27 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). All salmon must be landed in California and north of Point Arena (C.6, C.11).

In 2022, the season will open April 16 for all salmon except coho salmon. Chinook salmon minimum size limit of 27 inches total length (B, C.1). Gear restrictions same as in 2021. This opening could be modified following Council review at its March 2022 meeting.

The Pacific Coast Groundfish Fishery Management Plan (FMP) prohibits processing vessels in the at-sea Pacific whiting fishery from operating as both a mothership (MS) and catcher processor (C/P) during the same calendar year. C/P vessels are capable of both harvesting and processing catch at-sea, while MS vessels solely process catch delivered by other vessels (referred to as catcher vessels). By design, some MS vessels are built solely to process catch delivered by other vessels while at-sea, whereas C/P vessels are capable of harvesting catch, and receiving deliveries from catcher vessels. Because of this, some processing vessels are able to switch between the C/P and MS sectors, while other vessels are not. To help ensure market stability in the separate sectors, current regulations do not allow processing vessels to switch between the MS and C/P sectors in a single calendar year. Under existing restrictions, a decision to operate a processing vessel as a C/P in response to the ongoing pandemic would preclude the vessels from operating as an MS for the remainder of the 2021 fishing year, and vice versa. Catcher vessels in the at-sea whiting sector rely on MS vessels to accept delivery of their catch and, as a result, the amount of whiting these vessels can harvest is limited by the availability of at-sea processing vessels in the MS sector. Losing an MS processing vessel would prevent catcher vessels from harvesting their 2021 Pacific whiting allocations. The remaining processing vessels participating in the MS sector would not possess the capacity to receive deliveries from all catcher vessels for the 2021 Pacific whiting season.

During the March 2021, Pacific Fishery Management Council (Council) meeting, industry members from the MS cooperative submitted a letter to the Council requesting action to address this issue. In their letter, industry members estimated that the loss of one MS processing vessel would leave approximately 24 percent of the MS sector allocation unharvested. The Council Groundfish Advisory Panel (GAP) supported the industry statement, and estimated economic impacts that would result from lost at-sea processing capacity. The Councils Groundfish Management Team (GMT) provided additional analysis showing that compared to 2016-2019 fishing years, the proportion of whiting harvested in 2020 decreased by 13 percent in the MS sector and 2 percent in the C/P sector. The GMT stated these decreases likely reflect COVID-19 impacts, including a lack of processing vessels available to catcher vessels due to attempts to minimize the spread COVID-19.

In 2020, NMFS issued an emergency rule (85 FR 37027, June 19, 2020) to allow vessels to operate as an MS and a C/P in the same year in response to industry requests and Council recommendation. During the 2020 whiting season, several at-sea processing vessels experienced COVID-19 outbreaks, forcing them to halt operations to prevent spreading infection to additional vessels and shorebased facilities. COVID-19 outbreaks and resulting shutdowns increased operational costs and caused foregone opportunities in the at-sea whiting fishery. In 2020, five MS permits were used to process MS allocations. The 2020 emergency action (85 FR 37027, June 19, 2020) provided temporary operational flexibility for the at-sea sector for 180 days. However, it was unforeseen when the Council made its recommendation in 2020 how long the COVID-19 pandemic would last, how COVID-19 disease variants would emerge, and when vaccination efforts would be complete.

On March 9, 2021, the Council voted to request that NMFS initiate an emergency action to temporarily allow any eligible MS and C/P to operate as both types of processing vessel during the 2021 Pacific whiting season. This action would not be an extension of the 2020 emergency rule (85 FR 37027, June 19, 2020). Vessels would not be required to declare which sector they will operate in for the year at the beginning of the season. This emergency action would allow at-sea Pacific whiting processing vessels to switch operations for 180 days after publication. Additionally, these temporary measures can be extended for 186 days if the COVID-19 health emergency persists. There is continued risk to at-sea whiting vessels and loss of processing capacity should a COVID-19 outbreak occur onboard a processing vessel. Because of this risk and uncertainty, members of industry and the Council GAP and GMT advisory bodies recommended the Council take emergency action to allow available vessels to operate as both types of processing vessels for the 2021 fishing year to avoid potential economic hardship. In the event of a COVID-19 outbreak onboard a processing vessel, flexibility provided by removing seasonal processing restrictions under these emergency measures could allow other vessels to process MS sector whiting allocations that at-sea whiting catcher vessels would not otherwise be able to deliver. Therefore, the Council has recommended that NMFS initiate emergency action in 2021 to provide operational flexibility to the at-sea sectors by temporarily allow processing vessels to operate as both an MS and a C/P in the same calendar year.

Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) authorizes the Secretary of Commerce to implement emergency regulations to address fishery emergencies. NMFS policy guidelines for the use of emergency rules define criteria for determining whether an emergency exists under section 305(c) of the Magnuson-Stevens Act (62 FR 44451; August 21, 1997). Under NMFS' Policy Guidelines for the Use of Emergency Rules, the phrase “an emergency exists involving any fishery” is defined as a situation that meets the following three criteria:

1. Results from recent, unforeseen events or recently discovered circumstances;

2. Presents serious conservation or management problems in the fishery; and

3. Can be addressed through emergency regulations for which the immediate benefits outweigh the value of advance notice, public comment, and deliberative consideration of the impacts on participants to the same extent as would be expected under the normal rule making process.

In addition, the Magnuson-Stevens Act section 305(c)(3) can allow for an extension of an emergency rule for an additional 186 days if the public has had the opportunity to comment and, in the case of a Council recommendation for emergency regulations or interim measures, the council is actively preparing a fishery management plan, plan amendment, or proposed regulations to address the emergency or overfishing on a permanent basis.

At the March 2021 meeting, the Council addressed requests from whiting fishery stakeholders after considering a range of factors. These factors include, but are not limited to:

• At the time of the emergency rule request in 2020, the state of knowledge of the coronavirus and potential impacts of the COVID-19 pandemic was limited.

• It was unforeseen that whiting fishery participants would still be dealing with the reduced fishing capacity and operational shutdowns due to COVID-19 one year later.

• It was unforeseen that the fishing industry would not be vaccinated for COVID-19 by the start of the 2021 fishing season. Ready access to vaccinations is unknown throughout the duration of the whiting season.

• The increase and spread of COVID-19 variants is recent and unforeseen.

• It was unforeseen how the development and implementation of local, State and national health directives would impact the fishing industry in response to a vessel outbreak in the fishing industry.

Under these emergency measures, temporarily lifting the restriction on MS and C/P operations would increase the likelihood that MS catcher vessels have markets to which to deliver catch throughout the 2021 fishing season. The operational flexibility provided in this emergency action would prevent significant direct economic loss to at-sea whiting fishery participants and fishing communities. These measures will allow catcher vessels to harvest MS sector allocations and provide catch revenue to the respective vessel crews. In the event that additional processing vessels cannot commit to taking deliveries from catcher vessels for the remainder of the 2021 Pacific whiting season (due to changes in business plans or because a processing vessel is rendered inoperable due to COVID-19 outbreaks, for example) this emergency rule may provide additional harvesting and processing opportunities for at-sea Pacific whiting fishery participants. This action would help promote health and human safety by allowing processing vessels to quarantine while minimizing economic harm to at-sea whiting catcher vessels. This action would provide operational flexibility for up to six MS permits that would allow processing vessel owners and operators to plan and make decisions that do not require a tradeoff in health and human safety for economic opportunity.

In light of best available information, the status of the whiting resource, and the potential social and economic costs of maintaining the existing permit transfer restrictions, NMFS finds that an emergency exists, and regulations are necessary to address the emergency.

This emergency action removes restrictions prohibiting an at-sea Pacific whiting processing vessel from operating as a MS or C/P in the same calendar year, effective May 14, 2021. This action temporarily (for 180 days) allows a processing vessel to operate as both an MS and C/P in the same calendar year, but not on the same trip. This action does not modify or change any other aspects of the at-sea Pacific whiting fishery. Owners of processing vessels that intend to operate as both an MS and a C/P during the 2021 Pacific whiting season must follow this procedure:

(1) Submit a request to register for both processing permits. The vessel may be registered under both an MS permit and a C/P endorsed permit simultaneously for the duration of the emergency rule. The owner of a processing vessel currently registered under a C/P endorsed permit may also operate as an MS by submitting a request to NMFS Permits to register the processing vessel under a valid MS permit per regulations in 50 CFR 660.25(b). The owner of a processing vessel currently registered under an MS permit may also operate as a C/P by submitting a request to NMFS Permits to register the processing vessel under a valid C/P endorsed permit per regulations in 50 CFR 660.25(b).

(2) Submit a notification of a material change to coop agreement within 7 days. To operate in the MS fishery ( i.e., receive deliveries of catch from MS catcher vessel and process MS sector allocations at-sea) the vessel must be included in the MS coop agreement. To operate in the C/P fishery ( i.e., catch and process C/P sector allocations at-sea) the vessel must be included in the C/P coop agreement. Including a new vessel in either the MS or C/P coop agreement constitutes a material change to the coop agreement. Within 7 calendar days of the new processing vessel operating for the first time in either the 2021 MS coop fishery or the 2021 C/P coop fishery, the respective coop manager must notify NMFS in writing of such change to the coop agreement as required in regulations at 50 CFR 660.150(d)(1)(iii)(B)( 4) and 50 CFR 660.160(d)(1)(iii)(B)( 4 ).

(3) Submit a revised coop agreement within 30 days of material change to the coop agreement. Within 30 days of a new vessel participating in a coop fishery, the MS or C/P coop manager must submit a revised coop agreement to NMFS that lists all vessels and/or processing vessels operating in the respective coop and includes the new processing vessel, along with a letter describing the change to the coop agreement, as required in regulations at 50 CFR 660.150(d)(1)(iii)(B)( 4) and 50 CFR 660.160(d)(1)(iii)(B)( 4 ).

(4) Change vessel declaration before each fishing trip. For each trip, the vessel must update its vessel monitoring system (VMS) declaration to reflect its activity for that trip prior to departure as specified in existing groundfish regulations at 50 CFR 660.13(d)(4)(iv)(A). The declaration is binding for the duration of the trip and may not be changed until completion of the trip. A processing vessel must submit one of the following declarations: (a) Limited entry midwater trawl, Pacific whiting catcher/processor sector; or (b) Limited entry midwater trawl, Pacific whiting mothership sector (mothership).

(5) Economic Data Collection (EDC) Program. A separate EDC form is required for the owner, lessee, charterer of a mothership vessel registered to an MS permit as well as owner, lessee, charterer of a catcher processor vessel registered to a C/P-endorsed limited entry permit. If a vessel holds both types of permit in one calendar year, two EDC forms must be submitted as specified at 50 CFR 660.114.

(6) Expiration of Emergency Measures. Vessels that have operated as both an MS and C/P in 2021 would be required to cease operations for the remainder of the year following expiration of these emergency measures, unless otherwise extended. NMFS will notify any such vessels, prior to expiration, to limit the potential impact of expiration of these measures.

The Magnuson-Stevens Act limits NMFS's emergency action authority to an initial period of 180 days, with a potential extension up to an additional 186 days, if warranted. The public has an opportunity to comment on the initial emergency action (see ADDRESSES ). After considering public comments on this emergency rule, NMFS may take action to extend the emergency measures before expiration.

The NMFS Assistant Administrator has determined that this emergency rule is consistent with the Pacific Coast Groundfish FMP, section 305(c) and other provisions of the Magnuson-Stevens Act, the Administrative Procedure Act (APA), and other applicable law. Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries finds prior notice and public comment is not required because it would be impracticable and contrary to the public interest. This emergency action was recommended by the Council following a letter and comments from members of the public representing the at-sea whiting industry during the March 2021 Council meeting. Providing prior notice through proposed rulemaking and public comment period in the normal rulemaking process would be counter to public interest by delaying implementation of emergency measures intended to provide relief for a time sensitive management problem. Implementing this action as soon as possible maximizes the time available for the at-sea industry to adjust business plans for the year. For the reasons outlined above, NMFS finds it impracticable and contrary to the public interest to provide prior notice and public comment on these emergency measures.

Additionally, this rule is exempt from the 30-day delayed effectiveness provision of the APA under 5 U.S.C. 553(d)(1) because it alleviates a restriction that would place MS-dependent catcher vessels at an economic disadvantage in the 2021 Pacific whiting fishery. Immediate implementation of this rule is necessary to allow the at-sea sectors sufficient time to plan operations and maximize flexibility provided by this action. Maintaining the prohibition on vessels operating as both an MS and C/P in the same calendar year would present immediate serious economic impacts without contributing to the economic goals of the Catch Share Program, at-sea MS cooperative or C/P cooperative.

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

The Regulatory Flexibility Act does not apply to this emergency rule because prior notice and opportunity for public comment is not required.

This emergency action includes record keeping and reporting requirements previously approved by the Office of Management and Budget (OMB) under OMB Control Number 0648-0573: Expanded Vessel Monitoring System (VMS) Requirements for the Pacific Groundfish Fishery. Prior to leaving port, an at-sea Pacific whiting processing vessel must declare whether it will be operating in the MS sector or the C/P sector for each trip. Vessels in fisheries off West Coast states must declare through VMS the gear type and sector in which they will participate, including the limited entry midwater trawl and Pacific whiting MS and C/P sectors, as specified in existing groundfish regulations at 50 CFR 660.13(d)(4)(iv)(A). The number of declaration reports the vessel operator is required to submit to NMFS would not change under this action. In addition, this action does not change existing recordkeeping and reporting requirements. Therefore, no entity would be subject new reporting requirements under this emergency action.

For the reasons set out in the preamble, 50 CFR part 660 is amended as follows: