This correction is being published to correct section 2, paragraph (b)(3)(i)(A) of the Dry Beans Crop Insurance Provisions published June 24, 2021 (86 FR 33081-33085). The term “you” was inadvertently omitted and is being added in this correction.

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

The FAA has received reports indicating that several of the fittings that provide attachment between the radome and fuselage were cracked to the point of failure. The radome to fuselage fittings were part of the ViaSat In-Flight Connectivity (IFC) System Antenna Provisions installed in accordance with FAA STC ST04096CH on Model 737-800 and -900ER series airplanes. This failure of the attachment fittings, if not addressed, could result in loss of the radome and antennae, and consequent damage to the tail and damage to the fuselage in the vicinity of the radome, which could reduce the ability of the flightcrew to maintain safe flight and landing 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 Astronics Armstrong Aerospace Engineering Order, “ViaSat In-Flight Connectivity (IFC) System DE-MOD Boeing 737-800/-900ER Series Aircraft,” Document No. EO23-9642-02, Revision B, dated April 25, 2016. This service information specifies procedures for demodification of the STC installation by removing the external equipment (including radome, antenna, and associated structure) that was installed in accordance with FAA STC ST04096CH, and installing doubler and fasteners (de-mod kit), and system deactivation by pulling and collaring associated circuit breakers.

The FAA also reviewed Astronics Connectivity Systems and Certification Service Bulletin SB44-9642-01, dated July 8, 2021. This service information specifies procedures for inspecting the external and feed-through doublers, intercostals, skin, and frames in the area around the removed external equipment for cracking. The inspections include an external low frequency eddy current (LFEC) inspection of the skin at the alteration installation area, doubler fastener holes in the first two rows of attachments between the doubler and fuselage skin, fastener and connector hole locations, the external doublers between fasteners at the area common to the stringers, and at the area common to the frame tees; an internal high frequency eddy current (HFEC) inspection of the intercostal at the fastener locations and the frames in the area of added frame segments; an internal detailed visual inspection of the frames between stringers 3L and 3R; an open hole HFEC rotating hole inspections of the stringer fastener holes where the doublers cover the stringer; a HFEC open-hole inspection of the 4X fitting base holes common to the external doublers at the 8X AR240-1949-01 side fitting assembly locations; and an external HFEC inspection of the skin at the stringer fasteners, including all stringer fasteners which may be covered beneath the radome and adapter ring.

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. This AD also requires repairing any crack found during the inspections.

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.

There are currently no U.S.-registered airplanes affected by this AD. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3). In addition, for the foregoing reason(s), 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.

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-2021-0670 and Project Identifier AD-2021-00849-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 Surinder Sangha, Aerospace Engineer, Propulsion & Program Management Section, FAA, Chicago ACO Branch, Room 107, 2300 East Devon Avenue, Des Plaines, IL 60018; telephone 847-294-7010; fax 847-294-7834; email: surinder.sangha@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.

Currently, there are no affected U.S.-registered airplanes. For any affected airplane that is imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GEAC H75-200, H80-100, and H80-200 model turboprop engines. The NPRM published in the Federal Register on April 20, 2021 (86 FR 20465). The NPRM was prompted by several reports of engine gas generator speed (Ng) rollbacks occurring below idle on GEAC H75-200, H80-100, and H80-200 model turboprop engines. The NPRM proposed to require an inspection of a certain P/N FCU and, if deficiencies are detected, replacement of the FCU with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD 2020-0082, dated April 1, 2020 (referred to after this as “the MCAI”), to address the unsafe condition on these products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0316.

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

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 products. This AD is adopted as proposed in the NPRM.

The FAA reviewed GE Aviation Czech Alert Service Bulletin (ASB) No. ASB-H80-73-00-00-0052[00]/ASB-H75-73-00-00-0022[00] (single document), Revision 00, dated February 6, 2020. The service information specifies procedures for performing a functional inspection of the FCU, P/N LUN 6590.07-8, and replacing the FCU. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 33 engines installed on airplanes of U.S. registry.

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

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

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

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

For the reasons discussed above, I certify 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:

Pursuant to Section 304(b) of the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1434(b)), NOAA published the designation and final regulations to implement the designation of WSCNMS on June 23, 2021 (86 FR 32737). As required by the NMSA, the designation and regulations would become effective following the close of a review period of 45 days of continuous session of Congress beginning on the date of publication. The regulations are effective on August 16, 2021. Section 922.216(a) is amended to reflect the effective date of August 16, 2021.

As discussed in the final rule, the regulations at § 922.213(a)(2), which prohibit grappling into or anchoring on shipwreck sites, are stayed and will not become effective until October 1, 2023.

Accordingly, for the reasons set forth above, NOAA amends part 922, title 15 of the Code of Federal Regulations as follows:

Parole Commission is publishing an interim rule with a request for comments which would permit a single commissioner to reopen the case of a parole eligible DC Code offender and retard the parole effective date for up to 120 days when the Commission receives information that the prisoner has committed new disciplinary infractions. Currently, under 28 CFR 2.86(b), two commissioner votes are needed to take this action. One commissioner can already reopen and retard a case for up to 120 days without a hearing for release planning purposes, i.e., to develop a release plan, or obtain placement in a Residential Re-entry Center, and changing the procedure to one commissioner is consistent with the voting rules for U.S. Code sentenced prisoners. This action, as with other decisions to retard a parole date by a limited period of time without conducting a hearing, allows the Commission the flexibility to take prompt action to impose a short sanction for minor misconduct, but conserve the decision to release the prisoner on parole. With many prisoners transitioning to the community through Residential Re-entry Centers earlier and more frequently, there is a benefit to permitting one commissioner to make the decision to sanction misconduct on the record with minimal disruption to the release planning process.

The Commission is promulgating this rule as an interim rule and is providing a 60-day period for public comment. The amended rule will take effect upon publication in the Federal Register .

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulation Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13565, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. The Commission has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

This rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and they will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

This rule is not a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E-Congressional Review Act, now codified at 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, this is a rule of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, the U.S. Parole Commission amends 28 CFR part 2 as follows:

Since 2000, the Commission has maintained a general policy at 28 CFR 2.218(e), that it would impose the maximum permissible term of supervised release as a consequence of the revocation of an earlier supervised release term for offenders sentenced under the D.C. Code. The policy was based on the judgment that, for most cases, a supervised release violator has, by virtue of committing violations that are serious enough to justify revocation, shown the need for further supervision to the limits allowed by law.

Based upon its experience with the D.C. Code sentenced supervised releasees for over 20 years, the Commission has determined that this policy should be repealed. Under the reviewed regulation the Commission will retain the discretion to impose the maximum permissible term when it finds that the offender would benefit from a lengthier period of supervision, but there will no longer be a policy guiding that decision.

The Commission is promulgating this rule as an interim rule and is providing a 30-day period for public comment. The revised rule will take effect upon publication in the Federal Register .

This regulation has been drafted and reviewed in accordance with Executive Order 12866, “Regulation Planning and Review,” section 1(b), Principles of Regulation, and in accordance with Executive Order 13565, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation. The Commission has determined that this rule is not a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget.

This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Under Executive Order 13132, this rule does not have sufficient federalism implications requiring a Federalism Assessment.

This rule will not have a significant economic impact upon a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 605(b).

This rule will not cause State, local, or tribal governments, or the private sector, to spend $100,000,000 or more in any one year, and they will not significantly or uniquely affect small governments. No action under the Unfunded Mandates Reform Act of 1995 is necessary.

This rule is not a “major rule” as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 Subtitle E-Congressional Review Act, now codified at 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on the ability of United States-based companies to compete with foreign-based companies. Moreover, this is a rule of agency practice or procedure that does not substantially affect the rights or obligations of non-agency parties, and does not come within the meaning of the term “rule” as used in Section 804(3)(C), now codified at 5 U.S.C. 804(3)(C). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.

Accordingly, the U. S. Parole Commission amends 28 CFR part 2 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 doing so would be impracticable. The Coast Guard did not receive the final details for this event until there was insufficient time remaining before the event to publish a NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect the public and vessels from the hazards associated with the filming event occurring on August 17, 2021.

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). From 7 a.m. through 8 p.m. on August 17, 2021, a filming event involving floating debris will take place on Lake Michigan near the northeast corner of Navy Pier in Chicago, Illinois. The Captain of the Port Lake Michigan has determined that the floating debris will pose a significant risk to public safety and property. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the filming event is taking place.

This rule establishes a temporary safety zone from 7 a.m. through 8 p.m. on August 17, 2021. The safety zone will encompass all navigable waters on Lake Michigan within a rectangle bounded by a line drawn beginning at the northeast corner of Navy Pier, then extending north 150 feet, then 500 feet west, then 150 feet south, then east back to the point of origin. The duration of the zone is intended to protect personnel, vessels, and the marine environment on the navigable waters of Lake Michigan. Mariners are urged to use caution when transiting the area and are urged to stay north of the marine event. No vessel or person will be permitted to enter the safety zone without obtaining permission from the Captain of the Port Lake Michigan or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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 and duration of the safety zone. Local industry partners in the area have been notified of the marine event and have been made aware that traffic must stay north of the marine event. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM Channel 16, on scene designated representatives notifying boaters of the regulated area, and Local Notice to Mariners.

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 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 safety zone lasting 13 hoursencompassing all navigable waters on Lake Michigan within a rectangle bounded by a line drawn near the northeast corner of Navy Pier in Chicago, Illinois. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the party conducting the work notified the Coast Guard with insufficient time to accommodate the comment period. It is impracticable to publish an NPRM because we must establish this safety zone by August 23, 2021.

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 impracticable because immediate action is needed to respond to the potential safety hazards associated with replacing the power lines.

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 Detroit (COTP) has determined that potential hazards associated with the bridge demolition starting August 23, 2021, will be a safety concern for anyone transiting under the bridge. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the bridge is being demolished.

This rule establishes a safety zone on August 23, 2021 through August 27, 2021. The safety zone will be enforced Monday through Friday from 7 a.m. until 5 p.m. The safety zone will cover all navigable waters from surface to bottom, below the old Michael V. DiSalle Memorial (I-75) Bridge located at 41°37′31.2″ N 83°32′31.1″ W. A marked 100 foot wide channel will be provided for vessels to pass through the demolition area. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the bridge is being demolished. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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 size, location, duration, and time-of-day of the safety zone. Vessel traffic should not be influenced by the safety zone, and will be able to pass through the safety zone in a marked channel marked by double red lights.

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 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 safety zone that will prohibit entry into the waters directly underneath the Michael V. DiSalle Memorial (I-75) Bridge while it is demolished. It is categorically excluded from further review under paragraph L[60(a)] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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 we must take immediate action to establish this safety zone by September 5, 2021, to respond to potential safety hazards associated with the the fireworks display. Potential safety hazards include the accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. Event planners did not notify the Coast Guard of details of the event until July 29, 2021.

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 impracticable because immediate action is needed to respond to the potential safety hazards associated with the fireworks display.

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, Maryland-National Capital Region (COTP) has determined that potential hazards associated with the fireworks to be used in this September 5, 2021, display will be a safety concern for anyone near these fireworks barges. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the scheduled event.

This rule establishes a temporary safety zone from 7:30 p.m. on September 5, 2021, to 10:30 p.m. on September 6, 2021. The safety zone will have two locations. These areas are “Northwest Harbor” and “Inner Harbor.”

Northwest Harbor safety zone will cover all navigable waters of the Patapsco River within 800 feet of the fireworks barge in approximate position latitude 39°16′36.7″ N, longitude 076°35′53.8″ W, located northwest of the Domino Sugar refinery wharf at Baltimore, MD.

Inner Harbor safety zone will cover all navigable waters of the Patapsco River within 300 feet of the fireworks barge in approximate position latitude 39°17′01″ N, longitude 076°36′31″ W, located approximately 320 feet southwest of Inner Harbor pier 3 at Baltimore, MD.

The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the scheduled 8:30 to 8:45 p.m. fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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, duration, and time-of-day of the safety zone, which will impact small designated areas of the Patapsco River for 3 hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about 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 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 safety zone lasting only 3 hours that will prohibit entry within a portion of the Patapsco River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On June 10, 2021, EPA published a Notice of Proposed Rulemaking (NPRM) for the States of Maine and New Hampshire. See 86 FR 30854.

The NPRM proposed approval of Maine and New Hampshire SIP revisions that address the CAA requirement prohibiting emissions from each of these states, considered separately, from adversely affecting air quality in other states for the 2015 ozone National Ambient Air Quality Standards (NAAQS). The SIP revisions were submitted to EPA by Maine on February 6, 2020, and by New Hampshire on September 5, 2018. The rationale for EPA's proposed action is given in the NPRM. EPA received no public comments on the NPRM.

As part of our rationale for approving the Maine and New Hampshire SIPs in the proposal, EPA relied on historical trends in National Emissions Inventory (NEI) data. The data demonstrate a downward trend in emissions in Maine and New Hampshire, adds support to the air quality analyses presented in the proposal for each state, and indicates that the contributions from emissions from sources in Maine and New Hampshire to ozone receptors ( i.e., air quality monitors) in downwind states will continue to decline. For each state, the data indicate that contributions will remain below one percent of the NAAQS. Since the publication of the proposed approval, EPA has made minor updates to the NEI data for the years 2017 through 2019. As a result of these updates, reported emissions during these years for both New Hampshire and Maine have been slightly reduced. These minor updates do not impact our decision to approve SIPs for each of these states, nor do they change our rationale for doing so, as the reduced emissions continue to support our approval decision. We have included the updated emissions data in the docket for this action. 1

EPA is approving, as revisions to the Maine and New Hampshire SIPs, each state's SIP revisions, submitted on February 6, 2020, and September 5, 2018, respectively. These revisions are approved as meeting CAA section 110(a)(2)(D)(i)(I) requirements that emissions from each state, considered separately, do not contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state.

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

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

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

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

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

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

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

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

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

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where 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 October 18, 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).)

EPA is approving changes to the Tennessee SIP that were provided to EPA under cover letters dated February 26, 2020. 1 Specifically, the State requested that Tennessee Air Pollution Control Regulations (TAPCR) 1200-03-29 and Davidson County Regulation 8 be removed from the Tennessee SIP. 2 In addition, Tennessee requested that EPA remove the requirements for the Middle Tennessee Area  3 4 and Hamilton County to implement an I/M program as part of the Early Action Compact (EAC) that was approved by EPA into the non-regulatory portion of the Tennessee SIP on August 26, 2005. See 70 FR 50199. EPA is approving these requests because the SIP revisions are consistent with the CAA, including section 110(l).

On May 15, 2018, a Tennessee law was signed that states that “no inspection and maintenance program shall be employed in this state on or after the effective date of this act.” See Tenn. Code Ann. section 68-201-119. The Tennessee law states that it “shall take effect [120] calendar days following the date on which the [EPA] approves a revised state implementation plan. . . .” See Motor Vehicles—Inspection and Inspectors—Air Pollution, 2018 Tennessee Laws Pub. Ch. 953 (H.B. 1782). Accordingly, Tennessee submitted the February 26, 2020, SIP revisions requesting that EPA remove the provisions that implement an I/M program for the Middle Tennessee Area and for Hamilton County from the Tennessee SIP. 5

EPA published notices of proposed rulemaking (NPRMs) on June 8, 2020, and June 11, 2020, responding to Tennessee's February 26, 2020, SIP revisions requesting that EPA approve removal of the I/M program from the Tennessee SIP for the Middle Tennessee Area and for Hamilton County, respectively. See 85 FR 35037 and 85 FR 35607. The June 8, 2020, and June 11, 2020, NPRMs (hereinafter referred to as the June 2020 NPRMs) were based on EPA's proposed findings that the removal of the I/M program from the Tennessee SIP for the Middle Tennessee Area and for Hamilton County will not interfere with attainment or maintenance of any national ambient air quality standards (NAAQS or standards) or with any applicable requirements of the CAA. See EPA's June 2020 NPRMs. Comments were due on July 8, 2020, and July 13, 2020, respectively. Adverse comments were received on the June 2020 NPRMs and are addressed in Section IV of this final rulemaking.

On April 22, 2021, EPA published a supplemental notice of proposed rulemaking (hereinafter referred to as the April 2021 SNPRM) to seek public comment on the Agency's additional and clarified technical rationale related to the proposed approval of Tennessee's February 26, 2020, SIP revisions. See 86 FR 21248. The April 2021 SNPRM proposed to affirm that the Hamilton County and Middle Tennessee areas would continue to attain and maintain the NAAQS after removal of the I/M program, and to rely on an emissions inventory comparison to inform its determination that both areas would continue to attain and maintain the ozone and carbon monoxide (CO) NAAQS. See 86 FR 21248. In the April 2021 SNPRM, EPA further proposed to conclude that the removal of the I/M program will not interfere with the ability of other states to attain and maintain the 2008 ozone NAAQS under the good neighbor provision of the CAA and provided additional information related to that conclusion. See 86 FR 21248. Comments on the April 2021 SNPRM were due May 24, 2021. Adverse comments were also received on the April 2021 SNPRM and are addressed in Section IV of this final rulemaking.

As mentioned above, in this action, EPA is responding to adverse comments received of the June 2020 NPRMs. See Section IV of this final rule. Further, as relevant, EPA is responding to additional comments received on the April 2021 SNPRM and is finalizing the removal of the I/M program from Tennessee's SIP for the Middle Tennessee Area and for Hamilton County. EPA chose to issue one final rulemaking for all three proposals. See Section IV of this final rule.

EPA's CAA section 110(l) non-interference demonstration supporting approval of Tennessee's SIP revisions seeking removal of the I/M program in Hamilton County and the Middle Tennessee Area focuses on ozone (through its precursors nitrogen oxides (NO X ) and volatile organic compounds (VOC)) and carbon monoxide (CO), the criteria pollutants addressed by I/M programs. 6 I/M programs are not designed to address lead and sulfur dioxide (SO 2 ) emissions, and nitrogen dioxide (NO 2 ) is captured generally through consideration of NO X impacts. While EPA considers NO X , VOCs, ammonia, and SO 2 as precursors for particulate matter (PM), PM formation in Tennessee is dominated by emissions of SO 2 , reacting in the atmosphere to form sulfates, and not by emissions of NO X , VOCs, or ammonia. However, NO X and VOC increases are considered through the analysis for ozone. Although Tennessee is NO X -limited  7 for ozone formation, EPA also evaluated VOC emissions to be environmentally conservative in its action.

EPA used an emissions inventory comparison to inform its determination of whether Hamilton County and the Middle Tennessee Area would continue to attain and maintain the ozone and CO NAAQS after removal of the I/M program. As explained in the April 2021 SNPRM, Tennessee chose 2022 as the future year for the State's non-interference demonstrations. 8 Tennessee's non-interference demonstration utilized EPA's Motor Vehicle Emission Simulator (MOVES) modeling system, specifically MOVES2014b, to estimate ozone precursor emissions for mobile sources—both on-road and non-road. In general, an emissions comparison approach is a reasonable and valid approach to determining whether an area removing an I/M program can maintain the NAAQS and is very similar to the maintenance demonstrations that support the redesignations of areas from nonattainment to attainment and 10-year maintenance plans that are required for redesignated areas. EPA compared future year emissions (following the removal of the I/M program) to emissions in a base year with an attaining design value. 9 If the total future year emissions for the relevant pollutant(s)/precursor(s) are less than the total base year emissions, EPA considers that to be a sufficient and reasonable demonstration that the area will maintain the NAAQS where the base year emissions are at a level sufficient to achieve the NAAQS. EPA is concluding that these analyses, as described greater in EPA's April 2021 SNPRM, provide adequate support for the conclusion that the removal of the I/M program from Hamilton County and the Middle Tennessee Area is consistent with CAA section 110(l). CAA section 110(l) demonstrations are case-specific, and modeling is not required to demonstrate non-interference under these circumstances.

In the April 2021 SNPRM, EPA clarified that although Tennessee included photochemical modeling sensitivity analyses to provide additional weight of evidence in its February 26, 2020, SIP revisions, and EPA described those analyses in the June 2020 NPRMs, the photochemical modeling sensitivity analyses were not required and were not intended as the bases for EPA's proposed determinations that removal of the I/M program from Hamilton County and the Middle Tennessee Area would not interfere with attainment or maintenance of the NAAQS or any other applicable CAA requirements. EPA's conclusion that these removals satisfy CAA section 110(l) is based on the technical analyses summarized above and provided in greater detail in EPA's April 2021 SNPRM. See 86 FR 21248.

EPA received numerous comments on the June 2020 NPRMs and the April 2021 SNPRM. 10 Two state representatives expressed objection to removal of the I/M program while several state representatives expressed strong support for removal of the I/M program and urged EPA to take quick action. For this response to comments, the comments have been grouped into the following categories: (1) Air quality improvements/impacts; (2) non-interference demonstration; and (3) comments outside the scope of this rulemaking. EPA's responses to comments are provided below.

EPA received numerous comments related to air quality and the potential impact of removing the I/M program on human health and the environment. EPA's evaluation of these comments and responses is provided below.

Comment A1: Several commenters raise concerns regarding how the removal of the “carbon emissions testing program” will affect the health and wellbeing of the general population of Tennessee as well as vulnerable populations, elderly, and children. Many of these commenters are particularly concerned about those suffering from asthma or allergies. Some commenters state that vehicle emissions could cause shortness of breath, wheezing, coughing, pulmonary inflammation, and lung disease. Other commenters identify vulnerable populations, such as those with cardiovascular diseases, diabetes, or COVID-19, who could be particularly affected by vehicle emissions.

Response A1: Hamilton County and the Middle Tennessee Area are in compliance with all of EPA's NAAQS. EPA has established NAAQS for six of the most common air pollutants—CO, ozone, PM, NO 2, lead, and SO 2 —known as “criteria pollutants.” Primary NAAQS are set to protect public health with an “adequate margin of safety,” including the health of at-risk groups;  11 and secondary NAAQS are set to protect the public welfare, which includes effects on trees, plants, crops, and ecosystems. See CAA sections 108 and 109. Thus, EPA evaluates air quality criteria and impacts to public health and welfare as part of the comprehensive standard setting process. EPA's final rule revising each of the NAAQS includes a thorough explanation of human exposure and health risk assessments conducted in support of the Agency's review of evidence of exposures on human health effects, as well as detailed rationales for EPA's decisions on the relevant standards. See, e.g., 80 FR 65291 (October 26, 2015) (containing an analysis of the most recent ozone NAAQS).

As discussed in the April 2021 SNPRM, EPA conducted a technical analysis to comply with CAA section 110(l), which determined the impacts of removal of the I/M program in Hamilton County and the Middle Tennessee Area. EPA's technical analysis concludes that after removal of the I/M program, Hamilton County and the Middle Tennessee Area will continue to comply with all NAAQS, including the most stringent NAAQS. As discussed above, since the NAAQS are set to protect the public health and welfare and EPA's technical analysis shows that the areas will continue to comply with all of the NAAQS, public health and welfare will continue to be protected once the I/M program is removed from the Tennessee SIP.

Comment A2: Several commenters express concern that removing the I/M program would harm the natural ecology and wildlife of Tennessee. Another commenter wrote that removing the I/M program could negatively affect food production. Both types of comments imply that removing the I/M program would worsen air quality, resulting in problems for the surrounding natural environment.

Response A2: As mentioned in Response A1, EPA has established primary and secondary NAAQS to protect human health and the environment. Each NAAQS, with the exception of CO, has both a primary and secondary NAAQS. 12 In some cases, the primary and secondary NAAQS are set at the same level. Secondary NAAQS provide public welfare protection, including protection against decreased visibility and damage to animals, crops, vegetation, and buildings.

Hamilton County and the Middle Tennessee Area are in compliance with all secondary NAAQS. For reasons explained in EPA's June 2020 NPRMs and April 2021 SNPRM, EPA disagrees that removing the I/M program from the Tennessee SIP will cause Hamilton County or the Middle Tennessee Area to violate any NAAQS. Tennessee's technical demonstrations support EPA's conclusion that the removal of the I/M program for both Hamilton County and the Middle Tennessee Area will not interfere with attainment or maintenance of the NAAQS or any other applicable requirements of the CAA. Further information concerning EPA's evaluation of Tennessee's technical demonstrations can be found in Response B1. The commenters do not provide any technical information to support their position or indicate that interference with maintenance of the secondary NAAQS would result upon removal of the I/M program in the Middle Tennessee Area or Hamilton County. EPA has determined that upon removal of the I/M program, Hamilton County and the Middle Tennessee Area will continue to be in compliance with all secondary NAAQS, which are set to address the types of welfare concerns raised by the commenters.

Comment A3: A commenter asserts that air quality is getting worse in the Middle Tennessee Area and showing a flat trend in ozone design values in the Hamilton County region. With respect to the Middle Tennessee Area, a commenter claims that while current ozone NAAQS-related design values are below the standard, recent observations in air quality in the Area have shown an upward trend in highest ozone concentrations, indicating the reversal of improvements resulting from “existing control programs” such as Tennessee's I/M program. The commenter goes on to explain that “[a]dditionally, when comparing monitor-level 4th high ozone [maximum daily average (“MDA8”)] 13 concentrations for receptors in the Middle Tennessee region, values that are used by EPA in determining ozone attainment and designations, not a single monitor has shown a decrease between 2014 and 2018. In fact, of the five monitors in the domain, . . . three show no change in 4th high MDA8 concentrations between the two years while the other two monitors show an increase of up to 3 parts per billion (ppb) in the MDA8 concentration observed.” The commenter also points to an “upward trend in highest concentrations across all monitors, in particular the maximum concentration exceeded 0.085 in 2018.” The commenter also asserts that ozone is increasing in the Middle Tennessee Area based on EPA's Air Quality Index (AQI) and points to increases in the number of unhealthy days for sensitive groups and the maximum AQI value per year.

With respect to Hamilton County, the commenter claims that while current ozone NAAQS-related design values are below the standard in Hamilton County, recent observations in air quality in the “region” have shown a flat trend in air quality. The commenter goes on to explain that, “[w]hen comparing monitor-level ozone MDA8  14 concentrations for receptors Hamilton County, Tennessee, values that are used by EPA in determining ozone attainment and designations, neither monitor has shown air quality improvement between 2015 and 2018. In fact, . . . both monitors in the domain . . . show no change in MDA8 concentrations between the two years with increases in value (poorer air quality) in the intermediate years.”

Response A3: As discussed above in Response A1, EPA sets the NAAQS at levels protective of public health and welfare. With respect to ozone, the most recent 2015 8-hour ozone NAAQS is met if the annual 4th highest daily maximum 8-hour ozone concentration, averaged over three years, is equal to or less than 70 ppb. See, e.g., 80 FR 65292 (October 26, 2015) (containing an analysis of the most recent ozone NAAQS). In setting this standard, EPA considered all of the components of the NAAQS (indicator, averaging time, level, and form) collectively, and determined that the standard provided the requisite protection of public health and welfare. See id.

EPA agrees with the commenter that the Middle Tennessee Area and Hamilton County are currently attaining all of the ozone NAAQS, including the current 2015 8-hour ozone standard. EPA must evaluate these SIP revisions for consistency with CAA section 110(l), which prohibits the Agency from approving revisions that would interfere with any applicable requirement regarding attainment or any other CAA requirement. EPA reviews SIP revisions, like removal of the I/M program from Tennessee's SIP, to determine whether they meet the applicable requirements of the CAA, including section 110(a)(1), which requires SIPs to provide for implementation, maintenance, and enforcement of the NAAQS. See CAA section 110(k)(2), (3). EPA considers the status of an area attaining the NAAQS when EPA evaluates whether a SIP revision will interfere with attainment or maintenance of the NAAQS. 15

In response to concerns about increasing ozone concentrations raised by the commenter, EPA evaluated the air quality trends in both Hamilton County and the Middle Tennessee Area. The results of this analysis, discussed in detail in the April 2021 SNPRM, show that while both areas have observed yearly variability in measured ozone concentrations, there is not a strong increasing or decreasing trend in the ozone concentrations in either area since 2013. Both areas, along with several other areas in the southeastern United States, measured significantly higher ozone concentrations in 2012. These high concentrations were primarily the result of meteorological conditions that were very conducive to ozone formation (high temperature, low wind speed, and moderate relative humidity). Both areas have continued to attain the 2008 8-hour ozone NAAQS and the 2015 8-hour ozone NAAQS after each standard became effective. 16 EPA uses a three-year design value to determine NAAQS compliance in order to account for the inherent yearly variability in ozone concentrations due to variations in meteorology, which can impact ozone levels during periods with similar emissions levels.

As shown in Table 1 below, the highest design value for the five ozone monitors in the Middle Tennessee Area is 72 ppb in 2014 (using 2012-2014 data), 67 ppb in 2015 (using 2013-2015 data), 67 ppb in 2016 (using 2014-2016 data), 66 ppb in 2017 (using 2015-2017 data), 67 ppb in 2018 (using 2016-2018 data), 66 ppb in 2019 (using 2017-2019 data), and 65 ppb in 2020 (using 2018-2020 data). Starting with the 2013-2015 design values, the Area's design values do not indicate a strong increasing or decreasing trend and have remained below the 2015 8-hour ozone NAAQS.

EPA also evaluated the annual 4th maximum daily maximum 8-hour ozone concentrations for each site in both areas (shown in Table 3). As discussed above, it is common for monitors to measure annual variability in ozone concentrations due to several factors. These annual values do not generally indicate a strong increasing or decreasing trend at any of the monitors in the Middle Tennessee Area or Hamilton County.

Finally, for both areas, EPA evaluated the annual number of days with monitored exceedances of the 2015 8-hour ozone NAAQS, where the daily maximum 8-hour ozone concentration at any monitor in the area exceeded 70 ppb. This is equivalent to the number of days with an ozone AQI above 100 and the number of days with an AQI category of “unhealthy for sensitive groups” or worse. The results of this analysis are shown in Table 4. Similar to the data presented above, these values show year to year variability in the ozone concentrations in both areas, but neither area shows a strong increasing nor decreasing trend in the frequency of days above the 2015 8-hour ozone NAAQS.

Comment A4: Several commenters assert that air quality will worsen by no longer requiring the monitoring of emissions, and therefore the I/M program should not be removed. One commenter in reference to the Middle Tennessee Area stated that “[d]ropping the I/M program will increase NO X by 478 tons per year and VOC by 593 tons per year,” and asserts that the analysis “likely underestimates the deterioration of air quality that will occur,” concluding that the emissions increases put “Tennessee at risk of violating the standard in the future.” At least one commenter also implied that removal of the I/M program would remove the ambient air monitoring requirements for the areas.

Response A4: There is no evidence that air quality will worsen to the point of violating the NAAQS by no longer requiring periodic testing of emissions from individual vehicles in Tennessee. It is important to note that I/M programs require scheduled testing of a vehicle's tailpipe and evaporative emissions to determine the effectiveness of existing emission controls on that individual vehicle. Emissions controls are not specifically required by I/M programs but rather are required for all light-duty vehicles pursuant to EPA's vehicle emission standards, as discussed further below in this response. I/M programs reduce the emissions of certain pollutants (primarily NO X , VOC, and CO) by identifying individual vehicles with malfunctioning or deteriorated emission control systems and requiring the repair of these vehicles to bring them closer to their original certification levels. As discussed in the April 2021 SNPRM, the projected combined (point, non-point, on-road and non-road) NO X , VOC, and CO emissions increases for the 2022 scenarios with and without the I/M program will not impact the Areas' attainment of the ozone NAAQS given that total emissions of these pollutants in 2022 without the I/M program will be well under the total emissions in 2014 and given the current design values for Hamilton County and the Middle Tennessee area.

Further, EPA has promulgated multiple Federal requirements for engine and fuel standards to ensure that passenger vehicles are cleaner since the 2000s. On February 10, 2000, EPA issued the Tier 2 passenger (light duty) vehicle standards. See 65 FR 6698. The standards set stringent emissions standards for passenger vehicles, as well as limits on the amount of sulfur, a naturally occurring contaminant, in gasoline. Limiting sulfur in gasoline allows emissions reduction technologies like catalysts to be significantly more effective in reducing NO X and other pollutants. Vehicles and their fuels continue to be an important contributor to air pollution. EPA in 2014 issued standards commonly known as Tier 3, 79 FR 23414 (April 28, 2014), which considered the vehicle and its fuel as an integrated system, setting new vehicle emissions standards and a new gasoline sulfur standard beginning in 2017. The vehicle emissions standards reduce both tailpipe and evaporative emissions from passenger cars, light-duty trucks, medium-duty passenger vehicles, and some heavy-duty vehicles. The gasoline sulfur standard enables more stringent vehicle emissions standards and makes emissions control systems more effective. These rules further cut the sulfur content of gasoline. Cleaner fuel makes possible the use of new vehicle emission control technologies and cuts harmful emissions in existing vehicles. These standards will continue to reduce atmospheric levels of ozone (of which NO X and VOC are the primary precursors), PM, NO 2, and toxic pollution. Also, cessation of the I/M program will not yield an immediate change in vehicle emissions. The I/M program's benefits will continue for a period of time after its cessation, as vehicles inspected and/or repaired up until that time would continue to operate in a manner that meets the emissions specification of the program.

EPA also notes that the removal of the I/M program from Tennessee's SIP does not remove the ambient air quality monitoring requirements that the State must comply with pursuant to 40 CFR part 58. Ambient air quality monitoring will continue in these areas without the I/M program in Hamilton County and the Middle Tennessee Area.

Comment A5: Some commenters mention that air quality is poor in Hamilton County and the Middle Tennessee Area. Commenters refer to 2018 and 2019 reports from the American Lung Association (ALA). 17 One commenter states that in the 2019 ALA report, “Hamilton County received a `D' rating, ranking it among the worst counties in Tennessee for air quality.” Other commenters express concern with breathing unhealthy air in Nashville, with one commenter stating that in 2019, “Nashville plummeted to the bottom of the American Lung Association's [ALA's] State of Air report with unhealthy levels of ozone that put `citizens at risk for premature death and other health effects. . . .' ” Commenters state that “Tennessee achieved attainment status in 2017” but also note that the ALA's “annual State of Air Report indicates air quality across the country is beginning to decline,” and that 4 in 10 Americans are living with unhealthy air. A commenter further states that “Emissions testing is important to ensure Tennessee stays in attainment and continues to improve its air quality.” Additionally, a commenter cites to the ALA report to assert that—while ozone levels are improving—PM 2.5 levels are becoming worse, in part due to climate change-driven wildfires. The commenters also request that EPA “allow local governments the ability to opt-in to testing and use this tool to protect air quality.”

Response A5: First, EPA notes that Tennessee is meeting all of the NAAQS for all areas in the State with one exception, discussed below. As further detailed in EPA's June 2020 NPRMs and EPA's April 2021 SNPRM, air monitoring data for EPA's most recent and stringent health-based NAAQS demonstrate compliance with these NAAQS in most areas of Tennessee, including Hamilton County and the Middle Tennessee Area. State and local agencies submit air monitoring data annually, and EPA evaluates this data for compliance with the NAAQS. 18 See 40 CFR part 58. Tennessee's 2020 data for compliance with the NAAQS was certified in April 2021. EPA has a robust process to establish the NAAQS and sets the NAAQS at a level requisite to protect human health and the environment. Tennessee's compliance with the NAAQS inherently means that citizens in such areas are breathing air that is protective of human health. Second, EPA notes that ALA uses a different methodology in “grading” areas than EPA uses in evaluating areas for compliance with the NAAQS. See 2019 ALA report pages 51-54 (discussing the methodology used by ALA in grading areas). As discussed in Response A3, EPA evaluates SIP revisions for compliance with the NAAQS. EPA notes that the statement in the ALA report that 4 in 10 Americans are living with unhealthy air is not a direct reference to areas in Tennessee. With respect to the assertions regarding PM 2.5, please see response A6, below.

With respect to commenters' assertions that the I/M program should be maintained to ensure continued compliance with the NAAQS and requests that local areas be allowed to opt-in to I/M programs, EPA disagrees in part. EPA notes that Tennessee currently implements the I/M program as part of the State's discretionary measures to attain and maintain the NAAQS. CAA section 110(l) provides that the Administrator cannot approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment, or any other applicable requirement of the CAA. In addition, section 110(k) of the CAA requires EPA to approve SIP revisions that meet all applicable CAA requirements. As further discussed in the April 2021 SNPRM, EPA has determined that section 110(l) requirements have been met because removal of the I/M program will not interfere with attainment or maintenance of any NAAQS or any other requirement of the CAA. Therefore, because EPA has determined that the SIP revisions meet all applicable requirements, EPA is approving Tennessee's request to remove the I/M program from the SIP. EPA's action to remove the I/M program does not preclude the state or local government from maintaining an I/M program at the state or local level.

The one exception where Tennessee's air quality does not meet the NAAQS is a portion of Sullivan County, Tennessee, that encompasses the Eastman Chemical Plant. In 2013, EPA designated a portion of Sullivan County nonattainment for the 2010 1-hour SO 2 NAAQS. CAA section 191 requires Tennessee to develop a plan to bring the area back in attainment with the SO 2 NAAQS as expeditiously as possible. As noted in the June 2020 NPRMs (85 FR 35037 and 85 FR 35607) and the April SNPRM (86 FR 21248), the pollution control systems for light-duty gasoline vehicles subject to the I/M program are not designed to reduce emissions for SO 2 ; therefore, removing the I/M program requirements will not have any impact on ambient concentrations of SO 2 .

Comment A6: Some commenters assert that removal of Tennessee's I/M program would cause greater increases or would exacerbate issues with pollutants uninvolved in ozone formation ( i.e., pollutants other than NO X or VOC). Others worry that removing the I/M program as Tennessee grows warmer would result in increased ozone formation. The commenters also mention concerns about greater emissions in PM pollution, CO, and greenhouse gases (GHGs) ( i.e., methane and carbon dioxide (CO 2 )). Some of the commenters that are worried about an increase in GHGs have concerns stemming from a general worry about climate change. Another commenter expresses concerns about increases in emissions in general, but also acknowledges that ozone formation in Tennessee appears to be limited by NO X .

Response A6: With regard to PM emissions, EPA noted in the June 2020 NPRMs and the April 2021 SNPRM that I/M programs are not designed to reduce direct PM emissions. In fact, EPA's state-of-the-science Motor Vehicle Emission Simulator modeling system, MOVES, calculates no benefit for direct PM emission reductions from an I/M program. In addition, EPA notes that, separate and apart from I/M, there may be PM emission benefits in future years due to expected fleet turnover and continued implementation of EPA's engine and fuel standards. Furthermore, PM formation in Tennessee is dominated by sulfates. As noted in the June 2020 NPRMs and the April 2021 SNPRM, Hamilton County and the Middle Tennessee Area are well in compliance with the PM standards.

As noted in the June 2020 NPRMs and the April 2021 SNPRM, Hamilton County and the Middle Tennessee Area are well in compliance with the CO standards. In support of its non-interference demonstration and as discussed in EPA's June 2020 NPRMs and April SNPRM, Tennessee used the MOVES2014b mobile emissions modeling to determine the change in emissions for CO resulting from the removal the I/M program in Hamilton County and the Middle Tennessee Area. The results show an increase in CO emissions of 6.9 percent for Hamilton County, and of 6.1 percent for the Middle Tennessee Area for scenarios in 2022 with and without the I/M program. However, there is a decrease in total CO emissions from all source categories from 2014 to 2022. For reasons described in the April 2021 SNPRM, EPA has concluded the removal of the I/M program from Hamilton County and the Middle Tennessee Area is consistent with the CAA.

In terms of ozone, EPA agrees with the commenter that Tennessee is NO X limited, making it the precursor of most consideration related to potential impacts. As discussed in the April 2021 SNPRM, there is a decrease in total NO X emissions from all source categories from 2014 to 2022. EPA also notes that the I/M program does not have a direct impact on GHGs and is not designed to reduce emissions associated with climate change, such as GHGs.

Comment A7: Some commenters assert that rural and urban areas face different issues when it comes to pollution and air quality. In particular, commenters are concerned that dropping the I/M program in urban areas, which they claimed tend to have significantly more emissions, would increase emissions not only for those areas, but also for surrounding rural areas, and potentially cause future violations of the standard.

Response A7: EPA agrees that air quality is important. As discussed in EPA's June 2020 NPRMs and April 2021 SNPRM, Hamilton County and the Middle Tennessee Area are in attainment or maintenance for all criteria pollutants. The Agency has provided detailed information showing that the monitors in Hamilton County and the Middle Tennessee Area that collect complete, quality assured and certified data for recent years have design values that are less than the ozone, PM, and CO standards. The design values and recently certified data, in combination with the emissions inventory analysis, demonstrate that the areas will continue to meet the NAAQS, even as population and vehicles increase not only in Hamilton County and the Middle Tennessee Area, but statewide. While commenters seem to make a distinction between emissions from urban areas versus rural areas, the commenters do not provide information to indicate that removal of the I/M program in Hamilton County and the Middle Tennessee Area will cause a violation of the NAAQS in those areas or any surrounding rural areas. As mentioned in Response A4, EPA also notes that removal of the I/M program from the Tennessee SIP does not impact Federal vehicle and fuel standards that EPA has promulgated in separate rulemakings, and such standards will continue to result in significant emission reductions from the operation of vehicles, whether in rural or urban areas.

Comment A8: A commenter implies that removal of the I/M program will interfere with future visibility at the Great Smoky Mountains National Park.

Response A8: EPA disagrees with the commenter's assertion that removal of the I/M program will interfere with visibility at the Great Smoky Mountains National Park. Visibility impairment in the Southeast is primarily dominated by sulfates. Sulfate particles form in the air from SO 2 gas. Most of this gas is released from coal-burning power plants and other industrial sources, such as smelters, industrial boilers, and oil refineries. As discussed in the June 2020 NPRMs and the April 2021 SNPRM, the pollution control systems for light-duty gasoline vehicles subject to the I/M program are not designed to reduce emissions of SO 2 or the broader group of sulfates. In addition, as discussed in the April 2021 SNPRM, total NO X emissions in 2022 without the I/M program are significantly less than total NO X emissions in 2014 for the Middle Tennessee Area and Hamilton County. 19 EPA also notes that there are separate CAA requirements related to visibility impairment, known as regional haze, that all states must comply with. Removal of the I/M program will not remove these requirements which are separate and apart from the I/M requirements that individual areas may have.

Comment A9: Several commenters express concerns about population and vehicle growth and the possible impacts on air quality.

Response A9: As mentioned in more detail in this final rulemaking, vehicles are, and continue to become, cleaner because of EPA's engine and fuel standards. Although the population may grow and lead to more vehicles, new vehicles will be covered by the most recent vehicle emissions standards and be operated with gasoline that complies with the most recent Federal requirements.

Comment A10: A commenter states that “In east Tennessee there is no air emissions testing and the air quality is very poor. The transportation sector is a major contributor of poor air quality, therefore all vehicles must meet the original manufacturers specification's and all aftermarket modifications to vehicle exhaust and emissions equipment must be made illegal.”

Response A10: EPA does not agree with the commenter that air quality is very poor in east Tennessee. As mentioned in Response A1, all areas in Tennessee are in compliance with the NAAQS with the exception of a small portion of Sullivan County in the eastern part of the State that is designated as nonattainment for the SO 2 NAAQS. Also, EPA does not understand what the commenter means by “. . . no air emissions testing.” As noted in Response A4, this action does not remove the ambient air quality requirements that Tennessee is subject to statewide. To the extent that the commenter is referring to vehicle emissions testing, EPA notes that, with respect to SIPs, “each State is given wide discretion in formulating its plan,” so long as the revision is consistent with the CAA, including section 110(l). See Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976); see also Alabama Envtl. Council v. EPA, 711 F.3d 1277, 1280 (11th Cir. 2013), Sierra Club v. EPA, 939 F.3d 649, 673 (5th Cir. 2019), and Alaska Dep't of Envtl. Conservation v. EPA, 540 U.S. 461, 470 (2004).

EPA agrees with the commenter that the transportation sector is an important sector for maintaining air quality and, as discussed in Response A4, EPA has taken steps to control emissions from the transportation sector, such as the Federal vehicle and fuel standards that will continue to provide benefits without the implementation of the I/M program in Tennessee. EPA also notes that the commenter's statements related to vehicle exhaust and emissions equipment are not impacted by or within the scope of this rulemaking.

Comment A11: One commenter suggests that the topography of Chattanooga would exacerbate poor air quality if EPA removed the local I/M program. Specifically, the Commenter explains that since Chattanooga is surrounded by mountains, the city suffers from a “well-known inversion effect” that traps pollutants in it during certain times of the year. Another commenter explains that Nashville sits in a depression called the “Nashville or Central Basin,” which tends to cause air to stagnate over the entire area. Both commenters argue that these unique geographical features would exacerbate poor air quality if EPA removed the I/M program.

Response A11: EPA disagrees that Hamilton County and the Middle Tennessee Area have “poor air quality,” as both areas currently meet all of the NAAQS, which is explained in more detail in Response A1. EPA does not have evidence to indicate that the removal of the I/M program from either Hamilton County or the Middle Tennessee Area will exacerbate poor air quality because of the unique geographical features in each area. While it is important to identify and mitigate vehicles that are not properly functioning and as a result may increase emissions, most vehicles are not producing increased emissions. Since the 2000s, with EPA's promulgation of Federal requirements for engine and fuel standards, passenger vehicles are cleaner. See Response A4 for more information on the engine and fuel standards.

Comment A12: A commenter asserts that COVID-19 pandemic has had an anomalous impact on air quality improvements in 2020, and indicates that removal of the Tennessee I/M program should not be considered until after newer trends in air quality are available. The commenter cites to three documents to assert that “lockdown events have reduced the population-weighted concentration of nitrogen dioxide (NO 2 ) and particulate matter levels by about 60% and 31% across multiple countries, with mixed effects on ozone.”

Response A12: EPA disagrees with the commenter's implication that newer trends in air quality would be necessary to make the determination on whether removal of the I/M program would interfere with attainment or maintenance of the NAAQS in any area as a result of removal of the program from the Tennessee SIP. As detailed in EPA's April 2021 SNPRM and briefly described in Section III of this final rule, EPA used an emissions inventory comparison approach in which total emissions in 2014 were compared to total projected emissions in 2022. EPA's use of projected emissions in 2022 did not consider any potential reduction of emissions or improvements in air quality that might be sustained through changes in behavior that citizens in Hamilton County and the Middle Tennessee Area might have made as a result of the COVID-19 pandemic. Additionally, the commenter did not provide any information or analysis indicating that consideration of 2020 air quality improvements would impact the non-interference demonstration.

In EPA's April 2021 SNPRM, for the Middle Tennessee Area, EPA explained that the difference in NO X emissions in 2022, with and without the I/M program, is 479 tons per year (tpy) for NO X and 594 tpy for VOC. However, the total NO X emissions in 2022 without the I/M program are 22,420 tpy less than the total NO X emissions in 2014, and total VOC emissions in 2022 without the I/M program are 6,272 tpy less than the total VOC emissions in 2014. For CO, the difference in emissions in 2022, with and without the I/M program, is 10,368 tpy. However, the total CO emissions without the I/M program are 56,466 tpy less than the total CO emissions in 2014. Even without the I/M program in 2022, emissions of NO X , VOC, and CO are projected to decrease by 47.1 percent, 15.1 percent, and 23.9 percent, respectively, from 2014 levels.

For Hamilton County, EPA explained in the April 20201 SNPRM that the difference in emissions in 2022, with and without the I/M program, is 100 tpy for NO X and 146 tpy for VOC. However, the total NO X emissions in 2022 without the I/M program are 3,505 tpy less than the total NO X emissions in 2014, and the total VOC emissions in 2022 without the I/M program are 858 tpy less than the total VOC emissions in 2014. For CO, the difference in emissions in 2022 with and without the I/M program is 2,979 tpy. However, the total CO emissions without the I/M program are 10,061 tpy less than the total CO emissions in 2014. Even without the I/M program in 2022, emissions of NO X , VOC, and CO are expected to decrease by 27.0 percent, 8.1 percent and 18.7 percent, respectively from 2014 levels.

In summary, because 2022 total emissions without the I/M program are projected to be less than the total 2014 emissions, EPA is concluding that removal of the I/M program in Hamilton County and the Middle Tennessee Area will not interfere with attainment or maintenance of the NAAQS, or any other applicable CAA requirements. 20 As mentioned above and in EPA's April 2021 SNPRM, while EPA considers NO X , VOCs, ammonia, and SO 2 as precursors for PM, PM formation in Tennessee is dominated by emissions of SO 2 , reacting in the atmosphere to form sulfates, and not by emissions of NO X , VOCs, or ammonia. However, NO X and VOC increases are considered through the analysis for ozone described in great detail in EPA's April 2021 SNPRM and summarized in this final rule. EPA also notes that in the April 2021 SNPRM, the Agency explains that with regard to the I/M program, NO 2 is captured generally through consideration of NO X impacts.

EPA received technical comments asserting that the non-interference demonstration is inadequate to approve the SIP revisions. EPA's evaluation of these comments and responses is provided below.

Comment B1: In response to EPA's June 2020 NPRMs, a commenter asserts that the non-interference demonstrations cannot be considered technically complete without air quality modeling to simulate the impact of removing the I/M program. The commenter recommends “a full air quality simulation of the impact of removing the I/M program”—specifically suggesting the use of a transport grid model—to ensure that increases in air pollutant concentrations do not exceed NAAQS and health-based recommendations. The commenter also recommends that the “air quality simulation” utilize the “most current modeling platform and associated emission projections,” as well as meteorological and base year inventories that meet EPA guidance. The commenter cites EPA SIP modeling guidance in support of its recommendations. To further support its modeling recommendation, the commenter expresses concerns regarding the use of historical trends in air quality and emissions to evaluate impacts of I/M program removal due to annual variations in meteorology and actual emissions and the need for a solid conceptual model of how ozone or PM 2.5 is formed in the areas. Also, in response to EPA's April 2021 SNPRM, the commenter reasserts its position that the non-interference demonstration should be based on air quality modeling, asserting that a case-by-case determination by EPA that air quality modeling is warranted with respect to the removal of the I/M program; the commenter further provides a number of comments related to the ozone sensitivity analysis that Tennessee provided in its SIP revisions. The commenter does not provide substantive comments on EPA's technical non-interference demonstration as provided in the April 2021 SNPRM.

Response B1: EPA does not agree with the commenter that air quality modeling is required in order for EPA or the State to assess, pursuant to section 110(l) of the CAA, whether removal of the I/M program from Tennessee's SIP will interfere with attainment or maintenance of the NAAQS or any other requirement of the CAA. EPA acknowledges that air quality modeling is an option that could be used to evaluate the impact of removal of the I/M program. However, other technical analyses that do not involve modeling may also be used for section 110(l) demonstrations.

EPA refers the commenter to EPA's April 2021 SNPRM for more detail related to EPA's non-interference analysis. Also, as further explained in EPA's June 2020 NPRMs and April 2021 SNPRM, the pollution control systems for light-duty gasoline vehicles subject to the I/M program are not designed to reduce (and do not reduce) emissions for PM, lead, and SO 2 in Tennessee.

For CO and ozone, EPA reviewed Tennessee's MOVES2014b mobile modeling which estimated emissions in 2022 with and without the I/M program. 21 Tennessee developed an inventory based on the best available information to the State at the time of the submissions for both Hamilton County and the Middle Tennessee Area. EPA reviewed the inventory with and without the benefit of the I/M program for each area. As EPA noted in the June 2020 NPRMs and the April 2021 SNPRM, there was a slight increase in NO X and VOC on-road emissions for each area for 2022 for the scenarios without the I/M program, as compared to the scenarios with the I/M program. For ozone, EPA agrees with a commenter's statement that ozone formation in Tennessee is NO X -limited ( i.e., ozone concentrations are most effectively reduced by lowering NO X emissions rather than VOC emissions). 22 Nonetheless, as discussed in the April 2021 SNPRM, EPA evaluated both the increases in on-road VOC and NO X to determine whether the increase in total emissions in 2022 would interfere with attainment or maintenance of the ozone NAAQS in either area. EPA's analysis presented in the April 2021 SNPRM demonstrates that total emissions in these areas are projected to decrease significantly from the 2014 base year to the 2022 future year, even if the I/M program is discontinued. The small increase in on-road emissions resulting from removal of the I/M program in 2022 are overcome by the continued decrease in total emissions, despite increases in vehicle miles travelled, due to fleet turnover ( i.e., old vehicles being replaced with new vehicles that meet more stringent engine standards).

EPA disagrees with the commenter's concerns regarding the use of historical trends in air quality and emissions to evaluate impacts of I/M program removal due to annual variations in meteorology and actual emissions and the need for a solid conceptual model of how ozone or PM 2.5 is formed in the areas. EPA acknowledges the importance of understanding the factors affecting ozone and PM 2.5 formation in an area, and Response A6 provides information about factors affecting ozone and PM 2.5 in Tennessee. Concerns about annual variations in meteorology are addressed in Response A3. EPA believes that the large decreases in emissions of NO X , VOC, and CO described in the April 2021 SNPRM overshadow the effects of annual variations in actual emissions.

Although Tennessee included photochemical modeling sensitivity analyses to provide additional weight of evidence in its submissions, as described by EPA above and in the April 2021 SNPRM, such analyses were not required and were not the basis for EPA's proposed determinations that removal of the I/M program from Hamilton County and the Middle Tennessee Area would not interfere with attainment or maintenance of the NAAQS or any other applicable CAA requirements. Specifically, in the April 2021 SNPRM, EPA clarified that it was not the Agency's intention to rely on Tennessee's ozone sensitivity analysis. Thus, any comments related to the sufficiency of that ozone sensitivity analysis are not relevant to the actions that EPA are finalizing in this document. EPA's conclusion that these removals satisfy CAA section 110(l) is based on the technical analysis presented in EPA's April 2021 SNPRM.

Comment B2: With respect to the commenter's concerns on the June 2020 NPRMs and the April 2021 SNPRM regarding the nonlinearity of ozone formation related to Tennessee's sensitivity analysis, the commenter reviewed EPA modeling  23 and “developed ozone source apportionment results and relationships between State-source category specific ozone source apportionment modeling and the seasonal NO X emissions used to develop the ozone concentrations,” which, the commenter states, “provide indicators of relative contribution of source regions (states) and categories ( e.g., motor vehicle) NO X and VOC emissions to downwind monitor ozone concentrations.” The commenter asserts that this analysis indicated that “emissions from motor vehicle sources contribute the greatest relative concentration from U.S. anthropogenic emissions to the monitors,” in the areas and estimates that localized reductions (in the areas of analysis) would have a larger relative impact on ozone concentrations (as compared to statewide estimations). The commenter also developed regional “impact factors,” and asserts that the commenter found (using updated emissions, projections, and models) “that the relative impact of NO X emissions from mobile sources in Tennessee have factors significantly higher than most other regional-category combinations, leading us to conclude that motor vehicle and nonroad source emissions have the greatest impact on ozone concentrations” in the Areas. The commenter did not provide the modeling files, just the summary of the results in the comments.

Response B2: As discussed in the April 2021 SNPRM, EPA's analysis relies on an emissions inventory comparison to determine whether Hamilton County and the Middle Tennessee Area would continue to attain the ozone and CO NAAQS after removal of the I/M program. EPA is not relying on an ozone sensitivity analysis to determine that removal of the I/M program would not interfere with attainment or maintenance of the NAAQS. Therefore, the alleged deficiencies related to nonlinearity of ozone formation from NO X and VOC precursors in Tennessee's sensitivity analyses are irrelevant. As noted in other comment responses in this rule, the State has primacy over air quality planning and has the authority to determine which source categories to control to maintain the NAAQS. Under the CAA, the sole issue for EPA's consideration in this rulemaking is whether removing the I/M program from the SIP for these two areas would be consistent with CAA provisions, including whether discontinuation is expected to interfere with attainment and maintenance of air quality standards. As discussed further in the April 2021 SNPRM, EPA is approving removal of the I/M program from the SIP because removal is consistent with the requirements of the CAA, including noninterference with attainment and maintenance of the NAAQS.

Comment B3: In response to EPA's June 2020 NPRMs, a commenter asserts that Tennessee's MOVES modeling did not use appropriate assumptions, pointing to changes in Federal Corporate Average Fuel Economy (CAFE) standards, Reid Vapor Pressure (RVP) standards, and biofuel blending requirements that were not included in the model. The commenter asserts that EPA must either conduct the modeling itself using the appropriate inputs to confirm that there will be no interference with the NAAQS or disapprove the non-interference demonstration and require the State to do the correct modeling. Further, in response to EPA's April 2021 SNPRM, a commenter discusses EPA's recent release of MOVES3 and asserts that TDEC should consider the impact that the changes in this model have on the assumptions included in the removal of the I/M program in the State. The commenter further asserts that TDEC should consider this impact “especially in light of EPA's findings that NO X emissions estimates were higher in future years in urban areas using MOVES3 compared to MOVES2014b.”

Response B3: EPA disagrees with the commenter. EPA reviewed the MOVES2014b modeling that was submitted by Tennessee to support the non-interference demonstration and concluded that the State used appropriate assumptions for the model and performed the modeling in accordance with EPA's MOVES Technical Guidance. 24 Tennessee used the MOVES2014b model which was the latest version of the model available at the time that the State submitted its SIP revisions, and the State is not required to redo its analysis based on the release of an updated model after the State's submissions. 25

Regarding the changes to the CAFE standards, the National Highway Traffic Safety Administration has finalized the revisions to the CAFE standards for light duty vehicles. 26 However, that final action does not have any impact on Tennessee's demonstration related to removal of the I/M program. The vehicles affected by the revised CAFE standards would still need to meet applicable criteria pollutant emissions standards ( e.g., the Tier 3 emissions standards; see 79 FR 23414).

Regarding RVP and biofuel blending requirements, EPA reviewed the selected fuel formulations (including those for biofuels) for the modeled mobile emissions and concurred that they accurately reflect the Areas' profiles. The fuel formulation encompasses all the properties for that particular fuel ( i.e., sulfur levels, benzene, and RVP).

While the commenter mentions that “. . . NO X emissions estimates were higher in future years in urban areas using MOVES3 compared to MOVES2014b[,]” the commenter does not provide any information to indicate that NO X emissions in either Hamilton County or the Middle Tennessee Area would be higher or would interfere with attainment or maintenance of any NAAQS. As detailed in EPA's April 2021 SNPRM and summarized above, NO X emissions in Hamilton County and the Middle Tennessee Area are estimated to be 3,505 tpy and 22,420 tpy lower than 2014 emissions, respectively. EPA is concluding that it is reasonable to assume that a change to a more recent version of MOVES would not result in an increase in emissions over the significant decreases in emissions between 2014 and 2022.

Comment B4: A commenter raises a number of concerns with regard to the sensitivity analysis that was provided as part of the State's non-interference demonstration. The commenter asserts that the wrong inventory was used, stating that Tennessee used the “outdated and inappropriate 2014 National Emission Inventory (NEI) for base year and future year emission assumptions,” which the commenter claims is contrary to EPA guidance. The commenter states that “EPA and others have concluded that 2014 is not useful for ozone sensitivity simulations,” specifically asserting that 2014 was not conducive to ozone formation and did not contain high ozone periods adequate for an assessment of the impact of control technologies and air quality response. The commenter asserts that newer modeling platforms have been released with vastly improved estimates (specifically citing to a 2016 NEI). 27 The commenter specifically points to differences in NO X and VOC estimates in the later-released platforms, and provides a comparative analysis between the 2014 NEI and a 2016 NEI for Hamilton County and the Middle Tennessee Area. The commenter acknowledges that the 2014 NEI was the most current version at the time that Tennessee conducted its analysis. The commenter recommends the analysis be revised using the most current modeling platform and associated emission projections, and specifically references the 2016 NEI. The commenter also recommends modeling be conducted using a meteorological and associated base year inventory that meets the requirements of EPA guidance for the determination of impact of control strategies and air quality response.

The commenter also claims that old and inappropriate assumptions were used, expressing concerns that the ozone sensitivity study was based on the 2007 SEMAP data projected to 2018. The commenter asserts that the non-interference analysis misuses the SEMAP study and points toward language in the report stating that “these factors should not be used for anything other than identical conditions to those in the SEMAP analysis.” The commenter asserts that the demonstration assumes a similar response in 2022, and that there is no basis for this assumption. The commenter characterizes the information from the SEMAP report as “brute force factors” that are not applicable because the factors are not tailored to the I/M removals in Hamilton County and the Middle Tennessee Area. The commenter points to differences between SEMAP projections and actual emissions as reported in the 2016 NEI, expressing concern about the ratios of NO X and VOC used in the non-interference demonstration. The commenter further asserts that the SEMAP data underestimates the “contribution of vehicles to the inventory” as compared to the 2016 NEI. The commenter also asserts that recent modeling indicates that on-road emission increases—and specifically Tennessee's motor vehicle source category—have a greater impact on regional air quality than what the demonstration calculates (in part, due to the assumption that each ton of a precursor has an equal impact on ozone formation). The commenter concludes that the sensitivity factors used in the demonstration are “not directly applicable to today's ozone conditions and likely not representative of the air quality change due to the removal of the I/M programs.” The commenter further states that Tennessee's “recognition that its use of the scaling analysis would yield erroneous results should be adequate enough for the agency to reconsider using its analysis as a weight-of evidence approach to removal of the I/M program.” If the analysis does not use air quality simulation, the commenter recommends an “`impact factor'-like application to determine the impact of the removal of the I/M program, [with] county and motor vehicle specific factors.”

Response B4: As discussed above and in EPA's April 2021 SNPRM, EPA is not relying on Tennessee's sensitivity analysis in its determination that removal of the I/M program will not interfere with any applicable requirement under the CAA. To the extent the commenter is asserting that the emissions comparison analysis should be conducted with more recent data, such as later versions of the NEI, EPA disagrees with the commenter. The 2014 NEI was the latest available emissions data and served as the baseline data for both Middle Tennessee Area and the Chattanooga Area. In addition, the 2014 NEI matches the base year used, which was the 2014 attainment year. While subsequent emissions data are available since EPA received these SIP submissions, both areas continue to attain the NAAQS. The 2014 NEI was developed consistent with EPA guidance and sufficiently serves as the basis for this demonstration. EPA's conclusion that removal satisfies CAA section 110(l) is based on the technical analysis as described in detail in the April 2021 SNPRM and summarized above.

Comment B5: A commenter discusses and compares a Georgia analysis to relax RVP requirements with the analysis to support removal of the Tennessee I/M program. The commenter points to two aspects of the Georgia analysis that differ from the Tennessee analysis: The substitution of quantifiable, permanent, surplus, enforceable, and contemporaneous measures to achieve equivalent emissions reductions to offset potential emissions increases; and a demonstration that emissions are well below (and will not exceed) motor vehicle emissions budgets (MVEBs). The commenter asserts that Tennessee's analysis to remove the I/M program does not include offsets nor does the analysis calculate and provide additional support of meeting current and future year MVEBs. The commenter further asserts that the MVEBs for Hamilton County were never calculated, and that concern was expressed about the Middle Tennessee Area meeting “the old MVEBs” at the Nashville Area Interagency Consultation Group meetings. The commenter concludes that the request to remove the I/M program does not have a supporting analysis comparable to Georgia's and may fall short for EPA approval.

Response B5: EPA disagrees with these comments. With respect to the EPA-approved analysis to relax RVP requirements in Georgia, EPA notes that section 110(l) analyses are case-specific, and in the case of Georgia's request to relax RVP requirements for Atlanta, offsets were needed given the facts in that situation. See 84 FR 49470 (September 20, 2019). Unlike Georgia, Tennessee has no areas designated as nonattainment or maintenance for the ozone NAAQS and does not currently have any violating ozone monitors. As discussed in the April 2021 SNPRM, EPA is concluding that removal of the I/M program from the Tennessee SIP will not interfere with attainment or maintenance of the NAAQS or any other applicable requirement of the CAA.

In addition, motor vehicle emission budgets (sometimes referred to in practice as “MVEBs”) are a component of the regional emissions analysis for implementing transportation conformity requirements. See 40 CFR 93.101 and 93.118. These comments are not relevant to this rulemaking because neither Hamilton County nor the Middle Tennessee Area are required to demonstrate transportation conformity for any pollutant, and therefore, no such budgets are required to be developed for either area.

Comment B6: With respect to Hamilton County, 28 a commenter states “Tennessee appears to be taking credit for closures of three [Tennessee Valley Authority (TVA)] power plants in its non-interference demonstration.” The commenter then goes on to assert that EPA cannot allow offsets for Hamilton County from outside of the nonattainment area because that would be a violation of the South Coast decision. The commenter concludes that EPA must only consider offsets to the I/M program that occur within the nonattainment area.

Response B6: EPA disagrees with this comment. While the commenter does not provide a citation for the South Coast decision, EPA assumes the commenter is referring to the decision of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in South Coast Air Quality Management District v. EPA, 882 F.3d 1138, 1146 (D.C. Cir. 2018), which addressed section 182 of the CAA and upheld EPA's interpretation that states may not take credit for reductions outside a nonattainment area for purposes of interim milestones towards attainment. This decision is not relevant to this action, as it addressed a different statutory provision not at issue here. Moreover, as discussed above, Tennessee is not providing offsets for the removal of the I/M program and, thus, no “credits” are being taken into account for facility closures or any other actions.

Comment B7: A commenter asserts that the trends in air quality in the two areas are inconsistent with reductions in precursor emissions, claiming that although emissions estimates for motor vehicles are decreasing, air quality is stagnant in Hamilton County and deteriorating in the Middle Tennessee Area. The commenter also expresses concern about relying on the assumption that each ton of a pollutant precursor emission has an equal impact on air quality as compared to every other ton of the same pollutant precursor, regardless of emission source and where in the state the emissions occur, citing the uniqueness and nonlinearity of ozone precursors. The commenter states that on-road emission increases would have a greater impact on regional air quality than calculated and that an increase in emissions due to the removal of the I/M program may have an accelerated deterioration impact on the Areas' air quality.

Response B7: The air quality data summarized in Response A3 demonstrates that ozone air quality in Hamilton County and the Middle Tennessee Area is not worsening and is well below the 2015 8-hour ozone NAAQS. As discussed in the April 2021 SNPRM, removal of the I/M program from the Tennessee SIP will not interfere with attainment or maintenance of the NAAQS or any other applicable requirement of the CAA. In addition, as discussed in Response A4, I/M programs do not mandate emission controls systems on motor vehicles, unlike Federal motor vehicle emissions standards such as the Tier 3 rule. These Federal vehicle emission standards will remain with or without the I/M program in the Tennessee SIP for the Middle Tennessee Area and Hamilton County.

Comment B8: A commenter asserts that EPA must take into account recent court decisions that will “have a devastating impact on the state's ability to ensure non-interference.” The commenter specifically points to the “Wisconsin and New York decisions,” which “vacated and remanded these programs back to EPA, essentially wiping them out entirely.” The commenter claims that Tennessee cannot claim credit for any reductions attributable to the programs. Further, the commenter states EPA must check to make sure the state does not interfere with any downwind states' ability to meet the NAAQS.

Response B8: EPA has confirmed that the changes being approved by EPA in this action do not interfere with other states' ability to meet the 2008 ozone NAAQS. Although it is unclear from the comment, in describing programs promulgated under the good neighbor provision, CAA section 110(a)(2)(D)(i)(I), EPA assumes the commenter is referring to the Cross-State Air Pollution Rule (CSAPR) Update. The CSAPR Update addresses NO X pollution transported to other states that significantly contributes to nonattainment or interferes with maintenance of the 2008 ozone NAAQS. 29 Among other things, the CSAPR Update requires reductions of NO X from power plants during the annual ozone season from May 1 to September 30 in 22 states, including Tennessee. Although EPA found the CSAPR Update may only partially address the good neighbor obligations for most covered states, EPA found the rule fully addresses Tennessee's good neighbor obligation for this NAAQS. See 81 FR 74504, 74540 (October 26, 2016). That conclusion was based on an assessment of air quality in the eastern U.S. with implementation of the CSAPR Update, and it accounted for emissions from all source sectors, including mobile sources.

The CSAPR Update was reviewed and generally upheld in Wisconsin v. EPA, 983 F.3d 303 (D.C. Cir. 2019). Contrary to the commenter's assertion that the rule was vacated, the D.C. Circuit merely remanded the rule without vacatur because, for states other than Tennessee, the rule did not provide a full remedy by the next relevant attainment date under CAA section 181. Thus, the CSAPR Update remains in effect. The decision in New York v. EPA, 781 F. App'x 4 (D.C. Cir. 2019) vacated a separate rule, the CSAPR Close-Out, but this rule did not impose additional reductions and only purported to demonstrate, based on new modeling analysis of the year 2023, that the CSAPR Update was a full remedy for 20 states. In the New York case cited by commenter, the D.C. Circuit found this conclusion incorrect as a matter of law in light of its holding in Wisconsin because EPA analyzed a year beyond the next attainment date without sufficient justification. Tennessee's obligations were not at issue in the Close-Out rule. EPA notes that the aspects of the CSAPR Update affecting Tennessee were not challenged in the litigation over the rule and are not affected by the remand of the rule in Wisconsin.

EPA believes the projected increase in mobile source emissions from the removal of Tennessee's I/M program does not affect EPA's prior finding in the CSAPR Update that the State of Tennessee has no further interstate transport obligations for the 2008 8-hour ozone NAAQS. In the section 110(l) analysis for this action, EPA analyzed the impacts of removing the I/M program in Hamilton County and the Middle Tennessee Area from the subject final rule and found that the largest projected increase in mobile source emissions in these areas would result in a combined projected increase of 579 tons in 2022, or a 2 percent increase in total anthropogenic NO X emissions in these areas. 30 Therefore, the net change in total anthropogenic emissions across the entire State of Tennessee would be much less than the projected 2 percent increase in NO X emissions.

On October 30, 2020, in the NPRM for the Revised CSAPR Update, EPA released and accepted public comment on updated 2023 modeling that used a 2016 emissions platform developed under the EPA/Multi-Jurisdictional Organization (MJO)/state collaborative project. 31 On March 15, 2021, EPA signed the final Revised CSAPR Update using the same modeling released at proposal. 32 In this modeling, EPA found that the highest contribution in 2023 from the entire State of Tennessee to any downwind receptor identified as having a nonattainment or maintenance problem for the 2008 ozone standard is projected to be 0.32 ppb. This amount of contribution is well below the 1 percent of the NAAQS threshold used in EPA's good neighbor framework for determining whether an upwind state contributes to a nonattainment or maintenance receptor under the 2008 ozone NAAQS ( i.e., 0.75 ppb). The small amount of projected increase in NO X emissions in Tennessee as a result of this action, combined with the fact that the highest modeled contributions from this state are well below the 1 percent threshold, support the conclusion that the projected increase in mobile source emissions does not affect EPA's prior decision that Tennessee has no remaining interstate transport obligations under the 2008 ozone NAAQS.

This final action does not make any finding regarding Tennessee's interstate transport obligations for the 2015 8-hour ozone NAAQS. EPA has not yet taken final action on Tennessee's good neighbor SIP submission for the 2015 8-hour ozone NAAQS.

Comment B9: In response to EPA's April 2021 SNPRM, a commenter asserts that EPA's proposed conclusion that “removal of the I/M program will not interfere with other states' ability to attain and maintain the 2008 ozone NAAQS” is based on “an air quality modeling-based technique” performed for the Revised CSAPR Update that contains “an error in the source apportionment model” that was “discovered in December 2020.” Specifically, the commenter asserts that EPA “does not know whether the specific beta version of the model used in their analysis contained the bug and associated source apportionment error.” The commenter further states that “[n]o known quantification of the error has been calculated and therefore it is unknown just how significant a change might be seen in the upwind state contribution to downwind receptors under the 2008 Ozone NAAQS or in potential application for future consideration of significant contribution under the 2015 Ozone NAAQS,” and requests that EPA “correct[] the source apportionment results and significant contribution calculations with the corrected version of the air quality model” before making a final decision on removal of the I/M program from the Tennessee SIP.

Response B9: The commenter is correct that EPA relies on modeling developed for the Revised CSAPR Update (RCU) to determine that removal of the I/M program will not interfere with other states' ability to attain and maintain the 2008 ozone NAAQS under the good neighbor provision of the CAA. The modeling was made available to the public in the proposed RCU on October 30, 2020. See 85 FR 68964. The comment period for that rulemaking was open from October 30, 2020, through December 14, 2020. Id. Petitions for review of the RCU were due by June 29, 2021 in the D.C. Circuit. See 86 FR 23054, 23164 (April 30, 2021); see also CAA section 307(b). Additionally, EPA had previously determined that the CSAPR Update Federal implementation plan for Tennessee eliminated the State's significant contribution to downwind ozone nonattainment or maintenance for the 2008 8-hour ozone NAAQS. See 81 FR 74504, 74508 (October 26, 2016).

EPA disagrees that there was an error in the modeling that is material to this action. EPA used CAM X version 7, beta6 for the air quality modeling to support the RCU. This version of CAM X was the most up-to-date version of the model available at the time EPA performed air quality modeling for the RCU. The final CAM X version 7.0 was released by the model developer, Ramboll, in May of 2020. This version was a different version than the beta6 version EPA used in its modeling.

Following release of version 7.0, the commenter is correct that an error was identified in the model code that affected model predicted concentrations and, therefore, contributions when the model was run using ozone or PM 2.5 source apportionment tools (SAT) for calculating source contributions to pollutant concentrations. Specifically, when CAM X version 7.0 was run with SAT, the pollutant species emissions in the input point source emissions file did not match the species in the core model. For example, it is possible that the model might have assigned point source emissions of nitric oxide (NO) in the input emissions file to SO 2 in the model run. Thus, the effects on model predictions due to this type of mismatch of pollutant emissions and concentrations would likely be significant. Once this error was identified, it was quickly corrected. 33 Further, the code error in version 7.0 did not occur in CAM X model runs when SAT were not invoked ( i.e., model runs without SA).

EPA contacted Ramboll to determine whether this coding error in the final release of version 7.0 was also present in any of the pre-release beta versions, particularly beta6, which EPA had used for the RCU. Ramboll initially stated that they had no information to determine whether or not the code error was in beta6 or any of the other version 7.0 beta codes. However, in consultation with Ramboll, EPA found that this could be determined by comparing the model predictions from a run without SAT to a companion model run with SAT invoked. If the predictions are the same, then the code EPA used for the RCU did not contain this coding error.

For the RCU, EPA had performed two CAM X model runs for 2023, one without SAT and one with SAT. Thus, to respond to this comment, EPA compared the ozone predictions from these two runs to identify whether or not there are any notable differences between the two. As an example, Table 5 provides the maximum daily 8-hour ozone predictions for the 2023 emissions case for the month of July at the RCU nonattainment receptor site in Stratford, Connecticut. In addition, Figure 1, provided in the dockets for this final rulemaking, shows the maximum daily 8-hour ozone concentrations in each model grid cell on one of the days in June based on 2023 modeling without and with SAT. 34 In both the table and the figure, model predictions without and with SA are essentially identical. Thus, based on EPA's analysis, the Agency concludes that the error referenced by the commenter was not in the CAM X model code that EPA used for the RCU modeling.

For the reasons above, EPA disagrees with the commenter's assertions regarding EPA's section 110(l) analysis for Tennessee's good neighbor obligations for the 2008 ozone NAAQS, and EPA is confident that the CAM X modeling used in the RCU and to support this action is reliable.

Comment B10: A commenter identifies a number of regulations and policies that have either been rolled back or are proposed to be rolled back and expresses concern that the non-interference analysis did not account for the status of these rollbacks. The commenter states that air quality in the region has “shown deterioration and movement towards nonattainment of the various NAAQS” due to the rollbacks. Also, the commenter asserts that impacts from as far away as California or New York could impact air in Tennessee. The commenter also concludes that there are emissions increases attributable to the rollbacks and that they should be taken into account to accurately assess air quality prior to removal of the I/M programs from the SIP.

Response B10: EPA does not agree with the commenter's assertion that Tennessee should have or could have accounted for the final or proposed rollbacks identified by the commenter. As described above, Tennessee used the latest available information when the SIP revision was developed with EPA's MOVES2014b model and associated technical and policy guidance, 35 and the SIP revision's new on-road mobile source inventory was based on the EPA's vehicle and fuel standard rulemakings that are relevant for criteria pollutants.

With respect to a number of the rollbacks that the commenter directly asserts “could be considered to have an impact on the Tennessee airshed,” the commenter did not provide any documents or citations, therefore, in some cases, it is not entirely clear what changes the commenter is referring to. However, based on the changes that EPA believes the commenter to be concerned with, EPA disagrees that the changes will impact Tennessee air quality. For example, the rule titled “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources Review,” 85 FR 57018 (September 14, 2020), was disapproved under the Congressional Review Act, 36 and the fuel volatility waivers under the rule titled “Modifications to Fuel Regulations To Provide Flexibility for E15; Modifications to RFS RIN Market Regulations,” 84 FR 26980 (June 10, 2019), were vacated by the D.C. Circuit. See Am. Fuel & Petrochemical Manufacturers v. EPA, No. 19-1124, 2021 WL 2755032, at *7 (D.C. Cir. July 2, 2021). The commenter also cites to a regulation that tracks—rather than controls—emissions;  37 denials of petitions that were before the agency that did not alter any emissions controls in place, some of which have been sent back to EPA;  38 and guidance that, by its very nature, does not impose binding requirements. 39

With respect to any pending or proposed changes, per EPA's Emissions Inventory Guidance, “[i]mpacts of proposed [Federal] rules are rarely included” in EPA emissions projections “as the changes in emissions impacts can be very large between proposed and final rules.”  40 See “ Emissions Inventory Guidance for Implementation of Ozone and Particulate Matter National Ambient Air Quality Standards (NAAQS) and Regional Haze Regulations,” May 2017, at 122. 41

Furthermore, the commenter did not provide any technical information or analysis to substantiate their claims that the final or proposed rollbacks in combination with the removal of the I/M program from the Tennessee SIP would cause either Hamilton County or the Middle Tennessee Area to interfere with attainment or maintenance of the NAAQS. In addition, any possible air quality impacts from many of the rollbacks are speculative and hypothetical in nature. In contrast, EPA's analysis projects that 2022 total emissions without the I/M program are significantly less than 2014 total emissions for both the Middle Tennessee and Hamilton County areas. See Section III, above, and EPA's April 2021 SNPRM. 42

EPA received numerous comments that are outside the scope of this rulemaking. Even though EPA is not obligated to respond to these comments, EPA nonetheless has provided responses below in order to assist the public's understanding of EPA's final action.

Comment C1: Many commenters opposed to the removal of the I/M program acknowledge improved vehicle standards, but believe that the I/M program is still needed as a check to ensure that citizens are maintaining their vehicles (including for safety inspections).

Response C1: To the extent commenters are concerned that removal of the I/M program will result in citizens neglecting to maintain their vehicles or affecting vehicle safety, those concerns are outside the scope of this rulemaking. States have primary responsibility for deciding how to attain and maintain the NAAQS. Tennessee has opted to remove the I/M program from its SIP. Under the CAA, the sole issue for EPA's consideration in this rulemaking is whether removing the I/M program from the SIP would be consistent with CAA provisions, including whether discontinuation is expected to interfere with attainment and maintenance of air quality standards or any applicable requirement of the CAA. EPA is approving removal of the I/M program from the SIP because removal is consistent with the requirements of the CAA. The option the commenter suggests to continue an I/M program to ensure vehicles are maintained may be considered and implemented at the local level without EPA's review or approval.

EPA agrees that vehicles are cleaner now as a result of EPA rules since the early 2000s that control emissions from on-road vehicles. EPA refers commenters to Response A4 for more information concerning EPA standards.

Comment C2: A commenter opines that the I/M program is needed and notes “the testing procedures and equipment need updated badly.” The commenter goes on to state that “A vehicle should not fail emissions for a certain code that has nothing to do with emissions output. All vehicles should be tested by their exhaust to see exactly what the air to fuel ratio is. The software needs updates as well. Very old equipment.” Other commenters expressed concerns about whether the testing procedures themselves met the intended purpose of the I/M program. Some commenters questioned why the I/M program was only required in six counties in Tennessee and wanted the program removed for those counties, while others wanted the program expanded statewide and even nationwide. Other commenters expressed concerns about I/M program avoidance. They noted that citizens register their vehicles in surrounding counties that do not have I/M requirements, yet commute back and forth or even live in areas where I/M is required. Some of the commenters expressed concern about program avoidance as support for the removal of the I/M program. Commenters opined on whether or not the cost of the program and related expenses were worth keeping the program. Some commenters expressed concern related to the impact of the test and repair costs on the elderly and low-income citizens. Others asserted that this was a way to generate revenue and an unfair tax. Those who did not support removal of the I/M program opined that the I/M program was worth the benefit for air quality. Another commenter expressed concerns with regard to “replacements” to the I/M program. The commenter also stated that “we . . . must be able to maintain the progress that has been made.” One commenter opined that there is a “likelihood that current income limitations will impact future replacement of aging vehicles.” Another commenter said that “[t]he emissions program is doing more good than harm for the community.” Some adverse comments indicated that removal of I/M could lead to people not feeling the need to maintain their cars, which will lead to even bigger problems.

Response C2: These comments are all outside the scope of this rulemaking. The design, technology, and implementation issues associated with an I/M program are outside this scope of this rulemaking. With regard to the geographical coverage area of Tennessee's I/M program, EPA notes that the I/M program is not currently mandated by the CAA or EPA regulations in any part of Tennessee or throughout the entirety of the United States. 43 Additionally, the cost structure of individual I/M programs is not a factor EPA evaluates when determining approvability of a SIP revision to remove I/M requirements. A commenter's assertion that the SIP revision is a “repeal and replace” is not clear. Tennessee's February 2020 SIP revisions only addressed removal of the I/M program, without a replacement program or offsets.

See Responses A5 and A10 regarding the scope of EPA's review and the discretionary nature of Tennessee's program, and the April 2021 SNPRM regarding EPA's determination that section 110(l) requirements have been met.

Comment C3: Commenters suggest that EPA needs to monitor emissions released from mobile sources outside of I/M programs, such as planes, trains, trucks, and buses in order to either improve air quality or prevent it from deteriorating.

Response C3: These comments are outside the scope of this rulemaking. As discussed in Response A5, CAA section 110(k) requires EPA to approve SIP revisions that meet all applicable CAA requirements. While monitoring and regulating emissions from planes, trains, trucks, buses and any other “mobile source” that are not passenger vehicles is out of scope of this action, EPA notes that the Agency's Office of Transportation and Air Quality (OTAQ) addresses emissions from the range of mobile sources. The commenters are encouraged to visit OTAQ's website for more information at https://www.epa.gov/aboutepa/about-office-air-and-radiation-oar#otaq to learn more about these programs.

Comment C4: A commenter opines that removing the I/M program is a bad idea and recalls polluting cars and trucks before the I/M program was enacted. The commenter goes on to say “My only issue in Chattanooga is the mayor has put in bike lanes everywhere that are used very seldomly and reducing the auto lanes creates huge traffic backups.” The commenter goes on to say that bike lanes cause more pollution and offsets what emissions benefits are achieved.

Response C4: For reasons explained in the April 2021 SNPRM, EPA has determined that section 110(l) requirements have been met. EPA also notes that cars and trucks are cleaner, absent the I/M program, because of Federal engine and fuel standards that all vehicles must comply with. Thus, vehicles today are much cleaner than they were when the I/M program was enacted in Hamilton County in the early 2000s, as vehicle and fuel standards have become more stringent since then. To the extent that the commenter expresses concerns about bike lanes and their impact on traffic and emissions, these comments are outside the scope of this rulemaking as I/M programs do not regulate bike lanes.

Comment C5: A commenter in support of the emissions testing in Hamilton County states that “[i]t not only has helped clean up the air in the county, it has also drawn other large businesses to our Area. Volkswagen and Amazon both came here due in part to Hamilton County's emission testing.” Another commenter expresses concern for their industry and stated: “If Chattanooga and Nashville Ozone Standards are changed in the future and the EPA is no longer able to effectively regulate `on road' mobile source emissions, stationary sources and our member's off-road fleets could, and likely would, be over regulated due the inability to regulate the much more impactful on-road mobile sources. This could create a severe adverse impact to our industry.”

Response C5: These comments are outside the scope of this rulemaking. In evaluating whether a SIP revision is approvable, EPA must consider the relevant CAA provisions and does not consider what impacts, if any, the SIP revision would have for attracting businesses to an area. Nor does EPA try to anticipate what the State may do for future air quality planning. As detailed in the April 2021 SNPRM, EPA has determined that approval of these SIP revisions will not interfere with attainment or maintenance of the NAAQS or any other requirement of the CAA. EPA's action to remove the I/M program does not preclude the state or local government from maintaining an I/M program at the state or local level.

Comment C6: One commenter asserted that during Tennessee's state comment period it did not have access to inventory materials in timeframes necessary to conduct an independent review and modeling of the I/M program removal.

Response C6: This comment is outside the scope of this rulemaking because it relates to Tennessee's State comment period. In addition, EPA notes that the inventories were available to the public during EPA's public comment period on the June 2020 NPRMs and the April 2021 SNPRM. See regulations.gov document numbers EPA-R04-OAR-2019-0618-0002 (pdf pages 16 and 21) and EPA-R04-OAR-2019-0619-0002 (pdf pages 16, 17 and 22).

In this document, EPA is finalizing regulatory text that includes incorporation by reference. As described in the amendments to 40 CFR part 52 set forth below, EPA is finalizing the removal of Tennessee Regulation Chapter 1200-3-29—“Light Duty Vehicle Inspection and Maintenance;” and Nashville-Davidson County Regulation No. 8—“Regulation of Emissions from Light-Duty Motor Vehicles through Mandatory Vehicle Inspection and Maintenance Program,” from the Tennessee SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

EPA is approving the SIP revisions and removing the I/M requirements for the Middle Tennessee Area ( i.e., Davidson, Sumner, Rutherford, Williamson and Wilson Counties) and Hamilton County from the Tennessee SIP. EPA is taking these actions because removing the requirements is consistent with the CAA and applicable regulations.

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

• Are not significant regulatory actions 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);

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

• Are 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. );

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

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

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

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

• Are 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

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

The SIP is not approved to 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 18, 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, EPA amends 40 CFR part 52 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0164 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before October 18, 2021. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0164, by one of the following methods:

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

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

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

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

In the Federal Register of March 22, 2021 (86 FR 15162) (FRL-10021-44), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11435) by Technology Sciences Group Inc., 1150 18th Street NW, Suite 1000, Washington, DC 20036, on behalf of Mason Chemical Company, 9075 Centre Point Dr., Suite 400, West Chester, OH 45069. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of ADAOs when used as inert ingredients used as surfactants and foaming agents in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment and utensils. That document referenced a summary of the petition prepared by Technology Sciences Group Inc. on behalf of the Mason Chemical Company, the petitioner, which is available in the docket at http://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has limited the maximum concentration of ADAOs to not more than 1,350 ppm at the end-use concentration in pesticide formulations. This limitation is based on the Agency's risk assessment, which can be found at http://www.regulations.gov in document “C10-C18-Alkyldimethylamine oxides; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations” in docket ID number EPA-HQ-OPP-2021-0164.

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

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

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

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

On October 7, 2009, EPA published in the Federal Register a final rule establishing an exemption from the requirement of a tolerance for residues of ADAOs when used as an inert ingredient in pesticide formulations applied to raw agricultural commodities pre- and post-harvest. See 74 FR 51474 (FRL-8437-3). That document contains a summary of the toxicological profile, toxicological points of departure/levels of concern, certain assumptions for exposure assessment, and the Agency's determination regarding the children's safety factor, which have not changed except as described below.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by ADAOs as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in Unit IV.A of the final rule published in the Federal Register of October 7, 2009 (74 FR 51474) (FRL-8437-3).

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

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to ADAOs, EPA considered exposure under the proposed exemption from the requirement of a tolerance. To assess dietary exposures from ADAOs in food, the Agency calculated the Daily Dietary Dose (DDD) and the Estimated Daily Intake (EDI) using U.S. Food and Drug Administration (FDA) Food Contact Surface Sanitizing Solution Dietary Exposure Assessment Model. EPA's assessment used FDA's default assumptions for the amount of residual solution or quantity of solution remaining on the treated surface without rinsing with potable water (1 mg/cm 2 ); surface area of the treated surface which comes into contact with food (4,000 cm 2 ); and the pesticide migration fraction (100%). EPA used an application rate of ADAOs of 1,350 ppm, which was provided by the petitioner. EPA also derived exposure amounts for population subgroups by accounting for body weights and adjusting for relative food consumption using data from the National Health and Nutrition Examination Survey (NHANES) (specifically the 2003-2008 survey data).

ADAOs are currently exempt from the requirements of a tolerance under 40 CFR 180.910 for use as inert ingredients in pesticide formulations applied to growing crops or to raw agricultural commodities after harvest limited to 15% by weight in pesticide formulations and use as a surfactant. One of the ADAO chemicals in the group, alkyl (C10-16) dimethyl amine oxide, is also approved as an antibacterial agent in dishwashing detergent for residential use. Potential dietary exposures from these uses were included in the overall dietary exposure.

2. Dietary exposure from drinking water. The proposed use of ADAOs will not result in measurable levels in surface water or ground water and therefore will not contribute to dietary exposure.

As stated above, ADAOs are approved for pre- and post-harvest uses and for use in dishwashing detergent. Dietary exposures from drinking water due to these uses are included in the overall dietary exposure.

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

Indoor residential exposure may occur from use of ADAOs as inert ingredients in antimicrobial pesticide products applied to food contact surfaces. Indoor and outdoor residential exposure may also occur as a result of current approved uses of ADAOs in pesticide formulations for pre- and post-harvest application and in dishwashing detergent. ADAOs are also used in soap and hair products. The Agency's assessment of residential exposure combines exposure from all of the aforementioned uses. A summary of certain other assumptions for exposure assessment of ADAOs is discussed in Unit IV.C. of the final rule published in the Federal Register of October 7, 2009 (74 FR 51474) (FRL-8437-3).

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

EPA has not found ADAOs to share a common mechanism of toxicity with any other substances, and ADAOs do not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has assumed that ADAOs do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) and (c)(2)(B) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. The rationale for the Agency's determination regarding the children's safety factor is discussed in unit IV.D of the final rule published in the Federal Register of October 7, 2009 (74 FR 51474) (FRL-8437-3).

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, ADAOs are not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described for chronic exposure, EPA has concluded that chronic exposure to ADAOs from food and water will utilize 91% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

ADAOs are currently used as an inert ingredient in pesticide products that are registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to ADAOs.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 171 and 101 for the U.S. population and children 1 to 2 years old, respectively. Because EPA's level of concern for ADAOs is MOEs of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

ADAOs are currently used as inert ingredients in pesticide products that are registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to ADAOs.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 322 and 104 for the U.S. population and children 1 to 2 years old, respectively. Because EPA's level of concern for ADAOs are MOEs of 100 or below, these MOEs are not of concern.

5. Aggregate cancer risk for U.S. population. The Agency has not identified any concerns for carcinogenicity relating to ADAOs.

6. Determination of safety. Taking into consideration all available information on ADAOs, EPA has determined that there is a reasonable certainty that no harm to the general population or any population subgroup, including infants and children, will result from aggregate exposure to residues of ADAOs. Therefore, the establishment of an exemption from the requirement of a tolerance under 40 CFR 180.940(a) for residues of ADAOs when used as inert ingredients in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment, and utensils limited to not more than 1,350 ppm at the end-use concentration in pesticide formulations, is safe under FFDCA section 408.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of ADAOs in or on any food commodities. EPA is establishing limitations on the amount of ADAOs that may be used in pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment, and utensils. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 1350 ppm of ADAOs in the end-use concentration in pesticide formulations.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for C10-C18-Alkyl dimethyl amine oxides (CAS Reg. Nos. 1643-20-5, 2571-88-2, 2605-79-0, 3332-27-2, 61788-90-7, 68955-55-5, 70592-80-2, 7128-91-8, 85408-48-6, and 85408-49-7) when used as inert ingredients (surfactants/foaming agents) in antimicrobial pesticide formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment and utensils limited to not more than 1,350 ppm at the end-use concentration in pesticide formulations.

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

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

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

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

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

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

This is a summary of the Commission's Report and Order, FCC 21-80, adopted on June 24, 2021 and released on June 25, 2021, and the Erratum released on August 12, 2021. The complete text of this document is available for download at https://docs.fcc.gov/public/attachments/FCC-21-80A1.pdf. To request this document in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations ( e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to fcc504@fcc.gov or call the FCC's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

The requirements in 47 CFR 9.25(b) constitute a modification of the information collection with Office of Management and Budget (OMB) Control No. 3060-1122. This modified information collection is subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. The modified information collection will be submitted to OMB for review under 47 U.S.C. 3507(d), and compliance with 47 CFR 9.25(b) will not be required until after approval by OMB.

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

Congress has had a longstanding concern about the practice by some states and local jurisdictions of diverting 911 fees for non-911 purposes. Congress initially enacted measures to limit 911 fee diversion, codified in 47 U.S.C. 615a-1 (section 615a-1). 1 Specifically, section 615a-1(f)(1) provided that nothing in the New and Emerging Technologies (NET) 911 Act, the Communications Act of 1934, or any Commission regulation or order shall prevent the imposition and collection of a fee or charge applicable to commercial mobile services or IP-enabled voice services specifically designated by a State, political subdivision thereof, Indian tribe, or village or regional corporation for the support or implementation of 9-1-1 or enhanced 9-1-1 services, provided that the fee or charge is obligated or expended only in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, as specified in the provision of State or local law adopting the fee or charge. The NET 911 Act also required the Commission to report annually on the collection and distribution of fees in each state for the support or implementation of 911 or E911 services, including findings on the amount of revenues obligated or expended by each state “for any purpose other than the purpose for which any such fees or charges are specified.”  2 Pursuant to this provision, the Commission has reported annually to Congress on 911 fee diversion every year since 2009. In October 2020, the Commission released a Notice of Inquiry seeking comment on the effects of fee diversion and the most effective ways to dissuade states and jurisdictions from continuing or instituting the diversion of 911/E911 fees. 3 Shortly thereafter, Congress enacted section 902. 4

Section 902 requires the Commission to take additional action with respect to 911 fee diversion. Specifically, section 902(c)(1)(C) adds a new paragraph (3)(A) to 47 U.S.C. 615a-1(f) that directs the Commission to adopt rules “designating purposes and functions for which the obligation or expenditure of 9-1-1 fees or charges, by any State or taxing jurisdiction authorized to impose such a fee or charge, is acceptable” for purposes of section 902 and the Commission's rules. The newly added 47 U.S.C. 615a-1(f)(3)(B) states that these purposes and functions shall be limited to “the support and implementation of 9-1-1 services” provided by or in the state or taxing jurisdiction imposing the fee or charge, and “operational expenses of public safety answering points” within such state or taxing jurisdiction. The new section also states that, in designating such purposes and functions, the Commission shall consider the purposes and functions that states and taxing jurisdictions specify as the intended purposes and functions for their 911 fees or charges, and “determine whether such purposes and functions directly support providing 9-1-1 services.”

Section 902 also amends 47 U.S.C. 615a-1(f)(1) to provide that the rules adopted by the Commission for these purposes will apply to states and taxing jurisdictions that impose 911 fees or charges. Whereas the prior version of section 615a-1(f)(1) referred to fees or charges “obligated or expended only in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, as specified in the provision of State or local law adopting the fee or charge,” the amended version refers to the obligation or expenditure of fees or charges “ consistent with the purposes and functions designated in the final rules issued under paragraph (3) as purposes and functions for which the obligation or expenditure of such a fee or charge is acceptable.” (Emphasis added.)

In addition, section 902(c) establishes a process for states and taxing jurisdictions to seek a determination that a proposed use of 911 fees should be treated as acceptable even if it is for a purpose or function that has not been designated as such in the Commission's rules. Specifically, newly added 47 U.S.C. 615a-1(f)(5) provides that a state or taxing jurisdiction may petition the Commission for a determination that an obligation or expenditure of a 911 fee or charge “for a purpose or function other than a purpose or function designated under [section 615a-1(f)(3)(A)] should be treated as such a purpose or function,” i.e., as acceptable for purposes of this provision and the Commission's rules. The new section 615a-1(f)(5) provides that the Commission shall grant the petition if the state or taxing jurisdiction provides sufficient documentation that the purpose or function “(i) supports public safety answering point functions or operations,” or “(ii) has a direct impact on the ability of a public safety answering point to—(I) receive or respond to 9-1-1 calls; or (II) dispatch emergency responders.”

Section 902(d) requires the Commission to create the “Ending 9-1-1 Fee Diversion Now Strike Force” (911 Strike Force), which is tasked with studying “how the Federal Government can most expeditiously end diversion” by states and taxing jurisdictions and reporting to Congress on its findings within 270 days of the statute's enactment. 5 In February, the agency announced the formation of the 911 Strike Force and solicited nominations. On May 21, 2021, the agency announced the 911 Strike Force membership, which includes a diverse array of experts from across the nation representing Federal, state, and local government agencies, state 911 administrators, a consumer group, and organizations representing 911 professionals. The 911 Strike Force held its inaugural meeting on June 3, 2021, and has formed three working groups that will examine: (i) The effectiveness of any Federal laws, including regulations, policies, and practices, or budgetary or jurisdictional constraints regarding how the Federal Government can most expeditiously end 911 fee diversion; (ii) whether criminal penalties would further prevent 911 fee diversion; and (iii) the impacts of 911 fee diversion. Consistent with section 902(d), the 911 Strike Force will complete its work and submit its final report to Congress by September 23, 2021. In addition, Section 902(d)(1) provides that if the Commission obtains evidence that “suggests the diversion by a State or taxing jurisdiction of 9 1 1 fees or charges,” the Commission shall submit such information to the 911 Strike Force, “including any information regarding the impact of any underfunding of 9-1-1 services in the State or taxing jurisdiction.”

Section 902(d)(2) provides that the Commission shall also include evidence it obtains of diversion and underfunding in future annual fee reports, beginning with the first report “that is required to be submitted after the date that is 1 year after the date of the enactment of this Act.”  6 In addition, section 902(c)(1)(C) provides that if a state or taxing jurisdiction receives a grant under section 158 of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 942) after the date of the enactment of the new legislation, “such State or taxing jurisdiction shall, as a condition of receiving such grant, provide the information requested by the Commission to prepare the [annual report to Congress on 911 fees].” Finally, section 902(d)(4) prohibits any state or taxing jurisdiction identified as a fee diverter in the Commission's annual report from participating or sending a representative to serve on any committee, panel, or council established to advise the First Responder Network Authority (FirstNet) under 47 U.S.C. 1425(a) or any advisory committee established by the Commission.

Section 902 does not require states or taxing jurisdictions to impose any fee in connection with the provision of 911 service. As revised, the proviso to section 615a-1 states that nothing in the Act or the Commission's rules “shall prevent the imposition and collection of a fee or charge applicable to commercial mobile services or IP-enabled voice services” specifically designated by the taxing jurisdiction “for the support or implementation of 9-1-1 or enhanced 9-1-1 services, provided that the fee or charge is obligated or expended only in support of 9-1-1 and enhanced 9-1-1 services, or enhancements of such services, consistent with the purposes and functions designated in [the Commission's forthcoming rules] as purposes and functions for which the obligation or expenditure of such a fee or charge is acceptable.” In this regard, section 902 charges the Commission with adopting rules defining what relevant statutory provisions mean, a responsibility we fulfill in adopting the rules in this Report and Order. In this regard, when we define and describe “acceptable” expenditures in this Report and Order or in our rules, we mean to use that term as Congress did in section 902(c)(1)(C).

On February 17, 2021, we adopted a notice of proposed rulemaking (NPRM), which proposed rules to implement section 902 and address 911 fee diversion. 7 The Commission received twenty-eight comments, nine reply comments, and five ex parte filings.

With this Report and Order, we adopt rules to implement the provisions of section 902 that require Commission action. Specifically, we amend part 9 of our rules to establish a new subpart I that addresses 911 fees and fee diversion in accordance with and for the purposes of the statute. The new subpart I rules (1) clarify what does and does not constitute the kind of diversion of 911 fees that has concerned Congress (and the Commission); (2) establish a declaratory ruling process for providing further guidance to states and taxing jurisdictions on fee diversion issues; and (3) codify the specific obligations and restrictions that section 902 imposes on states and taxing jurisdictions, including those that engage in diversion as defined by our rules.

The record indicates that commenters are divided on whether expenditures of 911 fees for public safety radio systems and related infrastructure should be considered acceptable for Section 902 purposes. Our new rules provide additional guidance on this question. We also refer additional questions concerning the application of our new rules to the 911 Strike Force for the development of recommendations. We also note that the petition process established by section 902 provides a mechanism for further consideration of this issue in the context of specific fact patterns, after adoption of the initial rules in this proceeding. We conclude that these changes to part 9 will advance Congress's stated objectives in section 902 in a cost-effective manner that is not unduly burdensome to providers of emergency telecommunications services or to state and taxing jurisdictions. In sum, the rules we adopt in this document closely track the statutory language addressing 911 fee diversion, and seek to promote transparency, accountability, and integrity in the collection and expenditure of fees collected for 911 services, while providing stakeholders reasonable guidance as part of implementing section 902.

Section 902 defines certain terms relating to 911 fees and fee diversion. To promote consistency, the NPRM proposed to codify these definitions with certain modifications. As described below, we adopt these definitions as proposed. 8

Background. Section 902 defines “9-1-1 fee or charge” as “a fee or charge applicable to commercial mobile services or IP-enabled voice services specifically designated by a State or taxing jurisdiction for the support or implementation of 9-1-1 services.” In the NPRM, we proposed to codify this definition in the rules. However, we also noted that the statutory definition in section 902 does not address services that may be subject to 911 fees other than Commercial Mobile Radio Services (CMRS) and IP-enabled voice services. As we observed in the NPRM, the reason for this omission is unclear. For example, virtually all states impose 911 fees on wireline telephone services and have provided information on such fees for inclusion in the agency's annual fee reports. In addition, as 911 expands beyond voice to include text and other non-voice applications, states could choose to extend 911 fees to such services in the future.

To promote regulatory parity and avoid gaps that could inadvertently frustrate the rapid deployment of effective 911 services, including advanced Next Generation 911 (NG911) services, we proposed to define “911 fee or charge” in the rules to include fees or charges applicable to “other emergency communications services” as defined in section 201(b) of the NET 911 Act. Under the NET 911 Act, the term “other emergency communications service” means “the provision of emergency information to a public safety answering point via wire or radio communications, and may include 9-1-1 and enhanced 9-1-1 service.” We noted that this proposed modification will make clear that the rules in subpart I extend to all communications services regulated by the Commission that provide emergency communications, including wireline services, and not just to CMRS and IP-enabled voice services. We also proposed in the NPRM to extend the definition of “911 fee or charge” to include fees or charges designated for the support of “public safety,” “emergency services,” or similar purposes if the purposes or allowable uses of such fees or charges include the support or implementation of 911 services.

Decision. We adopt our NPRM proposal. The Michigan 911 Entities support including “other emergency communications services” in the definition, and no commenter opposes this proposal. We find that this expansion of the definition of “911 fee or charge” is reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities under section 902 and other Federal 911-related statutes and Communications Act statutory provisions that, taken together, establish an overarching Federal interest in ensuring the effectiveness of the 911 system. The Commission's general jurisdictional grant includes the responsibility to set up and maintain a comprehensive and effective 911 system, encompassing a variety of communication services in addition to CMRS and IP-enabled voice services. Section 251(e)(3) of the Communications Act of 1934, which directs the Commission to designate 911 as the universal emergency telephone number, states that the designation of 911 “shall apply to both wireline and wireless telephone service,” which evidences Congress's intent to grant the Commission broad authority over different types of communications services in the 911 context. 9 Similarly, RAY BAUM'S Act directed the Commission to consider adopting rules to ensure that dispatchable location is conveyed with 911 calls “regardless of the technological platform used.”  10 In addition, section 615a-1(e)(2) provides that the Commission “shall enforce this section as if this section was a part of the Communications Act of 1934 [47 U.S.C. 151 et seq. ]” and that “[f]or purposes of this section, any violations of this section, or any regulations promulgated under this section, shall be considered to be a violation of the Communications Act of 1934 or a regulation promulgated under that Act, respectively.”

Accordingly, we conclude that including “other emergency communications services” within the scope of the definition of 911 fees is also reasonably ancillary to the Commission's effective performance of its statutorily mandated responsibilities for ensuring that the 911 system, including 911, E911, and NG911 calls and texts from any type of service, is available, that these 911 services function effectively, and that 911 fee diversion by states and other jurisdictions does not detract from these critical, statutorily recognized purposes. As we stated in the NPRM, diverting fees collected for 911 service of any type, whether it be wireline, wireless, IP based, or text, undermines the purpose of these Federal statutes by depriving the 911 system of the funds it needs to function effectively and to modernize 911 operations.

We also adopt our proposal in the NPRM to extend the definition of “911 fee or charge” to include multi-purpose fees or charges designated for the support of “public safety,” “emergency services,” or similar purposes if the purposes or allowable uses of such fees or charges include the support or implementation of 911 services. We find that this aspect of the definition is consistent with the purpose of section 902 with respect to 911 fees and charges, which is to discourage states and taxing jurisdictions from diverting these fees and charges for purposes that do not directly benefit the 911 system. Moreover, as we noted in the NPRM, this aspect of the definition is consistent with the approach taken in the agency's annual fee reports, which have found that the mere labelling of a fee is not dispositive and that the underlying purpose of the fee is relevant in determining whether it is (or includes) a 911 fee within the meaning of the NET 911 Act.

Some commenters oppose the proposal to extend the definition of “911 fee or charge” to include multi-purpose fees. The New York State Division of Homeland Security and Emergency Services (NYS DHSES) asserts that the Commission's statutory authority is limited to “specifically designated” 911 fees or charges, and that the Commission lacks authority to regulate fees and charges designated for other purposes. The Boulder Regional Emergency Telephone Service Authority (BRETSA) argues that extending the definition as proposed will limit 911 funding because some states (including Colorado) have a constitutional prohibition on incurring debt and therefore must establish contingency or sinking funds for unpredictable 911 expenditures. BRETSA asserts that if using the proceeds of such a fee to support 911 will mean that those proceeds cannot thereafter be used for more general purposes, the public safety answering point (PSAP) may be denied funding when needed.

We disagree that our authority under the NET 911 Act extends only to “specifically designated” 911 fees or charges. The legislative history of the NET 911 Act indicates Congress's broad intention to discourage or eliminate the diversion of 911 fees by states and political subdivisions. In its report on H.R. 3403 (the bill that was enacted as the NET 911 Act), the House Committee on Energy and Commerce noted Congress's intent that “[s]tates and their political subdivisions should use 911 or E911 fees only for direct improvements to the 911 system” and that the Act “is not intended to allow 911 or E-911 fees to be used for other public safety activities that, although potentially worthwhile, are not directly tied to the operation and provision of emergency services by PSAPs.” A narrow interpretation covering only “specifically designated” 911 fees or charges would frustrate this congressional purpose by creating an opportunity for states to divert the 911 portion of a multi-purpose fee. Moreover, there is no language in the NET 911 Act (or in the amendments made by section 902) that limits the scope of that Act to fees designated exclusively for 911/E911. Finally, in its annual fee reports, the agency has found that multi-purpose fees that support 911/E911 and other purposes fall within the Commission's authority under the NET 911 Act.

With respect to BRETSA's argument that extending the definition of “911 fee or charge” as proposed would prevent the establishment of sinking or contingency funds for 911 expenditures, we disagree that this would be prohibited under our rules. As discussed below, we also adopt a safe harbor under which a multi-purpose fee would not be deemed to be diverting 911 fees, and we note that sinking or contingency funds could fall within the safe harbor, provided that they meet the relevant criteria.

Background. Section 902(f) defines “diversion,” with respect to a 9-1-1 fee or charge, as the obligation or expenditure of such fee or charge for a purpose or function other than the purposes and functions designated in the final rules issued under paragraph (3) of section 6(f) of the Wireless Communications and Public Safety Act of 1999, as added by section 902, as purposes and functions for which the obligation or expenditure of such a fee or charge is acceptable.

In the NPRM, we proposed to codify this definition with minor changes to streamline it. Specifically, we proposed to define diversion as “[t]he obligation or expenditure of a 911 fee or charge for a purpose or function other than the purposes and functions designated by the Commission as acceptable pursuant to [the applicable rule section in subpart I].” In addition, we proposed to clarify that the definition of diversion includes distribution of 911 fees to a political subdivision that obligates or expends such fees for a purpose or function other than those designated by the Commission.

Decision. We adopt this definition as proposed. We find that it will encourage states and taxing jurisdictions to take proactive steps to address the conditions that enable diversion of 911 fees by political subdivisions, such as counties, that may receive 911 fees. 11

Several commenters raise concerns with our proposal to specify that diversion includes distribution of 911 fees to a locality that diverts them. The National Emergency Number Association (NENA) states that it is concerned that the administrative burden of local surveillance and potential lack of state-level capacity for diversion enforcement could add to the already significant burden on state-level 911 officials. NENA also expresses concern that states “may lack the logistical capability to prevent this diversion of funds, especially in a timely manner.” The National Association of State 911 Administrators (NASNA) notes that in some states, service providers remit fees directly to political subdivisions, such as counties, for 911 use and that due to limits in their statutes or constitutions, these states have limited authority over the local use of those funds. NASNA adds that states “would have no visibility over how these funds are spent at the local level.” NASNA suggests that in states where there is limited authority over local 911 fee collection or use, the Commission should require that local units report directly to the Commission, and “the state should not be held accountable for any finding of diversion occurring at the local level of which it does not have authority.” Further, NASNA requests that the Commission “notify the state in a timely manner of any diversion to ensure the state can restrict or require repayment of any grant funds or other restrictions that the local diverter would be subject to under the FCC's rules on 911 fee diversion.”

We find that it is consistent with the intent of section 902 to hold states responsible for fee diversion by localities within their boundaries. Absent such a policy, states or taxing jurisdictions could have an incentive to avoid oversight or accountability for expenditures by political subdivisions. We also decline to require that local units report directly to the Commission, as NASNA requests. The NET 911 Act requires the Commission to report on the “status in each State” of the collection and distribution of 911 fees or charges, and the agency's annual 911 fee report questionnaire is consistent with this directive. We note that states may disclose limitations on their authority over local 911 fee collection or use in their responses to the fee report questionnaire and that these questionnaires are publicly available on the Commission's website. We also note that the petition for determination process established by section 902 provides a mechanism for further consideration of this issue in the context of specific fact patterns. In response to concerns that defining diversion in this way could result in the denial of grant funding for states or local jurisdictions on the basis of the actions of localities over which they have no control, we note that decisions with respect to grant eligibility will be made by the agencies managing the grant program, not the Commission. If states and localities seek flexibility under these circumstances with respect to eligibility for grant funding, they must request it from the agencies managing the grant program. 12 We provide additional guidance below on how fee diversion at the local level would affect eligibility for Commission advisory panels.

Background. Section 902 defines a state or taxing jurisdiction as “a State, political subdivision thereof, Indian Tribe, or village or regional corporation serving a region established pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq. ).” We proposed in the NPRM to codify this definition in our rules. We also proposed to add the definition of “State” from 47 U.S.C. 615b to the subpart I rules. Under section 615b, the term “State” means “any of the several States, the District of Columbia, or any territory or possession of the United States.” Accordingly, provisions in subpart I that apply to any “State or taxing jurisdiction” would apply to the District of Columbia and any United States territory or possession as well.

Decision. We adopt these definitions as proposed. We find that these definitions will be helpful to users of the subpart I regulations, and no commenter opposes them. With respect to the scope of subpart I, we proposed in the NPRM that the rules would apply to states or taxing jurisdictions that collect 911 fees or charges (as defined in that subpart) from commercial mobile services, IP-enabled voice services, and other emergency communications services. We believe this provision will help to clarify application of the subpart I rules, and no commenter opposes this proposal. Accordingly, we adopt this rule as proposed.

Section 902 requires the Commission to issue rules “designating purposes and functions for which the obligation or expenditure of 9-1-1 fees or charges, by any State or taxing jurisdiction authorized to impose such a fee or charge, is acceptable” for purposes of the statute. In addition, section 902 provides that the purposes and functions designated as acceptable for such purposes “shall be limited to the support and implementation of 9 1 1 services provided by or in the State or taxing jurisdiction imposing the fee or charge and operational expenses of public safety answering points within such State or taxing jurisdiction.” Section 902 also provides that the Commission shall consider the purposes and functions that states and taxing jurisdictions specify as their intended purposes and “determine whether such purposes and functions directly support providing 9-1-1 services.”  13 Moreover, section 902 provides states and taxing authorities with the right to file a petition with the Commission for a determination that an obligation or expenditure of a 911 fee or charge that is imposed for a purpose or function other than those designated as acceptable for purposes of the statute in the Commission rules should nevertheless be treated as having an acceptable purpose or function for such purposes.

Background. In the NPRM, we proposed to codify the statutory standard for acceptable purposes and functions for the obligation or expenditure of 911 fees or charges by providing that acceptable purposes and functions for purposes of the statute are limited to (1) support and implementation of 911 services provided by or in the state or taxing jurisdiction imposing the fee or charge, and (2) operational expenses of PSAPs within such state or taxing jurisdiction. We also noted that this language tracks the language in section 902.

Decision. We adopt the general standard for designating acceptable purposes and functions for expenditures of 911 fees as proposed in the NPRM, with minor modifications to clarify that these designations of acceptable obligations or expenditures are for purposes of section 902. 14 Commenters are generally supportive of this proposal, and the proposed language tracks the language of section 902.

Several commenters urge the Commission to clarify the term “911 services” or “911 systems” in the proposed rule. The City of Aurora asserts that as proposed, the term would be narrowly limited to receipt of the call at the PSAP and processing the call through computer aided dispatch (CAD) 911, and that 911 services should include “all technology, staff, training, and administration necessary to effectively provide emergency response to the caller.” The Colorado Public Utilities Commission (CoPUC) comments that what constitutes 911 services “may mean different things to different people, particularly as technological advances in emergency communications technology blur the lines between what may be considered `911 service' and what may be just part of the emergency communications ecosystem.”

State and local 911 authorities also urge the Commission to adopt broad rules that would provide flexibility at the state and local level and to defer to states and local authorities in determining what constitutes fee diversion. NASNA argues that “[t]hese rules must be implemented in a manner that does not create conflict with existing state statutes and guidelines.” NASNA adds that it believes the proposed rules “do not consider each state's current legislative and regulatory processes that (1) involve their citizen knowledge and involvement, (2) have longstanding systems in place, and (3) have evolved through consensus-based processes that involve both the public safety community and the communication industry.” The Oklahoma 911 Management Authority (Oklahoma 911) similarly urges the Commission to make the rules “broad and allow for flexibility within the State and region to narrow the requirements to fit local need.” Adams County, CO, et al. encouraged the FCC to include a safe harbor for 911 entities that utilize funds from 911 fees in compliance with state laws substantially equivalent to the Colorado statute. BRETSA and the National Public Safety Telecommunications Council (NPSTC) also raise concerns that state fees and taxes are “matters of state interest,” or that the Commission should consider whether Federal rules defining how state funds can be used encompass any states' rights issues. Some commenters note that funding priorities and needs may evolve over time, and contend that it is not apparent that the proposed rules provide sufficient flexibility for the future. CTIA—the Wireless Association (CTIA), on the other hand, responds that the Commission may not defer to state laws regarding the permissible uses of 911 fees, as some commenters suggest, because section 902 charges the Commission with the responsibility to determine the appropriate purposes and functions for which 911 fees may be used. CTIA asserts that “[i]t is well settled that federal agencies may not subdelegate such authority to outside entities (including state sovereign entities) absent express authority to do so, and nothing in the statute permits the Commission to subdelegate this responsibility.”

We agree that our rules should be reasonably broad given the diverse and evolving nature of the 911 ecosystem. Consistent with this approach, our rules identify broad categories of acceptable purposes and functions for 911 fees and provide examples within each category to guide states and localities. 15 As the rules make clear, the examples of acceptable expenditures for purposes of section 902 are non-exclusive and are meant to be illustrative; they are not intended to anticipate every possible use of 911 fees at the state and local level. State and local jurisdictions thus have discretion to make reasonable, good faith determinations whether specific expenditures of 911 fees are acceptable under our rules. In light of this, we do not believe additional clarification of the terms “911 services” or 911 systems” is necessary. We also note that the petition for determination process afforded by section 902 provides a mechanism for states and taxing jurisdictions that seek additional guidance on whether a particular expenditure would be an acceptable use of 911 fees.

We do not agree, however, with commenters who contend that the Commission should defer to state and local law on what constitutes fee diversion for purposes of section 902. As CTIA points out, section 902 charges the Commission with responsibility for determining appropriate purposes and functions for expenditure of 911 funds. A policy of deferring to states or localities on what constitutes fee diversion would negate one of the principal aspects for these purposes of section 902, which is that it revises the language in 47 U.S.C. 615a-1 to make clear that fee diversion is not whatever state or local law says it is. Accordingly, we decline to create a safe harbor for 911 entities that use 911 fees in compliance with their state statute, as this would essentially make the categories of acceptable purposes and functions we establish herein meaningless. We also disagree that our rules encroach in any way on states' rights. Following the congressional directive given to the Commission in section 902, and in furtherance of a nationwide 911 and E911 service, the rules identify and define categories of expenditures that are, or are not, acceptable for 911 fees for the specific purposes of section 902 and, consistent with the statute, provide consequences for states or taxing jurisdictions found to be diverting (such as ineligibility to serve on certain advisory panels). The rules do not, however, prohibit or require collection or expenditure of 911 fees by any state or taxing jurisdiction.

Finally, we clarify the phrase “support and implementation of 911 services provided by or in the state or taxing jurisdiction imposing the fee or charge,” under new § 9.23(a). Some commenters contend that, as proposed in the NPRM, § 9.23(a) would prohibit states or other taxing jurisdictions from spending 911 fees outside of the originating jurisdiction ( i.e., cross-subsidization) and urge the Commission to permit such expenditures. We believe that Congress did not intend to address all 911 fund cross-subsidization with this language, and this is not the meaning of § 9.23(a). Indeed, many cross-subsidization situations across local or state lines may be necessary for the benefit of a state or taxing jurisdiction's own 911 system. For example, Oklahoma 911 argues that it should be deemed acceptable for purposes of section 902 for the landline fees collected at a very granular level locally to be used to “pay for valid 9-1-1 expenses outside of the originating taxing jurisdiction when municipalities and counties regionalize or consolidate.” BRETSA argues, e.g., that there are large or sparsely populated areas that have insufficient PSAP coverage and need subsidies from other taxing jurisdictions within the state. Providing such subsidies from another taxing locality might benefit the taxing locality not only by, e.g., providing mutual redundancy and backup, but also by reducing the load on the taxing locality's 911 system because it no longer has to step in regularly to provide 911 service and support for the underserved area, potentially also at much greater expense and difficulty due to the lack of interconnectivity. In sum, we do not believe that Congress in section 902(c)(1)(C) intended to prohibit cross-subsidization from one taxing state or jurisdiction to another to the detriment of a robust, efficient, and reliable 911 system that serves the public. 16

Background. We proposed in the NPRM that examples of acceptable purposes and functions include, but not be limited to, the following, provided that the state or taxing jurisdiction can adequately document that it has obligated or spent the fees or charges in question for these purposes and functions:

(1) PSAP operating costs, including lease, purchase, maintenance, and upgrade of customer premises equipment (CPE) (hardware and software), computer aided dispatch (CAD) equipment (hardware and software), and the PSAP building/facility;

(2) PSAP personnel costs, including telecommunicators' salaries and training;

(3) PSAP administration, including costs for administration of 911 services and travel expenses associated with the provision of 911 services;

(4) Integrating public safety/first responder dispatch and 911 systems, including lease, purchase, maintenance, and upgrade of CAD hardware and software to support integrated 911 and public safety dispatch operations; and

(5) Providing for the interoperability of 911 systems with one another and with public safety/first responder radio systems.

We noted in the NPRM that we believe these purposes and functions are consistent with the general standard for designating acceptable uses of 911 fees and charges set out in section 902. In addition, we noted that these purposes and functions are consistent with the agency's past analysis of 911 fee diversion in its annual fee reports, as well as the legislative history of the NET 911 Act. We sought comment in the NPRM on our proposed designation of acceptable and unacceptable purposes and functions under the statute, including whether our proposals were underinclusive or overinclusive. In addition, we sought comment on the purposes and functions that states and taxing jurisdictions have specified as the intended functions for 911 fees and charges and how we should take these specifications into account as we designate acceptable purposes and functions under section 902.

Decision. We revise one of the categories of acceptable purposes and functions in response to commenters' requests for additional examples of expenditures that fall within the category. We adopt the other categories as proposed in the NPRM.

Commenters generally support the proposed framework of general categories of acceptable and unacceptable expenditures for purposes of section 902, with examples within each category. CTIA states that it supports the proposed standard for determining acceptable purposes and functions and notes that section 902 directs the Commission, in considering expenditures, to “determine whether such purposes and functions directly support providing 9-1-1 services.” Intrado states that “the basic framework proposed by the Commission of providing a list of acceptable and unacceptable expenditures and obligations for 911 fees is sound. Addressing fee diversion through a non-exhaustive list of acceptable and unacceptable purposes and functions will invariably produce objections from affected parties. What matters most, however, is the Commission sets a clear demarcation line for compliance that public safety organizations can internalize, which the Commission can accomplish using the proposed rule's framework with an acceptable/unacceptable list of expenditures and obligations.”

Other commenters request additions or changes to the categories of acceptable expenditures. CoPUC contends that more clarity is needed regarding what constitutes “operational expenses of PSAPs” in proposed § 9.23(b)(1) because a wide range of different service models exist. Commenters also ask the Commission to clarify the term “interoperability” in proposed § 9.23(b)(5). In addition, commenters request a variety of additions to the list of examples within each category, including expenditures for pre-arrival instructions and associated training; maintenance and replacement costs; 911 cybersecurity; budgeting and forecasting; hiring, retention, and training of staff; industry-specific training through organizations such as NENA and the Association of Public-Safety Communications Officials-International, Inc. (APCO); mental health services for 911 professionals; administrative expenses for overseeing 911 programs; compliance costs; 911 call processing systems; CAD systems, mobile data computers (MDCs); geographic information systems (GIS) call routing, wide area networks (WANs), Emergency Services IP Networks (ESInets), and other NG911 technologies; emergency notification systems (ENS); and platforms such as Smart911 and RapidSOS. BRETSA provides an extensive list of requested additions, as does the Illinois State Police.

We agree with commenters that it would be helpful to add some of these examples to the language of the rule. Specifically, we revise § 9.23(b)(1) to refer to PSAP operating costs, including lease, purchase, maintenance, replacement, and upgrade of customer premises equipment (CPE) (hardware and software), computer aided dispatch (CAD) equipment (hardware and software), and the PSAP building/facility and including NG911, cybersecurity, pre-arrival instructions, and emergency notification systems (ENS). PSAP operating costs also include technological innovation that supports 911.

This revision to the proposed rule makes clear that replacement of 911 systems is an acceptable expenditure for purposes of Section 902 and that 911 includes pre-arrival instructions and ENS. We also add a reference to cybersecurity. As NPSTC and BRETSA note, CSRIC VII recently recommended that spending on cybersecurity improvements be “explicitly authorized as an eligible use of 9-1-1 funds.” We also add a reference to NG911, and we revise the language to make clear that acceptable expenditures for these purposes include funding not just for existing systems, but also for innovation that will support 911 in the future. 17 We find that these additions to the rule will help to clarify the scope of acceptable expenditures for PSAP operating costs in the implementation of section 902.

With respect to additional suggestions from commenters for identifying specified uses of 911 funds as acceptable for purposes of Section 902, we do not believe it is necessary to add every specific example to the text of the rules or to attempt further clarification of terms such as “operating expenses” or “interoperability.” As we note above, we intend to keep these rules general so that states and taxing jurisdictions have reasonable flexibility to use their good faith judgment in applying the rules to particular circumstances. In addition (and as the rules explicitly state), the categories and examples are non-exclusive and are not intended to specify every possible use of 911 fees that would be acceptable. We also note that the petition for determination process provides a mechanism for states and taxing jurisdictions that seek additional guidance in applying the rules to a particular proposal for use of 911 fees.

Background. We sought comment in the NPRM on specifying examples of purposes and functions that are not acceptable for the obligation or expenditure of 911 fees or charges for purposes of the statute. We proposed in § 9.23(c) of the rules that such examples would include, but not be limited to, the following:

We noted that identifying these examples as unacceptable expenditures for purposes of the statute is consistent with the manner in which such expenditures have been analyzed in the agency's annual 911 fee reports and sought comment on whether these examples should be codified. 18

Decision. We adopt these provisions as proposed in the NPRM, with two minor modifications to § 9.23(c)(3), as detailed below. In light of the divided record on using 911 fees for public safety radio systems, we provide additional guidance on when such use of 911 fees will be deemed to have purposes or functions that “directly support providing 9-1-1 services” and so qualifies as “acceptable” for purposes of avoiding section 902 consequences. We also seek recommendations from the 911 Strike Force on developing additional specific examples in these regards.

We adopt our proposal to classify as unacceptable for Section 902 purposes the transfer of 911 fees into a general fund or other fund for non-911 purposes. The agency's annual fee reports consistently have found that transferring 911 fees to a state's general fund constitutes fee diversion. In addition, no commenter opposes this provision.

We also adopt our proposal that expenditures of 911 fees for constructing or expanding non-public safety communications networks, such as commercial cellular networks, are not acceptable for Section 902 purposes. This finding is consistent with our approach in the agency's annual 911 fee reports, where the agency has concluded, for example, that construction of commercial cellular towers to expand cellular coverage is not 911 related within the meaning of the NET 911 Act. In the Twelfth Annual Report to Congress on State Collection and Distribution of 911 and Enhanced 911 Fees and Charges, the agency explained that, although expanding cellular coverage “enhances the public's ability to call 911,” the NET 911 Act focuses on funding the elements of the 911 call-handling system that are operated and paid for by state and local 911 authorities.

Some commenters recommend a more “nuanced” approach that would allow 911 spending on non-public safety communications networks in certain circumstances. For example, BRETSA agrees that “wireless providers should not require 9-1-1 Authorities to subsidize expansion of their coverage with 9-1-1 Fees,”  19 but expresses concern that § 9.23(c)(2) could prevent Colorado from providing “diverse paths” to “currently unprotected Central Offices [ ] serving PSAPs” due to “incidental benefits to wireless providers.” Oklahoma 911 contends that expenditures to provide for PSAP backup during outages should be looked at on a “case by case basis” at the state and local level, to ensure 911 calls are delivered “quickly and appropriately.” We agree that expenditures to provide redundancy, backup, or resiliency in components of the 911 network ( e.g., components that provide path diversity to PSAPs or support rerouting of 911 traffic in the event of an outage) would not be deemed unacceptable under this rule. We also note that the petition for determination process provides a mechanism for states and taxing jurisdictions to seek additional guidance in applying § 9.23(c)(2) to a particular proposal for use of 911 fees to meet local needs.

We also adopt with minor modifications our proposal to classify as unacceptable, for purposes of section 902, expenditures of 911 fees on equipment or infrastructure for law enforcement, firefighters, and other public safety/first responder entities that do not directly support 911 services. We revise the language of this section slightly to provide that examples of purposes and functions that are not acceptable for the obligation or expenditure of 911 fees or charges for purposes of section 902 include, but are not limited to, “Equipment or infrastructure for law enforcement, firefighters, and other public safety/first responder entities that does not directly support providing 911 services.” The reference to whether such equipment or infrastructure “directly support[s] providing 911 services” more closely tracks the language in section 902.

Further, with respect to the application of this rule to public safety radio expenditures, we leave the precise dividing line between acceptable and unacceptable radio expenditures open for further refinement, and we refer this issue to the 911 Strike Force for further consideration and the development of recommendations.

Commenters were divided on whether using 911 funds to pay for public safety radio systems constitutes fee diversion. The Tarrant County (TX) 9-1-1 District strongly disagrees with commenters who assert that allowable uses of 911 fees should include items such as radio infrastructure, mobile radios, portable radios, pagers or other systems: “THIS is exactly the problem. Agencies want to fund the entire public safety response system by recategorizing equipment, vehicles, and unrelated systems as part of the 9-1-1 response. It is emphatically NOT all part of the 9-1-1 system. The purpose of the fee is strictly to support Basic 9-1-1 and Enhanced 9-1-1 (E911) services only.” CTIA and NTCA—The Rural Broadband Association (NTCA) argue that allowing radio system expenses would depart from fee report precedent, where the agency has ruled that use of funds to support public safety radio systems and associated maintenance and upgrades are not 911-related and constitute fee diversion. The North Carolina 911 Board (NC 911 Board) supports the NPRM proposal and notes that it only funds radio expenses within the PSAP based on the definition of “call taking” in the North Carolina statute.

However, some state and local 911 entities urge the Commission to find that expenditures of 911 funds on public safety radio systems are broadly acceptable and do not constitute fee diversion. These commenters contend that radio networks are not operationally and technically distinct from the 911 system and should be treated as integral components of the 911 ecosystem. For example, NYS DHSES asserts that “[p]ublic safety communication systems are most effective when they address all users. This requires connecting the general public to 911 Centers and their telecommunicators who, in turn, communicate with first responders in the field.” The Michigan 911 Entities assert that “[u]nless the Commission is suggesting that police and fire go back to the wired Call Box on the street corner, there is no doubt that a PSAP is virtually useless without its interconnection to the radio system. Similarly, that radio system is useless without subscriber units for the system with which to communicate.”

Several commenters also assert that our proposal to consider expenditures for public safety radio expenses unacceptable for section 902 purposes in certain circumstances is inconsistent with our proposal that expenditures providing for “the interoperability of 911 systems with one another and with public safety/first responder radio systems” would be acceptable. The Pennsylvania Emergency Management Agency (PEMA) asserts that “[t]he proposed rules imply there is a boundary between acceptable and not acceptable radio system expenses, but it is not clear where the boundary lies.” CoPUC states that the line between acceptable and unacceptable radio equipment “is not clear at all” and that “[p]resumably, radio equipment inside the PSAP is allowed, but everything from the PSAP to the portable radio on a patrol officer's utility belt is part of the infrastructure required to dispatch emergency responders.”

The issue whether radio system expenditures are acceptable or unacceptable for purposes of section 902 turns on how the Commission interprets the statutory provision that 911 fee expenditures directly support the provision of 911 services. We believe it is important to strike a balance between the opposing views in the record while recognizing the evolving nature of the 911 landscape and the variety of specific issues that could arise. Therefore, we reject as overbroad the proposition that all public safety radio expenditures “directly support the provision of 911 services” and are therefore acceptable. This is inconsistent with the standard applied in prior 911 fee reports and risks becoming an exception that swallows the rule. However, the test of whether specific radio expenditures directly support the provision of 911 services should be sufficiently flexible to allow for innovation and evolution in the 911 environment. For example, acceptable radio expenditures are not necessarily limited to technology “inside the PSAP” and could extend to development of integrated communications systems that support 911-related functions such as caller location or that enhance 911 reliability and resiliency. As NENA points out, the Commission's determinations with respect to edge cases “evolve and are clarified over time as [the agency] is confronted with new quasi-9-1-1 public safety expenditures.” We therefore decline to define a “bright line” test for applying the rule to specific radio expenditures.

We also find that commenters on both sides of this issue raise arguments that warrant additional consideration in determining where the line should be drawn between acceptable and unacceptable expenditures for public safety radio equipment. Accordingly, we do not specify public safety radio expenditures in our codified list of unacceptable uses, but we adopt our proposal defining expenditures on infrastructure or equipment as unacceptable if they do not directly support providing 911 services. In addition, we refer this issue to the 911 Strike Force for further guidance on how to apply this standard—to be delivered to the Commission contemporaneously with its final report to Congress—including the extent to which radio expenditures should be considered acceptable for purposes of section 902 because they provide for the interoperability of 911 systems with one another and with public safety/first responder radio systems. Finally, we note that the petition for determination process established by the statute provides a mechanism for further consideration of this issue in the context of specific cases after adoption of these rules.

Background. In the NPRM, we proposed to adopt an elective safe harbor in our rules providing that if a state or taxing jurisdiction collects fees or charges designated for “public safety,” “emergency services,” or similar purposes and a portion of those fees goes to the support or implementation of 911 services, the obligation or expenditure of such fees or charges shall not constitute diversion provided that the state or taxing jurisdiction: (1) Specifies the amount or percentage of such fees or charges that is dedicated to 911 services; (2) ensures that the 911 portion of such fees or charges is segregated and not commingled with any other funds; and (3) obligates or expends the 911 portion of such fees or charges for acceptable purposes and functions as defined in § 9.23 under new subpart I. We reasoned that the rules should provide states and taxing jurisdictions the flexibility to apportion the collected funds between 911 related and non-911 related programs, but include safeguards to ensure that such apportionment is not subject to manipulation that would constitute fee diversion.

Decision. We adopt the safe harbor provision as proposed. As we note above, Congress tasked us with designating the acceptability of the obligation and expenditure of 911 fees or charges for purposes of determining whether section 902 consequences will apply. Consistent with that mandate, and to incentivize states and taxing jurisdictions to be transparent about multi-purpose fees, adopting a safe harbor provision offers flexibility to states and taxing jurisdictions to have the 911 portion of such multi-purpose fees be deemed acceptable while not having the non-911 portion be deemed diversion. Some commenters support adoption of the proposed safe harbor, while other commenters object to the creation of the safe harbor provision as regulating non-911 fees outside of the Commission's authority or as burdensome. In establishing the safe harbor, we believe that we are neither regulating non-911 fees nor overstepping the responsibility Congress required of the Commission. Because new paragraphs (3)(A) and (B) of section 615a-1(f) require the Commission to define “acceptable” expenditures of 911 fees or charges for purposes of section 902, and because some states and taxing jurisdictions collect 911 fees or charges as part of multi-purpose fees, we conclude that the Commission has the obligation to consider the portions of such fees that are dedicated to 911 services. The safe harbor is a voluntary provision that provides a set of criteria for states and taxing jurisdictions with multi-purpose fees to demonstrate that they are not diverting 911 fees or charges. Accordingly, § 9.23(d)(2), which provides that the 911 portion of such fees or charges is segregated and not commingled with any other funds, only applies to states and taxing jurisdictions that opt to use the safe harbor provision to demonstrate that they are not diverting 911 fees. Arguments that fee segregation exceeds the Commission's authority or is burdensome are obviated by the elective nature of the safe harbor.

We find that the safe harbor will promote visibility into how funds ostensibly collected for both 911 and other purposes are apportioned, which furthers Congress's transparency goals and enhances our ability to determine whether 911 funds are being diverted. Without such visibility, multi-purpose fees could be used to obscure fee diverting practices from Commission inquiry, and potentially could render our rules and annual 911 fee report ineffective.

We also clarify that the safe harbor provision is not intended to preclude the use of fees collected for non-911 purposes from later being used for 911 purposes. BRETSA “supports the Commission's proposal in Section 9.23(d),” but challenges a purported provision that “if a fee which is specified to be for a purpose other than 9-1-1 is used to support 9-1-1, it will thereafter be considered a 9-1-1 Fee.” BRETSA misconstrues the safe harbor provision. Nothing in the rules we adopt in this document would prevent a state or taxing jurisdiction from using fees originally collected for other public safety purposes to instead support 911 services if needed, and then later using those same non-911 public safety fees to support other public safety purposes again.

BRETSA also contends that the safe harbor prohibition on comingling of 911 funds with other funds is “unnecessarily restrictive.” We disagree. Segregation of 911 funds in a separate account will help to ensure that the funds are fully traceable, provide a straightforward framework to avoid 911 fee diversion issues, and promote transparency in the use of 911 fees when a state or taxing jurisdiction collects a fee for both 911 and non-911 purposes. We also clarify that states and taxing jurisdictions are not required to use the safe harbor provision of our rules. Thus, a state or taxing jurisdiction may create an alternative multi-purpose fee mechanism that does not meet the safe harbor requirements. If it does so, however, the burden will be on the state or taxing jurisdiction to demonstrate that it is not diverting 911 funds.

Finally, BRETSA suggests that “[i]n section 9.23(d)(1), it should suffice if the 9-1-1 funding statute or regulations specify the: (i) Amount or percentage of such fees or charges which are dedicated to purposes other than 9-1-1 Services, (ii) minimum amount or percentage dedicated to 9-1-1 services, or (iii) prioritize use of the fees or charges for 9-1-1 Service ( e.g., permit use of the fees for non-911 purposes after the costs of 9-1-1 Service have been met[)].” BRETSA's suggestions (i) and (ii) appear consistent with § 9.23(d)(1), as long as the state or taxing jurisdiction adheres to § 9.23(d)(2) requiring that the fees be kept segregated. We do not intend the safe harbor to restrict flexibility of states and taxing jurisdictions to adjust the percentages of a multi-purpose fee that are allocated to 911 and non-911 purposes.

Some commenters raise concerns regarding the sufficiency of the process by which jurisdictions are determined to be engaged in diversion by the Commission, or request additional procedural safeguards before being designated a diverter in the annual fee report. In addition, some commenters urge creation of an appeal process for states identified as diverters, and one commenter requests a process by which a diversion finding can be removed once a state has come into compliance.

We decline to adopt such procedures that are not provided for in either section 902 or the NET 911 Act. As discussed above, Congress directed the Commission to adopt final rules defining the acceptable uses of 911 fees and to rule on petitions for determination for additional uses, in order to discourage fee diversion. 20 Section 902 also does not alter the well-established data collection and reporting process that the agency has employed to compile its annual reports. To the contrary, Congress implicitly affirmed the agency's existing reporting processes by requiring that Federal grant recipients participate in the annual data collection.

For similar reasons, we decline to establish a “glide path” or “phase-in” period for states and taxing jurisdictions to come into compliance with our rules, as proposed by some commenters. Section 902 does not provide any mechanism for the Commission to delay the implementation of these rules under the statute. We recognize that commenters are concerned about the potential 911 grant eligibility consequences of being designated a fee diverter based on the rules adopted in this order. The Michigan Chapter of APCO, for example, asserts that a determination of diversion puts significant Federal grant money at risk, which could hinder the 911 system in fulfilling its primary purpose and ultimately harm those it was originally created to protect. Several commenters note that a finding of diversion could impact eligibility for future grants under the Leading Infrastructure for Tomorrow's America (LIFT America) Act if it is enacted into law. However, these issues are beyond the scope of this proceeding. The current 911 grant program is administered by the National Telecommunications and Information Administration (NTIA) and the National Highway Traffic Safety Administration (NHTSA), and the LIFT America Act, as currently drafted, provides for grants to be administered by these same agencies. Thus, these agencies, and not the Commission, will determine the appropriate criteria for eligibility to receive 911 grants, including whether a state or taxing jurisdiction would be eligible in the circumstances raised by commenters. 21

Background. Section 902(c)(1)(C) provides that a state or taxing jurisdiction may petition the Commission for a determination that an obligation or expenditure of a 911 fee for a purpose or function other than those already deemed “acceptable” by the Commission should be treated as an acceptable expenditure. The state or taxing jurisdiction must demonstrate that the expenditure: (1) “supports public safety answering point functions or operations,” or (2) has a direct impact on the ability of a public safety answering point to “receive or respond to 9-1-1 calls” or to “dispatch emergency responders.” If the Commission finds that the state or taxing jurisdiction has provided sufficient documentation to make this demonstration, section 902 provides that the Commission shall grant the petition.

In the NPRM, we proposed to codify these provisions in our rules. We stated our belief that “Congress intended this petition process to serve as a safety valve allowing states to seek further refinement of the definition of obligations and expenditures that are considered 911 related.” We also stated that the proposed rule would set clear standards for what states must demonstrate to support a favorable ruling, including the requirement to provide sufficient documentation. In addition, to promote efficiency in reviewing such petitions, we proposed that states or taxing jurisdictions seeking a determination do so by filing a petition for declaratory ruling under § 1.2 of the Commission's rules. We noted that the declaratory ruling process would promote transparency regarding the ultimate decisions about 911 fee revenues that legislatures and executive officials make and how such decisions promote effective 911 services and deployment of NG911. We proposed to delegate authority to the Public Safety and Homeland Security Bureau to rule on these petitions for determination, following the solicitation of comments and reply comments via public notice. We sought comment on these proposals and on any possible alternative processes for entertaining such petitions.

We adopt our proposed rules and procedures for addressing petitions for determination, with some clarifications. Commenters generally support these proposals, although most commenters recommend modifications or additions to the process. We address these issues in turn.

Petitions and permitted filers. First, we adopt our proposal that states or taxing jurisdictions seeking a determination must do so by filing a petition for declaratory ruling under § 1.2 of the Commission's rules. 22 Some commenters, however, urge us to make the declaratory ruling process available to other stakeholders, such as communications providers and public safety organizations, to request Commission guidance on whether certain measures constitute 911 fee diversion. For example, CTIA asserts that expanding this process would “create a deterrent effect that can restrain state or local taxing jurisdictions from taking new actions that may constitute 9-1-1 fee diversion.” However, other commenters oppose expanding the petition process to other stakeholders. The Adams County E-911 Emergency Telephone Service Authority, Arapahoe County 911 Authority, and Jefferson County Emergency Communications Authority (AAJ Authorities) note that section 902 “clearly states” that “only states and taxing jurisdictions” can initiate such proceedings, for the limited purpose of determining whether an expenditure by such a state or taxing jurisdiction is consistent with the Commission's rules. BRETSA also opposes expanding the petition process to other stakeholders, noting the “wide disparity” between the resources of wealthy service providers and many PSAPs, most of which “do not regularly retain counsel and participate in Commission proceedings,” and might “lack the resources to oppose” the petitions. Another commenter, Consumer Action for a Strong Economy (CASE), proposes a different mechanism, suggesting that to encourage reporting by non-governmental entities, the Commission could establish “a new docket or a portal” in which non-governmental entities could provide evidence demonstrating that a state or taxing jurisdiction is underfunding 911 services or “has failed to meet an acceptable purpose and function for the obligation or expenditure of 911 fees or charges.” The AAJ Authorities ask the Commission to reject CASE's proposal, contending that creation of a new docket or portal would create “undue burdens” for states and local 911 authorities, which would have to spend time and resources responding to Commission inquiries. The AAJ Authorities also note that Commission “already has an information collection process to identify fee diverters.”

We find that, under the explicit language of section 902, only a “State or taxing jurisdiction” may file a petition for determination, and that other stakeholders ( e.g., communications providers) may not file a petition for determination. In addition, we decline to create a “new docket or portal” for non-governmental authorities to report 911 fee diversion and underfunding issues. Non-governmental parties can provide information to the Commission on a 911 fee concern at any time and can comment on annual 911 fee reports and state responses to the FCC data collection. We find that these existing procedural options available to non-governmental entities are sufficient and decline to add another layer of procedures. For example, these other stakeholders may file a petition for declaratory ruling under § 1.2 of the Commission's rules or a petition for rulemaking under § 1.401 of the Commission's rules. However, such petitions would not be subject to or entitled to the specialized petition for determination process and substantive standards that we establish here.

Bureau delegation and public comment. In general, the Public Safety and Homeland Security Bureau (Bureau) has delegated authority under our existing rules that is sufficient to act on petitions for determination in the first instance. We also adopt our NPRM proposal that the Bureau seek comment on petitions. Although the North Carolina 911 Board expresses concern that the comment and reply process could lead to administrative burdens for state and local government, other commenters support the proposal. We conclude that seeking comment on petitions will promote transparency and informed decision-making in furtherance of Congress's goals.

Time Limits. We decline to place a time limit on Bureau action on petitions for determination. We agree with commenters who advocate for timely action on petitions, but also agree with CTIA that the process needs “to allow for public comment and sufficient deliberation of whether expenditures are appropriately within the scope of the Commission's rules.” Although some commenters advocate mandatory timelines, imposing a rigid time limit on an as yet unknown volume of petition decisions, many of which will require careful consideration of complex situations and questions, would not allow time for sufficient deliberation or public input, would unduly burden limited Commission staff resources, and would potentially lead to inconsistent results.

Review. Some commenters advocate that an appeal process should be available, whether specifically in relation to the petition decision, or as a more general matter for any finding of fee diversion. In terms of appeals of the Bureau's petition decisions, we believe creating any specialized appeal process is unnecessary, because petitioners may submit petitions for reconsideration under § 1.106 of the Commission's rules or applications for Commission review of any Bureau-level decision under § 1.115 of the Commission's rules.

Blanket Waivers. We continue to believe that Congress intended the petition process “to serve as a safety valve allowing states to seek further refinement of the definition of obligations and expenditures that are considered 911 related.” However, BRETSA argues that the petition process should include provisions for “blanket waivers” or special rules for certain common situations that affect a large number of 911 authorities. We decline to establish such specialized provisions. We find that our general guidelines on acceptable and unacceptable 911 expenditures are sufficiently broad, and that these overarching national guidelines, the illustrative lists of examples, and the petition process complement each other, with the petition process allowing localized refinements that accommodate varying circumstances as well as a reasonable mechanism to evaluate future perhaps as yet unforeseen, but legitimate, expenses. We also note that nothing in the rules prevents multiple states or taxing authorities from filing a joint petition to address a common issue.

Background. Pursuant to section 902(d)(4), any state or taxing jurisdiction identified by the agency in the annual 911 fee report as engaging in diversion of 911 fees or charges “shall be ineligible to participate or send a representative to serve on any committee, panel, or council established under section 6205(a) of the Middle Class Tax Relief and Job Creation Act of 2012 . . . or any advisory committee established by the Commission.” In the NPRM, we proposed to codify this restriction in § 9.26 as it applies to any advisory committee established by the Commission.

Decision. We adopt the proposal from the NPRM with a minor modification and provide additional guidance and clarification on certain aspects of the rule. 23 As proposed, we find that any state or taxing jurisdiction identified by the agency as engaging in diversion will be ineligible to participate on any advisory committee established by the Commission. The first fee diversion report required to be submitted one year after the enactment of section 902 will include a list of states and taxing jurisdictions identified as practicing fee diversion. The agency will begin identifying representatives of diverting jurisdictions on its current advisory committees, if any, following the issuance of that report, and evaluate how to remove such representatives from current advisory committees. One commenter supports the prohibition without caveats, and some commenters seek clarification on or ask the Commission to revisit the scope of the prohibition against serving on advisory committees when a state or taxing jurisdiction has been designated a diverter. 24

We clarify that only employees of a diverting jurisdiction ( i.e., state or other taxing jurisdiction) who are acting as official representatives of that jurisdiction will be ineligible to participate on advisory committees established by the Commission. Further, we clarify that this prohibition will not extend to representatives of non-diverting localities that are located within diverting states. We also clarify that an individual who is employed by a diverting jurisdiction may still serve on a Commission advisory committee as a representative of a public safety organization or other outside association. Lastly, we clarify that an advisory committee “established” by the Commission includes any advisory committee established under the Federal Advisory Committee Act and any other panel that serves an advisory function to the Commission as reflected on the Commission's website. 25 In light of these clarifications, we believe the prohibition appropriately balances the interests of Congress in restricting representatives of fee diverting jurisdictions from serving on advisory committees, without limiting representatives of non-diverting jurisdictions from providing their perspectives. Our clarification tracks NPSTC's view that an individual “may be employed by a locality or state, but serve voluntarily in public safety associations/organizations for the benefit of all public safety,” and may wish to end diverting practices.

Mission Critical Partners proposes that the restriction on diverter participation on advisory committees be expanded to include “congressional panel[s], the National 911 Program, or other public safety-related committees, panels, or councils.” Because this proposal would exceed Congress's directive in section 902, we decline to adopt it.

Background. Section 902(c)(1)(C) provides that if a state or taxing jurisdiction receives a grant under section 158 of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 942) after the date of enactment of section 902, “such State or taxing jurisdiction shall, as a condition of receiving such grant, provide the information requested by the Commission to prepare [the annual report to Congress on 911 fees].”  26 In the NPRM, we proposed to codify this provision in § 9.25 under new subpart I to require grant recipients to provide such information to the Commission.

Decision. We adopt our proposal, which was unopposed in the comment record, with clarifying modifications. 27 Mission Critical Partners notes that the collection of information regarding states' use of 911 funds “provides comprehensive information for Congress to scrutinize and understand the needs of states and local 911 authorities.” APCO notes that “[u]sing the strike force and annual reports to better understand the relationship between funding for 9-1-1 and emergency response will produce helpful information for public safety agencies and serve the Commission's and Congress's goal of discouraging fee diversion.”

Background. In the Notice of Inquiry in this proceeding, we sought comment on whether improvements to the agency's data collection and reporting process could further discourage fee diversion. Section 902(d)(2) provides that, beginning with the first annual fee report “that is required to be submitted after the date that is 1 year after the date of the enactment of this Act,” the Commission shall include in each report “all evidence that suggests the diversion by a State or taxing jurisdiction of 9-1-1 fees or charges, including any information regarding the impact of any underfunding of 9-1-1 services in the State or taxing jurisdiction.” Given that section 902 similarly requires us to forward any evidence of fee diversion, “including any information regarding the impact of any underfunding of 9-1-1 services,” to the 911 Strike Force, in the NPRM we sought comment on how we can best emphasize this aspect in our information collection reports.

Decision. As a threshold matter, we direct the Bureau to update the annual 911 fee report questionnaire to reflect the rules adopted in the Report and Order. This should help address concerns raised by commenters that our annual data collection be more effective in identifying fee diversion.

Commenters generally support the Commission's approach of using the 911 Strike Force and annual reports to better understand underfunding. 28 APCO and several other commenters urge us to take a “broad approach” to analyzing the extent and impacts of 911 underfunding, whether or not it is caused by 911 fee diversion. Commenters note that the presence or absence of fee diversion does not reliably correlate to adequate funding for 911 and suggest that we take additional steps to study the broader impacts of underfunding the 911 system. We direct the Bureau to modify the annual fee report questionnaire to seek additional information on the underfunding of 911 systems, including both (1) information on the impact of fee diversion on 911 underfunding, and (2) information on 911 underfunding in general. We also refer this issue to the 911 Strike Force. The 911 Strike Force is charged with examining, among other things, “the impacts of diversion,” and we expect that its report will address underfunding as a potential impact of diversion.

We decline two requests from the NC 911 Board to expand the Commission's approach to analyzing underfunding, first that the Commission address underfunding of 911 as a prerequisite to finding that fee diversion has occurred, and second that the Commission provide more detail regarding the intent, definition, and scope of underfunding. Neither section 902 nor the NET 911 Act contains a requirement that the Commission find underfunding prior to finding fee diversion. Regarding the request that the Commission provide more detail about the intent, definition, and scope of underfunding, we note that section 902 did not specifically direct the Commission to define underfunding at this time, but we refer the topic of defining underfunding 911 to the 911 Strike Force to study.

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, we have prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in this Report and Order on small entities. The FRFA is set forth in Appendix B of the Commission's Report and Order.

Paperwork Reduction Act of 1995 Analysis. The requirements in § 9.25(b) constitute a modified information collection to OMB Control No. 3060-1122. The modified information collection will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the Paperwork Reduction Act of 1995 (PRA). OMB, the general public, and other Federal agencies are invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that, pursuant to the Small Business Paperwork Relief Act of 2002, we previously sought, but did not receive, specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. The Commission does not believe that the new or modified information collection requirements in § 9.25(b) will be unduly burdensome on small businesses. Applying these modified information collections will implement section 902 and promote transparency in the collection and expenditure of 911 fees. We describe impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the FRFA in Appendix B of the Commission's Report and Order.

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

Additional Information. For additional information on this proceeding, contact Brenda Boykin, Brenda.Boykin@fcc.gov or 202-418-2062, Rachel Wehr, Rachel.Wehr@fcc.gov or 202-418-1138, or Jill Coogan, Jill.Coogan@fcc.gov or 202-418-1499, of the Public Safety and Homeland Security Bureau, Policy and Licensing Division.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the NPRM adopted in February 2021. The Commission sought written public comment on the proposals in the NPRM, including comment on the IRFA. No comments were filed addressing the IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

The Report and Order adopts rules to implement section 902 of the Consolidated Appropriations Act, 2021 that required the Commission to take action to help address the diversion of 911 fees by states and taxing jurisdictions for purposes unrelated to 911. The Commission amends part 9 of its rules to establish a new subpart I to address the use of 911 fees and fee diversion in accordance with the requirements of section 902. More specifically, the rules the Commission adopts in the new subpart I designate illustrative, non-exhaustive purposes and functions for the obligation or expenditure of 911 fees or charges by states and taxing jurisdiction authorized to impose such a fee or charge that are acceptable for purposes of section 902 and the Commission's rules; clarify what does and does not constitute 911 fee diversion; establish a declaratory ruling process for providing further guidance to states and taxing jurisdictions on fee diversion issues; and codify the specific restrictions that section 902 imposes on states and taxing jurisdictions that engage in diversion, such as the exclusion from eligibility to participate on Commission advisory committees.

The Commission adopts rules in the Report and Order that provide guidance on the types of expenditures of 911 fees for public safety radio systems and related infrastructure that can be considered acceptable but leaves the precise dividing line between acceptable and unacceptable radio expenditures open for further refinement, and refers this issue to the 911 Strike Force for further consideration and development of recommendations. The Report and Order also codifies the provision of section 902 that allows states and taxing jurisdictions to petition the FCC for a determination that an obligation or expenditure of a 911 fee for a purpose or function other than those deemed acceptable by the Commission should be treated as an acceptable expenditure. Further, the Commission amends its rules to include a voluntary safe harbor provision that provides if a state or taxing jurisdiction collects fees or charges designated for “public safety,” “emergency services,” or similar purposes and a portion of those fees goes to the support or implementation of 911 services, the obligation or expenditure of such fees or charges shall not constitute diversion provided that the state or taxing jurisdiction meets certain criteria. This safe harbor provision should incentivize states and taxing jurisdictions to be transparent about multi-purpose fees, while providing flexibility to states and taxing jurisdictions to have the 911 portion of such multi-purpose fees be deemed acceptable while not having the non-911 portion be deemed diversion.

The safe harbor provision should also provide visibility into how funds ostensibly collected for both 911 and other purposes are apportioned, while including safeguards to ensure that such apportionment is not subject to manipulation that would constitute fee diversion. Inclusion of the safe harbor furthers Congress's transparency goals and enhances our ability to determine whether 911 funds are being diverted. Without such visibility, multi-purpose fees could increase the burden on limited Commission staff resources in analyzing varied fee structures, and potentially render our rules and annual 911 fee report ineffective. The changes to part 9 adopted in the Report and Order are consistent with and advance Congress's stated objectives in section 902 in a cost-effective manner that is not unduly burdensome to providers of emergency telecommunications services or to state or taxing jurisdictions. The rules closely track the statutory language of section 902 addressing 911 fee diversion and seek to promote transparency, accountability, and integrity in the collection and expenditure of fees collected for 911 services, while providing stakeholders reasonable guidance as part of implementing section 902.

There were no comments filed that specifically addressed the proposed rules and policies presented in the IRFA.

Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA) and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry-specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the Small Business Administration's (SBA's) Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 30.7 million businesses.

Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2018, there were approximately 571,709 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate that there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school districts with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms employed fewer than 1,000 employees and 12 firms employed 1,000 employees or more. Thus, under this category and the associated size standard, the Commission estimates that the majority of Wireless Telecommunications Carriers (except Satellite) are small entities.

Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including voice over internet protocol (VoIP) services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or VoIP services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with annual receipts of $35 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of those firms, a total of 1,400 had annual receipts less than $25 million, and 15 firms had annual receipts of $25 million to $49,999,999. Thus, the Commission estimates that the majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

The rules adopted in the Report and Order to implement section 902 will impose new or additional reporting or recordkeeping and/or other compliance obligations on small and other sized state and taxing jurisdictions subject to compliance with the Commission's 911 fee obligation or expenditure requirements. While some of the requirements will only impact entities that choose to invoke the provisions, the Commission is not in a position to determine whether small entities will have to hire professionals to comply and cannot quantify the cost of compliance for small entities. Below we discuss the reporting and recordkeeping requirements implicated in the Report and Order.

New § 9.25 requires that if a State or taxing jurisdiction receives a grant under section 158 of the National Telecommunications and Information Administration Organization Act (47 U.S.C. 942) after December 27, 2020, such State or taxing jurisdiction shall provide the information requested by the Commission to prepare the report required under section 6(f)(2) of the Wireless Communications and Public Safety Act of 1999, as amended (47 U.S.C. 615a-1(f)(2)). Each state or taxing jurisdiction subject to paragraph (a) of this section must file the information requested by the Commission and in the form specified by the Public Safety and Homeland Security Bureau (Bureau).

The Report and Order directs the Bureau to update the Commission's 911 fee report questionnaire to facilitate the provision of information regarding states' use of 911 funds in order for the Commission to prepare an annual report to Congress on 911 fees. The Report and Order also directs the Bureau to modify the annual fee report questionnaire to obtain additional information on the underfunding of 911 systems, including both (1) information on the impact of fee diversion on 911 underfunding, and (2) information on 911 underfunding in general.

Pursuant to the voluntary Petition for Determination process adopted in the Report and Order to resolve questions of what are and are not acceptable 911 expenditures, a petitioning state or taxing jurisdiction is required to provide information show that a proposed expenditure: (1) Supports PSAP functions or operations, or (2) has a direct impact on the ability of a PSAP to receive or respond to 911 calls or to dispatch emergency responders. If the Commission finds that a state or taxing jurisdiction has provided sufficient documentation to make this demonstration, the statute provides that it shall grant the petition. The information and documentation that a state or taxing jurisdiction is required to provide the Commission to make the requisite showing will impact the reporting and recordkeeping requirements for small entities and others subject to the requirements.

Similarly, pursuant to the voluntary safe harbor provisions adopted in the Report and Order, small and other sized state or taxing jurisdictions that utilize the safe harbor provision to have the non-911 portion of a multi-purpose fee or charge not constitute diversion, must: (1) Specify the amount or percentage of such fees or charges that is dedicated to 911 services; (2) show that the 911 portion of such fees or charges are segregated and not commingled with any other funds; and (3) obligate or expend the 911 portion of such fees or charges for acceptable purposes and functions as defined in § 9.23 under new subpart I.

The RFA requires an agency to describe any significant specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for such small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.

In the Report and Order the approach we take to implement the provisions of section 902 that require Commission action to help address diversion of 911 fees for other purposes by state and taxing jurisdictions, adopts changes to part 9 of the Commission's rules seeking to achieve the stated objectives of Congress's mandates in a cost-effective manner that is not unduly burdensome to providers of emergency telecommunication services or to states and taxing jurisdictions. Using this approach, we have taken the steps discussed below to minimize any significant economic impact or burden for small entities.

To promote consistency for small entities and others who will be subject to both section 902 and our rules, the rules adopted in the Report and Order and codified in part 9 of the Commission's rules, closely tracks the statutory language from section 902. Specifically, the definitions in section 902 for certain terms relating to 911 fees and fee diversion in part 9 of our rules were adopted and codified as proposed in the NPRM. For a few terms, limited modifications were made to the definition, i.e., the definitions for the terms “911 fee or charge” and “Diversion” include modifications to promote regulatory parity and avoid gaps that could inadvertently interfere with the rapid deployment of effective 911 services. We believe that having consistency between section 902 and our rules will avoid additional compliance costs for small entities.

Similarly, to fulfill the Commission's obligations associated with issuing rules designating acceptable purposes and functions, we use language from section 902, codifying the statutory standard for which the obligation or expenditure of 911 fees or charges by any state or taxing jurisdiction is considered acceptable. We considered but rejected arguments to defer to states and local authorities in determining what constitutes fee diversion. A policy of deferring to states or localities on what constitutes fee diversion would negate one of the principal aspects of section 902, which is that it revises the language in 47 U.S.C. 615a-1 to make clear that fee diversion is not whatever state or local law says it is. Section 902 charges the Commission with responsibility for determining appropriate purposes and functions for expenditure of 911 funds and we agree that our rules should be reasonably broad given the evolving and diverse 911 ecosystem. The rules adopted in the Report and Order establish broad categories of acceptable purposes and functions for 911 fees and provide examples within each category to guide states and localities. Therefore, we have provided State and local jurisdictions sufficient discretion to make reasonable, good faith determinations whether specific expenditures of 911 fees are acceptable under our rules.

In the final rules we specify examples of both acceptable and unacceptable purposes and functions for the obligation or expenditure of 911 fees or charges. For example, we revised § 9.23(b)(1) from the NPRM proposal to include examples to make clear that replacement of 911 systems is an acceptable expenditure and that 911 includes pre-arrival instructions and ENS and also added a reference to cybersecurity. Identifying and including specific examples in the Commission's rules should enable small entities to avoid unacceptable expenditures in violation of our rules, which could impact eligibility for Federal grants and participation in Federal advisory committees.

Finally, we adopt two processes in the Report and Order that could minimize the economic impact for small entities, (1) the safe harbor for multi-purpose fees or charges and (2) the petition for determination. As discussed in the prior section, the safe harbor provision gives flexibility to states and taxing jurisdictions to implement multi-purpose fees or charges and to have the 911 portion of such multi-purpose fees be deemed acceptable and the non-911 portion not deemed 911 fee diversion provided certain conditions are met. Also discussed in the prior section, the Commission adopted a petition for determination process to resolve questions of what are and are not acceptable 911 expenditures, allowing states and other taxing jurisdictions to request a determination on whether a proposed expenditure would constitute fee diversion. Using these processes small, and other sized state and taxing jurisdictions can avoid violating section 902 and the Commission's rules for 911 fee diversion and any ensuing economic and other consequences.

26. The Commission will send a copy of the Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of the Report and Order and FRFA (or summaries thereof) will also be published in the Federal Register .

Accordingly, it is ordered, pursuant to Sections 1, 4(i), 4(j), 4(o), 201(b), 251(e), 301, 303(b), and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 154(o), 201(b), 251(e), 301, 303(b), and 303(r), the Don't Break Up the T-Band Act of 2020, Section 902 of Title IX, Division FF of the Consolidated Appropriations Act, 2021, Public Law 116-260, Section 101 of the New and Emerging Technologies 911 Improvement Act of 2008, Public Law 110-283, 47 U.S.C. 615a-1, and the Wireless Communications and Public Safety Act of 1999, Public Law 106-81, 47 U.S.C. 615 note, 615, 615a, and 615b, that this Report and Order is hereby adopted.

It is further ordered that the amendments of part 9 of the Commission's rules, as set forth in Appendix A of the Commission's Report and Order, are adopted, effective sixty (60) days after publication in the Federal Register . Compliance will not be required for paragraph (b) in § 9.25 until after approval by the Office of Management and Budget. The Commission delegates authority to the Public Safety and Homeland Security Bureau to publish a document in the Federal Register announcing that compliance date and revising paragraph (c) in § 9.25.

It is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall 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, 5 U.S.C. 801(a)(1)(A).

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

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

The Migratory Bird Treaty Act (MBTA) of July 3, 1918 (16 U.S.C. 703 et seq. ), authorizes and directs the Secretary of the Department of the Interior, having due regard for the zones of temperature and for the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory game birds, to determine when, to what extent, and by what means such birds or any part, nest, or egg thereof may be taken, hunted, captured, killed, possessed, sold, purchased, shipped, carried, exported, or transported.

In the May 4, 2021, Federal Register (86 FR 23641), we proposed special migratory bird hunting regulations for the 2021-22 hunting season for certain Indian Tribes, under the guidelines described in the June 4, 1985, Federal Register (50 FR 23467). The guidelines respond to Tribal requests for Service recognition of their reserved hunting rights, and for some Tribes, recognition of their authority to regulate hunting by both Tribal members and nonmembers on their reservations. The guidelines include possibilities for:

(1) On-reservation hunting by both Tribal members and nonmembers, with hunting by nontribal members on some reservations to take place within Federal frameworks but on dates different from those selected by the surrounding State(s);

(2) On-reservation hunting by Tribal members only, outside of usual Federal frameworks for season dates and length, and for daily bag and possession limits; and

(3) Off-reservation hunting by Tribal members on ceded lands, outside of usual framework dates and season length, with some added flexibility in daily bag and possession limits.

In all cases, the regulations established under the guidelines must be consistent with the March 10-September 1 closed season mandated by the 1916 Migratory Bird Treaty with Canada.

In the October 9, 2020, Federal Register (85 FR 64097), we requested that Tribes desiring special hunting regulations in the 2021-22 hunting season submit a proposal including details on:

(1) Harvest anticipated under the requested regulations;

(2) Methods that would be employed to measure or monitor harvest (such as bag checks, mail questionnaires, etc.);

(3) Steps that would be taken to limit level of harvest, where it could be shown that failure to limit such harvest would adversely impact the migratory bird resource; and

(4) Tribal capabilities to establish and enforce migratory bird hunting regulations.

No action is required if a Tribe wishes to observe the hunting regulations established by the State(s) in which an Indian reservation is located. We have successfully used the guidelines since the 1985-86 hunting season. We finalized the guidelines beginning with the 1988-89 hunting season (53 FR 31612, August 18, 1988).

The final rule described here is the final in the series of proposed and final rulemaking documents for migratory bird hunting regulations on certain Federal Indian reservations and ceded lands for the 2021-22 season. This rule sets hunting seasons, hours, areas, and limits for migratory game bird species on reservations and ceded territories. This final rule is the culmination of the rulemaking process for the Tribal migratory game bird hunting seasons, which started with the October 9, 2020, proposed rule. This final rule sets the migratory bird hunting regulations on certain Federal Indian reservations and ceded lands for the 2021-22 season.

Each year we publish reports that provide detailed information on the status and harvest of certain migratory game bird species. These reports are available at the address indicated under FOR FURTHER INFORMATION CONTACT or from our website at https://www.fws.gov/birds/surveys-and-data/reports-and-publications/population-status.php.

We used the following annual reports published in August 2020 in the development of proposed frameworks for the migratory bird hunting regulations: Adaptive Harvest Management, 2021 Hunting Season; American Woodcock Population Status, 2020; Band-tailed Pigeon Population Status, 2020; Migratory Bird Hunting Activity and Harvest During the 2018-19 and 2019-20 Hunting Seasons; Mourning Dove Population Status, 2020; Status and Harvests of Sandhill Cranes, Mid-continent, Rocky Mountain, Lower Colorado River Valley and Eastern Populations, 2020; and Waterfowl Population Status, 2020.

Our long-term objectives continue to include providing opportunities to harvest portions of certain migratory game bird populations and to limit harvests to levels compatible with each population's ability to maintain healthy, viable numbers. Having taken into account the zones of temperature and the distribution, abundance, economic value, breeding habits, and times and lines of flight of migratory birds, we conclude that the hunting seasons provided for herein are compatible with the current status of migratory bird populations and long-term population goals. Additionally, we are obligated to, and do, give serious consideration to all information received during the public comment period.

For the 2021-22 migratory bird hunting season, we proposed regulations for 32 Tribes or Indian groups that followed the 1985 guidelines and were considered appropriate for final rulemaking. However, at that time, we noted in the May 4, 2021, proposed rule (86 FR 23641) that we were proposing seasons for five Tribes who submitted proposals in past years but from whom we had not yet received proposals this year. We did not receive proposals from any of those Tribes for the 2021-22 migratory bird hunting season and, therefore, have not included regulations for those Tribes in this final rule.

The comment period for the May 4, 2021, proposed rule closed on June 3, 2021. We received seven comments on our proposed rule. Four commenters supported the proposed rule, whereas three commenters were against any hunting of migratory birds. Two of the commenters in support of the proposed rule appreciated the acknowledgment of Tribal rights to co-manage the migratory bird resource. The Service appreciates the opportunity to establish special migratory bird hunting regulations in recognition of the Tribes' reserved hunting rights, and for some Tribes, recognition of their authority to regulate hunting by both Tribal members and nonmembers on their reservations. For the three commenters that were against any hunting of migratory birds, we addressed this comment in our Final 2021-22 Frameworks for Migratory Bird Hunting Regulations, and Special Procedures for Issuance of Annual Hunting Regulations.

The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the Federal Register on May 31, 2013 (78 FR 32686), and our Record of Decision on July 26, 2013 (78 FR 45376). We also address NEPA compliance for waterfowl hunting frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2021-22,” with its corresponding May 2021 finding of no significant impact. The programmatic document, as well as the separate environmental assessment, is available on our website at https://www.fws.gov/birds/index.php.

Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), provides that the Secretary shall insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat. After we published the October 9, 2020, proposed rule (85 FR 64097), we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. The biological opinion resulting from this section 7 consultation is available as indicated under ADDRESSES .

Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. OIRA has reviewed documents related to this final rule and has determined that the annual migratory bird hunting regulations are significant because they have an annual effect of $100 million or more on the economy.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

An economic analysis was prepared for the 2021-22 season. This analysis was based on data from the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent year for which data are available (see discussion under Regulatory Flexibility Act, below). This analysis estimated consumer surplus for three alternatives for duck hunting regulations. As defined by the U.S. Office of Management and Budget (OMB) in Circular A-4, consumers' surplus is the difference between what a consumer pays for a unit of a good or service and the maximum amount the consumer would be willing to pay for that unit. The duck hunting regulatory alternatives are (1) issue restrictive regulations allowing fewer days than those issued during the 2020-21 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations similar to the regulations in the 2020-21 season. For the 2021-22 season, we chose Alternative 3, with an estimated consumer surplus across all flyways of $270-$358 million with a mid-point estimate of $314 million. We also chose Alternative 3 for the 2009-10 through 2020-21 seasons. The 2021-22 analysis is part of the record for this rule and is available as described in ADDRESSES .

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). A final regulatory flexibility analysis was prepared to analyze the economic impacts of the annual hunting regulations on small business entities. This analysis is updated annually. The primary source of information about hunter expenditures for migratory game bird hunting is the National Survey, which is generally conducted at 5-year intervals. The 2021 analysis is based on the 2016 National Survey and the U.S. Department of Commerce's County Business Patterns, from which it is estimated that migratory bird hunters will spend approximately $2.2 billion at small businesses in 2021. Copies of the analysis are available as set forth in ADDRESSES .

The annual migratory bird hunting regulations constitute a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act as they will have an annual effect on the economy of $100 million or more. However, because this rule establishes hunting seasons, which are time sensitive, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).

This final rule contains existing and new information collections that we have submitted to the OMB for review and approval under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). All information collections require approval under the Paperwork Reduction Act of 1995 (PRA, 44 U.S.C. 3501 et seq. ). We may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB has reviewed and approved the information collection requirements associated with migratory bird surveys and the procedures for establishing annual migratory bird hunting seasons under the following OMB control numbers:

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 2/29/2024).

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 4/30/2023).

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 2/29/2024).

The information collection requirements associated with the procedures for establishing annual migratory bird hunting seasons are described below (to include those labeled as “(NEW)” under “(2) Reports”) require OMB approval:

Migratory game birds are those bird species so designated in conventions between the United States and several foreign nations for the protection and management of these birds. Under the Migratory Bird Treaty Act (16 U.S.C. 703-712), the Secretary of the Interior is authorized to determine when “hunting, taking, capture, killing, possession, sale, purchase, shipment, transportation, carriage, or export of any * * * bird, or any part, nest, or egg” of migratory game birds can take place, and to adopt regulations for this purpose. These regulations are written after giving due regard to “the zones of temperature and to the distribution, abundance, economic value, breeding habits, and times and lines of migratory flight of such birds” and are updated annually (16 U.S.C. 704(a)). This responsibility has been delegated to the Service as the lead Federal agency for managing and conserving migratory birds in the United States. However, migratory game bird management is a cooperative effort of State, Tribal, and Federal governments. Migratory game bird hunting seasons provide opportunities for recreation and sustenance; aid Federal, State, and Tribal governments in the management of migratory game birds; and permit harvests at levels compatible with migratory game bird population status and habitat conditions.

The Service develops migratory game bird hunting regulations by establishing the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. Acknowledging regional differences in hunting conditions, the Service has administratively divided the Nation into four Flyways for the primary purpose of managing migratory game birds. Each Flyway (Atlantic, Mississippi, Central, and Pacific) has a Flyway Council, a formal organization generally composed of one member from each State and Province in that Flyway. The Flyway Councils, established through the Association of Fish and Wildlife Agencies, also assist in researching and providing migratory game bird management information for Federal, State, and Provincial governments, as well as private conservation entities and the general public.

We request the following information to establish annual migratory bird hunting seasons:

(1) Information Requested to Establish Annual Migratory Bird Hunting Seasons:

(A) Tribes that wish to use the guidelines to establish special hunting regulations for the annual migratory game bird hunting season are required to submit a proposal that includes:

(i) The requested migratory game bird hunting season dates and other details regarding the proposed regulations;

(ii) Harvest anticipated under the proposed regulations; and

(iii) Tribal capabilities to enforce migratory game bird hunting regulations.

(B) State and U.S. territory governments that wish to establish annual migratory game bird hunting seasons are required to provide the requested dates and other details for hunting seasons in their respective States or Territories.

(2) Reports: The following reports, requested from the States and Tribes, are submitted either annually or every 3 years as explained in the following text.

(A) Reports from Experimental Hunting Seasons and Season Structure Changes:

Atlantic Flyway Council:

Mississippi Flyway Council:

Central Flyway Council:

Pacific Flyway Council:

(B) Additional State-specific Annual Reports:

Reports and monitoring are used for a variety of reasons. Some are used to monitor species composition of the harvest for those areas where species intermingling can confound harvest management and potential overharvest of one species can be a management concern. Others are used to determine overall harvest for those species and/or areas that are not sampled well by our overall harvest surveys due to either the limited nature/area of the hunt or season or where the harvest needs to be closely monitored. Experimental season reports are used to determine whether the experimental season is achieving its intended goals and objectives, without causing unintended harm to other species and ultimately whether the experimental season should proceed to operational status. Most experimental seasons are 3-year trials with yearly reports and a final report. Most of the other reports and monitoring are conducted either annually or at 3-year intervals.

Title: Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20.

OMB Control Number: 1018-0171.

Service Form Number: None.

Type of Request: Revision of a currently approved collection.

Description of Respondents: State and Tribal governments.

Respondent's Obligation: Required to obtain or retain a benefit.

Frequency of Collection: Annually.

Estimated Number of Annual Respondents: 82 (from 52 State governments and Territories and 30 Tribal governments).

Estimated Number of Annual Responses: 99 (includes State and Tribal governments and additional reports from States).

Average Completion Time per Response: Varies from 4 hours to 650 hours, depending on the activity.

Estimated Total Annual Burden Hours: 9,878.

Estimated Annual Non-hour Burden Cost: None.

On May 4, 2021, we published in the Federal Register (86 FR 23641) a proposed rule announcing to the public our intent to request that OMB approve our proposed revisions to this information collection. In that proposed rule, we solicited comments for 60 days, ending on July 6, 2021. We did not receive any comments in response to that proposed rule.

As part of our continuing effort to reduce paperwork and respondent burdens, and in accordance with 5 CFR 1320.8(d)(1), we again invite the public and other Federal agencies to comment on any aspect of this proposed information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

This final rule is effective immediately upon publication, for the reasons set forth below under Regulations Promulgation. We will, however, accept and consider all public comments concerning the information collection requirements received in response to this final rule. Send your written comments and suggestions on this information collection to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, MS: PRB (JAO/3W), Falls Church, VA 22041-3803 (mail); or Info_Coll@fws.gov (email). Please reference “OMB Control Number 1018-BE34” in the subject line of your comments.

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

In accordance with E.O. 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges and, therefore, will reduce restrictions on the use of private and public property.

E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking certain actions. While this rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no Statement of Energy Effects is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are de minimis effects on Indian trust resources. We solicited proposals for special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2021-22 migratory bird hunting season in the October 9, 2020, proposed rule (85 FR 64097). The resulting proposals were published in a separate proposed rule (86 FR 23641, May 4, 2021). Through this process to establish annual hunting regulations, we regularly coordinate with Tribes that are affected by this rule.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive in its regulations than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The rulemaking process for migratory game bird hunting, by its nature, operates under a time constraint as seasons must be established each year or hunting seasons remain closed. However, we intend that the public be provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act requirements (5 U.S.C. 551 et seq. ). Thus, when the preliminary proposed rulemaking was published on October 9, 2020 (85 FR 64097), we established what we concluded were the longest periods possible for public comment and the most opportunities for public involvement. We also provided notification of our participation in multiple Flyway Council meetings, opportunities for additional public review and comment on all Flyway Council proposals for regulatory change, and opportunities for additional public review during the Service Regulations Committee meeting. Therefore, sufficient public notice and opportunity for involvement have been given to affected persons regarding the migratory bird hunting frameworks for the 2021-22 hunting season.

For the reasons cited above, we find that “good cause” exists, within the terms of the Administrative Procedure Act at 5 U.S.C. 553(d)(3) for these regulations to take effect immediately upon publication.

Accordingly, with each participating Tribe having had an opportunity to participate in selecting the hunting seasons desired for its reservation or ceded territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

Accordingly, part 20, subchapter B, chapter I of title 50 of the Code of Federal Regulations is amended as follows: