The FAA issued an NPRM that proposed to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM was published in the Federal Register on April 7, 2021 (86 FR 17993). The NPRM was prompted by reports that very high frequency (VHF) radio frequencies transfer between the active and standby windows of the tuning control panel (TCP) without flightcrew input.

The NPRM proposed to require updating the TCP OPS and performing a software configuration check. The proposed actions were intended to address uncommanded frequency changes, which could result in missed air traffic control communications such as amended clearances and critical instructions for changes to flight path, and consequent loss of safe separation between aircraft, collision, or runway incursion.

Since issuance of the NPRM the FAA determined that the TCP OPS version specified in the NPRM does not correct the unsafe condition. The manufacturer is developing a new version of the software which will better address the unsafe condition. Required development and testing of the new software results in scheduled availability of the revised service information by June 2022. In light of these changes, the FAA intends to propose further rulemaking.

Withdrawal of the NPRM constitutes only such action. The withdrawal does not preclude the FAA from further rulemaking on this issue or commit the FAA to any course of action in the future.

The FAA received comments on the NPRM from three commenters. The following presents the comments received on the NPRM and the FAA's response to the comment.

Boeing asked that the FAA delay issuance of the final rule until the next TCP OPS revision. Boeing stated that based on additional fleet reports, it has concluded that the OPS version specified in Boeing Alert Requirements Bulletin B787-81205-SB230041-00 RB, Issue 002, dated September 14, 2020, and specified in the NPRM, does not adequately address the “TCP VHF Uncommanded Frequency Change” issue. Boeing is continuing to evaluate fleet reports and is will address the cause of the additional findings in the next TCP OPS revision. The FAA agrees that the NPRM will not address the unsafe condition. When appropriate service information is developed, approved, and available, the FAA intends to propose new rulemaking to require the updated software.

American Airlines requested that the FAA revise paragraph (g) of the proposed AD to allow later FAA-approved software. The FAA agrees with the request, but because the FAA is withdrawing the NPRM, the request is no longer necessary.

The Air Line Pilots Association (ALPA) supported the NPRM.

Upon further consideration, the FAA has determined that the NPRM does not adequately address the identified unsafe condition. Accordingly, the FAA is withdrawing the NPRM.

Since this action only withdraws an NPRM, it is neither a proposed nor a final rule. This action therefore is not covered under Executive Order 12866, the Regulatory Flexibility Act, or DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979).

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0685; Project Identifier AD-2021-00432-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to David Truong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: david.truong@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2020-21-17, Amendment 39-21290 (85 FR 79418, December 10, 2020) (AD 2020-21-17), for all The Boeing Company Model 757 airplanes. AD 2020-21-17 was prompted by reports of bolt rotation in the engine drag fitting joint and fastener heads; an inspection of the fastener holes revealed that cracks were found in the skin, and certain inspections revealed multiple cracks found in the drag fitting at fastener holes. AD 2020-21-17 requires repetitive inspections for skin cracking and shim migration at the upper link drag fittings, diagonal brace cracking, and fastener looseness; and applicable on-condition actions. The agency issued AD 2020-21-17 to address cracking in the wing upper skin and forward drag fittings, which could lead to a compromised upper link and reduced structural integrity of the engine strut.

Since the FAA issued AD 2020-21-17, a determination has been made that the compliance times for group 3 and 4 airplanes are not adequate. An operator reported that during performance of the inspections required by AD 2020-21-17, the wing upper skin panel was found cracked at hole #2. The airplane had 19,432 total flight cycles and was a group 3 airplane (Model 757-200 airplane with Rolls-Royce engines and non-cold worked skin). Therefore, because of similar airplane configurations, the compliance times for group 3 and 4 airplanes have been reduced to maintain structural integrity of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Alert Requirements Bulletin 757-57A0073 RB, Revision 2, dated March 1, 2021. This service information specifies procedures for repetitive general visual and detailed inspections for loose fasteners, skin cracking, and shim migration at the upper link drag fittings, and for cracking in the diagonal brace and diagonal brace fittings; repetitive open-hole high frequency eddy current inspections for cracking of the fastener holes and loose bolt holes; and applicable on-condition actions. On-condition actions include installing the upper link and upper link pins; replacing drag fittings; installing bolts, washers, and nuts; performing a torque check of fasteners on the affected shims; trimming affected shims and applying chemical conversion coating on the shims, fillet seal, and drag fittings; and repairing cracks, migrated shims, mistorqued bolts, and loose fasteners.

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.

Although this proposed AD does not explicitly restate the requirements of AD 2020-21-17, this proposed AD would retain all of the requirements of AD 2020-21-17. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraph (g) of this proposed AD. This proposed AD would reduce the compliance times for certain airplanes. This proposed AD would require accomplishing the actions specified in the service information already described, except for any differences identified as exceptions in the regulatory text of this proposed AD.

For information on the procedures and compliance times, see this service information at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0685.

The FAA estimates that this AD, if adopted as proposed, would affect 450 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2020-1073; Project Identifier MCAI-2020-01303-A” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

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

The FAA issued AD 2020-12-08, Amendment 39-21143 (85 FR 36312, June 16, 2020) (AD 2020-12-08), for Embraer S.A. (type certificate previously held by Empresa Brasileira de Aeronáutica S.A.) Model EMB-505 airplanes, all serial numbers. AD 2020-12-08 was prompted by reports of corrosion in the mass-balance weights of the flight control surfaces and a determination that new airworthiness limitations are necessary. AD 2020-12-08 was based on mandatory continuing airworthiness information (MCAI) issued by the Agência Nacional de Aviação Civil (ANAC), which is the aviation authority for Brazil. ANAC issued Brazilian Emergency AD No. 2020-01-01, dated January 9, 2020, to address the unsafe condition on all Embraer S.A. Model EMB-505 airplanes.

AD 2020-12-08 requires, for certain serial-numbered airplanes, inspecting the mass-balance weights of the flight control surfaces and their attachment parts for corrosion and fragmentation, and corrective actions if necessary, including sending inspection results to Embraer. For all airplanes, AD 2020-12-08 requires revising the airworthiness limitation section of the maintenance manual or instructions for continued airworthiness to incorporate new airworthiness limitations.

The FAA issued AD 2020-12-08 to address corrosion in the mass-balance weights of the flight control surfaces. The unsafe condition, if not addressed, could result in loss of mass or the detachment of the mass-balance weights, resulting in an unbalanced control surface, which could lead to flutter and loss of airplane control.

Since the FAA issued AD 2020-12-08, ANAC superseded Brazilian Emergency AD No. 2020-01-01, dated January 9, 2020, and issued Brazilian AD No. 2020-09-01, dated September 8, 2020 (referred to after this as “the MCAI”). The MCAI states:

You may examine the MCAI at https://www.regulations.gov by searching for and locating Docket No. FAA-2020-1073.

The FAA issued AD 2020-12-08 as a final rule; request for comments. The FAA received comments on AD 2020-12-08 from Flexjet LLC (Flexjet), an individual, and two anonymous commenters.

Flexjet and an anonymous commenter requested that AD 2020-12-08 allow credit for previous actions using Embraer Alert Service Bulletin SB505-55-A004, Revision 5, dated December 12, 2019 (SB505-550A004 R5), as that service bulletin is not listed in paragraph (l) of AD 2020-12-08 (“Credit for Previous Actions” paragraph).

The FAA notes that the actions of AD 2020-12-08 must be done in accordance with SB505-55A004 R5. Paragraph (f) of AD 2020-12-08 requires compliance “unless already done.” Thus, AD 2020-12-08 already allows operators to take credit for using SB505-55A004 R5 if done before the effective date of the AD.

Flexjet and an anonymous commenter requested AD 2020-12-08 include Embraer Service Bulletin SB505-55-0004, dated March 24, 2020 (SB505-55-0004), as this service bulletin addresses the worldwide fleet.

The FAA agrees. SB505-55-0004 includes additional actions, which are required by ANAC AD No. 2020-09-01, dated September 8, 2020. This proposed AD would include those additional requirements.

The individual commenter noted that SB505-55-0004, SB505-55A004 R5, and Embraer Alert Service Bulletin SB505-55-A004, Revision 06, dated March 25, 2020, apply to different ranges of serial numbers and requested the FAA clarify the correct serial numbers for AD 2020-12-08.

AD 2020-12-08 applies to all Model EMB-505 airplanes, regardless of serial number. However, only those airplanes with a serial number in SB505-55A004 R5 are required to do the actions in paragraphs (h) and (k) of AD 2020-12-08.

The FAA reviewed Embraer Alert Service Bulletin SB505-55-A004, Revision 06, dated March 25, 2020. This service information specifies procedures for inspecting the mass-balance weights of the flight control surfaces and their respective attachment parts for corrosion and fragmentation, and performing corrective actions on certain serial-numbered Model EMB-505 airplanes. Corrective actions include installation of a stainless steel mass-balance, replacement of the mass-balance, and replacement of attachment parts.

The FAA also reviewed Embraer Service Bulletin SB505-55-0004, Revision 01, dated June 24, 2020. This service information specifies procedures, for certain airplanes, for cleaning and weighing the elevator, aileron, and rudder mass-balances, and installing or replacing the mass-balances (includes replacing attachment parts), as applicable, and for certain elevator mass-balances for certain airplanes, replacing those elevator mass-balances (includes replacing attachment parts).

Embraer has also issued Alert Service Bulletin SB505-55-A004, Revision 5, dated December 12, 2019, which the Director of the Federal Register approved for incorporation by reference as of July 1, 2020 (85 FR 36312, June 16, 2020).

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

Embraer has issued Embraer Service Bulletin SB505-55-0004, dated March 25, 2020. The actions specified in Embraer Service Bulletin SB505-55-0004, dated March 25, 2020, are the same as those specified in Embraer Alert Service Bulletin SB505-55-0004, Revision 01, dated June 24, 2020; however, Embraer Alert Service Bulletin SB505 55-0004, Revision 01, dated June 24, 2020, was issued to add serial-numbered airplanes to the effectivity. No additional work is required for airplanes on which Embraer Service Bulletin SB505-55-0004, dated March 25, 2020, has been accomplished.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information described above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would retain the actions required by AD 2020-12-08 and would require, for certain airplanes, cleaning and weighing the elevator, aileron, and rudder mass-balances, and installation or replacement, as applicable of the mass-balances. This proposed AD would also remove the reporting required by AD 2020-12-08.

For the retained requirement to revise the airworthiness limitations section (ALS) of the existing maintenance manual or instructions for continued airworthiness in paragraph (i) of this proposed AD, the FAA notes the inspection tasks are part of Chapter 5 of the aircraft maintenance manual—Part III—scheduled maintenance requirements. This proposed AD would require these tasks as new airworthiness limitations.

Embraer Alert Service Bulletin SB505-55-A004, Revision 5, dated December 12, 2019; and Revision 06, dated March 25, 2020, contain procedures for inspecting for the integrity of the mass-balance weights of flight control surfaces and their attachment parts. This proposed AD would not include that requirement.

The FAA estimates that this AD, if adopted as proposed, would affect 392 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2021-0704; Airspace Docket No. 21-AWP-32) and be submitted in triplicate to the Docket Management Facility (see “ ADDRESSES ” section for address and phone number). You may also submit comments through the internet at https://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2021-0704; Airspace Docket No. 21-AWP-32.” The postcard will be date/time stamped and returned to the commenter.

All communications received on or before the specified comment closing date will be considered before taking action on the proposed rule. The proposal contained in this action may be changed in light of comments received. All comments submitted will be available for examination in the public docket both before and after the comment closing date. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at https://www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see “ ADDRESSES ” section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Operations Support Group, Western Service Center, Federal Aviation Administration, 2200 South 216th St., Des Moines, WA 98198.

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

The Los Angeles Air Route Traffic Control Center (ZLA) is responsible for managing the NAS for much of the Desert Southwest portion of the United States. This responsibility requires close coordination with the many military installations to ensure a proper balance between the NAS user needs and military mission requirements.

The United States Marine Corps (USMC) in Yuma, AZ has requested additional airspace (higher altitude) above the existing Bristol Military Operations Area (MOA) northeast of Twentynine Palms, CA. The airspace in the Bristol MOA has a ceiling to but not including 18,000 feet MSL, however the USMC has determined that to be inadequate to support Marine Expeditionary Brigade sized training events. A recent agreement between the USMC in Yuma, AZ, and ZLA provides two ATCAAs above the current Bristol MOAs to support the need for higher altitudes. Creating this additional airspace, however, conflicts with traffic on RNAV route Q-73. A slight modification of Q-73 will be required to provide safe passage of non-participating aircraft transitioning this area.

The FAA is proposing an amendment to 14 CFR part 71 to amend United States Area Navigation (RNAV) route Q-73 due to the creation of SAA, Bristol ATCAA in the vicinity of Twentynine Palms, CA. The proposal would add two additional waypoints between LVELL and HAKMN in order to provide an adequate buffer between military activities in that area. The full legal description is provided in the “Rule” area below.

Q-73: Q-73 currently extends from the MOMAR, CA, waypoint (WP) to the CORDU, ID, WP. The FAA proposes to add two additional WPs. The first WP would be BLKWL between LVELL and ZELMA and the other KRLIE, WP, between ZELMA and HAKMN. These proposed WP would provide safe segregation of air traffic along Q-73 from military activity operating within the adjacent SAA. The rest of the route would remain unchanged.

United States Area Navigation Routes are published in paragraph 2006 of FAA Order 7400.11E dated July 21, 2020 and effective September 15, 2020, which is incorporated by reference in 14 CFR 71.1. The RNAV route listed in this document would be published subsequently in the Order.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Under section 721(d)(1) the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 379e(d)(1)), we are giving notice that we have filed a color additive petition (CAP 1C0320), submitted by Fermentalg, 4 Rue Rivière, 33500 Libourne, France. The petition proposes to amend the color additive regulations in part 73 (21 CFR 73), “Listing of Color Additives Exempt from Certification,” to provide for the safe use of blue Galdieria extract as a color additive at levels consistent with good manufacturing practice in: (1) Beverages and beverage bases, non-alcoholic; (2) breakfast cereals; (3) chewing gum; (4) confections and frostings; (5) dairy product analogs; (6) frozen dairy desserts and mixes; (7) fruit and water ices; (8) gelatins, puddings, and fillings; (9) hard candy and cough drops; (10) milk products; (11) processed fruits and fruit juices; (12) processed vegetables and vegetable juices; and (13) soft candy.

The petitioner has claimed that this action is categorically excluded under 21 CFR 25.32(r) because the substance occurs naturally in the environment, and the proposed action does not alter significantly the concentration or distribution of the substance, its metabolites, or degradation products in the environment. In addition, the petitioner has stated that, to their knowledge, no extraordinary circumstances exist that would warrant at least an environmental assessment (see 21 CFR 25.21). If FDA determines a categorical exclusion applies, neither an environmental assessment nor an environmental impact statement is required. If FDA determines a categorical exclusion does not apply, we will request an environmental assessment and make it available for public inspection.

Under the Federal Food, Drug, and Cosmetic Act (section 409(b)(5) (21 U.S.C. 348(b)(5)), we are giving notice that we have filed a food additive petition (FAP 1A4828), submitted by Monaghan Mushrooms Ireland Unlimited Company, Tullygony, Tyholland, County Monaghan, H18 FW95, Ireland. The petition proposes to amend the food additive regulations in § 172.382 (21 CFR 172.382) Vitamin D 2 mushroom powder to provide for the safe use of vitamin D 2 mushroom powder produced by exposing dried and powdered edible cultivars of Agaricus bisporus to ultraviolet light.

The petitioner has claimed that this action is categorically excluded under 21 CFR 25.32(k) because the substance is intended to remain in food through ingestion by consumers and is not intended to replace macronutrients in food. In addition, the petitioner has stated that, to their knowledge, no extraordinary circumstances exist that would warrant at least an environmental assessment (see 21 CFR 25.21). If FDA determines a categorical exclusion applies, neither an environmental assessment nor an environmental impact statement is required. If FDA determines a categorical exclusion does not apply, we will request an environmental assessment and make it available for public inspection.

At surface mines and at surface areas of underground mines, a wide range of mobile and powered haulage equipment is in use. Examples of such equipment are bulldozers, front-end loaders, skid steers, and haul trucks. While accidents at mines are declining, accidents involving mobile and powered haulage equipment are still a leading cause of fatalities in mining. Of all 739 fatalities that occurred at U.S. mines between 2003 and 2018, 109 were caused by hazards related to working near or operating mobile and powered haulage equipment at mines with six or more miners. To reduce the number of injuries and fatalities involving mobile and powered haulage equipment, the Mine Safety and Health Administration (MSHA) has launched several actions, including providing technical assistance, developing training materials, and gathering information from the public and mining stakeholders. MSHA is now proposing a rule to improve safety in the use of surface mobile equipment, defined as mobile and powered haulage equipment (except belt conveyors), at surface mines and surface areas of underground mines. This proposal is based on the information gathered from many stakeholders; the details are presented in the section-by-section analysis portion of this preamble.

On June 26, 2018, MSHA published a request for information (RFI), Safety Improvement Technologies for Mobile Equipment at Surface Mines, and for Belt Conveyors at Surface and Underground Mines (83 FR 29716), that focused on technologies for reducing accidents involving mobile equipment at surface mines and surface areas of underground mines, and belt conveyors at surface and underground mines.

The RFI also requested information from the mining community on what types of engineering controls are available, how to implement such engineering controls, and how these controls could be used in mobile equipment and belt conveyors to reduce accidents, fatalities, and injuries. MSHA sought information and data on: (1) Seat belt interlock systems or other controls that affect equipment operation when the seat belt is not properly fastened; (2) collision warning systems and collision avoidance systems that may reduce collisions or prevent accidents by decreasing blind areas that are invisible to equipment operators due to direct line of sight or other reasons; (3) technologies that would provide equipment operators better information regarding their location in relation to the edge of highwalls or dump points; (4) use of autonomous mobile equipment at surface mines; (5) technologies that provide additional protections from accidents related to working near or around belt conveyors; and (6) training and technical assistance that improve equipment operators' awareness of hazards at the mine site, and assure miners lock and tag conveyor belts before performing maintenance work.

To encourage additional public participation, the Agency held six stakeholder meetings and one webinar in August and September 2018. The meetings were held in Birmingham, Alabama; Dallas, Texas; Reno, Nevada; Beckley, West Virginia; Albany, New York; and Arlington, Virginia.

All commenters supported MSHA's focused efforts to improve miner safety related to the operation of surface mobile equipment. Some emphasized the use of technologies to achieve this goal, while others argued for the importance of non-technological interventions such as safety programs to bring behavioral and cultural changes. Commenters also differed in how technological and non-technological interventions should be implemented.

Several commenters supported incorporating new technologies into the workplace to reduce accidents, injuries, and fatalities. One commenter noted that the use of current automobile technologies such as collision avoidance systems, collision warning systems, seat belt warning signals, and other engineering controls could add much-needed improvement in preventing collision accidents or mitigating their impacts.

A majority of commenters noted, however, that the application of engineering controls or technologies needs further review by MSHA and the National Institute for Occupational Safety and Health (NIOSH) before any regulatory changes are made. One commenter noted that because the issues MSHA raised vary at different mines and with different types of equipment and operations, it is critical to understand how specific hazards at a mine would be addressed through new technologies. Other commenters asserted that the best outcomes occur when mine operators and their employees partner with other stakeholders such as NIOSH and equipment manufacturers, to introduce innovative solutions into the workplace through the use of new technologies. One commenter noted that to comprehensively address solutions, MSHA needs to acknowledge certain factors that can limit mine operators' ability to introduce new safety technology effectively. These obstacles include mistrust of technology by the workforce, inadequate testing of technology before full implementation, and challenges in communicating to miners why technological improvements in equipment operation create a safer work environment. A trade association recommended that MSHA proceed with caution to avoid excessive costs and unintended consequences that do not address the root causes of accidents.

On the other hand, a number of commenters noted that non-technological interventions such as safety programs are as important, or even more important, than technology in improving safety in the use of surface mobile equipment and reducing accidents, injuries, and fatalities. A mining coalition commented that because human factors are a major contributor to accidents, properly enforced comprehensive safety programs are a significant component of the solution, with or without new technology. This mining coalition continued to note that mining's major safety advances would “come from consistently improving behavior and culture across the industry.” The mining coalition also stated on the basis of its members' experiences that safety does best when mine operators develop and implement their own comprehensive safety programs. Another commenter noted that effective safety programs work because they create incentives for compliance and disincentives for violations.

In addition, one commenter observed that mine operators who develop and implement safety programs do so with the goal of preventing injuries, fatalities, and the suffering these accidents cause miners, their families, and their communities. For these mine operators, noted the commenter, preventing harm to their miners is more than just compliance with safety requirements; it reflects a culture of safety. Indeed, according to the commenter, this culture of safety derives from a commitment to a systematic, effective, and comprehensive management of safety at mines with the full participation of the miners.

MSHA has been most persuaded by comments on the use of safety programs. The Agency agrees with these commenters that mine operators should be allowed to tailor safety programs specifically to their mining conditions and operations, so that operators could: (1) Systematically and continuously evaluate their mine operations to identify hazards and (2) determine how to eliminate or mitigate risks and hazards related to operating and working near surface mobile equipment, which includes mobile and powered haulage equipment (except belt conveyors). The Agency further agrees that such a flexible approach to reducing hazards and risks ( e.g., not imposing universal mandates) would be more effective since mine operators would be able to develop and implement safety programs that work for their operation, mining conditions, and miners. Taking into account all comments and information received, this proposal would require written safety programs for surface mobile equipment at surface mines and surface areas of underground mines with six or more miners.

In the 2018 RFI, MSHA sought information on safety issues related to belt conveyors. After reviewing the comments, the Agency has concluded, at this time, that the safety issues surrounding the operation of belt conveyors can be better addressed through best practices and training than through rulemaking. No belt conveyor is covered under this proposed rule.

MSHA solicits comments regarding the Agency's decision to exclude belt conveyors from the proposed rule. Please provide the rationale and any supporting documentation in your comment.

Many resources are available for employers to provide a safe workplace. MSHA has reviewed several types of organizations that provide guidance on safety programs: (1) Consensus standards organizations ( e.g., American Society of Safety Professionals (ASSP), Occupational Health and Safety Management Systems, ANSI/ASSP Z10-2012 (R2017); and the International Standards Organization (ISO), Occupational Health and Safety Management Systems—Requirements With Guidance for Use (ISO 45001:2018)); (2) industry organizations ( e.g., the National Mining Association's CORESafety and Health Management System); and (3) government agencies ( e.g., the Department of Transportation, 49 CFR part 270). The Department of Labor's Occupational Safety and Health Administration (OSHA) also has developed recommended practices for developing safety and health programs ( https://www.osha.gov/shpguidelines/ ).

Generally, safety programs recommended by these organizations share the following principles. First, safety programs should address safety proactively rather than reactively. In other words, addressing problems only after an employee is injured is less effective than finding and fixing hazards before injuries and fatalities occur. Second, safety programs should take into account work processes and conditions specific to the workplaces and should make sense for the organizations that implement them. Third, safety programs should not be static and should be continually improving, based on monitoring and evaluating work performance and safety outcomes, scanning and assessing risks of mining conditions and operations, and evaluating use of emerging technologies.

In addition, most of the safety programs include a set of interacting elements that are designed to establish and achieve similar safety goals. Specifically, a safety program includes a common set of elements that focus on identifying hazards in the workplace and developing a plan for preventing and controlling those hazards. Examples of common elements include management commitment; worker involvement; hazard identification, prevention, and remediation, including workplace examinations for violations of mandatory safety and health standards; worker training and education; and program evaluation.

Based on its review of best practices and guidance on safety programs, together with comments gathered from a variety of stakeholders in mining communities, MSHA has concluded that developing and implementing a written safety program for surface mobile equipment at mines would contribute to advancing miners' safety and health. For this reason, MSHA is now issuing a proposal that would require mine operators with six or more miners to develop, implement, and update a written safety program for surface mobile equipment.

This proposal would address hazards related to mobile equipment and powered haulage equipment (except belt conveyors) used at surface mines and in surface areas of underground mines. MSHA believes that mine safety would be substantially improved when mine operators implement written safety programs that promote a culture of safety, take a holistic approach to safety and health, and encourage technological solutions to prevent or mitigate hazards. The Agency also believes that miners' safety would be improved if mine operators: (1) Continually evaluate their operations to identify hazards resulting from operating and working near surface mobile equipment and (2) identify controls that prevent or mitigate these hazards, including the use of technology to reduce accidents, injuries, and fatalities.

The proposed written safety program would be required only for operators employing six or more miners. Over the years, MSHA has observed that mine operators with five or fewer miners generally have a limited inventory of surface mobile equipment. These operations also tend to have less complex mining operations, with fewer mobile equipment hazards that would necessitate a written safety program. Although these mine operators are not required to have a written safety program, MSHA encourages mine operators with five or fewer miners to assure that surface mobile equipment hazards at their mines would be mitigated to the greatest extent possible. For mines employing five or fewer miners, MSHA's Educational Field and Small Mine Services (EFSMS) would provide assistance in the development and improvement of safety programs for mine operators and contractors in the mining community. Also, MSHA's EFSMS staff would encourage state grantees to focus on providing training to address hazards and risks involving surface mobile equipment in small mining operations.

The written safety program would list actions that mine operators would take to identify hazards and reduce risks, develop equipment maintenance and repair schedules, evaluate technologies, and train miners. The proposal would provide mine operators with the flexibility to tailor the written safety program to meet the specific needs of their operations and unique mining conditions. Under the proposal, mine operators would be required to evaluate and update the written safety program whenever necessary to manage safety risks associated with their surface mobile equipment appropriately.

A written safety program is an important part of a mine operator's overall safety program to prevent workplace injuries, illnesses, or deaths. A written safety program, as opposed to an oral one, is one that's more likely to be followed by mine operators and miners. The specific contents of an operator's written safety program do not need MSHA approval, but a written program serves other purposes beyond simply meeting regulatory requirements because it: (1) Reinforces that the mine operator/management is serious about safety; (2) provides benchmarks against which safety performance can be measured and verified; and (3) prevents confusion about authority, responsibility, and accountability. Furthermore, a written safety program which is reviewed regularly can clarify policy, create consistency and continuity, provide a basis for making decisions relative to when changes are needed, and serve as a checkpoint whenever there is a question regarding the use of surface mobile equipment at surface mines and surface areas of underground mines.

As is MSHA's practice, the Agency would provide mine operators with guidance needed to develop, implement, evaluate, and update their safety programs, if requested. MSHA would also work with mining industry stakeholders as it develops materials and templates to assist mine operators.

This proposal would require mine operators to develop a written safety program in which they would systematically identify and evaluate risks of surface mobile equipment used at their mines to eliminate or mitigate safety hazards and reduce accidents, injuries, and fatalities. The safety program should be designed so that it promotes and supports a safety culture at the mine. Since each mine has a unique environment, MSHA is proposing to allow each mine operator the flexibility to develop a safety program that addresses its specific types of surface mobile equipment and mining conditions and operations.

Proposed §§ 56.23000, 57.23000 and 77.2100 address the purpose and scope of the proposal. The purpose of the safety program is to reduce accidents, injuries, and fatalities related to the operation of surface mobile equipment. Operators covered by this part would be required to develop, implement, and update a written safety program for mobile equipment used at surface mines and at surface areas of underground mines.

MSHA recognizes that mine operations are diverse, with varying mining methods, mining conditions and operations, types of mobile equipment, and mined commodities. Under this proposal, mine operators would have the flexibility to develop effective safety programs that best meet the unique conditions of their mines to prevent accidents, injuries, and fatalities involving surface mobile equipment. Indeed, mine operators with existing effective safety programs would likely need to make few adjustments, if any, to their existing programs and practices to meet the requirements of this proposal.

Proposed §§ 56.23000, 57.23000 and 77.2100 would require mine operators employing six or more miners to develop a written safety program. Based on Agency experience and data, a mine operator with five or fewer miners would generally have a limited inventory of surface mobile equipment. These operators would also have less complex mining operations, with fewer mobile equipment hazards that would necessitate a written safety program. Although these mine operators are not required to have a written safety program, MSHA would encourage operators with five or fewer miners to have safety programs. As stated earlier, for mines with five or fewer miners, MSHA's EFSMS would provide compliance assistance to operators in developing a safety program, such as making examples of model safety programs available at the Agency's website. Also, MSHA would encourage its state grantees to focus on providing training to address hazards and risks involving surface mobile equipment in small mining operations.

MSHA believes that these small mine operators would be able to accomplish the goals of this proposal through existing requirements (for example, 30 CFR parts 56, 57, and 77) relating to the use of written hazard warnings, oral instruction, signs and posted warnings, walkaround training, or other appropriate means that alert persons to site-specific hazards at the mine. However, to assure that surface mobile equipment hazards at these mines are mitigated to the greatest extent possible, MSHA intends to use its EFSMS resources as stated earlier.

The proposal is premised on MSHA's experience and data that, as a mine operation grows, the number and size of surface mobile equipment used at the mine usually increase, as do the complexity of the hazards that occur at the mine. MSHA believes that mines employing six or more miners often have more complex mining operations and more surface mobile equipment.

MSHA estimates that about 41 percent of all mines in the U.S. employ six or more miners and that about 88 percent of all miners in the U.S. work at mines employing six or more miners. MSHA requests comments on whether the Agency should require all mine operators, regardless of size, to develop a written safety program. MSHA is particularly interested in comments on the economic feasibility of requiring operators with five or fewer miners to develop a written safety program. MSHA is also interested in comments and suggestions on alternatives or best practices that all mines might use to develop safety programs (whether written or not) for surface mobile equipment. MSHA solicits comments on requiring a non-written safety program for mines with five or fewer miners. Please provide the rationale and any supporting documentation in the comment. If a commenter marks parts of a comment as “business confidential” information, MSHA will not post those parts of the comment.

Proposed §§ 56.23001, 57.23001 and 77.2101 would define responsible person as a person with authority and responsibility to evaluate and update a written safety program for surface mobile equipment. MSHA believes that designating a person with authority and responsibility to evaluate and update the safety program as necessary would help assure the successful development and maintenance of a safety program that addresses and eliminates surface mobile equipment hazards at a particular mine. This individual should be able to communicate the operator's commitment to safety and the importance of miners' involvement in the program to prevent or mitigate hazards. The responsible person must communicate the goals of the safety program to all miners, including contractors. The responsible person would need to have the experience and knowledge about mining conditions, including surface mobile equipment, necessary to develop and manage the safety program, as well as experience and knowledge necessary to maintain and evaluate any controls and best practices.

Proposed §§ 56.23001, 57.23001 and 77.2101 would define surface mobile equipment as wheeled, skid-mounted, track-mounted, or rail-mounted equipment capable of moving or being moved, and any powered equipment that transports people, equipment or materials, excluding belt conveyors, at surface mines and in surface areas of underground mines.

Under proposed §§ 56.23002(a), 57.23002(a) and 77.2102(a), mine operators would develop and implement a written safety program for surface mobile equipment within 6 months after the effective date of the final rule. MSHA requests comments on whether the 6-month period provides mine operators sufficient time to develop and implement a written safety program that includes the elements in proposed §§ 56.23003(a),/57.23003(a) and 77.2103(a), and rationales for the comments.

Proposed §§ 56.23002(b), 57.23002(b) and 77.2102(b) would also require mine operators to designate a responsible person as described above within 6 months after the effective date of the final rule. MSHA requests comments on whether this provides mine operators sufficient time to meet the proposed requirements, and rationales for the comments.

Proposed §§ 56.23003(a), 57.23003(a) and 77.2103(a) would require a written safety program for surface mobile equipment to include four types of actions that mine operators would take in order to reduce accidents, injuries, and fatalities and to improve miners' safety.

Proposed §§ 56.23003(a)(1), 57.23003(a)(1) and 77.2103(a)(1) would require the safety program to include actions that would identify and analyze hazards and reduce the resulting risks related to the movement and operation of surface mobile equipment. Specifically, the proposal would require mine operators to identify, collect, and review information about hazards at their mines. These actions could include review of accident data and information on close calls or near misses, and any operational or maintenance accidents at their mines. Based on the information collected, mine operators would be able to develop a program that more specifically addresses conditions at their mines and measures to eliminate, prevent, or mitigate hazards.

Proposed §§ 56.23003(a)(2), 57.23003(a)(2) and 77.2103(a)(2) would require operators to develop and maintain procedures and schedules for routine maintenance and non-routine repairs for surface mobile equipment. Operators must comply with MSHA's existing requirements for maintenance and repair, which include but are not limited to 30 CFR 56.14100; 56.14105; 56.14211; 57.14100; 57.14105; 57.14211; 77.404(a); 77.404(c); 77.410(c); 77.1606(a) and (c); 77.1607(l); 77.1607(q); 77.405(a) and (b); 77.502; and 77.1302(b). Under this proposal, the mine operator would need to integrate existing compliance processes with any manufacturer's recommendations into the safety program and to assure that hazards in all phases of work be examined and analyzed. Existing processes include procedures for maintaining brakes and steering components, as well as procedures that assure pre-operational checks of equipment are conducted and then defects are corrected.

Proposed §§ 56.23003(a)(3), 57.23003(a)(3) and 77.2103(a)(3) would require that the program include actions the mine operator would take to evaluate currently available and newly emerging feasible technologies that can enhance safety and evaluate whether to adopt them. The safety program would include a process by which operators would periodically evaluate new and existing technologies that could enhance safety.

Examples of these technologies could include seat belt interlocks that affect equipment operation when a seat belt is not fastened; seatbelt notification systems that alert management when the seatbelts are not worn; collision warning systems and collision avoidance systems that may prevent accidents by alerting equipment operators to hazards located in blind areas; technologies that use Global Positioning Systems to provide equipment operators with information regarding their location when pushing and dumping material; as well as cameras, curvilinear mirrors, and other vision enhancements. As stated earlier, for mines with five or fewer employees that would not be subject to this proposed rule, MSHA's EFSMS would provide assistance to operators who are interested in developing a safety program. Also, as part of the Agency's compliance assistance efforts, MSHA would work with operators and provide information and technical assistance that would help them investigate control options and the use of technology to prevent accidents and injuries. Furthermore, MSHA would encourage its state grantees to focus on providing training to address hazards and risks involving surface mobile equipment in small mining operations.

Proposed §§ 56.23003(a)(4), 57.23003(a)(4) and 77.2103(a)(4) would require operators to train miners and other persons at the mine necessary to perform work ( e.g., office workers) to identify and address or avoid hazards related to surface mobile equipment. Training provided under this section would be met through existing training requirements, which include but are not limited to 30 CFR part 46—Training and Retraining of Miners Engaged in Shell Dredging or Employed At Sand, Gravel, Surface Stone, Surface Clay, Colloidal Phosphate, or Surface Limestone Mines (§§ 46.3, 46.4, 46.5, 46.7, 46.8, 46.11, and 46.12); part 48—Training and Retraining of Miners (§§ 48.23, 48.25, 48.26, 48.27, 48.28, and 48.31); and part 77 Mandatory Safety Standards, Surface Coal Mines and Surface Work Areas of Underground Coal Mines (§§ 77.404(b) and 77.1708).

Proposed §§ 56.23003(b), 57.23003(b) and 77.2103(b) would require the responsible person to evaluate and update the written safety program at least annually or as mining conditions or practices change, accidents or injuries occur, or as surface mobile equipment changes, or modifications are made. This proposed requirement would assure that the written safety program remains relevant and up to date. If a mine operator determines that the controls and procedures identified in the safety program are not effective (or are no longer relevant), further measures would need to be identified and implemented to assure miners' safety. Similarly, mine operators would also need to evaluate safety programs during seasonal weather condition changes or whenever work processes or practices change. In fact, best practices shown by NIOSH, OSHA, and other voluntary consensus standards organizations include ongoing evaluations of workplace activities and processes for hazards. These ongoing evaluations could result in identifying new hazards, taking corrective actions, and investigating accidents and near-misses to determine root causes and making this information available to all miners at the mines.

Proposed §§ 56.23004, 57.23004 and 77.2104 would require that the mine operator make available a copy of the written safety program for inspection by authorized representatives of the Secretary, miners, and representatives of miners, and provide a copy upon request.

MSHA is interested in any information and data associated with safety programs for surface mobile equipment. The Agency is particularly interested in the aspects of the safety programs that work best and are most effective. The Agency also is interested in comments on MSHA's proposal to require a written safety program for mine operators employing six or more miners. If a commenter marks parts of a comment as “business confidential” information, MSHA will not post those parts of the comment. The Agency is interested in receiving comments from all members of the mining community and all interested stakeholders. Where possible, please include specific examples to support the rationale.

Executive Orders (E.O.) 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

Under E.O. 12866, a significant regulatory action is one that meets any of a number of specified conditions, including the following: Having an annual effect on the economy of $100 million or more, creating a serious inconsistency or interfering with an action of another agency, materially altering the budgetary impact of entitlements or the rights of entitlement recipients, or raising novel legal or policy issues. MSHA has determined that the proposal would not be an economically significant regulatory action, pursuant to section 3(f) of E.O. 12866, because this proposal would not have an annual effect of $100 million or more on the economy.

This section provides a summary of MSHA's cost and benefit estimates of the proposal. The proposed rule is estimated to have a 10-year total net benefit of $343.0 million at a 7 percent discount rate, based on estimated benefits of $470.9 million and costs of $127.9 million. At that 7 percent discount rate, the estimated annualized net benefit is $45.6 million (annualized benefits of $62.7 million and annualized costs of $17.0 million). Supporting materials and data that provide additional details on the methodology used to estimate the costs, benefits, and other required analyses of the proposal are included in the proposed rule docket at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted on MSHA's website at https://www.msha.gov.

The proposal would apply to surface mines and surface areas of underground mines, for mines employing six or more miners. As of 2018, there were 12,281 mines in the U.S.—1087 coal mines and 11,194 metal and nonmetal (MNM) mines. Of those mines, 5,027 mines (about 41 percent) had six or more miners working and would be subject to this proposal. Among a total of 223,289 workers at U.S. mines, 162,718 were reported to be miners. About 88 percent of the miners were working at mines with six or more miners. See Table 1 for additional details.

Table 2 shows that in 2018 mining revenues were $109.4 billion and miners worked 415.1 million hours. MSHA estimates coal revenue at $27.2 billion using the production estimates multiplied by the revenue per ton. For the MNM revenue figures, MSHA used the estimate of $82.2 billion from the U.S. Geological Survey's (USGS) annual commodity report.

MSHA believes that the proposed rule would improve miners' safety in important ways. Numerous published professional articles about safety describe the relationship between effective safety programs and accident reduction. For example, Maxey (2013, p. 14) describes the shared features of successful programs as follows: “These basic elements—management leadership, worker participation, hazard identification and assessment, hazard prevention and control, education and training, and program evaluation and improvement—are common to almost all existing health and safety management programs. Each element is important in ensuring the success of the overall program, and the elements are interrelated and interdependent.”  1 MSHA's proposal would require mine operators to develop and implement a written safety program with six or more miners that covers the range of actions an operator would take to systematically evaluate and address risks to reduce accidents, injuries, and fatalities related to the operation of or working near surface mobile equipment.

The proposed safety program would create benefits through several mechanisms. First, the proposed safety program would include a variety of actions an operator would take to identify hazards and assess risks to reduce accidents, injuries, and fatalities. Second, MSHA believes the process of developing and maintaining a safety program would help create or improve a safety culture at the mine. As mine management and miners work together to identify hazards and determine appropriate controls to prevent or mitigate those hazards, they could come to share beliefs, practices, and attitudes about safety and to promote a positive safety culture.

In addition, MSHA believes that there would be additional unquantifiable financial benefits, such as reduced insurance premiums and decreased downtime after accidents, stemming from the collaborative focus on safety by operators and miners.

MSHA is aware that some mine operators have developed safety programs based on the Occupational Safety and Health Administration (OSHA)'s recommended practices, or on consensus standards. These operators would have procedures in place already to continually identify workplace hazards and evaluate risks. MSHA is also aware that some states require, by either regulation or statute, a workplace safety plan or program for some or all employers including mine operators. Other states incentivize (through premium credits or public recognition) and support (with free training and consultations) safety programs. 2 Of those states that require safety programs, most require employers to develop procedures to identify controls to eliminate or mitigate identified hazards and evaluate the effectiveness of existing controls to determine whether they continue to protect employees. Although MSHA does not know to what degree state programs may overlap with this proposal, MSHA believes that some mine operators with effective existing safety programs and processes would likely need to make few, if any, adjustments to their programs to meet the requirements of the proposal.

Under 30 CFR part 50, mine operators are required to submit a report of each accident, injury, and illness to MSHA within 10 working days after an accident or occupational injury occurs or an occupational illness is diagnosed. Based on the information collected from mine operators' reports, the Agency has analyzed accident and injury trends related to mining equipment, work locations, and tasks.

MSHA'S Quarterly Mine Injury and Worktime, Quarterly Reports (2018 report at https://arlweb.msha.gov/Stats/Part50/WQ/2018/MIWQ%20Report%20CY%202018.pdf ) provides official data and definition for injuries. The injury occurrences are classified according to severity as follows:

1. FATAL: Occurrences resulting in death.

2. NFDL: Nonfatal occurrences with Days Lost (lost workdays). That is, nonfatal injury occurrences that result in days away from work or days of restricted work activity.

3. NDL: Occurrences with No Days Lost. That is, nonfatal injury occurrences resulting in loss of consciousness or medical treatment other than first aid, but not in any lost workdays.

For the period from 2003 to 2018, MSHA identified 109 fatalities and 1,543 nonfatal injuries that involved surface mobile equipment at mines employing six or more miners. Table 3 shows the annual number of fatal and nonfatal injuries caused by operating or working near surface mobile equipment at coal and MNM mines with six or more miners, from 2003 to 2018.

MSHA developed 10-year baseline forecasts of injuries and fatalities with the detailed coal and MNM data and the summary information shown in the following paragraphs. Table 4 shows the numbers of fatalities and injuries that MSHA projects would occur in the absence of any changes in the existing regulation. See the full Preliminary Regulatory Impact Analysis (PRIA), which is available in the docket, for the intermediary calculations and tables.

MSHA believes that a substantial percentage of accidents involving surface mobile equipment could be reduced if operators comply with the proposed rule, and it projects that the number of fatalities and injuries would be reduced by 80 percent as a result. MSHA believes it is likely that the severity of injuries would be reduced, creating an additional benefit, which is not quantified in this analysis. MSHA believes that as mine operators begin the process of developing their safety program, some benefits would be realized in the first year. Because mine operators would focus on safety during the development of their programs, injury rates would likely start falling even before the programs were complete. In the first year, MSHA therefore assumes injuries and fatalities would drop 10 percent (equivalent also to 10 percent of the full-year potential reduction) due to these improvements taking place as safety programs are finalized. Starting from the second year, MSHA expects that there would be considerably fewer accidents involving surface mobile equipment, leading to a substantial drop in the number of fatalities and nonfatal injuries. MSHA solicits comments regarding the Agency's proposed regulatory effectiveness. Please provide the rationale and any supporting documentation in your comment.

Table 5 shows the projected reduction in fatalities and nonfatal injuries related to surface mobile equipment for each of 10 years after the proposal takes effect. (A break-even analysis is discussed later, in the benefit monetization section.) Even though fatalities and injuries are always whole numbers, the projection of reduced fatalities and injuries includes decimal values to allow more accurate estimates of benefit monetization later. Supporting material and data that provide additional details on MSHA's forecast including sensitivity analysis results are included in the proposed rule docket at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted on MSHA's website at www.msha.gov.

To estimate the monetary value of the reductions in fatalities and nonfatal injuries, MSHA used an analysis that relies on the theory of compensating wage differentials ( i.e., the wage premiums paid to workers to accept the risk associated with various jobs) in the labor market. This theory grows out of the widely observed correlation between higher job risk and higher wages, which suggests that employees demand monetary compensation in return for incurring greater risk. The measure of risk reduction as applied to fatalities is known as the Value of a Statistical Life (VSL). Despite its name, VSL is not the valuation of life, but the valuation of reductions in risks. Following OMB Circular A-4 and adjusting for real income changes, MSHA has used a VSL value of $13.6 million for the 2018 base year and $13.9 million for the first year of rule implementation. 3 By the tenth year, the VSL value reaches $16.5 million. 4

For NFDL and NDL injuries, MSHA used percentages of VSL. In the past, to estimate the cost of nonfatal lost-time injuries, MSHA used a value equivalent to 0.7 percent of VSL. The figure is taken from a 2003 meta-analysis by Viscusi & Aldy and represents the study's estimate of injury dollar value divided by the VSL. For this analysis, MSHA continues its use of 0.7 percent of VSL for NFDL injuries.

For the NDL injuries, as discussed in the PRIA, MSHA considered values from two sources. The National Safety Council (NSC) and the National Institute for Occupational Safety and Health (NIOSH) have analyzed injury costs and have continued to update their findings. NIOSH, which is part of the Centers for Disease Control and Prevention, focuses on researching and developing new knowledge related to worker safety and health and to transfer that knowledge into practice. The National Safety Council is recognized among safety professionals as a leading nonprofit safety advocate. The organization focuses on eliminating the leading causes of preventable injuries and deaths. The NIOSH data offers many values for individual industry groups, together with numerous percentile groupings, means, and medians, but no single overall value. By contrast, NSC provides a consolidated estimate of the cost of each type of injury—one cost estimate for non-fatal injuries with days lost (NFDL) that includes wage losses, medical expenses, administrative expenses, and employer costs, and a second cost estimate for injuries resulting no days of work lost (NDL) that takes into account medical expenses, administrative expenses and employer costs. (Note that neither estimate includes costs of property damage except to motor vehicles). MSHA believes that the average calculated by the NSC is a reasonable estimate to use for NDL injuries, because it is simpler and more similar to estimates used in past MSHA analysis. Adjusting the 2016 NSC value of $39,000 (2016 dollars) for inflation using the Medical Consumer Price Index (CPI), this figure yields a 2018 value of $40,000. By taking the ratio of $40,000 to a 2018 VSL of $13.6 million, MSHA calculates a percent-of-VSL value of 0.3 percent (rounded value) for NDLs. For more detailed information, including alternate scenarios, see the monetization discussion in the full PRIA. Table 6 lists the resulting annual values for VSL and nonfatal injuries.

Table 7 below displays the monetized benefits from the reductions in fatalities and nonfatal injuries attributable to the proposal. These figures are calculated by multiplying the numbers of prevented fatalities and nonfatal injuries in Table 5 by the VSL estimates of fatal and nonfatal injuries shown in Table 6.

As explained above, this proposed rule would require certain mine operators to develop a written safety program in which they would systematically evaluate risks to reduce accidents, injuries, and fatalities. The quantified costs associated with this proposal would be two types—one related to the development of the written safety program, and the other related to measures taken to enhance safety and minimize risks.

MSHA recognizes that mine operations are diverse, with varying mining methods, mining conditions and operations, types of mobile equipment, and mined commodities. Under this proposal, mine operators would develop programs that are unique to their operations and/or build on existing programs.

Program development costs are estimated based on categories of actions to be included in the written program. To develop the safety program, a mine operator would need to implement various procedures and processes that identify hazards and manage risks. However, many operators already have a number of procedures and processes in place that would meet the requirements of this proposal. Those operators would only have to identify and describe these procedures and processes. Therefore, when MSHA estimates the average time for each type of action it would take a mine operator to develop a written safety program, it is averaging across these variations in the new compliance actions that would be required.

The hourly-wage data used in MSHA's analysis assumes an average rate for all mining and uses BLS's 2018 Occupational Employment Survey (OES) mean wage rates adjusted for benefits and wage inflation since completion of the survey. MSHA has also added an overhead cost rate of 1 percent to the wage rates. Labor costs for most employees are estimated using $65.10 per hour for a supervisor; the only exception is the item identified as clerical assistance, for which the estimated cost is $31.46 per hour. Costs are estimated based on a projection that 5,027 mine operators would need to develop written programs. Table 8 summarizes these costs associated with a written safety program.

Under the proposed rule, MSHA would require mine operators to evaluate technologies that enhance safety in the operation of surface mobile equipment. As a result, mine operators would incur costs in implementing safety-enhancing processes and controls.

Because it is difficult to determine the type of controls mine operators would use to eliminate or mitigate a hazard, MSHA's analysis approximates the safety-enhancement costs by estimating the number of pieces of surface mobile equipment covered by this proposal and multiplying by the associated cost for each one.

Based on MSHA experience and data, the agency has estimated the number of pieces of equipment by several mine sizes and by mining process (using the MSIS data for subunits) and cost per piece of equipment for startup as well as outyear maintenance and updates. MSHA estimates that there are approximately 60,000 pieces of mobile equipment used at surface mines and surface areas of underground mines; of this total, 41,994 are used at mines with six or more miners.

The safety-enhancing expenditures would vary widely across mine operations. Some operators would incur lower costs, as they would use less advanced controls such as signs and signals, while other operators would invest in higher-priced controls such as interlocked seatbelts or collision warning systems. Given this variation, MSHA assumes an average cost of $500 per piece of surface mobile equipment in the first year, reflecting the cost of both new technology purchases and existing technology repairs and modifications. From the second year on, the analysis assumes an average cost of $100 per piece of surface mobile equipment, reflecting mostly costs of modification of existing technologies. The analysis assumes little incremental cost for repairs in the second year and beyond, because the repairs are already required by other MSHA standards.

Using these estimates of the average safety-enhancement costs and the number of pieces of equipment used by the covered mines that would be subject to this proposal, MSHA estimates that mine operators would incur safety-enhancement costs of approximately $21.0 million in the first year and $4.2 million annually after that. MSHA invites commenters to submit estimates of the types and costs of safety enhancements that would be needed at mining operations under this proposal.

MSHA estimates that there would be no incremental training costs, because this proposed rule requires no new or additional training. Training costs are already accounted for in training required by existing standards in 30 CFR parts 46, 48, and 77, which address mine hazard awareness and safety measures. MSHA invites commenters' views and estimates on training costs.

Table 9 shows the total compliance costs, which are the sum of the written program development costs and safety-enhancement and training costs. Based on the estimates above, the total compliance costs in the first year would be $56.6 million and $12.3 million annually in the out-years starting from the second year of implementation. MSHA invites commenters to submit estimates of the types and costs of enhancements at their operations.

MSHA's 10-year cost and benefit estimates are shown in Table 10. Under MSHA's proposed rule, mine operators would be required to meet the requirements of the proposed rule 6 months after the effective date of the final rule. MSHA believes that this 6-month period would provide mine operators time to develop and communicate the safety program to employees, evaluate mine operations for hazards, and eliminate or control identified hazards ( e.g., engineering controls, work practices, and equipment maintenance). MSHA assumes that by reducing the surface mobile machine fatalities and injuries by 80 percent, full benefits of the proposed rule would be achieved by the second year, with benefits equal to 10 percent of that amount in the first year.

OMB Circular A-4 recommends use of a break-even or threshold analysis when there are qualitative benefits or issues of uncertainty related to the cost and benefit estimates. As discussed above, MSHA's estimates of the benefits of the rule are based on the projected reduction in the number of fatalities and injuries. The success of the proposed rule in reducing fatal and nonfatal injuries can be considered in terms of the resulting monetized benefit. A break-even point is when net benefits (monetized benefits minus costs) equal zero. According to the break-even calculations for this proposal, even if the fatalities and injuries are not reduced as forecasted, the reduction of fatal and nonfatal injuries would have a positive net benefit as long as those injuries are reduced by more than 27.1 percent; at 27.1 percent, the net benefits at a 7 percent discount rate would equal zero.

Please provide data or information that would be useful to MSHA as the Agency evaluates the costs and benefits of this proposal. MSHA recognizes that mine operations are diverse with varying mining methods, mining conditions and operations, types of mobile equipment, mined commodities, and mine sizes. MSHA seeks data and information that would allow the Agency to develop estimates that might better reflect these differing conditions and further evaluate the economic feasibility of this proposal. MSHA requests comments on innovative technologies and/or new and developing technologies that could enhance the benefits of the proposal.

MSHA concludes that the proposal would be technologically feasible because it would require mine operators to develop and implement written safety programs based on an assessment of risk in their mines and use existing technology or methods to enhance safety. Therefore, there are no technological issues raised by the proposal.

MSHA has traditionally used a revenue screening test— i.e., whether the yearly impacts of a regulation are less than one percent of revenues—to establish presumptively that the regulation is economically feasible for the mining community. MSHA projects that the proposal would have an annualized cost of $17 million (at a 7 percent discount rate over 10 years), while the mining industry has estimated annual revenues of $109.4 billion. The cost of the proposal would be much less than 1 percent of revenues. Therefore, MSHA concludes that the proposed rule would be economically feasible for the mining industry.

MSHA has reviewed the proposed rule to assess and take appropriate account of its potential impact on small businesses, small governmental jurisdictions, and small organizations. Pursuant to the Regulatory Flexibility Act (RFA) of 1980, as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), MSHA analyzed the impact of the proposed rule on small entities. Based on that analysis, MSHA believes that this proposed rule would not have a significant economic impact on a substantial number of small entities. The Agency, therefore, is not required to develop an initial regulatory flexibility analysis. The factual basis for this proposed certification is presented below.

Under the RFA, in analyzing the impact of a rule on small entities, MSHA must use the Small Business Administration (SBA)'s definition for a small entity, or after consultation with the SBA Office of Advocacy, establish an alternative definition for the mining industry by publishing that definition in the Federal Register for notice and comment.

The SBA uses North American Industry Classification System (NAICS) codes, generally at the 6-digit NAICS level, to set thresholds for small business sizes for each industry. See Table 11 for SBA thresholds for each relevant NAICS code. The SBA size standard tables and methodology are available at https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/summary-size-standards-industry-sector.

The SBA guidance recommends, as a first step, a threshold analysis. MSHA evaluates the impacts on small entities by comparing the estimated compliance costs of a rule for small entities in the sector affected by the rule to the estimated revenues for the affected sector. As the threshold analysis is developed, MSHA considers the data availability as well as the degree of representativeness if the data is disaggregated. When estimated compliance costs are less than 1 percent of the estimated industry revenues, it is generally appropriate to conclude that there is no significant economic impact on a substantial number of small entities. MSHA examines data for the NAICS codes that have much higher impact ratios (cost/revenue) than others to ensure that the first level screening is representative. When estimated ratios may not be representative or when compliance costs exceed one percent of revenues, MSHA investigates whether further analysis is required.

For this analysis, MSHA evaluated a number of data sources related to the number of firms, employment, and revenue. MSHA concluded that the most useful data for firms and employment was the MNM mine data from MSIS, which is publicly available at https://www.msha.gov/data-reports/data-sources-calculators. Using the SBA criteria (see Table 11) and MSIS total average annual mine employment data as provided by mine operators, MSHA identified that 10,278 out of 12,281 mines and facilities are considered “small” and have usable data. MSHA identified 533 other small mines that were not included in this analysis, because some had incomplete data, another had few production hours for the year (intermittent mines), and others stopped production in 2018.) Of those small mines and facilities, slightly more than one-third, 35 percent (3,557/10,278 small), would be required to comply with the provisions of the proposal because they employ six or more miners. Costs from the Compliance Costs section above were distributed using the SBA small and large sizes using the same methodology discussed in that section. The 65 percent of small mine operators that do not have to comply will have no cost. 5

MSHA estimates mine revenue as it did in the past. Since MNM mines do not report production, MSHA used U.S. Geological Commodity reports (USGS, 2019) to obtain national MNM revenue numbers for 2018. MSHA allocated the NAICS code revenue for MNM mines on a dollar per hour basis. MSHA uses the mine operator-reported coal production and Energy Information Administration price per ton for anthracite, lignite, and bituminous coal for small mines. 6

MSHA considered the issue of disaggregation of summary data and displaying representative data for mines with only five or fewer miners. The revenue per hour for MNM mines and per ton for coal is representative for the total as most mines meet the SBA's small criteria. However, MSHA believes it is unlikely to be representative for the smallest mines. MSHA requests comments and data that would assist MSHA in estimating representative revenues for the categories of six or more, and five or fewer, miners.

Table 11 shows the estimated revenues, costs, SBA size standards (Feb. 2019), and the summary level screening test results for the total small mine revenue for each 6-digit NAICS code. The summary level data is consistent with evaluating the impact on a mine-by-mine basis without providing detail on all mines. The data allows each operator to use the Table 11 data to compare the revenue per mine and cost per mine to their operating data. However, the revenue for incomplete data was less than 1 percent of total revenues. It is therefore small enough not to affect MSHA's decision to propose to certify that there would be no significant economic impact on a substantial number of small entities.

As Table 11 shows, the total estimated cost to small mines, $38.77 million, is far less than 1 percent of the total revenues of those mines, which comes to $538.56 million. Two NAICS codes, 331313 Alumina Refining and Primary Aluminum Production and 212291 Uranium Radium Vanadium Ore Mining, require further analysis, because estimated costs for those codes exceed MSHA's 1-percent threshold for additional analysis. The Census Bureau's Statistics of U.S. Businesses and 2017 Economic Census data provides helpful information for additional analysis of NAICS code 331313. The Census Bureau reports that all data for the 212291 NAICS has been withheld due to the very limited number of mines. The six mines and plants regulated by MSHA with NAICS code 331313 are only a portion of the larger group of all firms with NAICS code 331313. The preliminary data from the Economic Census as shown in the Bureau's data does not provide enough detail to separate small firms between 500 and 1,000 employees from their total for 500 and more employees or to isolate mines from all firms with NAICS code 331313. 7

For NAICS code 331313, MSHA's estimate for the total costs for the small firms that it regulates within the code is $38,500. The Economic Census reports that the smallest firms for this NAICS have preliminary receipts of $9.3 million. The impact for the smallest firms would be only 0.4 percent ($38,500/$9,300,000). The overall percentage impact to small firms goes down as the revenues increase for the rest of the firms up to the SBA threshold of 1,000 employees. Although the Economic Census numbers are for 2017, information available online provided by a private firm SICCODE.com ( https://siccode.com/naics-code/331313/alumina-refining-primary-aluminum-production ), suggests that the number of firms (26) and total revenues ($3 billion) are down slightly for 2018 but not enough to alter MSHA's conclusion that there is no significant impact for small firms with this NAICS code.

For Uranium and Vanadium, the mines were rarely in production in 2018. Several web sources suggest that as uranium approaches or maintains zero production, the Vanadium mines have the potential for growth for use in steel and battery production; thus, non-producing mines are maintained for this possibility. Because no recent data are available regarding the remaining establishments, their total employment, their revenues or costs, it is not possible to compute the impact beyond the total cost for the NAICS code 212291 which is slightly more than $14,000. Considering that the firms owning the limited number of mines are maintaining the mines for future possibilities, it is unlikely that this low cost would impact their decision whether to close. MSHA invites comments and data that might improve this conclusion and analysis.

This proposal would create new information collection burdens for the mining community. The new burden applies only to mine operators with six or more miners. As stated in the proposal, mine operators would have wide latitude to develop and implement a written safety program. Mine operators could also consult or use examples of model written safety programs available on MSHA's website. MSHA recognizes that this proposal could transfer burden from (or add burden to) existing information collections such as those related to training or equipment maintenance. However, MSHA is requesting a new OMB Control Number until the Agency determines how the burden under this proposal would affect MSHA's existing information collections. Using the data from the E.O. 12866 analysis, MSHA estimates that 5,027 respondents (mine operators employing six or more miners) would incur an average annual collection burden of 5,027 responses, 100,540 hours, with an annual burden cost estimate of $4.8 million. The MSHA enforcement staff would not review all written programs, but any program review would be part of routine mine inspections and therefore there is no new federal cost. Table 12 shows the anticipated first three years of collection burden.

The information collection package for this proposal has been submitted to OMB for review under 44 U.S.C. 3504, paragraph (c) of the Paperwork Reduction Act of 1995, as amended. Comments on the information collection requirements should be sent to both OMB and MSHA. Addresses for both offices can be found in the ADDRESSES section of this preamble.

MSHA is soliciting comments concerning the proposed information collection related to written safety programs. MSHA is particularly interested in comments that address the following:

• Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information has practical utility;

• Evaluate the accuracy of MSHA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

• Suggest methods to enhance the quality, utility, and clarity of the information to be collected; and

• 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 responses.

MSHA considered requiring all mines, regardless of size, to develop and implement a written safety program for surface mobile equipment used at surface mines and surface areas of underground mines. Between 2013 and 2018, mines with five or fewer miners experienced 10 fatalities related to surface mobile equipment, whereas mines with six or more miners experienced 109 related fatalities during the same time period.

If those mines with five or fewer miners were required to develop and implement a written safety program, they would incur substantial costs. MSHA estimates that there are 7,254 mines with five or fewer miners. The preliminary projected costs for this group of mines would add up to approximately undiscounted cost of $170 million over a ten-year period. These mines would incur a start up cost of $ 64.6 million in the first year and an annual cost of $11.7 over the subsequent 9 years.

Based on the Agency's experience, MSHA concluded that a mine operator with five or fewer miners would generally have a limited inventory of surface mobile equipment. These operators would also have less complex mining operations, with fewer mobile equipment hazards that would necessitate a written safety program. Also, at these small mines, safety can be communicated more effectively through face to face communication rather than in writing. Taken together, MSHA has determined that mine operators employing five or fewer miners would not be required to have a written safety program, although the Agency would assist these mine operators with promoting a safety culture in a variety of ways. Fuller discussions can be found in the Preliminary Regulatory Impact Analysis in the proposed rule docket at https://www.regulations.gov/docket?D=MSHA-2018-0016 and are posted on MSHA's website at https://www.msha.gov. MSHA also solicits comments on the Agency's determination.

The Unfunded Mandates Reform Act of 1995 (Act) (2 U.S.C. 1501 et seq. ) 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 state, local, or tribal governments, in the aggregate, or by the private sector, of $100 million (adjusted annually for inflation) or more in any one year. This proposed rule would not result in such an expenditure. Accordingly, the Unfunded Mandates Reform Act requires no further Agency action or analysis.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (5 U.S.C. 601 note) requires agencies to assess the impact of Agency action on family well-being. MSHA has determined that the proposal would not have an effect on family stability or safety, marital commitment, parental rights and authority, or income or poverty of families and children. Accordingly, MSHA certifies that this proposed rule would not impact family well-being.

Section 5 of E.O. 12630 requires federal agencies to “identify the takings implications of final regulatory actions. . . .” MSHA has determined that the proposal would not include a regulatory or policy action with takings implications. Accordingly, E.O. 12630 requires no further Agency action or analysis.

Section 3 of E.O. 12988 contains requirements for federal agencies promulgating new regulations or reviewing existing regulations to minimize litigation by eliminating drafting errors and ambiguity, providing a clear legal standard for affected conduct rather than a general standard, promoting simplification, and reducing burden. MSHA has reviewed the proposal and has determined that it would meet the applicable standards provided in E.O. 12988 to minimize litigation and undue burden on the federal court system.

MSHA has determined that the proposal would not have an adverse impact on children. Accordingly, E.O. 13045 requires no further Agency action or analysis.

MSHA has determined that the proposal would not have federalism implications because it would 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. Accordingly, E.O. 13132 requires no further Agency action or analysis.

MSHA has determined that the proposal would not have tribal implications because it would not have substantial direct effects 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. Accordingly, E.O. 13175 requires no further Agency action or analysis.

E.O. 13211 requires agencies to publish a statement of energy effects when a rule has a significant energy action that adversely affects energy supply, distribution, or use. MSHA reviewed the proposal for its energy effects on the production of coal and uranium mining. The proposal would result in annualized costs of approximately $16.7 million to covered surface mines and surface areas of underground mines. The Energy Information Administration's annual uranium report for 2018 shows, “Owners and operators of U.S. civilian nuclear power reactors (civilian owner/operators, or COOs) purchased a total of 43 million pounds U3O8e (equivalent) of deliveries from U.S. suppliers and foreign suppliers during 2017, at a weighted-average price of $38.80 per pound,” which is approximately $1.7 billion. Given that domestic nuclear plants represent only 19.3 percent of the U.S. electrical production and using average annual costs of the entire proposal, the impact to the domestic energy production could not reach 1 percent. Coal mining industry has an annual revenue of $27.2 billion (See Table 2). Under this proposal, annual costs impacting the total coal production of 756 million tons would not affect national energy production costs by more than 1 percent or reduce annual coal production by 5 million tons. MSHA has concluded that it is not a significant energy action because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Accordingly, under this analysis, no further Agency action or analysis is required.

For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is proposing to amend chapter I of title 30 of the Code of Federal Regulations as follows:

On July 10, 2020 (85 FR 41471), VA published a proposed rule in the Federal Register to amend 38 CFR 3.12 by updating and clarifying the regulatory bars to benefits. Specifically, VA proposed to modify the regulatory framework for discharges considered “dishonorable” for VA benefit eligibility purposes, such as discharges due to “willful and persistent misconduct,” “an offense involving moral turpitude,” and “homosexual acts involving aggravating circumstances or other factors affecting the performance of duty.” VA also proposed to extend a “compelling circumstances” exception to certain regulatory bars to benefits in order to ensure fair character of discharge determinations in light of all pertinent factors.

VA invited interested persons to submit written comments on or before September 8, 2020. VA received over 70 comments in response to the proposed rule. Over 20 of those comments were from organizations and the rest were from individual members of the public. Those organizations included: (1) American Psychological Association, (2) Charlotte Center for Legal Advocacy, (3) Homeless Advocacy Project, (4) Homeless Persons Representation Project, Inc., (5) Inner City Law Center, (6) Legal Aid Foundation of Los Angeles, (7) Lewis B. Puller Veterans Benefits Clinic of William & Mary Law School, (8) Modern Military Association of America, (9) National Law School Veterans Clinic Consortium, (10) National Organization of Veterans' Advocates, Inc., (11) National Veterans Legal Services Program, (12) New York State Division of Veterans Services, (13) NY Legal Assistance Group, (14) Ohio Veterans Law Task Force, (15) Public Counsel Center for Veterans Advancement, (16) Swords to Plowshares, (17) The Jerome N. Frank Legal Services Organization, (18) The Minority Veterans of America (MVA), (19) The National Coalition for Homeless Veterans, (20) The National Veterans Council for Legal Redress, (21) University of Florida Levin College of Law Veterans and Servicemembers Legal Clinic, (22) Veterans Advocacy Project, (23) Veterans Clinic at the University of Missouri School of Law, (24) Veterans Healthcare Policy Institute, (25) Veterans Legal Services, and (26) Vietnam Veterans of America. Individual comments were also received from U.S. Senators Richard Blumenthal, Jon Tester, and Sherrod Brown.

This additional request for information, described in more detail below, will assist VA in gathering and taking into account diverse viewpoints on this issue. Responses to this request for information will be used to help inform VA's development of updated character of discharge regulations. This request for information has a written comment period of 30 days, during which VA invites individuals, groups, and entities to reply to the questions presented below. VA believes that 30 days is sufficient to provide comments, as the individuals, groups, and entities interested in this program likely have information and opinions readily available or can quickly compile and submit such information. Commenters are encouraged to provide complete but concise responses to the questions outlined below.

VA will also be holding virtual public listening sessions on October 5, 2021, and October 6, 2021, to provide groups and entities an opportunity to share additional information. Oral comments, testimonies, and technical remarks are encouraged to be concise and directed toward specific Request for Information topics below. Please note that VA will evaluate all comments (oral and written) and, as appropriate, incorporate them into VA's next action.

To update its character of discharge regulations, VA seeks information on the topics and issues listed below. Commenters do not need to address every question and should focus on those that relate to their expertise or perspectives. Commenters should clearly indicate which topics and issues are being addressed in their response.

1. VA proposed to consider, as a factor in a “compelling circumstances” analysis, the impact of mental impairment at the time of the prolonged absence without leave (AWOL) or misconduct, to include a diagnosis of (or evidence that could later be medically determined to demonstrate the existence of) certain enumerated mental disabilities. Some commenters felt that the list of disabilities was overinclusive; some felt that it was underinclusive. VA seeks comment on the following question: What conditions, symptoms, or circumstances if any, should VA consider when determining the impact of mental impairment at the time of the prolonged AWOL or misconduct?

2. VA proposed to consider, as a factor in a “compelling circumstances” analysis, “Sexual abuse/assault.” Should VA employ a different or additional term for this category, such as “Military Sexual Trauma (MST)”? Also, should VA include language reminding adjudicators to look beyond service records to corroborate the account of an in-service personal assault, as provided in 38 CFR 3.304(f)(5)?

VA noted in the proposed rulemaking that “willful misconduct” is already defined in 38 CFR 3.1(n) as “an act involving conscious wrongdoing or known prohibited action”— i.e., the act involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. VA then proposed to clarify what circumstances qualify as “willful and persistent misconduct” in proposed 38 CFR 3.12(d)(2)(ii), with reference to certain timelines for “minor misconduct” and “more serious misconduct”. VA seeks comments on the following questions:

1. Should VA proceed with a distinction between “minor misconduct” and “more serious misconduct” when evaluating whether misconduct is persistent? Should VA define what is considered “serious misconduct?” Should VA only consider an action to be “misconduct” if it actually caused harm to a person or property or should VA consider all misconduct, regardless of severity, in its determination? Should VA consider extenuating circumstances that may have led to or impacted the “misconduct” at issue?

2. Some commenters requested that VA clarify the number of incidents required to constitute willful and persistent misconduct. How many instances over what period of time should be considered persistent? Should the totality of the circumstances be considered in addition to the number of incidents when determining misconduct to be willful and persistent?

Some commenters expressed concern that the proposed rule's definition of moral turpitude is too vague. VA seeks comments on the following questions:

1. VA regulation currently does not define moral turpitude, but states in 38 CFR 3.12(d)(3) that it includes “generally, conviction of a felony.” VA's proposed rule would define moral turpitude as a “`willful act that gravely violates accepted moral standards and would be expected to cause harm or loss to person or property.” Should VA revise this proposed definition, and if so, how?

VA seeks comments on the following questions regarding former service members and the bars to VA benefits:

1. Some commenters recommended that VA only apply statutory bars to benefits (those enumerated in 38 U.S.C. 5303(a)); others expressed concerns about how such an approach would affect military order and discipline. How (if at all) would removing the regulatory bars affect military order and discipline?

2. Some commenters suggested that granting benefits to those with less than honorable discharges denigrates others' honorable service. How (if at all) would extending VA benefits eligibility denigrate others' honorable service?

3. VA is committed to ensuring that its character of discharge regulations reflect the principles of fairness, inclusion, and justice that our Service members and our Nation deserves. What specific changes can be made to the proposed rule for fairly adjudicating the benefits eligibility of historically disadvantaged and vulnerable populations?

Information about the meeting, how to listen and/or register to speak can be obtained by emailing: CODRegistration.VBACO@va.gov.

Individual registration: VA encourages individual registrations for those wishing to speak who are not affiliated with or representing a group, association, or organization.

Group registration: Identification of the name of the group, association, or organization should be indicated in your registration request. Due to virtual platform meeting limitations of WebEx, and the statutory mandate that VA consult with certain entities, VA may select certain entities to speak or may limit the size of a group's registration to allow receipt of testimonies, and/or technical remarks from a broad, diverse group of stakeholders. Oral comments, testimonies, and/or technical remarks may be limited from a group, association, or organization with more than two individuals representing the same group, association, or organization. Efforts will be made to accommodate all attendees who wish to participate. The length of time allotted for participants to provide oral comments, testimonies, and/or technical remarks during the meeting will be no more than ten minutes, and is subject to the total number of participants speaking, to ensure time is allotted to selected registered speakers. Breaks between speakers will be ten minutes. There will be no opportunity for audio-visual presentations during the meeting.

Audio (For listening purposes only): Virtual attendance will be limited to the maximum allowed by WebEx on a first come, first served basis. Advanced registration is not required. Audio attendees will not be allowed to offer oral comments, testimonies, and/or technical remarks as the phone line will be muted.

Note: Should it be necessary to cancel the meeting due to technical issues or other emergencies, VA will take available measures to notify registered participants. VA will conduct the public meeting informally, and technical rules of evidence will not apply. VA will arrange for a written transcript of the meeting and keep the official record open until the closure of the Request For Information comment period to allow submission of supplemental information. The transcript will be posted in the docket of the rule as part of the official record when the rule is published.

Each listening session will focus on the Request for Information topics described in this notice and will be scheduled according to the following Agendas:

This request for information constitutes a general solicitation of public comments as stated in the implementing regulations of the Paperwork Reduction Act of 1995 at 5 CFR 1320.3(h)(4). Therefore, this request for information does not impose information collection requirements ( i.e., reporting, recordkeeping, or third-party disclosure requirements). Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq. ).

Denis McDonough, Secretary of Veterans Affairs, approved this document on July 7, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at https://www.regulations.gov (see instructions in the ADDRESSES section above).

The EPA is temporarily suspending its Docket Center and Reading Room for public visitors, with limited exceptions, to reduce the risk of transmitting COVID-19. Our Docket Center staff will continue to provide remote customer service via email, phone, and webform. We encourage the public to submit comments via https://www.regulations.gov/ as there may be a delay in processing mail and faxes. Hand deliveries or couriers will be received by scheduled appointment only. For further information and updates on EPA Docket Center services, please visit us online at https://www.epa.gov/dockets.

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

The following is the contact information for the EPA dockets: Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)

The contact information for the regional dockets is as follows:

• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.

• James Desir, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4342.

• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.

• Sandra Bramble, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW, Mailcode 9T25, Atlanta, GA 30303; 404/562-8926.

• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.

• Michelle Delgado-Brown, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1201 Elm Street, Suite 500, Mailcode SED, Dallas, TX 75270; 214/665-3154.

• Kumud Pyakuryal, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRSTAR, Lenexa, KS 66219; 913/551-7956.

• Victor Ketellapper, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6578.

• Eugenia Chow, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/972-3160.

• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Suite 155, Mailcode 12-D12-1, Seattle, WA 98101; 206/890-0591.

You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing them, oversized maps may be viewed only in-person; since the EPA dockets are not equipped to both copy and mail out such maps or scan them and send them out electronically.

You may use the docket at https://www.regulations.gov to access documents in the Headquarters docket. Please note that there are differences between the Headquarters docket and the regional dockets and those differences are outlined in this preamble below.

The Headquarters docket for this proposed rule contains the following information for the sites proposed in this rule: Hazard Ranking System (HRS) score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.

The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.

Follow the online instructions detailed above in the ADDRESSES section for submitting comments. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the Federal Register document if, and when, the site is listed on the NPL.

Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria ( Northside Sanitary Landfill v. Thomas, 849 F.2d 1516 (D.C. Cir. 1988)). The EPA will not address voluminous comments that are not referenced to the HRS or other listing criteria. The EPA will not address comments unless they indicate which component of the HRS documentation record or what particular point in the EPA's stated eligibility criteria is at issue.

Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.

During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.

All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at https://www.regulations.gov as the EPA receives them and without change, unless the comment contains copyrighted material, CBI or other information whose disclosure is restricted by statute. Once in the public dockets system, select “search,” then key in the appropriate docket ID number.

In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: Ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• The EPA determines that the release poses a significant threat to public health.

• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. * * *” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

In other words, while geographic terms are often used to designate the site ( e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property ( e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property ( e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination; and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. Plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment and taking of remedial measures is not appropriate.

In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction ( e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For more information on the CCL, see the EPA's internet site at https://www.epa.gov/superfund/construction-completions-national-priorities-list-npl-sites-number .

The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, Office of Solid Waste and Emergency Response (OSWER) 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#reuse .

In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the web and where appropriate more structured state and tribal correspondence that (1) explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's website at https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

In this proposed rule, the EPA is proposing to add 13 sites to the NPL, 12 to the General Superfund section, and one to the Federal Facilities section. All of the sites in this rule are being proposed for NPL addition based on an HRS score of 28.50 or above.

The sites are presented in the tables below.

The EPA is withdrawing its previous proposal to add the Highway 71/72 Refinery site in Bossier City, Louisiana, to the NPL because cleanup is nearing completion via Federal, State, and potentially responsible party actions. CanadianOxy Offshore Production Co. (COPCO), which is represented by Glenn Springs Holding Inc. (GSHI), has been working with EPA and the Louisiana Department of Environmental Quality to clean up the contamination. GSHI completed the remedial action for lead in soil and light non-aqueous phase liquid (LNAPL) recovery as operational and functional in 2011. GSHI completed the remedial actions for benzene and polynuclear aromatic hydrocarbons (PAHs) in soil in 2018. EPA has determined that the cleanup for lead, benzene and PAHs in soil meets the remedial action objectives, remediation goals, and performance standards and that the dual-phase extraction system to remove LNAPL and contaminated groundwater is operational and functional. Operation and maintenance activities and monitoring are ongoing. The rule proposing to add this site to the NPL can be found at 60 FR 8212 (February 13, 1995). Refer to the Docket ID number EPA-HQ-SFUND-1995-0002 for supporting documentation regarding this action. Further supporting information can be found on the Superfund web page for this site at https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuseaction=second.scs&id=0600641&doc=Y&colid=40643&region=06&type=SC.

Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local, or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

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

This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

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

This rulemaking does not involve technical standards.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For the reasons set forth in the preamble, EPA proposes to amend 40 CFR part 300 as follows:

The additions read as follows:

For additional information, see the direct final rule published in the “Rules and Regulations” section of this Federal Register .