The Secretary of Homeland Security (Secretary) takes this action pursuant to his authorities concerning asylum determinations. The Homeland Security Act of 2002 (HSA), Public Law 107-296, as amended, transferred many functions related to the execution of Federal immigration law to the newly created DHS. The HSA amended the Immigration and Nationality Act (INA or the Act), charging the Secretary “with the administration and enforcement of this chapter and all other laws relating to the immigration and naturalization of aliens,” INA 103(a)(1), 8 U.S.C. 1103(a)(1), and granted the Secretary the power to take all actions “necessary for carrying out” the immigration laws, including the INA, id. 1103(a)(3). The HSA also transferred to DHS responsibility for affirmative asylum applications made outside the removal context. See 6 U.S.C. 271(b)(3). That authority has been delegated within DHS to U.S. Citizenship and Immigration Services (USCIS). USCIS asylum officers determine, in the first instance, whether a noncitizen's affirmative asylum application should be granted. See 8 CFR 208.4(b), 208.9. With limited exception, the Department of Justice Executive Office for Immigration Review has exclusive authority to adjudicate asylum applications filed by noncitizens who are in removal proceedings. See INA 103(g), 240; 8 U.S.C. 1103(g), 1229a. This broad division of functions and authorities informs the background of this rule.

Asylum is a discretionary benefit that generally can be granted to eligible noncitizens who are physically present or who arrive in the United States, irrespective of their status, subject to the requirements in section 208 of the INA, 8 U.S.C. 1158, and implementing regulations, see 8 CFR parts 208, 1208.

Section 208(d)(5) of the INA, 8 U.S.C. 1158(d)(5), imposes several mandates and procedural requirements for the consideration of asylum applications. Congress also specified that the Attorney General and Secretary of Homeland Security “may provide by regulation for any other conditions or limitations on the consideration of an application for asylum,” so long as those limitations are “not inconsistent with this chapter.” INA208(d)(5)(B), 8 U.S.C. 1158(d)(5)(B). Thus, the current statutory framework leaves the Attorney General (and, after the HSA, also the Secretary) significant discretion to regulate consideration of asylum applications. USCIS regulations promulgated under this authority set agency procedures for asylum interviews, and require that applicants unable to communicate in English “must provide, at no expense to the Service, a competent interpreter fluent in both English and the applicant's native language or any other language in which the applicant is fluent.” 8 CFR 208.9(g). This requirement means that all asylum applicants who cannot communicate in English must bring an interpreter to their interview. Doing so, as required by the regulation, poses a serious health risk because of the COVID-19 pandemic.

Accordingly, this temporary rule extends the temporary final rule published at 85 FR 59655 for a second time to continue to mitigate the spread of COVID-19 by seeking to slow the transmission and spread of the disease during asylum interviews before USCIS asylum officers. To that end, this temporary rule will extend the requirement in certain instances allowing noncitizens interviewed for this discretionary asylum benefit to use USCIS-provided interpreters during interviews. This temporary rule also provides that if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization under 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter.

On January 31, 2020, the Secretary of Health and Human Services (HHS) declared a public health emergency under section 319 of the Public Health Service Act (42 U.S.C. 247d), in response to COVID-19, which is caused by the SARS-CoV-2 virus. 1 On February 24, 2021, the President issued a continuation of the National Emergency concerning the COVID-19 pandemic. 2 Effective July 20, 2021, HHS renewed the determination that “a public health emergency exists and has existed since January 27, 2020 nationwide.”  3 A more detailed background discussion of the COVID-19 pandemic is found in the original temporary rule, as well as in the first extension of this rule, and USCIS incorporates the discussions of the pandemic into this extension with modification. 85 FR 59655; 85 FR 15072.

Since publication of the original temporary rule and first extension, several variants of the virus that causes COVID-19 have been, and continue to be, reported in the United States. 4 Evidence suggests that these variants may spread more quickly and easily than others and at least one variant may be associated with an increased risk of death. 5 The COVID-19 Delta variant was first found in India in October 2020. 6 Cases were discovered in the United States in late January 2021, and Delta has quickly become the predominant virus strain in the United States. 7 It was labeled a Variant of Concern (VOC) by the HHS SARS-CoV-2 Interagency Group (SIG), which defines VOCs as those with evidence of increased transmissibility and severe disease, reduced effectiveness of treatments or vaccines, and diagnostic detection failures. 8

As of September 9, 2021, there have been approximately 222,406,582 cases of COVID-19 identified globally, resulting in approximately 4,592,934 deaths. Approximately 40,152,521 cases have been identified in the United States, with about 1,297,399 new cases identified in the 7 days preceding September 5th, and approximately 646,131 reported deaths due to the disease. 9 In the week preceding September 5th, the United States was the country that reported the highest number of new cases, with a 38 percent increase. 10

On August 23, 2021, the U.S. Food and Drug Administration (FDA) granted approval for the Pfizer-BioNTech COVID-19 vaccine for individuals 16 years and older, now marketed as Comirnaty. 11 Prior to this, the FDA had issued emergency use authorizations (EUAs) for three COVID-19 vaccines, including the Pfizer-BioNTech vaccine. 12 The two other vaccines that continue to be authorized for emergency use are produced by Moderna and Janssen. 13 The Pfizer-BioNTech and Moderna vaccines require two doses to be effective at preventing COVID-19 illness. 14 The Janssen vaccine is a single dose. 15 As of September 9, 2021, approximately 177,433,044 people in the United States had completed a COVID-19 vaccination regimen. 16 While the vaccine is now widely accessible in the United States, geographic data indicates a wide disparity in the percentages of fully vaccinated individuals by state, ranging from 39.6 percent in Alabama to 68.4 percent in Vermont, not taking into account United States territories. 17 Health experts still do not know what percentage of people in the U.S. will need to be vaccinated before enough individuals in the community are protected to meaningfully reduce the spread of the disease from person to person, how effective the vaccines are against new variants, and how long the vaccines protect people. 18 Furthermore, hospitalization and mechanical respiratory support may still be required in severe cases of COVID-19 illness, irrespective of vaccination status. 19

Ongoing research demonstrates that while there is high vaccine effectiveness, fully vaccinated individuals continue to experience breakthrough COVID-19 infections and may be either symptomatic or asymptomatic. 20 As of April 30, 2021, approximately 10,262 breakthrough infections were reported from 46 U.S. states and territories. 21 This is likely a substantial undercount of cases, as CDC states that the current national surveillance system relies on voluntary reporting and data are only available for a small segment of reported cases. 22 The data are further limited because on May 01, 2021, the CDC transitioned from tracking all reported COVID-19 vaccine breakthrough infections to only those among patients who are hospitalized or die. 23 As of August 30, 2021, CDC data from 49 U.S. states and territories indicates 12,908 patients with patients with SARS-CoV-2 breakthrough infections were hospitalized or died. 24 Testing is available to confirm suspected cases of COVID-19 infection. At present, the time it takes to receive results varies based on, among other factors, type of test used, laboratory capacity, and geographic location. 25 CDC guidance states that individuals who were exposed to a person with COVID-19 may later develop symptoms and should self-quarantine for 14 days, even with receipt of negative test results. 26

There are also multiple variants of the virus that have resulted in COVID-19 infections in the United States, including the now predominant Delta variant. 27 While vaccination is key in preventing severe disease like hospitalization or death, it may be less effective in preventing infection or transmission of the Delta variant since it is more contagious. 28 Significant Delta variant-related outbreaks have occurred in the United States in recent months, most recently in Massachusetts after multiple large-scale summer events were held from July 3-17, 2021. 29 After these events, 469 individuals contracted the virus, 74 percent of whom were fully vaccinated, and the outbreak was a major catalyst in the CDC's subsequent guidance to resume indoor mask mandates. 30 According to statistical models and genomic surveillance programs, the Delta variant now accounts for approximately 98.9 percent of new cases nationally and current data shows that it is having a disproportionately severe impact on unvaccinated populations. 31

There are numerous challenges to resuming pre-COVID-19 operations, largely due to the emergence of the Delta variant. CDC has posted guidance for states, businesses, and the general public emphasizing the need for continued mask mandates on public transportation and airplanes, as wearing masks that completely cover the mouth and nose reduces the spread of COVID-19. 32 CDC is also encouraging restaurants and bars to maintain social distancing and mask rules and asking individuals to avoid large events and gatherings. 33 As a result of CDC's renewed mask guidance, the Office of Management and Budget (OMB) issued renewed mask guidelines on July 27, 2021, for employees, contractors, and visitors to Federal buildings which went into effect for DHS on July 28, 2021. 34

Further, CDC predictive modeling forecasts a continued national increase in new cases, hospitalizations, and deaths over four week intervals. By the week ending October 2, 2021, forecasts expect a weekly increase of approximately 430,000 to 1,520,000 new cases, 6,400 to 19,500 new hospitalizations, and 6,900 to 18,000 new deaths, taking into account variations in social distancing and prevention measures across states. Variations beyond social distancing, including the reopening of schools, may also have an impact on these rates. 35 Studies conducted early in the pandemic indicated low rates of transmission among children and as of September 9, 2021, approximately 62.5 percent of individuals 12 years of age and older were fully vaccinated. 36 Since these early studies, infection rates have increased as opportunities for transmission, including school and summer camp attendance, expanded. 37 It has been reported that at least 1,000 schools across 35 states have closed for in-person learning because of COVID-19 since the beginning of the 2021 school year. 38 In order to minimize the spread, CDC currently recommends screening, physical distancing, taking precautions when participating in team or close contact sports, and consistent mask use, as inconsistent mask policies have contributed to school outbreaks. 39 Finally, as the annual influenza season approaches, questions and concerns over increased transmission of SARS-CoV-2 and decreases in immunity remain. CDC currently recommends a booster shot beginning in the fall of 2021 for certain individuals who received the Pfizer or Moderna vaccines.). 40 CDC's decision to begin booster shots in the fall of 2021 is due to the current information about the vaccine effectiveness and the impact of variants on vaccine effectiveness. 41 A recent study indicated that the infectivity and morbidity rates of COVID-19 are higher in colder climates and the transmissibility of the virus is affected by meteorological factors such as temperature and humidity. 42 This, alongside the increased demand for healthcare resources due to seasonal influenza and the low likelihood that herd immunity will be achieved in 2021, should be taken into account when developing future intervention measures. 43

USCIS continues its efforts to protect the health and safety of the employees and the public, including: Requiring facial covers for all employees and members of the public above the age of two;  44 limiting the number of employees and members of the public in the office; posting social distance guidelines and asking visitors to answer health screening questions before entering; currently conducting interviews from separate offices to ensure that employees are not in the same room as members of the public; and installing plexiglass where necessary to provide a barrier for employees when social distancing is not possible.

Between March 10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum interviews, for a total of 16,900 interviews since September 23, 2020. 45 The original temporary rule, implemented on September 23, 2020, and its extension implemented on March 22, 2021, and other noted public safety measures have helped mitigate the impact of COVID-19 and have been effective in keeping our workforce and the public safe. As of August 9, 2021, there have been 1,927 confirmed cases of COVID-19 exposure among USCIS employees and contractors. The USCIS exposure rate (6.8%) remains below the national average (10.6%) as of August 7, 2021.

Therefore, DHS has determined that it is in the best interest of the public and USCIS employees and contractors to extend the temporary rule for another 180 days. Under this extension with modification, asylum applicants who are unable to proceed with the interview in English will ordinarily be required to proceed with government-provided telephonic contract interpreters provided the applicants speak one of the 47 languages found on the Required Languages for Interpreter Services Blanket Purchase Agreement/U.S. General Services Administration Language Schedule (“GSA Schedule”). If the applicant does not speak or elects to speak a language not on the GSA Schedule, the applicant will be required to bring his or her own interpreter who is fluent in English to the interview and the elected language not on the GSA schedule. DHS is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS' discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable. Specifically, if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter.

DHS incorporates into this second extension with modification, the justifications, as well as the discussion on the benefits of providing telephonic contract interpreters in reducing the risk of contracting COVID-19 for applicants, attorneys, interpreters, and USCIS employees from the original temporary rule.

DHS has determined that there are reasonable grounds for considering potential exposure to SARS-CoV-2, including any emerging variants, as a public health concern and that these grounds are sufficient to continue to modify the interpreter requirement for asylum applicants to lower the number of in-person attendees at asylum interviews. For 180 days following publication of this temporary final rule, DHS will continue to require non-English speaking asylum applicants appearing before USCIS to proceed with the asylum interview using USCIS' interpreter services if they are fluent in one of the 47 languages as discussed in the temporary rule at 85 FR at 59657. 47 DHS is also amending 8 CFR 208.9(h)(1) by allowing, in USCIS' discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable. In these limited circumstances, if a USCIS interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. The interpreter will be required to follow USCIS COVID-19 protocols in place at the time of the interview, including sitting in a separate office. Once this rule is no longer in effect, asylum applicants unable to proceed with an interview in English before a USCIS asylum officer will be required to provide their own interpreters under 8 CFR 208.9(g).

Allowing an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable is important and to the benefit of the applicant for several reasons. In some instances, due to a variety of issues including competing demands in other caseloads, contractor availability, and an increased demand for certain languages, USCIS may have knowledge in advance of the interview, that a contract interpreter will not be available for a certain language during the time of the interview. In those instances, USCIS may notify the applicant that an interpreter is unavailable and give the applicant an opportunity to provide their own interpreter for that interview and not cause further delay in the case. This will help reduce unnecessary reschedules and prolonged delays and will help alleviate the burden rescheduling the interview could place on all parties involved, including the applicant, the applicant's representative (if applicable), and the local USCIS office. Providing advance notice of the unavailability of an interpreter and the opportunity for applicants to provide their own interpreter will make the process more efficient, reduce the number of delays, and allow applicants to proceed with their interview. This modification to the government-provided telephonic interpreter requirement will not disadvantage applicants who cannot provide their own interpreter. Such an applicant would be in the same position they would have been without this change to the regulation, and if an applicant is unable to locate a competent interpreter once notified of the unavailability of a contract interpreter, the interview will be rescheduled and the reschedule delay will be attributed to USCIS for purposes of employment authorization.

While USCIS cannot safely accommodate every interview being conducted if all applicants are required to bring an interpreter in person, as explained in this preamble, in these limited circumstances where there is advance knowledge of the unavailability of a contract interpreter and an applicant is able to locate a competent interpreter, USCIS may, within its discretion, accommodate the applicant's interpreter by following the same COVID-19 protocols in place at the time of interview that allow applicants and those necessary to participate in the interview to attend interviews in person safely. USCIS will continue to apply the COVID-19 protocols in place at the time of the interview, including relying on available technology to ensure that the officer, applicant, interpreter, witnesses, and legal representative sit in separate rooms to fully and safely participate in the interview while maintaining social distancing. 48 Interpreters attending appointments with applicants under these limited circumstances will also be expected to follow the USCIS Visitor Policy requiring face coverings, maintaining social distancing during screening and while in USCIS space, and other guidance regarding exposure to COVID-19. 49 This is consistent with current practices for an applicant who either does not speak a language on the GSA Schedule or elects to speak a language that is not on the GSA Schedule, and thus is required to bring his or her own interpreter to the interview who is fluent in English and the elected language (not on the GSA Schedule).

This rule's modification to 8 CFR 208.9(h)(1), giving USCIS discretion to allow asylum applicants to bring their own interpreter when a contract interpreter is unavailable will help advance the agency's mission to fairly adjudicate immigration benefits. By building in flexibility for USCIS when an interpreter fluent in a language included in the GSA Schedule will be unavailable at the time of an asylum interview, USCIS will be better positioned to leverage its resources. In practice this will involve asylum offices evaluating their office space capacity and available asylum staff on a continuous basis to schedule cases in a manner that is consistent with social distancing guidelines and other noted public safety measures. Because USCIS will not schedule more cases than capacity permits under the COVID-19 guidelines, exceptions made to the government-contract interpreter requirement under this temporary final rule should not result in increased exposure or individuals occupying the same physical space at a given time. These practices will also help address the recent emergence of the Delta variant, which as previously discussed, presents numerous challenges to resuming pre-COVID-19 operations, and which can be mitigated through the safety measures currently employed by USCIS. 50 USCIS will continue to employ the same space planning and scheduling mechanisms to factor in the limited cases where USCIS is unable to provide a contract interpreter. USCIS will therefore have more flexibility to adapt to operational demands by proactively addressing the needs of applicants who would otherwise remain uninterviewed.

Given the unique nature of the pandemic and the multiple challenges it has presented in the context of USCIS operations, the agency has had to modify its policies and procedures to adapt. Through the original temporary final rule and the first extension, USCIS adapted its procedures to keep the workforce and public safe while also striving to serve the customer. USCIS has adapted in other ways by developing electronic workflows for conducting interviews and completing the adjudication, and by monitoring language trends and interpreter availability. This second extension with the modification for applicants to bring their own interpreter under certain circumstances, is in keeping with the original goals of the temporary final rule, and gives the agency an opportunity to more effectively meet the needs of individuals seeking protection.

DHS noted in the original temporary final rule and first extension that it would evaluate the public health concerns and resource allocations to determine whether to extend the rule. DHS has determined that extending this rule is necessary for public safety, and accordingly, DHS is extending this rule for 180 days unless it is further extended at a later date. This temporary rule continues to apply to all asylum interviews conducted by USCIS across the nation. USCIS has determined that an extension of 180 days is appropriate given that: (1) The pandemic is ongoing;  51 (2) several variants of the virus are circulating in the United States, with the highly contagious Delta variant as the dominant strain;  52 (3) while vaccines are widely available, data indicates a wide disparity in the percentages of fully vaccinated individuals by state, and fully vaccinated individuals continue to experience breakthrough SARS-CoV-2 infections;  53 and (4) certain variables, including the reopening of schools and cold weather seasonal changes, are likely to cause an increase in COVID-19 infections. 54 Health experts are still learning how easily variants of the virus can be transmitted and how effectively the currently approved and authorized vaccines provide protection. Prior to the expiration of this extension to the temporary rule with modification, DHS will again evaluate the public health concerns and resource allocations to determine if another extension is appropriate to further the goals of promoting public safety. If necessary, DHS would publish any such extension via a rulemaking in the Federal Register .

DHS is issuing this extension, including the modification to allow, in USCIS' discretion, an applicant for asylum to provide an interpreter when a USCIS interpreter is unavailable, as a temporary final rule pursuant to the APA's “good cause” exception. 5 U.S.C. 553(b)(B). DHS may forgo notice-and-comment rulemaking and a delayed effective date because the APA provides an exception from those requirements when an agency “for good cause finds . . . that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(B); see 5 U.S.C. 553(d)(3).

The good cause exception for forgoing notice-and-comment rulemaking “excuses notice and comment in emergency situations, or where delay could result in serious harm.” Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004). Although the good cause exception is “narrowly construed and only reluctantly countenanced,” Tenn. Gas Pipeline Co. v. FERC, 969 F.2d 1141, 1144 (D.C. Cir 1992), DHS has appropriately invoked the exception in this case, for the reasons set forth in this temporary final rule. Additionally, on multiple occasions, agencies have relied on this exception to promulgate both communicable disease-related  55 and immigration-related  56 interim rules, as well as extend such rules. 57

DHS is publishing this second extension, with modification, as a temporary final rule because of the continuing COVID-19 crisis and incorporates into this extension with modification the discussion of good cause from the original and extension temporary rules. As discussed earlier in this preamble, on February 24, 2021, President Biden issued a notice on the continuation of the state of the National Emergency concerning the COVID-19 pandemic. 58 Effective July 20, 2021, the Secretary of Health and Human Services renewed the determination that “a public health emergency exists and has existed since January 27, 2020 nationwide.”  59

As of September 9, 2021, there have been approximately 222,406,582 cases of COVID-19 identified globally, resulting in approximately 4,592,934 deaths; approximately 40,152,521 cases have been identified in the United States, with about 1,297,399 new cases being identified in the 7 days preceding September 5th, and approximately 646,131 reported deaths due to the disease. 60 In the week preceding September 5th, the United States was the country that reported the highest number of new cases, with a 38 percent increase. 61

Additionally, at least four notable variants of the virus that causes COVID-19 have been reported in the United States, including the now predominant Delta variant. 62 Evidence suggests that these variants may spread faster and more easily than others and at least one variant may be associated with an increased risk of death. 63 Although vaccines are now widely accessible, there is wide disparity in the percentages of vaccinated individuals by state, 64 and experts still do not know the percentage needed to reach herd immunity, as well as how effective the vaccines are against new variants, and how long vaccines protect people. 65

Ongoing research demonstrates that while there is high vaccine effectiveness, fully vaccinated individuals continue to experience breakthrough COVID-19 infections and may be either symptomatic or asymptomatic. 66 As of April 30, 2021, 10,262 SARS-CoV-2 breakthrough infections were reported from 46 U.S. states and territories. 67 This data is limited, however, because most breakthrough infections are voluntarily reported, and on May 1, 2021, CDC began tracking breakthrough infections only where a patient is hospitalized or dies. 68 As of August 30, 2021, CDC received reports from 49 U.S. states and territories of 12,908 patients with SARS-CoV-2 breakthrough infections who were hospitalized or died. 69

The provision allowing an applicant for asylum, in USCIS' discretion, to provide an interpreter when a USCIS interpreter is unavailable, is a measure that allows USCIS and the applicant for asylum to proceed with the interview under the same COVID-19 mitigation procedures that are employed when accommodating other participants in the asylum interview. As previously discussed in Section III of the preamble, the COVID-19 pandemic is a rapidly changing situation, and it is difficult to anticipate how the disruptions caused by the crisis will manifest themselves. Given the unique nature of the pandemic and the multiple challenges it has presented in the context of USCIS operations, the agency has had to modify its policies and procedures to adapt to the COVID-19 public health emergency. USCIS expects the provision to allow USCIS to address this rapidly changing situation caused by the COVID-19 pandemic with more flexibility to best respond to the continuing stream of new asylum applications and the need to adjudicate them promptly. As stated previously, competing demands in other caseloads, contractor availability, and an increased demand for certain languages, have impacted USCIS' ability to consistently provide contract interpreters to applicants at the time of the interview. Throughout the COVID-19 pandemic, USCIS has continued to experience an increase in the affirmative caseload, which, in turn, has created challenges in accommodating the interpretation needs of asylum applicants. Surges in other case types have also required USCIS to divert contract interpreter resources away from affirmative asylum. These increases necessitate an immediate change to address a growing and more diverse population of applicants requesting asylum and needing interpreters.

As discussed in Section III of the preamble, an applicant who either does not speak or elects to speak a language not on the GSA Schedule is required to bring his or her own interpreter to the interview who is fluent in English and the elected language not on the GSA Schedule. Allowing an asylum applicant, in USCIS' discretion, to provide an interpreter when a USCIS interpreter is unavailable, is the equivalent to and is consistent with the practice of allowing an applicant to do the same when a USCIS interpreter is available. It is also unnecessary to seek comment on the change this temporary rule makes to now allow, in USCIS' discretion, an asylum applicant to provide an interpreter when a USCIS interpreter is unavailable, because the obligation of the applicant will not have changed, the applicant will benefit from being allowed to bring their own interpreter, and the applicant would be in the same position they would have been without this action.

For the reasons stated, including the need to be responsive to the operational demands and challenges caused by the ongoing COVID-19 pandemic, DHS believes it has good cause to determine that ordinary notice and comment procedure is impracticable for this temporary action, including the modification, and that moving expeditiously to make this change is in the best interest of the public.

Based on the continuing health emergency, DHS has renewed mask guidelines and other mitigation measures, and concluded that the good cause exceptions in 5 U.S.C. 553(b)(B) and (d)(3) apply to this temporary final rule extension with modification. Delaying implementation of this rule until the conclusion of notice-and-comment procedures and the 30-day delayed effective date would be impracticable and contrary to the public interest due to the need to continue agency operations, while continuing to mitigate the risks associated with the spread of COVID-19. Additionally, certain variables, including the reopening of schools, cold weather seasonal changes, and the annual influenza, are likely to cause an increase in infections.

As of August 8, 2021, USCIS had 406,801 asylum applications, on behalf of 638,893 noncitizens, pending final adjudication. Over 94 percent of these pending applications are awaiting an interview by an asylum officer. The USCIS backlog will continue to increase at a faster pace if USCIS is unable to safely and efficiently conduct asylum interviews. 70

This temporary final rule extension with modification is promulgated as a response to COVID-19 and emerging variants. It is temporary, limited in application to only those asylum applicants who cannot proceed with the interview in English, and narrowly tailored to mitigate the spread of COVID-19. To not extend such a measure could cause serious and far-reaching public safety and health effects.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). A regulatory flexibility analysis is not required when a rule is exempt from notice-and-comment rulemaking.

This temporary final rule extension with modification will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

OMB's Office of Information and Regulatory Affairs has determined that this action is not a major rule as defined by Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (also known as the Congressional Review Act). 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

Executive Orders (E.O.) 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (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, reducing costs, harmonizing rules, and promoting flexibility. This rule is designated a significant regulatory action under E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this regulation. DHS, however, is proceeding under the emergency provision of Executive Order 12866 Section 6(a)(3)(D) based on the need to move expeditiously during the current public health emergency.

This action will continue to help asylum applicants proceed with their interviews in a safe manner, while protecting agency staff. As a result of the first temporary rule extension, between March 10, 2021, and August 8, 2021, USCIS conducted 9,136 asylum interviews, with interpreters available telephonically. This second extension of the temporary rule with modification is not expected to result in any additional costs to the government. In addition, even with the provision that would permit, at USCIS' discretion, an applicant for asylum to provide an interpreter when a contract interpreter is unavailable, there are no additional costs to the applicant relative to what would be the requirements if the earlier temporary final rule (TFR) were not extended. As discussed previously in Section III of the preamble, in those limited circumstances where a USCIS interpreter is unavailable and USCIS permits the applicant to provide their own interpreter, the interpreter will be required to follow USCIS COVID-19 protocols in place at the time of the interview, including, but not limited to, sitting in a separate office. Following those COVID-19 protocols will not result in any additional costs for either the applicant or the interpreter.

As previously explained, the contract interpreters will be provided at no cost to the applicant. USCIS already has an existing contract to provide telephonic interpretation and monitoring in interviews for all of its case types. USCIS has provided monitors for many years. Almost all interviews that utilize a USCIS provided interpreter after this rulemaking would have had a contracted monitor under the status quo. As the cost of monitoring and interpretation are identical under the contract and monitors will no longer be needed for these contract interpreter interviews, the extension of this portion of this rule is projected to be cost neutral or negligible as USCIS is already paying for these services even without this rule.

USCIS anticipates that there would only be limited circumstances where a contract interpreter would be unavailable. As previously discussed in Section III of the preamble, in those limited circumstances where a contract interpreter is unavailable, USCIS will either reschedule the interview and attribute the interview delay to USCIS for the purposes of employment authorization pursuant to 8 CFR 208.7, or USCIS may, in its discretion, allow the applicant to provide an interpreter. In such cases, the applicant would be in the same position they would have been without this action.

DHS recognizes there are both quantitative and qualitative benefits that could be realized by providing an applicant for asylum the opportunity to bring their own interpreter when a contract interpreter is unavailable, such as the costs avoided that would be incurred through rescheduling if a contract interpreter is unavailable—both for the applicant and USCIS, and the overall positive effect on applicants of having their asylum application timely adjudicated. Once this rule is no longer in effect, asylum applicants unable to proceed with an interview before a USCIS asylum officer in English will again be required to provide their own interpreters under 8 CFR 208.9(g).

This rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in section 3(a) and 3(b)(2) of Executive Order 12988.

This rule does not propose new, or revisions to existing, “collection[s] of information” as that term is defined under the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320. As this action would only span 180 days, USCIS does not anticipate a need to update the Form I-589, Application for Asylum and for Withholding of Removal, despite the existing language on the form instructions regarding interpreters, because it will be primarily rescheduling interviews that were cancelled due to COVID-19. USCIS will post updates on its I-589 website, https://www.uscis.gov/i-589, and other asylum and relevant web pages regarding the new interview requirements in this regulation, as well as provide personal notice to applicants via the interview notices issued to applicants prior to their interview.

Accordingly, for the reasons set forth in the preamble, the Secretary of Homeland Security amends 8 CFR part 208 as follows:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777 airplanes. The NPRM published in the Federal Register on April 9, 2021 (86 FR 18479). The NPRM was prompted by a report that an operator found solid rivets with missing heads at the left buttock line 25 on the sloping pressure deck web. In the NPRM, the FAA proposed to require doing a detailed inspection of the left- and right-side sloping pressure deck at certain stations for any damaged solid rivets, and applicable on-condition actions. The FAA is issuing this AD to address damaged or missing solid rivet heads on the sloping pressure deck web, which could result in loss of sloping pressure deck panels, causing decompression and pressure loss, and loss of the hydraulic systems in the area for wheel brakes (both normal and alternate) and steering, and potentially leading to runway departure and adversely affecting the structural integrity of the airplane.

The FAA received comments from four commenters, including Boeing, American Airlines (AA), FedEx, and United Airlines (UAL). The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing requested a revision to the on-condition actions statement in the third sentence of the “Related Service Information Under 1 CFR part 51” paragraph of the NPRM. Boeing stated that the repetitive detailed inspections cover “two rows of fasteners common to the affected stiffener,” instead of “two rows of blind fasteners and solid rivets common to the affected stiffener.” Boeing commented that the blind fastener repair option is allowed only under Condition 2 of Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020, which is limited to findings of a maximum of nine damaged rivets within the same stiffener. Boeing commented that the damage rivets must be within the same fastener row, and therefore, the compliance action does not allow for blind fasteners to be installed in both fastener rows of an affected stiffener. Boeing commented that the revised language improves clarity of the on-condition actions because it does not imply that blind fasteners can be installed in both fastener rows of an affected stiffener.

The FAA agrees to revise the on-condition actions statement in the “Related Service Information Under 1 CFR part 51” paragraph of this final rule for the reasons provided above; the FAA has revised this final rule accordingly.

Boeing requested a revision to the on-condition work-hours for replacing a blind fastener. Boeing stated that the blind fastener replacement does not require internal access, and therefore, the 328 work-hours can be reduced to 11 work-hours as noted in Boeing Information Notice 777-53A0093 IN 01, dated January 27, 2021.

The FAA agrees to revise the on-condition work-hours for replacing a blind fastener for the reason provided above; this final rule has been revised accordingly.

AA asked if the rivet problems specified in the NPRM affect any airplanes in the AA livery, particularly N-numbers (nose numbers) so it can keep better track on preflights.

For clarification, this AD does affect AA airplanes because its fleet includes Model 777-200 and -300ER airplanes. This AD applies to all Model 777-200, -200LR, -300, -300ER, and 777F airplanes, as specified in paragraph (c) of this AD. Since all Model 777 airplanes are affected, it is not necessary to identify airplanes by N-numbers. The FAA has not changed this AD in this regard.

FedEx Express (FedEx) agreed with the intent of the proposed AD, but found the 16-month compliance time for the initial inspection does not align with its heavy maintenance visits and requested an extension. FedEx stated that its current heavy maintenance visits would be the suitable time to accomplish the actions in the proposed AD, and that accomplishing the initial inspection in the proposed AD may require performing special maintenance visits. FedEx commented that it currently has 26 Model 777F airplanes that have accumulated more than 32,000 flight hours, and therefore, will be required to accomplish the initial inspection within the 16-month initial compliance time.

FedEx also commented that since Boeing found the missing rivet heads from a retired Model 777-200 airplane, the current in-service Model 777 airplanes can operate with missing rivets without experiencing adverse structural complications since the issue was not discovered until after that airplane retired from service.

The FAA disagrees with the commenter's request to extend the initial compliance time. The FAA cannot assume that Model 777 airplanes can operate with missing rivet heads without experiencing adverse structural complications. The FAA determined that the compliance time, as proposed, represents the maximum interval of time allowable for the affected airplanes to continue to safely operate before the initial and repetitive inspections and on-condition actions are done. If the inspection interval were based on maintenance schedules, which vary among operators, there would be no assurance that the airplane would be inspected and repaired during that maximum interval. In addition, in developing an appropriate compliance time, the FAA coordinated with the manufacturer to provide a compliance time with an acceptable level of safety. However, under the provisions of paragraph (i) of this AD, the FAA will consider requests for approval of an extension of the compliance time, if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. The FAA has not changed this AD in this regard.

FedEx requested that the FAA revise note 1 to paragraph (g) in the proposed AD to clarify that the proposed AD requires accomplishment of the actions only specified in Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020. FedEx stated that note 1 does not clearly distinguish the required actions from the guidance service information for accomplishing the actions in the proposed AD.

The FAA disagrees with the commenter's request to change the note. For clarification, paragraph (g) of this AD states the required actions for applicable airplanes, and only specifies to do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020. The FAA clearly states that note 1 to paragraph (g) of this AD is guidance and Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020, is only referred to in that note. The FAA has not changed this AD in this regard.

UAL indicated support for the NPRM, but requested clarification as to what to do if a Condition 4 is found in one stiffener and a Condition 3 is found in another stiffener as referenced in Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020. UAL stated that Condition 4 requires operators to contact Boeing and request repair instructions and to do the repair if any damaged rivet is found on both fastener rows within the same stiffener.

In addition, UAL requested the following clarifications.

• When contacting Boeing, should operators provide all details of affected stiffeners regardless of the condition identified in Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020? UAL commented that Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020, appears to request details associated with a specific stiffener only.

• Where a Condition 4 discrepancy is present, is it acceptable to continue with the repair of an adjacent Condition 3 stiffener discrepancy or is further manufacturer approval required?

UAL stated that it assumes that the conservative approach would be for the operator to provide all details of affected stiffeners to the manufacturer and then the manufacturer will provide approval to repair both Conditions 3 and 4, as referenced in Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020. UAL asserted that clarification will help operators determine which information is required by the manufacturer to make a repair assessment, and it will also provide clarification as to what to do in the event of a parallel process involving both Condition 3 and Condition 4 repair.

The FAA provides the following clarification for the commenter. This AD requires operators to use Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020, to perform the actions required in this AD. Boeing Alert Service Bulletin 777-53A0093, dated November 24, 2020, is for guidance only. Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020, does not specify any limitations on a Condition 3 repair based on any conditions found on another stiffener. When a Condition 3 is found, the FAA finds no issues with continuing with the Condition 3 repair of replacing all solid rivets even in the event a Condition 4 is found in an adjacent stiffener. Regarding the question on the details to provide to Boeing for a repair, as specified in Note 4. of 5.A., “General Information,” of Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020, operators can refer to Boeing Service Letter 777-SL-51-013, Damage Reporting and Repair Plan/Design Guidelines, which describes what information must be provided to Boeing before a structural repair can be provided. The structural repair must be approved by the FAA or the Boeing Company Organization Designation Authorization (ODA) as specified in paragraph (h)(2) of this AD. The FAA has not revised this AD in this regard.

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

The FAA reviewed Boeing Alert Requirements Bulletin 777-53A0093 RB, dated November 24, 2020. This service information specifies procedures for doing a detailed inspection of the left- and right-side sloping pressure deck from station (STA) 1245 to STA 1287 for any damaged ( i.e., missing solid rivet heads, cracking or deformation of the solid rivet, or gaps between the solid rivet head and the sloping pressure deck surface) solid rivets, and applicable on-condition actions. On-condition actions include repeating the detailed inspection of the left-and right-side sloping pressure deck from STA 1245 to STA 1287 for any damaged solid rivet; repetitive detailed inspections of two rows of fasteners common to the affected stiffener for any damaged solid rivet or damaged blind fastener; replacing solid rivets or blind fasteners; and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 224 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all CF34-8C1, CF34-8C5, CF34-8C5A1, CF34-8C5B1, CF34-8C5A2, CF34-8C5A3, CF34-8E2, CF34-8E2A1, CF34-8E5, CF34-8E5A1, CF34-8E5A2, CF34-8E6, and CF34-8E6A1 model turbofan engines with a certain combustion outer liner shell installed. The NPRM published in the Federal Register on January 10, 2020 (85 FR 1292). The NPRM was prompted by reports of two IFSDs on GE CF34-8C and -8E model turbofan engines. These IFSDs were due to the cracking and collapsing of the combustion outer liner shell, which resulted in thermal distress of the high-pressure turbine and low-pressure turbine (LPT) including burn-through of the LPT case. In the NPRM, the FAA proposed to require a BSI or visual inspection of the combustion outer liner shell and, depending on the results of the inspection, possible replacement of the combustion outer liner shell. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from four commenters. The commenters were Horizon Air, Japan Airlines, Endeavor Air, and the Air Line Pilots Association, International (ALPA). The following presents the comments received on the NPRM and the FAA's response to each comment.

Horizon Air requested the FAA revise the initial inspection threshold in proposed paragraph (g)(2) of the NPRM to “17,499 flight hours (FHs) time since new (TSN) or time since repair (TSR), or 12,000 flight cycles (FCs) TSN or TSR, whichever occurs later.” Horizon Air reasoned that the initial inspection threshold in paragraph (g)(2) of the proposed AD would unfairly penalize operators, like Horizon Air, with high FH to FC ratios. Horizon Air further stated that using the higher FH to FC ratios, the proposed 17,499 FHs TSN or TSR inspection threshold would equate to approximately 11,000 engine FCs. This FC value is substantially below the GE targeted initial engine shop visit threshold of 12,000 to 14,000 FCs and would potentially result in a significant increase in the number of engine shop visits over the 6- to 12-year operating lifespan of each engine.

The FAA partially agrees. While the failure mode is partially related to FCs, the compliance is published in FHs to align with existing maintenance intervals. Incorporating both measures as intervals into this AD is impractical; however, operators may request an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (k) of this AD to use alternate intervals. The FAA did not change this AD as a result of this comment.

Horizon Air requested the FAA revise paragraph (h), Installation Prohibition, as proposed in the NPRM, so it does not conflict with the proposed required actions specified in paragraph (g)(1) of the NPRM. Horizon Air stated that paragraph (h) of the proposed AD prohibits installation of a combustion outer liner shell with greater than 17,500 FHs TSN or TSR, without first inspecting it in accordance with paragraph (g)(1) of the proposed AD. However, paragraph (g)(1) of the proposed AD requires inspection of the combustion outer liner shell within 500 engine FHs TSN or TSR for those combustion outer liner shells that have accumulated 17,500 FHs TSN or TSR. Horizon Air concluded that the 18,000 FHs TSN or TSR limitation specified in paragraph (g)(1) of the proposed AD conflicts with the 17,500 FHs TSN or TSR limit specified in paragraph (h) of the proposed AD.

The FAA disagrees. The initial inspection threshold is 17,500 FHs for affected engines. This AD provides a grace period of 500 FHs for in-service engines to prevent the unintentional grounding of airplanes with affected engines. The FAA did not change this AD as a result of this comment.

Horizon Air requested the FAA petition GE for a terminating action to the inspection requirements in the proposed AD. Horizon Air commented the financial cost and maintenance burden of performing the repetitive inspections are significant.

The FAA disagrees. The FAA considers this AD to be interim action and will consider further rulemaking if the manufacturer develops a terminating action. The FAA included all estimated costs in the Costs of Compliance section in the preamble of this AD. The FAA did not change this AD as a result of this comment.

Horizon Air, Japan Airlines, and Endeavor Air requested the FAA update references to GE CF34-8E Alert Service Bulletin (SB) 72-A0221 and GE CF34-8C Alert SB 72-A0335 in the Required Actions section, paragraph (g), of the proposed AD. Japan Airlines requested that GE CF34-8E-AL S/B 72-A0221, Original Issue, dated June 27, 2019, be added to the compliance paragraphs because the Original Issue and R01 have the same inspection methods and limits. Horizon Air requested that the FAA reference only GE CF34-8E Alert SB 72-A0221 R01 in paragraph (g) of the proposed AD and add a Previous Credit section to allow previous compliance using the Original Issue. Endeavor Air requested that the FAA reference the latest revision of GE CF34-8C Alert SB 72-A0335 in proposed paragraph (g). Endeavor Air indicated that GE planned to issue R02 of CF34-8C Alert SB 72-A0335 on February 24, 2020.

The FAA agrees to reference the latest revision of these Alert SBs, which is R02 for both GE CF34-8C Alert SB 72-A0335 and GE CF34-8E Alert SB 72-A0221, in paragraph (g) of this AD. The FAA disagrees with the need to reference prior revisions of these Alert SBs in paragraphs (g) of this AD but agrees to add Credit for Previous Actions, paragraph (j), to this AD to allow credit for performing inspections prior to the effective date of this AD. These changes impose no additional burden on operators who are required to comply with this AD.

Japan Airlines requested that the FAA clarify whether the inspection should occur “before” or “within” 500 FHs after the effective date of this AD. Japan Airlines reasoned that the service bulletin specifies to inspect “before” 500 FHs, while the NPRM proposed to inspect “within” 500 FHs.

The FAA agrees. The FAA revised Required Actions, paragraphs (g)(1) and (2) of this AD to specify, “before accumulating 500 engine FHs.”

ALPA expressed support for the NPRM as written.

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

The FAA reviewed General Electric CF34-8C Alert SB 72-A0335 R02 and General Electric CF34-8E Alert SB 72-A0221 R02, both dated February 25, 2020. The Alert SBs specify procedures for performing a BSI of the combustion outer liner shell. These documents are distinct since they apply to different engine models. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

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

The FAA estimates that this AD affects 1,535 engines installed on airplanes of U.S. registry.

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

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the inspection. The agency has no way of determining the number of engines that might need this replacement:

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. Section 311 of the FACT Act added section 615(h), 15 U.S.C. 1681m(h), to the FCRA to address risk-based pricing. Risk-based pricing refers to the practice of setting or adjusting the price and other terms of credit offered or extended to a particular consumer to reflect the risk of nonpayment by that consumer. Information from a consumer report is often used in evaluating the risk posed by the consumer. Creditors that engage in risk-based pricing generally offer more favorable terms to consumers with good credit histories and less favorable terms to consumers with poor credit histories.

Under section 615(h) of the FCRA, a person generally must provide a risk-based pricing notice to a consumer when the person uses a consumer report in connection with an extension of credit and, based in whole or in part on the consumer report, extends credit to the consumer on terms materially less favorable than the most favorable terms available to a substantial proportion of consumers. The risk-based pricing notice is designed primarily to improve the accuracy of consumer reports by alerting consumers to the existence of negative information in their consumer reports so consumers can, if they choose, check their consumer reports for accuracy and correct any inaccurate information. The Federal Reserve Board and the Commission jointly published regulations implementing these risk-based pricing provisions on January 15, 2010. 1 The Rule was then amended in July 2011 to include a requirement that, if a credit score is used in making the credit decision, the creditor must disclose that score and certain information relating to the credit score. 2

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was signed into law in 2010. 3 The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the Consumer Financial Protection Bureau (“CFPB”) the Commission's rulemaking authority under portions of the FCRA. 4 Accordingly, in 2012, the Commission rescinded several of its FCRA rules, which had been replaced by rules issued by the CFPB. 5 The FTC retained rulemaking authority for other rules promulgated under the Acts to the extent the rules apply to motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act  6 predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both. 7 The retained rules include the Risk-Based Pricing Rule, which now applies only to motor vehicle dealers that use consumer reports or credit scores for risk-based pricing. 8 Consumer report or credit score users that are not motor vehicle dealers are covered by the CFPB's rule. 9

On October 8, 2020, the Commission solicited comments on the Risk-Based Pricing Rule. The Commission sought information about the costs and benefits of the Rule, and its regulatory and economic impact. In addition, the Commission proposed amending part 640 to narrow the scope of the Rule to motor vehicle dealers excluded from Consumer Financial Protection Bureau jurisdiction as described in the Dodd-Frank Act and remove examples that did not apply to motor vehicle dealers. The Commission received one comment related to the Risk-Based Pricing Rule. 10

The Commission promulgated the Risk-Based Pricing Rule at a time when it had rulemaking authority for a broader group of consumer report users. While the Dodd-Frank Act did not change the Commission's enforcement authority for the Risk-Based Pricing Rule, it did narrow the Commission's rulemaking authority with respect to the Rule. It now covers only users of consumer reports that are motor vehicle dealers. 11 The amendments in the Dodd-Frank Act necessitate technical revisions to the Risk-Based Pricing Rule to ensure the regulation is consistent with the text of the amended FCRA. Accordingly, the Final Rule amends the Risk-Based Pricing Rule to properly reflect the Rule's scope.

The Final Rule amends section 640.1(a) to narrow the description of the scope of the Risk-Based Pricing Rule to motor vehicle dealers excluded from Consumer Financial Protection Bureau jurisdiction as described in 12 U.S.C. 5519. It does so by replacing the broad term “person” with “motor vehicle dealer,” as defined in amended section 640.2. The term “motor vehicle dealer” replaces “person” throughout the Rule, whenever “person” is used to describe the entity covered by the Rule. In provisions where “person” does not refer to a motor vehicle dealer covered by the Rule, such as sections 640.4(c)(2) and 640.6(b)(2), the term “person” is retained. 12

The Final Rule removes section 640.1(b), which describes the process by which the Commission worked with the Federal Reserve Board to initially issue the Risk-Based Pricing Rule and states the Commission's and the Board's rules are substantively identical. The Final Rule removes this section because the Dodd-Frank Act transferred the Board's rulemaking authority for the Risk-Based Pricing Rule to the CFPB.

The Final Rule amends section 640.2 to add a definition of “motor vehicle dealer” that defines motor vehicle dealers as those entities excluded from the CFPB's jurisdiction under the Dodd-Frank Act. 13 The amendment also updates the definition of “open-end credit” by replacing the statutory reference to 15 U.S.C. 1602(i) with a citation to 15 U.S.C. 1602(j). It also changes references to the Federal Reserve Board's regulation to the CFPB's regulation.

In addition, the Final Rule updates references to the risk-based pricing notices in sections 640.4(a)(1)(viii), 640.4(a)(2)(viii), 640.5(d)(1)(ii)(I), 640.5(e)(1)(ii)(L), and 640.5(f)(iii)(I) from the Board's website to the CFPB's website to reflect the CFPB's authority under the Dodd-Frank Act.

The Rule contains examples that apply to entities no longer within the scope of the Rule due to the Dodd-Frank Act. Retaining these examples might lead to confusion about the actual scope of the Risk-Based Pricing Rule. Accordingly, in addition to changing the term “person” to “motor vehicle dealers” in some examples as discussed above, the Final Rule modifies some of the examples to provide clearer guidance to financial institutions that are covered motor vehicle dealers. For example, the Final Rule removes references to utility companies and charge cards (section 640.2(n)(3)) and to student loans, secured and unsecured credit cards, and fixed and variable rate mortgages (section 640.3(b)(1)(5)). The Final Rule also replaces references to “credit card issuers” with “motor vehicle dealers” (sections 640.4(d)(2); 640.5(a)(2); 640.5(c)(3)). These modifications to the cited examples are not intended to modify the substantive requirements of the Rule, as the examples simply illustrate the Rule's application in a particular context. 14

The sole commenter on the Rule, the East Bay Community Law Center (“East Bay”), stated the Rule is an important tool in ensuring a more accurate credit reporting system. East Bay pointed to research that indicates inaccuracies are common in consumer reports, 15 and cited statements from consumers about the negative impact such inaccuracies can have on their lives. 16 East Bay also presented evidence such inaccuracies can have a greater impact on lower-income and minority consumers. 17 East Bay made two suggestions for additional amendments to the Rule that it argued would help address these problems. 18 First, East Bay suggested the Commission modify the Rule to “disincentivize or prevent credit institutions from using risk-based pricing when offering loans to individuals with poor credit” by requiring “credit institutions [to] raise the credit cut off point, thereby preventing consumers with poor credit from gaining access to potentially predatory contracts.”  19 The Commission shares the commenter's concern about predatory financial practices aimed at people with lower income, and has brought numerous cases to challenge such practices. 20 Such enforcement is ever more important. However, the Risk-Based Pricing Rule's primary purpose is to inform consumers when they have received less favorable terms for credit based on their consumer report or credit score. 21 There is no evidence that, in enacting Section 311 of the FACT Act, Congress intended to discourage or prevent companies from extending credit to consumers with poor ( e.g., below a particular prescribed threshold) or no credit histories, which would be the likely result of any regulation that prevented the use of risk-based pricing for those consumers. 22 Accordingly, the Commission declines to adopt this suggestion.

East Bay also urged the Commission to amend the Rule to require that risk-based pricing notices include “detailed guidance [to consumers] on what specific changes they should make to improve their credit scores and qualify for a better loan.”  23 The Commission agrees that information for consumers about improving their credit is valuable, and provides guidance in its consumer education materials, as does the CFPB. 24 When the consumer's credit score is used in determining pricing, the Rule already requires companies to identify key factors that affected the consumer's credit score. The Commission agrees with East Bay that it is important to make it as easy as possible for consumers to find information to help them improve their credit. The Commission therefore is changing the link provided in the model notice from a general link to the FTC website. In order to better direct consumers to appropriate educational materials on the FTC website that relate specifically to this issue, the Commission is amending its model notice to change the address of the FTC website in the notice to ftc.gov/creditnotice. 25 The Commission has consulted with the CFPB concerning this change to the Commission's model notice.

The Risk-Based Pricing Rule contains information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (“OMB”) regulations that implement the Paperwork Reduction Act (“PRA”). 44 U.S.C. 3501 et seq. OMB has approved the Rule's existing information collection requirements through September 30, 2020 (OMB Control No. 3084-0145). Under the existing clearance, the FTC has attributed to itself the estimated burden regarding all motor vehicle dealers and then shares equally the remaining estimated PRA burden with the CFPB for other persons for which both agencies have enforcement authority regarding the Risk-Based Pricing Rule.

The Final Rule amends 16 CFR part 640 and Appendix A to part 698. The amendments do not modify or add to information collection requirements previously approved by OMB. The amendments make no substantive changes to the Rule, other than to clarify that the scope of the Rule is limited to motor vehicle dealers. The Rule's OMB clearance already reflects that scope. Although the Final Rule slightly amends the model notice, motor vehicle dealers may continue to use existing notices and still comply with the Final Rule. Therefore, the Commission does not believe the amendments substantially or materially modify any “collections of information” as defined by the PRA.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify that the proposed rule will not have a significant impact on a substantial number of small entities. 26 The Commission published an Initial Regulatory Flexibility Analysis in order to inquire into the impact of the Proposed Rule on small entities. 27 The Commission received no responsive comments.

The Commission does not believe this amendment has the threshold impact on small entities. The amendment effectuates changes to the Dodd-Frank Act and will not impose costs on small motor vehicle dealers because the amendments are for clarification purposes and will not result in any increased burden on any motor vehicle dealer. Although the Final Rule adopts a slightly revised model notice, motor vehicle dealers may continue to use any existing notices based on previous models and still comply with the Final Rule. Thus, a small entity that complies with current law need not take any different or additional action under the Final Rule. Therefore, the Commission certifies amending the Risk-Based Pricing Rule will not have a significant economic impact on a substantial number of small businesses.

Although the Commission certifies under the RFA the Final Rule will not have a significant impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration, the Commission nonetheless has determined that publishing a final regulatory flexibility analysis (“FRFA”) is appropriate to ensure the impact of the rule is fully addressed. Therefore, the Commission has prepared the following analysis:

To address the Dodd-Frank Act's changes to the Commission's rulemaking authority, the amendments clarify that the Rule applies only to motor vehicle dealers.

The Commission did not receive any comments that addressed the burden on small entities. In addition, the Commission did not receive any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).

The Commission anticipates many covered motor vehicle dealers may qualify as small businesses according to the applicable SBA size standards. As explained in the IRFA, however, determining a precise estimate of the number of small entities is not readily feasible. No commenters addressed this issue. Nonetheless, as discussed above, these amendments will not add any additional burdens on any covered small businesses.

The amendments impose no new reporting, recordkeeping, or other compliance requirements.

The Commission did not propose any specific small entity exemption or other significant alternatives because the amendment will not increase reporting requirements and will not impose any new requirements or compliance costs.

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

For the reasons stated above, the Federal Trade Commission amends parts 640 and 698 of title 16 of the Code of Federal Regulations as follows:

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. The FACT Act added section 605(h) to the Fair Credit Reporting Act (“FCRA”), which requires a national consumer reporting agency (“CRA”) that receives a request for a consumer report that contains an address substantially different from the address on file for the consumer to notify the requester of the existence of the discrepancy. 1 Section 605(h) also required federal banking agencies, the National Credit Union Administration and the Commission to issue regulations providing guidance regarding reasonable policies and procedures that a user of a consumer report should employ when the user receives a notice of address discrepancy. 2 In 2007, the agencies issued the Address Discrepancy Rule to satisfy this requirement. 3

The Address Discrepancy Rule requires a user of consumer reports to develop and implement reasonable policies and procedures designed to enable the user to form a reasonable belief that a consumer report relates to the consumer about whom it has requested a consumer report, when the user receives a notice of address discrepancy. 4 Users must also develop and implement reasonable policies and procedures for furnishing an address for the consumer that the user has reasonably confirmed as accurate to the CRA from whom it received the notice when the user (1) can confirm the consumer report relates to the consumer about whom the user requested the report, (2) establishes a continuing relationship with the consumer, and (3) regularly furnishes information about the consumer to the CRA. 5

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was signed into law in 2010. 6 The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the Consumer Financial Protection Bureau (“CFPB”) the Commission's rulemaking authority under portions of the FCRA. 7 Accordingly, in 2012, the Commission rescinded several of its FCRA rules, which had been replaced by rules issued by the CFPB. 8 The FTC retains rulemaking authority for other rules promulgated under the FCRA to the extent the rules apply to motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act  9 predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both (“motor vehicle dealers”). 10 The rules for which the FTC retains rulemaking authority include the Address Discrepancy Rule, which now applies only to consumer report users that are motor vehicle dealers. 11 Consumer report users that are not motor vehicle dealers are covered by the CFPB's rule. 12

On September 15, 2020, the Commission solicited comments on the Address Discrepancy Rule as part of its periodic review of its rules and guides. 13 The Commission sought information about the costs and benefits of the Rule, and its regulatory and economic impact. In addition, the Commission proposed to narrow the scope of the Address Discrepancy Rule to motor vehicle dealers excluded from Consumer Financial Protection Bureau jurisdiction as described in the Dodd-Frank Act. 14 The Commission received one comment. 15

The Commission adopted the Address Discrepancy Rule at a time when it had rulemaking authority for a broader group of consumer report users. While the Dodd-Frank Act did not change the Commission's enforcement authority for the Address Discrepancy Rule, it did narrow the Commission's rulemaking authority with respect to the Rule. It now covers only motor vehicle dealers. 16 The amendments in the Dodd-Frank Act necessitate a technical revision to the Address Discrepancy Rule to ensure the regulation is consistent with the text of the amended FCRA. Accordingly, the Final Rule amends the Address Discrepancy Rule to properly reflect the Rule's scope.

The sole commenter on the Rule stated the Address Discrepancy Rule allowed him to discover a case of identity theft involving the misuse of his Social Security number, and argued the Rule should not be changed. 17 The Commission agrees no changes other than those required by the Dodd-Frank Act are necessary and the Final Rule makes no further amendments to the existing Rule. Although the Commission is revising the scope of the Rule so it is consistent with the applicable statute, the protections provided to consumers will not change: Users of consumer reports have the same obligations with respect to address discrepancies under the CFPB's corresponding rule as under the FTC's rule.

The Address Discrepancy Rule contains information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (“OMB”) regulations that implement the Paperwork Reduction Act (“PRA”). 44 U.S.C. 3501 et seq. OMB has approved the Rule's existing information collection requirements through December 31, 2021 (OMB Control No. 3084-0137).

The Final Rule amends 16 CFR part 641. The amendments do not modify or add to information collection requirements previously approved by OMB. The amendments do not make any substantive changes to the Rule, other than to narrow the scope to motor vehicle dealers. The existing clearance already reflects that change in scope.

Therefore, the Commission does not believe the amendments substantially or materially modify any “collections of information” as defined by the PRA.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify the proposed rule will not have a significant impact on a substantial number of small entities. 18 The Commission published an Initial Regulatory Flexibility Analysis in order to inquire into the impact of the proposed Rule on small entities. 19 The Commission received no responsive comments.

The Commission does not believe these amendments have the threshold impact on small entities. The amendments effectuate changes to the Dodd-Frank Act and will not impose costs on small motor vehicle dealers because the amendments are for clarification purposes and will not result in any increased burden on any motor vehicle dealer. Thus, a small entity that complies with current law need not take any different or additional action under the Final Rule. Therefore, the Commission certifies the rule will not have a significant economic impact on a substantial number of small businesses.

Although the Commission certifies under the RFA the rule will not have a significant impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration, the Commission nonetheless has determined that publishing a final regulatory flexibility analysis (“FRFA”) is appropriate to ensure the impact of the rule is fully addressed. Therefore, the Commission has prepared the following analysis:

To address the Dodd-Frank Act's changes to the Commission's rulemaking authority the amendments change the scope of the Rule. With this action, the Commission makes the current scope of the Rule clearer.

The Commission did not receive any comments that addressed the burden on small entities. In addition, the Commission did not receive any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).

The Commission anticipates many covered motor vehicle dealers may qualify as small businesses according to the applicable SBA size standards. 20 As explained in the IRFA, however, determining a precise estimate of the number of small entities is not readily feasible. No commenters addressed this issue. Nonetheless, as discussed above, these amendments do not add any additional burdens on any covered small businesses.

The amendments do not impose any new reporting, recordkeeping, or other compliance requirements.

The Commission did not propose any specific small entity exemption or other significant alternatives because the amendments will not increase reporting requirements and will not impose any new requirements or compliance costs.

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

For the reasons stated above, the Federal Trade Commission amends part 641 of title 16 of the Code of Federal Regulations as follows:

The Fair and Accurate Credit Transactions Act of 2003 (“FACT Act”) was signed into law on December 4, 2003. Public Law 108-159, 117 Stat. 1952. Section 312 of the FACT Act amended section 623  1 of the FCRA by requiring the FTC, with other agencies, to issue guidelines for use by furnishers regarding the accuracy and integrity of the information about consumers that they furnish to consumer reporting agencies (“CRAs”) and to prescribe regulations requiring furnishers to establish reasonable policies and procedures for implementing the guidelines. Section 312 also required the Commission and the other agencies to issue regulations identifying the circumstances under which a furnisher must reinvestigate direct consumer disputes concerning the accuracy of information provided by the furnisher to a CRA. On July 1, 2009, the Commission issued the Furnisher Rule and the accompanying guidelines that took effect on July 1, 2010. 2

The Rule requires furnishers to establish and implement reasonable written policies and procedures regarding the accuracy and integrity of the information relating to consumers that they furnish to a CRA. 3 The Rule also requires that furnishers respond to direct disputes from consumers. 4

The Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) was signed into law in 2010. 5 The Dodd-Frank Act substantially changed the federal legal framework for financial services providers. Among the changes, the Dodd-Frank Act transferred to the Consumer Financial Protection Bureau (“CFPB”) the Commission's rulemaking authority under portions of the FCRA. 6 Accordingly, in 2012, the Commission rescinded several of its FCRA rules, which had been replaced by rules issued by the CFPB. 7 The FTC retained rulemaking authority for other rules to the extent the rules apply to motor vehicle dealers described in section 1029(a) of the Dodd-Frank Act  8 predominantly engaged in the sale and servicing of motor vehicles, the leasing and servicing of motor vehicles, or both (“motor vehicle dealers”). 9 The retained rules include the Furnisher Rule, which now applies only to motor vehicle dealers. 10 Furnishers originally covered by the Furnisher Rule that are not motor vehicle dealers are covered by the CFPB's rule. 11 The Commission continues to have authority to enforce the CFPB's rule and has brought several actions alleging violations of the rule. 12

On September 30, 2020, the Commission solicited comments on the Furnisher Rule as part of its periodic review of its rules and guides. The Commission sought information about the costs and benefits of the Rule, and its regulatory and economic impact. In addition, the Commission proposed amending sections 660.1 and 660.2 to narrow the scope of the Furnisher Rule to motor vehicle dealers excluded from CFPB jurisdiction as described in the Dodd-Frank Act. The Commission received one comment stating that the Furnisher Rule assists millions of consumers to discover inaccuracies in their consumer reports and emphasizing the need for continued enforcement of the Rule. 13 The Commission agrees with this commenter.

The Commission adopted the Furnisher Rule at a time when it had rulemaking authority for a broader group of consumer report users. While the Dodd-Frank Act did not change the Commission's enforcement authority for the Furnisher Rule, it did narrow the Commission's rulemaking authority with respect to the Rule. It now covers only motor vehicle dealers. 14 The amendments in the Dodd-Frank Act necessitate technical revisions to the Furnisher Rule to ensure the regulation is consistent with the text of the amended FCRA. Accordingly, the Commission amends the Furnisher Rule to properly reflect the Rule's scope.

The amendment to section 660.1 narrows the scope of the Furnisher Rule to “motor vehicle dealers,” as defined in amended section 660.2.

The amendment to section 660.2 adds a definition of “motor vehicle dealer” that defines motor vehicle dealers as those entities excluded from CFPB jurisdiction as described in the Dodd-Frank Act. 15 The amendments also change the definition of “identity theft” by replacing the Rule's reference to 16 CFR 603.2(a), a provision of an FTC rule that has since been rescinded, 16 with a reference to 12 CFR 1022.3(h), the equivalent provision in the CFPB's rule. The amendments make no other substantive changes to the Rule.

The Furnisher Rule contains information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (“OMB”) regulations that implement the Paperwork Reduction Act (“PRA”). 44 U.S.C. 3501 et seq. OMB has approved the Rule's existing information collection requirements through July 31, 2022 (OMB Control No. 3084-0144). Under the existing clearance, the FTC has attributed to itself the estimated burden regarding all motor vehicle dealers and then shares equally the remaining estimated PRA burden with the CFPB for other persons for which both agencies have enforcement authority regarding the Furnisher Rule.

The Final Rule amends 16 CFR part 660. The amendments do not modify or add to information collection requirements previously approved by OMB. The amendments narrow the scope to motor vehicle dealers. The Rule's OMB clearance already reflects that change. Therefore, the Commission does not believe the amendments substantially or materially modify any “collections of information” as defined by the PRA.

The Regulatory Flexibility Act (“RFA”), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires an agency to either provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, or certify that the proposed rule will not have a significant impact on a substantial number of small entities. 17 The Commission published an Initial Regulatory Flexibility Analysis in order to inquire into the impact of the proposed Rule on small entities. 18 The Commission received no responsive comments.

The Commission does not believe these amendments have the threshold impact on small entities. The amendments effectuate changes to the Dodd-Frank Act and will not impose costs on small motor vehicle dealers because the amendments are for clarification purposes and will not result in any increased burden on any motor vehicle dealer. Thus, a small entity that complies with current law need not take any different or additional action under the Final Rule. Therefore, the Commission certifies that amending the Furnisher Rule will not have a significant economic impact on a substantial number of small businesses.

Although the Commission certifies under the RFA the Final Rule will not have a significant impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration, the Commission nonetheless has determined that publishing a final regulatory flexibility analysis (“FRFA”) is appropriate to ensure the impact of the rule is fully addressed. Therefore, the Commission has prepared the following analysis:

To address the Dodd-Frank Act's changes to the Commission's rulemaking authority, the amendments clarify that the Rule applies only to motor vehicle dealers.

The Commission did not receive any comments that addressed the burden on small entities. In addition, the Commission did not receive any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).

The Commission anticipates many covered motor vehicle dealers may qualify as small businesses according to the applicable SBA size standards. As explained in the IRFA, however, determining a precise estimate of the number of small entities is not readily feasible. No commenters addressed this issue. Nonetheless, as discussed above, these amendments do not add any additional burdens on any covered small businesses.

The amendments impose no new reporting, recordkeeping, or other compliance requirements.

The Commission did not propose any specific small entity exemption or other significant alternatives because the amendments will not increase reporting requirements and will not impose any new requirements or compliance costs.

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

For the reasons stated above, the Federal Trade Commission amends part 660 of title 16 of the Code of Federal Regulations as follows:

Current Drug Enforcement Administration (DEA) regulations exempt registration fees and waive certain registration requirements for listed military entities: The U.S. Army, Navy, Marine Corps, Air Force, and Coast Guard. Any hospital or other institution operated by one of these entities, 1 and any individual practitioners required to obtain a registration in order to carry out their duties as officials of an agency of the United States (including the U.S. Army, Navy, Marine, Corps, Air Force, and Coast Guard), is exempt from payment of an application fee for registration or reregistration. 2 In addition, current DEA regulations waive the requirement of registration for officials of the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard who are authorized to prescribe, dispense, or administer, but not to procure or purchase, controlled substances in the course of their duties. 3 Finally, current DEA regulations waive the requirement of registration for any official or agency of the U.S. Army, Navy, Marine Corps, Air Force, or Coast Guard authorized to import or export controlled substances in the course of their duties. 4

The United States Space Force (USSF)—formerly known as the Air Force Space Command (AFSC)—was established as an independent military branch on December 20, 2019, 5 by the United States Space Force Act. This rule therefore revises 21 CFR 1301.21 and 1301.23 to include USSF in the list of military entities exempt from paying DEA registration fees. Because the AFSC was fee exempt under existing DEA regulations as part of the Air Force, the DEA is issuing this final rule to provide clarity by adding “Space Force” to 21 CFR 1301.21 (“Exemption from fees”) and 21 CFR 1301.23 (“Exemption of certain military and other personnel”).

The Administrative Procedure Act (APA) (5 U.S.C. 553) does not require notice and the opportunity for public comment where the agency for good cause finds that notice and public comment are unnecessary, impracticable, or contrary to the public interest under 5 U.S.C. 553(b)(B). This rule contains a technical amendment; it imposes no new or substantive requirement on the public or DEA registrants. As such, DEA has determined that notice and the opportunity for public comment on this rule are unnecessary. Because this is not a substantive rule, and as DEA finds good cause under 5 U.S.C. 553(d)(3) for the above reason, this final rule will take effect upon date of publication in the Federal Register .

This final rule was developed in accordance with the principles of Executive Orders (E.O.) 12866 and 13563. E.O. 12866 directs 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 is supplemental to, and reaffirms, the principles, structures, and definitions governing regulatory review as established in E.O. 12866. The Office of Information and Regulatory Affairs has deemed this type of technical amendment not significant under E.O. 12866.

This final rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burdens.

This final rule does not have federalism implications warranting the application of Executive Order 13132. The final rule does not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or the distribution of power and responsibilities among the various levels of government.

This final rule does not have tribal implications warranting the application of Executive Order 13175. This rule does 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.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612) applies to rules that are subject to notice and comment under section 553(b) of the APA. As noted in the above discussion regarding applicability of the APA, the DEA was not required to publish a general notice of proposed rulemaking prior to this final rule. Consequently, the RFA does not apply.

The DEA has determined and certified pursuant to the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C. 1501 et seq., that this action will not result in any federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. Therefore, neither a Small Government Agency Plan nor any other action is required under the provisions of UMRA.

This action does not involve a collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action does not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number.

This rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, the DEA is submitting a copy of this final rule to both Houses of Congress and to the Comptroller General.

For the reasons stated in the preamble, DEA amends 21 CFR part 1301 as follows:

The Coast Guard will enforce the special local regulation in 33 CFR 100.1101, Table 1 to § 100.1101, Item No. 9, for the San Diego Bayfair race regulated area daily from 6 a.m. to 6 p.m., on September 17, 2021 through September 19, 2021. This action is being taken to provide for the safety of life on navigable waterways during this 3-day event. Our regulation for marine events within the Eleventh Coast Guard District, § 100.1101, Table 1 to § 100.1101, Item No. 9, specifies the location of the regulated area for the San Diego Bayfair which encompasses the waters of Mission Bay to include Fiesta Bay, the east side of Vacation Isle, and Crown Point shores. Under the provisions of § 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and Marine Safety Information Broadcasting.

If the Captain of the Port Sector San Diego or his designated representative determines that the regulated area need not be enforced for the full duration stated on this document, he or she may use a Safety Marine Information Broadcast or other communications coordinated with the event sponsor to grant general permission to enter the regulated area.

The Coast Guard will enforce the special local regulation in 33 CFR 100.1101, Table 1 to § 100.1101, Item No. 16, from 8 a.m. through 12:30 p.m. on September 18, 2021 for the Honor Foundation Swim for SOF in San Diego, CA. This action is being taken to provide for the safety of life on navigable waterways during the swim event. Our regulation for recurring marine events in the San Diego Captain of the Port Zone, § 100.1101, Table 1 to § 100.1101, Item No. 16, specifies the location of the regulated area for the Honor Foundation Swim for SOF, CA, which encompasses portions of San Diego Bay. Under the provisions of § 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this document in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

You may be potentially affected by this action if you manufacture (including import), process, distribute in commerce, or use phenol, isopropylated phosphate (3:1) (PIP (3:1)), or PIP (3:1)-containing articles, especially plastic articles that are components of electronics or electrical articles. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Petroleum Refineries (NAICS Code 324110);

• All Other Basic Organic Chemical Manufacturing (NAICS Code 325199);

• Plastics Material and Resin Manufacturing (NAICS Code 325211);

• All Other Miscellaneous Chemical Product and Preparation Manufacturing (NAICS Code 325998);

• Machinery Manufacturing (NAICS Code 333);

• Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing (NAICS Code 333415);

• Other Communications Equipment Manufacturing (NAICS Code 334290);

• Computer and Electronic Product Manufacturing (NAICS Code 334);

• Small Electrical Appliance Manufacturing (NAICS Code 335210);

• Major Household Appliance Manufacturing (NAICS Code 335220);

• Motor and Generator Manufacturing (NAICS Code 335312);

• Switchgear and Switchboard Apparatus Manufacturing (NAICS Code 335313);

• Relay and Industrial Control Manufacturing (NAICS Code 335314);

• Other Communication and Energy Wire Manufacturing (NAICS Code 335929);

• Current-carrying Wiring Device Manufacturing (NAICS Code 335931);

• Transportation Equipment Manufacturing (NAICS Code 336);

• Musical Instrument Manufacturing (NAICS Code 339992);

• All Other Miscellaneous Manufacturing (NAICS Code 339999);

• Other Chemical and Allied Products Merchant Wholesalers (NAICS Code 424690);

• Motor Vehicle and Parts Dealers (NAICS Code 441);

• All Other Home Furnishings Stores (NAICS Code 442299);

• Electronics and Appliance Stores (NAICS Code 443);

• Building Material and Garden Equipment and Supplies Dealers (NAICS Code 444);

• Research and Development in the Physical, Engineering, and Life Sciences (NAICS Code 541710).

1. Toxic Substances Control Act (TSCA). TSCA section 6(h), 15 U.S.C. 2605(h), directs EPA to take expedited action on certain persistent, bioaccumulative, and toxic (PBT) chemical substances. For chemical substances that meet the statutory criteria, EPA is directed to issue final rules that address the risks of injury to health or the environment that the Administrator determines are present and to reduce exposure to the substance(s) to the extent practicable. In response to this directive, EPA identified PIP (3:1) as meeting the TSCA section 6(h) criteria and issued a final rule for PIP (3:1) on January 6, 2021 (Ref. 1). The January 2021 final rule prohibits the processing and distribution of PIP (3:1), PIP (3:1)-containing products, and PIP (3:1)-containing articles, with specified exclusions; prohibits or restricts the release of PIP (3:1) to water during manufacturing, processing, distribution, and commercial use; requires persons manufacturing, processing, and distributing in commerce PIP (3:1) and products containing PIP (3:1) to notify their customers of these prohibitions and restrictions and to keep records. Several different compliance dates were established, the first of which was March 8, 2021, after which processing and distribution of PIP (3:1), PIP (3:1)-containing products, and PIP (3:1)-containing articles were prohibited unless an alternative compliance date or exclusion was otherwise provided. With the obligation to promulgate these rules, the Agency also has the authority to amend them if circumstances change, including in relation to the receipt of new information and in relation to compliance deadlines established under TSCA section 6(d). It is well settled that EPA has inherent authority to reconsider, revise, or repeal past decisions to the extent permitted by law so long as the Agency provides a reasoned explanation. See FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). Here, as explained further in Unit I.D., based on information submitted by regulated entities since the publication of the final rule in January 2021, the Agency has determined that a limited extension to certain PIP (3:1) revised compliance dates is appropriate and necessary to address comments that the original compliance dates were not practicable and did not provide adequate transition time because they would have caused extensive harm to the economy and public due to unavailability of critical goods and equipment. This limited extension to the referenced compliance dates is intended to allow EPA additional time to consider how best to approach the concerns raised in comments seeking longer term extensions.

2. Administrative Procedure Act (APA). APA section 553(d), 5 U.S.C. 553(d), provides that the publication of a substantive rule must occur no later than 30 days before its effective date, with certain exceptions. The purpose of this provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” See Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). Of relevance here, APA section 553(d)(1), 5 U.S.C. 553(d)(1), provides that final rules shall not become effective until 30 days after publication in the Federal Register “except . . . a substantive rule which grants or recognizes an exemption or relieves a restriction.” However, when the agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. See Indep. U.S. Tanker Owners Comm. v. Skinner, 884 F.2d 587 (D.C. Cir. 1989) (upholding immediate effective date for a final rule intended to avoid disruption in domestic trade by lifting a ban on vessels participating in domestic shipping), mandate modified on other grounds, 901 F.2d 1116 (D.C. Cir. 1990). EPA has determined that this rule relieves a restriction by providing additional time for regulated entities to comply with the applicable requirements. Accordingly, EPA is making this rule effective immediately upon publication.

EPA is amending the regulations at 40 CFR 751.407(a)(2) to provide for a phased-in prohibition for the processing and distributing in commerce of PIP (3:1) for use in certain articles and for the processing and distributing in commerce of certain PIP (3:1)-containing articles. Articles covered by this phased-in prohibition include any article not otherwise covered by a different compliance deadline or exclusion described in 40 CFR 751.407(a)(2)(ii) or (b). The compliance date for the prohibitions on processing and distributing in commerce of PIP (3:1) for use in articles, and the processing and distributing in commerce of PIP (3:1)-containing articles in the final rule published on January 6, 2021 (Ref. 1), as well as for the recordkeeping requirements, was 60 days after the date of publication, or March 8, 2021. With this amendment, EPA is extending the compliance date for the processing and distributing in commerce of PIP (3:1) for use in articles, and the processing and distributing in commerce of PIP (3:1)-containing articles, to March 8, 2022. With respect to articles covered by this final rule, EPA is also extending the compliance date from March 8, 2021, to March 8, 2022, for the recordkeeping requirements applicable to manufacturers, processors, and distributors of PIP (3:1)-containing articles. In addition to this final rulemaking, EPA is planning to issue a separate notice of proposed rulemaking (NPRM) in the near future to request comment on a further compliance date extension for certain PIP (3:1)-containing articles, the PIP (3:1) used to make those articles, and the recordkeeping associated with PIP (3:1)-containing articles.

EPA is issuing this final rule to address the hardships inadvertently created by the January 2021 final rule on PIP (3:1) (Ref. 1) due to uses and supply chain challenges that were not communicated to EPA until after the rule was published. Shortly after the final rule was published in January 2021, many stakeholders, including, for example, the electronics and electrical manufacturing sector and their customers, raised significant concerns about their ability to meet the March 8, 2021, compliance date for PIP (3:1)-containing articles (Ref. 2). These stakeholders requested an extension of the compliance date in order to clear the existing articles through the supply chain, find and certify an alternative chemical, and produce or import new articles that do not contain PIP (3:1). In the Federal Register of March 16, 2021 (Ref. 3), EPA requested additional comment on this specific issue (Ref. 3), as well as on other aspects of all of the TSCA section 6(h) final rules in general (Refs. 4, 5, 6, 7). According to the comments received in response to the March comments solicitation, a wide range of key consumer and commercial goods are affected by the prohibitions in the PIP (3:1) final rule such as cellular telephones, laptop computers, and other electronic devices and industrial and commercial equipment used in various sectors including transportation, life sciences, and semiconductor production (Ref. 8). This action will ensure that the supply chains for these important articles continue uninterrupted in the near term while allowing EPA to take additional comment on a separate proposal for a longer-term compliance date extension.

EPA evaluated the potential incremental economic impacts and determined that these changes reduce the existing burden of this action. The quantified effect of this compliance date extension reflects the difference between the incremental cost and benefits of the final rule as it was originally promulgated and the incremental cost and benefits of this final rule with the compliance date in place. Quantified costs were estimated for substitution and recordkeeping by moving the associated costs, assuming they will be incurred as the compliance date extension expires. In summary, extending the compliance date by one year for PIP (3:1)-containing articles would result in an estimated annualized cost savings of $0.9 million (from a cost of $23.6 million for the original rule to $22.7 million) at a 3 percent discount rate or $1.3 million (from $22.8 million for the original rule to $21.5 million for this final rule) at a 7 percent discount rate over a 25-year time horizon. Other qualitative costs savings may include allowance of more time for manufacturers and retailers to sell articles prior to the prohibition deadline rather than being forced to dispose of them, thereby avoiding loss of revenue from those products. Secondly, any reformulation costs (such as research and development, laboratory testing, and re-labeling) could be reduced since companies will have more time to gather information regarding the steps involved in the reformulation process. The level of these cost savings is dependent on complexity of achieving needed efficacy, length of time needed for testing and quality control, and the current status of development of alternatives, which may vary greatly by sector and end use product. Lastly, the compliance date extension may provide additional time for information gathering through the supply chain to alleviate the necessity for chemical testing of certain articles. Although the benefits of the final rule were not quantified, the extension would also postpone decreases in potential releases and exposures to PIP (3:1). Due to discounting, in a manner similar to costs, this postponement would lead to lower potential benefits. On balance, this rule is appropriate in light of the disruptive consequences of implementing the prohibition without the compliance extension. The economic consequences (such as loss of supply) could be severe, given the apparent ubiquity of the chemical in commerce. Thus, EPA has determined that the cost savings and avoidance of disruption to industry outweigh the delayed realization of benefits that may accrue from reduced exposure.

TSCA section 6(h) requires EPA to take expedited regulatory action under TSCA section 6(a) for certain PBT chemicals identified in the 2014 Update to the TSCA Work Plan for Chemical Assessments (Ref. 9). More specifically, under TSCA section 6(h)(1)(A), the subject chemical substances are those that:

• EPA has a reasonable basis to conclude are toxic and that with respect to persistence and bioaccumulation score high for one and either high or moderate for the other, pursuant to the 2012 TSCA Work Plan Chemicals: Methods Document (Ref. 10) or a successor scoring system;

• Are not a metal or a metal compound; and

• Are chemical substances for which EPA has not completed a TSCA Work Plan Problem Formulation, initiated a review under TSCA section 5, or entered into a consent agreement under TSCA section 4, prior to June 22, 2016, the date that the Frank R. Lautenberg Chemical Safety for the 21st Century Act became law.

In addition, in order for a chemical substance to be subject to expedited action, TSCA section 6(h)(1)(B) states that EPA must find that exposure to the chemical substance under the conditions of use is likely to the general population or to a potentially exposed or susceptible subpopulation identified by the Administrator, or to the environment on the basis of an exposure and use assessment conducted by EPA. For chemical substances subject to TSCA section 6(h), EPA was directed to issue a proposed rule by June 22, 2019, and a final rule no later than 18 months after issuance of the proposal. The statute further provides that the Administrator shall not be required to conduct risk evaluations on chemical substances that are subject to TSCA section 6(h)(1).

1. June 2019 proposed rule for PBT chemicals under TSCA section 6(h). EPA issued a proposed rule for PIP (3:1) and four other chemical substances in June 2019 (Ref. 11). EPA proposed to determine that PIP (3:1) met the TSCA section 6(h)(1)(A) criteria for expedited action. In addition, based on an exposure and use assessment for PIP (3:1) (Ref. 12) conducted as directed by TSCA section 6(h)(1)(B) and which was subject to peer review and public comment, EPA also proposed to find that exposure to PIP (3:1) is likely.

During the development of the 2019 proposed rule (Ref. 11), EPA conducted extensive outreach to understand the uses of the five PBTs. Outreach included a public webinar, a Small Business Roundtable hosted by the Small Business Administration Office of Advocacy, and meetings with more than 90 stakeholders. Based on this outreach as well as EPA's practicability analysis for various prohibitions and restrictions, EPA proposed extended compliance dates for some uses of PIP (3:1) and exclusions for others.

The public comment period on the proposal was open for a total of 90 days, closing on October 28, 2019. EPA received a total of 48 comments, with three commenters sending multiple submissions with attached files, for a total of 58 submissions on the proposal for all five of the PBT chemicals. This includes the previous request for a comment period extension (EPA-HQ-OPPT-2019-0080-0526). Two commenters submitted confidential business information (CBI) or copyrighted documents with information regarding economic analysis and market trends. Of the comment submissions, 30 of the approximately 50 comments addressed EPA's proposed regulation of PIP (3:1). Copies of all the non-CBI documents, or redacted versions without CBI, are available via https://www.regulations.gov in docket ID number EPA-HQ-OPPT-2019-0080.

2. January 2021 final rule for PIP (3:1) under TSCA section 6(h). The final rule for PIP (3:1) was published in the Federal Register on January 6, 2021 (Ref. 1). EPA determined in the final rule that PIP (3:1) met the TSCA section 6(h)(1)(A) criteria for expedited action. In addition, EPA determined, in accordance with TSCA section 6(h)(1)(B), that exposure to PIP (3:1) was likely under the conditions of use to the general population, to a potentially exposed or susceptible subpopulation, or the environment. The PIP (3:1) final rule prohibits processing and distribution in commerce of PIP (3:1), and products or articles containing the chemical substance, for all uses, except for the following different compliance dates or exclusions:

• Use in photographic printing articles after January 1, 2022;

• Use in aviation hydraulic fluid in hydraulic systems and use in specialty hydraulic fluids for military applications;

• Use in lubricants and greases;

• Use in new and replacement parts for the aerospace and automotive industries;

• Use as an intermediate in the manufacture of cyanoacrylate glue;

• Use in specialized engine air filters for locomotive and marine applications;

• Use in sealants and adhesives after January 6, 2025; and

• Recycling of plastic that contained PIP (3:1) before the plastic was recycled, and the articles and products made from such recycled plastic, so long as no new PIP (3:1) is added during the recycling or production process.

In addition, the January 2021 final rule requires manufacturers, processors, and distributors of PIP (3:1) and products containing PIP (3:1) to notify their customers of these restrictions. Finally, the rule prohibits releases to water from the remaining manufacturing, processing, and distribution in commerce activities, and requires commercial users of PIP (3:1) and PIP (3:1)-containing products to follow existing regulations and best practices to prevent releases to water during use.

Also defined at 40 CFR 751.403 for the purposes of 40 CFR part 751, subpart E, which includes the January 2021 PIP (3:1) final rule, are the terms “article” and “product” (Ref. 1). “Article” is defined as a manufactured item: (1) Which is formed to a specific shape or design during manufacture, (2) Which has end use function(s) dependent in whole or in part upon its shape or design during end use, and (3) Which has either no change of chemical composition during its end use or only those changes of composition which have no commercial purpose separate from that of the article, and that result from a chemical reaction that occurs upon end use of other chemical substances, mixtures, or articles; except that fluids and particles are not considered articles regardless of shape or design. For example, laptop computers are articles, as are the internal components such as chips, wiring, and cooling fans. “Product” is defined as the chemical substance, a mixture containing the chemical substance, or any object that contains the chemical substance or mixture containing the chemical substance that is not an article. For example, hydraulic fluids and motor oils are products.

The January 2021 final rule differed from the proposal in several ways as a result of the information provided during the public comment period. The exclusions that were based on information received during the public comment period are the exclusion for the use of PIP (3:1) in new and replacement parts for aerospace vehicles, as an intermediate in a closed system to produce cyanoacrylate adhesives, in specialized engine air filters for locomotive and marine applications, plastics recycling, and finished products or articles made of recycled plastic. The final rule also features delayed compliance dates for the use of PIP (3:1) in photographic printing articles and adhesives and sealants.

Shortly after the publication of the January 2021 final rule, a wide variety of stakeholders from various sectors, including the electronics and electrical manufacturing community and their customers, started raising concerns about the March 8, 2021, compliance date in the final rule for the prohibition on the processing and distributing in commerce of PIP (3:1) for use in articles and PIP (3:1)-containing articles (Ref. 2). These stakeholders contended that they needed significantly more time in order to identify whether and where PIP (3:1) might be present in articles in their supply chains, find and certify alternative chemicals, and produce or import new articles that do not contain PIP (3:1). Despite EPA's extensive outreach, most stakeholders contacting EPA after the rule was finalized did not comment on the proposal or otherwise engage with the agency on the PIP (3:1) rulemaking, and do not appear to have previously surveyed their supply chains to determine if PIP (3:1) was being used. Several indicated that they did not understand that articles can be regulated under TSCA, and that, because PIP (3:1) is not regulated by other authorities, including those of other countries or under international agreements, there was a lack of awareness relative to its presence in the supply chain. Absent engagement and timely or specific input from these stakeholders that could be used as a basis for granting further extensions or exemptions from the proposed prohibition, in the final rule EPA believed that PIP (3:1) was not widely present in articles outside the aerospace and automotive sectors. While some commenters on the 2019 proposed rule indicated that PIP (3:1) may be present in articles, their comments were very general and did not identify specific uses or specific concerns with the March 8, 2021, compliance date.

Based on the concerns raised by stakeholders shortly after publication of the final rule, EPA issued a No Action Assurance (NAA) on March 8, 2021 (Ref. 13), in an effort to ensure that the supply chains of these important articles were not interrupted while the agency collected the information needed to best inform subsequent regulatory efforts. The NAA only described how the agency will exercise its enforcement discretion; the NAA did not change the March 8, 2021, compliance date or the continued harm created by that compliance date. Moreover, the NAA did not prevent citizen suits for violations of the January 2021 rule. The NAA indicated that EPA would exercise its enforcement discretion to not pursue enforcement regarding the prohibition on processing and distribution of PIP (3:1) for use in articles, and PIP (3:1)-containing articles, for the following violations:

Shortly after the NAA was issued, EPA published in the “Proposed Rules” section of the Federal Register a notification and request for specific comments (Ref. 3) to address the concerns that had been raised by stakeholders regarding PIP (3:1) in articles. While the March 2021 notification and request for comment did not include a specific alternative compliance date for PIP (3:1)-containing articles and the PIP (3:1) for use in those articles, the document did describe in particular the issues raised by industry stakeholders regarding the March 8, 2021, compliance date, including the types of articles affected, such as those used in a wide variety of electronics, ranging from cellular telephones, to robotics used to manufacture semiconductors, to equipment used to move COVID-19 vaccines and keep them at the appropriate temperature. The document further outlined the complexity of international supply chains described by industry stakeholders and how, according to those stakeholders, that complexity creates challenges for identifying and finding alternatives to PIP (3:1) in complex supply chains. Finally, EPA asked commenters to specifically describe:

• The articles that would need an alternative compliance date;

• The basis for such an alternative compliance date, taking into consideration the reasons supporting alternative compliance dates in the final rule already issued, such as the January 1, 2022, date for photographic printing articles and the January 6, 2025, date for adhesives and sealants, with supporting documentation; and

• The additional time needed for specific articles to clear channels of trade.

EPA received a total of 122 comments in response to the March 2021 notification and request for comment (Ref. 3); 78 of these were from industry stakeholders, most of whom were concerned about compliance for PIP (3:1)-containing articles (Ref. 8). Stakeholders concerned about PIP (3:1)-containing articles reiterated that they needed much more time, in some cases up to 15 years (Ref. 14), in order to identify where PIP (3:1) might be present in their supply chains, find and certify alternatives, and produce or import new articles that do not contain PIP (3:1).

1. Comments on articles that contain, or potentially contain, PIP (3:1). During the public comment period, several industry commenters identified a wide range of articles that may contain PIP (3:1). PIP (3:1) is used as a flame retardant and plasticizer in plastic articles such as polyvinyl chloride (PVC) wire covers and casings. Other articles which have been identified or are being investigated for the presence of PIP (3:1) include PVC tubes, harnesses, cables, covers, sleeves, and casings, which include AC power cords and USB cables for consumer and commercial articles such as laptops, televisions, and gaming consoles. According to the electrical manufacturing industry a representative sample of articles made possible by the qualities unique to PIP (3:1) include medical devices, capacitors, inverters, generators, transformers, semiconductor wafers, computers, and electrical appliances (Ref. 15). Manufacturers of construction, agriculture, forestry, mining, and utility equipment have identified PIP (3:1) in fire prevention systems, engine emission control systems, electronics, wiring harnesses, hydraulic hoses, switches, fabrics, PVC articles, resin in fiberglass articles, paints, elastomers, foam, resistors, splitters, articles that are alarm components, automatic tire inflation equipment, and wire sleeving (Ref. 16). According to another commenter, in construction, agriculture, forestry, mining, and utility equipment, PIP (3:1) is frequently found in wire harnesses, starters, water pumps, motor gears, pre-wired motors, ground cables, and compressors (Ref. 17). The semiconductor manufacturing industry has identified the use of PIP (3:1) in semiconductor-related manufacturing equipment (as well as microelectromechanical-related, solar-related, and LED-related manufacturing equipment), as well as semiconductor fabrication facilities' support equipment and infrastructure, such as laboratory, substrate and device ( e.g., die) preparation, and assembly and test operations, including advanced packaging (Ref. 14) as well as articles that are internal components of high-tech robotics and manufacturing equipment. Additionally, the chemical has been identified in articles that are components in scanning electron microscopes utilized in research, national laboratories, and academia (Ref. 18).

EPA generally agrees with these commenters that PIP (3:1) is used in a variety of articles, especially in plastic articles that are components of electronics or electrical articles. Further, at the time the January 2021 final rule was issued, EPA did not understand the extent to which PIP (3:1) is used in articles beyond those articles specifically addressed in that final rule, which are photographic printing articles, new and replacement parts for aerospace and motor vehicles, specialized locomotive and marine engine air filters, and recycled plastics. EPA notes that this final rule does not affect the compliance dates established for these specific articles in the January 2021 final rule. EPA outlined its understanding on the use of PIP (3:1) in articles in responding to public comments on the January 2021 final rule, “[t]here is little evidence to suggest that PIP (3:1) is present in articles which may be available to consumers, and outside of activities excluded from the prohibition, little evidence to suggest it is necessary or present in commercial and industrial articles as well” (Ref. 26).

2. Comments on the challenges associated with determining whether articles contain PIP (3:1). Commenters described in detail the challenges associated with determining whether a particular article contains PIP (3:1), especially for complex goods that contain thousands of individual parts. For example, commenters from the consumer electronics sector noted that articles that are components for their complex goods are sourced on a worldwide market and a manufacturer may have upwards of 5,000 suppliers for potentially 100,000 or more component articles across all product lines (Ref. 19). These commenters note that manufacturers do not receive a list of every chemical within each part or component article that ultimately goes into a finished electronic article because ingredient lists are highly proprietary and confidential. Rather, companies provide functionality, performance, safety and quality specifications of a part or component article to their supply chain, including specifications regarding chemical restrictions. According to these commenters, suppliers are provided lists of restricted chemicals on at least an annual basis, or more frequently if there is a triggering event, such as a new government restriction. Suppliers are notified of the lead time for the restriction of the chemical and any testing that may be required, and the suppliers communicate that information upstream to their own suppliers.

According to these commenters (Ref. 19), the task of determining whether PIP (3:1) is used in a component article in a finished electronic good is further complicated by the many article manufacturers being unable to identify or confirm the PIP (3:1) content of articles, such as supplied parts, components or commercial and consumer goods, without laboratory testing. Laboratory testing can run up to $5,000 per product and take up to one (1) month. As a result, companies must rely on material declarations by suppliers as a more practicable and reliable approach to determine the usage of PIP (3:1) within an article.

Other commenters echo these concerns. Comments from the heating, ventilation, air conditioning, and refrigeration industry note that manufacturers are currently working their way through tens of thousands of stock-keeping units (SKUs), each having hundreds of associated component articles and spare parts (Ref. 20). They contend that their suppliers have generally not been forthright about the presence of PIP (3:1) in their component articles and parts, even after receiving notification that the use of PIP (3:1) in component articles must be disclosed. According to these commenters, some suppliers continue to claim that they will not disclose the chemical makeup of component articles as the composition is confidential intellectual property. In response, some of the larger manufacturers have started testing component articles to compensate for this lack of transparency, but testing is time-consuming and costly and most smaller businesses do not have the resources to undertake testing.

The semiconductor industry and the testing and measurement industry noted that their industries differ from the consumer electronics industry and the automotive industry, in that their industries are high-mix, low-volume industries, meaning that manufacturer portfolios are typically comprised of a large number of unique goods with relatively low unit sales (Refs. 14, 21). Their equipment is primarily custom built to order and sold directly to professional and industrial customers by the manufacturers (Ref. 21). The semiconductor industry typically places only 600 to 6,000 units of semiconductor manufacturing and related equipment into U.S. commerce each year and it is not uncommon for small groups of model units to be customized to an end user's particular needs (Ref. 14). According to this commenter, this is in stark contrast to most consumer goods, in which individual similar model units are placed into U.S. commerce in much greater number, and to the automotive and aerospace sectors, in which goods are manufactured in lower quantities but which are quite similar from model unit to model unit (Ref. 14). The semiconductor industry further noted that their sector's ability to obtain material composition data from across their supply chain is limited due to three factors: (1) The length and complexity of the supply chain; (2) the preponderance of suppliers located outside of the U.S.; and (3) the tens of thousands of parts incorporated into each article eventually manufactured or distributed in commerce within the U.S.

EPA generally recognizes the challenges described by these commenters in determining whether and where PIP (3:1) is present in articles in their supply chains and how long it may take to clear those PIP (3:1)-containing articles through the channels of trade. As to comments relating to testing, as most commenters note, there are a number of alternative steps to testing that an importer or a domestic manufacturer can take to ensure that an article does not contain PIP (3:1). The customer can include a specification in their purchase contracts with suppliers that articles be made without PIP (3:1). The customer can also request that their suppliers provide them with a written statement or certification that the purchased or supplied goods are made without PIP (3:1). Of course, testing is always an option, but EPA recognizes that this may be a more expensive option.

3. Comments on compliance date considerations for PIP (3:1)-containing articles. Nearly all of the industry commenters responding to EPA's March 2021 notification and request for comment (Ref. 3) stated that they needed several years to phase PIP (3:1) out of their articles. Many contended that they needed much longer, up to fifteen years (Refs. 14, 18) assuming that it is even feasible to do so. Commenters identified a number of steps that would be needed in order to complete a phase-out of PIP (3:1) in articles. These steps include: (1) Identifying where PIP (3:1) is present; (2) identifying and testing substitutes; (3) testing and re-certifying (as needed) the replacement article; and (4) distributing the replacement article throughout the supply chain. Many commenters provided detailed timelines for the steps needed to replace PIP (3:1).

For example, the consumer electronics industry noted that, while companies had begun to survey their suppliers as soon as the final rule was published, because of the large number of parts and suppliers involved for most manufacturers, they anticipated that completing the survey would take between six and twelve months (Ref. 19). They also noted that, because PIP (3:1) is not regulated in other international markets, there is a general lack of awareness regarding the chemical throughout the supply chain and the industry expects the surveys to take closer to twelve months than six.

According to the consumer electronics industry commenters, once PIP (3:1) is identified in a particular part by a particular supplier, the supplier must identify and investigate alternatives to PIP (3:1) that can meet regulatory requirements and manufacturer requirements with respect to functionality, performance, safety and quality (Ref. 19). Given that PIP (3:1) is typically used in electronic component articles to meet safety standards related to flammability, a component article that includes a PIP (3:1) alternative will have to be certified to the applicable safety standard (Ref. 19). Common safety standards that apply to consumer electronics, according to the commenters, include Underwriters Laboratory UL94, entitled “Tests for Flammability of Plastic Material for Part in Devices and Applications,” and UL498, entitled “Attachment Plugs and Receptacles.” The timeline for retesting and recertification of replacement component articles is determined by the certification organization, and consumer electronics manufacturers estimate that testing could take anywhere from 3 to 24 months (Ref. 19).

The commenters detail the next steps in replacing a PIP (3:1)-containing component article (Ref. 19). Once the manufacturer of the finished consumer electronics good receives the replacement component article, the manufacturer will conduct its own internal quality assessments. The manufacturer will conduct an initial assessment on whether the component article works, has the correct performance characteristics, and maintains brand integrity. Once these basic parameters have been evaluated, the manufacturer will assemble the component article into a consumer electronics good and conduct an overall quality assessment, which may include smoke and ignition testing, current leakage testing, and temperature testing, among other things (Ref. 19). At that point, the reworked good is sent for third-party certification. If the substituted component article is considered critical by the certification body, full retesting and recertification of the good may be necessary. Industry commenters anticipate that full retesting and recertification will be required, given the use of PIP (3:1) from a fire safety perspective and the fact that the types of component articles where PIP (3:1) is used play critical roles in the goods. Manufacturers anticipate that this recertification step will take anywhere from six to thirty months (Ref. 19). Finally, according to these commenters, a minimum of one year is needed to move the newly-remanufactured goods throughout the supply chain. This commenter further contended that a chemical phase out in response to a restriction in the European Union under the Restriction on Hazardous Substances (RoHS) 2, a product-level compliance program for electrical and electronic equipment, is typically effective four years from the date of notice by the European Union (Ref. 19).

Other industries provided similarly detailed descriptions of the length of time needed to replace PIP (3:1)-containing component articles. The heavy equipment sector stated that their design cycles are typically seven years from start to finish, and that this would likely be the amount of time needed to identify whether and to what extent PIP (3:1) exists in the supply chain, confirm the function of PIP (3:1) for the end-use application, identify alternatives, re-design for the alternative rather than PIP (3:1), test the replacement component article for safety, regulatory, and quality requirements, and re-introduce the good into the market (Ref. 16). According to this commenter, the testing requirements often take the longest time to complete during a redesign because heavy-duty industrial equipment operates in demanding and severe operating conditions over a long product life cycle. Such equipment is reportedly subject to various fire safety and flammability regulatory requirements set by the National Highway Traffic Safety Administration (Flammability Test for Motor Vehicle Interiors, 49 CFR 571.302), the Occupational Safety and Health Administration (Fire Protection and Prevention, 29 CFR 1926.24 and 1926.151), the Mine Safety and Health Administration (various fire prevention provisions, including 30 CFR part 35 and 30 CFR 75.1100, 75.1911, and 77.1100), and the Federal Railroad Administration (49 CFR parts 216, 223, 229, 231, 232, 238). Additionally, according to this commenter, engine emission sensors designed for off-road equipment to comply with the Clean Air Act currently rely on PIP (3:1) to survive the high-temperature environment in the engine compartment (Ref. 16).

A unique problem reported by this commenter and several others in the heavy equipment sector is that their supply chains often overlap with much larger industries, such as the automotive and aerospace sectors (Refs. 16, 17, 22, 23, and 24). A recent survey by one commenter found that 61% of the surveyed suppliers in the heavy equipment sector also provided parts and materials to the automotive industry (Ref. 16). According to this commenter, despite the significant overlap in suppliers, there are key differences in the product design lifecycles and volumes between the industries. Heavy-duty, industrial professional use equipment is decidedly lower volume with a higher diversity of goods than those found in the consumer automotive market. As the automotive sector is currently excluded from the January 2021 PIP (3:1) final rule, the current regulations allow suppliers to provide automotive parts that contain PIP (3:1) to their automotive manufacturers. With the higher variability of goods and lower volume nature of the heavy-duty, industrial equipment sector, commenters assert that the manufacturers of this non-automotive equipment will need to utilize custom made parts which, if available, could cost between two and ten times the normal price of the automotive parts that they would ordinarily use (Ref. 24).

In contrast to the industry commenters, who all stated that the March 8, 2021, compliance date for PIP (3:1)-containing articles was not practicable, a comment submitted by three environmental public interest groups in response to EPA's March 2021 notification and request for comment (Ref. 3) stated that industry had been given sufficient notice of EPA's intent to regulate PIP (3:1) in articles and did not believe that EPA should excuse their failure to comment in a timely manner (Ref. 25). This commenter further noted that any exclusions or extended compliance dates should be considered under the stringent criteria of TSCA section 6(g), which requires EPA to determine one of the following: (1) That the condition of use is a critical or essential use with no feasible safer alternatives; or (2) that compliance with a requirement would significantly disrupt the national economy, national security, or critical infrastructure; or (3) that the specific condition of use provides a substantial benefit to health, the environment, or public safety.

EPA generally agrees with the industry commenters on the steps required to phase PIP (3:1) out of articles in their supply chains. Industry must first determine where PIP (3:1) is present; identify alternatives to PIP (3:1), and then design, test, and recertify, as necessary, the new articles made without PIP (3:1). Those new articles must then be distributed throughout the supply chain. However, some commenters provided detailed estimates of the time needed to take these steps while others did not. For example, comments from the consumer technology sector gave estimates for completing each one of these steps, with the overall timeline ranging from 2.25 years to 6.5 years (Ref. 19). Estimated timelines provided by commenters in response to the March 2021 notification and request for comment (Ref. 3) ranged from 2.25 years to 15 years or more (Refs. 19, 14). Given the varying estimates, and the lack of detail accompanying some of those estimates, EPA has determined that a relatively short compliance date extension until March 8, 2022, is necessary to avoid immediate and significant disruption in the supply chains for important articles, to provide the public with regulatory certainty in the near term, and to allow EPA additional time to further evaluate the need to again extend the compliance deadlines for PIP (3:1).

EPA disagrees with the commenter who contended that any compliance date extension should be evaluated under TSCA section 6(g). As noted in response to similar comments on the 2019 proposed rule, “TSCA section 6(h)(4) directs EPA to issue regulations that reduce exposure to PBT chemicals `to the extent practicable,' not to regulate beyond the point of practicability and then issue [section 6(g)] exemptions that would limit the scope of those regulations” (Ref. 26, at p. 44). EPA views this compliance date extension as consistent with this standard, and as discussed in Unit III, with the requirements of TSCA section 6(d) to ensure that the compliance dates are “as soon as practicable” and provide a “reasonable transition period,” because this action is necessary to avoid immediate and significant disruption in the supply chains for important articles, such as cellular telephones and the HVACR equipment used to cool people, buildings, and to transport and store COVID-19 vaccines and keep them at the appropriate temperature, not as an excuse for a failure to comment earlier in this rulemaking process.

TSCA section 6(d)(1)(A) directs EPA to specify a date on which the TSCA section 6(a) rule is to take effect that is “as soon as practicable.” TSCA section 6(d)(1)(B) requires EPA to specify mandatory compliance dates for each requirement of a rule promulgated under TSCA section 6(a), which must be as soon as practicable but no later than five years after promulgation except as provided in subsections (C) and (D) or in the case of a use exempted under TSCA section 6(g). TSCA section 6(d)(1)(C) states that EPA must specify mandatory compliance dates for the start of ban or phase-out requirements under a TSCA section 6(a) rule, which must be as soon as practicable but no later than five years after promulgation, except in the case of a use exempted under TSCA section 6(g); and subsection (D) requires EPA to specify mandatory compliance dates for full implementation of ban or phase-out requirements, which must be as soon as practicable. Additionally, TSCA section 6(d)(1)(E) directs EPA to provide for a reasonable transition period.

As noted in the preamble to the January 2021 final rule, the phrases “as soon as practicable” and “reasonable transition period” as used in TSCA section 6(d)(1) are undefined, and the legislative history on TSCA section 6(d) is limited. Given the ambiguity in the statute, for purposes of the final rule under TSCA section 6(h), EPA presumed a 60-day compliance date was “as soon as practicable,” unless there was support for a lengthier period of time on the basis of reasonably available information, such as information submitted in comments on the Exposure and Use Assessment or on the proposed rule, or in stakeholder dialogues. At the time, EPA believed that such a presumption would ensure that the compliance schedule is “as soon as practicable,” particularly in the context of the TSCA section 6(h) rules for chemicals identified as persistent, bioaccumulative and toxic, and given that the expedited timeframe for issuing a TSCA section 6(h) proposed rule did not allow time for collection and assessment of new information separate from the comment opportunities during the development of and in response to the proposed rule. EPA noted that this approach also allows for submission of information from the sources most likely to have the information that would impact an EPA determination on whether or how best to adjust the compliance deadline to ensure that the final compliance deadline chosen is both “as soon as practicable” and provides a “reasonable transition period.”

As previously noted, EPA did not receive timely or specific input from certain stakeholders during any public comment periods prior to issuance of the 2019 proposed rule or in response to the proposed rule regarding the presence of PIP (3:1) in myriad articles. Absent this input, in the final rule EPA determined that PIP (3:1) was not widely present in articles outside the aerospace and automotive sectors and that the presumption that a 60-day compliance date was practicable was appropriate. The comments received in response to EPA's March 2021 notification and request for comment (Ref. 3), and the communications received before that document published in the Federal Register , presented new information demonstrating that a 60-day compliance date was not a reasonable transition period for the full implementation of a ban or phase-out for many industries.

From the comments received in response to EPA's March 2021 notification and request for comment (Ref. 3), as well the information provided during stakeholder meetings since the publication of the January 2021 final rule on PIP (3:1), it is clear to EPA that the compliance date for PIP (3:1) and PIP (3:1)-containing articles, but not PIP (3:1)-containing products, must be extended. While some commenters provided detailed descriptions of the affected articles and detailed timelines for the phasing out of PIP (3:1) from these articles, most did not provide the specificity that EPA was looking for in response to the March 2021 notification and request for comment (Ref. 3). In addition, many commenters stated that they were still in the early stages of identifying the affected articles (Ref. 19). Therefore, EPA has determined that a relatively short compliance date extension until March 8, 2022, is necessary to avoid immediate and significant disruption in the supply chains for important articles, to provide the public with regulatory certainty in the near term, and to allow EPA additional time to further evaluate the need to again extend the compliance deadlines for PIP (3:1).

In addition to this final rule, EPA is planning to issue a separate NPRM in the near future to provide an opportunity for stakeholders to submit comments on the need for an additional compliance date extension for certain PIP (3:1)-containing articles, and the PIP (3:1) used to make those articles, and to include in their comments specific information detailing the necessity of such an extension. EPA is seeking this additional comment because EPA does not yet have sufficient information on which to base a decision on the length of time that will ultimately be needed for the affected industry sectors to comply with the prohibitions in the January 2021 final rule. During this upcoming comment period, EPA expects that industry will be able to provide more detailed information on the number and type of articles affected by the January 2021 final rule, given the ongoing work on the identification process and the additional six months as of the date that the comment period will close.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

Additional information about these statutes and Executive orders can be found at https://www2.epa.gov/lawsregulations/laws-and-executive-orders.

This action is a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) and was submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). Any changes made in response to OMB review have been reflected in the docket for this action.

This action does not impose any new information collection activities or burden subject to OMB review and approval under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). OMB has previously approved the information collection activities contained in the existing regulations and associated burden under OMB Control No. 2070-0213 (EPA ICR No. 2599.02). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This final rule extends the compliance date for a prohibition on the processing and distributing in commerce of PIP (3:1) for use in certain articles and the processing and distributing in commerce of certain PIP (3:1)-containing articles, along with the associated recordkeeping requirements, from March 8, 2021, to March 8, 2022. EPA has therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.

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

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). 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 (65 FR 67249, November 9, 2000). This final rule will not impose substantial direct compliance costs on Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.

This action is not a “covered regulatory action” under Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not an economically significant regulatory action as defined by Executive Order 12866.

This is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This action does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As discussed in Unit II., this action is necessary to avoid widespread disruptions in the supply chains for a wide variety of essential goods and would not otherwise materially alter the final rule as published.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons set forth in the preamble, 40 CFR part 751 is amended as follows:

In FR Doc. 2021-19186, beginning on page 50653 in the Federal Register of Friday, September 10, 2021, the following correction is made:

1. On page 50653, in the first column, “ DATES: This rule is effective October 12, 2021.” is corrected to read “ DATES: This rule is effective October 1, 2021.”

The Magnuson-Stevens Act requires that each regional fishery management council submit any FMP amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary). The Magnuson-Stevens Act also requires that NMFS, upon receiving an FMP amendment, immediately publish a document in the Federal Register announcing that the amendment is available for public review and comment.

The Notice of Availability (NOA) for the Amendments was published in the Federal Register on June 14, 2021 (86 FR 31474) with a 60-day comment period that ended on August 13, 2021. NMFS received no comments during the public comment period on the NOA.

NMFS determined that the Amendments are consistent with the Magnuson-Stevens Act and other applicable laws, and the Secretary approved the Amendments on September 13, 2021. The June 14, 2021, NOA contains additional information on this action. No changes to Federal regulations are necessary to implement the Amendments.

NMFS manages the crab, scallop, and salmon fisheries in Alaska's exclusive economic zone under the Crab, Scallop, and Salmon FMPs. The Council prepared these FMPs under the authority of the Magnuson-Stevens Act, 16 U.S.C. 1801 et seq. Regulations governing U.S. fisheries and implementing the FMPs appear at 50 CFR parts 600, 679, and 680.

Section 303(a)(11) of the Magnuson-Stevens Act requires that any FMP establish a standardized bycatch reporting methodology (SBRM) to assess the amount and type of bycatch occurring in the fishery, and include conservation and management measures that, to the extent practicable and in the following priority: (A) Minimize bycatch, and (B) minimize the mortality of bycatch that cannot be avoided (16 U.S.C. 1853(a)(11)).

On January 19, 2017, NMFS published a final rule (82 FR 6317) establishing national guidance for compliance with this requirement. As required by 50 CFR 600.1610(b), regional fishery management councils, in coordination with NMFS, must review their FMPs and make any necessary changes so all FMPs are consistent with the guidance by February 21, 2022.

The national guidance, codified at 50 CFR 600.1605(a), defines an SBRM as “an established, consistent procedure or procedures used to collect, record, and report bycatch data in a fishery.” This information, in conjunction with other relevant sources, is used to assess the amount and type of bycatch occurring in the fishery and inform the development of conservation and management measures to minimize bycatch. The regulations require that an FMP identify the required procedure or procedures that constitutes the SBRM for the fishery and explain how the procedure meets the purpose to collect, record, and report bycatch data.

The SBRM final rule requires the Council to explain how the SBRMs meet the stated purpose in the rule based on an analysis of four considerations: (1) Characteristics of bycatch in the fishery, (2) the feasibility of the reporting methodology, (3) the uncertainty of data resulting from the methodology, and (4) how the data will be used to assess the amount and type of bycatch occurring in the fishery (50 CFR 600.1610(a)). The Council must address these considerations when reviewing or establishing an SBRM.

In February 2020, the Council received a report on current FMPs managed by the Council and their consistency with the SBRM final rule. At that meeting, the Council determined that the FMPs for Groundfish of the Bering Sea and Aleutian Islands Management Area, Groundfish of the Gulf of Alaska, and Fish Resources of the Arctic Management Area were in compliance with the SBRM final rule. The Council also determined that the Crab, Scallop, and Salmon FMPs needed to be updated to explicitly identify the SBRMs to be consistent with the SBRM final rule and should therefore be amended.

The Council took final action at its February 2021 meeting. In taking final action, the Council noted that changes to the Crab, Scallop, and Salmon FMPs were necessary to ensure those FMPs are consistent with the Magnuson-Stevens Act and the SBRM final rule. During deliberation, the Council recognized that the Crab, Scallop, and Salmon FMPs currently contain management measures such as the State of Alaska (State)'s Scallop and Crab Observer Programs, industry reports, and fish tickets that provide SBRMs consistent with the national guidance. However, these are not explicitly identified as the SBRM in each FMP.

The Council recommended the three FMPs be amended to explicitly state the SBRMs and explain how they meet the purpose of collecting, recording, and reporting bycatch data. The Council also noted that the descriptions of the management measures that contribute to the SBRM (such as the Crab Observer Program) may be outdated. The Council indicated that the description of these management measures may be updated as the FMPs are amended by this action, and any such updates will be consistent with the SBRM regulations and be done in coordination with the State. Updates to the language of management measures for SBRM consistency will not add any new reporting requirements.

This action does not add any new reporting requirements and does not change any regulatory requirements. This action only adds to or modifies language in the Crab, Scallop, and Salmon FMPs to more transparently reflect and align with how bycatch is currently reported in the fisheries managed by the Council by explicitly stating the SBRM in each fishery.

The combination of the Crab Observer Program and industry reports provides a standard reporting methodology that is consistent with the SBRM final rule. Descriptions of these management measures currently exist in the Crab FMP; however, the FMP needed to be amended to explicitly identify these methodologies as the SBRM. Amendment 51 to the Crab FMP adds language to Sections 8.1.2, 8.3.1, and 8.3.7 of the FMP to identify the existing SBRM and to explain how it meets the purpose of collecting, recording, and reporting bycatch.

The combination of industry reports and the Scallop Observer Program provides a standard reporting methodology that is consistent with the SBRM final rule. Descriptions of these management measures currently exist in the Scallop FMP; however, the FMP needed to be amended to explicitly identify these methodologies as the SBRM. Amendment 17 to the Scallop FMP adds language to Section 3.2.12 of the FMP to identify the SBRM and explain how it meets the purpose of collecting, recording, and reporting bycatch.

Fish tickets are the standardized reporting methodology in place for reporting catch of salmon species that are subject to maximum retainable amounts. The Statewide Harvest Survey and creel surveys, as well as the Saltwater Guide Logbooks, are the standardized reporting methodology in place for reporting in the salmon sport fishery and the guided sport fishery. However, the Salmon FMP needed to be amended in order to explicitly identify these methodologies as the SBRM. Amendment 15 to the Salmon FMP adds language to Section 8.1.8 of the FMP (Bycatch Management) to identify the SBRM and explain how it meets the purpose of collecting, recording, and reporting bycatch in the directed commercial salmon fishery. In addition, Amendment 15 adds language to Section 8.1.9 (Sport Fisheries) to identify the SBRM for the salmon sport fishery.

During the public comment period for the NOA for the Amendments, NMFS received no comments. NMFS is not disapproving any part of the Amendments.