On August 12, 2021 (86 FR 44262), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to revise the TN Americas LLC, NUHOMS® EOS Dry Spent Fuel Storage System listing within the “List of approved spent fuel storage casks” to include Amendment No. 2 to Certificate of Compliance No. 1042. Amendment No. 2 revises the certificate of compliance to add a dry shielded canister for storage, add new heat load zone configurations, and make other changes to the storage system. Amendment No. 2 also changes the certificate of compliance and technical specifications, and updates the final safety analysis report for consistency and clarity. In the direct final rule published on August 12, 2021, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on October 26, 2021. The NRC did not receive any comments on the direct final rule. Therefore, the direct final rule will become effective as scheduled.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0782 and Project Identifier MCAI-2021-00915-A” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

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

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0189-E, dated August 9, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on ELPROP 3-1-1P propellers that are installed on, but not limited to, AERO Models AT-3R100 and AT-4LSA airplanes. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0782.

The FAA reviewed AERO Mandatory Service Bulletin (MSB) EPB.01.B, Issue 1, dated May 14, 2009, which applies to propellers with serial numbers 3E.001 through 3E.088; and AERO MSB EPB.02.B, Issue 1, dated July 20, 2021, which applies to propellers with serial numbers 3E.089 and larger. This service information specifies procedures for inspecting the propeller hub for cracks and contacting the design approval holder for corrective action. 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.

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

This AD requires accomplishing the actions specified in the service information already described.

The MCAI applies to the Model AT-4LSA airplane, and this AD does not because it does not have an FAA type certificate.

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

The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because there are no airplanes currently on the U.S. registry and thus, it is unlikely that the FAA will receive any adverse comments or useful information about this AD from U.S. operators. Accordingly, notice and opportunity for prior public comment are unnecessary pursuant to 5 U.S.C. 553(b)(3)(B).

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

There are currently no affected airplanes on the U.S. registry. In the event an affected airplane becomes a U.S. registered airplane, the following is an estimate of the costs to comply with this AD.

The FAA estimates that it would take .5 work-hour per airplane to comply with the inspection requirement in this AD. The average labor rate is $85 per work-hour. Based on these figures, the FAA estimates the cost of this AD to be $42.50 per airplane, per inspection cycle.

Corrective action if cracks are found would vary significantly from airplane to airplane. Therefore, the FAA is unable to estimate what the cost of corrective action would be per airplane.

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it revokes the Class E airspace at Creech AFB Airport, Indian Springs, NV, to ensure the safety and management of operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR 40790; July 29, 2021) for Docket No. FAA-2021-0591 to revoke the Class E airspace at Creech AFB Airport, Indian Springs, NV. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. Two comments were received. One comment is in favor of the Class E airspace revocation and the other comment is opposed to the airspace revocation.

The commenter who opposes the Class E revocation discussed concerns about the airspace's future use. Class E airspace areas, extending upward from 700 feet or more above the surface of the earth, are designated for airports with approved instrument approach procedure. Creech AFB Airport does not have approved instrument approach procedures, as such, the Class E airspace is being revoked. If the airport develops instrument procedures, the FAA will reevaluate the airspace to ensure containment of the instrument procedures.

Class D and Class E5 airspace designations are published in paragraphs 5000, and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 revokes the Class E airspace extending upward from 700 feet above the surface at Creech AFB Airport, Indian Springs, NV. This type of Class E airspace is designed to contain instrument approach procedures. This Class E airspace area is not required because there are no instrument procedures published for Creech AFB Airport.

This action also implements two administrative updates to the Class D legal description. The second line of the text header is updated from “Indian Springs Air Force Auxiliary Field, NV” to “Creech AFB Airport, NV”, to match the FAA database. Additionally, the third line of the text header is updated from “(lat. 36°35′14″ N, long. 115°40′24″ W)” to “(lat. 36°35′11″ N, long. 115°40′39″ W)”, to match the FAA database.

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

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

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

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

We are adopting an updated EDGAR Filer Manual, Volume I: “General Information,” Version 39 (September 2021) and Volume II: “EDGAR Filing,” Version 59 (September 2021), amendments to 17 CFR 232.301 (“Rule 301 of Regulation S-T”); and amendments to Form ID (referenced in 17 CFR 239.63, 17 CFR 269.7, and 17 CFR 274.402). The updated Filer Manual volumes are incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains technical specifications needed for filers to make submissions on EDGAR. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format. 1 Filers should consult the Filer Manual in conjunction with our rules governing mandated electronic filings when preparing documents for electronic submission.

Volume I of the EDGAR Filer Manual provides that new filers must request EDGAR access by submitting Form ID. 2 Form ID will be revised to include a privacy notice that will supplement the general Privacy Act Notice available at SEC.gov by providing more detailed information tailored to Form ID. 3

Form ID will also be revised to clarify that information provided on the form may become publicly available. Form ID requires new filers to provide mailing, business, and contact addresses; telephone numbers for those addresses; and their email address. It is not uncommon for individual filers or small business owners to list personal telephone numbers and home addresses on Form ID. Although Form ID submissions are not publicly posted, some information from Form ID is made public and some information may be automatically incorporated in other filings. 4

Separately, Volume I will be amended to alert filers that the staff may request that filers provide relevant documents to support requests to change a company name. Currently, Volume I requires that filers maintain current company information in EDGAR. Changes to a filer's company name are manually reviewed by SEC staff. Requesting that filers provide documents supporting name changes will further the integrity of EDGAR by helping assure that company names on accounts are accurate.

EDGAR is being updated in Release 21.3, and corresponding amendments to Volume II of the Filer Manual will be made to reflect these changes, as described below. 5

On April 8, 2020, the Commission adopted rules to modify the registration, communications, and offering processes for business development companies (“BDCs”) and other closed-end investment companies under the Securities Act of 1933. 6 As part of the rulemaking, the Commission amended 17 CFR 230.424, 230.456, and 230.457 (Securities Act rules 424, 456, and 457), as well as Forms S-1, S-3, F-1, and F-3 to permit issuers of certain continuously offered, exchange-traded products that share a number of similarities to exchange-traded funds, but are not registered under the Investment Company Act, to elect to register an offering of an indeterminate amount of securities and to pay registration fees in a manner consistent with mutual funds and exchange-traded funds. Accordingly, EDGAR Release 21.3 will add new submission form type 424I to permit these filers to register an offering of “Exchange-Traded Vehicle Securities,” with registration fees due annually on a net basis.

As part of that same rulemaking, the Commission adopted a requirement that filings on Form 24F-2 be submitted in a structured format. EDGAR Release 21.3 will introduce a Pilot phase for filing Form 24F-2 in a structured format.

On November 2, 2020, the Commission adopted a new rule and amended an existing rule and forms to provide an updated, comprehensive approach to the regulation and use of derivatives and certain other transactions by mutual funds (other than money market funds), exchange-traded funds, registered closed-end funds, and BDCs (collectively “funds”). 7 To implement these changes, EDGAR Release 21.3 will add new submission form types N-RN and N-RN/A (formerly known as N-LIQUID and N-LIQUID/A) to allow funds to report certain information confidentially to the Commission. EDGAR Release 21.3 will also revise submission form types N-CEN, N-CEN/A, NPORT-P, NPORT-P/A, NPORT-NP, and NPORT-NP/A to allow funds to report certain information regarding derivatives and other transactions.

On September 19, 2019, the Commission adopted recordkeeping, reporting, and notification requirements applicable to security-based swap dealers (“SBSDs”) and major security-based swap participants (“MSBSPs”), securities count requirements applicable to certain SBSDs, and additional recordkeeping requirements applicable to broker-dealers to account for their security-based swap and swap activities. 8 Accordingly, EDGAR Release 21.3 will update EDGAR to allow reports on Form X-17A-5 to be filed by two new categories of registrants (SBSDs and MSBSPs).

On December 18, 2019, the Commission adopted rules requiring the application of specific risk mitigation techniques to portfolios of uncleared security-based swaps. 9 To implement one of these rules, which relates to the requirement to reconcile outstanding securities-based swap transactions, EDGAR Release 21.3 will add new submission form types SBS DISPUTE NOTICE and SBS DISPUTE NOTICE/A to allow SBSDs and MSBSPs to provide the Commission with notices of certain valuation disputes with their counterparties.

On November 2, 2020, the Commission amended rules and forms to simplify, harmonize, and improve certain aspects of the exempt offering framework to promote capital formation while preserving or enhancing important investor protections. 10 To implement these rules, EDGAR Release 21.3 will increase the Total Offering Amount in “Item 13: Offering and Sales Amounts” from a maximum of $5 million to $10 million if any “Rule 504” (17 CFR 230.504) item is selected on submission form types D and D/A.

Also, the following updates will be made to Volume II of EDGAR Filer Manual:

• EDGAR will no longer accept the IFRS-2019 Taxonomy. Please see https://www.sec.gov/info/edgar/ edgartaxonomies.shtml for a complete list of supported standard Taxonomies in EDGAR. 11

• EDGAR will no longer use the description “Taiwan, Province of China” for Taiwan and will only use the term “Taiwan” without a following modifier, in compliance with the U.S. Government's Geopolitical Entities, Names, and Codes Standard. The state/country list of values for all XML Schemas will be updated to reflect this change.

• EDGAR will be updated to accept the SBSE-C Certification form immediately after receiving the SBSE registration forms SBSE, SBSE-A and SBSE-BD.

EDGAR Release 21.3 will also make general functional updates that do not require changes to the Filer Manual. In particular:

• The EDGAR Filer Management, EDGAR Filing, and EDGAR Online Forms Management websites will be updated to eliminate support for Internet Explorer and add support for Microsoft Edge, in accord with the SEC's move to Edge generally.

• The three websites will also be revised to include a general privacy notice, similar to the more detailed privacy notice that will be included in Form ID discussed in Section II. 12 The general privacy notice will link to the Privacy Act Notice available at SEC.gov and to guidance for filers regarding how to remove personally identifiable information (PII) inadvertently included in EDGAR filings. 13

Along with the adoption of the updated Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of the current revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual is available at https://www.sec.gov/edgar/filer-information/current-edgar-filer-manual. Typically, the EDGAR Filer Manual is also available for website viewing and printing in the Commission's Public Reference Room, 100 F Street NE, Room 1580, Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m. Operating conditions may limit access to the Commission's Public Reference Room.

Because the Filer Manual, and form and rule amendments, relate solely to agency procedures or practice and do not substantially alter the rights and obligations of non-agency parties, publication for notice and comment is not required under the Administrative Procedure Act (“APA”). 14 It follows that the amendments do not require analysis under requirements of the Regulatory Flexibility Act  15 or a report to Congress under the Small Business Regulatory Fairness Act. 16

The effective date for the updated Filer Manual and related rule amendments is October 7, 2021. In accordance with the APA, 17 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with the related system upgrades.

We are adopting the amendments to Regulation S-T and Form ID under the authority in Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933, 18 Sections 3, 12, 13, 14, 15, 15B, 23, and 35A of the Securities Exchange Act of 1934, 19 Section 319 of the Trust Indenture Act of 1939, 20 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940. 21

In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

This rule makes a technical update to replace an outdated reference to Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, with the updated name of Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (J-NONIMMIGRANT) (hereinafter, Form DS-2019), which the Department of State has maintained since 2001.

Effective October 1, 1999, in accordance with sections 301 and 312 of the Foreign Affairs Reform and Restructuring Act of 1998, as amended, 1 the United States Information Agency, which administered the Exchange Visitor Program, was abolished and its functions were transferred to the Department of State. Following the transfer, the Department of State's Bureau of Educational and Cultural Affairs (ECA) assumed responsibility for the Exchange Visitor Program. On October 11, 2001, the Office of Management and Budget approved ECA's request to replace the Form IAP-66 with Form DS-2019. Then, on April 11, 2002, ECA published an interim final rule that replaced the outdated Form IAP-66 with the new Form DS-2019 in several sections of 22 CFR part 62, 2 but no corresponding changes were made in 22 CFR part 41 at the time.

Exchange Visitor Program sponsors issue Forms DS-2019 to prospective exchange visitors. The Form DS-2019 identifies the exchange visitor and his or her designated sponsor, and provides a brief description of the exchange visitor's program, including the start and end date, category of exchange, and an estimate of the cost of the exchange program. The prospective exchange visitor must provide a properly executed Form DS-2019 to a consular officer to be issued a J-1 nonimmigrant visa. See 22 CFR 41.62(a)(1). After being admitted to the United States, a responsible officer extending the program of an exchange visitor is required to provide the exchange visitor a duly executed Form DS-2019 reflecting the extension and provide a notification copy of such form to the Department of State. 22 CFR 62.43(b).

By amending 22 CFR 41.112, this rule will update the Department's regulations governing the process through which the validity of an expired nonimmigrant visa may be automatically extended to the date of application for readmission under certain circumstances. Certain exchange visitors may apply with DHS for readmission after an absence of 30 days or less solely in a contiguous territory or adjacent islands other than Cuba by presenting a current Form DS-2019 and a valid passport. 3 22 CFR 41.112(d)(2)(ii). Additionally, in cases where DHS has changed the original nonimmigrant classification to another nonimmigrant classification, the validity of the expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for admission, and the visa may be converted as necessary to that changed classification. 22 CFR 41.112(d)(1)(ii).

This rule constitutes a rule of policy and procedure, and as a result, it is exempt from notice and comment under 5 U.S.C. 553(b)(3)(A).

Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553(b), it is exempt from the regulatory flexibility analysis requirements set forth by the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). Nonetheless, the Department of State certifies that this rule will not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule does not require the Department of State to prepare a statement because it will not result in any such expenditure, nor will it significantly or uniquely affect small governments. This rule involves visas, which involves foreign individuals, and does not directly or substantially affect state, local, or tribal governments, or businesses.

This rule is not a major rule as defined in 5 U.S.C. 804. 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 adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign-based companies in domestic and import markets.

Executive Orders 13563 and 12866 direct agencies to assess 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, distributed impacts, and equity). These Executive Orders stress the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department of State has examined this rule in light of Executive Order 13563, and has determined that the rulemaking is consistent with the guidance therein. The Department of State has reviewed this rulemaking to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. There are no anticipated direct costs to the public associated with this rule.

This regulation will not have substantial direct effect on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders 12372 and 13132.

The Department of State has reviewed the rule in light of sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department of State has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. The Form DS-2019, Certificate of Eligibility for Exchange Visitor Status (J-NONIMMIGRANT), is approved under the PRA (OMB Control No. 1405-0119).

Accordingly, for the reasons set forth in the preamble, 22 CFR Ppart 41 is amended to read as follows:

This rule provides that, during the COVID-19 pandemic and other future emergencies, the Secretary may require that public housing authorities (PHAs) and PBRA owners provide tenants with specified information regarding any Federal funding that is made available to prevent eviction for nonpayment of rent during such emergency. The Secretary may also extend the time period before lease termination for nonpayment of rent to a minimum of 30 days after the tenant has received such information. This interim final rule will provide an important opportunity for tenants who face hardship due to emergencies, such as those who have lost income during the COVID-19 pandemic and are unable to pay rent, to learn about emergency funding opportunities and take steps to secure emergency funding. This will in turn prevent unnecessary evictions that would negatively impact the efficacy of HUD's programs.

Since the first case of coronavirus disease 2019 (COVID-19) was discovered in the United States in January 2020, the disease has infected over 40 million Americans and killed over 631,000. 1 The disease significantly impacted the economy, resulting in millions of Americans losing their jobs or working fewer hours. In April 2020, the national unemployment rate reached its highest level in over seventy years following the most severe month-over-month decline in employment on record. 2 Between March 15 and May 15, 2020, over 35 million Americans filed initial jobless claims, and the unemployment rate climbed to over 14 percent in April 2020—the highest monthly level since 1948, when the U.S. Bureau of Labor Statistics started tracking this data. 3 The loss of jobs created by the COVID-19 pandemic exacerbated an affordable housing crisis that predated the pandemic. During this time, many households have faced housing insecurity. 4 Amid this once-in-a-century crisis, HUD and the Federal Government began intense efforts to provide support for affected families, and State, territorial, Tribal, and local governments (State, local, and Tribal governments) have been called on to respond to this crisis with emergency assistance at an immense scale.

On January 31, 2020, the Secretary of Health and Human Services (HHS) issued a determination under section 319 of the Public Health Service Act, 5 that a national public health emergency existed as of January 27, 2020, because of the COVID-19 pandemic. 6 On March 13, 2020, the President declared a nationwide emergency pursuant to Section 501(b) of the Stafford Act. 7 All 50 states, the District of Columbia, and 5 territories were approved for major disaster declarations to assist with additional needs identified under the nationwide emergency declaration for COVID-19. On February 21, 2021, the President extended the national emergency, stating that the COVID-19 pandemic remains a significant risk to the United States. 8

In response to the national emergency declaration, HUD and other Federal agencies began efforts to support families impacted financially by the COVID-19 pandemic and at risk of losing their housing. 9 Additionally, the Coronavirus Aid, Relief, and Economic Security Act, 2020 “CARES Act,” a $2.2 trillion economic stimulus bill, was signed into law on March 27, 2020. 10 Included in the CARES Act were provisions providing foreclosure and eviction moratoriums and providing additional financial relief for owners of certain multifamily housing projects in an effort to ensure continued stability of the housing market. 11

Also included in the CARES Act was funding for several HUD programs to prevent, prepare for, and respond to COVID-19, including increased rental subsidies in HUD-assisted housing to pay for increased operating costs and loss of rental income due to tenants' loss of income during the COVID-19 national emergency. This additional funding was meant to help ensure that HUD's assisted housing programs continued to operate as effectively as possible and were not burdened by the additional expenses associated with preventable evictions.

Other efforts were also underway to prevent an onslaught of evictions that would lead to an increase in homelessness and cohabitation, which according to the CDC, also create an environment that would further spread COVID-19. 12 As a result, on September 4, 2020, the CDC Director issued an Order temporarily halting evictions in the United States due to the ongoing public health crisis. 13 That original CDC Order expired on December 31, 2020, subject to extension, modification, or recission. The Consolidated Appropriations Act, 2021, 14 extended that Order until January 31, 2021, and the original CDC Order was extended multiple times due to the continued national emergency.

On August 3, 2021, following the surge in COVID-19 infections due to the highly contagious Delta variant, the CDC Director issued a new order temporarily halting evictions for persons in jurisdictions experiencing substantial or high rates of transmission. However, on August 26, 2021, the Supreme Court of the United States vacated the stay of a district court decision invalidating the original and new CDC Order, holding that the applicants had a substantial likelihood of success on the merits. 15 In considering the facts, the Court pointed to the availability of rental-assistance funds as, in its view, diminishing the government's ongoing interest in maintaining an eviction moratorium. 16 Therefore, without the CDC Order in place, landlords may resume evictions across the United States during the national emergency, unless otherwise precluded under state or local eviction moratoriums.

In addition to trying to reduce evictions through the CARES Act, Congress created the Emergency Rental Assistance (ERA) program, funded through the Department of the Treasury, to make funds available to assist households that are unable to pay rent or utilities and provide funds to landlords to help cover tenants' rent and utilities payments.

The first tranche of ERA funding, ERA1, provides up to $25 billion under the Consolidated Appropriations Act, 2021, and the second tranche, ERA2, provides up to $21.55 billion under the American Rescue Plan Act of 2021, which was enacted on March 11, 2021. 17 The funds are provided directly to states, U.S. territories, local governments, and, in the case of ERA1, also to Indian tribes or Tribally Designated Housing Entities, as applicable, and the Department of Hawaiian Home Lands. Grantees then make these funds available to provide rental assistance to eligible households through existing or newly created rental assistance programs. These funds may be disbursed to either tenants or landlords. Public Housing Authorities (PHAs), Housing Choice Voucher (HCV) landlords, other owners of HUD-assisted properties, and utility providers may accept funds from the ERA program for rental and most utility arrearages for HUD-assisted families. HUD-assisted families are eligible for assistance from the ERA program, provided that ERA funds are not applied to costs that have been or will be reimbursed under any other Federal assistance, including Housing Assistance Payments in the HCV Program, Operating Fund assistance in the Public Housing program, or rental assistance in Multifamily Housing programs.

The funding is designed to assist households that demonstrate a risk of experiencing homelessness or housing instability. Eligible households for ERA must have a household income at or below 80 percent of area median income, which corresponds with income thresholds for HUD assistance. 18 For both ERA1 and ERA2, other expenses related to housing include relocation expenses (including prospective relocation expenses), such as rental security deposits, and rental fees, which may include application or screening fees. Those expenses can also include reasonable accrued late fees (if not included in rental or utility arrears), and internet service provided to the rental unit.

The pace of distributing emergency funds that could prevent evictions for nonpayment of rent started slowly and faces a number of obstacles but has since picked up. From January to May 2021, only $1.45 billion was delivered under ERA for rent, utilities, and arrears out of a total of $25 billion. 19 In June 2021, more than $1.5 billion from ERA was paid directly to households, more than in all previous months combined. 20 July 2021 data demonstrates continued, steady improvement in funds distribution, particularly by States and local agencies following the Department of Treasury guidance. 21

The application and approval process for ERA funds and the time it takes to access these funds vary by grantee. While it may generally be expected to take a few weeks for applications to be processed, and funds to be disbursed, some applicants have faced longer delays. 22

There are multiple causes for the slow rollout of ERA assistance. Of particular concern with respect to this rulemaking, they include obstacles to tenants knowing about and applying for available funds, such as complexities in the application processes, privacy concerns, and a lack of understanding as to funding availability. 23 The bottom line is that ERA funding still has not reached many eligible tenants at risk of eviction for nonpayment, creating an increased risk that evictions will occur simply because funding that is specifically meant to help pay much or all of the back rent in question is not secured in time.

HUD is continuously evaluating how best to help tenants and housing providers mitigate the pandemic's impact and economic issues arising during this national emergency, while ensuring that the various resources that are available to address the backlog of unpaid rent are fully utilized. HUD has determined that, in the immediate aftermath of the judicial vacatur of the CDC eviction moratorium, it needs to act to prevent a wave of preventable evictions that will interfere with the orderly operation of HUD's programs and the accomplishment of HUD's mission. Historically, 3.6 million eviction cases are filed per year in the United States, resulting in 1.5 million annual eviction judgments. 24 But now, as more renters fell behind on their rental payments during the COVID-19 pandemic, many more households are at risk of eviction. As of July 2021, just before the CDC moratorium on evictions was vacated, 6.5 million households nationwide were at risk of eviction.

This interim final rule follows and complements earlier HUD actions, taken while the CDC moratoriums were in effect, aimed at assisting HUD-assisted tenants and landlords with securing available resources that assist with the payment of back rent and avoid unnecessary evictions for non-payment. For example, HUD issued guidance recommending that all PHAs make tenants aware of ERA funding and guidance about accepting ERA funding in multifamily housing. 25 Nonetheless, the ERA program's implementation indicates that many tenants (including in HUD-assisted properties) may remain unaware of or do not understand how to access ERA resources, have been unable to access the funds in time, or have incorrectly believed that they need not apply for ERA because rental obligations were suspended during the eviction moratorium. Many of those tenants may be eligible for ERA, yet they are not benefiting from it, thus requiring HUD to take this further, related action. 26

HUD also issued guidance requesting that PHAs and owners work with tenants to recertify their rents for loss income or job loss, thus effectively lowering the rent payment HUD-supported tenants must make and helping them avoid eviction. However, the possibility of recertification does not replace access to ERA funding, for a variety of reasons. This policy has been helpful but has not fully solved the problem. Not every tenant who could benefit from recertification has, whether because PHAs and owners have not reached out offering recertifications or because the tenants have chosen for a variety of reasons not to seek recertification. Additionally, PHAs and owners might permit recertification for rent going forward, but not recertify the loss of income retroactively, meaning that coverage of rent arrears by ERA could still be necessary to help prevent future evictions.

HUD now must take further action to ensure that tenants in public housing and PBRA  27 assisted units who are eligible for funding during a national emergency are afforded notice about the funding and have the opportunity to secure it before a lease termination for nonpayment of rent occurs. Congress specifically intended that ERA funds would reduce what otherwise would be an intolerably high number of evictions due to financial issues caused by the national emergency. While States and localities continue to accelerate and improve their programs to provide funding to tenants, many tenants who now face imminent eviction with the moratorium gone still need additional time and information to access the ERA applications and complete the process. This interim final rule will ensure that HUD-assisted tenants who are facing eviction for nonpayment of rent have notice of available emergency funds and are afforded more time to access that assistance. A tenant who has been previously made aware of eligibility for emergency assistance may not think to apply for it until they are facing eviction, as many tenants now are following judicial vacatur of the CDC's eviction moratorium. HUD believes that getting tenants information about accessing emergency funding at the moment when they most need it and are likely to take advantage of it is crucial for fulfilling HUD's mission.

HUD has general rulemaking authority under 42 U.S.C. 3535 to implement its statutory mission, which is to provide assistance for housing to promote “the general welfare and security of the Nation and the health and living standards of [its] people.”  28 Each year, HUD provides States, local governments, and housing providers with billions of dollars in Federal financial assistance, appropriated and authorized by Congress. By taking the actions described here, HUD will prevent unnecessary evictions and the costs associated with them for both tenants and PHAs and owners, as compelled by its mission. These actions will promote the general welfare and security of the Nation by avoiding the societal ills exacerbated by the dislocations wrought by evictions in the time of a national emergency, such as deterioration of public health through disease transmission, extended disruptions to children's schooling after the prolonged period of disruption that many have already experienced during the current national emergency and all the other problems attendant to increased homelessness.

In addition, increases in evictions frustrates HUD's programmatic efficiency. It diverts resources to cover the costs of unnecessary evictions. Increased homelessness also makes it more difficult for HUD to provide services to the population that qualifies for HUD's programs. People experiencing homelessness are less likely to receive information about HUD's programs and to avail themselves of those programs. Accordingly, by reducing evictions, this rulemaking advances HUD's statutory purposes.

HUD also has specific statutory authority under the U.S. Housing Act of 1937 to prescribe procedures and requirements for PHAs to follow to ensure sound management practices and efficient operations. 29 Even more specifically, HUD has the authority to establish “procedures designed to assure the prompt payment and collection of rents and the prompt processing of evictions in the case of nonpayment of rent.”  30 HUD also has authority to specify procedures that ensure tenants receive the elements of due process, such as notice of relevant information, before adverse action is taken against them. 31

In particular, the Secretary is authorized to require public housing authorities to provide certain specified notice periods and other procedural protections (that are, in turn, incorporated into lease terms) before different types of eviction proceedings. 32 In exercising that statutory authority, HUD's regulations provide that in the case of termination for nonpayment of rent, a PHA shall provide at least fourteen days' written notice. See 24 CFR 966.4.

The Secretary also has statutory authority to establish requirements for project-based rental assistance. 33 This statutory authority provides that during the lease term, the owner must not “terminate the tenancy except for serious or repeated violation of the terms and conditions of the lease, for violation of applicable Federal, State, or local law, or for other good cause[.]”  34 The Secretary is also authorized to provide additional terms and conditions that must be incorporated into the tenant's lease. 35 This rulemaking is consistent with the statutory restrictions placed on program participants under this authority and HUD's regulations promulgated in this area.

Specifically, for termination for nonpayment of rent in HUD's project-based rental assistance programs, HUD's regulations generally provide that a termination notice must be provided with enough advance time to comply with both the rental agreement or lease and State laws. 36 See 24 CFR 247.4(c); 24 CFR 880.607(c)(2). By contrast, for termination of tenancy for “other good cause,” HUD regulations require 30 days' notice along with the provision of specific information to the tenant. See 24 CFR 880.607(c)(2). HUD imposes different notice requirements in specific programs; in one program, five working days' notice are required before tenancy termination while in another program the regulations provide for 10 days. See 24 CFR 882.511; 24 CFR 884.216.

This interim final rule amends these program regulations for public housing and project-based rental assistance to accommodate current and future exigencies, based on HUD's statutory authority and policy discretion, in three ways.

First, it provides that, when funding is available to assist tenants with nonpayment of rent during a national emergency, such as the current COVID-19 pandemic, the Secretary may determine that tenants facing eviction for nonpayment of rent must be provided with adequate time and notice to secure that funding. Upon that determination, the PHA or owner seeking to evict for non-payment must provide the tenant with such information as required by the Secretary for accessing the funds that are being made available related to the emergency. HUD will publish a Notice outlining the specific information to be included in the lease termination notification to assist eligible tenants in obtaining funding during this emergency. The Notice will explain the requirements for PHAs and owners to provide the information in a manner that ensures effective communication for individuals with disabilities, such as by providing the information in accessible electronic formats or in Braille, and to provide meaningful access for persons with limited English proficiency (LEP).

Second, to ensure tenants facing eviction for non-payment of rent are provided an adequate opportunity to access emergency funding, this interim final rule also extends the lease termination time period for such tenants to at least 30 days following the above-described notification. This 30-day period is consistent with the longest of the standard periods to which PHAs and owners are already accustomed for many evictions. For example, for evictions for reasons other than nonpayment of rent, health or safety concerns, or criminal activity, 42 U.S.C. 1437d(l) and 24 CFR 966.4(l)(3) already provide for a 30-day time period, unless State or local law allows a shorter period.

Similarly, HUD's PBRA regulations at 24 CFR 247.4, 24 CFR 880.607, and 24 CFR 882.511, as well as 42 U.S.C. 8013(i)(2)(B), all provide that when termination of the tenancy is based on other good cause, the tenancy will not terminate earlier than 30 days after the tenant receives the notice. Further, some state laws already provide for 30 days more generally or specifically for the current national emergency. 37

Third, the interim final rule provides that, for public housing, in addition to requiring the provision of specified information to tenants facing eviction for failure to pay rent, the Secretary may also require that all tenants be provided immediate notice of the availability of emergency funding. This notice may be posted in a public area, emailed to all tenants, or otherwise provided to groups of tenants rather than individuals, if the PHA so chooses.

HUD has chosen, based on its statutory authority for the public housing and PBRA programs, 38 its rulemaking authority, 39 and its policy discretion, to protect its assisted tenants and ensure it is fulfilling its statutory duties by promulgating this interim final rule.

HUD notes that this rule does not require PHAs or owners to modify tenant leases, which provide notification procedures and time periods that may be more limited than those provided in this rule. It would be administratively infeasible to update all public housing and PBRA leases to incorporate these changes, which are limited in the time they will be in effect, and to update all leases quickly enough to immediately protect families at-risk of eviction. However, the rule requires that PHAs and owners follow this rule in place of the usual lease provisions at times when its provisions are in effect, and does not prevent PHAs and owners from updating their leases if they so choose.

In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with both the APA, 5 U.S.C. 553, and its own regulations on rulemaking, 24 CFR part 10. Both the APA and Part 10, however, provide for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation, in addition to the Secretary's statutory and regulatory authority to waive regulations. 40 The good cause requirement is satisfied when the prior public procedure is “impracticable, unnecessary, or contrary to the public interest.”  41 In order to publish a rule for effect prior to receiving and responding to public comments, the agency must make a finding that at least one of these “good cause” exceptions applies.

HUD has determined that good cause exists to promulgate this interim final rule without prior notice and comment, to ensure that tenants who are imminently facing eviction for nonpayment of rent and are eligible for ERA funding receive the benefit of this rule's requirement of notice and an opportunity to access these funds. HUD finds that prior notice and comment is impracticable and would create undue harm by delaying this rule's effectiveness.

Given the recent vacatur of the CDC Order suspending evictions, which may put HUD-assisted tenants at risk of being abruptly evicted before they can receive ERA funding, immediate action is necessary to ensure that ERA funding reaches its intended beneficiaries quickly and efficiently. HUD is taking this action to foster stability in its own programs by preventing tenant turnover and increased homelessness; preventing unnecessary hardship for HUD-supported tenants; and promoting the most efficient and effective use of ERA funds.

HUD is also taking this action to prevent harm to HUD- assisted tenants and allow landlords and PHAs to avoid the time and expense of unnecessary evictions while simultaneously providing those landlords with the funds necessary to recoup arrearages and other eligible costs through ERA funding.

Good cause can be found when circumstances outside the agency's control make compliance with notice and comment impracticable. 42 HUD's good-cause determination is based on, among other things, the following considerations.

First, delay to allow prior notice and comment would effectively moot a significant aspect of this rule. This interim final rule is urgently needed right now, because the CDC Moratorium was abruptly enjoined prior to its anticipated expiration and thus evictions for nonpayment of rent are likely to proceed imminently. As some State and local grantees are only in the beginning stages of distributing ERA funds, many tenants may be unaware of their eligibility for such assistance or may be waiting for distribution of such assistance rather than acting themselves. Housing providers giving tenants information about ERA funding as soon as possible, and providing them with time to apply for it before more evictions occur, is crucial to ensuring the program's success and realizing Congress's intent in providing for ERA funding in the first place. The change in this interim final rule must be undertaken with expedience to ensure the maximum intended effects of ERA funding. Such potential harm to the public is increased right now, given the recent vacatur of the CDC order and the continued need for additional time for ERA funding to reach eligible beneficiaries, making it critical that this rule go into effect when it is needed most.

HUD's Regulatory Impact Analysis provides that an estimated 217,000 households could be protected under this rulemaking when implemented. Delaying this interim final rule's effective date for months would render it useless and unavailable for a significant fraction of the tenants and landlords who would benefit from the rule. That would result in unnecessary evictions, preventable homelessness, and increased cohabitation during a pandemic.

Second, aside from mooting this interim final rule's purpose, delay due to prior notice and comment would result in evictions that could have been prevented if tenants had received adequate notification that assistance was available, and the opportunity to apply for and receive approval and funding prior to being evicted. Specifically, during an advanced notice and comment period, it is likely that individuals who could have benefited from this rule would face eviction before the rule goes into effect. That includes tenants who are now in the process of applying for ERA; tenants who are eligible for ERA but do not know of their eligibility or how to apply; and those who have completed applications but are waiting for receipt of funds.

Third, increased evictions are harmful not only to the individual families who lose their housing, but to HUD's mission and society as a whole. This is particularly the case when the processing of unnecessary evictions leads to increased cost and administrative burden for program participants as well as an increase in homelessness and cohabitation in particularly vulnerable populations. As the Federal agency responsible for housing assistance and community development, 43 HUD has responsibility to promote housing stability and the efficient and effective use of its resources to secure housing for vulnerable families. An increase in evictions also leads to instability in communities from tenant turnover, 44 children needing to change schools, 45 increased cohabitation, 46 and increased homelessness, 47 which harms owners and undercuts the effectiveness of HUD's work by increasing the strain on its resources and programs. Reducing evictions results in less costs and resources that PHAs and owners have to expend to process evictions; reduced costs associated with unit turnover; and reduction in burdens associated with bringing on new tenants. Additionally, there is potential benefit accruing to the landlord from the tenant's securing of ERA funding through the repayment of back rent using ERA funding. There is also benefit to PHAs and owners to maintain tenants who are otherwise good tenants other than the impact of the COVID-19 pandemic on their income.

Delaying the rulemaking for prior notice and comment would be impracticable and contrary to the public interest. HUD believes the public interest is best served by ensuring that all tenants can benefit from the opportunity to access ERA funding and stay in HUD-assisted housing than limiting such benefit only to tenants who would benefit from this rule after notice and comment.

HUD values public input in its rulemakings and believes that providing the opportunity for comment enhances its regulations. HUD's regulations on rulemaking at 24 CFR part 10, provide for 60-days of public comment for proposed rules and an exception for good cause. Additionally, HUD often solicits comments on its rules and provides for a 60-day comment period even when not required under the APA. Due to the COVID-19 national emergency, delaying this rule to accept prior public comment would be contrary to the public interest. The provisions in this interim final rule are designed specifically to be limited in scope and apply only in a national emergency period. For the reasons explained above, HUD finds that there is good cause consistent with the public interest to issue the rule without advance notice and comment.

HUD's policy of providing 60 days for public comment only applies to proposed rules, not to interim final rules. In this case, HUD does not believe that 60 days is needed for public comment, given the limited changes being made in this interim final rule, and also believes it is in the public interest to secure comments quickly. In providing for 30-days, HUD anticipates reviewing any such comments on a rolling basis as they are received and acting quickly if it determines to adopt any suggestions that may be made in the public comments. For the reasons above, HUD has determined that in this case a 30-day public comment period is appropriate.

In taking this action, HUD is protecting the efficient and effective operation of its public housing and project-based rental assistance programs, the interests of the tenants whose rent it subsidizes, and landlords' business needs. This interim final rule is narrowly tailored so that it will require, during an emergency such as this one, notification to be provided to tenants regarding the availability of emergency funds and a brief extension of the time that must be provided before lease termination for nonpayment of rent, thus permitting the tenant to seek to secure such emergency funds to cure the deficiencies before commencement of eviction. It will not change any other eviction procedures. This interim final rule does not require that PHAs or owners immediately amend leases in accordance with this rule, but it would not prohibit PHAs and owners from amending lease terms to be consistent with this rule if they so choose.

HUD recognizes that some housing providers are already supporting tenants' access to ERA funds and delaying evictions for nonpayment of rent. In fact, in HUD's rental assistance programs, households can recertify their income in the case of a job loss or other change in income so to avoid or reduce the likelihood of failure to pay rent delinquencies. Similarly, housing providers can also work with tenants to create repayment plans and to adjust rent amounts. HUD believes these to be sound management practices that are aligned with this rule's purposes. However, not all housing providers may be providing additional time for tenants to access ERA funds, allowing recertifications to be retroactive to cover arrears, or actively encouraging tenants to recertify their income.

This focused interim final rule does not prevent evictions altogether, but instead requires PHAs and owners to provide information about accessing ERA and additional time to do so when there is an eviction for nonpayment of rent, thus minimizing costs associated with unit turnover from tenant to tenant, preventing unnecessary hardship for HUD-assisted tenants, and ensuring that housing providers can continue to operate effectively.

This interim final rule's scope is limited to address only situations in which federally assisted public housing agencies and PBRA housing providers may access federally appropriated emergency funding to help tenants satisfy rent obligations caused by a national emergency, like the COVID-19 pandemic. It directly applies only in instances where tenants in certain HUD-supported housing are facing eviction due to nonpayment of rent during such an emergency and places the burden on HUD to provide the information necessary to include in the notice provided by PHAs and owners to tenants.

The interim final rule also seeks to balance the interest of tenants and the reliance of PHAs and multifamily owners in administering their program. The interim final rule provides for a modest period of additional time, 30-days, for tenants to apply for emergency financial assistance. HUD understands that some tenants may be unable to secure ERA funding, or future assistance provided to address an emergency, within a 30-day period. Administration of ERA assistance differs between states and localities and in some programs a PHA, owner, or tenant would not receive the ERA payment within 30-days of application. However, in considering what would be a reasonable and practical extension of time to require, HUD settled on 30 days because, as discussed above, it is a time-period to which owners are already accustomed, and it would have minimal impact on program operations. HUD also settled on at least 30 days because it is a set time frame for which PHAs and multifamily owners could rely for implementation.

HUD strongly encourages PHAs and owners to work with tenants who are eligible for ERA funding and to delay lease terminations for any tenants whose application for ERA assistance is still pending after a 30-day period. Additionally, HUD notes that the Department of Justice issued guidance encouraging courts to consider postponing pending eviction cases to allow tenants to apply for emergency rental assistance. 48 For tenants who have already applied for such assistance, HUD would expect that courts may be even more inclined to postpone eviction proceedings. Further, a minimum 30-day time period may provide tenants with an opportunity to secure counsel to assist them in eviction proceedings. Given these factors, HUD believes that providing tenants with at least 30-days from the date of notification of lease termination and notification of the availability of emergency rental assistance will sufficiently help most tenants who are eligible for ERA to retain their housing, while ensuring PHAs and PBRA owners can operate effectively.

In determining that this interim final rule's requirement to provide the notice in the time period described above was the most appropriate means to achieve the goals discussed, the agency considered and rejected several other changes to its program requirements. For instance, HUD considered the imposition of an eviction moratorium in these programs, which would have allowed extensive time for tenants to seek ERA funding. HUD determined that its statutory authorities do not clearly provide the authority necessary to impose such a broad moratorium. By contrast, as noted above, HUD's authorities provide for the imposition of terms and conditions on public housing authorities and owners when those entities are exercising the discretion provided under the statute and their respective contracts to seek to collect rent and promptly take action for nonpayment of rent. HUD believes this more targeted action better accords with the statutory scheme, which gives landlords discretion to evict but provides HUD authority to regulate the prompt collection of rent and processing of evictions.

Additionally, HUD considered imposing a requirement on PHAs and owners to apply for emergency funding on behalf of tenants before proceeding with eviction. HUD also considered the use of required retroactive recertifications and required repayment plans for tenants who would qualify for ERA assistance. HUD also considered tying the notification requirement on a more limited scale to a particular location, region or based on a specific finding that a jurisdiction had a high COVID rate. For all of these options, HUD has already worked with PHA and owners to encourage them to apply for ERA, allow recertifications, create repayment plans, and adjust to rents. However, HUD believed implementing these changes by regulation would be overly burdensome and create multiple challenges for implementation.

In deciding to act in the manner described in this interim final rule, HUD has based its actions on the enumerated authorities granted to it by statute. This interim final rule is consistent with HUD's statutory authority and is in keeping with the types of requirements imposed by HUD through its existing regulations.

Pursuant to Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive order. This interim final rule has been determined to be a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866, but not economically significant. HUD has prepared a regulatory impact analysis that addresses the costs and benefits of the interim final rule. The analysis is available at www.regulations.gov and is part of the docket file for this rule.

Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public. HUD believes that this interim final rule would provide added protections for tenants and is consistent with Executive Order 13563.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of Section 6 of the Executive order. This interim final rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.

This interim final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing (other than tenant-based rental assistance), rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this interim final rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321, et seq. ).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the interim final rule will not have a significant economic impact on a substantial number of small entities. Because HUD determined that good cause exists to issue this rule without prior public comment, this rule is not subject to the requirement to publish an initial or final regulatory flexibility analysis under the RFA as part of such action.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless the collection displays a currently valid Office of Management and Budget (OMB) control number. HUD requested emergency approval to OMB of the information collection changes described in this rule. HUD has published elsewhere in this issue of the Federal Register a separate notice for public comment informing the public of the additional burden associated with the existing collection for public housing OMB Control No: 2577-0006 and for multifamily housing OMB Control No: 2502-0178.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; approved March 22, 1995) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any Federal mandates on any state, local, or tribal government, or on the private sector, within the meaning of the UMRA.

Accordingly, for the reasons stated in the preamble, HUD amends 24 CFR parts 247, 880, 882, 884, and 966 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish this special local regulation by October 10, 2021. The Coast Guard was given short notice from the event sponsor that the date of the the event would differ from the existing annual marine event as outlined in 33 CFR 100.1101, Table 1 to § 100.1101, Item 7. As such, it is impracticable to publish an NPRM because we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. This regulation is necessary to ensure the safety of life on the navigable waters of San Diego Bay during the marine event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to ensure the safety of life on the navigable waters of San Diego Bay during the marine event on October 10, 2021.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041 (previously 33 U.S.C. 1236). The Captain of the Port Sector San Diego (COTP) has determined that a large amount of swimmers in San Diego Bay associated with the San Diego Sharkfest Swim marine event on October 10, 2021, poses a potential safety concern. This rule is needed to protect persons, vessels, and the marine environment in the navigable waters within San Diego Bay while the event is occurring.

This rule establishes a special local regulation from 8:30 a.m. to 10:30 a.m. on October 10, 2021. This special local regulation will cover the navigable waters of San Diego Bay encompassed by a line connecting the following coordinates beginning at 32°42′14″ N, 117°09′55″ W (Point A); thence running southerly to 32°41′49″ N, 117°09′57″ W (Point B); thence running south, along the shoreline to 32°41′19″ N, 117°09′48″ W (Point C); thence running north easterly to 32°41′23″ N, 117°09′41″ W (Point D); thence running northerly to 32°42′00″ N, 117°09′38″ (Point E); thence running northerly, along the shoreline to the beginning point. The duration of the zone is intended to ensure the safety of vessels, event participants, and these navigable waters during the scheduled marine event. No vessel or person would be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. The regulatory text appears at the end of this document.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the regulated area. The affected portion of the San Diego Bay will be of very limited duration, during morning hours when vessel traffic is historically low and is necessary for safety of life to participants in the event. Moreover, the Coast Guard would make a post in the Local Notice to Mariners with details on the regulated area, as well as, issue a Safety Marine Information Broadcast over Channel 22A.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulated area that would limit access to certain areas of San Diego Bay from 8:30 a.m. to 10 a.m. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. 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:

• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110), e.g., chemical manufacturing and petroleum refineries.

This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA, which would include the SNUR requirements. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import provisions. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, pursuant to 40 CFR 721.20, any persons who export or intend to export a chemical substance that is the subject of this rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)), and must comply with the export notification requirements in 40 CFR part 707, subpart D.

The docket includes information considered by the Agency in developing the proposed and final rules. The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2020-0581, is available at https://www.regulations.gov and at the Office of Pollution Prevention and Toxics Docket (OPPT Docket), Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPPT Docket is (202) 566-0280. Please review the visitor instructions and additional information about the docket available at https://www.epa.gov/dockets.

Due to the public health emergency, the EPA Docket Center (EPA/DC) and Reading Room is closed to visitors with limited exceptions. The staff continues to provide remote customer service via email, phone, and webform. For the latest status information on EPA/DC services and docket access, visit https://www.epa.gov/dockets.

EPA is finalizing SNURs under TSCA section 5(a)(2) for chemical substances which were the subject of PMNs P-19-82, P-20-76, and P-20-94. These SNURs require persons who intend to manufacture or process any of these chemical substances for an activity that is designated as a significant new use to notify EPA at least 90 days before commencing that activity.

Previously, in the Federal Register of April 30, 2021 (86 FR 22924) (FRL-10017-51), EPA proposed SNURs for these chemical substances. More information on the specific chemical substances subject to this final rule can be found in the Federal Register document proposing the SNURs. The docket includes information considered by the Agency in developing the proposed and final rules, including public comments and EPA's responses to the public comments received on the proposed rules, as described in Unit IV.

TSCA section 5(a)(2) (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four TSCA section 5(a)(2) factors listed in Unit III.

General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. Pursuant to 40 CFR 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA sections 5(h)(1), 5(h)(2), 5(h)(3), and 5(h)(5) and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA must either determine that the significant new use is not likely to present an unreasonable risk of injury or take such regulatory action as is associated with an alternative determination before manufacture or processing for the significant new use can commence. If EPA determines that the significant new use is not likely to present an unreasonable risk, EPA is required under TSCA section 5(g) to make public, and submit for publication in the Federal Register , a statement of EPA's findings.

TSCA section 5(a)(2) states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:

• The projected volume of manufacturing and processing of a chemical substance.

• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.

• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.

• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.

In determining what would constitute a significant new use for the chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, and potential human exposures and environmental releases that may be associated with the substances, in the context of the four bulleted TSCA section 5(a)(2) factors listed in this unit. During its review of these chemicals, EPA identified certain conditions of use that are not intended by the submitters, but reasonably foreseen to occur. EPA is designating those reasonably foreseen conditions of use as well as certain other circumstances of use as significant new uses.

EPA received a public comment from one identifying entity on the proposed rule. The comment was broadly supportive and requested no changes to the final rule; therefore, no response is required. EPA made no changes to the final rule as a result of this comment.

EPA is establishing significant new use and recordkeeping requirements for chemical substances in 40 CFR part 721, subpart E. In Unit IV. of the proposed SNUR, EPA provided the following information for each chemical substance:

• PMN number.

• Chemical name (generic name, if the specific name is claimed as CBI).

• Chemical Abstracts Service (CAS) Registry number (if assigned for non-confidential chemical identities).

• Basis for the SNUR.

• Potentially useful information.

• CFR citation assigned in the regulatory text section of this final rule.

The regulatory text section of these rules specifies the activities designated as significant new uses. Certain new uses, including production volume limits and other uses designated in the rules, may be claimed as CBI.

During review of the PMNs submitted for the chemical substances that are the subject of these SNURs and as further discussed in Unit IV. of the proposed rule, EPA identified certain other reasonably foreseen conditions of use in addition to those conditions of use intended by the submitter. EPA has determined that the chemical under the intended conditions of use is not likely to present an unreasonable risk. However, EPA has not assessed risks associated with the reasonably foreseen conditions of use. EPA is designating these conditions of use as well as certain other circumstances of use as significant new uses. As a result, those significant new uses cannot occur without going through a separate, subsequent EPA review and determination process associated with a SNUN.

EPA is issuing these SNURs because the Agency wants:

• To have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.

• To be obligated to make a determination under TSCA section 5(a)(3) regarding the use described in the SNUN, under the conditions of use. The Agency will either determine under section 5(a)(3)(C) that the significant new use is not likely to present an unreasonable risk, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant by the Administrator under the conditions of use, or make a determination under TSCA section 5(a)(3)(A) or (B) and take the required regulatory action associated with the determination, before manufacture or processing for the significant new use of the chemical substance can occur.

• To be able to complete its review and determination on each of the PMN substances, while deferring analysis on the significant new uses proposed in these rules unless and until the Agency receives a SNUN.

Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Inventory. Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the internet at https://www.epa.gov/tsca-inventory.

To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule were undergoing premanufacture review at the time of signature of the proposed rule and were not on the TSCA inventory. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for the chemical substances subject to these SNURs, EPA concluded at the time of signature of the proposed rule that the designated significant new uses were not ongoing.

EPA designated December 4, 2020 (the date of web posting of the proposed rule) as the cutoff date for determining whether the new use is ongoing. The objective of EPA's approach is to ensure that a person cannot defeat a SNUR by initiating a significant new use before the effective date of the final rule.

Persons who began commercial manufacture or processing of the chemical substances for a significant new use identified on or after that date will have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and EPA would have to take action under TSCA section 5 allowing manufacture or processing to proceed.

EPA recognizes that TSCA section 5 does not require development of any particular new information ( e.g., generating test data) before submission of a SNUN. There is an exception: If a person is required to submit information for a chemical substance pursuant to a rule, Order or consent agreement under TSCA section 4, then TSCA section 5(b)(1)(A) requires such information to be submitted to EPA at the time of submission of the SNUN.

In the absence of a rule, Order, or consent agreement under TSCA section 4 covering the chemical substance, persons are required only to submit information in their possession or control and to describe any other information known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. Unit IV. of the proposed rule lists potentially useful information for all SNURs listed here. Descriptions are provided for informational purposes. The potentially useful information identified in Unit IV. of the proposed rule will be useful to EPA's evaluation in the event that someone submits a SNUN for the significant new use. Companies who are considering submitting a SNUN are encouraged, but not required, to develop the information on the substance, which may assist with EPA's analysis of the SNUN.

EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol election. Furthermore, pursuant to TSCA section 4(h), which pertains to reduction of testing in vertebrate animals, EPA encourages consultation with the Agency on the use of alternative test methods and strategies (also called New Approach Methodologies, or NAMs), if available, to generate the recommended test data. EPA encourages dialog with Agency representatives to help determine how best the submitter can meet both the data needs and the objective of TSCA section 4(h). For more information on alternative test methods and strategies to reduce vertebrate animal testing, visit https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/alternative-test-methods-and-strategies-reduce.

The potentially useful information described in Unit IV. of the proposed rule may not be the only means of providing information to evaluate the chemical substance associated with the significant new uses. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA sections 5(e) or 5(f). EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.

SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:

• Human exposure and environmental release that may result from the significant new use of the chemical substances.

According to 40 CFR 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710-25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and 721.25. E-PMN software is available electronically at https://www.epa.gov/reviewing-new-chemicals-under-toxic-substances-control-act-tsca.

EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket for this rulemaking.

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

This action establishes SNURs for new chemical substances that were the subject of PMNs. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

According to PRA, 44 U.S.C. 3501 et seq., 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.

The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070-0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.

The listing of the OMB control numbers of the collection instruments and their subsequent codification in the table in 40 CFR 9.1 satisfies the display requirements of the PRA and OMB's implementing regulations at 5 CFR part 1320. Since this ICR was previously subject to public notice and comment prior to OMB approval, and given the technical nature of the table in 40 CFR part 9, EPA finds that further notice and comment to amend it is unnecessary. As a result, EPA finds that there is “good cause” under section 553(b)(3)(B) of the Administrative Procedure Act (5 U.S.C. 553(b)(3)(B)) to amend this table in 40 CFR 9.1 without further notice and comment.

Pursuant to RFA section 605(b), 5 U.S.C. 601 et seq., I hereby certify that promulgation of this SNUR would not have a significant adverse economic impact on a substantial number of small entities. The requirement to submit a SNUN applies to any person (including small or large entities) who intends to engage in any activity described in the final rule as a “significant new use.” Because these uses are “new,” based on all information currently available to EPA, it appears that no small or large entities presently engage in such activities. A SNUR requires that any person who intends to engage in such activity in the future must first notify EPA by submitting a SNUN. Although some small entities may decide to pursue a significant new use in the future, EPA cannot presently determine how many, if any, there may be. However, EPA's experience to date is that, in response to the promulgation of SNURs covering over 1,000 chemicals, the Agency receives only a small number of notices per year. For example, the number of SNUNs received was seven in Federal fiscal year (FY) 2013, 13 in FY2014, six in FY2015, 12 in FY2016, 13 in FY2017, and 11 in FY2018. Only a fraction of these were from small businesses. In addition, the Agency currently offers relief to qualifying small businesses by reducing the SNUN submission fee from $16,000 to $2,800. This lower fee reduces the total reporting and recordkeeping of cost of submitting a SNUN to about $10,116 for qualifying small firms. Therefore, the potential economic impacts of complying with this SNUR are not expected to be significant or adversely impact a substantial number of small entities. In a SNUR that published in the Federal Register of June 2, 1997 (62 FR 29684) (FRL-5597-1), the Agency presented its general determination that final SNURs are not expected to have a significant economic impact on a substantial number of small entities, which was provided to the Chief Counsel for Advocacy of the Small Business Administration.

Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined that this action does not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of UMRA sections 202, 203, 204, or 205 (2 U.S.C. 1501 et seq. ).

This action will not have federalism implications because it is not expected to have a substantial direct effect on States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999).

This action will not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes, significantly or uniquely affect the communities of Indian Tribal governments and does not involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175 (65 FR 67249, November 9, 2000), do not apply to this action.

This action is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because this action is not a significant regulatory action under Executive Order 12866.

In addition, since this action does not involve any technical standards, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898 (59 FR 7629, February 16, 1994).

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report containing this rule and other required information 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 stated in the preamble, 40 CFR chapter I is amended as follows:

On September 17, 2019 (84 FR 48856) EPA sought public comments on the proposed rule and received no public comments.

EPA defines Commercial Supplier Agreements (CSAs) as terms and conditions that are customarily offered to the public by vendors of supplies or services that meet the Federal Acquisition Regulation (FAR) definition of commercial item and are intended to create a binding legal obligation on the end user. CSAs are common in information technology acquisitions, including acquisitions of commercial computer software and commercial technical data, and they may apply to any supply or service.

Commercial supplies and services are offered to the public under standard agreements that may take a variety of forms, including but not limited to license agreements, terms of service, and terms of sale or purchase. These standard CSAs contain terms and conditions that are appropriate when the purchaser is a private party, but not when the purchaser is the Federal Government.

The existence of federally-incompatible terms in standard CSAs is recognized in FAR 27.405-3(b), which is limited to the acquisition of commercial computer software. This subsection advises contracting officers to exercise caution when accepting a contractor's terms and conditions. The use of CSAs is not limited to information technology acquisitions, as they have become common in a broad variety of contexts, from travel to telecommunications, financial services, and building maintenance systems; including purchases below the simplified acquisition threshold.

Discrepancies between CSAs and Federal law, or the Government's needs, create recurrent points of inconsistency. Below are examples of incompatible clauses that are commonly found in CSAs:

• Jurisdiction or venue clauses may require that disputes be resolved in a particular state or a venue that otherwise conflicts with U.S. Federal law. Such clauses conflict with the sovereign immunity of the U.S. Government. Therefore, these clauses cannot apply to litigation where the U.S. Government is a defendant because those disputes must be heard either in the U.S. District Courts (28 U.S.C. 1346), the U.S. Court of Federal Claims (28 U.S.C. 1491), or a venue otherwise authorized by Federal law.

• Automatic renewal clauses may automatically renew or extend contracts unless affirmative action is taken by the Government. Such clauses that require the obligation of funds prior to appropriation violate the restrictions of the Anti-Deficiency Act (31 U.S.C. 1341(a)(1)(B)).

• Termination clauses may allow the contractor to unilaterally terminate a contract if the Government is alleged to have breached the contract. Government contracts are subject to the Contract Disputes Act of 1978 (41 U.S.C. 601-613). The Contract Disputes Act requires a certain process for resolving disputes, including terminations, and that the “Contractor shall proceed diligently with performance of this contract, pending final resolution” under the terms of the FAR Disputes clause at 52.233-1.

Additionally, the current order of precedence contained in the Commercial Items clause at FAR 52.212-4 is not clear on prevailing terms, and potentially allows CSAs to supersede the terms of Federal contracts, especially in those areas where Federal law is implicated indirectly. As a result, industry and Government representatives must spend time and resources negotiating and tailoring CSAs to comply with Federal law and to ensure both parties reach an agreement on the contract terms.

EPA has identified common illegal, improper or inappropriate CSA terms that constitute the majority of the negotiated CSA terms. The outcome of the negotiations regarding these identified terms is generally predetermined by rule of law, but EPA and contractors must spend time and resources to negotiate these terms. By explicitly addressing common unenforceable terms within the Commercial Items clause at FAR 52.212-4 and clarifying prevailing terms in the order of precedence, it eliminates the need for negotiation of these common conflicting terms.

This approach will decrease the time needed for legal review prior to contract award and will reduce costs to both the Government and contractors. EPA believes that such an approach will benefit contractors, including small business concerns, by: (1) Decreasing proposal costs associated with negotiating the identified unenforceable CSA terms; (2) facilitating faster procurement and contract lead times, therefore decreasing the time it takes for contractors to make a return on their investment; (3) reducing administrative costs for companies that maintain alternate federally compliant CSAs; and (4) for small business concerns, it levels the playing field with larger competitors since negotiations will only be required if the CSA contains objectionable clauses outside of those already identified in proposed clause. Additionally, this approach ensures consistent application and understanding of these unenforceable terms.

EPA is issuing class deviations for two Federal Acquisition Regulation (FAR) clauses to address the order of precedence and CSA terms that are incompatible with Federal law. The class deviations not only protect EPA and contractors by uniformly addressing common unacceptable terms and reducing risk, but also by further streamlining the acquisition process and reducing administrative cost for commercial-item supplies and services. The class deviations also clarify the precedence of terms to ensure parties have a mutual understanding of the contract terms.

The EPA is updating clause 1552.216-73, Fixed Rates for Services—Indefinite Delivery/Indefinite Quantity Contract, to add Alternate I (which had previously been a deviation) to the Basic form. The deviation was issued in April 2018 and provides for contractors to be paid escalated rates for optional periods of performance. The deviation is amended into an alternate version because there is an ongoing need for the deviation. The corresponding prescription in § 1516.505(b) is being updated accordingly.

EPA is creating a new subpart 1552.3, FAR and EPAAR Class Deviations, that will contain FAR and EPAAR class deviations initiated by the EPA. As discussed in II (c) the EPA is creating two new FAR class deviations in this final rule that will be added to the new subpart: Class deviations for 52.212-4, Contract Terms and Conditions—Commercial Items (FAR DEVIATION) ; and 52.232-39, Unenforceability of Unauthorized Obligations (FAR DEVIATION) .

The final rule amends the EPAAR to implement standard terms and conditions for the most common conflicting CSA terms and to minimize the need for the negotiation of these terms of CSAs on an individual basis. The final rule will add requirements to contracts making certain conflicting or inconsistent terms in a CSA unenforceable so long as an express exception is not authorized elsewhere by Federal statute. EPA is also amending the EPAAR to modify the order of precedence contained in the Contract Terms and Conditions— Commercial Items clause (FAR 52.212-4) to make clear that the Commercial Items—Unenforceable Clause section of the EPAAR deviation clause controls in the event of a conflict with a CSA, unless both parties agree to specific terms during the course of negotiating the contract. The EPA is also amending the EPAAR to create new subpart 1552.3 for class deviations. The EPA is also changing the deviated version of clause 1552.216-73 into an alternate version because of its ongoing need.

These changes are accomplished by revising guidance and clauses contained throughout the EPAAR as follows:

• EPAAR § 1502.100 is amended to provide a definition for Commercial Supplier Agreements .

• EPAAR § 1512.101 is created and clarifies that paragraph (u) of the deviated Commercial Items clause at § 1552.312-4 (FAR DEVIATION) prevents violation of the Anti-Deficiency Act .

• EPAAR § 1512.1070 is created to prescribe the use of the deviated Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in lieu of FAR 52.212-4.

• EPAAR § 1513.507(b) is amended and requires the inclusion of § 1552.332-39 and § 1552.232-75 in all acquisitions for supplies or services that are offered under a CSA.

• EPAAR Subpart 1513.6 is created and will add § 1552.332-39 to all purchases below the micro-purchase threshold.

• EPAAR § 1516.505(b) is amended to update the prescription for § 1552.216-73.

• EPAAR Subpart 1532.10 is created and clarifies the definition of supplier license agreements as used in FAR 32.705, Unenforceability of Unauthorized Obligations .

• EPAAR § 1532.1070 is created and directs contracting officers to utilize the clause at § 1552.332-39 in lieu of FAR 52.232-39; and prescribes the use of clause Commercial Supplier Agreements—Unenforceable Clauses at 1552.232-75.

• EPAAR Subpart 1539.1 is created and advises contracting officers and contract specialists to follow the relevant EPAAR rules relating to CSA procurement.

• EPAAR § 1552.216-73 is amended to add an alternate clause version.

• EPAAR § 1552.232-75 is created for non-commercial contracts and addresses the same common unenforceable CSA terms addressed in § 1552.312-4 (FAR DEVIATION) paragraph (w) described above.

• EPAAR Subpart 1552.3 is created and adds the class deviations for § 1552.312-4 and § 1552.332-39.

• The Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in subpart 1552.3 is modified to include instructions to contracting officers on how to incorporate the change in language from FAR 52.212-4.

• The order of precedence contained in paragraph (s) of the Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in subpart 1552.3 is amended to ensure that all of the terms of § 1552.312-4(w), Commercial Supplier Agreements—unenforceable clauses, shall control over the terms of a CSA by including “Commercial Supplier Agreements—Unenforceable Clauses” in § 1552.312-4(s)(2) and revising § 1552.212-4(s)(4) to say, “Addenda to this solicitation or contract, including any commercial supplier agreements as amended by the Commercial Supplier Agreements—Unenforceable Clauses provision.”

• Paragraph (u) of the Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in subpart 1552.3 is amended to (1) reflect the new Commercial Supplier Agreement definition contained in EPAAR 1502.100; (2) expand coverage to “language or provision” in addition to “clause” in order to ensure that all CSA terms are covered regardless of terminology utilized; and (3) include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.

• Paragraph (w) of the Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in subpart 1552.3 is created to address the following commonplace unenforceable elements found in CSAs:

○ Definition of contracting parties: Contract agreements are between the commercial supplier or licensor and the U.S. Government. Government employees or persons acting on behalf of the Government will not be bound in their personal capacity by the CSA.

○ Laws and disputes: Clauses that conflict with the sovereign immunity of the U.S. Government cannot apply to litigation where the U.S. Government is a defendant because those disputes must be heard either in U.S. District Court or the U.S. Court of Federal Claims. CSA terms that require the resolution of a dispute in a forum or time period other than those expressly authorized by Federal law are deleted. Statutes of limitation on potential claims shall be governed by U.S. Federal law.

○ Continued Performance: Commercial suppliers may not unilaterally terminate or suspend a contract based upon a suspected breach of contract by the Government. These types of CSA terms violate 31 U.S.C. 3324, which provides that payment under a contract may not exceed the value of a service or product already delivered. A license that is prematurely terminated outside of the regular dispute resolution procedures results in the Government not receiving the value of that good or service ordered because it is no longer delivered. The removal of the contractor's right to unilateral termination does not impair the contractor's ability to pursue remedies. It preserves all the legal remedies the contractor otherwise has under Federal law, including Contract Disputes Act claims. Remedies through the Contract Disputes Act or other applicable Federal statutes align with the continuing performance requirement set forth in paragraph (d) Disputes .

○ Arbitration; equitable or injunctive relief: A binding arbitration may not be enforced unless explicitly authorized by agency guidance or statute. Equitable remedies or injunctive relief such as attorney fees, cost or interest may only be awarded against the U.S. Government when expressly authorized by statute ( e.g., Prompt Payment Act ).

○ Additional Terms: Incorporation of terms by reference is allowed provided the full text of terms is provided with the offer. Unilateral modifications to the CSA after the time of award may be allowed to the extent that the modified terms do not materially change the Government's rights or obligations, increase the Government's prices, decrease the level of service provided, or limit any Government right addressed elsewhere in the contract. A bilateral contract modification is required for any of the above described changes to be enforceable against the Government.

○ Automatic renewals: Due to Anti-Deficiency Act restrictions, automatic contract renewal clauses are impermissible. Any such CSA clauses are unenforceable.

○ Indemnity (contractor assumes control of proceedings): Any clause requiring that the commercial supplier or licensor control any litigation arising from the Government's use of the contractor's supplies or services is deleted. Such representation when the Government is a party is reserved by statute for the U.S. Department of Justice.

○ Audits (automatic liability for payment): Discrepancies found during an audit must comply with the invoicing procedures from the underlying contract. Disputed charges must be resolved through the Disputes clause. Any audits requested by the commercial supplier or licensor will be performed at supplier or licensor's expense.

○ Taxes or surcharges: Any taxes or surcharges that will be passed along to the Government will be governed by the terms of the underlying contract. The cognizant contracting officer must make a determination of applicability of taxes whenever such a request is made.

○ Assignment of CSA or Government contract by supplier: The contract, CSA, party rights and party obligations may not be assigned or delegated without express Government approval. Payment to a third party financial institution may still be reassigned.

○ Confidentiality of CSA terms and conditions: The content of the CSA may not be deemed confidential. The Government may retain other marked confidential information as required by law, regulation or agency guidance, but will appropriately guard such confidential information.

• § 1552.332-39 (FAR DEVIATION) in subpart 1552.3 is created to amend the language of FAR 52.232-39 to reflect the definition of CSAs contained at EPAAR 1502.100, to expand coverage to “language or provision” in addition to “clause” in order to ensure that all CSA terms are covered, regardless of terminology utilized; and to include future fees, penalties, interest and legal costs as unauthorized obligations in addition to indemnification.

This final rule will reduce risk by uniformly addressing common unacceptable CSA terms, facilitate efficiency and effectiveness in the contracting process by reducing the administrative burden for the Government and industry, and promote competition by reducing barriers to industry, including small businesses. It will also create a new EPAAR subpart for class deviations, and an alternate version for clause 1552.216-73.

The final rule amends Part 1502, Definition of Words and Terms, by adding a definition for Commercial Supplier Agreements to § 1502.100. It adds Part 1512, Acquisition of Commercial Items, Subpart 1512.1, Special Requirements for the Acquisition of Commercial Items, § 1512.101, Unenforceability of Unauthorized Obligations, and § 1512.1070, Contract Clause . It amends Part 1513, Simplified Acquisition Procedures, by adding Subpart 1513.6, Action At or Below the Micropurchase Threshold, and amending § 1513.507(b). It amends § 1516.505(b) by adding an alternate clause version to the clause prescription. It amends Part 1532, Contract Financing, by adding Subpart 1532.10, Unenforceability of Unauthorized Obligation; and § 1532.1070, Contract clauses . It amends Part 1539, Acquisition of Information Technology, and adds Subpart 1539.1, Commercial Supplier Agreements . It amends Subpart 1552.2, Texts of Provisions and Clauses, by adding an alternate clause version to § 1552.216-73, Fixed Rates for Services—Indefinite Delivery/Indefinite Quantity Contract; and adding § 1552.232-75, Commercial Supplier Agreements—Unenforceable Clauses . Finally, it amends Part 1552, Solicitation Provisions and Contract Clauses, by adding Subpart 1552.3, FAR and EPAAR Class Deviations, and class deviations for clauses 52.212-4 and 52.232-39. This final rule:

1. Amends part 1502, Definition of Words and Terms, by adding a definition for Commercial Supplier Agreements to § 1502.100, Definitions .

2. Adds part 1512, Acquisition of Commercial Items, and subpart 1512.1, Special Requirements for the Acquisition of Commercial Items, which clarify that paragraph (u) of the Commercial Items clause at § 1552.312-4 (FAR DEVIATION) prevents violation of the Anti-Deficiency Act .

3. Adds § 1512.101, Unenforceability of Unauthorized Obligations, and § 1512.1070, Contract Clause, to prescribe the use of the deviated Commercial Items clause at § 1552.312-4 (FAR DEVIATION) in lieu of FAR 52.212-4.

4. Amends part 1513, Simplified Acquisition Procedures, by adding Subpart 1513.6, Action At or Below the Micropurchase Threshold, and amending § 1513.507(b), which will automatically apply the clauses at § 1552.232-75 and § 1552.332-39 to all purchases below the micro-purchase threshold.

5. Amends the currently designated § 1513.507(a) to become § 1513.507(a)(i), and the currently designated § 1513.507(b) to become § 1513.507(a)(ii), due to the addition above.

6. Amends § 1516.505(b) by adding an alternate clause version to the prescription.

7. Adds EPAAR Subpart 1532.10, Unenforceability of Unauthorized Obligation, that clarifies the definition of supplier license agreements.

8. Adds EPAAR § 1532.1070 and establishes the prescription for use of EPAAR clause 1552.232-75 in all procurements where supplies or services are offered under a CSA.

9. Amends part 1539, Acquisition of Information Technology, and adds subpart 1539.1, Commercial Supplier Agreements .

10. Amends subpart 1552.2, Texts of Provisions and Clauses, to add an alternate clause version to § 1552.216-73, Fixed Rates for Services—Indefinite Delivery/Indefinite Quantity Contract, that pays the contractor escalated rates for optional periods of performance.

11. Adds EPAAR § 1552.232-75, Commercial Supplier Agreements—Unenforceable Clauses, that provides the terms and conditions for supplies or services offered under a CSA.

12. Adds EPAAR subpart 1552.3, FAR and EPAAR Class Deviations, to contain § 1552.312-4, Contract Terms and Conditions—Commercial Items (FAR DEVIATION); and § 1552.332-39/ Unenforceability of Unauthorized Obligations (FAR DEVIATION) . § 1552.312-4 updates paragraphs (s) and (u), and adds paragraph (w). § 1552.332-39 updates terms from Terms of Sale and End User Licensing Agreement to Commercial Supplier Agreement .

This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under the E.O.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Burden is defined at 5 CFR 1320.3(b).

The Regulatory Flexibility Act generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute; unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impact of this proposed rule on small entities, “small entity” is defined as: (1) A small business that meets the definition of a small business found in the Small Business Act and codified at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; or (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. After considering the economic impacts of this rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, because the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the proposed rule on small entities” 5 U.S.C. 503 and 604. Thus, 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, or otherwise has a positive economic effect on all of the small entities subject to the rule. This action creates a new EPAAR clause, clause alternate and class deviations that will not have a significant economic impact on a substantial number of small entities, as discussed in Section (II)(B). We continue to be interested in the potential impacts of the rule on small entities and welcome comments on issues related to such impacts.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA, Pub. L. 104-4), establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, Local, and Tribal governments and the private sector. This rule contains no Federal mandates (under the regulatory provisions of the Title II of the UMRA) for State, Local, and Tribal governments or the private sector. The rule imposes no enforceable duty on any State, Local or Tribal governments or the private sector. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and Local officials in the development of regulatory policies that have federalism implications. “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government as specified in Executive Order 13132.

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications as specified in Executive Order 13175.

Executive Order 13045, entitled “Protection of Children from Environmental Health and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be economically significant as defined under E.O. 12886, and (2) concerns an environmental health or safety risk that may have a proportionate effect on children. This rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by Executive Order 12866, and because it does not involve decisions on environment health or safety risks.

This action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use” (66 FR 28335 (May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) (15 U.S.C. 272 note) of the National Technology Transfer and Advancement Act of 1995, Public Law 104-113, directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve technical standards. Therefore, EPA is not considering the use of any voluntary consensus standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment in the general public.

Therefore, 48 CFR chapter 15 is amended as follows:

This final rule is organized as follows:

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2017-0330/document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

The purpose of this final rule is to improve highway safety by ensuring that CLP or CDL holders with drug and alcohol program violations do not operate a CMV until they complete the return to duty (RTD) process and can lawfully resume driving. Currently, most SDLAs do not receive drug and alcohol program violation information about CDL or CLP holders licensed in their State. Therefore, these SDLAs are unaware when a CMV operator is subject to the driving prohibition set forth in 49 CFR 382.501(a), and the CMV operator continues to hold a valid CDL or CLP despite the driving prohibition. 1 The rule closes that knowledge gap by ensuring that all SDLAs are able to determine whether CMV drivers licensed in their State are subject to FMCSA's CMV driving prohibition. The rule facilitates enforcement of the driving prohibition by requiring that SDLAs deny certain commercial licensing transactions and remove the commercial driving privileges of individuals who are prohibited from operating a CMV and performing other safety-sensitive functions, due to drug and alcohol program violations. By requiring SDLAs to downgrade the driver's licensing status by removing the commercial driving privilege, the final rule will also permit all traffic safety enforcement officers to readily identify prohibited drivers by conducting a license check during a traffic stop or other roadside intervention.

In the final rule titled “Commercial Driver's License Drug and Alcohol Clearinghouse” (81 FR 87686 (Dec. 5, 2016)), FMCSA implemented the statutory requirement of the Moving Ahead for Progress in the 21st Century Act (MAP-21), codified at 49 U.S.C. 31306a, to establish the Clearinghouse as a repository for driver-specific drug and alcohol program violation records, as well as RTD information. The 2016 final rule incorporated the statutory requirement, imposed by MAP-21, codified at 49 U.S.C. 31311(a)(24), that States check the Clearinghouse prior to renewing or issuing a CDL to avoid having Federal highway funds withheld under 49 U.S.C. 31314. The 2016 final rule did not otherwise address the SDLAs' use of Clearinghouse information for CMV drivers licensed, or seeking to become licensed, in their State. This final rule establishes requirements for SDLAs to access and use information from the Clearinghouse indicating that CLP or CDL holders or applicants may not lawfully operate a CMV because they violated the drug and alcohol use and testing prohibitions in 49 CFR part 382, subpart B. The rule also makes certain clarifying and conforming changes to existing regulations, as described below.

As noted above, the Clearinghouse regulations require that SDLAs check the driver's status by querying the Clearinghouse prior to issuing, renewing, transferring, or upgrading a CDL. 2 The final rule provides that, if the reply to the query indicates the driver is prohibited from operating a CMV, the SDLA must deny the requested commercial licensing transaction, resulting in non-issuance. Drivers may re-apply to complete the transaction after complying with the RTD requirements set forth in 49 CFR part 40, subpart O, and a negative RTD test result has been reported to the Clearinghouse. As discussed further below, the rule extends the SDLAs' query requirement to applicants seeking to obtain, renew, or upgrade a CLP.

In addition to the non-issuance requirement, the rule requires that SDLAs initiate the process to remove the CLP or CDL privilege from the driver's license after receiving notification from FMCSA that, in accordance with 49 CFR 382.501(a), an individual is prohibited from operating a CMV. Pursuant to 49 CFR 383.5, “CDL downgrade” is defined to include removal of the commercial privilege;  3 the final rule requires the State to complete and record the CDL downgrade on the CDLIS driver record within 60 days of notification. The CDL downgrade requirement rests on the simple, but safety-critical, premise that drivers who cannot lawfully operate a CMV because they engaged in prohibited use of drugs or alcohol or refused a test should not hold a valid CDL or CLP.

There are two ways the SDLA will receive notification of the driver's prohibited status: (1) The SDLA “pulls” the information from the Clearinghouse by conducting a required query prior to a specified commercial licensing transaction; and (2) FMCSA “pushes” the information to the SDLA whenever a drug or alcohol program violation is reported to the Clearinghouse for a CLP or CDL holder licensed in that State. FMCSA will also “push” a notification to the SDLA when the driver complies with RTD requirements and is no longer prohibited by FMCSA's regulations  4 from operating a CMV. In addition, if FMCSA determines that a driver was erroneously identified as prohibited, the Agency will notify the SDLA that the individual is not prohibited from operating a CMV; the SDLA must promptly reinstate the commercial driving privilege to the driver's license, and expunge the driving record accordingly.

The final rule does not establish specific downgrade or reinstatement procedures. All States currently have established procedures to downgrade the CDL or CLP of a driver whose medical certification has expired or otherwise been invalidated, as required by 49 CFR 383.73(o)(4). The Agency anticipates that States will adapt their existing processes to remove the CLP or CDL credential from the license of any driver subject to the CMV driving prohibition set forth in 49 CFR 382.501(a), and to reinstate the commercial privilege following receipt of notification from FMCSA that the individual is no longer prohibited from driving a CMV (or was incorrectly identified as prohibited).

Pursuant to 49 CFR 383.25, CLPs are deemed a valid CDL for purposes of behind-the-wheel training on public roads and highways. Because CLP holders are authorized to operate a CMV on a public road if accompanied by a CDL holder, they are subject to drug and alcohol testing under 49 CFR part 382, and thus subject to the CMV driving prohibition in 49 CFR 382.501(a). Accordingly, the final rule adds CLP holders to the scope of the States' query requirements set forth in 49 CFR 383.73, requiring SDLAs to conduct a check of the Clearinghouse prior to issuing, renewing, or upgrading a CLP.

The final rule amends 49 CFR part 392, subpart B, “Driving of Commercial Motor Vehicles,” to add the CMV driving prohibition currently set forth in 49 CFR 382.501(a), thereby requiring States receiving MCSAP funding to adopt and enforce a comparable prohibition. 5 State-based MCSAP personnel authorized to enforce highway safety laws can electronically access the operating status of a CLP or CDL holder through cdlis.dot.gov or Query Central. If, during a roadside intervention, the MCSAP officer determines the driver is prohibited from operating a CMV due to a drug and alcohol program violation, the driver will be placed out-of-service and subject to citation. The final rule will further facilitate enforcement of the driving prohibition for CMV operators who still hold a valid CLP or CDL— i.e., during the period in which the State is notified of the driver's prohibited status, but before the downgrade has been recorded on the CDLIS driver record—by clarifying the basis for citing the CMV operator during this period.

As explained in the notice of proposed rulemaking (NPRM), some non-MCSAP traffic safety enforcement personnel cannot electronically access the driver's prohibited status at roadside during this period. 6 The Agency notes, however, that after the SDLA completes the downgrade, thereby changing the driver's license status, non-MCSAP officers will be aware the driver is not lawfully operating a CMV, simply by conducting a routine license check. Operating a CMV without a valid CDL is currently prohibited under 49 CFR 383.23(a)(2) and 49 CFR 391.11(b)(5). The downgrade requirement ensures the CMV driver's license status is available to all traffic safety enforcement personnel, thus closing the loophole that currently permits these drivers to evade detection.

The final rule revises how employers' reports of actual knowledge, as currently defined in 49 CFR 382.107, of a driver's prohibited use of drugs or alcohol, based on a citation for Driving Under the Influence (DUI) in a CMV, would be maintained in the Clearinghouse. Currently, employers who have actual knowledge of a driver's prohibited use of drugs or alcohol, based on the issuance of a citation or other document charging DUI in a CMV, must report the “actual knowledge” violation to the Clearinghouse in accordance with 49 CFR 382.705(b)(4). The final rule clarifies that a CLP or CDL holder who is charged with DUI in a CMV has violated part 382, subpart B, regardless of whether the driver is ultimately convicted of the offense. Therefore, the driver is prohibited from operating a CMV until completing RTD. The rule amends the Clearinghouse regulations by requiring that this type of actual knowledge violation remain in the Clearinghouse for 5 years, or until the driver has completed RTD, whichever is later, regardless of whether the driver is convicted of the DUI charge. 7 The rule also permits drivers to add documentary evidence of non-conviction to their Clearinghouse record so that future employers will be aware of that outcome. FMCSA makes this change to fully comply with the MAP-21 requirements that all violations of part 382, subpart B, be reported to the Clearinghouse and retained for 5 years (49 U.S.C. 31306a(a)(3), (g)(1)(C), and (g)(6)(A), (B)), and to provide full disclosure to employers, while maintaining fairness to drivers.

States must achieve substantial compliance with the applicable requirements of the final rule as soon as practicable, but not later than November 18, 2024. The requirements set forth in 49 CFR 390.3, 390.3T, and 392.15 amend the Federal Motor Carrier Safety Regulations (FMCSRs). In accordance with the MCSAP eligibility requirements in 49 CFR 350.303(b), the State must amend its laws or regulations to ensure compatibility with any new addition or amendment to the FMCSRs as soon as practicable, but not later than 3 years after the effective date of such changes. The Agency believes a 3-year period also allows States sufficient time to adopt necessary changes in State law and regulation, conduct training for SDLA personnel, and complete information technology (IT) changes that will allow SDLAs to request and receive Clearinghouse information electronically. This time frame also accounts for FMCSA's development of technical specifications that will allow the information to be efficiently and securely transmitted to the SDLAs, via CDLIS or a direct web-based interface with the Clearinghouse. In the meantime, SDLAs may determine whether a CLP or CDL applicant is qualified to operate a CMV by accessing the Clearinghouse as an authorized user, as currently permitted by 49 CFR 382.725(a)(1).

This rule will result in IT costs for SDLAs, the American Association of Motor Vehicle Administrators (AAMVA), and the Federal government, customer service costs for SDLAs, and opportunity costs for drivers and motor carriers. This rule finalizes the Agency's preferred alternative by requiring a mandatory downgrade, while allowing the SDLAs to choose the most cost beneficial method of information transmission.

In the NPRM, FMCSA proposed two alternative methods for information transmission; CDLIS and a web-based services option, which relies on cloud technology. The Agency estimated that the CDLIS option would be more costly to implement. Under the final rule, SDLAs may choose between transmitting information via CDLIS or a web-based services platform. FMCSA anticipates that SDLA costs for IT system development will depend on many variables and could range from $60,000 to $300,000. For analysis purposes, the Agency estimates that each SDLA will incur IT development costs of approximately $200,000 in the first year of the analysis, and operation and maintenance costs equal to 20 percent of development cost in each of years 2 through 10. Two States also indicated they will incur costs to manage additional customer service inquiries related to the mandatory downgrade. FMCSA estimates that the annual cost for all SDLAs to manage additional customer service inquiries will total approximately $159,000. In addition to SDLA costs, AAMVA indicated it may incur costs for aligning the Clearinghouse information with disqualification data that already exists in CDLIS. FMCSA will work with AAMVA to determine the necessity and extent of these costs, but for analysis purposes estimates that they would not be greater than $200,000 for development, with an annual operations and maintenance cost of $40,000. FMCSA will incur costs of approximately $1 million for development of a web-based services application and approximately $200,000 for annual operations and maintenance costs in years 2 through 10 of the analysis. Under the final rule, a driver may incur an opportunity cost equal to the income forgone between the time he or she is eligible to resume operating a CMV ( i.e., when an employer reports a negative RTD test result to the Clearinghouse) and when the SDLA reinstates the driver's privilege to operate a CMV. The estimate of opportunity costs drivers may incur is a function of the number of drivers that may be subject to a downgrade, the time spent at the SDLA to reinstate their CLP/CDL privileges, the forgone wages, and the travel costs to drive to and from the SDLA. As discussed in Section XI. below, FMCSA estimates that, annually, approximately 5,000 drivers will spend one 10-hour day at the SDLA, resulting in annual costs for all drivers of approximately $1.6 million. Motor carrier opportunity costs are estimated because drivers subject to reinstatement would not be eligible to resume safety-sensitive functions, such as driving a CMV, until the SDLA restores the CLP or CDL privilege to the driver's license. FMCSA estimates that motor carrier opportunity cost resulting from this rule will total just below $200,000 per year.

The table below shows the 10-year and annualized total cost estimates for the final rule. The Agency estimates the 10-year total cost of the rule at $51.7 million; the estimated annualized cost is $5.2 million. At a 7 percent discount rate, the 10-year total estimated cost is $38.5 million, and the estimated annualized cost is $5.5 million.

This rule will improve the enforcement of the current driving prohibition by requiring that States refrain from issuing, renewing, transferring, or upgrading the CLP or CDL of affected drivers. Removal of the commercial privilege from the driver's license (mandatory CLP or CDL downgrade) will ensure more consistent roadside enforcement against drivers who continue to operate a CMV in violation of the prohibition. The mandatory downgrade may also reduce drug and alcohol program violations, since a driver's loss of the commercial privilege directly impacts his or her ability to obtain employment that involves operating a CMV. This rule will also permit the Agency to use its enforcement resources more effectively. The final rule's costs and benefits are addressed further below in Section XI.

The Western Pacific Fishery Management Council (Council) and NMFS manage the American Samoa longline fishery under the FEP and implementing Federal regulations. The fishery is currently limited to 60 permits distributed over four vessel size classes. Permits are valid for three years, and issued only to individuals who meet specific eligibility criteria. A permit holder must also meet minimum landing requirements within three years to renew the permit. Existing requirements have created programmatic barriers that may be hampering small vessel participation in the fishery. As described in Amendment 9, the Council recommended changes to the program that will reduce complexity and provide for sustained community participation in the small vessel American Samoa deep-set longline fishery. This final rule implements the new provisions established by Amendment 9, as follows:

• Consolidate four existing vessel sizes classes into two, i.e., small (less than 50 ft (15.2 m)) and large (equal to or larger than 50 ft (15.2 m));

• Permit holders must be U.S. citizens or nationals. Applicants do not need to document a history of participation to be eligible for a permit, but if there is competition between applicants, NMFS will continue to use a priority ranking system based on earliest documented history of fishing in a vessel class size;

• Permits may be transferred only among U.S. citizens or nationals. There is no requirement for documented participation in the fishery to receive a transferred permit;

• The small vessel minimum harvest requirement is now 500 lb (227 kg) of pelagic management unit species (MUS) within a 3-year period. (The large vessel harvest requirement remains 5,000 lb (2,268 kg) over three years);

• The minimum harvest amount must be landed in American Samoa within a 3-year permit period. These required harvests need not be caught within the U.S. exclusive economic zone (EEZ) around American Samoa;

• Permits are valid for the same, fixed 3-year period as the 3-year period required to make a minimum harvest; and

• When a permit is transferred, the minimum harvest period does not restart. If the minimum amount has not been caught at the time of transfer, the new permit owner is required to meet the harvest requirement based on the following formula: The product of percentage of time left within the 3-year permit period and the minimum harvest amount.

You may find additional background information on this action in the preamble to the proposed rule (86 FR 37982, July 19, 2021).

On June 30, 2021, NMFS published the notice of availability (NOA) for Amendment 9 and request for public comments (86 FR 34711); the comment period ended August 30, 2021. The American Samoa Department of Marine and Wildlife Resources provided comments on Amendment 9 that generally supported the changes established by the Council, and offered to work with NMFS on future reporting and permitting issues in this and other fisheries.

On July 19, 2021, NMFS published a proposed rule and request for public comments (86 FR 37982); the comment period ended September 2, 2021. NMFS received comments from the Hawaii Longline Association (HLA), and responds below.

Comment 1: HLA noted that two dozen Hawaii vessels also hold American Samoa longline permits. Although the fishery is operating safely during the Covid-19 pandemic, HLA is concerned that a minimum landing requirement would force these dual-permitted vessels to land in American Samoa, possibly spreading the virus to an area that has been largely virus-free. HLA requested that NMFS delay the effectiveness of the landing requirement and associated 3-year period for large vessels until the threat caused by the pandemic has eased.

Response: The American Samoa Department of Health has health and safety protocols in place that are applicable to fishing vessels landing in the territory. During the pandemic, U.S. fishing vessels have continued to land in American Samoa under these requirements, which include proof of a negative Covid-19 test, evidence of having recovered from Covid-19 in the past six months, or proof of complete vaccination at least 14 days prior to the arrival. Anyone arriving in port must provide the documentation at least 72 hours prior to arrival. Prior approval is required for crew to disembark. Quarantine measures are also in place, as needed, for vessels entering the port.

These protocols have been effective. To date, there has been only one documented Covid-19 case in American Samoa. Based on the effective health and safety protocols in place there, NMFS does not agree that a delay in effectiveness for the minimum harvest landing requirements for large vessels is warranted.

This final rule does not make any substantive changes from the proposed rule.

This rule does make three administrative housekeeping changes. The first revises 50 CFR 665.14 relating to reporting. After NMFS published the proposed rule for this action, we published a separate final rule that requires electronic reporting for American Samoa Class C and D vessels (86 FR 42744, August 5, 2021). Because this final rule replaces the former C and D classes with a single large vessel class, we are updating § 665.14 to clarify that large vessels must report electronically.

The second modifies 50 CFR 665.802(x) relating to observer coverage. In the proposed rule, we erred in using the term “large vessel,” which is a vessel equal to or greater than 50 ft long. If implemented, we would have inadvertently removed the requirement for a vessel between 40 and 50 ft to carry an observer. In Amendment 9, the Council did not recommend removal of the observer coverage requirement for vessels between 40 and 50 ft in length overall (LOA), and this final rule correctly implements the Council's intention by replacing “large vessel” with “vessel greater than 40 ft (12.2 m) LOA” in § 665.802(x).

The third housekeeping changes are in 50 CFR 665.816, relating to permit validity. Amendment 9 established a requirement that the duration of a permit is three years from the date of issuance and that the term of the permit validity does not change or reset in the event of a permit transfer. To accurately implement the recommendations in Amendment 9, this rule adds a new § 665.816(f) that clarifies that a permit is valid for three years. The rule also clarifies in § 665.816(h)(1) and (3) the 3-year permit term and that it does not change in the event of a transfer.

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

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. NMFS did not receive any comments regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

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

This final rule contains a change to a collection of information requirement for the purposes of the Paperwork Reduction Act (PRA). This rule revises the existing requirements for the collection of information under OMB Control Number 0648-0490 Pacific Islands Permit Family of Forms by modifying the type of permit issued in the American Samoa longline fishery limited entry program. Changes required under this rule applicable to the PRA include the consolidation of the four current permit size classes (Class A, B, C, and D) into two permit class sizes (small and large), the restriction of permit eligibility to U.S. citizens, U.S. nationals, and U.S. companies, partnerships, or corporations, and the elimination of the requirement to have documented history of participation in the fishery to be eligible for a permit. These changes require revising the permit application form. In the proposed rule published in the Federal Register for a 45-day comment period, NMFS indicated our intent to revise this information collection (86 FR 37982, July 19, 2021). The revision is not expected to affect the number of respondents or anticipated responses or to effect the number of burden hours and burden cost to fishermen. The public reporting burden for completing an American Samoa longline fishery permit application is estimated to average 1.25 hours per response, including the time for reviewing instructions, gathering the data needed, and submitting the permit application.

We invite the general public and other Federal agencies to comment on proposed and continuing information collections, which helps us assess the impact of our information collection requirements and minimize the public's reporting burden. Written comments and recommendations for this information collection should be submitted on the following website: www.reginfo.gov/public/do/PRAMain. Find this particular information collection by using the search function and entering either the title of the collection or the OMB Control Number 0648-0490.

Notwithstanding any other provisions of the law, no person is required to respond or, nor shall any person by subject to a penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB Control Number.

For the reasons set out in the preamble, NMFS amends 50 CFR part 665 as follows: