The U.S. Department of Homeland Security (DHS) Office of the Immigration Detention Ombudsman (OIDO) published a notice of proposed rulemaking in the Federal Register , 86 FR 49490 (September 3, 2021), proposing to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements. The system of records is the DHS/OIDO-001 Office of the Immigration Detention Ombudsman System of Records. The DHS/OIDO-001 Office of the Immigration Detention Ombudsman System of Records notice was published concurrently in the Federal Register , 86 FR 49553 (September 3, 2021), and comments were invited on both the Notice of Proposed Rulemaking (NPRM) and System of Records Notice (SORN).

OIDO is an independent office within DHS tasked with reviewing and resolving individual complaints and providing independent oversight of immigration detention facilities, including conducting announced and unannounced inspections, reviewing contract terms for immigration detention facilities and services, and making recommendations and reporting to Congress on findings. OIDO is creating this system of records to collect and maintain records related to individual complaints from or about individuals in immigration detention regarding potential violations of law, individual rights, standards of professional conduct, contract terms, or policy related to immigration detention by any officer or employee of CBP or ICE, or any contracted, subcontracted, or cooperating entity personnel.

Consistent with DHS's information sharing mission, information stored in the DHS/OIDO-001 Office of the Immigration Detention Ombudsman System of Records may be shared with other DHS Components that have a need to know the information to carry out their national security, law enforcement, immigration, intelligence, or other homeland security functions. In addition, DHS/OIDO may share information with appropriate federal, state, local, tribal, territorial, foreign, or international government agencies consistent with the routine uses set forth in this system of records notice.

DHS received zero comments on the Notice of Proposed Rulemaking and zero comments on the System of Records Notice. As such, the Department will implement the rulemaking as proposed.

For the reasons stated in the preamble, DHS amends chapter I of title 6, Code of Federal Regulations, as follows:

Please refer to Docket ID NRC-2021-0161 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2021-0161. Address questions about NRC dockets to Dawn Forder, telephone: 301-415-3407, email: Dawn.Forder@nrc.gov. For technical questions, contact the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document.

• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly available documents online in the ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. For the convenience of the reader, instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section.

• NRC's PDR: You may examine and purchase copies of public documents, by appointment, at the NRC's Public Document Room (PDR), Room P1 B35, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make an appointment to visit the PDR, please send an email to PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal holidays.

Please include Docket ID NRC-2021-0161 in your comment submission. The NRC requests that you submit comments through the Federal rulemaking website at https://www.regulations.gov. If your material cannot be submitted using https://www.regulations.gov, call or email the individuals listed in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

This rule is limited to the renewal of the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 and does not include other aspects of the TN Americas LLC, TN-68 Dry Storage Cask system design. The NRC is using the “direct final rule procedure” to issue this renewal because it represents a limited and routine change to an existing certificate of compliance that is expected to be non-controversial. Adequate protection of public health and safety continues to be reasonably assured. The amendment to the rule will become effective on February 22, 2022. However, if the NRC receives any significant adverse comments on this direct final rule by January 10, 2022, then the NRC will publish a document that withdraws this action and will subsequently address the comments received in a final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register . Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if:

(1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required when:

(a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

(b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or

(c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

(2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

(3) The comment causes the NRC to make a change (other than editorial) to the rule, certificate of compliance, or technical specifications.

Section 218(a) of the Nuclear Waste Policy Act of 1982, as amended, requires that “[t]he Secretary [of the Department of Energy] shall establish a demonstration program, in cooperation with the private sector, for the dry storage of spent nuclear fuel at civilian nuclear power reactor sites, with the objective of establishing one or more technologies that the [Nuclear Regulatory] Commission may, by rule, approve for use at the sites of civilian nuclear power reactors without, to the maximum extent practicable, the need for additional site-specific approvals by the Commission.” Section 133 of the Nuclear Waste Policy Act states, in part, that “[t]he Commission shall, by rule, establish procedures for the licensing of any technology approved by the Commission under Section 219(a) [sic: 218(a)] for use at the site of any civilian nuclear power reactor.”

To implement this mandate, the Commission approved dry storage of spent nuclear fuel in NRC-approved casks under a general license by publishing a final rule that added a new subpart K in part 72 of title 10 of the Code of Federal Regulations (10 CFR) entitled “General License for Storage of Spent Fuel at Power Reactor Sites” (55 FR 29181; July 18, 1990). This rule also established a new subpart L in 10 CFR part 72 entitled “Approval of Spent Fuel Storage Casks,” which contains procedures and criteria for obtaining NRC approval of spent fuel storage cask designs. The NRC subsequently issued a final rule on April 28, 2000 (65 FR 24855), that approved the TN-68 Dry Storage Cask system design and added it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1027. The NRC issued a direct final rule on August 16, 2007 (72 FR 45880), that approved Amendment No. 1 to Certificate of Compliance No. 1027 for the TN-68 Dry Storage Cask system design and added it to the list of NRC approved cask designs in § 72.214.

On April 9, 2020, TN Americas LLC submitted a request to the NRC to renew, for an additional 40 years, the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 for the TN-68 Dry Storage Cask system. TN Americas LLC supplemented its request on July 29, 2020; February 9, 2021; and March 24, 2021.

The renewal of the initial certificate and Amendment No. 1 was conducted in accordance with the renewal provisions in § 72.240. This section of the NRC spent fuel storage regulations authorizes the NRC to include any additional certificate conditions it deems necessary to ensure the safe operation of the cask during the certificate's renewal period. The NRC included three additional conditions to the renewal of the initial certificate of compliance and Amendment No. 1:

• The submittal of an updated final safety analysis report (UFSAR) to address aging management activities resulting from the renewal of the certificate of compliance. This condition ensures that the UFSAR changes are made in a timely fashion to enable general licensees using the storage system during the period of extended operation to develop and implement necessary procedures.

• The requirement that general licensees initiating or using spent fuel dry storage operations with the TN-68 Dry Storage Cask system ensure that their evaluations are included in the reports required by § 72.212, “Conditions of general license issued under § 72.210.” These reports will include appropriate considerations for the period of extended operation, a review of the UFSAR changes resulting from the certificate of compliance renewal, and a review of the NRC safety evaluation report (SER) related to the certificate of compliance renewal.

• The requirement that future amendments and revisions to this certificate of compliance include evaluations of the impacts to aging management activities to ensure that they remain adequate for any changes to the structures, systems, and components (SSCs).

The NRC made one corresponding change to the technical specifications for the initial certificate of compliance and Amendment No. 1. The change added a new section, which ensures that general licensees using the storage system develop procedures to address aging management activities required in the period of extended operation.

As documented in the preliminary SER, the NRC performed a safety evaluation of the proposed certificate of compliance renewal request. The NRC determined that this renewal does not change the cask design or fabrication requirements in the proposed certificate of compliance renewal request. The NRC determined that the design of the cask would continue to maintain confinement, shielding, and criticality control in the event of each evaluated accident condition. In addition, any resulting occupational exposure or offsite dose rates from the renewal of the initial certificate of compliance and Amendment No. 1 would remain well within the limits specified by 10 CFR part 20, “Standards for Protection Against Radiation.” Thus, the NRC found there will be no significant change in the types or amounts of any effluent released, no significant increase in the individual or cumulative radiation exposure, and no significant increase in the potential for or consequences from radiological accidents. In its SER for the renewal of the TN-68 Dry Storage Cask system, the NRC staff has determined that if the conditions specified in the certificate of compliance to implement these regulations are met, adequate protection of public health and safety will continue to be reasonably assured.

This direct final rule revises the TN-68 Dry Storage Cask listing in § 72.214 by renewing for 40 more years, the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027. The renewal consists of the changes previously described, as set forth in the renewed initial certificate and amendment and their revised technical specifications. The revised technical specifications are identified in the SER.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this direct final rule, the NRC revises the TN Americas LLC, TN-68 Dry Storage Cask design listed in § 72.214, “List of approved spent fuel storage casks.” This action does not constitute the establishment of a standard that contains generally applicable requirements.

Under the “Agreement State Program Policy Statement” approved by the Commission on October 2, 2017, and published in the Federal Register on October 18, 2017 (82 FR 48535), this rule is classified as Compatibility Category NRC—Areas of Exclusive NRC Regulatory Authority. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of 10 CFR chapter I. Therefore, compatibility is not required for program elements in this category. Although an Agreement State may not adopt program elements reserved to the NRC, and the Category “NRC” does not confer regulatory authority on the State, the State may wish to inform its licensees of certain requirements by means consistent with the particular State's administrative procedure laws.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

Under the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions,” the NRC has determined that this direct final rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The NRC has made a finding of no significant impact on the basis of this environmental assessment.

The action is to amend § 72.214 to revise the TN-68 Dry Storage Cask listing within the “List of approved spent fuel storage casks” to renew, for an additional 40 years, the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027.

This direct final rule renews the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 for the TN Americas LLC, TN-68 Dry Storage Cask system design within the list of approved spent fuel storage casks to allow power reactor licensees to store spent fuel at reactor sites in casks with the approved modifications under a general license. Specifically, this rule extends the expiration date for the TN Americas LLC, TN-68 Dry Storage Cask certificate for an additional 40 years, allowing a reactor licensee to continue using it under general license provisions in an independent spent fuel storage installation to store spent fuel in dry casks in accordance with 10 CFR part 72.

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent fuel under a general license in cask designs approved by the NRC. The potential environmental impact of using NRC-approved storage casks was analyzed in the environmental assessment for the 1990 final rule. The environmental assessment for this renewal of the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 tiers off of the environmental assessment for the July 18, 1990, final rule. Tiering on past environmental assessments is a standard process under the National Environmental Policy Act of 1969, as amended. As required by § 72.240, applications for renewal of a spent fuel storage certificate of compliance design are required to demonstrate that SSCs important to safety will continue to perform their intended function for the requested renewal term. As discussed in the NRC's SER for the renewal of the initial certificate and Amendment No. 1, the NRC has approved conditions in the renewed initial certificate and Amendment No. 1 requiring the general licensee to implement the aging management activities described in the renewal application and incorporated into the UFSAR. These conditions ensure that the TN Americas LLC, TN-68 Dry Storage Cask system will continue to perform its intended safety functions and provide reasonable assurance of adequate protection of public health and safety throughout the renewal period.

Incremental impacts from continued use of the TN-68 Dry Storage Cask system under a general license for an additional 40 years are not considered significant. When the general licensee follows all procedures and administrative controls, including the conditions established because of this renewal, no effluents are expected from the sealed dry cask systems. Activities associated with cask loading and decontamination may result in some small incremental liquid and gaseous effluents, but these activities will be conducted under 10 CFR parts 50 and 52 reactor operating licenses, and effluents will be controlled within existing reactor site technical specifications. Because reactor sites are relatively large, any incremental offsite doses due to direct radiation exposure from the spent fuel storage casks are expected to be small, and when combined with the contribution from reactor operations, well within the annual dose equivalent of 0.25 mSv (25 mrem) limit to the whole body specified in § 72.104. Incremental impacts on collective occupational exposures due to dry cask spent fuel storage are expected to be only a small fraction of the exposures from operation of the nuclear power station.

The TN-68 Dry Storage Cask system is designed to mitigate the effects of design-basis accidents that could occur during storage. Design-basis accidents account for human-induced events and the most severe natural phenomena reported for the site and surrounding area. Postulated accidents analyzed for an independent spent fuel storage installation, the type of facility at which a holder of a power reactor operating license would store spent fuel in casks in accordance with 10 CFR part 72, can include tornado winds and tornado-generated missiles, a design-basis earthquake, a design-basis flood, an accidental cask drop, lightning effects, fire, explosions, and other incidents.

During the promulgation of the amendments that added subpart K to 10 CFR part 72 (55 FR 29181; July 18, 1990), the NRC staff assessed the public health consequences of dry cask storage accidents and sabotage events. In the supporting analyses for these amendments, the NRC determined that a release from a dry cask storage system would be comparable in magnitude to a release from the same quantity of fuel in a spent fuel storage pool. As a result of these evaluations, the NRC determined that, because of the physical characteristics of the storage casks and conditions of storage that include specific security provisions, the potential risk to public health and safety due to accidents or sabotage is very small.

Considering the specific design requirements for each accident or sabotage condition, the design of the cask would maintain confinement, shielding, and criticality control. If confinement, shielding, or criticality control are maintained, the environmental impacts from an accident would be insignificant.

There are no changes to cask design or fabrication requirements in the renewed initial certificate or Amendment No. 1. Because there are no significant design or process changes, any resulting occupational exposure or offsite dose rates from the implementation of the renewal of the initial certificate and Amendment No. 1 would remain well within the 10 CFR part 20 limits.

Decommissioning of dry cask spent fuel storage systems under a general license would be carried out as part of a power reactor's site decommissioning plan. In general, decommissioning would consist of removing the spent fuel from the site, decontaminating cask surfaces, and decontaminating and dismantling the independent spent fuel storage installation where the casks were deployed. Under normal and off-normal operating conditions, no residual contamination is expected to be left behind on supporting structures. The incremental impacts associated with decommissioning dry cask storage installations are expected to represent a small fraction of the impacts of decommissioning an entire nuclear power station.

In summary, the proposed changes will not result in any radiological or nonradiological environmental impacts that significantly differ from the environmental impacts evaluated in the environmental assessment supporting the July 18, 1990, final rule. Compliance with the requirements of 10 CFR parts 20 and 72 would provide reasonable assurance that adequate protection of public health and safety will continue. The NRC, in its SER for the renewal of the TN-68 Dry Storage Cask system, has determined if the conditions specified in the certificate of compliance to implement these regulations are met, adequate protection of public health and safety will continue to be reasonably assured.

Based on the previously stated assessments and its SER for the requested renewal of the TN-68 Dry Storage Cask certificates, the NRC has determined that the expiration date of this system in 10 CFR 72.214 can be safely extended for an additional 40 years, and that commercial nuclear power reactor licensees can continue using the system during this period under a general license without significant impacts on the human environment.

The alternative to this action is to deny approval of the renewal and not issue the direct final rule. Under this alternative, the NRC would either (1) require general licensees using the TN-68 Dry Storage Cask to unload the spent fuel from these systems and either return it to a spent fuel pool or re-load it into a different dry storage cask system listed in § 72.214; or (2) require that users of the existing TN-68 Dry Storage Cask request site-specific licensing proceedings to continue storage in these systems.

The environmental impacts of requiring the licensee to unload the spent fuel and either return it to the spent fuel pool or re-load it into another NRC-approved cask system would result in increased radiological doses to workers. These increased doses would be due primarily to direct radiation from the casks while the workers unloaded, transferred, and re-loaded the spent fuel. These activities would consist of transferring the dry storage canisters to a cask-handling building, opening the canister lid welds, returning the canister to a spent fuel pool or dry transfer facility, removing the fuel assemblies, and re-loading them, either into a spent fuel pool storage rack or another NRC-approved dry storage system. In addition to the increased occupational doses to workers, these activities may also result in additional liquid or gaseous effluents.

Alternatively, users of the dry cask storage system would need to apply for a site-specific license. Under this option for implementing the no-action alternative, interested licensees would have to prepare, and the NRC would have to review, each separate license application, thereby increasing the administrative burden upon the NRC and the costs to each licensee.

In summary, the no-action alternative would entail either (1) more environmental impacts than the preferred action from transferring the spent fuel now in the TN-68 Dry Storage Cask; or (2) cost and administrative impacts from multiple licensing actions that, in aggregate, are likely to be the same as, or more likely greater than, the preferred action.

Renewal of the initial certificate and Amendment No. 1 to Certificate of Compliance No. 1027 would result in no irreversible commitment of resources.

No agencies or persons outside the NRC were contacted in connection with the preparation of this environmental assessment.

The environmental impacts of the action have been reviewed under the requirements in the National Environmental Policy Act of 1969, as amended, and the NRC's regulations in subpart A of 10 CFR part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.” Based on the foregoing environmental assessment, the NRC concludes that this direct final rule, “List of Approved Spent Fuel Storage Casks: TN Americas LLC, TN-68 Dry Storage Cask, Certificate of Compliance No. 1027, Renewal of Initial Certificate and Amendment No. 1,” will not have a significant effect on the human environment. Therefore, the NRC has determined that an environmental impact statement is not necessary for this direct final rule.

This direct final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0132.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid Office of Management and Budget control number.

Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b)), the NRC certifies that this direct final rule will not, if issued, have a significant economic impact on a substantial number of small entities. This direct final rule affects only nuclear power plant licensees and TN Americas LLC. These entities do not fall within the scope of the definition of small entities set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

On July 18, 1990 (55 FR 29181), the NRC issued an amendment to 10 CFR part 72 to provide for the storage of spent nuclear fuel under a general license in cask designs approved by the NRC. Any nuclear power reactor licensee can use NRC-approved cask designs to store spent nuclear fuel if (1) it notifies the NRC in advance; (2) the spent fuel is stored under the conditions specified in the cask's certificate of compliance; and (3) the conditions of the general license are met. A list of NRC-approved cask designs is contained in § 72.214. On April 28, 2000 (65 FR 24855), the NRC issued an amendment to 10 CFR part 72 that approved the TN Americas LLC, TN-68 Dry Storage Cask by adding it to the list of NRC-approved cask designs in § 72.214 as Certificate of Compliance No. 1027.

On April 9, 2020, and as supplemented on July 29, 2020; February 9, 2021; and March 24, 2021, TN Americas LLC requested a renewal of the initial certificate and Amendment No. 1 of the TN-68 Dry Storage Cask system for an additional 40 years beyond the initial certificate term as discussed in Section IV, “Discussion of Changes,” of this document. Because TN Americas LLC filed its renewal application at least 30 days before the certificate expiration date of May 20, 2020, pursuant to the timely renewal provisions in § 72.240(b), the initial issuance of the certificate and Amendment No. 1 of Certificate of Compliance No. 1027 did not expire during the pendency of the NRC's review.

The alternative to this action is to deny approval of the renewal of the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 and end this direct final rule. Under this alternative, the NRC would either (1) require general licensees using the TN-68 Dry Storage Cask system to unload spent fuel from these systems and return it to a spent fuel pool or re-load it into a different dry storage cask system listed in § 72.214, or (2) require that users of the existing TN-68 Dry Storage Cask system request site-specific licensing proceedings to continue storage in these systems. Therefore, the no-action alternative would result in a significant burden on licensees and an additional inspection or licensing caseload on the NRC. In addition, the no action alternative would entail either (1) more environmental impacts than the preferred action from transferring the spent fuel now in the TN-68 Dry Storage Cask system, or (2) cost and administrative impacts from multiple licensing actions that, in aggregate, are likely to be the same as, or more likely greater than, the preferred action.

Approval of this direct final rule is consistent with previous NRC actions. Further, as documented in the preliminary SER and environmental assessment, this direct final rule will have no adverse effect on public health and safety or the environment. This direct final rule has no significant identifiable impact or benefit on other government agencies. Based on this regulatory analysis, the NRC concludes that the requirements of this direct final rule are commensurate with the NRC's responsibilities for public health and safety and the common defense and security. No other available alternative is believed to be as satisfactory; therefore, this action is recommended.

The NRC has determined that the backfit rule (§ 72.62) does not apply to this direct final rule. Therefore, a backfit analysis is not required. This direct final rule renews Certificate of Compliance No. 1027 for the TN Americas LLC, TN-68 Dry Storage Cask system, as currently listed in § 72.214, to extend the expiration date of the initial certificate and Amendment No. 1 by 40 years. The renewed initial certificate and Amendment No. 1 consist of the changes previously described, as set forth in the revised certificate of compliance and technical specifications.

Extending the effective date of the initial certificate and Amendment No. 1 for 40 more years and requiring the implementation of aging management activities does not impose any modification or addition to the design of a cask system's SSCs, or to the procedures or organization required to operate the system during the initial 20-year storage period of the system, as authorized by the current certificate. General licensees that have loaded these casks, or that load these casks in the future under the specifications of the applicable certificate, may continue to store spent fuel in these systems for the initial 20-year storage period consistent with the original certificate. The aging management activities required to be implemented by this renewal are only required after the storage cask system's initial 20-year service period ends. As explained in the 2011 final rule that amended 10 CFR part 72 (76 FR 8872, Question I), the general licensee's authority to use a particular storage cask design under an approved certificate of compliance terminates 20 years after the date that the general licensee first loads the particular cask with spent fuel, unless the cask's certificate of compliance is renewed. Because this rulemaking renews the initial certificate and Amendment No. 1, and renewal is a separate licensing action voluntarily implemented by vendors, the renewal of the initial certificate and Amendment No. 1 is not an imposition of new or changed requirements from which these licensees would otherwise be protected by the backfitting provisions in § 72.62.

Even if renewal of the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 could be considered a backfit, TN Americas LLC, as the holder of the certificate of compliance and vendor of the casks, is not protected by the backfitting provisions in § 72.62.

Unlike a vendor, general licensees using the existing systems subject to this renewal would be protected by the backfitting provisions in § 72.62 if the renewal constituted new or changed requirements applicable during the initial 20-year storage period. But, as previously explained, renewal of the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027 does not impose such requirements. The general licensee using the initial certificate or Amendment No. 1 of Certificate of Compliance No. 1027 may continue storing material in its respective cask systems for the initial 20-year storage period identified in the applicable certificate or amendment with no changes. If general licensees choose to continue to store spent fuel in the TN-68 Dry Storage Cask system after the initial 20-year period, these general licensees will be required to implement aging management activities for any cask systems subject to a renewed certificate of compliance, but such continued use is voluntary.

For these reasons, renewing the initial certificate and Amendment No. 1 of Certificate of Compliance No. 1027, and imposing the additional conditions previously discussed, does not constitute backfitting under § 72.62 or §  50.109(a)(1), or otherwise represent an inconsistency with the issue finality provisions applicable to combined licenses in 10 CFR part 52. Accordingly, the NRC has not prepared a backfit analysis for this rulemaking.

This direct final rule is not a rule as defined in the Congressional Review Act.

The documents identified in the following table are available to interested persons, as indicated.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2021-0161.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; the Nuclear Waste Policy Act of 1982, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 72:

In March 2020, the United States Federal Communications Commission (FCC) adopted final rules authorizing flexible use of the 3.7-3.98 GHz band for next generation services, including 5G and other advanced spectrum-based services. 1 Pursuant to these rules, C-Band wireless broadband deployment is permitted to occur in phases with the opportunity for operations in the lower 100 megahertz of the band (3.7-3.8 GHz) in 46 markets beginning as soon as December 5, 2021; however, the FAA does not expect actual deployment to commence until January 5, 2022. This AD refers to “5G C-Band” interference, but wireless broadband technologies, other than 5G, may use the same frequency band. 2 These other uses of the same frequency band are within the scope of this AD since they would introduce the same risk of radio altimeter interference as 5G C-Band.

In April 2020, RTCA formed a 5G Task Force, including members from RTCA, the FAA, aircraft and radio altimeter manufacturers, European Organisation for Civil Aviation Equipment (EUROCAE), industry organizations, and operators, to perform “a quantitative evaluation of radar altimeter performance regarding RF interference from expected 5G emissions in the 3.7-3.98 GHz band, as well as a detailed assessment of the risk of such interference occurring and impacting aviation safety.”  3 Based on the work of the task force, RTCA published a report which concludes that there is “a major risk that 5G telecommunications systems in the 3.7-3.98 GHz band will cause harmful interference to radar altimeters on all types of civil aircraft—including commercial transport airplanes; business, regional, and general aviation airplanes; and both transport and general aviation helicopters.”  4

The report further concludes that the likelihood and severity of radio frequency interference increases for operations at lower altitudes. That interference could cause the radio altimeter to either become inoperable or present misleading information, and/or also affect associated systems on civil aircraft. The RTCA report refers to FCC Report and Order (R&O) FCC 20-22, 5 which identifies radio frequencies and power level conditions for the new C-Band services. The RTCA report identified the possibility of interference from both wireless emitters (on base stations, for example) as well as onboard user handsets. The RTCA report and conclusions remain under review, including by federal spectrum regulators. The FAA risk assessment included consideration of the RTCA report, public comments to the RTCA report, and analyses from radio altimeter manufacturers and aircraft manufacturers in support of the safety risk determination. The analyses FAA considered were consistent with RTCA's conclusions pertaining to radio altimeter interference from C-Band emissions. The FAA determined that, at this time, no information has been presented that shows radio altimeters are not susceptible to interference caused by C-Band emissions permitted in the United States.

Additionally, the deployment of C-Band wireless broadband networks is occurring globally. In certain countries, deployment has already occurred in C-Band frequencies. In some countries, temporary technical, regulatory, and operational mitigations on C-Band systems have been implemented while aviation authorities complete their safety assessments. Under the FCC rules adopted in 2020, base stations in rural areas of the United States are permitted to emit at higher levels in comparison to other countries which may affect radio altimeter equipment accuracy and reliability.

The radio altimeter is an important aircraft instrument, and its intended function is to provide direct height-above-terrain/water information to a variety of aircraft systems. Commercial aviation radio altimeters operate in the 4.2-4.4 GHz band, which is separated by 220 megahertz from the C-Band telecommunication systems in the 3.7-3.98 GHz band. The radio altimeter is more precise than a barometric altimeter and for that reason is used where aircraft height over the ground needs to be precisely measured, such as autoland or other low altitude operations. The receiver on the radio altimeter is typically highly accurate, however it may deliver erroneous results in the presence of out-of-band radiofrequency emissions from other frequency bands. The radio altimeter must detect faint signals reflected off the ground to measure altitude, in a manner similar to radar. Out-of-band signals could significantly degrade radio altimeter functions during critical phases of flight, if the altimeter is unable to sufficiently reject those signals.

Many operators need to be able to land in low visibility conditions. These operators employ specially certified equipment and flightcrew training in order to be able to fly closer to the ground during approach in instrument conditions, in some cases all the way through the landing phase, without visual reference to the runway environment. These operations can only be conducted with reference to actual height above the ground, as measured by a radio altimeter.

Additionally, automatic and/or manual flight guidance systems on airplanes facilitate low visibility operations and rely on accurate radio altimeter inputs. These inputs determine when and where the aircraft flares for landing, when power reductions are made for landing, and when automated crosswind controls and other control inputs are made. Anomalous (missing or erroneous) radio altimeter inputs to these systems may cause the aircraft to be maneuvered in an unexpected or hazardous manner during the final stages of approach and landing, and may not be detectable by the pilot in time to maintain continued safe flight and landing. Inaccurate radio altimeter data can result in pilots not trusting their instruments, eroding the foundation on which all instrument flight training is built.

Although the FAA has determined the operations immediately at risk are those requiring a radio altimeter to land in low visibility conditions, a wide range of other automated safety systems rely on radio altimeter data. Harmful interference to the radio altimeter could cause these systems to operate in an unexpected way. The FAA continues to work with inter-agency and industry stakeholders to collect data on potential effects to these systems to determine whether additional mitigations are necessary. The FAA determined, however, that mandatory action is not immediately required for these systems.

The FAA plans to use data provided by telecommunications providers to determine which airports within the United States have or will have C-Band base stations or other devices that could potentially impact airplane systems. NOTAMs will be issued, as necessary, to state the specific airports where the data from a radio altimeter may be unreliable due to the presence of 5G C-Band wireless broadband signals. 6 For this reason, this AD requires flight manual limitations that prohibit certain operations requiring radio altimeter data at locations that will be identified by NOTAMs. Due to the dynamic nature of both the base station activation and the ongoing process of identifying the resulting affected airspace, including potential consideration for variability in C-Band deployment conditions such as radiated power levels and locations, the FAA has determined that NOTAMs are the best means to communicate changes in restrictions at affected airports.

Finally, the FAA notes that in accordance with paragraph (h) of this AD, any person may propose and request FAA approval of an alternative method of compliance (AMOC). The proposed AMOC must include specific conditions that would address the unsafe condition ( e.g., by providing information substantiating that certain aircraft or altimeter models are not susceptible to C-Band radiofrequency interference).

The FAA is issuing this AD because the agency has determined the unsafe condition as described previously is likely to exist or develop in transport and commuter category airplanes with a radio altimeter as part of their type design.

This AD requires revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G C-Band wireless broadband signals as identified by NOTAM. These limitations could prevent dispatch of flights to certain locations with low visibility, and could also result in flight diversions.

Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the AFM. FAA regulations also require operators to furnish pilots with any changes to the AFM (14 CFR 121.137) and pilots in command to be familiar with the AFM (14 CFR 91.505).

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

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because radio altimeter anomalies that are undetected by the aircraft automation or pilot, particularly close to the ground ( e.g., landing flare), could lead to loss of continued safe flight and landing. The urgency is based on C-Band wireless broadband deployment, which is expected to occur in phases with operations beginning as soon as January 5, 2022. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0953 and Project Identifier AD-2021-01169-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Brett Portwood, Continued Operational Safety Technical Advisor, COS Program Management Section, Operational Safety Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

For the reasons discussed above, this AD will not affect intrastate aviation in Alaska.

The FAA estimates that this AD affects 6,834 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

As previously discussed, there may be other impacts to aviation; however there remains uncertainty as to cost due to various factors such as which airports within the United States have, or will have, base stations or other devices that could interfere with aircraft radio altimeters.

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2020-0242, dated November 5, 2020 (EASA AD 2020-0242) (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for certain RRD Trent 1000-A, Trent 1000-AE, Trent 1000-C, Trent 1000-CE, Trent 1000-D, Trent 1000-E, Trent 1000-G, and Trent 1000-H model turbofan engines.

This AD was prompted by the manufacturer revising the engine TLM life limits of certain critical rotating parts and updating certain maintenance tasks. The FAA is issuing this AD to address the failure of critical rotating parts.

These engines have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the State of Design Authority, the FAA has been notified about the unsafe condition described in the EASA AD referenced in this proposed AD. The FAA is issuing this AD because the agency evaluated all the relevant information provided by EASA and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed EASA AD 2020-0242. EASA AD 2020-0242 specifies procedures for revising the approved AMP by incorporating the limitations, tasks, and associated thresholds and intervals described in the TLM.

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

The FAA reviewed Chapter 05-10 of Rolls-Royce (RR) Trent 1000 TLM T-TRENT-10RRB, dated August 1, 2020. RR Trent 1000 TLM T-TRENT-10RRB, Chapter 05-10, identifies the reduced life limits of certain critical rotating parts.

The FAA also reviewed Chapter 05-20 of RR Trent 1000 TLM T-TRENT-10RRB, dated August 1, 2020. RR Trent 1000 TLM T-TRENT-10RRB, Chapter 05-20, identifies the critical rotating part inspection thresholds and intervals.

This AD requires accomplishing the actions specified in EASA AD 2020-0242, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the MCAI.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and civil aviation authorities (CAAs) to use this process. As a result, EASA AD 2020-0242 will be incorporated in this final rule. This AD, therefore, requires compliance with EASA AD 2020-0242 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2020-0242 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2020-0242. Service information required by EASA AD 2020-0242 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2021-0879.

This AD does not mandate the “Maintenance Tasks and Replacement of Critical Parts” and “Corrective Action(s)” sections of EASA AD 2020-0242. Where EASA AD 2020-0242 requires compliance from its effective date, this AD requires using the effective date of this AD. Where EASA AD 2020-0242 requires revising the approved AMP within 12 months from its effective date, this AD requires revising the existing approved AMP within 90 days after the effective date of this AD. This AD does not mandate compliance with the “Remarks” section of EASA AD 2020-0242.

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 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 justifies waiving notice and comment prior to adoption of this rule because no domestic operators use this product. It is unlikely that the FAA will receive any adverse comments or useful information about this AD from any U.S. operator. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reason, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written relevant data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0879; Project Identifier MCAI-2020-01494-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kevin M. Clark, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

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

The FAA estimates that this AD affects 0 engines installed on airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

For the reasons discussed above, I certify 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 proposes to amend 14 CFR part 39 as follows:

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0027R1, dated January 22, 2021 (EASA AD 2021-0027R1), to correct an unsafe condition for all Airbus Helicopters (formerly Eurocopter) Model AS355NP helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Model AS355NP helicopters. The NPRM published in the Federal Register on September 23, 2021 (86 FR 52853). The NPRM was prompted by a report of mechanical deformation found on the protective cover (also referred to as switch guard) of the “SHEAR” control pushbutton installed on a co-pilot collective stick of a Model EC225LP helicopter, caused by incorrect handling; due to having an identical design switch guard installed on the pilot collective stick, Model AS355NP helicopters are also affected. The NPRM proposed to require replacement of the protective cover of the “SHEAR” control pushbutton, and re-identification of the pilot collective stick, as specified in EASA AD 2021-0027R1.

The FAA is issuing this AD to address mechanical deformation on the protective cover of the “SHEAR” control pushbutton installed on the pilot collective stick. The unsafe condition, if not addressed, could result in unintended shearing of the hoist cable, possibly resulting in injury to hoisted person(s). See EASA AD 2021-0027R1 for additional background information.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2021-0027R1 requires replacement of the protective cover of the “SHEAR” control pushbutton, and re-identification of the pilot collective stick. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 2 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

In March 2020, the United States Federal Communications Commission (FCC) adopted final rules authorizing flexible use of the 3.7-3.98 GHz band for next generation services, including 5G and other advanced spectrum-based services. 1 Pursuant to these rules, C-Band wireless broadband deployment is permitted to occur in phases with the opportunity for operations in the lower 100 megahertz of the band (3.7-3.8 GHz) in 46 markets beginning as soon as December 5, 2021; however, the FAA does not expect actual deployment to commence until January 5, 2022. This AD refers to “5G C-Band” interference, but wireless broadband technologies, other than 5G, may use the same frequency band. 2 These other uses of the same frequency band are within the scope of this AD since they would introduce the same risk of radio altimeter interference as 5G C-Band.

In April 2020, RTCA formed a 5G Task Force, including members from RTCA, the FAA, aircraft and radio altimeter manufacturers, European Organisation for Civil Aviation Equipment (EUROCAE), industry organizations, and operators, to perform “a quantitative evaluation of radar altimeter performance regarding RF interference from expected 5G emissions in the 3.7-3.98 GHz band, as well as a detailed assessment of the risk of such interference occurring and impacting aviation safety.”  3 Based on the work of the task force, RTCA published a report, which concluded that there is “a major risk that 5G telecommunications systems in the 3.7-3.98 GHz band will cause harmful interference to radar altimeters on all types of civil aircraft—including commercial transport airplanes; business, regional, and general aviation airplanes; and both transport and general aviation helicopters.”  4

The report further concludes that the likelihood and severity of radio frequency interference increases for operations at lower altitudes. That interference could cause the radio altimeter to either become inoperable or present misleading information, and/or also affect associated systems on civil aircraft. The RTCA report refers to FCC Report and Order (R&O) FCC 20-22, 5 which identifies radio frequencies and power level conditions for the new C-Band services. The RTCA report identified the possibility of interference from both wireless emitters (on base stations, for example) as well as onboard user handsets. The RTCA report and conclusions remain under review, including by federal spectrum regulators. The FAA risk assessment included consideration of the RTCA report, public comments to the RTCA report, and analyses from radio altimeter manufacturers and aircraft manufacturers in support of the safety risk determination. The analyses FAA considered were consistent with RTCA's conclusions pertaining to radio altimeter interference from C-Band emissions. The FAA determined that, at this time, no information has been presented that shows radio altimeters are not susceptible to interference caused by C-Band emissions permitted in the United States.

Additionally, the deployment of C-Band wireless broadband networks is occurring globally. In certain countries, deployment has already occurred in C-Band frequencies. In some countries, temporary technical, regulatory, and operational mitigations on C-Band systems have been implemented while aviation authorities complete their safety assessments. Under the FCC rules adopted in 2020, base stations in rural areas of the United States are permitted to emit at higher levels in comparison to other countries.

The radio altimeter is an important aircraft instrument, and its intended function is to provide direct height-above-terrain/water information to a variety of aircraft systems. Commercial aviation radio altimeters operate in the 4.2-4.4 GHz band, which is separated by 220 megahertz from the C-Band telecommunication systems in the 3.7-3.98 GHz band. The radio altimeter is more precise than a barometric altimeter and for that reason is used where aircraft height over the ground needs to be precisely measured, such as autohover or other low altitude operations. The receiver on the radio altimeter typically is highly accurate, however it may deliver erroneous results in the presence of out-of-band radio frequency emissions from other frequency bands. The radio altimeter must detect faint signals reflected off the ground to measure altitude, in a manner similar to radar. Out-of-band signals could significantly degrade radio altimeter functions during critical phases of flight, if the altimeter is unable to sufficiently reject those signals.

Many operators need to be able to land in low visibility conditions. These operators employ specially certified equipment and flightcrew training in order to be able to fly closer to the ground during approach in instrument conditions without visual reference to the landing environment. These operations can only be conducted with reference to actual height above the ground, as measured by a radio altimeter.

Additionally, automatic and/or manual flight guidance systems on helicopters facilitate low visibility operations and rely on accurate radio altimeter inputs. These inputs may provide height data for landing and takeoff for Category A and Category B operations. Anomalous (missing or erroneous) radio altimeter inputs to these systems may cause the aircraft to be maneuvered in an unexpected or hazardous manner during the final stages of approach and landing, and may not be detectable by the pilot in time to maintain continued safe flight and landing. Inaccurate radio altimeter data can result in pilots not trusting their instruments, eroding the foundation on which all instrument flight training is built.

Although the FAA has determined operations immediately at risk are those requiring a radio altimeter to takeoff, land, or establish and maintain a hover, a wide range of automated safety systems rely on radio altimeter data. The FAA continues to work with inter-agency and industry stakeholders to collect data on potential effects to these systems to determine whether additional mitigations are necessary. The FAA determined, however, that mandatory action is not immediately required for these systems.

The FAA plans to use data provided by telecommunications providers to determine which heliports, airports, or areas within the United States have or will have C-Band base stations or other devices that could potentially impact helicopter systems. NOTAMs will be issued, as necessary, to state the specific areas where the data from a radio altimeter may be unreliable due to the presence of 5G C-Band wireless broadband signals. 6 For this reason, this AD requires flight manual limitations that prohibit certain operations requiring radio altimeter data in areas that will be identified by NOTAMs. Due to the dynamic nature of base station activation and the ongoing process of identifying the resulting affected airspace, including potential consideration for variability in C-Band deployment conditions such as radiated power levels and locations, the FAA has determined that NOTAMs are the best means to communicate changes in restrictions within affected areas.

Finally, the FAA notes that in accordance with paragraph (h) of this AD, any person may propose and request FAA approval of an alternative method of compliance (AMOC). The proposed AMOC must include specific conditions that would address the unsafe condition ( e.g., by providing information substantiating that certain aircraft or altimeter models are not susceptible to C-Band radio frequency interference).

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in helicopters with a radio altimeter as part of their type design.

This AD requires revising the limitations section of the existing RFM for your helicopter to incorporate limitations prohibiting certain operations requiring radio altimeter data when in the presence of 5G C-Band wireless broadband signals in areas as identified by NOTAM.

These prohibitions could prevent flights and could also result in flight diversions.

Section 91.9 prohibits any person from operating a civil aircraft without complying with the operating limitations specified in the RFM.

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

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because radio altimeter anomalies that are undetected by the aircraft automation or pilot, particularly close to the ground, could lead to loss of continued safe flight and landing. The urgency is based on C-Band wireless broadband deployment, which is expected to occur in phases with operations beginning as soon as January 5, 2022. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2021-0954 and Project Identifier AD-2021-01170-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Dave Swartz, Continued Operational Safety Technical Advisor, COS Program Management Section, Operational Safety Branch, FAA, 222 W. 7th Ave, M/S #14 Anchorage, AK 99513; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The 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.

For the reasons discussed above, this AD will not affect intrastate aviation in Alaska.

The FAA estimates that this AD affects 1,828 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Revising the existing RFM for your helicopter would take about 1 work-hour for an estimated cost of $85 per helicopter or $155,380 for the U.S. fleet.

As previously discussed, there may be other impacts to aviation; however there remains uncertainty as to cost due to various factors such as which areas within the United States have, or will have, base stations or other devices that could interfere with aircraft radio altimeters.

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Pilatus Aircraft Ltd. Model PC-12/45, PC-12/47, and PC-12/47E airplanes with STC SA00634DE installed. The NPRM published in the Federal Register on July 22, 2021 (86 FR 38613). The NPRM was prompted by a report of strake attachment brackets and the fuselage frame failing at the upper most bracket attachment location. In the NPRM, the FAA proposed to require inspecting the strake, attachment brackets, and bolts for movement and damage, both internal and external, and replacing components and repairing damage if necessary. The FAA is issuing this AD to prevent buffeting of the strakes. This condition, if not addressed, could result in airplane flutter and reduced lateral stability, which may lead to loss of control of the airplane.

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

The FAA has clarified the wording of the required inspections in paragraph (g) of this AD. This is not a substantive change.

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

The FAA reviewed Pilatus Service Bulletin PC-12 Series, Report Number 12-1700-64-0000, Revision B, dated August 10, 2018 (Pilatus Report 12-1700-64-0000B), which contains procedures for inspection of all fuselage strake attachment bolts and the surrounding structure. 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 .

Pilatus Report 12-1700-64-0000B specifies a one-time inspection within 10 flight hours of issuance of the service bulletin and recommends repeat inspections without specifying an inspection interval. This AD requires repeating the inspection every 150 flight hours. Pilatus Report 12-1700-64-0000B specifies contacting Pilatus for further instructions. This AD requires using an FAA-approved repair method. Pilatus Report 12-1700-64-0000B applies to Pilatus PC-12 aircraft serial numbers 190 to 1575. This AD applies to all Pilatus Aircraft Ltd. Models PC-12/45, PC-12/47, and PC-12/47E airplanes, regardless of serial number, if STC SA00634DE is installed.

The FAA considers this AD an interim action. Pilatus is working on a modification with the intent of minimizing, if not eliminating, the buffeting of the strakes. Once this action is developed, approved, and available, the FAA may consider additional rulemaking.

The FAA estimates that this AD affects 30 airplanes of U.S. registry.

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

The extent of damage found during the proposed inspections may vary considerably from airplane to airplane. The FAA has no way of knowing how many airplanes may have damage or the extent of damage each airplane may have.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bell Textron Canada Limited (type certificate previously held by Bell Helicopter Textron Canada Limited) Model 505 helicopters. The NPRM published in the Federal Register on September 20, 2021 (86 FR 52109). In the NPRM, the FAA proposed to require revising the existing RFM for your helicopter. Incorporating the RFM revision may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a)(1) through (4) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439. This is an exception to the FAA's standard maintenance regulations.

The NPRM was prompted by Canadian AD CF-2019-08, dated March 5, 2019 (Canadian AD CF-2019-08), issued by Transport Canada, which is the aviation authority for Canada, to correct an unsafe condition for Bell Helicopter Textron Canada Limited Model 505 helicopters serial numbers 65011 and subsequent. Transport Canada advises of the need to reduce the altitude limitations for Jet B and JP-4 wide-cut fuels following unsatisfactory performance of the engine at the original higher altitude limitations with these wide-cut fuels. This condition, if not addressed, could result in low fuel pressure, engine flame-out, or engine power interruption (a change in any engine performance parameter—including but not limited to gas generator speed, power turbine speed, main gas temperature, or output torque—outside its normal limits for the prevailing operating conditions).

Accordingly, Canadian AD CF-2019-08 requires revising the RFM to reflect the reduced altitude operating limitations for Jet B and JP-4 wide-cut fuels.

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

These helicopters have been approved by the aviation authority of Canada and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with Canada, Transport Canada, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed Figure 1-6. Fuel Operating Envelope (Sheet 1 of 1) of Bell 505 Rotorcraft Flight Manual BHT-505-FM-1, Revision 3, dated July 25, 2018, which specifies limitations, normal and emergency procedures, performance data, weight and balance information, and provides a list of approved optional equipment supplements. This revision of the service information includes an updated figure of the fuel operating envelope showing the reduced pressure altitude limitations for Jet B and JP-4 fuels.

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

Canadian AD CF-2019-08 requires updating the RFM to Bell 505 RFM BHT-505-FM-1 Revision 3 or later revisions approved by Transport Canada, whereas this AD requires revising the Limitations Section of the RFM for your helicopter by replacing the existing Figure 1-6. with Figure 1-6. Fuel Operating Envelope (Sheet 1 of 1) of Bell 505 RFM BHT-505-FM-1, Revision 3, dated July 25, 2018.

The FAA estimates that this AD affects 73 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Revising the existing RFM for your helicopter would take about 0.5 work-hour for an estimated cost of $43 per helicopter or $3,139 for the U.S. fleet.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Hélicoptères Guimbal (HG) Model Cabri G2 helicopters. The NPRM published in the Federal Register on August 23, 2021 (86 FR 47038). In the NPRM, the FAA proposed to require before further flight, removing from service certain part-numbered cooling fan front flanges and engine pulley ball bearings that have accumulated or exceeded their life limit. The NPRM also proposed to require establishing recurring CMR tasks for certain part-numbered cooling fan front flanges. Depending on the results of the CMR tasks, the NPRM proposed to require corrective action. Additionally, the NPRM proposed to require painting certain part-numbered tail booms with glossy white paint.

The NPRM was prompted by a series of EASA ADs beginning with EASA AD 2016-0032, dated February 24, 2016 (EASA AD 2016-0032), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for HG Model Cabri G2 helicopters. EASA AD 2016-0032 states HG has revised the airworthiness limitations and maintenance tasks specified in the existing maintenance manual. EASA further advised the revisions include new and more restrictive applicable life limits and compliance times for applicable tasks. Accordingly, EASA 2016-0032 required replacing each affected part before exceeding its life limit, accomplishing all applicable maintenance tasks within the defined intervals as described in revised maintenance manual and if discrepancies were found accomplishing the corrective actions in accordance with the applicable maintenance instructions or contacting HG. EASA AD 2016-0032 also required revising the existing Aircraft Maintenance Program (AMP) for your helicopter by incorporating the actions specified in the revised maintenance. After EASA issued EASA AD 2016-0032, HG again revised the airworthiness limitations and maintenance tasks.

Accordingly, EASA superseded EASA AD 2016-0032 with EASA AD 2019-0025, dated February 4, 2019 (EASA AD 2019-0025). EASA advises new and more restrictive life limits have been established for cooling fan part number (P/N) G52-00-001, and P/N G52-00-002, which have been identified as mandatory for continued airworthiness in Hélicoptères Guimbal Cabri G2 Maintenance Manual (MM) No. J70-002 Issue 06, dated December 6, 2018, Section C, Airworthiness Limitations (the ALS). In addition to the new life limits, EASA advises of new and more restrictive inspection intervals identified in the ALS for cooling fan P/N G52-00-001 with a certain mounted cooling fan front flange P/N G52-02-200, or P/N G52-02-201. EASA further advises that the ALS revised the tail structure paint to include certain part-numbered tail booms and an additional figure. This condition, if not addressed, could result in parts remaining in service beyond their fatigue life and failure of a part, which could result in loss of control of the helicopter.

Accordingly, EASA AD 2019-0025 retains the requirements of EASA AD 2016-0032 and requires replacing each affected part before exceeding its life limit, accomplishing all applicable maintenance tasks within the defined intervals as described in the ALS, and if discrepancies are found accomplishing the corrective actions in accordance with the applicable maintenance instructions or contacting HG. EASA AD 2019-0025 also requires revising the tail structure paint scheme to include certain part-numbered tail booms and an additional figure. EASA AD 2019-0025 requires revising the existing AMP for your helicopter by incorporating the actions specified in the ALS.

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

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. Changes include clarifying the name of and the specific portions of Guimbal France Hélicoptères Guimbal Cabri G2 Maintenance Manual and Instructions for Continued Airworthiness, J70-002—Issue 06, dated December 6, 2018 (MM J70-002 Issue 06) that are required to accomplish this final rule. MM J70-002 Issue 06 also refers to a flashlight as a torchlight; accordingly, changes have been made in this final rule to clarify that where MM J70-002 Issue 06 specifies to use a torchlight, to use a flashlight instead. This final rule also removes the requirements of accomplishing sub section 52-A-10 Cooling Fan Inspection, paragraph d), of MM J70-002 Issue 06 because it is unnecessary, this final rule already provides requirements pertaining to what to do if there is a crack.

The FAA reviewed page C-6 of Section C, Airworthiness Limitations, and page E-5-53 of Section E, Maintenance Instructions, of MM J70-002 Issue 06. This service information specifies airworthiness life limits, inspection intervals, and CMR requirements for parts installed on Cabri G2 helicopters. MM J70-002 Issue 06 also establishes life limits for certain part-numbered cooling fan front flanges, and engine pulley ball bearings and CMR requirements for certain cooling fan front flanges.

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

EASA AD 2019-0025 requires contacting Hélicoptères Guimbal for corrective actions when a discrepancy is found, whereas this AD requires removing the part from service. EASA AD 2019-0025 requires accomplishing the actions specified in the ALS, whereas this AD requires establishing a life limit for certain part-numbered cooling fan front flanges and certain part-numbered engine pulley ball bearings and removing any part from service accordingly instead. EASA AD 2019-0025 requires revising the AMP with the actions specified in the ALS, whereas this AD does not.

The FAA estimates that this AD affects 32 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Replacing a cooling fan front flange takes about 16 work-hours and parts cost about $4,500 for an estimated cost of $5,860 per helicopter and $187,520 for the U.S. fleet, per replacement cycle.

Replacing an engine pulley ball bearing takes about 12 work-hours and parts cost about $250 for an estimated cost of $1,270 per helicopter and $40,640 for the U.S. fleet, per replacement cycle.

The FAA has no way of determining the estimated costs to do allowable repairs based on the results of the CMR tasks. If required, replacing a cracked cooling fan front flange takes about 16 work-hours and parts cost about $4,500 for an estimated cost of $5,860.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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 helicopters identified in this rulemaking action.

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

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

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

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

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

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

On March 8, 2018, Proclamations 9704 and 9705 were issued imposing duties on imports of aluminum and steel, respectively. The Proclamations also authorized the Secretary of Commerce (“the Secretary”) to grant exclusions from the duties if the Secretary determines the steel or aluminum article for which the exclusion is requested is not “produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality” or should be excluded “based upon specific national security considerations,” and provided authority for the Secretary to issue procedures for exclusion requests. On April 30, 2018, Proclamations 9739 and 9740, and on May 31, 2018, Proclamations 9758 and 9759, set quantitative limitations on the import of steel and aluminum from certain countries in lieu of the duties. On August 29, 2018, in Proclamations 9776 and 9777, the Secretary was authorized to grant exclusions from quantitative limitations based on the same standards applicable to exclusions from the tariffs.

Since March 19, 2018, Commerce has published a series of four interim final rules that established and made various improvements to the Section 232 exclusions process.

On March 19, 2018, Commerce first issued an interim final rule, Requirements for Submissions Requesting Exclusions from the Remedies Instituted in Presidential Proclamations Adjusting Imports of Steel into the United States and Adjusting Imports of Aluminum into the United States; and the filing of Objections to Submitted Exclusion Requests for Steel and Aluminum (83 FR 12106) (the “March 19 rule”), laying out procedures for the Section 232 exclusions process.

On September 11, 2018, Commerce issued a second interim final rule, Submissions of Exclusion Requests and Objections to Submitted Requests for Steel and Aluminum (83 FR 46026) (the “September 11 rule”), that revised the two supplements added by the March 19 rule with improvements designed to further ensure a transparent, fair, and efficient exclusion and objection process.

On June 10, 2019, Commerce issued a third interim final rule, Implementation of New Commerce Section 232 Exclusions Portal (84 FR 26751) (the “June 10 rule”), that revised the two supplements added by the March 19 and September 11 rules to grant the public the ability to submit new exclusion requests through the Section 232 Exclusions Portal while still allowing the opportunity for public comment on the portal.

On May 26, 2020, Commerce issued a notice of inquiry with request for comment, Notice of Inquiry Regarding the Exclusion Process for Section 232 Steel and Aluminum Import Tariffs and Quotas (85 FR 31441) (the “May 26 notice”), that sought public comment on the appropriateness of the information requested and considered in applying the exclusion criteria, and the efficiency and transparency of the process employed.

On December 14, 2020, Commerce issued a fourth interim final rule, Implementation of New Commerce Section 232 Exclusions Portal (85 FR 81060) (the “December 14 rule”), that made additional revisions to the Section 232 exclusion process and added General Approved Exclusions (GAEs) to supplements no. 2 and no. 3 to part 705.

As noted above, the December 14 rule added new supplements, no. 2 and no. 3, for identifying GAEs for steel and aluminum articles under the Section 232 exclusions process and the first approved tranche of GAEs for steel and aluminum articles. GAEs addressed a long-standing request from exclusion requesters to create a more efficient process to approve certain exclusions where Commerce has determined that: (1) No objections will be received; and (2) it is warranted to approve an exclusion for all importers to use.

Specifically, the December 14 rule added a new Supplement No. 2 to Part 705—General Approved Exclusions (GAEs) for Steel Articles Under the Section 232 Exclusions Process, and a new Supplement No. 3 to Part 705—General Approved Exclusions (GAEs) for Aluminum Articles under the Section 232 Exclusions Process. These two supplements identify the steel and aluminum articles that have been approved for import under a GAE. The December 14 rule added 108 GAEs for steel articles under supplement no. 2 to part 705 and 15 GAEs for aluminum articles under supplement no. 3 to part 705. Each GAE is identified under the GAE identifier column, e.g., GAE.1.S: 7304592030 (for the first approved GAE for steel) or GAE.1.A: 7609000000 (for the first approved GAE for aluminum).

The Secretary, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior Executive Branch officials, as appropriate, makes the determinations that certain aluminum and steel articles may be authorized under a GAE consistent with the objectives of the Section 232 exclusions process as outlined in supplement no. 1 to part 705.

The GAEs described in these supplements may be used by any importer. The two supplements specify that, in order to use a GAE, the importer must reference the GAE identifier in the Automated Commercial Environment (ACE) system that corresponds to the steel or aluminum articles being imported. GAEs do not include quantity limits. The effective date for each GAE will be fifteen calendar days after the date of publication of a Federal Register notice either adding or revising a specific GAE identifier in supplements no. 2 or no. 3 to this part. There will be no retroactive relief for GAEs. The December 14 rule also specified that relief is only available to steel or aluminum articles that are entered for consumption, or withdrawn from warehouse for consumption, on or after the effective date of a GAE included in supplements no. 2 or no. 3 to part 705.

The December 14 rule specified that these GAEs are indefinite in length, but Commerce may at any time issue a Federal Register notice removing, revising, or adding to an existing GAE in either of the two supplements as warranted to align with the objectives of the Section 232 exclusions process as described in supplement no. 1 to part 705. As described below, Commerce is making such a revision with the publication of today's interim final rule by removing 30 of the GAEs. Commerce may periodically publish notices of inquiry in the Federal Register soliciting public comments on potential removals, revisions, or additions to this supplement.

Commerce is publishing this interim final rule to remove a subset of GAEs (26 GAEs for steel and 4 GAEs for aluminum) added in the December 14 rule after public comments on the December 14 rule and subsequent Commerce analysis of data in the Section 232 Exclusions Portal identified these HTSUS codes as not meeting the criteria for inclusion as a GAE. These cases include HTSUS codes with exclusion requests that recently received objections and/or denials in the Section 232 Exclusions Portal. Commerce is removing these GAEs in this interim final rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs.

This interim final rule is being published to make the following key change to the Section 232 exclusions process: As described above, the December 14 rule included adding 123 GAEs. The addition of GAEs improved the efficiency and effectiveness of the Section 232 exclusions process for certain steel and aluminum articles under select HTSUS codes that had not received objections from domestic industry. Commerce determined that it could authorize imports under GAEs for these specified articles as defined by HTSUS codes for all importers rather than requiring each importer to submit an exclusion request.

Subsequently, based on Commerce's review of the public comments received in response to the December 14 rule and additional analysis conducted by Commerce of Section 232 submissions, Commerce determined that a subset of the GAEs added in the December 14 rule do not meet the criteria for inclusion as a GAE and should therefore be removed. Commerce is removing these GAEs in today's rule to ensure that only those GAEs that meet the stated criteria from the December 14 rule will continue to be included as eligible GAEs. This interim final rule removes 30 of the GAEs that were added to the regulations in the December 14 rule, consisting of 26 GAEs for steel (“GAE.3.S: 7220900060,” “GAE.7.S: 7227901060,” “GAE.14.S: 7215500018,” “GAE.16.S: 7228501040,” “GAE.23.S: 7220206010,” “GAE.27.S: 7219320020,” “GAE.33.S: 7304515005,” “GAE.34.S: 7219330025,” “GAE.35.S: 7217901000,” “GAE.37.S: 7217108030,” “GAE.38.S: 7212200000,” “GAE.39.S: 7217204560,” “GAE.52.S: 7219220040,” “GAE.53.S: 7219320038,” “GAE.54.S: 7219320045,” “GAE.55.S: 7219350005,” “GAE.56.S: 7219320036,” “GAE.60.S: 7225501110,” “GAE.68.S: 7302101015,” “GAE.71.S: 7217304541,” “GAE.75.S: 7219210005,” “GAE.76.S: 7304293160,” “GAE.78.S: 7216400010,” “GAE.87.S: 7304293180,” “GAE.92.S: 7208390015,” and “GAE.98.S: 7229200015”) and 4 GAEs for aluminum (“GAE.2.A: 7607205000,” “GAE.11.A: 7616995170,” “GAE.14.A: 7601209095,” and “GAE.15.A: 7616995160”). Because these GAEs do not meet the established criteria, Commerce is publishing this interim final rule to remove these thirty GAEs. This interim final rule makes no additional changes to the other 93 GAEs that will continue to remain in supplements no. 2 and no. 3. This revision further ensures the Section 232 exclusions process is consistent with the rationale for the import restrictions—protecting U.S. national security—while increasing the efficiency of the exclusion process.

The public comment period on the December 14 rule closed on February 12, 2021. BIS received thirty-five public comments on the interim final rule.

Comment (a)(1): GAEs did not follow the criteria stated in the December 14 rule because some GAE HTSUS codes received objections and/or denials. Several comments referenced the criteria Commerce included in the December 14 rule detailing why certain HTSUS codes were selected for GAEs. Specifically, these commenters noted that according to the Department, the “GAEs address a long-standing request from public comments of exclusion requesters to create a more efficient process to approve certain exclusions for use by all importers where Commerce has determined that no objections will be received and where it is warranted to approve an exclusion for all importers to use.” These commenters stated that this is not the case because the GAE list from the December 14 rule included several HTSUS codes for which domestic producers submitted an objection, covering more than a dozen GAEs. These same commenters noted that the GAE list also included several HTSUS codes for which the Department had denied exclusion requests. For these reasons, these commenters believe the Department's GAE list is, therefore, flawed.

BIS response: Commerce will continue to apply the criteria that were included in the December 14 rule. Commerce agrees that a subset of GAEs included in the December 14 rule did not meet the stated criteria for inclusion as a GAE. The criteria in the December 14 rule need to be followed to ensure that GAEs can be implemented in a way that improves the efficiency and effectiveness of the Section 232 exclusions process without undermining the effectiveness of the tariffs and the national security objectives that the tariffs are attempting to address. Commerce will act to remove or revise GAE entries once Commerce becomes aware of GAEs that do not meet the stated criteria for inclusion.

Comment (a)(2): Data from Section 232 Exclusions Portal demonstrating objections were received. Commenters opposed to the GAEs highlighted that a review of the Section 232 Exclusions Portal shows that over 70 exclusion requests involving HTSUS provisions included on supplements no. 2 and no. 3 in the December 14 rule had objections filed and, in a number of cases, the requests were denied by Commerce. Commenters noted that despite these findings the HTSUS codes were included in the December 14 rule as eligible GAEs. Some of these commenters included detailed screen shots or other information taken from the Section 232 Exclusions Portal to support their comments.

BIS response: Commerce agrees with these commenters that the data in the Section 232 Exclusions Portal indicates that certain HTSUS codes do not meet the criteria for inclusion on the list of GAEs. As described below in greater detail, the difference between the stated criteria in the December 14 rule and the published list of GAEs occurred due to activity in the Section 232 Exclusions Portal which occurred after the baseline date used by Commerce for identifying which HTSUS codes had not received objections and/or denials and thus were eligible for inclusion as GAEs. As described below, Commerce has made internal process changes to ensure that the rulemaking process for all future rules adding new GAEs will include review immediately prior to publication for any new rule adding additional GAEs.

Comment (a)(3): Including steel or aluminum articles in GAEs that had received objections and/or denials is unfair and contrary to the objectives of the Section 232 process. Some commenters indicated that it is unfair to companies who filed objections, after which the related exclusion requests were denied, to allow the same steel or aluminum articles to be eligible for GAEs. These commenters were also concerned that not only does granting GAEs for such steel and aluminum articles allow the company who submitted the exclusion request to import the steel or aluminum product tariff-free, it also opens the market to all companies who import that aluminum or steel product.

BIS response: Commerce agrees with these concerns and is addressing them in this interim final rule.

BIS is suspending 30 out of the 123 GAEs that became effective on December 29, 2020. This interim final rule implements these 30 suspensions by removing these GAEs from supplements no. 2 and no. 3 to part 705. Commerce made this determination based on internal review of exclusions data which indicated that the articles specified in these 30 GAEs require further analysis by the Department. Based on the results of this analysis, Commerce may reissue these GAEs in whole or in part with subsequent interim final rules. As noted in the December 14 rule, Commerce may periodically publish notices of inquiry in the Federal Register soliciting public comments on potential removals, revisions, or additions to the two supplements for GAEs. Based on Commerce's experience with the initial tranche of GAEs, Commerce will likely publish notices prior to adding additional GAEs to help better inform Commerce decisions on what HTSUS codes or specific products may warrant inclusion.

The steel and aluminum articles specified by these 30 GAEs (as defined by their HTSUS Classifications) will revert to the duties and treatment previously established under Presidential Proclamations 9704 and 9705 as well as subsequent Proclamations.

Commerce identified 26 steel GAEs and 4 aluminum GAEs for removal in this interim final rule. Commerce identified these GAEs based on review of its internal exclusions data in light of public comments received in response to the December 14 rule highlighting, as noted above, that articles under certain HTSUS codes were included as GAEs despite previously receiving objections and/or denials in the Section 232 Exclusions Portal.

Commerce issued the set of 123 GAEs based on its analysis of all of the exclusion requests received through the Section 232 exclusions process since its implementation on March 19, 2018. BIS based the GAEs on the HTSUS codes that had never received an objection during the first thirty months of the Section 232 exclusions process, on the basis that the lack of objections indicated either an unwillingness or inability of domestic objectors to manufacture the articles classified under the HTSUS codes. Commerce conducted its analysis using data, drawn on a baseline date of September 12, 2020, from the Section 232 Exclusions Portal. The baseline date provided for thirty months of Section 232 submissions data covering nearly 240,000 of Section 232 submissions. Based on the quantity and timespan of the data, Commerce concluded that all 123 HTSUS codes could be implemented as GAEs.

Since publishing the December 14 rule, Commerce has become aware that exclusion requests for steel and aluminum articles specified by 29 of the GAEs removed by this interim final rule—25 steel GAEs and 4 aluminum GAEs—received objections after September 12, 2020. In some but not all cases, the Department denied these exclusion requests. BIS is removing these 29 GAEs to conduct further analysis with updated data from the Section 232 Exclusions Portal. BIS, based on the results of this analysis, may reissue these GAEs in whole or part in subsequent rules. Commerce has also made internal process changes specific to the timing of data runs to ensure that the baseline date used for determining new GAEs is as close as possible to when any subsequent rule that adds or revises the GAEs is published. These internal process changes will allow Commerce, as needed, to remove GAEs from a rule prior to publication if it is determined that one or more of the GAEs (or the HTSUS codes comprising the GAEs) have received objections and/or denials.

As a conforming change to a recent U.S. International Trade Commission (ITC) decision, this rule also removes one additional steel GAE. Specifically, the ITC 484(f) Committee retired HTSUS Classification 7208390015 (covered by GAE.92.S) effective July 1, 2021. This rule removes GAE.92.S from the GAE List.

In order to more efficiently address future ITC changes to the Harmonized Tariff Schedule of the United States, Commerce is adding a note to supplements no. 2 and no. 3 to specify how GAEs will be treated when the ITC makes certain changes to the HTSUS Classifications as part of their routine updates to the HTSUS with revisions (including re-categorizations), modifications, and removals to/from the HTSUS Classifications. The note specifies that the list of the HTSUS Classifications referenced in supplements no. 2 and no. 3 of GAEs is drawn from the Harmonized Tariff Schedule of the United States published on the ITC website and ITC Change Records for HTSUS Classifications (compiled at https://hts.usitc.gov/ ) and will be amended when the ITC publishes subsequent Change Records. The note added to supplements no. 2 and no. 3 specifies that if there are any discrepancies between the list of the HTSUS Classifications in the GAE List and the HTSUS Classifications identified by the ITC in the Harmonized Tariff Schedule of the United States and the associated Change Records, the ITC's list of HTSUS Classifications shall be controlling. The new note this rule adds to supplements no. 2 and no. 3 specifies that if an HTSUS Classification defining a GAE is split or otherwise modified by the ITC in the HTSUS, Commerce will extend the GAE to the newly created HTSUS Classification(s), so long as the new `child' HTSUS Classification(s) contain products falling entirely within the scope of the old `parent' HTSUS Classification. The new note added to supplements no. 2 and no. 3 also specifies that these types of `inherited' GAEs will be effective from the effective date of the change to the HTSUS, even prior to a Commerce rule being published to add the new HTSUS number to one of the GAE lists under supplements no. 2 or 3. This note being added to supplements no. 2 and no. 3 will allow Commerce to instruct CBP to retain the GAE in the event of an HTSUS classification being modified even before Commerce is able to update and publish a revised GAE list under supplements no. 2 or no. 3. During the period after the effective date of the change to the HTSUS and before the GAE is updated, ACE will reject entries claiming the exclusion with the new HTSUS number and importers will have to make entry without the exclusion. In order for importers to preserve their rights, if any, to the exclusion with the new HTSUS number during this period, the note also advises importers to seek extensions of liquidation of the affected entries with CBP until Commerce is able to update and publish a revised GAE list under supplements no. 2 or no. 3.

Commerce has determined that the internal process changes implemented will address these issues that occurred during the selection of the GAEs included in the December 14 rule. Additionally, as stated in the December 14 rule and above, Commerce may publish notices requesting comments on additions, removals, or modifications of GAEs. Commerce will make changes to the GAEs whenever it is warranted to ensure that U.S. national security interests are protected. The adoption of the GAEs was an important step for users of steel and aluminum articles needed for national security applications as has been noted by many commenters on past Section 232 interim final rules. However, Commerce will evaluate all changes to the Section 232 program in light of whether they are improving the effectiveness of the program and whether or not the changes are consistent with the objectives of the Section 232 program.

BIS does not anticipate that suspension of these 30 GAEs will substantially increase the total volume of submitted exclusion requests in the Section 232 Exclusions Portal. BIS has received 2,109 exclusion requests from 109 requestors for articles covered by these 30 GAEs in the Section 232 Exclusions Portal over an approximate two-year period. BIS estimates that the removal of these 30 GAEs will affect roughly 100 requestors who submit exclusion requests and will lead to the submission of an additional 1,100 exclusion requests per year in the Section 232 Exclusions Portal.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Pursuant to Proclamations 9704 and 9705 of March 8, 2018, and Proclamations 9776 and 9777 of August 29, 2018, the establishment of procedures for an exclusions process under each Proclamation shall be published in the Federal Register .

2. The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA) provides that an agency generally cannot conduct or sponsor a collection of information, and no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, unless that collection has obtained Office of Management and Budget (OMB) approval and displays a currently valid OMB Control Number.

This final regulation involves three collections currently approved by OMB with the following control numbers:

• Exclusions from the Section 232 National Security Adjustments of Imports of Steel and Aluminum (control number 0694-0139).

• Objections from the Section 232 National Security Adjustments of Imports of Steel and Aluminum (control number 0694-0138).

• Procedures for Submitting Rebuttals and Surrebuttals Requests for Exclusions from and Objections to the Section 232 Adjustments for Steel and Aluminum (OMB control number 0694-0141).

This rule is expected to increase the burden hours for one of the collections associated with this rule, OMB control number 0694-0139. This increase is expected because of the removal of 26 GAEs for steel and 4 GAEs for aluminum, which is expected to result in an increase of 1,100 exclusion request submissions per year. These removals are estimated to result in a twenty percent reduction in the burden and costs savings described in the December 14 rule. These GAE removals are expected to be an increase in 1,100 burden hours for a total cost increase of 162,800 dollars to the public. There is also expected to be an increase in 6,600 burden hours for a total cost increase of 257,000 dollars to the U.S. Government. As Commerce asserted in the December 14 rule that the steel and aluminum articles identified as being eligible for GAEs, including those being removed in today's rule, had not received any objections, the addition of those new GAEs was not estimated to result in a decrease in the number of objections, rebuttals, or surrebuttals received by BIS. As described elsewhere in this rule, the GAEs removed in today's interim final rule did receive objections and/or denials and therefore warrant removal at this time. Because the December 14 rule did not make any adjustments to the collections for objections, rebuttals, or surrebuttals, the removal of these GAEs is estimated to result in no change in the burden associated with the other two collections. Commerce Department intends to provide separate 60-day notice in the Federal Register requesting public comment on the information collections contained within this rule.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The provisions of the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, the opportunity for public comment, and a delay in effective date are inapplicable because this regulation involves a military or foreign affairs function of the United States. ( See 5 U.S.C. 553(a)(1)). As explained in the reports submitted by the Secretary to the President, steel and aluminum are being imported into the United States in such quantities or under such circumstances as to threaten to impair the national security of the United States, and therefore the President is implementing these remedial actions (as described Proclamations 9704 and 9705 of March 8, 2018) to protect U.S. national security interests. That implementation includes the creation of an effective process by which affected domestic parties can obtain exclusion requests “based upon specific national security considerations.” Commerce started this process with the publication of the March 19 rule and refined the process with the publication of the September 11, June 10, and December 14 rules and is continuing the process with the publication of today's interim final rule. The revisions to the exclusion request process are informed by the comments received in response to the December 14 rule and Commerce's experience with managing the Section 232 exclusions process.

In the December 14 rule, Commerce took what many commenters characterized as a significant step to improve the efficiency and effectiveness of the Section 232 exclusions process by adding General Approved Exclusions (GAEs). The GAEs are an effort to improve the efficiency and effectiveness of the Section 232 exclusions process while not undermining the national security objectives of the tariffs by adopting a more efficient authorization mechanism for certain steel and aluminum articles that had not received objections over an extended period of time and with many exclusion requests being submitted for the specified articles. Many commenters on the earlier Section 232 rules requested that Commerce create a type of general approval that could be used by any importer. These commenters on the earlier Section 232 rules, as well as on December 14 rule, indicated that such general approvals would be important to minimize the negative impacts of the tariffs and the inefficiencies of the Section 232 exclusions process, which these commenters indicated was undermining U.S. national security and economic security because of the difficulty and increased costs involved in obtaining needed steel and aluminum articles, including in certain cases for U.S. defense applications. Commerce took a deliberative approach in identifying what HTSUS codes could be considered for inclusion as GAEs and specified criteria in the December 14 rule to explain how the adoption of these GAEs would not undermine the national security objectives of the Section 232 process and would instead help to protect U.S. national security and economic security by improving the efficiency and effectiveness of the Section 232 exclusions process. Some commenters on the December 14 rule identified the implementation of the GAEs as an area where the transparency, effectiveness, and fairness of the process was improved.

However, other commenters on the December 14 rule raised concerns with the addition of the GAEs, in particular raising concerns that the addition would directly undermine U.S. national security and the objectives of the Section 232 exclusions process. These commenters on the December 14 rule highlighted that Commerce was not being consistent with the criteria Commerce used for justifying adding the GAEs. Therefore, these commenters noted that the addition of these GAEs had the potential to significantly undermine the national security objectives. These commenters also took issue with Commerce's claim that these GAEs would not negatively impact U.S. national security when describing the rationale for adding these GAEs. Comments received for the December 14 rule in this area primarily focused on the creation of specific GAEs containing articles for which exclusion requests had previously received objections and/or been denied. These commenters noted that for the addition of this subset of GAEs, regardless of the merits or rationale for adding the other GAEs, there was a disconnect with Commerce's stated criteria from the December 14 rule. Therefore, this subset of 29 GAEs must be removed from the regulations.

Commerce understands the importance of having a transparent, fair, and efficient product exclusion request process, consistent with the directive provided by the President to create this type of process to mitigate any unintended consequences of imposing the tariffs on steel and aluminum in order to protect critical U.S. national security interests. The publication of today's rule should make further improvements in all three respects.

In addition, Commerce finds that there is good cause under 5 U.S.C. 553(b)(B) to waive the provisions of the Administrative Procedure Act requiring prior notice and the opportunity for public comment, and that there is good cause under 5 U.S.C. 553(d)(3) to waive the delay in effective date, because such delays would be either impracticable or contrary to the public interest. In order to ensure that the actions taken to adjust imports do not undermine users of steel or aluminum that are subject to the remedial actions instituted by the Proclamations and that are critical to protecting the national security of the United States, the Presidential Proclamations authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior Executive Branch officials as appropriate, to grant exclusions for the import of goods not currently available in the United States in a sufficient quantity or satisfactory quality, or for other specific national security reasons. The Presidential Proclamations further directed the Secretary to, within ten days, issue procedures for submitting and granting these requests for exclusions—this interim final rule fulfills that direction. As described above, the Secretary complied with the direction from the President with the publication of the March 19 rule, as well as in the improvements made in the September 11, June 10, and December 14 rules, and is taking the next step in improving the Section 232 exclusions process by making needed changes with the publication of today's rule, so as not to undermine the national security objectives for which the December 14 rule added the GAEs to the regulations. The immediate implementation of an effective exclusion request process, consistent with the intent of the Presidential Proclamations, also required creating a process to allow any individual or organization in the United States to submit objections to submitted exclusion requests. The objection process was created with the publication of the March 19 rule, and the subsequent rules further improved specific aspects of the Section 232 exclusions process. The publication of today's rule makes needed changes in the Section 232 exclusions process to create the type of fair, transparent, and efficient process that was intended in the March 19, September 11, June 10, and December 14 rules, but commenters noted that the specific subset of GAEs that contained steel or aluminum articles for which exclusion requests had received objections and/or been denied. Today's rule makes critical changes to further ensure a fair, transparent, and efficient exclusion process by ensuring the GAEs that remain in the regulations are consistent with the objectives of the Section 232 exclusion process.

If this interim final rule were to be delayed to allow for public comment or to provide for a thirty-day delay in the date of effectiveness, companies in the United States would be unable to immediately benefit from the improvements made to the GAE process and could face significant economic hardship, which could potentially create a detrimental effect on the general U.S. economy and national security. Comments received on the December 14 rule that were critical of the GAEs were clear that the removal of GAEs that consisted of HTSUS codes that received objections and/or denials under the Section 232 process was needed. Commenters noted that failure to provide this additional improvement could allow the “floodgates” to open for imports of those articles, and that the influx of such articles could undermine the efficiency of the Section 232 process. Commenters also noted that if this specific improvement is not made, significant economic consequences could occur. Given the imports of these articles have already been objected to and/or denied in exclusion requests under the Section 232 process for national security reasons, allowing these specific GAEs to exist could undermine other critical U.S. national security interests.

Because a notice of proposed rulemaking and an opportunity for prior public comment are not required for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

For the reasons set forth in the preamble, part 705 of subchapter A of 15 CFR chapter VII is amended as follows:

BIS's current licensing policy for Cambodia dates from 1992, when the agency amended the EAR in support of the settlement of political conflict in Cambodia and the lifting of a U.S. trade embargo on Cambodia. (57 FR 11576, April 6, 1992.) Recent changes in Cambodian foreign policy, however, undermine regional security as well as U.S. national security and foreign policy interests, and necessitate a revision to export controls for Cambodia under the EAR.

In June 2021, during an official visit to Cambodia, Deputy Secretary of State Wendy Sherman expressed serious concerns about the People's Republic of China's (PRC or China) military presence and construction of facilities at Ream Naval Base in Cambodia. Deputy Secretary Sherman emphasized that an exclusive-use PRC military base in Cambodia would undermine Cambodian sovereignty, threaten regional security, and negatively impact U.S.-Cambodia relations. Since then, the Department of State (State) and the Treasury (Treasury), have taken action under their respective authorities to address such concerns. In November 2021, State and Treasury designated two Cambodian military officials due to their involvement in significant corruption, including in connection with the Ream Naval Base. At that time, State, Treasury, and the Department of Commerce also issued an advisory cautioning U.S. businesses regarding the potential exposure to entities in Cambodia, such as the Cambodian military, that engage in human rights abuses, corruption, and other destabilizing conduct.

The United States has determined that expanded Chinese military influence in Cambodia and corruption and human rights abuses committed by Cambodian government actors, including the Cambodian military, are contrary to U.S. national security and foreign policy interests. Therefore, the U.S. Government is restricting certain exports and reexports to, and transfers within, Cambodia to ensure that items subject to the EAR are not available to Cambodia's military and military-intelligence services without prior review by the U.S. Government, and is also adding Cambodia to the list of countries subject to a more stringent review policy for license applications involving national security-controlled items. In this rule, BIS amends the EAR to implement more restrictive treatment for Cambodia under the EAR.

BIS is taking this action to address recent actions by the Government of Cambodia that are contrary to the national security and foreign policy interests of the United States and threaten regional security. The rule makes four broad changes to the EAR to reflect BIS's more restrictive licensing approach to Cambodia. It adds Cambodia to: (1) The list of countries subject to the licensing policy in § 742.4(b)(7), (2) the list of countries subject to military end use and end user controls in § 744.21, (3) the list of countries subject to military intelligence end use and end user controls in § 744.22, and (4) the list of countries subject to a U.S. arms embargo under Country Group D:5.

This rule adds Cambodia to the list of countries subject to the licensing policy in § 742.4(b)(7) (NS-controlled items) of the EAR. The license review policy for NS-controlled items in § 742.4(b)(7) applies to transactions with the countries listed in § 744.21, and now applies to Cambodia as well. This rule removes the reference to Cambodia in the policy described in § 742.4(b)(6), which is superseded in this rule by the policy for Cambodia in paragraph (b)(7)(i).

This rule adds Cambodia to the countries subject to the `military end use' and `military end user' (MEU) restrictions in § 744.21 of the EAR. In addition to the license requirements for items specified on the Commerce Control List (CCL), § 744.21 prohibits the export, reexport, or transfer (in-country) without a license of items subject to the EAR and are listed in supplement no. 2 to part 744—List of Items Subject to the Military End Use or End User License Requirement of § 744.21—to Burma, China, the Russian Federation, or Venezuela. With the publication of this rule, Cambodia is now added to the countries subject to this license requirement. Such exports, reexports, or transfers (in-country) require a license if, at the time of the export, reexport, or transfer (in-country), the exporter, reexporter, or transferor (in-country) has “knowledge,” as defined in § 772.1 of the EAR that the item is intended, entirely or in part, for a `military end use,' or `military end user,' in Burma, Cambodia, China, the Russian Federation, or Venezuela. Applications submitted for the export or reexport to Cambodia, or transfer within Cambodia, of an item in supplement no. 2 to part 744 under this section will be reviewed with a presumption of denial.

This rule also adds a reference to Cambodia in supplement no. 7 to part 744—`Military End User' List but does not add any entities located in Cambodia to the list of Military End Users (MEU List). The MEU List notifies the public that certain entities are subject to the military end-user prohibitions in § 744.21 of the EAR. BIS may add entities located in Cambodia to the MEU List in the future.

This rule also adds Cambodia to the countries subject to the `military-intelligence end use' and `military-intelligence end user' (MIEU) restrictions in § 744.22 of the EAR. In addition to the license requirements for items specified on the CCL, § 744.22 prohibits the export, reexport, or transfer (in-country) without a license of items subject to the EAR to Burma, China, the Russian Federation, Venezuela, or a country listed in Country Group E:1 or E:2. With the publication of this rule, Cambodia is now added to the countries subject to this license requirement. Such exports, reexports, or transfers (in-country) require a license if, at the time of the export, reexport, or transfer (in-country), the exporter, reexporter, or transferor (in-country) has “knowledge,” as defined in § 772.1 of the EAR that the item is intended, entirely or in part, for a `military-intelligence end use,' or `military-intelligence end user,' in Burma, Cambodia, China, the Russian Federation, Venezuela or the countries listed in Country Group E:1 or E:2. Applications submitted for the export or reexport to Cambodia, or transfer within Cambodia, of an EAR item under this section will be reviewed with a presumption of denial.

With this amendment to § 744.22 of the EAR, BIS is also revising § 744.6(b)(5) of the EAR to restrict specific activities of “U.S. persons” in connection with a `military-intelligence end use' or `military-intelligence end user' in Cambodia.

The amendments in this rule are made concurrent with other U.S. Government actions intended to support the revision of export control policy toward Cambodia in light of the recent developments in Cambodia. In particular, the Department of State is amending the International Traffic in Arms Regulations (ITAR) § 126.1, “Prohibited Exports, Imports, and Sales to or from Certain Countries” to add Cambodia in the list of countries for which it is the policy of the United States to deny licenses and other approvals for exports and imports of defense articles and defense services. This change reflects the policy of the United States to deny licenses and other approvals for the export and import of defense articles and defense services destined for or originating in Cambodia, except as otherwise provided within the ITAR.

BIS harmonizes the arms embargo-related provisions in the EAR with the regulation of arms embargoes in § 126.1 of the ITAR. The ITAR list incorporates countries subject to United Nations Security Council (UNSC) and U.S. arms embargoes. BIS primarily implements such controls through Country Group D:5 “U.S. Arms Embargoed Countries,” in supplement no. 1 to part 740 of the EAR.

Countries listed in Country Group D:5 are subject to additional restrictions in the EAR, including on de minimis U.S. content, license exception availability, and licensing policy for certain items. For example, license applications for the export or reexport of items classified under 9x515 or “600 series” Export Control Classification Numbers (ECCNs) to countries in Country Group D:5 are reviewed consistent with the policies in § 126.1 of the ITAR, as provided in paragraph (b)(1)(ii) of § 742.4 of the EAR.

Therefore, BIS revises Country Group D to add Cambodia to Country Group D:5 consistent with the Department of State's amendment adding Cambodia to ITAR § 126.1 on December 9, 2021.

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852) that provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been designated to be a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866.

2. This rule does not contain policies with federalism implications as that term is defined under Executive Order 13132.

3. Pursuant to section 1762 of the Export Control Reform Act of 2018 (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

4. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

5. Notwithstanding any other provision of law, no person may be required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves a collection currently approved by OMB under control number 0694-0088, Simplified Network Application Processing System. The collection includes, among other things, license applications, and carries a burden estimate of 42.5 minutes for a manual or electronic submission for a total burden estimate of 31,878 hours. BIS expects the burden hours associated with this collection to not significantly increase with the publication of this rule.

Shipments of items that may no longer be made under No License Required (NLR) or license exception as a result of this action and were on dock for loading, on lighter, laden aboard an exporting or transferring carrier, or en route aboard a carrier to a port of export or reexport on January 10, 2022, pursuant to actual orders for export to Cambodia, reexport to Cambodia, or transfer (in country) within Cambodia may proceed to their destination under the prior authorization.

Accordingly, parts 740, 742, and 744 of the Export Administration Regulations (15 CFR parts 730-774) are amended as follows:

The GLBA was enacted in 1999. 1 The GLBA, among other things, requires that financial institutions provide their customers with initial and annual notices regarding their privacy practices, and allow their customers to opt out of sharing their information with certain nonaffiliated third parties.

Rulemaking authority to implement the GLBA's privacy provisions was initially spread among multiple agencies. The Federal Reserve Board (“the Fed”), the Office of Comptroller of the Currency (“OCC”), the Federal Deposit Insurance Corporation (“FDIC”), and the Office of Thrift Supervision (“OTS”) jointly adopted final rules to implement the notice and opt-out requirements of the GLBA in 2000. 2 The Commission, the National Credit Union Administration (“NCUA”), the Securities and Exchange Commission (“SEC”), and the Commodity Futures Trading Commission (“CFTC”) were part of the same interagency process, but each issued their rules separately. 3 In 2009, all those agencies jointly adopted a model form financial institutions could use to provide the required initial and annual privacy disclosures. 4

As originally promulgated, the FTC's Privacy Rule covered a broad range of non-bank financial institutions such as payday lenders, mortgage brokers, check cashers, debt collectors, real estate appraisers, certain motor vehicle dealers, and remittance transfer providers. In 2010, the Dodd-Frank Act  5 transferred the majority of GLBA's privacy rulemaking authority from the Fed, NCUA, OCC, OTS, FDIC, and the Commission (in part) to the Consumer Financial Protection Bureau (“CFPB”). The CFPB then restated the implementing regulations in Regulation P, 12 CFR part 1016, in late 2011 (“Regulation P”). 6 However, under section 1029 of the Dodd-Frank Act, the Commission retained rulemaking authority for certain motor vehicle dealers. 7 Thus, in 2012, the Commission announced it was retaining the implementing regulations governing privacy notices for motor vehicle dealers at 16 CFR part 313. 8

Despite the transfer of general rulemaking authority for the Privacy Rule to the CFPB, the Commission and other agencies retain their existing enforcement authority under the GLBA. 9 In addition, the SEC and CFTC retain rulemaking authority with respect to securities and futures-related companies, respectively. 10 Accordingly, as part of this rulemaking process, the Commission has consulted and coordinated, or offered to consult, with those agencies that have rulemaking and/or enforcement authority under the GLBA, including the CFPB, SEC, CFTC, and the National Association of Insurance Commissioners (“NAIC”). 11

On December 4, 2015, Congress amended the GLBA as part of the FAST Act. This amendment, titled Eliminate Privacy Notice Confusion, 12 added GLBA subsection 503(f). This subsection provides an exception under which financial institutions that meet certain conditions are not required to provide annual privacy notices to customers.

As noted, the current Privacy Rule, as modified after Congress enacted the Dodd-Frank Act, requires motor vehicle dealers provide consumers with notices describing their privacy policies. Specifically, it requires covered entities to provide an initial notice of these policies, 13 and then “provide a clear and conspicuous notice to customers that accurately reflects [their] privacy policies and practices not less than annually during the continuation of the customer relationship.”  14

The rule requires that initial and annual notices inform customers of their right to opt out of the sharing of nonpublic personal information with some types of nonaffiliated third parties. 15 For example, a customer has the right to opt out of allowing a motor vehicle dealer to sell her name and address to a nonaffiliated auto insurance company. 16 On the other hand, a motor vehicle dealer is not required to allow consumers to opt out of the dealer's sharing involving third-party service providers, joint marketing arrangements, maintenance and servicing of accounts, securitization, law enforcement and compliance, reporting to consumer reporting agencies, and certain other specified activities. 17 Accordingly, if a motor vehicle dealer limits its sharing to uses that do not trigger opt-out rights, it may provide an annual privacy notice to its customers that does not include information regarding opt-out rights.

Motor vehicle dealers also may include in the annual privacy notice information about certain consumer opt-out rights related to affiliate sharing under the Fair Credit Reporting Act (“FCRA”). First, section 603(d)(2)(A)(iii) of the FCRA allows the sharing of a consumer's information among affiliates, but only if the consumer is notified of such sharing and is given an opportunity to opt out. 18 Section 503(c)(4) of the GLBA and the Privacy Rule generally require motor vehicle dealers to incorporate any notifications and opt-out disclosures provided pursuant to section 603(d)(2)(A)(iii) of the FCRA into their initial and annual privacy notices. 19

In addition, section 624 of the FCRA and the FTC's Affiliate Marketing Rule  20 provide that an affiliate of a motor vehicle dealer that receives certain information about a consumer from the dealer may not use that information for marketing purposes, unless the consumer is provided with an opportunity to opt out of that use. 21 This requirement governs the use of information by an affiliate, not the sharing of information among affiliates, and thus is distinct from the affiliate sharing opt-out discussed above. The Affiliate Marketing Rule permits (but does not require) motor vehicle dealers to incorporate any opt-out disclosures provided under section 624 of the FCRA and the Affiliate Marketing Rule into the initial and annual privacy notices required by the GLBA. 22

Finally, § 313.6(a)(8) of the Privacy Rule requires the initial and annual notices briefly describe how motor vehicle dealers protect the nonpublic personal information they collect and maintain. 23

On April 4, 2019, the Commission issued a notice of proposed rulemaking  24 setting forth amendments to the Privacy Rule (the “Proposed Amendments”) proposing three types of changes to the Privacy Rule: (1) Technical changes to the rule to correspond to the reduced scope of the rule due to Dodd-Frank Act changes, which primarily consist of removing references that do not apply to motor vehicle dealers; (2) modifications to the annual privacy notice requirements to reflect the changes made to the GLBA by the FAST Act; and (3) a modification to the scope and definition of “financial institution” to include entities engaged in activities incidental to financial activities, which would bring the rule into accord with the CFPB's Regulation P. The Commission received four comments related to the proposed amendments, to which it responds below. 25

The proposed amendment to § 313.1(b) narrowed the description of the scope of the Privacy Rule to those entities set forth in the Dodd-Frank Act:  26 Those predominantly engaged in the sale and servicing of motor vehicles or the leasing and servicing of motor vehicles, excluding those dealers that directly extend credit to consumers and do not routinely assign the extensions of credit to an unaffiliated third party. It also removed the reference in the rule's scope to “other persons,” because the Commission no longer has rulemaking authority for the Privacy Rule over “other persons.” Finally, the Proposed Amendments eliminated from § 313.1(b) the note indicating (1) the Privacy Rule does not modify, limit, or supersede the standards under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), and (2) if a financial institution that is an institution of higher education is in compliance with the Federal Educational Rights and Privacy Act (“FERPA”) and its implementing regulations, such institution shall be deemed in compliance with the Privacy Rule.

The Commission received two comments on these proposed changes. One commenter asked why the rule would not cover dealers that directly extend credit to consumers. 27 In response, the Commission notes the Dodd-Frank Act excludes these dealers from the Commission's rulemaking authority under the GLBA. The Commission continues to have enforcement authority over these dealers under Regulation P.

Another commenter, the National Association of Automobile Dealers (“NADA”), supported eliminating the references to HIPAA and FERPA, agreeing that these provisions would not apply to automobile dealers. 28 Given that it received no other substantive comments, the Commission adopts the changes as proposed.

To help companies understand whether and how the rule applies to them, the current rule includes examples of financial institutions in § 313.3(k)(2), examples of consumers in § 313.3(e)(2), examples of what would constitute establishing a customer relationship in § 313.3(i)(2)(i), and examples of what is not a customer relationship in § 313.2(i)(2)(ii). The Proposed Amendments to § 313.3 removed examples not likely to apply in the context of motor vehicle dealers.

NADA was the only commenter who opined on this issue. It agreed the examples proposed for removal do not apply to motor vehicle dealers and supported their deletion. Accordingly, the final rule deletes these examples as proposed.

NADA advocated for removal or modification of additional terms or examples that it asserted would not apply in the motor vehicle context. The Commission declines to make the changes suggested by NADA, for the reasons described below.

NADA argued the examples in the final rule should not include the word “loans” because motor vehicle dealers “do not generally issue `loans,'” but instead provide financing assistance or enter into retail installment sale contracts or leases. NADA suggested the term “loan” be replaced with “financing,” or “finance or lease contract.”  29 The Commission declines to modify existing examples in this manner. It believes the Privacy Rule should be substantively identical to Regulation P so financial institutions within the Commission's enforcement authority are subject to the same requirements, regardless of whether they are subject to Regulation P or the Privacy Rule. Although the Commission recognizes some examples it has retained may not apply well to the motor vehicle context, 30 changing the language of an example, as opposed to completely removing it, could be read as a change to the substance of the rule. Accordingly, the Commission declines to change an existing term in the final rule. 31

NADA suggested removing the term “investment accounts” from the example of a continuing relationship § 313.3(i)(2)(i)(A), as such accounts are not offered by motor vehicle dealers. As discussed above, however, the Commission declines to modify existing examples and does not adopt this change in the final rule. NADA also took issue with § 313.3(i)(2)(i)(D), which states a consumer has a continuing relationship with a financial institution when the consumer enters into an “agreement or understanding” with the financial institution in which the financial institution undertakes “to arrange credit to purchase a vehicle for the consumer.” NADA noted when motor vehicle dealers arrange credit for a consumer, they then assign that agreement to a third party and do not continue the relationship with the consumer.

Although motor vehicle dealers may transfer the credit agreement to another financial institution, a continuing relationship is formed by the agreement and persists for as long as the motor vehicle dealer retains the agreement. The continuing relationship between the motor vehicle dealer and the consumer will end upon the transfer of the agreement, but until that transfer occurs, the consumer is the motor vehicle dealer's customer for purposes of the Privacy Rule. Accordingly, the Commission declines to remove this example from the final rule.

NADA also argued the term “understanding” in paragraph (i)(2)(i)(D) is confusing because it is not clear what an “understanding” would mean in this context, and motor vehicle dealers do not enter into informal relationships to arrange credit for consumers. The Commission believes, however, while informal understandings may be unusual for motor vehicle dealers, it is possible some dealers may engage in such practices and the example should continue to make clear that such arrangements create continuing relationships. In addition, as discussed above, the Commission declines to change the language of examples retained in the final rule.

NADA argued the example in § 313.3(i)(2)(ii)(A) does not apply to motor vehicle dealers. This example states no continuing relationship is created when a “consumer obtains a financial product or service from [the financial institution] only in isolated transactions, such as cashing a check with [the financial institution] or making a wire transfer through” the financial institution. NADA argued motor vehicle dealers generally do not engage in these activities, and while “it is theoretically possible that a dealer somewhere may offer, under unique circumstances, to cash a check for a customer, [NADA] is not aware of that service being offered by dealers and the possibility is attenuated at best.”  32 The Commission does not agree that this example should be removed. Although check cashing and wire transfer transactions may be unlikely at motor vehicle dealerships, these are helpful examples of the types of isolated transactions that do not create an ongoing relationship and, even for motor vehicle dealers that do not engage in these particular activities, they illustrate the principle well. The final rule retains this example.

NADA also questioned the inclusion of § 313.3(i)(2)(ii)(C), which states a continuing relationship is not created when a “consumer obtains one-time personal appraisal services from” the financial institution. NADA asked whether this would apply when a motor vehicle dealer appraises a consumer's used vehicle for trade-in value. The Commission believes that is precisely the type of appraisal suggested by the example. NADA also questioned how “such appraisal activity by a dealer could, as an initial matter be deemed to create a Customer relationship.”  33 The Commission believes, however, negative examples are useful to clarify the definition and, therefore, the final rule retains this example.

We are adopting amendments to the following rules and forms.

On March 18, 2021, 3 the Commission adopted interim final amendments to Form 10-K, Form 20-F, Form 40-F, and Form N-CSR to implement the disclosure and submission requirements of Sections 2 and 3 of the HFCA Act, 4 which became law on December 18, 2020. Section 2 of the HFCA Act amended Section 104 of the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley Act”)  5 by adding Section 104(i) to the Sarbanes-Oxley Act. Section 104(i)(2) of the Sarbanes-Oxley Act requires the Commission to identify each “covered issuer”  6 that has retained a registered public accounting firm  7 to issue an audit report  8 where that registered public accounting firm has a branch or office  9 that:

• Is located in a foreign jurisdiction; and

• The PCAOB has determined that it is unable to inspect or investigate completely because of a position taken by an authority in the foreign jurisdiction. 10

Once identified, Section 104(i)(2)(B) of the Sarbanes-Oxley Act requires these covered issuers, which we refer to as “Commission-Identified Issuers” in this release, to submit documentation to the Commission establishing that they are not owned or controlled by a governmental entity in that foreign jurisdiction. 11 Additionally, Section 3 of the HFCA Act lists additional disclosure requirements for Commission-Identified Issuers that are “foreign issuers”  12 (“Commission-Identified Foreign Issuers”).

We received a number of comment letters in response to the interim final amendments. While several commenters generally supported them, 13 some provided specific suggestions on how to improve them or otherwise implement the HFCA Act, 14 and others opposed  15 the interim final amendments. Generally, commenters supporting the interim final amendments stated that the amendments effectively provided for timely implementation of the HFCA Act  16 and also informed investors about the level of ownership and control the Chinese Government has in listed companies. 17 Additionally, commenters supporting the interim final amendments asserted that they agreed with the objective of the HFCA Act and were concerned about the lack of transparency into Chinese companies. 18

On the other hand, commenters opposing the amendments stated that the amendments were repetitive of disclosure that is already provided and would result in unnecessary compliance costs, 19 were unfair to Chinese registrants, 20 may bring adverse effects to the interests of global investors in Commission-Identified Issuers, 21 and did not account for regulations in other jurisdictions. 22 Some of these commenters also argued that any conflicts of relevant laws in different jurisdictions that inhibit PCAOB inspection should be resolved through the cooperation of regulators from the different jurisdictions. 23 Many of these comments reflect general opposition to the design and operation of the HFCA Act itself. Where commenters addressed aspects of the statute that Congress left to the Commission to implement, we have responded to those comments below, in our discussion of the final amendments.

As discussed above, Section 2 of the HFCA Act amended Section 104(i)(2) of the Sarbanes-Oxley Act to require any Commission-Identified Issuer to submit to the Commission documentation establishing that the issuer is not owned or controlled by a governmental entity in the relevant foreign jurisdiction. 24 The Commission amended Form 10-K, Form 20-F, Form 40-F, and Form N-CSR to implement this provision. The submission requirement applies to all Commission-Identified Issuers. The interim final amendments required this documentation to be submitted electronically to the Commission on a supplemental basis  25 through the Electronic Data Gathering, Analysis, and Retrieval (“EDGAR”) system on or before the due date of the relevant annual report form.

Although the interim final amendments prescribed the timing and means by which such submissions were made, neither they nor the HFCA Act specified the particular types of documentation that could or should be submitted for this purpose. Moreover, in the Interim Final Release, the Commission recognized that available documentation could vary depending upon the organizational structure and other factors specific to the registrant. Thus, registrants had flexibility under the interim final amendments to determine how best to satisfy this requirement.

One commenter recommended that registrants make the submission of documentation establishing that the issuer is not owned or controlled by a governmental entity in the foreign jurisdiction of the PCAOB-Identified Firm in the form of a certification, but did not support requiring the submission to be filed in a Form 8-K because it should not be classified as a “material event” and did not support requiring disclosure that a registrant is a Commission Identified issuer under Form 8-K. 26 This commenter suggested that making the submission publicly available or filed as an exhibit would exceed the actions authorized by the HFCA Act and indicated that registrants may wish to seek confidential treatment for some or all of the submission. The commenter also suggested that we establish a universal due date for the submission requirement that is later than the due date for the annual report to provide registrants additional time to prepare the submission and reduce the costs of compliance, and that we should not make the determinations of Commission-Identified Issuers more often than annually.

Additionally, the commenter recommended that a registrant retain flexibility over the type of documentation a Commission-Identified Issuer must submit to establish that it is not owned or controlled by a governmental entity in the foreign jurisdiction based on its facts and circumstances, but indicated that publication of non-exclusive methods to satisfy the requirement would be valuable. This commenter suggested potential non-exclusive methods to show there is no ownership or control, such as there has been no Schedule 13D or 13G filing by a government related entity in the foreign jurisdiction, there are no material contracts with a foreign governmental party, or there is no foreign government representative on the board.

Another commenter recommended additional guidance on the meaning of “owned or controlled.”  27 The commenter suggested that the amendments use the term “significant influence” under U.S. Generally Accepted Accounting Principles (“U.S. GAAP”) and incorporate specific examples including: (1) Where a government entity or affiliate has 20 percent or greater ownership or voting interest; (2) existence and effect of potential voting rights that are currently exercisable or convertible; (3) when an entity is represented on the board of directors or equivalent governing body of the investee entity; and (4) an entity's participation in policy-making processes, including participation in decisions about dividends or other distributions.

We are finalizing the interim final amendments with respect to the submission requirements without modification. The amendments require any Commission-Identified Issuer to submit to the Commission through EDGAR, 28 on or before the due date of the relevant annual report form, documentation establishing that the issuer is not owned or controlled by a governmental entity in the foreign jurisdiction of the PCAOB-Identified Firm. This submission will be made publicly available on EDGAR, which we believe is consistent with the HFCA Act given its focus on transparency. 29

Additionally, the final amendments continue to permit Commission-Identified Issuers to determine the appropriate documentation to submit in response to the requirement, based on their organizational structure and other registrant-specific factors. We decline to provide an exclusive or non-exclusive list of what documentation may demonstrate that the registrant is not owned or controlled by the relevant governmental entity. We believe that such a list may be too limiting or become the de facto means of satisfying the requirement. We believe that Commission-Identified Issuers should instead make a determination of what documentation meets the requirement for their particular company. We also believe that not prescribing the specific documentation Commission-Identified Issuers must submit will limit compliance costs and could result in more relevant information being provided to investors.

Moreover, although the terms are not defined in the statute, we believe that the meaning of the terms “owned or controlled,” “owned,” and “controlling financial interest” in the HFCA Act reference a person's or governmental entity's ability to “control” the registrant as that term is used in the Exchange Act and the Exchange Act rules.

One commenter suggested that the amendments use the term “significant influence” under U.S. GAAP and incorporate a specified list of examples. We note, however, that the HFCA Act refers to the Exchange Act and the Commission's Exchange Act rules. Therefore, we believe the terms “owned or controlled,” “owned,” and “controlling financial interest” used in the HFCA Act are reasonably read to have the same meaning as the term “control” as used in the Exchange Act and the Exchange Act rules. Moreover, registrants should generally understand the concept of “control” and so incorporating the same meaning will result in consistent application of the concept across different regulatory contexts.

Section 3 of the HFCA Act requires a Commission-Identified Foreign Issuer to provide the following additional disclosures in its annual report for the year that the Commission so identifies the issuer: 30

• That, during the period covered by the form, the PCAOB-Identified Firm that has prepared an audit report for the issuer;  31

On November 30, 2018, the “Protocol Replacing the North American Free Trade Agreement with the Agreement Between the United States of America, the United Mexican States, and Canada” (the Protocol) was signed to replace the North American Free Trade Agreement (NAFTA). The Agreement Between the United States of America, the United Mexican States (Mexico), and Canada (the USMCA)  1 is attached as an annex to the Protocol and was subsequently amended to reflect certain modifications and technical corrections in the “Protocol of Amendment to the Agreement Between the United States of America, the United Mexican States, and Canada” (the Amended Protocol), which the Office of the United States Trade Representative (USTR) signed on December 10, 2019. The USMCA entered into force on July 1, 2020. 2

Article 10.12 of the USMCA, like NAFTA Article 1904, provides a dispute settlement mechanism for purposes of reviewing antidumping and countervailing duty determinations issued by the United States, Canada, and Mexico. The procedures and rules for binational panel review of antidumping and countervailing duty administrative determinations under Article 10.12 of the USMCA are virtually unchanged from Article 1904 of NAFTA.

Sections 421-433 and 504 of the USMCA Implementation Act provide technical and conforming amendments to the Tariff Act of 1930, as amended (the Act) related to Chapter 10 of the USMCA on antidumping and countervailing duty matters. The Statement of Administrative Action accompanying the USMCA Implementation Act provides that, “[i]n substance, U.S. laws and regulations are already in conformity with the obligations assumed under [Chapter 10 of the USMCA,]” and, therefore, “no changes in administrative regulations, practices, or procedures are required to implement the. . .antidumping and countervailing duty related provisions of Chapter 10.”  3

Pursuant to Article 10.12.14 of the USMCA, the United States, Mexico, and Canada trilaterally negotiated and agreed to rules of procedure for binational panel review modifying and updating the previous rules of procedure for Article 1904 of NAFTA. Effective May 18, 2021, Decision No. 2 of the USMCA Free Trade Commission adopted the rules of procedure applicable to all binational panel reviews under the USMCA. The rules of procedure are contained in Annex II to that decision and are cited as the Article 10.12 Binational Panel Rules. 4

Commerce's regulations, 19 CFR part 356 (procedures and rules for the implementation of NAFTA Article 1904) were first promulgated in 1994 and have not undergone any updates since that time. Although not required by the USMCA Implementation Act, Commerce is amending its regulations pertaining to the procedures and rules governing the binational panel dispute settlement mechanism to review antidumping duty and countervailing duty determinations issued by the United States as set forth in the USMCA. Because the dispute settlement mechanism in USMCA Article 10.12 is substantively identical to that in NAFTA Article 1904, Commerce is adopting non-substantive amendments to ensure that its rules appropriately reference the USMCA. Commerce is also adopting additional non-substantive amendments, including updating outdated cross-references to Commerce's antidumping and countervailing duty regulations (19 CFR part 351), updating outdated notice, filing, service, and protective order procedures, and adopting other minor corrections and updates. These changes are explained in the preamble of this interim final rule and reflected in the regulatory text below.

Commerce's regulations in 19 CFR part 356 implement procedures for disputes pursuant to Article 1904 of NAFTA. Because NAFTA was replaced pursuant to the enactment of the USMCA, Commerce's regulations in this section require updates to reflect the name of the new agreement and the relevant chapter contained in the new Agreement. Therefore, Commerce is adopting several changes throughout part 356 to replace references to NAFTA with references to the USMCA. Commerce is also adopting several changes throughout part 356 to replace references to section 402(g) of the North American Free Trade Agreement Implementation Act of 1993 with reference to section 412(g) of the United States-Mexico-Canada Agreement Implementation Act of 2020, which authorizes Commerce to promulgate such regulations as necessary or appropriate to implement its responsibilities under chapter 10 of the USMCA. 5

These changes are reflected in the title of part 356 and §§ 356.1, 356.2(d), 356.2(f), and 356.2(kk) (replacing references to North American Free Trade Agreement or NAFTA with United States-Mexico-Canada Agreement or USMCA); §§ 356.1, 356.2(f), 356.2(o), 356.2(p), 356.2(cc)(3), 356.10(b)(1)(ii)(B), 356.11(a)(1)(i), and 356.11(b)(2)(ii) (replacing references to Article 1904 of NAFTA with Article 10.12 of USMCA); §§ 356.2, 356.3, 356.4, 356.10(b)(4)(i), 356.11(a)(5)-(6) (replacing references to Article 1904 Panel Rules with Article 10.12 Binational Panel Rules); § 356.1 (replacing references to section 402(g) of the North American Free Trade Agreement Implementation Act of 1993 with section 412(g) of the United States-Mexico-Canada Implementation Act of 2020); § 356.2 (replacing the signing date of NAFTA, December 17, 1992 with the signing date of the amended USMCA, November 30, 2018); §§ 356.2(h), 356.2(p), and 356.2(w) (replacing references to Chapter Nineteen with Chapter Ten); § 356.2(h) (replacing references to Annex 1901.2 with Annex 10-B.1); in § 356.2(p) (replacing references to Annex 1904.13 with Annex 10-B.3); § 356.2(q) (replacing references to Article 1911 with Article 10.8); § 356.2(ff) (replacing references to Article 2002 with Article 30.6); and § 356.2(r) (replacing references to section 516A(f)(9) of the Act with section 516A(f)(10) of the Act).

Commerce is also removing several references to the United States-Canada Free Trade Agreement, which was superseded by NAFTA. Commerce's regulations contained provisions governing dispute resolution pursuant to the United States-Canada Free Trade Agreement. Because there are no active disputes pursuant to that agreement, Commerce is removing reference to it throughout its regulations. These changes are reflected in §§ 356.2(d), 356.10(c)(1)(ii), and 356.11(c)(1)(ii).

Commerce is also updating outdated regulatory cross-references in 19 CFR part 356 to 19 CFR parts 353 (addressing antidumping duty rules and procedures) and 355 (addressing countervailing duty rules and procedures) which became obsolete when Commerce consolidated parts 353 and 355 into a single part 351 in 1997. 6 Despite the 1997 consolidation, references to obsolete parts 353 and 355 remain in part 356. Therefore, Commerce is removing obsolete cross-references to parts 353 and 355 and replacing them with updated references to part 351 to reflect the 1997 consolidation of the AD/CVD regulations and any relevant subsequent regulatory changes Commerce made to part 351 thereafter. 7

These changes are reflected in § 356.2(u) (replacing cross-references to 19 CFR 353.31(e)(2)(i) through (v) or 355.31(e)(2)(i) through (v) with 19 CFR 351.303(d)(2), which outline Commerce's current requirements for document submissions with respect to specifications and first page “letter of transmittal” markings); §§ 356.7(b) and 356.8(d) (replacing cross-references to 19 CFR 353.31(d), (e)(2) and 19 CFR 355.31(d), (e)(2) with references to 19 CFR 351.303(b) and 19 CFR 351.303(d)(2), which outline Commerce's current format and filing requirements for document submissions); § 356.7(c) and 356.8(d) (replacing cross-references to 19 CFR 353.31(g) and 19 CFR 355.31(g) with reference to current 19 CFR 351.303(f) which outlines Commerce's current service requirements).

Commerce is also updating its regulations relating to certain outdated notice procedures. Specifically, current §§ 356.6 and 356.7 provide that Commerce will notify governments of Free Trade Agreement (FTA) Countries of scope determinations and contemplate that such determinations not be published in the Federal Register . 8 Under current § 356.6, when Commerce makes a scope determination, notice of such scope determination shall be deemed received by the Government of an FTA country when a certified copy of the determination is delivered to the chancery of the Embassy of the FTA.

Under Commerce's current procedures, scope rulings under 19 CFR 351.225 are a type of “class or kind determination,” a term that also encompasses circumvention determinations under section 781 of the Act. In some instances, a class or kind determination may be published in the Federal Register . Otherwise, interested parties will be notified of a determination through other means, including through mailing or electronic means. Section 516A(g)(10) of the Act, as amended by the USMCA Implementation Act, provides that Commerce, upon request, shall inform any interested person of the date on which the Government of the relevant FTA country received notice of the determination. However, the statute is silent as to the method of notice to the government of a FTA country, and, therefore, it is left to the discretion of Commerce. 9

Accordingly, Commerce is revising § 356.6 to state that notice shall be deemed received either on the date on which the class or kind determination is published in the Federal Register , or, if the determination is not published, on the date on which Commerce conveys a copy of the determination by electronic notification to the government. Further, in instances in which Commerce does not publish the determination, these changes will require that Commerce: (1) Confirm the appropriate Embassy electronic mail address, and (2) directly convey to the Embassy an electronic copy of the determination during the Embassy's normal business hours. Commerce is also adopting changes to reflect that “class or kind determination” is a more accurate term than “scope determination” for these types of determinations. Similar edits are reflected in § 356.7. In addition, for ease of reference the definition for scope determination in § 356.2(ee) has been expanded to include reference to class or kind of merchandise determination.

Commerce is also amending §§ 356.10 and 356.11 regarding the procedures for access to proprietary and privileged information during a USMCA binational panel dispute. Current § 356.10 requires a party seeking access to proprietary information to do so by submitting an application for a protective order. Such applications are to be filed with the U.S. section of the USMCA Secretariat, which in turn provides the applications to Commerce. Upon approving the application, Commerce will then issue the protective order to the Secretariat, which in turn will issue the protective order to the original applicant along with other participating parties to the dispute. The procedures in § 356.10(b)(3) have been updated to remove the requirement for manual filing.

Additionally, current § 356.10(b)(4)(ii) provides the method of service by which a protective order may be served. Because this provision does not currently account for service by electronic means, which is now permitted by the U.S. section of the Secretariat under the Article 10.12 Binational Panel Rules, Commerce is adding language to § 356.10(b)(4)(ii)(B) to allow for electronic means as a method of service for protective orders. Further, Commerce is adding an additional provision (§ 356.10(b)(4)(ii)(D)) to reflect that the U.S. section of the Secretariat allows for the filing of documents using an electronic filing platform to satisfy service requirements under the Article 10.12 Binational Panel Rules. Commerce is also adding corresponding language to § 356.10(b)(4)(iii) regarding the date of service if a document is served by electronic means or filed using the electronic filing platform.

Commerce is also revising §§ 356.7(b); 356.8(d)(1); 356.10(b)(3) through (5), 356.10(c)(1)(i), 356.10(c)(2)(i), 356.10(c)(2)(v), 356.10(c)(3), 356.10(c)(4)(i), 356.10(d)(2), 356.11(a)(2) and (3), 356.11(a)(5)(i)-(ii), 356.11(c)(1)(i), 356.11(c)(2) and (3), and 356.11(d)(2) to remove language requiring originals and multiple copies, as such a requirement has been made obsolete. Moreover, Commerce is also revising §§ 356.10(b)(1)(ii)(C), 356.11(b)(2)(iii), 356.12(a)(5), 356.14(d)(2), 356.14(d)(4), and 356.18(c)(4) to remove language requiring parties to return documents released under protective order and to log the use of proprietary documents, as such requirements have become obsolete, and to instead require parties to destroy and certify to the destruction of documents released under protective order.

Commerce is also adopting minor corrections and updates to part 356 in §§ 356.10(b)(1)(i) and 356.11(b)(1) (updating the address and the room number of the Central Records Unit); §§ 356.7(b) and 356.8(d)(1) (updating the address and the room number of the APO/Dockets Unit); §§ 356.2(ee) and 356.27(d) (correcting punctuation); § 356.2(kk) (correcting the address of the Commerce Department); § 356.2(bb)(2) (updating the name of Mexico's Secretaria de Comercio y Fomento Industrial to the Secretariat of Economy); and § 356.11(c)(3) (adding a missing word in the title of the paragraph). Lastly, Commerce is updating the definition of the term “director” as specified in § 356.2(n) to correspond with the current definition in 19 CFR part 354, revised by Commerce in 1998. 10

Under section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553), agencies generally are required to publish a notice of proposed rulemaking in the Federal Register that solicits public comment on the proposed regulatory amendments, consider public comments in deciding on the content of the final amendments, and publish the final amendments at least 30 days prior to their effective date. The APA (5 U.S.C. 553(b)) provides a statutory exemption to notice-and-comment rulemaking for rules of agency organization, procedure, or practice and when the agency finds for good cause that such procedures are impracticable, unnecessary, or contrary to the public interest. Commerce's amendments to the regulation, 19 CFR 356, fall within this exemption.

Specifically, providing notice of and an opportunity for comment on the amended regulation in advance of its effective date is unnecessary pursuant to the good cause exemption (5 U.S.C. 553(b)(B)). As described above, the first set of amendments reflect revisions already made to U.S. law following the enactment of the USMCA; are already known to parties; or are otherwise necessary to replace outdated references to NAFTA with the USMCA. 11 The second set of amendments address obsolete regulatory cross-references to other parts of Commerce's regulations; are non-substantive and technical in nature; and reflect procedures that are already known to parties. 12 The third set of amendments streamline or remove outdated paper notice, filing, service, and protective order requirements and procedures that have been replaced by electronic requirements and procedures. 13 Certain of these procedures have already been adopted by the United States, Mexico, and Canada under the Article 10.12 Binational Panel Rules; are already known to parties; or are otherwise necessary to remove outdated and burdensome requirements. 14 Further, the amendments allowing for electronic notification of class or kind of merchandise determinations, in lieu of in-person notification, are necessary and appropriate in light of COVID-19. 15 Lastly, the fourth set of amendments reflect updated office locations and internal organization and correct nomenclature or punctuation. 16 In light of the above, prior notice and opportunity for comment is unnecessary. However, Commerce would like to know the public's view on these revisions and is therefore soliciting comments on the Interim Final Rule and will consider all comments received before issuing a final rule.

In addition, the APA (5 U.S.C. 553(d)(3)) provides that a 30-day delayed effective date may be waived if the agency finds good cause to waive such a requirement. For the same reasons as explained above, and because this rule does not impose affirmative requirements on any entity, a delayed effective date is unnecessary.

OMB has not found this rule to be a significant rulemaking under Executive Order 12866.

This proposed rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

This rule does not contain a collection of information subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35 (PRA).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes whether a rule will have a significant effect on a substantial number of small entities when the agency is required to publish a general notice of proposed rulemaking. Because a notice of proposed rulemaking is not necessary for this rule, Commerce is not required to prepare a regulatory flexibility analysis for this rule, and none has been prepared.

For the reasons stated in the preamble, the Department of Commerce is amending 19 CFR part 356 as follows:

In the Federal Register of March 18, 2020, the Food and Drug Administration (FDA or Agency) issued a final rule establishing new cigarette health warnings for cigarette packages and advertisements. The final rule implements a provision of the Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) (Pub. L. 111-31) that requires FDA to issue regulations requiring color graphics depicting the negative health consequences of smoking to accompany new textual warning label statements. The Tobacco Control Act amends the Federal Cigarette Labeling and Advertising Act of 1965 (Pub. L. 89-92) to require each cigarette package and advertisement to bear one of the new required warnings. The final rule specifies the 11 new textual warning label statements and accompanying color graphics. Pursuant to section 201(b) of the Tobacco Control Act, the rule was published with an effective date of June 18, 2021, 15 months after the date of publication of the final rule.

On April 3, 2020, the final rule was challenged in the U.S. District Court for the Eastern District of Texas. 1 On May 8, 2020, the court granted a joint motion to govern proceedings in that case and postpone the effective date of the final rule by 120 days. 2 On December 2, 2020, the court granted a new motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days. 3 On March 2, 2021, the court granted another motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days. 4 On May 21, 2021, the court granted another motion by the plaintiffs to postpone the effective date of the final rule by an additional 90 days. 5 On August 18, 2021, the court issued an order to postpone the effective date of the final rule by an additional 90 days. 6 On November 12, 2021, the court issued another order to postpone the effective date of the final rule by an additional 90 days. 7 The court ordered that the new effective date of the final rule is January 9, 2023. Pursuant to the court order, any obligation to comply with a deadline tied to the effective date is similarly postponed, and those obligations and deadlines are now tied to the postponed effective date.

To the extent that 5 U.S.C. 553 applies to this action, the Agency's implementation of this action without opportunity for public comment, effective immediately upon publication today in the Federal Register , is based on the good cause exception in 5 U.S.C. 553(b)(B). Seeking public comment is impracticable, unnecessary, and contrary to the public interest. The 90-day postponement of the effective date, until January 9, 2023, is required by court order in accordance with the court's authority to postpone a rule's effective date pending judicial review (5 U.S.C. 705). Seeking prior public comment on this postponement would have been impracticable, as well as contrary to the public interest in the orderly issuance and implementation of regulations.

On June 1, 2021, the Department expressed serious concerns about the People's Republic of China's (PRC's) military presence and other activities in Cambodia and emphasized that a PRC military base in Cambodia would undermine Cambodian sovereignty, threaten regional security, and negatively impact U.S.-Cambodia relations. Senior officials at the Departments of State and Defense continue to voice these concerns but Cambodia continues to allow the PRC to expand its military presence and construct exclusive-use facilities on the Gulf of Thailand.

In response to significant credible evidence of corruption, human rights abuses, and an exclusive agreement with the People's Republic of China (PRC) on military expansion in Cambodia by the Cambodian government, effective immediately, the Department is amending ITAR § 126.1 by adding Cambodia in paragraph (o) and revising the country policy chart in paragraph (d)(2). The policy of denial applies to licenses or other approvals for exports and imports of defense articles and defense services destined for or originating in Cambodia, with exceptions related to conventional weapons destruction and humanitarian demining activities. This action also precludes the use of exemptions from licensing or other approval requirements as described in that section.

The Department of State is of the opinion that controlling the import and export of defense articles and services is a military or foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA), pursuant to 5 U.S.C. 553(a)(1). Since this rule is exempt from 5 U.S.C 553, the provisions of section 553(d) do not apply to this rulemaking. Therefore, this rule is effective upon publication.

Since this rule is exempt from the notice-and-comment provisions of 5 U.S.C. 553(b), there is no requirement for an analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This amendment has been found not to be a major rule within the meaning of the Small Business Regulatory Enforcement Fairness Act of 1996.

This rulemaking will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the Department has determined that this rulemaking does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). Because the scope of this rule does not impose additional regulatory requirements or obligations, the Department believes costs associated with this rule will be minimal. This rule has not been designated a “significant regulatory action” by the Office and Information and Regulatory Affairs under Executive Order 12866.

The Department of State has reviewed this rulemaking in light 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 preempt tribal law. Accordingly, Executive Order 13175 does not apply to this rulemaking.

This rulemaking does not impose or revise any information collections subject to 44 U.S.C. Chapter 35.

For the reasons set forth above, title 22, chapter I, subchapter M, part 126 is amended as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679. Regulations governing sideboard protections for GOA groundfish fisheries appear at subpart B of 50 CFR part 680.

The 2021 Pacific cod total allowable catch (TAC) apportioned to hook-and-line catcher/processors in the Western Regulatory Area of the GOA is 1,068 metric tons (mt), as established by the final 2021 and 2022 harvest specifications for groundfish of the GOA (86 FR 10184, February 19, 2021).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator) has determined that the 2021 Pacific cod TAC apportioned to hook-and-line catcher/processors in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,058 mt and is setting aside the remaining 10 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by hook-and-line catcher/processors in the Western Regulatory Area of the GOA. While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of Pacific cod by hook-and-line catcher/processors in the Western Regulatory Area of the GOA. NMFS was unable to publish a notification providing time for public comment because the most recent, relevant data only became available as of December 3, 2021.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.