The Department's authority to regulate unfair and deceptive practices in air transportation or the sale of air transportation is found at 49 U.S.C. 41712 (section 41712) in conjunction with its rulemaking authority under 49 U.S.C. 40113, which states that the Department may take action that it considers necessary to carry out this part, including prescribing regulations. Section 41712 gives the Department the authority to investigate and decide whether an air carrier, foreign air carrier, or ticket agent is engaged in an unfair or deceptive practice in air transportation or the sale of air transportation. Under section 41712, after notice and an opportunity for a hearing, the Department has the authority to issue orders to stop an unfair or deceptive practice. A different statute, 49 U.S.C. 46301, gives the Department the authority to issue civil penalties for violations of section 41712 or for any regulation issued under the authority of section 41712.

On December 20, 2020, the Department published in the Federal Register a final rule titled “Defining Unfair or Deceptive Practices” (UDP Final Rule). 1 The UDP Final Rule was intended to provide regulated entities and other stakeholders with greater clarity about the Department's enforcement and regulatory processes with respect to aviation consumer protection actions under section 41712. 2 It sets forth procedures that the Department would use when conducting future enforcement actions under the authority of section 41712. 3 The UDP Final Rule also sets forth procedures, including evidentiary hearing procedures, that the Department would use when conducting future discretionary rulemaking actions under the authority of section 41712. 4 Those procedures for evidentiary hearings are being amended through this rulemaking.

In addition, the UDP Final Rule defined the terms “unfair” and “deceptive” for purposes of section 41712. The definitions were modeled after Federal Trade Commission (FTC) precedent; they also reflect the Department's longstanding interpretation of those terms. 5 However, the UDP Final Rule did not fully resolve the meaning of unfair or deceptive. Executive Order (E.O.) 14036, “Promoting Competition in the American Economy,” issued by President Biden on July 9, 2021, directs the Department to “start development of proposed amendments” to its definitions of the terms `unfair' and `deceptive' in 49 U.S.C. 41712. 6 In keeping with this Executive Order, the Department intends to issue in the near future an interpretive rule that would more clearly apprise the public of the Department's interpretation of the definitions of “unfair” and “deceptive” found in section 41712, and as defined by the Department at 14 CFR 399.79.

The UDP Final Rule established the Department's procedures for hearings for discretionary aviation consumer protection rulemaking actions promulgated under the authority of section 41712. The Department is revising those procedures after a careful review of recent changes in the Department's and FTC's internal policies and procedures relating to the issuance of rulemaking documents and concern that the existing hearing procedures for discretionary aviation consumer protections actions do not provide the Department with enough flexibility to adapt internal procedures to facilitate efficient rulemaking. The Department is concerned that the overly particularized rigidity of the existing procedures in the UDP Final Rule may have the unintended consequence of causing unnecessary delay. The Department has determined that although it remains useful to have specific procedures for evidentiary hearings, the procedures should be streamlined to provide greater flexibility and ensure that important consumer protection rulemakings are not unduly delayed.

Under the hearing provisions of the UDP Final Rule, if the Department proposes a new discretionary rulemaking declaring a practice to be unfair or deceptive, then any interested party may file a petition for an evidentiary hearing. 7 The petition must be directed to the attention of the General Counsel, and must be filed before the close of the comment period on the proposed rule. 8 To obtain an evidentiary hearing, the party must demonstrate that: (1) The proposed rule depends on conclusions concerning one or more specific scientific, technical, economic, or other factual issues that are genuinely in dispute or that may not satisfy the requirements of the Information Quality Act; (2) the ordinary public comment process is unlikely to provide an adequate examination of the issues to permit a fully informed judgment; and (3) the resolution of the disputed factual issues would likely have a material effect on the costs and benefits of the proposed rule. 9 Even if the petitioner establishes these elements, the General Counsel may still deny the petition if: (1) The hearing would not advance the consideration of the proposed rule; or (2) the hearing would unreasonably delay completion of the rulemaking. 10

The existing procedures provide that if the General Counsel grants the petition, then a notice of the hearing must be placed in the Federal Register , identifying the specific issues that will be considered. 11 The General Counsel must develop procedures for conducting evidentiary hearings. 12 Interested parties must have a reasonable opportunity to participate in the hearing through the presentation of testimony and written submissions. 13 The General Counsel must appoint a “neutral officer” to preside over the hearing, and must allow “a reasonable opportunity to question the presenters.”  14 After the hearing is closed, the neutral officer must place minutes of the meeting on the docket, along with proposed findings of fact on the disputed issues. 15 Interested parties who participated in the hearing must be given the opportunity to file “statements of agreement or objection” to the proposed findings. 16

After the hearing, the General Counsel must consider the record of the hearing, along with the neutral officer's findings, and determine whether to: (1) Terminate the proposed rulemaking; (2) modify it by filing a new or supplemental notice of proposed rulemaking; or (3) finalize the rule without material changes. 17 Any of these choices must be accompanied by a notice in the Federal Register explaining the basis for the decision. 18

The Department indicated in the UDP Final Rule that these evidentiary hearing procedures were consistent with section 41712, which requires the Department to provide notice and an opportunity for a hearing before finding that a regulated entity is engaged in an unfair or deceptive practice. 19 The Department noted that hearing procedures would be helpful in cases where the Department's proposed rulemaking may be premised on complex or disputed issues of fact. 20 The Department also noted that the traditional notice-and-comment procedures of the Administrative Procedure Act “remain the default process,” and that a hearing may be granted only if an interested party shows that traditional notice-and-comment is inadequate. 21 The Department further noted that the General Counsel may deny a hearing upon a finding that the hearing would unreasonably delay the rulemaking. 22 The Department also explained that the Department had held evidentiary hearings on proposed aviation consumer protection rulemakings in the past, but had not codified nor fully publicized those procedures. 23 In summary, the Department recognized that hearing procedures may add time to the overall rulemaking process, but concluded that the hearing procedures, as written, would “promote fairness, due process, and well-informed rulemaking, without unduly delaying the proceeding itself.”  24

Recently, both the Department and the FTC have reexamined or revised their evidentiary hearing procedures for rulemakings. On April 2, 2021, the Department repealed most of 49 CFR part 5, which included hearing procedures for high-impact and economically significant rules issued by the Department. 25 The Department further indicated that it would review the substance of the Department's rulemaking procedures in light of Executive Order 13992 (January 25, 2021). This Executive Order not only repealed a number of executive orders relating to the rulemaking process, but also directed agencies to “promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing” those repealed executive orders.

Meanwhile, on July 22, 2021, the FTC announced that it streamlined its rules of practice regarding evidentiary hearings for rulemakings that would declare a specific act or practice to be unfair or deceptive. 26 For example, the FTC eliminated the requirement that the evidentiary hearing be conducted by an Administrative Law Judge (ALJ); instead, hearings may be conducted by a neutral presiding officer appointed by the FTC Chair. 27 The FTC also eliminated other rules, including: (1) A requirement that the hearings include “direct examination” of individuals who present their views at such hearing; (2) rules relating to compelling documents and testimony; and (3) a requirement that Commission staff produce a report analyzing the rulemaking record, along with an additional period for interested parties to comment on the report. 28 The FTC reasoned that its amendments would allow for transparent public participation in the rulemaking process while avoiding unnecessary procedural delays to effective rulemaking. 29

Document Availability: In addition to publishing the full text of this document in the Federal Register , the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through FERC's Home Page ( http://www.ferc.gov ). At this time, the Commission has suspended access to the Commission's Public Reference Room, due to the proclamation declaring a National Emergency concerning the Novel Coronavirus Disease (COVID-19), issued by the President on March 13, 2020.

From FERC's website on the internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field and follow other directions on the search page.

User assistance is available for eLibrary and other aspects of FERC's website during normal business hours. For assistance, contact FERC Online Support at FERCOnlineSupport@ferc.gov or toll free at (866) 208-3676, or for TTY, contact (202) 502-8659.

The Federal Energy Regulatory Commission (Commission) is issuing this document to update filing fees that the Commission assesses for specific services and benefits provided to identifiable beneficiaries. Pursuant to 18 CFR 381.104, the Commission is establishing updated fees on the basis of the Commission's Fiscal Year 2021 costs. The adjusted fees announced in this document are effective March 4, 2022. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of the Office of Management and Budget, that this final rule is not a major rule within the meaning of section 251 of Subtitle E of Small Business Regulatory Enforcement Fairness Act, 5 U.S.C. 804(2). The Commission is submitting this final rule to both houses of the United States Congress and to the Comptroller General of the United States.

The new fee schedule is as follows:

In consideration of the foregoing, the Commission amends part 381, chapter I, title 18, Code of Federal Regulations, as set forth below.

In the Federal Register of Friday, December 3, 2021, in FR Doc. 2021-25716, appearing on page 68728, the following corrections are made:

The purpose of this final rule is to amend the regulations in Title 33 of the Code of Federal Regulations (CFR) part 127 concerning waterfront facilities handling liquefied natural gas (LNG)  1 and liquefied hazardous gas (LHG). The final rule makes three changes: (1) Changes the risk assessment requirements for facilities that only handle LNG as fuel and do not transfer LNG as cargo to or from a vessel; (2) updates the technical standards already incorporated by reference in part 127; and (3) adds a requirement that LNG import/export facilities provide certain information to satisfy a statutory requirement. We discuss each change below.

First, the final rule adds new § 127.008 to allow waterfront facilities handling LNG as fuel (LNG fuel facilities  2 3 ) to conduct an operational risk assessment (ORA) instead of a waterway suitability assessment (WSA), without first obtaining Captain of the Port (COTP) approval. An ORA focuses on the safety and security associated with shore-based operations within the marine transfer area, whereas a WSA focuses on the risks and vulnerabilities of the waterway associated with an LNG import/export facility. LNG fuel facilities, as defined, do not transfer LNG as cargo to or from a vessel and so an assessment of the waterway is unnecessary. The final rule reduces the regulatory burden on LNG fuel facilities by reducing the scope of the analysis and the amount of information facility owners would have to submit to the Coast Guard. Reducing the regulatory burden could increase the maritime industry's level of interest in converting or constructing vessels to use LNG as a marine fuel to comply with stricter emissions standards and realize economic advantages. 4

Second, the final rule updates the technical standards already incorporated by reference in part 127 to reflect the most recent published editions of these standards. We have determined that modified, expanded, and new LNG fuel facilities, LNG import/export facilities, and waterfront facilities handling LHG are built to the most recent industry standards available at the time of modification, expansion, or construction, and not the outdated standards currently codified in 33 CFR part 127. 5

Third, for LNG import/export facilities that must comply with the WSA requirements in § 127.007, the final rule requires these facilities to provide information to the Coast Guard at the time the WSA is submitted. The required information is the nation of registry for vessels transporting natural gas that are reasonably anticipated to be servicing the facilities, and the nationality or citizenship of officers and crew serving on board those vessels. We are making this change to assist us in meeting our obligation under § 304(c)(2) of the Coast Guard and Maritime Transportation Act of 2006. 6 This statute requires the Coast Guard, when operating as a contributing agency in the Federal Energy Regulatory Commission (FERC) shoreside licensing process for an onshore or near-shore LNG terminal, to provide this information to FERC.

On October 5, 2020, the Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register (FR) titled, “Operational Risk Assessments for Waterfront Facilities Handling Liquefied Natural Gas as Fuel, and Updates to Industry Standards.”  7 The NPRM included a 60-day comment period. No public meetings were requested, and none were held. During the comment period for the NPRM, the Coast Guard received five comment submissions.

Chapter 700 of title 46 United States Code (U.S.C.), Ports and Waterways Safety, authorizes the Secretary of the department in which the Coast Guard is operating to take certain actions to advance port, harbor, and coastal facility safety and security. Specifically, Sections 70011 and 70034 authorize the Secretary to promulgate regulations for the handling, loading, unloading, storage, stowage, and movement of hazardous materials on a structure on or along U.S. navigable waters as necessary to protect the vessel, structure, water, or shore area. The Secretary has delegated this authority to the Commandant of the Coast Guard in DHS Delegation 00170.1, Revision No. 01.2, paragraph (II)(70).

The purpose of this final rule is to reduce unnecessary requirements for LNG fuel facilities; update technical standards that apply to all facilities covered by part 127; and implement a statutory requirement that LNG import/export facilities provide certain information.

The Coast Guard received five comment submissions during the 60-day comment period that ended on December 5, 2020. Four comment submissions were received from members of the public and one joint submission was submitted on behalf of two industry organizations. One commenter pointed out that by the time the proposed rule became final, the National Fire Protection Association (NFPA) would have adopted the 2020 edition of the NFPA 70 standard. In the NPRM, which was published on October 5, 2020, we proposed to incorporate by reference the 2017 edition of NFPA 70. After reviewing this comment, we discovered that the 2020 edition of NFPA 70 became effective on August 25, 2019. The 2020 edition features changes related to emergency disconnects, ground-fault circuit interrupter protection, surge protection, and other topics related to electrical safety. However, the provisions of the 2020 edition that would apply to regulated facilities through §§ 127.107(a) and (c), 127.201(c)(1), and 127.1107, remain unchanged from the 2017 edition. In this final rule, we incorporate by reference the 2020 edition of NFPA 70. Incorporating the most current available edition of NFPA 70 will make it easier for regulated entities to obtain the incorporated standard. Because this change does not alter the regulatory requirements we proposed for public comment, no additional notice or opportunity for public comment is necessary.

The same commenter informed us that the ASTM International (ASTM) standard ASTM E119-20, Standard Test Methods for Fire Tests of Building Construction and Materials, approved May 1, 2020 has superseded NFPA 251. This standard provides the fire-test-response criteria and procedures for structural materials used in building construction. The application of the test procedures contained in this standard are used to evaluate the duration for which building construction materials and assemblies can either contain a fire, retain structural integrity, or both. In response to this comment, we will revise the regulatory text in this final rule in § 127.005 for the definition of the term “fire endurance rating” by deleting the reference to NFPA 251 and replacing it with the reference to ASTM E119-20. This section refers to a standard time temperature curve, which is the same in both NFPA 251 and ASTM E119-20. The NFPA provides notice on their website that it withdrew NFPA 251 in the fall of 2010  8 and the material contained in NFPA 251 is now found in ASTM E119-20 and UL 263. Because making this change does not alter the regulatory requirements we proposed for public comment, no additional notice or opportunity for public comment is necessary.

Another commenter recommended that the best course of action for the Coast Guard would be for owners and operators continue to meet with the COTP before submitting an ORA to the Coast Guard. The commenter said this would allow safety precautions to be taken into consideration when establishing new LNG fuel facilities, while also reducing the amount of work LNG facility owners and operators would have to do to get the LNG fuel facility approved. The Coast Guard expects owners and operators to continue meeting with the COTP, but has determined that the preliminary requirement for LNG fuel facilities to obtain the COTP's approval prior to beginning the ORA should be eliminated. Interactions will take place throughout the development of the ORA, because the Coast Guard is a key port stakeholder that must be consulted during the risk assessment process. New § 127.008(d)(1) identifies the standards to be followed for conducting an ORA and each of the standards contain provisions for either engaging with local stakeholders or the authorities having jurisdiction over the proposed LNG fuel facilities. Accordingly, the COTP will continue to work closely with owners and operators to assess the risks associated with their operation and determine whether the mitigation measures proposed are suitable. This regulatory change only eliminates the preliminary step, for certain facilities, of obtaining the COTP's approval to begin the ORA.

One commenter made reference to the 2004 Interagency Agreement (IA) titled, “For the Safety and Security Review of Waterfront Import/Export Liquefied Natural Gas Facilities” (issued on February 10, 2004), established between the Coast Guard, FERC, and the Pipeline and Hazardous Materials Safety Administration (PHMSA). 9 The commenter stated that by allowing owners or operators to conduct an ORA, instead of a WSA, without first obtaining COTP approval appears to render the terms of the IA moot. The IA remains in effect and applies only to LNG import or export facilities, which must conduct a WSA, under § 127.007. The LNG fuel facilities this regulatory action addresses in § 127.008 will not be importing or exporting LNG, but providing LNG as fuel from shore-based structures to vessels. Accordingly, the IA does not apply to the LNG fuel facilities affected by this aspect of the final rule. Supplies of LNG will be delivered to an LNG fuel facility from shore-based sources (for example, tank trucks, rail cars, or pipelines), making waterway assessment unnecessary, because no waterborne sources are used to supply LNG to the facility. LNG fuel facilities, through the ORA process, will have to assess the overall safety and security of the facilities just like LNG import or export facilities do when conducting a WSA.

The Coast Guard received one joint comment submission on behalf of two well-known oil and gas industry organizations, the Center for Liquefied Natural Gas and the American Petroleum Institute. These organizations voiced strong support for the proposed rule, noting that the LNG industry has a strong safety record and long history of working closely with regulators and first responders to maximize safety and security of both large and small LNG facilities. The commenters said that the use of an ORA instead of a WSA will benefit LNG fuel facilities and integrate the benefits of risk-based principles over the more prescriptive regulations and policies associated with conducting a WSA. The commenters said, and the Coast Guard agrees, “. . . that allowing an ORA to be conducted instead of a WSA would benefit waterfront facilities handling LNG as fuel. Allowing an ORA would integrate the benefits of risk-based principles over the more prescriptive regulations of a WSA. Utilizing a risk-based approach (like the ORA) effectively manages safety by allowing examination and devotion of resources on the areas of the system that pose the greatest risk to process safety, mechanical integrity, and product quality without compromising equipment care and personnel well-being.” The Coast Guard also believes the ORA focuses attention on critical areas and establishes safety standards that all future LNG fuel facility owners can follow, which helps ensure a consistent approach for evaluating the safety and security concerns associated with each individual project. In this manner, maritime safety and security may be more effectively managed without unnecessary costs being imposed on the industry.

One concern raised by these commenters involved the proposed updates to the existing standards currently incorporated by reference in 33 CFR part 127, noting that updating to newer editions could cause conflict with standards that are incorporated by reference by other government and state agencies that may share overlapping jurisdiction. In this regard, the commenters indicated that it is vital that all stakeholders, including the operators of LNG fuel facilities and personnel of agencies having jurisdiction over the facilities, have a clear understanding of which version of a standard is to be used and how that standard will be interpreted and enforced. They agree that updating existing regulations to incorporate technical standards to reflect the most recent published editions is good practice and asked that the Coast Guard attempt to ensure that standards are not in conflict with other regulatory bodies having overlapping jurisdiction. In this instance, the commenters noted that the 2001 and 2006 editions of NFPA 59A that are incorporated by reference in PHMSA's regulations (see 49 CFR 193.2013) reference different editions of ASME B31.3 and NFPA 70 than the editions we intend to incorporate. However, the Coast Guard does not believe this causes a conflict, because the regulations of both the Coast Guard and PHMSA clearly define each agency's jurisdictional boundaries. The Coast Guard has jurisdictional authority over the marine transfer areas for LNG and LHG, which are defined in § 127.005. PHMSA's jurisdictional authority, as defined in 49 CFR 193.2001, does not include marine cargo transfer areas, with the exception of siting requirements for the facility. Through its regulations, the Coast Guard makes it clear to the regulated industry that ASME B31.3-2020, referenced in § 127.1101, must be used for the construction of piping systems located in the marine transfer areas for waterfront facilities handling LHG. Also, through its regulations, the Coast Guard makes it clear to the regulated industry that NFPA 70 2020, referenced in §§ 127.107, 127.201, and 127.1107, must be used for the construction of electrical systems and warning alarms located in the marine transfer areas for LNG and LHG.

The Coast Guard agrees with many of the points raised by these commenters and understands that there may be certain circumstances when the editions of standards we incorporate by reference are different than the editions of the standards incorporated by other state or Federal agencies. The Coast Guard has chosen to incorporate the latest editions of the standards referenced in § 127.003 in order to meet the intent of the Office of Management and Budget (OMB) Circular A-119 (Federal Participation in the Development and Use of Voluntary Consensus Standards and in Conformity Assessment Activities), 10 which requires that agencies incorporate the most recent standards to enhance safety with minimum cost.

The Coast Guard coordinated with FERC and PHMSA on this rulemaking. Nonetheless, the Coast Guard intends to work with FERC and PHMSA to update the existing IA shared between the agencies, which may provide an opportunity to address differences in the editions of the standards each agency has incorporated by reference in its regulations.

The Coast Guard also received a question submitted directly to the project manager, which the Coast Guard has posted in the docket folder for transparency. The question was related to information presented in the NPRM, and asked which three facility owners the Coast Guard met with and whether there are notes or summaries from those meetings. In response, we notified the requestor that the three facilities were Tote Maritime, Harvey Gulf Marine International, and Eagle LNG. The substance of the meetings is summarized in the NPRM, 11 and no additional notes are available.

This final rule amends 33 CFR part 127. With this final rule, we are finalizing the following three changes:

First, the Coast Guard is revising its existing regulations to allow certain LNG fuel facilities to conduct an ORA instead of a WSA without first obtaining COTP approval to do so. By allowing LNG fuel facilities that only handle LNG as fuel and do not transfer LNG as cargo to or from a vessel to use an ORA in lieu of a WSA, without submitting an alternative request and meeting with the COTP, this final rule reduces the regulatory burden on LNG fuel facilities. This is accomplished by reducing the scope of the analysis and the amount of information facility owners will have to submit to the Coast Guard, eliminating an unnecessary administrative burden on these entities.

Second, the Coast Guard is updating the technical standards already incorporated by reference in part 127 to reflect the most recent published editions of these standards. These technical standards apply to LNG fuel facilities, LNG import/export facilities, and waterfront facilities handling LHG.

Third, for LNG import/export facilities that must comply with the WSA requirements in § 127.007, the Coast Guard is requiring these facilities to provide information at the time the WSA is submitted regarding the nation of registry for vessels transporting LNG that are reasonably anticipated to be servicing the facilities, and the nationality or citizenship of officers and crew serving on board those vessels. The Coast Guard is making this change to assist in meeting obligations under section 304(c)(2) of the Coast Guard and Maritime Transportation Act of 2006. 12 This statute requires the Coast Guard, when operating as a contributing agency in the FERC shoreside licensing process for an onshore or near-shore LNG terminal, to provide this information to FERC.

The following paragraphs explain additional, minor ways the final rule differs from the proposal on which we received public comments. None of these differences alter how the rule affects regulated entities, and so no additional notice or opportunity to comment on them is necessary.

The Coast Guard will amend the proposed authority citation for 33 CFR part 127 from “Pub. L. 109-241, sec. 304(c)(2)” to “33 U.S.C. 1504(j)(2),” because, on January 1, 2021, that section of the statute was codified at 33 U.S.C. 1504(j)(2). The authority citation also reflects a recent revision to the delegation of authorities from the Secretary to the Coast Guard.

In the NPRM, the Coast Guard proposed to update the existing ASTM F1121-87, Standard Specification for International Shore Connections for Marine Fire Applications, by replacing the Reapproved 2010 edition with the Reapproved 2015 edition. Since publication of the NPRM, the Coast Guard learned that ASTM published ASTM F1121-87 (Reapproved in 2019) in January 2020 without change. The substantive content in the ASTM F1121-87 (Reapproved 2019) remains the same as the Reapproved 2010 and Reapproved 2015 editions. ASTM F1121-87 (Reapproved 2019) is the publication most readily available to the public. Accordingly, this final rule references the ASTM F1121-87 (Reapproved 2019) in §§ 127.003(c)(2), 127.611, and 127.1511.

Additionally, in the NPRM, the Coast Guard proposed to update the American Society of Mechanical Engineers (ASME) ASME B31.3-1993 standard by replacing it with the ASME B31.3-2018. Since publication of the NPRM, the Coast Guard learned that ASME issued ASME B31.3-2020 on June 18, 2021. As a result, the Coast Guard is incorporating the latest edition of this standard in the final rule to ensure that piping systems used on waterfront facilities handling LHG are designed and constructed in accordance with ASME B31.3-2020. This standard is a technical engineering standard used by design engineers to ensure that piping systems are safe for use with hazardous liquids under pressure. Changes between the 2018 and 2020 editions include both minor editorial corrections as well as technical changes associated with stress calculations and material selections. The changes between editions have no cost impact on owners and operators of waterfront facilities handling LHG, but rather affect the methods and considerations used by design engineers to evaluate materials and calculate stress levels in piping systems. This final rule references ASME B31.3-2020 in §§ 127.003(b)(2) and 127.1101(a).

In the NPRM, the Coast Guard proposed to update the existing ASME B16.5 standard by replacing the 1992 edition with the 2017 edition. Since publication of the NPRM, the Coast Guard learned that ASME issued ASME B16.5-2020 on January 29, 2021. The regulations in § 127.1102(a)(4)(ii) require that each hose within the marine transfer area for LHG used for the transfer of LHG or its vapors to or from a vessel must meet the flange requirements contained in ASME B16.5. This standard is a technical standard used by designers and manufacturers and has no impact on facility owners and operators. Each new edition of this standard has a table in the front of the document that identifies the changes made to the edition. After evaluating the extent of the changes to ASME B16.5-2020, the Coast Guard determined the changes deal with such things as stress calculations, new materials, and other technical items, which have no direct cost to owners and operators of LNG fuel facilities. Incorporating the latest edition available will ensure that facilities constructed after the final rule is published will be using the most recent industry standards when they are designing and constructing their transfer hose systems. Accordingly, in this final rule, reference to ASME B16.5-2020 is made in §§ 127.003(b)(1) and 127.1102(a)(4)(ii).

In the NPRM, the Coast Guard proposed new paragraph (g) of § 127.007 to require an owner or operator intending to build a new LNG facility to submit the LOI no later than the date that the owner or operator files a pre-filing request with FERC under 18 CFR 153 or 157, and include the nation of registry for, and the nationality or citizenship of officers and crew serving on board, vessels transporting natural gas that are reasonably anticipated to be servicing the LNG facility. During review of the regulatory text, we realized that it is best to include this text in existing paragraph (a), which contains the requirements for submitting an LOI to the COTP no later than the date that the owner or operator files a pre-filing request with FERC under 18 CFR parts 153 and 157. Therefore, we are moving the text from proposed new paragraph (g) to existing paragraph (a)(1).

Because we are not finalizing the change we proposed in new paragraph (g), existing paragraphs (g) and (h) do not need to be redesignated as paragraphs (h) and (i). Therefore, new paragraph (j) is being redesignated as new paragraph (i).

Section 127.003 of the final rule incorporates by reference 14 standards. Under 5 U.S.C. 552(a) and 1 CFR part 51, a publication is eligible for incorporation by reference if it meets Office of the Federal Register policies and is reasonably available to and usable by the class of persons affected. Regulations in part 51 require that agencies discuss, in the final rule, ways that the materials the agency incorporates by reference are reasonably available, to interested parties and how interested parties can obtain the materials. In addition, the preamble to the final rule must summarize the material.

In accordance with the OFR's requirements, section VII.L. of this final rule summarizes the major provisions of the standards that the Coast Guard incorporates by reference into § 127.003. Interested parties can purchase copies of these standards directly from the sources listed in § 127.003, or make arrangements to inspect them at a Coast Guard facility.

The Coast Guard performed the regulatory analysis of this final rule after considering relevant existing statutes and Executive orders.

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

OMB has not designated this final rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis follows.

The following paragraphs explain the impact of the final rule and the alternatives we considered. The Coast Guard received five comment submissions during the 60-day comment period that ended on December 5, 2020. We received one comment on the third alternative that we will address in the alternative section. We received no public comments on the estimated benefits and costs; hence, the methodology employed in the regulatory analysis remains unchanged. However, we have updated the wage rates and other prices to capture changes in these values since the publication of the NPRM. In particular, while the NPRM used 2018 values, this final rule uses 2020 wage rates and prices.

The Coast Guard's authority to address safety and security issues raised by the increased use of LNG by maritime vessels is the basis for this final rule. In this final rule, the Coast Guard is making it easier to conduct an ORA instead of a WSA for certain LNG facilities due to the size and scope of these facilities' operations. An ORA focuses on the safety and security associated with shore-based operations within the marine transfer area, whereas a WSA focuses on the risks and vulnerabilities of the waterway associated with an LNG import/export facility. ORAs and WSAs follow similar procedures for assessing risk, and the Coast Guard determined that it could narrow the scope of the assessment for an LNG fuel facility to focus on operations solely taking place at the facility if LNG tank vessels do not deliver to the facility using the associated waterway.

We estimated the benefits and costs of this final rule against the no-action baseline. We determined that removing the requirements that LNG fuel facilities submit an alternative request and meet with the COTP to conduct an ORA in lieu of a WSA has quantifiable benefits in the form of cost savings. We also determined that updating standards incorporated by reference in this final rule has unquantified benefits. Table 1 of this analysis provides a summary of the affected population, cost savings, unquantified benefits, and no-cost changes of this final rule. We estimate an annualized cost savings to industry of $16,586 (with a 7-percent discount rate), and an annualized cost savings to the government of $700 (with a 7-percent discount rate), for a total net annualized cost savings of $17,287 in 2020 dollars, using a 7-percent discount rate. This is compared to the proposed rule's estimated total net annualized cost savings of $16,843 in 2018 dollars, using a 7-percent discount rate.

As of 2020, there are 12 existing LNG import/export facilities, 3 existing LNG fuel facilities, and 106 existing LHG facilities that are regulated under 33 CFR part 127. No new facilities have been constructed since the publication of the proposed rule. Based on the Coast Guard's Marine Information for Safety and Law Enforcement (MISLE) database regarding activation dates of the 3 existing LNG fuel facilities and the projected activation dates of 1 LNG fuel facility under construction, we estimate that 10 new LNG fuel facilities will be built during the 10-year analysis period, or 1 annually. 14 Using MISLE data on existing LNG import/export facilities, we estimate that 20 new LNG import/export facilities will be built during the 10-year analysis period, or 2 annually. Using MISLE data, we estimate that 30 new LHG facilities will be built during the 10-year analysis period, or 3 annually. However, for the purposes of this analysis, we assume that, on average, each year 3 new LHG facilities will replace 3 retiring LHG facilities for a static total population of 106 facilities. Table 2 presents the projected number of LNG import/export facilities, LNG fuel facilities, and LHG facilities over the 10-year analysis period.

This rule finalizes the three substantive changes proposed in the NPRM to existing regulations that impact different segments of the affected population. First, the final rule modifies current regulations to allow LNG fuel facilities that do not receive LNG from vessels to conduct an ORA instead of the WSA without first obtaining COTP approval per existing § 127.007, which impacts one new LNG fuel facility annually. Second, the final rule updates the technical standards already incorporated by reference in part 127 to reflect the most recent published editions of these standards, which impacts one new LNG fuel facility, two new LNG import/export facilities, and three replacement LHG facilities annually. Third, the final rule requires that LNG import/export facilities must comply with the WSA requirements in § 127.007 to provide information at the time the WSA is submitted regarding the nation of registry for vessels transporting LNG that are reasonably anticipated to be servicing the facilities and the nationality or citizenship of officers and crew serving on board those vessels, which impacts two new LNG import/export facilities annually.

Executive Order (E.O.) 13891, “Promoting the Rule of Law Through Improved Agency Guidance Documents,” issued on October 9, 2019, required each agency to promulgate regulations that “set forth processes and procedures for issuing guidance documents.” 84 FR 55235. On September 21, 2020, the Board issued a final rule, entitled “Guidance Documents,” to implement E.O. 13891. 85 FR 59187. The final rule established 36 CFR part 1155, which created internal procedural requirements governing the issuance, public availability, and modification or withdrawal of Access Board guidance documents.

On January 20, 2021, President Biden issued E.O. 13992, “Revocation of Certain Executive Orders Concerning Federal Regulation,” which, among other things, revokes E.O. 13891. 86 FR 7049. To comply with the new executive order, the Access Board is rescinding its newly-issued guidance procedures codified at 36 CFR part 1155. Nonetheless, the Board intends to retain all Access Board guidance documents in a single location on the agency's website at www.access-board.gov/guidance, as we believe this improves the usability of, and access to, our guidance documents for the public.

The rescinded guidance procedures and this final rule solely address internal matters related to agency management and practices. As such, this rule is exempt from the notice-and-comment process pursuant to the Administrative Procedure Act. See 5 U.S.C. 553(a)(2), 553(b)(3)(A). The original final rule was issued without notice and comment. This rule is also exempt from the requirement in 5 U.S.C. 553(d) that the effective date of a regulation must be at least 30 days after publication in the Federal Register .

This final rule rescinds internal rules of agency procedure only. OMB has determined that the rule is not a significant regulatory action within the meaning of Executive Order 12866.

This final rule is not a major rule within the meaning of the Congressional Review Act. See 5 U.S.C. 801, et seq.

The Regulatory Flexibility Act (RFA) requires Federal agencies to analyze regulatory options that may assist in minimizing any significant impact of a rule on small businesses and small governmental jurisdictions. See 5 U.S.C. 604, 605(b). Because this final rule relates solely to the recission of agency internal procedures and, moreover, is not subject to notice-and-comment rulemaking, the RFA is inapplicable.

The Access Board has analyzed this direct final rule in accordance with the principles and criteria set forth in Executive Order 13132. The Board has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

This final rule does not specify any new collections of information or recordkeeping requirements that require OMB approval under the Paperwork Reduction Act. See 44 U.S.C. 3501 et seq.

The Unfunded Mandates Reform Act of 1995 (codified at 2 U.S.C. 1531 et seq. ) (“UMRA”) generally requires that Federal agencies assess the effects of their discretionary regulatory actions that may result in the expenditure of $100 million (adjusted for inflation) or more in any one year by the private sector, or by State, local, and tribal governments in the aggregate. Because this direct final rule is being issued under the good cause exception in the Administrative Procedure Act section 553(b)(B), UMRA's analytical requirements are inapplicable. See 2 U.S.C. 1532(a).

For the reasons discussed in the preamble, and under the authority of 29 U.S.C. 792, the Access Board amends 36 CFR chapter XI as follows:

On July 23, 2021 (86 FR 38958), VA published a proposed rule in the Federal Register that would significantly reduce the amount of VA debts referred to the CRA. VA provided a 60-day comment period, which ended on September 21, 2021. VA received nine comments on the proposed rule.

This final rule amends VA's regulation that governs reporting of delinquent debts to CRA. This rulemaking would update the regulation to comply with section 2007 of Public Law 116-315, the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020. Section 2007 amends chapter 53 of title 38, United States Code by adding section 5320 as follows: “The Secretary shall prescribe regulations that establish the minimum amount of a claim or debt, arising from a benefit administered by the Under Secretary for Benefits or Under Secretary for Health, that the Secretary will report to a consumer reporting agency under section 3711 of title 31.”

This amendment will establish the methodology for determining the minimum threshold for reporting certain VA debts to CRA. It will also exclude from the minimum threshold those debts in which there is an indication of fraud, misrepresentation, or bad faith on the part of the debtor.

The Debt Collection Improvement Act of 1996 (DCIA), in part, mandated agencies to report delinquent debts to CRA. 31 U.S.C. 3711(e); Sec. 31001(k), Public Law 104-134, 110 Stat. 1321. The purpose of the DCIA includes maximizing collection of delinquent debts by ensuring quick action to recover debts, use of appropriate collection tools, and minimizing the costs of debt collection. Sec. 31001(b), Public Law 104-134.

Section 5320 of title 38, United States Code, authorizes VA to “establish the minimum amount of a claim or debt, arising from a benefit administered by the Under Secretary for Benefits or Under Secretary for Health, that the Secretary will report to a consumer reporting agency under section 3711 of title 31.” The intent of section 5320 is to lessen negative impact of CRA reports on Veterans.

As explained in more detail below, we amend 38 CFR 1.916 to comply with 38 U.S.C. 5320, to establish a minimum threshold for reporting debts to CRA.

In accordance with 31 U.S.C. 3711(e), the VA Debt Management Center (DMC) is responsible for reporting delinquent debts to CRA. Prior to January 5, 2021, DMC reported an average of 5,000 delinquent Veteran accounts monthly. DMC regularly receives complaints from Veterans whose accounts have been reported to CRA. Common complaints from Veterans include loss of security clearance, inability to obtain approval for home loans or home refinancing, and difficulty securing rental housing. This amendment recognizes that the debts described in 38 U.S.C. 5320 are fundamentally different from consumer debt. Debts arising from a benefit administered by the Under Secretary for Benefits or the Under Secretary for Health may result from a variety of scenarios, including overpayments that are not the fault of the Veteran.

Section 5320 authorizes the Secretary to establish a minimum threshold that will ultimately reduce the number of debts that will be reported to CRA. This will, in turn, decrease the number of Veterans negatively impacted by these reports. The VA's mission is to “fulfill President Lincoln's promise `To care for him who shall have borne the battle, and for his widow, and his orphan' by serving and honoring the men and women who are America's Veterans.” Negative credit reports may cause housing insecurity or job loss, and this result is inconsistent with VA's mission.

We amend 38 CFR 1.916, which sets forth the requirements for reporting delinquent debts to CRA, by inserting paragraphs (c)(1) through (3) to provide the methodology used by the Secretary to establish the minimum threshold. This section would also clarify that the minimum threshold applies only to a debt of an individual that arises from a benefit administered by the Under Secretary for Benefits or Under Secretary for Health.

We add paragraphs (c)(1) through (3) to provide that:

• The Secretary has established a minimum threshold for a debt, arising from a benefit administered by the Under Secretary for Benefits or Under Secretary for Health, that the Secretary will report to a consumer reporting agency under section 3711 of title 31.

• VA will only report those debts that meet the following standards:

○ The debt is classified as currently not collectible. For purposes of this paragraph, the debt is currently not collectible if VA has exhausted available collection efforts, including, as appropriate, referrals for administrative offset and enforced collection;

○ The debt is not owed by an individual who is determined by VA to be catastrophically disabled or has reported to VA a gross household income below the applicable geographically adjusted income limits that would entitle a VA beneficiary to cost-free health care, medications and/or beneficiary travel; and

○ The outstanding debt amount is over $25, or such higher amount VA may from time to time prescribe, in accordance with § 1.921 of the part.

• The minimum threshold set forth in the paragraph will not apply if there is an indication of fraud, misrepresentation, or bad faith on the part of the individual in connection with the debt.

Most commenters were in support of the proposed rule. One commenter stated that the rule will make life easier for Veterans, particularly those who have experienced conditions that require them to receive financial assistance from VA. Another commenter stated the rule demonstrates that VA recognizes these debts are not like consumer debts and result from many sources, including some that are of no fault of the Veteran. The commenter added the proposed rule makes it clear that VA understands that fraudulent and misrepresented claims should not be tolerated, and these are exempt from the proposed rule, as they should be. An additional commenter similarly mentioned that these debts should be recognized differently from consumer debts as many times it is not the fault of the Veteran, and we should be protecting those who serve us.

VA thanks the commenters for their support of the rule. We are not making any changes based on these comments.

One commenter stated there should never be a time Veteran medical debts should be reported to a credit reporting agency. The commenter added that reporting Veterans for non-payment or delinquent status of a medical debt can further add to the mental and emotional turmoil most are already dealing with.

Another commenter suggested expanding reporting restrictions to Veterans in priority groups one through seven. The commenter states the proposed criteria would effectively exclude Veterans in VA health care priority groups four and five but leave several categories of Veterans unprotected. The commenter added Veterans should be as insulated as possible from the negative consequences of having medical debt included in their credit reports and urged the VA to exclude all delinquent debts held by Veterans in priority groups one through seven.

VA acknowledges and understands the concern with reporting medical debts to CRA. However, the proposed rule states VA will only report debts that are considered currently not collectible, the debt is not owed by an individual who is determined catastrophically disabled or has a gross household income below the applicable geographically adjusted income limit, and the outstanding debt amount is over $25. When considering VA medical debts that fall under these conditions, VA is obligated by the Debt Collection Improvement Act (DCIA) to report delinquent debts to the CRA. Through VA's analysis and determination of the referral conditions, the current rule is projected to result in a significant reduction in referred debts while continuing to comply with DCIA. Therefore, VA is not making changes based on these comments.

Several commenters voiced concern over the $25 minimum threshold amount. One commenter suggested the $25 threshold be increased to $1,000 since this would more likely represent a common loan borrowed on the regular marketplace. The commenter also stated a significant amount of Veterans face housing and job insecurity, even with benefits extended to them, so the proposed threshold requirement should be higher.

Another commenter stated by setting a low monetary threshold of $25, it is hard to imagine there will be a significant reduction in debt reporting. The same commenter suggested the VA set the minimum threshold at the 10 percent rating monthly rate.

One commenter suggested to substantially increase the proposed dollar amount from $25 to a higher threshold that would follow various characteristics about Veterans' delinquent debt, such as the median medical collections tradeline provided by Consumer Financial Protection Bureau (CFPB). The commenter further explains the CFPB reports that the addition of any paid or unpaid collections tradeline can significantly reduce a credit score and may even preclude individuals from accessing the credit market altogether.

VA considered several different threshold amounts and after thorough analysis came to the threshold as proposed in the rule which includes four criteria: (1) The debt is classified as currently not collectible; (2) The debt is not owed by an individual who is determined by VA to be catastrophically disabled or has reported to VA a gross household income below the applicable geographically adjusted income limits; (3) The outstanding debt amount is over $25.00; and (4) There is no indication of fraud, misrepresentation, or bad faith on the part of the individual in connection with the debt. Based on the comprehensive impact of the criteria in addition to the dollar amount, VA is not making changes based on these comments.

One commenter suggested expanding its exemptions to all totally and permanently disabled Veterans as an additional way to lessen the impact of CRA reporting. Another commenter stated VA should align the “catastrophically disabled” rule to meet the Department of Education's Total and Permanent Disability Discharge program. The commenter states VA's use of “catastrophically disabled” in the proposed rule places a significantly higher standard even though a rating of 100% or a finding of total disability makes it just as unreasonable to expect the Veteran to be able to repay the debt. One commenter made a similar suggestion that VA should consider expanding its exemptions to all totally and permanently disabled Veterans as an additional way to lessen the impact of CRA reporting.

As stated in the proposed rule, VA will only report debts to CRA if the debt is not owed by an individual who is determined to be catastrophically disabled or has reported to VA a gross household income below the applicable geographically adjusted income limits. Due to the requirements of the DCIA and the Johnny Isakson and David P. Roe, M.D. Veterans Health Care and Benefits Improvement Act of 2020, VA is not making changes based on these comments.

One commenter stated benefits or entitlements for Veterans should not end once they are no longer in the service due to medical issues or disabilities caused by their time in the military. It was also suggested that all Veterans should have a counselor of some sort to inform them of their financial responsibilities in connection with receiving services. Another commenter stated Veterans need more support and access to benefits than what is currently available, and the benefits that are available should not be allowed to negatively impact Veterans on the housing and job market.

VA acknowledges the concerns addressed in these comments; however, the comments do not directly correlate with the proposed rulemaking so VA will not be making any changes based on these comments.

One commenter stated the proposed rule should be revised to exempt, or at a minimum, specifically restrict the reporting of educational overpayment debts to a CRA since most of these debts are caused by error or delay by VA or an institution.

Effective January 5, 2021, Public Law 116-315 section 1019 was enacted, making the school, instead of the student, financially liable for payments such as tuition, fees, and Yellow Ribbon paid directly to a school. Therefore, any educational overpayment debt owed to the VA would be a books and supplies or housing debt. Students currently enrolled in school would have their debts offset by their VA benefits so there should be very few debts classified as currently not collectible in this category. Due to the fact that reporting educational overpayment debts to CRA is a rare occurrence, VA is not making changes based on this comment.

One commenter suggested the VA should prohibit reporting of any debt to a CRA that is being disputed until an individual's dispute or appeal is resolved. The commenter states if the dispute is found in favor of the Veteran, the inaccurate negative credit report may have caused irreversible financial harm, such as the loss of a security clearance, inability to obtain credit for the purchase of a home or vehicle, and inability to secure rental housing.

When an individual timely disputes or appeals his or her VA debt, VA pauses collection on the debt, and the debt would not be referred to CRA until the dispute or appeal has been resolved. The determination of currently not collectible would come well after any resolution of a dispute. VA is not making changes based on this comment.

Based on the rationale set forth in the SUPPLEMENTARY INFORMATION to the proposed rule and in this final rule, VA is adopting the proposed rule with no changes.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The regulations established by this rulemaking do not impose burdens or otherwise regulate the activities of any small entities outside of VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

This rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved this document on December 2, 2021, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 1 as set forth below:

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. chapter 5, generally provides that rules may not take effect until 30 days after they are published in the Federal Register . EPA is issuing this final rule under CAA section 307(d), which states, “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this final rule effective upon signature. The purpose of this APA provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when an agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Thus, APA section 553(d) allows an effective date less than 30 days after publication for any rule that “grants or recognizes an exemption or relieves a restriction” (see 5 U.S.C. 553(d)(1)). An accelerated effective date may also be appropriate for good cause pursuant to APA section 553(d)(3) where an agency can “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105.

EPA has determined that the regulatory amendments to 40 CFR part 80, subpart M, are effective upon signature because they relieve a restriction by extending the 2019-2022 compliance reporting deadlines (and associated attest engagement report deadlines) ahead of the otherwise imminent 2020 and 2021 compliance reporting deadlines (January 31, 2022, and March 31, 2023, respectively), thereby providing obligated parties with additional time to demonstrate compliance. 1 There is additionally good cause for immediate implementation of these provisions such that they are effective in advance of the finalization of two different but related RFS actions, as this will ensure regulated parties have clarity on their present and future RFS obligations before they are required to demonstrate compliance for the years at issue. First, EPA has proposed to deny all pending small refinery exemption (SRE) petitions, including 29 petitions for 2019. 2 There is therefore good cause for this action to be effective upon signature to extend the regulatory deadline for small refineries to comply with their 2019 obligations (previously November 30, 2021) because EPA believes that the most equitable approach for the small refineries that have pending SRE petitions is to take final action on those petitions before small refineries are required to comply with their 2019 obligations. Second, EPA has proposed to revise the 2020 standards as well as to establish the 2021 and 2022 standards. 3 There is good cause for this action to be effective upon signature to relieve regulated entities of the requirement to comply with their 2020 obligations that may be modified by the final 2020-2022 rule; any delay in the effectiveness of this action past January 31, 2022, would result in confusion among regulated entities regarding the timing of their compliance obligations.

Entities potentially affected by this final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline, diesel, and renewable fuels such as ethanol, biodiesel, renewable diesel, and biogas. Potentially affected categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your entity would be affected by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

The RFS regulations establish deadlines for obligated parties with renewable volume obligations (RVOs) to submit annual compliance reports to EPA, and later deadlines for the same parties to submit associated attest engagement reports. Under the previous RFS regulations, obligated parties needed to submit compliance reports for each calendar year by March 31 of the following year and the associated attest engagements by June 1 of the following year. 4 On April 1, 2021, EPA extended the deadlines for small refineries to demonstrate compliance with their 2019 RFS obligations and for all obligated parties to demonstrate compliance with their 2020 RFS obligations. 5 In that same action, we also extended the deadlines for the corresponding attest engagements reports. 6

On November 26, 2021, we again proposed to extend certain reporting deadlines applicable to the 2019 and 2020 compliance years, and additionally to extend certain reporting deadlines for the 2021 compliance year, due to continued delay in the promulgation of the 2021 and 2022 standards and uncertainty around EPA's SRE policy. 7 Following this proposal, on December 14, 2021, we issued the Proposed SRE Denial, proposing to deny all pending SRE petitions. And on December 21, 2021, we proposed the 2020-2022 rule to establish the 2021 and 2022 standards and to modify the 2020 standards.

Table I-1 summarizes the new annual compliance and attest engagement reporting deadlines for the 2019-2022 compliance years that EPA is finalizing. Obligated party commenters generally supported our proposal to extend the compliance deadlines, although some suggested that longer compliance deadline extensions would be helpful. In contrast, biofuels industry groups opposed our proposal and suggested that extensions were not necessary or disruptive to the program. We have considered these comments, and in some cases ( i.e., 2022 deadlines), slightly adjusted our regulations in response to the comments. 8

We are also finalizing a new approach to setting reporting deadlines for obligated parties that will automatically establish the annual compliance and attest engagement reporting deadlines for a given compliance year based on the effective date of the subsequent compliance year's standards, if such a date is after the March 31 regulatory deadline. We discuss this new approach in more detail in section I.D. Comments from both obligated parties and biofuels industry groups generally opposed the automatic extensions of the reporting deadlines. One obligated party commenter stated that an approach for automatic extensions should instead be considered as part of EPA's upcoming “Set Rule” for years 2023 and beyond. Biofuels industry groups stated that creating a system for automatic extensions of the reporting deadlines would disincentivize EPA from promulgating future-year standards on time. We have considered these comments, but we have concluded that having regulations in place that remove one source of uncertainty in the RFS program, were EPA to ever again be late in promulgating standards, is in the best interest of our implementation of the program, as it will render future rulemakings like this one to extend compliance deadlines unnecessary and prevent placing an unnecessary burden on obligated parties to prepare, submit, and then possibly retract and revise compliance reports for deadlines that were later extended. Therefore, we are finalizing our approach as proposed. 9

For small refineries, we are extending the 2019 compliance reporting deadline to the next quarterly reporting deadline after the effective date of the 2021 standards, as proposed. 10 In December 2021, EPA proposed two RFS actions that, if finalized, are likely to affect 2019 compliance for small refineries. First, in the 2020-2022 rule, we proposed to lower the existing 2020 standards. As explained in that proposal, this revision is justified by decreased transportation fuel demand due to the COVID-19 pandemic and due to a potential change in approach to how EPA evaluates SRE petitions compared to the policy that was in place at the time the 2020 standards were finalized. Second, in the Proposed SRE Denial, we proposed to deny all pending SRE petitions currently before EPA. 11 The comment periods for these actions close after both the previous 2019 compliance deadline for small refineries and the previous 2020 compliance deadline for all obligated parties. Because we have not yet made a final decision on the SRE petitions nor finalized changes to the 2020 standards, and given the continued uncertainty surrounding SREs under the RFS program, we are finalizing our proposed extension of the 2019 compliance deadline until the next quarterly reporting deadline after the 2021 standards become effective. 12 We note also that, if we adjust the 2020 standards downward as proposed in the 2020-2022 rule, additional Renewable Identification Numbers (RINs) will likely become available in the marketplace for small refineries to demonstrate compliance with their 2019 obligations.

As an example of the potential timing of this deadline, if the final rule establishing the 2021 standards is published in the Federal Register on May 15, 2022, then the effective date of the 2021 standards would be 60 days later on July 14, 2022, and the 2019 compliance reporting deadline for small refineries would be September 1, 2022, because that would be the next quarterly reporting deadline after the effective date of the 2021 standards. 13 We are tying the 2019 compliance reporting deadline to the effective date of the 2021 standards to allow for the proper sequencing of deadlines such that 2019 compliance will be complete prior to 2020 compliance, and 2020 compliance will be complete prior to 2021 compliance, given the continued delay in promulgating the 2021 standards. As noted earlier, we proposed to revise the 2020 standards in the 2020-2022 rule; thus, the 2020 standards may be revised along with the promulgation of the 2021 standards. The compliance schedule finalized in this action sequences the 2019 and 2020 compliance reporting deadlines to eliminate the need for small refineries to demonstrate compliance with their 2020 obligations before EPA takes a final action on revising the 2020 standards.

On January 24, 2020, the U.S. Court of Appeals for the Tenth Circuit issued a decision in Renewable Fuels Association v. EPA ( RFA ) invalidating on multiple grounds three SREs granted by EPA. 14 The small refineries whose SREs were invalidated by the court in the RFA case sought rehearing from the Tenth Circuit, which was denied on April 7, 2020. 15 Thus, the Tenth Circuit's decision was not final until after the 2019 compliance reporting deadline of March 31, 2020, had already passed. On September 4, 2020, the small refinery intervenors in that suit filed a petition for a writ of certiorari from the U.S. Supreme Court, which was granted on January 8, 2021, in HollyFrontier v. RFA. 16 On June 25, 2021, the Supreme Court issued its opinion in HollyFrontier. 17 In line with this case law, EPA has proposed to deny all of the pending SRE petitions in the Proposed SRE Denial, but as the comment period for that action is still ongoing, EPA has not yet made a final decision and there remains uncertainty about the resolution of the 2019 and other pending SRE petitions at this time.

Therefore, we believe it appropriate to extend the 2019 compliance reporting deadline for small refineries as proposed. Additionally, because we proposed to modify the 2020 standards in the 2020-2022 rule, RIN availability in the market is likely to change due to the two-year “lifespan” of RINs. Obligated parties may satisfy up to 20 percent of their individual 2020 obligations through the use of 2019 RINs. If finalized, our proposed reductions to the 2020 volumes would likely result in additional 2019 RINs being available in the market as parties make adjustments to their RIN holdings. These 2019 RINs could thus become available to small refineries for compliance with their 2019 RFS obligations. We believe that it is appropriate to extend the 2019 compliance reporting deadline only for small refineries because it is only their compliance requirements that have been affected by the recent HollyFrontier and RFA decisions. We are extending this flexibility to all small refineries regardless of whether they have an SRE petition for 2019 pending before EPA. All other obligated parties' compliance obligation deadlines for 2019 have already passed and remain unchanged. 18

We recognize that some small refineries have already submitted their 2019 compliance reports. However, we will allow all small refineries to revisit their 2019 compliance reports before their new 2019 compliance reporting deadline. This means that if a small refinery carried forward a deficit to demonstrate compliance for 2019 by November 30, 2021, but later receives an SRE for 2019 or retires RINs in accordance with its RVOs, that initial decision to carry forward a deficit will not constitute a carry-forward deficit ( i.e., failing to meet the requirement to retire sufficient RINs as described in 40 CFR 80.1427(a)(1)) that would make the small refinery ineligible to do the same for 2020 under 40 CFR 80.1427(b). Small refineries that did not submit a compliance report by November 30, 2021, will need to submit a compliance report to comply with the new 2019 compliance reporting deadline, unless they receive an exemption for 2019.

This deadline extension will apply only to those parties who meet the definition of small refinery in Clean Air Act (CAA) section 211(o)(1)(k) and 40 CFR 80.1441(e)(2)(iii) for the 2019 compliance year. Limiting the extension in this way is appropriate because only small refineries' compliance obligations are affected by the HollyFrontier and RFA opinions and it is consistent with our eligibility requirements regarding SREs. We recognize that, in recent years, we have determined that some parties who have petitioned for SREs have been deemed ineligible by EPA, often due to the refinery's throughput ( i.e., more than 75,000 barrels of crude oil per day) or the nature of their business ( i.e., not a petroleum refinery). The parties that EPA has found ineligible because they do not meet the definition of small refinery in recent years will similarly not be eligible for the 2019 compliance date extension for small refineries.

We note that all of the existing regulatory flexibilities for small refineries—including the ability to satisfy up to 20 percent of their 2019 RVOs using 2018 carryover RINs under 40 CFR 80.1427(a)(5) and the ability to carry forward a deficit from 2019 to 2020 if they did not carry forward a deficit from 2018 under 40 CFR 80.1427(b)—continue to be available to them to demonstrate compliance for 2019 by the new 2019 compliance reporting deadline. This means that small refineries that carried forward a deficit for 2019 in their initial 2019 compliance reports (filed in 2020 or 2021) can reverse that decision in new compliance reports and retain their ability to carry forward a deficit for 2020. It also means that small refineries that did not submit a 2019 compliance report by November 30, 2021, can also carry forward a deficit for 2020. Finally, small refineries can either carry forward a deficit for 2019 (if they did not do so for 2018) or for 2020 (if they do not do so for 2019).

As proposed, we are finalizing the extension of the 2020 compliance reporting deadline for all obligated parties from January 31, 2022, to the next quarterly reporting deadline after the 2019 compliance reporting deadline for small refineries, and the extension of the 2021 compliance reporting deadline for all obligated parties from March 31, 2022, to the next quarterly reporting deadline after the 2020 compliance reporting deadline. Also, in response to comments and in order to ensure proper sequencing of the compliance reporting deadlines, we are extending the 2022 compliance reporting deadline for all obligated parties from March 31, 2023, to the next quarterly reporting deadline after either the effective date of the 2023 standards or the 2021 compliance reporting deadline, whichever is later. We are doing so because EPA has not yet established the 2021 or 2022 standards, including applicable volumes, and we recognize the importance to obligated parties of planning their compliance for a given calendar year by understanding their obligations for the years before and after. 19 This is particularly true given the two-year “lifespan” for RINs, such that 2020 RINs can be used for compliance with either 2020 or 2021 obligations. Compliance obligations for 2021 and 2022 will remain unknown until EPA finalizes the 2021 and 2022 standards. Additionally, EPA has proposed to modify the 2020 standards in the 2020-2022 rule. Delaying the 2020 compliance deadline until after EPA completes its revision of the 2020 standards would avoid unnecessary RIN retirements and corresponding unretirements due to potential modification of the standards. Finally, several commenters noted that it is likely that the 2022 compliance reporting deadline will be affected by the new sequencing of the 2019, 2020, and 2021 compliance reporting deadlines, and recommended that EPA take the same approach to extending the 2022 deadline as for 2020 and 2021. We agree with the commenters and are extending the 2022 compliance reporting deadline as well. However, unlike 2019, 2020, and 2021, for 2022 we have not yet proposed the subsequent year's standards ( i.e., the 2023 standards). Therefore, we are establishing the 2022 compliance reporting deadline as the next quarterly reporting deadline after either the effective date of the 2023 standards or the 2021 compliance reporting deadline, whichever is later. This will ensure that obligated parties know their 2023 obligations before complying with their 2022 obligations, consistent with our approach for 2019-2021.

These deadline extensions will allow proper sequencing of the compliance dates. It will allow small refineries to complete compliance with their 2019 obligations before having to comply with their 2020 RFS obligations. It will also allow for obligated parties to make additional RIN acquisitions, transfers, transactions, and retirements prior to the compliance reporting deadlines by providing at least 60 days between each of the 2019-2022 compliance reporting deadlines.

Using the prior example, if the final rule establishing the 2021 standards has an effective date of July 14, 2022, the 2019 compliance reporting deadline for small refineries would be September 1, 2022. Furthermore, by operation of law, under this scenario, the 2020 compliance reporting deadline for all obligated parties would be December 1, 2022, the 2021 compliance reporting deadline would be March 31, 2023, and the 2022 compliance reporting deadline would be June 1, 2023. 20

We are finalizing the deadline extension for attest engagement reports required under 40 CFR 80.1464(g) for small refineries for 2019 compliance demonstrations and for all obligated parties for 2020 and 2021 compliance demonstrations to the next June 1 annual attest engagement reporting deadline after the applicable 2019-2021 compliance reporting deadline. Also, in response to comments and in order to ensure proper sequencing of the attest engagement reporting deadlines, we are extending the 2022 attest engagement reporting deadline for all obligated parties from June 1, 2023, to the next June 1 annual attest engagement reporting deadline after the 2022 compliance reporting deadline. Using the prior example where the final rule establishing the 2021 standards has an effective date of July 14, 2022, under this approach, the 2019 attest engagement reporting deadline for small refineries and the 2020 and 2021 attest engagement reporting deadline for all obligated parties would be due on June 1, 2023, and the 2022 attest engagement reporting deadline for all obligated parties would be due on June 1, 2024.

We are extending these attest engagement reporting deadlines to ensure enough time for attest auditors to reasonably conduct the 2019, 2020, 2021, and 2022 attest engagement reports. Because the annual attest engagement reporting deadline occurs only once each year (June 1), it is likely that with the new compliance deadline extensions, several of the affected 2019, 2020, 2021, and 2022 attest engagement reports will be due on the same June 1 deadline (either in 2023 or 2024). This change will therefore minimize confusion and maximize efficiency for the attest auditors to conduct and prepare reports.

Table I.C-1 illustrates the example deadlines for the 2019-2022 annual compliance and attest engagement reporting deadlines. Note that these dates do not represent the actual reporting deadlines, which will be based on the effective date of the 2021 standards. We will post the actual reporting deadlines on our reporting deadlines website. 21

For annual compliance and annual attest engagement reporting deadlines for 2023 and beyond, we are finalizing the same approach as that outlined above for 2019-2022. Under this approach, for 2023 and beyond, the annual compliance reporting deadline will be the latest date of the following:

• March 31st of the subsequent calendar year;

• The next quarterly reporting deadline after the effective date of the subsequent compliance year's standards (typically 60 days after publication of the final rule in the Federal Register ); or

• The next quarterly reporting deadline under 40 CFR 80.1451(f)(2) after the annual compliance reporting deadline for the prior compliance year.

Under this approach, which is consistent with the proposal, the annual compliance reporting deadline will also be at least 60 days after publication of the subsequent year's standards in the Federal Register and 60 days after the prior year's compliance reporting deadline. This approach will also avoid EPA having to repeatedly extend compliance reporting deadlines for obligated parties should promulgation of the subsequent year's standards be delayed, and will provide regulatory certainty for obligated parties. We will continue to strive to promulgate the standards for a given compliance year prior to the beginning of that year, and the provisions finalized in this action will apply only in the unusual circumstance where promulgation of the following year's standards are significantly delayed.

Similarly, for 2023 and beyond, we are tying the annual attest engagement reporting deadline to the effective date of the standards in the same manner as finalized for the 2019-2022 annual attest engagement reporting deadlines, which will make it the latest date of the following:

• June 1 of the subsequent calendar year; or

• The next June 1 annual attest engagement reporting deadline after the annual compliance reporting deadline.

Under this approach, annual attest engagement reports will be due at least 60 days after the annual compliance reporting deadline like under the current regulations.

To help communicate the annual compliance and annual attest engagement reporting deadlines, we will also post the annual compliance and annual attest engagement reporting deadlines on our website. 22

We intend for our action in this final rule modifying the compliance reporting deadlines for 2019 for small refineries and 2020, 2021 and 2022 for all obligated parties, as well as the associated annual attest engagement reporting deadlines, to be severable from our modifications of the regulations relating to future compliance deadlines ( i.e., for compliance years 2023 and beyond).

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

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

This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0725 and 2060-0723. This action only makes a one-time change in the compliance dates for certain regulated parties and adjusts the due date of their compliance reports and attest engagements to reflect this change. It does not change the information to be collected or increase the frequency of collection.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rulemaking will not have a significant economic impact on a substantial number of small entities if the rule has no net burden on the small entities subject to the rule. This action extends the RFS compliance and attest engagement reporting deadlines. We do not anticipate that there will be any costs associated with these changes. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments. Requirements for the private sector do not exceed $100 million in any one year.

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

This action does not have tribal implications as specified in Executive Order 13175. This rule only affects RFS obligated parties. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.

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

This action does not involve technical standards.

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does establish an environmental health or safety standard. This action addresses the RFS compliance and attest engagement reporting deadlines and does not impact the standards themselves.

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

Statutory authority for this action comes from section 211(o) of the Clean Air Act, 42 U.S.C. 7545( o ).

For the reasons set forth in the preamble, EPA amends 40 CFR part 80 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0656 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before April 4, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0656, by one of the following methods.

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

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

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

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

In the Federal Register of October 21, 2021 (86 FR 58239) (FRL-8792-04), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11530) filed by Spring Regulatory Sciences (6620 Cypresswood Dr. Suite 250, Spring, TX 77379), on behalf of BASF Corporation (100 Park Avenue, Florham Park, New Jersey 07932). The petition requested that 40 CFR 180.910 and 180.930 be amended by establishing an exemption from the requirement of a tolerance for residues of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts (CAS No. 157627-92-4) for use as an inert ingredient at no more than 30% by weight of the final pesticide formulation. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any public comments.

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

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

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

Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure to alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and republishing the same sections is unnecessary. EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for alkyl alcohol alkoxylate phosphate derivatives (AAAPDs) and alkyl alcohol alkoxylate sulfate derivatives (AAASDs), in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to AAAPDs and AAASDs, and established tolerances for residues of those chemicals. EPA is incorporating previously published sections from that rulemaking as described further in this rulemaking, as they remain unchanged. The past rule EPA cites here covers AAAPDs and AAASDs, which are collectively referred to as alkyl alcohol alkoxylate phosphate and sulfate derivatives (AAAPSDs). Alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts (CAS No. 157627-92-4) is an AAASD that is synthesized as a mixture. Based on the structural and physicochemical similarities between Alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts (CAS No. 157627-92-4) and other AAAPSDs previously assessed by EPA, the data used in the 2009 risk assessment for AAAPSDs is considered appropriate to assess alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts.

The Toxicological Profile of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts remain unchanged from the Toxicological Profile in Unit IV.A. of the July 29, 2009 rulemaking (74 FR 37571) (FRL-8424-6). Refer to that section for a discussion of the Toxicological Profile of AAAPSDs.

The Toxicological Points of Departure/Levels of Concern of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts remain unchanged from the Toxicological Profile in Unit IV.B. of the July 29, 2009 rulemaking (74 FR 37571) (FRL-8424-6). Refer to that section for a discussion of the Toxicological Points of Departure/Levels of Concern of AAAPSDs.

The exposure assessment for alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts remain unchanged from the July 29, 2009 rulemaking and supporting human health risk assessment (D365210, June 8, 2009). Provided that the AAAPSDs are limited to no more than 30% by weight in the final formulation, there were no dietary, residential or aggregate risks of concern for the U.S. population and all subpopulations. No occupational risks of concern were identified when assuming that mixer/loader/applicators will wear chemical-resistant gloves. Based on this human health risk assessment, an exemption from the requirement of a tolerance was established under 40 CFR 180.920 for pre-harvest use of AAAPDs to no more than 30% by weight in pesticide end-use products. This risk assessment also supported the use of the AAASD inert ingredients in pesticide formulations intended for use pre- and post-harvest (40 CFR 180.910) as well as for use on livestock (40 CFR 180.930). Therefore, provided alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts are limited to no more than 30% by weight in the final formulation, there are no dietary, residential or aggregate risks of concern for the U.S. population and all subpopulations. As a result, the Agency has determined that a tolerance is not necessary to protect public health.

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

EPA has not determined that alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts share a common mechanism of toxicity with any other substances, and alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts do not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. EPA continues to conclude that there is reliable data showing that the safety of infants and children would be adequately protected if the Food Quality Protection Act (FQPA) safety factor were reduced from 10x to 1x. The reasons for that decision are articulated in Unit IV.D. of the July 29, 2009 rulemaking.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts. More detailed information about the Agency's analysis can be found at https://www.regulations.gov in the documents titled “Alkyl Alcohol Alkoxylate Phosphate and Sulfate Derivatives (AAAPDs and AAASDs—JITF CST 2 Inert Ingredients). Human Health Risk Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations” and “IN-11530; Petition to Add Alcohols, C10-16, Ethoxylated, Sulfates, Mono(hydroxyethyl)ammonium Salts (CAS No. 157627-92-4) to the Current Tolerance Exemption for Alkyl Alcohol Alkoxylate Phosphate and Sulfate Derivatives (AAAPSDs)” These documents can be found in docket ID numbers EPA-HQ-OPP-2009-0131 and EPA-HQ-OPP-2021-0656.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts in or on any food commodities. EPA is establishing a limitation on the amount of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts that may be used in pesticide formulations. This limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 30% by weight of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts in the final pesticide formulation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts.

EPA finds that exempting residues of alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts from the requirement of a tolerance will be safe. Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 and 180.930 for alcohols, C10-16, ethoxylated, sulfates, mono(hydroxyethyl)ammonium salts when used as an inert ingredient at no more than 30% by weight in pesticide formulations.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0139 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before April 4, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b), although EPA strongly encourages those interested in submitting objections or a hearing request, to submit objections and hearing requests electronically. See Order Urging Electronic Service and Filing (April 10, 2020), https://www.epa.gov/sites/production/files/2020-05/documents/2020-04-10_-_order_urging_electronic_service_and_filing.pdf. At this time, because of the COVID-19 pandemic, the judges and staff of the Office of Administrative Law Judges are working remotely and not able to accept filings or correspondence by courier, personal delivery, or commercial delivery, and the ability to receive filings or correspondence by U.S. Mail is similarly limited. When submitting documents to the U.S. EPA Office of Administrative Law Judges (OALJ), a person should utilize the OALJ e-filing system, at https://yosemite.epa.gov/OA/EAB/EAB-ALJ_upload.nsf.

Although EPA's regulations require submission via U.S. Mail or hand delivery, EPA intends to treat submissions filed via electronic means as properly filed submissions during this time that the Agency continues to maximize telework due to the pandemic; therefore, EPA believes the preference for submission via electronic means will not be prejudicial. If it is impossible for a person to submit documents electronically or receive service electronically, e.g., the person does not have any access to a computer, the person shall so advise OALJ by contacting the Hearing Clerk at (202) 564-6281. If a person is without access to a computer and must file documents by U.S. Mail, the person shall notify the Hearing Clerk every time it files a document in such a manner. The address for mailing documents is U.S. Environmental Protection Agency, Office of Administrative Law Judges, Mail Code 1900R, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0139 by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

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

In the Federal Register of September 22, 2021 (86 FR 52624) (FRL-8792-03), EPA issued a notice pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance exemption petition (PP 0F8841) by Lesaffre Yeast Corporation (c/o Wagner Regulatory Associates, Inc.,) P.O. Box 640, 7217 Lancaster Pike, Suite A, Hockessin, DE 19707. The petition requested that 40 CFR part 180 be amended by establishing an exemption from the requirement of a tolerance for residues of the bactericide and fungicide Saccharomyces cerevisiae strain LAS02 in or on all food commodities. That notice referenced a summary of the petition prepared by the petitioner Lesaffre Yeast Corporation and available in the docket via https://www.regulations.gov. No comments were received on the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement of a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that EPA consider “available information concerning the cumulative effects of [a particular pesticide's] . . . residues and other substances that have a common mechanism of toxicity.”

EPA evaluated the available toxicological and exposure data on Saccharomyces cerevisiae strain LAS02 and considered their validity, completeness, and reliability, as well as the relationship of this information to human risk. A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the document entitled “Human Health Risk Assessment of the New Active Ingredient Saccharomyces cerevisiae strain LAS02 in the Proposed End-use Product EPA File Symbol 91810-G with an Associated Tolerance Exemption Petition” ( Saccharomyces cerevisiae strain LAS02 Human Health Assessment). This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

The available data and rationale supported by existing scientific literature on Saccharomyces cerevisiae strain LAS02 and related Saccharomyces cerevisiae species demonstrate that, with regard to humans, Saccharomyces cerevisiae strain LAS02 is not toxic, pathogenic, or infective via any reasonably foreseeable route of exposure. Humans, including infants and children, are naturally exposed to Saccharomyces cerevisiae as this microorganism is commonly found in many habitats including soil, water, and plant surfaces. Furthermore, humans, including infants and children, have a long history of safe dietary exposure to strains of Saccharomyces cerevisiae through their use in food production, nutritional supplements, and bio-therapeutics. Saccharomyces cerevisiae strain LAS02 is expected to be non-toxic, non-pathogenic, and non-infective based on its genetic similarity to other food-use Saccharomyces cerevisiae strains and its lack of genetic modification.

Although there may be some dietary and non-occupational exposures to pesticide residues of Saccharomyces cerevisiae strain LAS02 when used in accordance with label directions and good agricultural practices, there is not a concern due to the lack of potential for adverse effects. Humans have a long history of dietary exposure of Saccharomyces cerevisiae through its use in food and supplement products and natural exposure through its presence in the environment with no reported significant adverse effects attributable to dietary or non-occupational exposure based on the proposed pesticide uses. Because there are no threshold levels of concern with the toxicity, pathogenicity, or infectivity of Saccharomyces cerevisiae strain LAS02, EPA determined that no additional margin of safety is necessary to protect infants and children as part of the qualitative assessment conducted. Based upon its evaluation in the Saccharomyces cerevisiae strain LAS02 Human Health Assessment, which concludes that there are no risks of concern from aggregate exposure to Saccharomyces cerevisiae strain LAS02, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of Saccharomyces cerevisiae strain LAS02.

An analytical method is not required for Saccharomyces cerevisiae strain LAS02 because EPA is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption from the requirement of a tolerance is established for residues of Saccharomyces cerevisiae strain LAS02 in or on all food commodities when used in accordance with label directions and good agricultural practices.

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

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

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes. As a result, this action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, EPA has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, EPA has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq. ).

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

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

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

Art in U.S. public buildings has a long history, beginning in the 1850s in the U.S. Custom House in New Orleans and continuing at the U.S. Capitol and through the Beaux-Arts era when courthouses and custom houses throughout the Nation were embellished with works of art. In the 1930s, the Great Depression saw the creation of relief programs of the New Deal, including four art programs: The Public Works of Art, which employed artists to create artworks; the Section of Fine Arts (the Section), a Treasury Department effort that awarded commissions to artists through competitions to secure the best quality artwork for installation in public buildings, including Federal buildings, courthouses and post offices; the Treasury Relief Art Project, which employed artists to create paintings and sculptures for existing Federal buildings; and the largest of the programs in scope and numbers of artists employed, the Works Progress Administration, which included the Federal Art Project (FAP). From 1935 to 1943, thousands of artists created over 200,000 works of art, and under the FAP, these artworks were distributed to State and municipal facilities. The New Deal art programs brought art into everyday life in places like post offices, schools, hospitals, and libraries, and showed the importance of art in a democracy. They also built up the public art collection in the U.S. and set the stage for Federal arts funding. The Section also instituted the influential percent-for-art policy idea: 1% of the total building construction cost would be set aside for the building's embellishment. In 1963, GSA started the Fine Arts in New Federal Buildings program, a percent-for-art policy that in 1972 became the Art in Architecture program. This has become a model for many State and municipal community art programs. These artworks enhance the civic meaning of Federal architecture and showcase the vibrancy of American visual arts. Together, the art and architecture of Federal buildings create a lasting cultural legacy. The activities of the Art in Architecture program addressed in this regulation apply only to federally owned facilities under the jurisdiction, custody and control of GSA. New art commissions are included in capital projects authorized by Congress for the construction or major modernization of a building by GSA. Other agencies, such as the U.S. Department of State, operate art programs under separate authorities.

Art programs in Federal buildings not only create a better environment for conducting Government business, they offer a space to represent equitably the diversity of the Nation and to support the arts in communities that have Federal buildings. In accordance with E.O. 13985, “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” issued January 20, 2021, all agencies are directed to “promote [. . .] equitable opportunities” for access to programs and services. Previous definitions of acceptable art styles limited participation in Art in Architecture programs, and thus art projects in the past did not necessarily reflect the diversity of the communities in which they were located. Increasing equitable access for artists of different backgrounds and art styles to participate in these programs is a priority for achieving the goals of E.O. 13985.

GSA reserves one-half of one percent of the estimated construction cost of each new Federal building and selects new prospectus-level modernization or repair and alteration projects to commission project artists. Artist candidates for Art in Architecture commissions are most often identified from GSA's National Artist Registry (Registry), which is a database of artists who have previously submitted digital images of their past portfolio work. Artists may also be identified through other sources, such as from posted solicitations for active procurements. There is no fee to join the Registry, which currently has approximately 1,700 artists and is open to all artists who are U.S. citizens or lawful permanent residents. Instructions for joining the Registry can be found at https://www.gsa.gov/cdnstatic/National_Artist_Registry_Instructions_MAR_2016.pdf and requires the submission of GSA Form 7437, a resume, images of completed artwork, and a script identifying the images.

During building construction, a panel of seven, composed of a GSA art peer from the GSA Commissioner of Public Buildings' National Register of Peer Professionals (distinguished private-sector design and art professionals appointed by the Commissioner of Public Buildings to critique concept designs under development), an art professional from the city or geographic region of the building project, a representative of the building project's primary Federal occupant agency, a community representative, the project's lead design architect, and two GSA representatives, one representing the Public Buildings Service (PBS) Regional Commissioner and the other the Art in Architecture program office, is convened.

The panel meets to discuss opportunities for artists to participate in the building project. Artists who receive Federal commissions work with the project architects and others as members of a design team are invited to participate to ensure that the artworks are meaningfully integrated into the overall project. GSA's current procedures for this program can be found at https://www.gsa.gov/cdnstatic/FINAL%20FOR%20ISSUANCE%20081720%20-%20GSA%20ART%20IN%20ARCHITECTURE%20POLICIES%20AND%20PROCEDURES%20-%20Copy.pdf. These procedures will be updated upon issuance of the final rule. The artist selection board is also referenced in the General Services Acquisition Manual (GSAM) section 536.7003-2, available at https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#GSAM_536-7003-2.

GSA maintains a public website showing the installed artwork commissioned by the Art in Architecture program, which is available at https://www.gsa.gov/fine-arts#/gallery/439.

GSA's intent to modify PBS policies in the final rule will allow the removal of the currently restrictive requirement to prioritize the commissioning of monuments portraying historically significant Americans, significant events in American history or illustrating the ideals upon which the Nation was founded with preference for a realistic style, while soliciting comments to increase civic engagement and enhance the diversity and equity of the Art in Architecture program.

GSA recognizes this program is perhaps not as well known among various communities of artists and, with the publication of this rule, will be partnering with other Federal agencies to highlight the program across communities whose artists have not typically been represented in the Registry. With the publication of this rule, GSA is encouraging artists to apply to the Registry.

Once an artist is chosen to commission a work of art under the procedures in GSAM section 536.70 (available at https://www.acquisition.gov/content/part-536-construction-and-architect-engineer-contracts#id201HD50D01N ), the artist must register in the System for Acquisition Management at https://www.SAM.gov in accordance with Federal Acquisition Regulation (FAR) section 52.204-7 (available at https://www.acquisition.gov/far/part-52#FAR_52_204_7 ).

The elements GSA proposes to rescind are described in detail below together with the policy explanation in each instance. Section 1 of E.O. 14029, “Revocation of Certain Presidential Actions and Technical Amendment,”  1 revoked E.O. 13934, “Building and Rebuilding Monuments to American Heroes.”  2 Section 2 directed GSA to consider rescinding any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing E.O. 13934. Id.

To implement E.O. 13934, GSA issued a final rule on September 25, 2020. 3 GSA has now made a determination, consistent with E.O. 14029, to revoke the regulatory amendments that implemented subsections 4(c), (d) and (e) of E.O. 13934 and restore the policies that were previously contained in part 102-77 of the FMR. 4

Subsection 4(c) of E.O. 13934 directed GSA, to the extent appropriate and consistent with applicable law, to prioritize projects resulting in the installation of a publicly accessible statue of historically significant Americans in communities where a statue depicting a historically significant American was removed or destroyed in 2020.

Subsection 4(d) of E.O. 13934 required GSA, in consultation with the Interagency Task Force for Building and Rebuilding Monuments to American Heroes, to revise its Art in Architecture program regulations to prioritize the commission of works of art that portray historically significant Americans or events of American historical significance or illustrate the ideals upon which our Nation was founded. Priority should be given to public-facing monuments to former Presidents of the United States and to individuals and events relating to the discovery of America, the founding of the United States, and the abolition of slavery. Such works of art should be designed to be appreciated by the general public and by those who use and interact with Federal buildings.

Subsection 4(e) of E.O. 13934 further required, “When a statue or work of art commissioned pursuant to this section is meant to depict a historically significant American, the statue or work of art shall be a lifelike or realistic representation of that person, not an abstract or modernist representation.”

GSA Art in Architecture policy documents outline the specific process by which the Federal Government commissions a work of art for a Federal building. These policy documents detail when an artwork is commissioned, the makeup of the panel that will recommend and review artist candidates, how artists can participate in the program, the criteria for evaluating candidates, and the artist's development of an art concept.

With this rule, §§ 102-77.21, 102-77.22, and 102-77.23 are removed in their entirety to comply with the direction in E.O. 14029 to consider revoking regulations that implemented the provisions of E.O. 13934. The title of part 102-77 remains as “Art in Architecture” instead of “Art-in-Architecture.” GSA has not used the hyphens when referring to this program for more than 15 years, including in publications, online and in correspondence. The change reflects this usage.

GSA is also updating the definitions to be more inclusive of different visual arts styles and removing references to “fine arts,” which may be interpreted by some to exclude certain styles and mediums of art and, therefore, many artists from consideration for commission. The broader definition of “visual arts” better reflects current practice in the arts community and supports the goals of E.O. 13985.

The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies to this final rule.

The Office of Management and Budget (OMB) Control Number 9000-0159, “Information Collection; Central Contractor Registration,” supports FAR Clause 52.204-7, which requires an artist to register in the System for Award Management once they are selected and awarded a contract. GSA does not believe any revisions are needed to this information collection.

GSA requested, and OMB has approved, revisions to OMB Control Number 3090-0274, “Art in Architecture Program National Artist Registry,” which supports the GSA Form 7437 used for additions to the Registry. GSA believes these revisions to the form and the information collection are needed to support the goals of E.O. 13895.

The annual public reporting burden for this collection of information through OMB Control Number 3090-0274, “Art in Architecture Program National Artist Registry” (GSA Form 7437), is estimated based on the time for reviewing and completing the collection of information. GSA is planning to conduct an outreach program to promote the Art in Architecture program and the Registry. This is expected to increase the number of annual responses.

Assumptions for reporting burden:

• GSA estimates 850 responses in the first year of reporting based on half of the current Registry population.

• 0.25 hours per response is estimated by the current time to submit artist information to the Registry. The changes to the form include additions and removals with the net result being no increase in time to complete the form.

• GSA estimates 300 responses per year in the annual updates as estimated by the current annual responses.

The reporting burden for the first year is estimated as follows:

1. Initial Disclosure based on increased outreach by GSA to the artist community

Estimated responses: 850.

Estimated hours per response: 0.25.

Total Initial Response Burden Hours: 212.5.

2. Annual Updates (years two and three)

Estimated annual responses: 300.

Estimated hours per response: 0.25.

Total Update Response Burden Hours: 75.

Public comments are particularly invited on: Whether this collection of information is necessary; whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond through the use of appropriate technological collection techniques or other forms of information technology.

This final rule revokes the regulatory amendments that implemented subsections 4(c), (d) and (e) of E.O. 13934 and restores policies that were previously contained in part 102-77 of the FMR. Accordingly, the only impact from the revocation of E.O. 13934 as effectuated by this final rule is the expansion of the styles of artwork under consideration for commissions within the Art in Architecture program. There are no other changes to the policies surrounding the consideration of artists. The number of new construction and prospectus-level renovation projects requiring an Art in Architecture commission per year depends on the number of prospectus-level new construction and major repairs and alterations projects approved by Congress. The number of commissions and their value was not affected by the implementation of the prior rule nor is it expected to be impacted by this final rule. Historical averages denote an annual rate of 5 Art in Architecture projects per year with an average cost of $482,335 per project.

The only substantive change in procedures due to this final rule is the consideration of all styles of artwork for commissioning. GSA analyzed the associated costs of the prior rule and this final rule and determined there is no additional cost to the public for the operation and composition of members for the Art in Architecture panels. For the model for both the prior rule and this final rule, GSA assumes two small businesses and two large businesses will continue to be members of the panel. For the model, GSA used the lead designer and the art peer remaining as the large businesses and the community representative and the community art representatives as the small businesses. These assumptions were validated by Art in Architecture staff's review of the composition of previous panels.

GSA calculated the total estimated cost for the lead designer, assuming an average hourly rate of $127.69 for a senior principal architect, for this part of the rule to be $10,215 (= 16 hours × $127.69 × 5) each year.

GSA calculated the total estimated cost for the art peer, assuming an average hourly rate of $55.30, for this part of the rule to be $1,106 (= 4 hours × $55.30 × 5) each year.

GSA calculated the total estimated cost for the community representative, assuming an average hourly rate of $68.13, for this part of the rule to be $1,363 (= 4 hours × $68.13 × 5) each year.

GSA calculated the total estimated cost for the community art representative, assuming an average hourly rate of $55.30, for this part of the rule to be $1,106 (= 4 hours × $55.30 × 5) each year.

The cost to the public for the Art in Architecture panels remains the same from the prior rule and this final rule.

To align with the Administration's policies and directives, artists within the Registry will be able to submit their demographic information through the Art in Architecture website. The provision of this additional information is optional and will be used to report on the demographic make-up of participants and their reflection to the Nation as a whole. Artists will also be able to indicate their status as a U.S. citizen and, in a change to the form, a lawful permanent resident. The section on media has been updated to reflect current art practice and specifications on materials have been eliminated. GSA estimated the burden to the current artists to be $11,807 (= 0.25 hours × $27.78 × 1,700) in the second year. GSA estimated the hourly rate of $27.78 for the artists by using the Bureau of Labor Statistics December 2021 average hourly earnings for other services. 5

To support the Administration's policies and directives, new artists will submit their information, including key demographic data points, through the Art in Architecture website. GSA estimated the burden to the new artists to be $5,903 (= 0.25 hours × $27.78 × 850) in the second year. GSA estimated the hourly rate of $27.78 for the artists by using the Bureau of Labor Statistics December 2021 average hourly earnings for other services. 6 GSA estimates the number of submissions will increase by 35% due to the Administration's efforts to heighten awareness of the Registry and motivate artists to register. This will help future assessments of the relationship between U.S. demographic trends and the composition of artists within the Registry.

GSA calculated the estimated number of annual submissions under the prior rule by applying the ratio of estimated annual submissions against the Registry's current population to the number of artists estimated by GSA to be able to be considered for a commission under the prior rule. GSA estimated 31 artists on an annual basis would have submitted information in year 2 of the analysis. Therefore, GSA calculated this cost to be $215 (= 0.25 hours × $27.87 × 31). This final rule results in an incremental cost of $5,688 in year 2 to the public.

To support the Administration's policies and directives, new artists will submit their information, including key demographic data points, through the Art in Architecture website. GSA estimated the burden to the new artists to be $2,084 (= 0.25 hours × $27.78 × 300) in years 3-10. GSA estimated the hourly rate of $27.78 for the artists by using the Bureau of Labor Statistics December 2021 average hourly earnings for other services. 7 GSA estimates the number of submissions will increase due to the Administration's efforts to heighten awareness of the Registry and motivate artists to register. This will help future assessments of the relationship between U.S. demographic trends and the composition of artists within the Registry.

GSA calculated the estimated number of annual submissions under the prior rule by applying the ratio of estimated annual submissions against the Registry's current population to the number of artists estimated by GSA to be able to be considered for a commission under the prior rule. GSA estimated 31 artists on an annual basis would have submitted information in years 3-10 of the analysis. Therefore, GSA calculated this cost to be $215 (= 0.25 hours × $27.87 × 31). This final rule results in an incremental cost of $1,869 per year in years 3-10 to the public.

The following is a summary of the estimated costs to the public calculated within a 10-year time horizon at a 3 and 7 percent discount rate, respectively:

Below is a list of activities related to regulatory familiarization that GSA anticipates will occur.

As noted above, GSA gathered details of its Art in Architecture projects over the past five years. It was determined an average of 5 projects per year occur with an average cost of $482,335 per project. Therefore, GSA calculated the total estimated cost for this part of the rule to be $2,411,675 (= 5 × $482,335) each year. However, the difference in estimated cost between the prior rule and this final rule is negligible since these commissions were scheduled to be awarded under the prior rule, but to fewer potential artists. This final rule does not change the amount of funding allocated for each project, the number of commissions or the cost of projects and commissions.

GSA calculates it will take one hour in the first year to review and train the workforce on the requirements of this final rule. GSA estimates this cost by multiplying the time required to train the workforce (Art in Architecture staff estimated their workforce to be 18 individuals) by the estimated compensation, on average, of a GS-13. Therefore, GSA calculated the total estimated cost for this part of the rule to be $1,227 (= 1 hour × $68.18 × 18).

GSA calculates it will take eight hours in the first year to create material to train the workforce on the requirements of this final rule. GSA estimates this cost by multiplying the time required to develop the material by the estimated compensation, on average, of a GS-14. Therefore, GSA calculated the total estimated cost for this part of the rule to be $644 (= 8 hours × $80.56 × 1).

For each commissioned work of art, a panel composed of art professionals, civic and community representatives, the project's lead design architect, GSA staff, and Federal occupant agency representatives will meet to discuss opportunities for artists to participate in the building project.

GSA calculated the total estimated cost for the Art in Architecture staff to meet the requirements of this final rule for this part of the rule to be $128,896 (= 5 × $80.56 × 320 hours) each year. GSA estimates this cost by multiplying the number of projects by the number of hours per project by the estimated compensation, on average, of a GS-14.

GSA calculated the total estimated cost for regional staff to meet the requirements of this final rule for this part of the rule to be $34,090 (= 5 × $68.18 × 100 hours) each year. GSA estimates this cost by multiplying the number of projects by the number of hours per project by the estimated compensation, on average, of a GS-13.

GSA calculated the total estimated cost for the United States District Court judges to meet the requirements of this final rule for this part of the rule to be $4,582 (= 2 × $143.20 × 16 hours) each year. GSA estimates this cost by multiplying the number of projects by the number of hours per project by the estimated compensation, on average, of a U.S. District Court judge.

GSA calculated the total estimated cost for the Federal agency representative to meet the requirements of this final rule for this part of the rule to be $2,578 (= 2 × $80.56 × 16 hours) each year. GSA estimates this cost by multiplying the number of projects by the number of hours per project by the estimated compensation, on average, of a GS-14.

GSA calculated the total estimated cost for the Federal occupant agency representative to meet the requirements of this final rule for this part of the rule to be $1,516 (= 1 × $94.76 × 16 hours) each year. GSA estimates this cost by multiplying the number of projects by the number of hours per project by the estimated compensation, on average, of a GS-15.

GSA calculated the total estimated cost for GSA staff to review demographic information submitted to the Registry on an annual basis to be $1,150,542 (=2,550   8 × $68.18 × .5 hours) for years 2-10 for the analysis. GSA estimated the data to be reviewed by a GS-13 based on historical GSA staff responsibilities.

GSA calculated the total estimated cost for GSA staff to compile a report of the submitted and reviewed demographic information from the Registry on an annual basis to be $80.56 (= 1 × $80.56 × 1 hour) each year. GSA estimated the report to be compiled by a GS-14, as the staff member issuing the report would be a senior staff member based on historical GSA staff responsibilities.

GSA calculated the total estimated cost for GSA staff to review available technologies to help automate data collection and production of artist demographics to be $4,131 (= 1 × $57.33 × 8 hours). GSA estimated the review will be completed by a GS-12 based on historical GSA staff responsibilities.

The estimated incremental effect of the change contemplated by this final rule is that the number of artists being considered would increase in year one from approximately 200 artists whose art would realistically depict a historically significant American to 2,550 artists, with incremental increases averaging 300 artists per year in the subsequent years. This effect results in an incremental cost for the government to receive and process additional submissions to the Registry. GSA compared the estimated incremental effects and costs of this final rule against the estimated costs of the prior rule over a 10-year analysis and determined this final rule would increase costs to the Federal Government by $995,225. 9

It is assumed the government incurs a cost savings only in the first year after publication totaling $14,044. 10 This estimated cost savings is generated by a reduction of time spent on policies and procedures by Art in Architecture staff and Regional Fine Arts Officers in the first year due to the implementation of this final rule. Due to the expanded data collection within the Registry and review of collected data in years 2-10, the government does not estimate to incur a cost savings in any year after the first year. Each year after the first year of publication, the annual cost to the government is assumed to be $112,141. 11 The following is a summary of the estimated costs calculated for a 10-year time horizon at a 3 and 7 percent discount rate, respectively:

Art is a vital tool for civic engagement and participation, building social capital and encouraging civil discourse. It can be a critical investment in placemaking that engenders community pride and enables community development. Due to the prior rule's more restrictive requirements in terms of content and style of art to depict a person or event of historical significance realistically, only 201 artists met these requirements. With this final rule, the pool of artists will expand to all 1,700 members of the Registry regardless of style or medium used. The removal of the content and style requirements increases the opportunity for all artists to participate in the program and be considered for commissions. With GSA's additional outreach, which will begin with publication of this rule, GSA believes the number of artists within the Registry will grow each year, thereby furthering GSA's ability to select a style of art representative of the community in which it will be commissioned.

Therefore, this final rule will align the Registry and the Art in Architecture program with the goals of E.O. 13985. It will increase GSA's ability to connect with local communities and reflect the values, culture and composition of an area in the commissioned art. It will also allow for a potential expansion of professional opportunities for a more diverse set of artists, if their work is chosen.

The overall total additional undiscounted cost of this final rule is estimated to be $1,027,672 over a ten-year period including the estimated cost savings in the first year.

The preferred alternative is the process laid out in the analysis above. However, GSA has analyzed three alternatives to the preferred process.

Alternative 1: GSA could decide to take no regulatory action. No action from the government would lead to fewer artists and artistic styles considered for a commission and would be inconsistent with the President's direction to agencies in E.O. 13985. The public and Government would not incur the additional costs associated with this final rule; however, the benefits of an increased Registry outweigh the incremental costs. As a result, GSA rejected this alternative.

Alternative 2: GSA could take limited regulatory action based on the policy direction of E.O. 13985. However, this alternative would limit GSA's ability to select any medium of art and would limit the expected impact to communities and public buildings, which would not fully be consistent with the President's direction to agencies in E.O.13985. The public and Government would incur a lower cost associated with this final rule; however, the benefits of an increased Registry outweigh the incremental costs. As a result, GSA rejected this alternative.

Alternative 3: GSA could create its own standards in addition to the policy direction of E.O. 13985 to commission works of art. However, this alternative would possibly produce a burden to the Government and the community due to regulatory requirements. It is assumed the costs associated with this alternative would result in a greater incremental cost to the public and Government than what is deemed necessary by GSA to issue this final rule. As a result, GSA rejected this alternative.

This rulemaking is exempt from the advance notice-and-comment and delayed-effective-date requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2), because this rulemaking relates to agency management or personnel or to public property, loans, grants, benefits, or contracts. This rulemaking relates to GSA's agency management because it only involves the internal processes of the Art in Architecture program, which applies only to GSA or Federal agencies acting under a delegation of authority from GSA. This rulemaking also relates to public property because it applies to federally owned facilities under the jurisdiction, custody and control of GSA and the work of art itself is government-owned.

In addition to the changes discussed with this final rule, GSA requests comment on the following questions to better understand how the Art in Architecture program can promote the goals articulated in E.O. 13985, as well as promoting civic engagement and participation and democratic values, and advancing social ties and economic development at the community level.

GSA is asking for public input on what steps the GSA Art in Architecture program can take that the agency is not already taking to:

• Consider the interests and perspectives of and proactively engage underserved communities during the commissioning process for a work of art?

• Increase the number and diversity of artists who are considered and shortlisted when commissioning a work of art?

• Understand the local community so that its interests and diversity can be taken into account in the commissioning process for a work of art?

• Quantify the benefits from increased diversity and equity of the artists considered for the Art in Architecture program?

• Enable the commissioned work of art to be accessed by all members of the community?

• Conduct outreach efforts to identify artists who are veterans, who are small or disadvantaged business owners, or who have a disability to encourage them to join the Registry?

• Strengthen public participation engagement of the local community in the commissioning process for a work of art?

• Define “community” for the purpose of reflecting the people and cultural aspects of a place in the commissioned art?

• Ensure that the commission reflects the community in which it will be located?

• Modify the information collected in the Registry beyond what is discussed in this rule to enable GSA to measure how the program aligns with the priorities of equity and inclusion of underserved communities?

• Actively promote the Registry to remove barriers for the widest possible spectrum of eligible artists ( i.e., U.S. citizens and lawful permanent residents) to learn about and join the Registry and be considered for commissions?

• Create more learning and professional opportunities for emerging artists through commissions or other steps?

• Take advantage of the expertise and capacities of other Federal agencies, including the National Endowment for the Arts, and State and local arts agencies in implementing the Art in Architecture program?

• Ensure the Art in Architecture program advances democratic values and strengthens the experience of democracy and inclusion in America?

To understand the exact scope of the impact of this final rule and the effect of this impact, GSA welcomes input on the following assumptions and questions regarding the anticipated impact on affected parties.

Assumption 1: GSA estimates that this final rule will not impact the commissioning of works of art. If this assumption is not correct, are there artists to which this rule will cause significant impact or disruption?

Assumption 2: The impact of this rule will not significantly change the way GSA interacts with the Registry. If this assumption is not correct, to what extent will this final rule, specifically the revised elements of part 102-77 of the FMR, change how GSA interacts with the Registry?

E.O.s 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, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule is a significant regulatory action and, therefore, was subject to review under subsection 6(b) of E.O. 12866, “Regulatory Planning and Review,” dated September 30, 1993.

This final rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. A major rule under the CRA cannot take effect until 60 days after it is published in the Federal Register . The OMB Office of Information and Regulatory Affairs has determined that this final rule is not a “major rule” as defined by 5 U.S.C. 804(2).

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to agency management or personnel.

In Section 8102(a) of the SUPPORT Act, 1 Congress mandated FRA (as the Secretary of Transportation's delegate) include “all employees of railroad carriers who perform mechanical activities” (MECH employee(s)) in its alcohol and drug regulation, 49 CFR part 219. In section 8102(b) of the Act, Congress directed FRA to define mechanical activities for purposes of part 219 coverage. On January 8, 2021, FRA published a Notice of Proposed Rulemaking (NPRM) in response to this mandate. 2 FRA received comments on the NPRM from four organizations (including one joint filing) and 12 individuals. This final rule addresses those comments and amends part 219, as proposed, by defining a MECH employee as any employee who, on behalf of a railroad, performs mechanical tests or inspections required by the following FRA regulations: Railroad Freight Car Safety Standards (49 CFR part 215), Rear End Marking Device—Passenger, Commuter and Freight Trains (49 CFR part 221), Railroad Locomotive Safety Standards (49 CFR part 229), Steam Locomotive Inspection and Maintenance Standards (49 CFR part 230), Brake System Safety Standards for Freight and Other Non-Passenger Trains and Equipment; End-of-Train Devices (49 CFR part 232), and Passenger Equipment Safety Standards (49 CFR part 238). In addition, as discussed in the Section-by-Section Analysis, the definition also includes any such employee who performs mechanical tests or inspections required by the Texas Central Railroad High-Speed Rail Safety Standards (49 CFR part 299). Defining a MECH employee as one who performs these required tests or inspections properly limits part 219 coverage to those mechanical department employees who perform functions that most directly affect safety. An employee who conducts tests or inspections provides the last safety check on railroad rolling equipment before its operation. Final tests or inspections, if not performed or if performed improperly, could lead to single points of failure in the mechanical safety process. An employee who performs a Federally mandated “last look” at the equipment, whether or not it has undergone any repair, maintenance, or servicing work, is responsible for ensuring that the equipment is compliant with Federal regulations and safe for use.

By amending the term “regulated employee” to include MECH employees, FRA is making them subject to all part 219 prohibitions and testing (pre-employment, random, post-accident toxicological (PAT), reasonable suspicion, return-to-duty, and follow-up). Railroads, contractors, and subcontractors must comply with the same reporting, recordkeeping, and referral requirements for MECH employees, as for covered service and MOW employees.

In addition to changes to part 219 directly related to the addition of MECH employees, this final rule also makes other changes to part 219, as proposed in the NPRM.

FRA has analyzed the economic impact of this final rule. FRA estimated the costs associated with random testing, reasonable cause/reasonable suspicion testing, pre-employment drug testing, and Government administrative costs. 3 As shown in the following table, over the 10-year period of analysis, the final rule will result in total costs of approximately $10.7 million (Present Value (PV) 7%).

The benefits of the final rule will come from reducing the number of mechanical employees who have a substance use disorder (SUD). FRA has determined that testing programs provide a deterrent effect to the misuse of alcohol and use of illicit drugs. This deterrence will reduce the number of existing mechanical employees with an SUD. Employee SUDs have an array of associated costs, including lost productivity, absenteeism, low morale, increased illness, and accidents. The deterrent effect of testing will induce mechanical employees with an SUD to modify their behavior with regard to the misuse of alcohol and/or use of illicit drugs. Pre-employment drug testing will prevent individuals with SUDs from being hired as mechanical employees. Random testing and reasonable cause/suspicion testing will allow railroads to identify mechanical employees with SUDs so that they can address those safety issues through rehabilitation or termination of employment.

As shown in the following table, over a 10-year period of analysis, the final rule will result in total benefits of $41.0 million (PV 7%).

On July 22, 2021, we published in the Federal Register (86 FR 38570) a final rule that was issued to comply with a court order to vacate Unit 6 and the New Mexico portion of Unit 5 from the March 5, 2014, final rule designating approximately 764,207 acres (309,263 hectares) of land in New Mexico and Arizona as critical habitat for the jaguar under the Act (16 U.S.C. 1531 et seq. ). In two places in the preamble of the July 22, 2021, final rule, we erroneously stated that the final rule removes approximately 110,438 acres (44,693 hectares) of land within New Mexico from the designation of critical habitat for the jaguar. This document corrects the preamble to state that the July 22, 2021, final rule removes approximately 59,286 acres (23,993 hectares) of land within New Mexico from the designation of critical habitat for the jaguar. We are not making any corrections to the maps we codified in the July 22, 2021, final rule; they are correct as published (86 FR 38570, July 22, 2021, pp. 86 FR 38571-38572).

Therefore, in the final rule published at 86 FR 38570, in the July 22, 2021, issue of the Federal Register , we make the following corrections to the preamble:

1. On page 38570 in the third column, second line, we remove the words “110,438 acres (44,693 hectares)” and add in their place the words “59,286 acres (23,993 hectares)”.

2. On page 38571 in the first column, in the first sentence under Effects of the Rule, we remove the words “110,438 acres (44,693 hectares)” and add in their place the words “59,286 acres (23,993 hectares)”.

We have determined, pursuant to 5 U.S.C. 553(b)(3)(B), that prior notice and opportunity for public comment are impractical and unnecessary. Public comment could not inform this correction process in any meaningful way. We have further determined that, under 5 U.S.C. 553(d)(3), the agency has good cause to make this rule effective upon publication, as it is important for the proper administration of our programs for our rulemaking documents published in the Federal Register to be complete and accurate.

The authority for this action is the Endangered Species Act (16 U.S.C. 1531 et seq. )

The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission jointly manage the Atlantic Bluefish Fishery Management Plan (FMP). The FMP requires the specification of an acceptable biological catch (ABC), commercial and recreational annual catch limits (ACL), commercial and recreational annual catch targets (ACT), a commercial quota, a recreational harvest limit (RHL), and any other management measures, for up to 3 years at a time. This action implements bluefish specifications for the 2022 fishing year, and projects specifications for 2023, based on Council and Commission recommendations.

These specifications incorporate several revised measures from Amendment 7 to the FMP (86 FR 66977; November 24, 2021), including the rebuilding plan for the stock, and phased-in reallocation of commercial quota among the states in the management unit. There was also an overage of the fishery ACL caused by recreational catch in 2020, which will be accounted for through a pound-for-pound payback from the 2022 recreational ACT according to the accountability measures (AM) defined in the FMP (50 CFR 648.163(d)(1)). There is no sector transfer in these specifications because the stock is overfished. This action contains no changes to the recreational management measures because the expected recreational landings under the existing measures are likely to fully achieve the RHL.

The proposed rule for this action published in the Federal Register on December 2, 2021 (86 FR 68456), and comments were accepted through December 17, 2021. NMFS received two comments from the public, and no changes were made to the final rule as a result of those comments (see Comments and Responses for additional detail). Additional background information regarding the development of these specifications was provided in the proposed rule and is not repeated here.

This action implements the Council and Commission's recommended 2022 and projected 2023 bluefish catch specifications, as outlined in the proposed rule. These specifications increase the 2022 fishery ABC by about 55 percent, and raise the 2022 commercial quota and RHL by 28 percent and 67 percent, respectively (Table 1).

The final commercial quota is allocated among the states from Maine to Florida based on percent shares specified in the FMP; however, Amendment 7 reallocated those percent shares, to be phased in over 7 years. Table 2 provides the commercial state allocations for 2022 and 2023 based on the final coastwide commercial quotas for each year, and the applicable reallocated changes to the percent shares specified in Amendment 7. No states exceeded their allocated quota in 2020, or are projected to do so in 2021; therefore, no accountability measures for the commercial fishery are required for the 2022 fishing year.

As previously mentioned, this action makes no changes to the recreational management measures, as the expected recreational landings of 13.58 million pounds (6,160 metric tons) under the existing measures are likely to achieve the proposed RHL. The specifications for 2023 are projected based on the available data and the second year of the rebuilding plan model. However, there is a research track stock assessment scheduled for bluefish in 2022. The Council will review the projected 2023 specifications in light of any new information, including this assessment, to determine if changes need to be made prior to their implementation. NMFS will publish a notification prior to the 2023 fishing year to confirm these limits as projected or propose any necessary changes.

The public comment period for the proposed rule ended on December 17, 2021, and NMFS received two comments from the public. One commenter stated that beach replenishment efforts are destroying coastal habitats and disrupting the coastal food chain, and this is negatively affecting the bluefish stock and biomass numbers; especially inshore where most of the recreational fishery occurs. This action affects the annual catch limits and quotas in the bluefish fishery. Environmental impacts and habitat conditions are analyzed in the EA for this action. The second commenter supported the action, and is in favor of overall increased quotas for the bluefish fishery. They commented that Florida should receive a higher percentage of the commercial quota, but support these specifications overall. State commercial quota allocations were the subject of a recent amendment to the Bluefish FMP, and changes to these allocations are beyond the scope of this specifications action. No changes to the proposed specifications were made as a result of these comments.

There are no substantive changes from the proposed rule.

Pursuant to section 304(b)(3) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator, Greater Atlantic Region, has determined that these final specifications are necessary for the conservation and management of the Atlantic bluefish fishery, and that they are consistent with the Atlantic Bluefish FMP, the Magnuson-Stevens Act, and other applicable law.

The Assistant Administrator for Fisheries, NOAA, also finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this rule to ensure that the final specifications are in place as close as practicable to the start of the 2022 bluefish fishing year, which began on January 1, 2022. A delay in effectiveness well beyond the start of this fishing year would be contrary to the public interest as it could create confusion in the bluefish industry, and compromise the effectiveness of the new measures to reallocate commercial quota among the states. Because the commercial quota is increasing, a delay too long into the new fishing year could also cause potential economic harm to the commercial bluefish fishery through lost opportunity to fish under the higher limits.

Furthermore, this rule is being issued at the earliest possible date. These specifications include several changes that were implemented by Amendment 7 to the Bluefish FMP, and were delayed until after the final rule for the amendment published on November 24, 2021 (86 FR 66977). The proposed rule for these specifications published on December 2, 2021, with a 15-day comment period ending December 17, 2021. Because of these administrative delays, this final rule will not be effective for the January 1 start of the fishing year; however, a 30-day delay in effectiveness would postpone implementation of final 2022 specifications well into the fishing year, which is contrary to the public interest. State agencies also use commercially-allocated quotas to set annual state management measures. The longer these specifications are delayed, the longer it will take for some states to implement their respective regulations.

Finally, regulated parties do not require any additional time to come into compliance with this rule, and thus, a 30-day delay would not benefit the regulated community in this regard. Unlike actions that require an adjustment period, bluefish fishery participants will not have to purchase new equipment or otherwise expend time or money to comply with these management measures. Rather, complying with this final rule simply means adhering to the new catch limits set for the fishing year. Fishery stakeholders have also been involved in the development of this action and are anticipating this rule. Therefore, NMFS finds good cause not to delay this final rule's effectiveness, consistent with 5 U.S.C. 553(d)(3).

For these reasons, NMFS finds that a 30-day delay in effectiveness would be contrary to the public interest, and therefore, waives the requirement consistent with 5 U.S.C. 553(d)(1) and (3). As a result, there is good cause to implement this action on February 2, 2022.

This final rule is exempt from review under Executive Order 12866 because the action contains no implementing regulations.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification and the initial certification remains unchanged. As a result, a final regulatory flexibility analysis is not required and none was prepared.

This final rule does not duplicate, conflict, or overlap with any existing Federal rules.

This action contains no information collection requirements under the Paperwork Reduction Act of 1995.