The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0464; Project Identifier MCAI-2021-01290-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Dan Rodina, Aerospace Engineer, Large Aircraft Section, International Validation Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225; email dan.rodina@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0260, dated November 18, 2021 (EASA AD 2021-0260) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A350-941 and -1041 airplanes. This proposed AD was prompted by a report of inadvertent AFS altitude changes on the FCU; an investigation revealed that, depending on the ring selection, failure of the ALT knob on the FCU could change the target altitude, by either by 100 or 1,000 feet. The erroneous altitude shows in the AFS cockpit panel display and in the primary flight display of the FCU, but the flightcrew might not notice. Further investigation revealed that the cause was an incorrect manufacturing process of the ALT knob encoder. The FAA is proposing this AD to address erroneous target altitude during descent, climb, or go-around, which could result in an unexpected vertical trajectory deviation and loss of correct situational awareness that could potentially result in uncontrolled impact with the ground. See the MCAI for additional background information.

EASA AD 2021-0260 describes procedures for revising the existing AFM to include a procedure on the use of the AFS control panel ALT knob and replacing any affected FCU having part numbers (P/N) C31006AC01 or C31006AB01 with a serviceable FCU having P/N C31006AD01. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0260 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD. This proposed AD would also prohibit the installation of affected parts.

EASA AD 2021-0260 requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised AFM would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0260 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0260 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0260 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0260. Service information required by EASA AD 2021-0260 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0464 after the FAA final rule is published.

The FAA estimates that this proposed AD would affect 27 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0463; Project Identifier MCAI-2021-00895-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Vladimir Ulyanov, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3229; email vladimir.ulyanov@faa.gov. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0183R1, dated September 20, 2021 (EASA AD 2021-0183R1) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes; Model A320-211, -212, -214, -215, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes. Model A320-215 airplanes are not certificated by the FAA and are not included on the U.S. type certificate data sheet; this AD therefore does not include those airplanes in the applicability.

This proposed AD was prompted by a report that damage (including delamination of the work deck, and corroded and cracked retainer blocks) was found during inspection of certain galleys. The FAA is proposing this AD to detect and correct damage that could affect the galley's capability to hold the trolley under emergency landing loads, which could lead to trolley detachment, possibly resulting in blocking of an escape path during an emergency exit. See the MCAI for additional background information.

EASA AD 2021-0183R1 specifies procedures for repetitive general visual inspections of certain galleys for discrepancies including corrosion of trolley retainer aluminum blocks and delamination of upper panel of trolley compartment, and corrective action. Corrective actions include repeating the inspection at an earlier interval, repairing the trolley compartment upper panel, and limiting trolley weight. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This proposed AD would require accomplishing the actions specified in EASA AD 2021-0183R1 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD. This proposed AD would also limit the installation of affected parts under certain conditions.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2021-0183R1 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2021-0183R1 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0183R1 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0183R1. Service information required by EASA AD 2021-0183R1 for compliance will be available at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0463 after the FAA final rule is published.

The FAA considers this proposed AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this proposed AD would affect 1,425 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The FAA has no way of determining the number of aircraft that might need these on-condition actions:

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

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

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

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

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

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

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On January 8, 2020, the New Hampshire Department of Environmental Services (NH DES) submitted a revision of New Hampshire Code of Administrative Rules Chapter Env-A 1000 (Prevention, Abatement, and Control of Open Source Air Pollution) to EPA for approval into the New Hampshire SIP. NH DES withdrew the January 8, 2020, submission of Env-A 1000 to the SIP on July 19, 2021. On August 19, 2021, NH DES submitted another revision of Env-A 1000 to EPA for approval into the New Hampshire SIP. This regulation establishes requirements for open burning, fugitive dust and firefighter instruction and training activities. NH DES submitted this revision to replace the current SIP-approved Env-A 1000 (83 FR 6972; February 16, 2018), which expired at the State level on May 1, 2019. The submittal also includes Appendices A and B, which provide references and definitions that are included in Env-A 1000.

On January 8, 2020, NH DES submitted a revision of New Hampshire Code of Administrative Rules Chapter Env-A 2800 (Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources) to EPA for approval into the New Hampshire SIP. Env-A 2800 sets standards for visible emissions (VE) and particulate matter (PM) emissions. It also sets fugitive-dust requirements for sand and gravel sources, non-metallic mineral processing plants, and cement and concrete sources. NH DES submitted this revision to replace the current SIP-approved version of Env-A 2800 (81 FR 78052; October 1, 2010), which expired at the State level on October 1, 2018. The submittal also includes Appendix A, which provides a list of referenced State statutes and Federal regulations.

After reviewing New Hampshire's SIP submittals, EPA has concluded that the revisions to Env-A 1000 and to Env-A 2800 clarify and strengthen the current SIP-approved regulations and therefore EPA is proposing to approve these revised regulations into the New Hampshire SIP. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

Env-A 1000 (Prevention, Abatement, and Control of Open Source Air Pollution) establishes requirements for open burning, fugitive dust and firefighter instruction and training activities. The proposed revisions to this rule, submitted to EPA on August 19, 2021, include clarifications and updates to certain provisions. The submittal also includes Appendices A and B, which provide references and definitions of terms used in Env-A 1000. The main proposed changes in the regulation and EPA's evaluation of these changes, are as follows.

The current SIP-approved version of Env-A 1001 authorizes open burning of untreated wood, campfire wood, brush, or charcoal in a campfire, outdoor grill, or outdoor fireplace for recreational purposes or for the preparation of food. The proposed revision to Env-A 1001 adds open burning of untreated pallets to this list. It also adds untreated pallets to the list of materials (untreated wood, campfire wood, or brush) that may be used as fuel for bonfires in conjunction with holiday or festive celebrations.

The current SIP-approved version of Env-A 1001 allows burning of brush or leaves by a landowner of a private, residential property, provided the material originates “on-site.” The proposed revision to Env-A 1001 clarifies that originating “on-site” may include material that originates on another residential property but does not include material transported to the burning location for commercial purposes or by a commercial entity or its employees.

The current SIP-approved version of Env-A 1002 includes an exemption for leaf blowers from fugitive-dust regulations. The proposed revision to Env-A 1002 expands the exemption to include compressed air, but adds the limitation that, for commercial properties and public ways, this equipment can only be used for the purpose of blowing leaves and vegetation, and cannot be used to blow dirt, sand, or gravel except as incidental and necessary when blowing leaves and vegetation.

The current SIP-approved version of Env-A 1002 includes precautions to prevent, abate, and control fugitive dust. The proposed version of Env-A 1002 retains the previous precautions and adds two additional allowed measures: (1) The construction of wind barriers to material stockpiles; and (2) construction of wind barriers and phasing of work to reduce disturbed surface area for sandblasting or similar operations.

EPA concludes that the proposed revisions to Env-A 1000 strengthen and clarify this regulation, and we agree that the addition of Appendices A and B provides relevant references and definitions for implementing Env-A 1000. Therefore, EPA is proposing to approve the submitted revision of Env-A 1000 into the New Hampshire SIP.

On January 8, 2020, NH DES submitted a revision of New Hampshire Code of Administrative Rules Chapter Env-A 2800 (Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources) to EPA for approval into the New Hampshire SIP. Env-A 2800 sets standards for visible emissions (VE) and particulate matter (PM) emissions. It also sets fugitive-dust requirements for sand and gravel sources, non-metallic mineral processing plants, and cement and concrete sources.

The current SIP-approved version of Env-A 2802 includes definitions of terms used in this regulation. The proposed revision to Env-A 2802 retains these definitions and adds the terms “Electronic means” and “Submit in writing” to the list of defined terms. These added terms bring the regulation up to date with the electronic reporting systems used by NH DES and EPA.

The current SIP-approved version of Env-A 2803 sets Compliance Testing Requirements for Non-Metallic Mineral Processing Plants. The proposed revision to Env-A 2803 retains the visible fugitive emissions or visible stack emissions standard of an average of 20 percent opacity for these plants, as determined by Env-A 807, for any continuous 6-minute period at crushers, transfer points, or screens. The proposed revision updates, but does not substantially change, the requirements for conducting compliance tests at affected facilities. As before, a successful compliance test must be conducted on the affected facility or specific affected equipment in accordance with 40 CFR 60.675 within 60 days of achieving the maximum production rate at which the affected facility or affected equipment will be operated or 180 days after startup, whichever is sooner.

The current SIP-approved version of Env-A 2804 sets a VE standard for cement, ready mix concrete, and cement block sources. The proposed revision to Env-A 2804 retains the visible fugitive emissions or visible stack emissions standard of an average of 20 percent opacity for these sources, as determined by Env-A 807, for any continuous 6-minute period. EPA agrees that an average of 20 percent opacity is a reasonable VE limitation and concurs with retaining the standard.

The current SIP-approved version of Env-A 2805 establishes requirements for fugitive dust control for all sources and plants subject to this regulation. The proposed revision to Env-A 2805 retains these requirements without modification. EPA considers New Hampshire's fugitive dust control requirements to be reasonable and concurs with retaining the standard.

The current SIP-approved version of Env-A 2806 establishes Permit-By-Notification (PBN) procedures for non-metallic mineral processing plants. The proposed revision to Env-A 2806 updates these procedures to allow owners or operators to notify NH DES within 10 days after initial startup of an affected facility by electronic means as well as traditional hardcopy delivery methods.

EPA concurs with New Hampshire that the proposed revisions to Env-A 1000 and Env-A 2800 serve to strengthen and clarify these regulations and is, therefore, proposing to approve these revised regulations into the New Hampshire SIP. Furthermore, EPA agrees that the addition of Appendix A provides relevant references for implementing Env-A 2800. Therefore, EPA is proposing to approve the submitted revision of Env-A 2800 into the New Hampshire SIP.

EPA is proposing to approve, and incorporate into the New Hampshire SIP, Env-A 1000 and Env-A 2800, which were submitted by the State of New Hampshire on August 19, 2021, and on January 8, 2020, respectively.

EPA is soliciting public comments on the issues discussed in this proposal or on other relevant matters. These comments will be considered before EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register .

In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference into the New Hampshire SIP two New Hampshire Code of Administrative Rules: Env-A 1000 (Prevention, Abatement, and Control of Open Source Air Pollution), effective August 1, 2019, and Env-A 2800 (Sand and Gravel Sources; Non-Metallic Mineral Processing Plants; Cement and Concrete Sources), effective December 20, 2018.

The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and/or in hard copy at the appropriate EPA office.

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Entities potentially affected by this proposed rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline and diesel fuel or renewable fuels such as ethanol, biodiesel, heating oil, renewable diesel, naphtha and liquified petroleum gas. Potentially regulated categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated or otherwise 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 is regulated by this action, you should carefully examine the applicability criteria in the referenced regulations. 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.

Section 211(o) of the Clean Air Act (CAA) establishes the Renewable Fuel Standard (RFS) program, under which EPA sets annual percentage standards specifying the total amount of renewable fuel, as well as three subcategories of renewable fuel, that must be used to reduce or replace fossil fuel present in transportation fuel, heating oil, or jet fuel. Non-exempt renewable fuels must achieve at least a 20-percent reduction in lifecycle greenhouse gas (GHG) emissions as compared to a 2005 petroleum baseline. Advanced biofuel and biomass-based diesel must achieve at least a 50 percent reduction, and cellulosic biofuel must achieve at least a 60 percent reduction. 1

In addition to meeting the applicable lifecycle GHG reduction requirements, RINs may only be generated if the fuel meets the definitional and other criteria for renewable fuel ( e.g., produced from renewable biomass as defined in the regulations and used to reduce or replace the quantity of fossil fuel present in transportation fuel, heating oil, or jet fuel) in CAA 211(o) and the RFS regulations at 40 CFR part 80, subpart M.

Only fuels produced using pathways that EPA has approved as meeting all applicable requirements are eligible to generate RINs. There are three critical components of fuel pathways under the RFS program: (1) Fuel type; (2) feedstock; and (3) production process. Each approved pathway is associated with a specific “D code” corresponding to whether the fuel meets the requirements for renewable fuel, advanced fuel, cellulosic fuel, or biomass-based diesel. 2 Since the formation of the RFS program, EPA has periodically promulgated rules to add new pathways to the regulations. 3 In addition, EPA has approved facility-specific pathways through the petition process in 40 CFR 80.1416.

EPA's lifecycle analyses are used to assess the overall GHG impacts of a fuel throughout each stage of its production and use. The results of these analyses, considering uncertainty and the weight of available evidence, are used to determine whether a fuel meets the necessary GHG reductions required under the CAA. Lifecycle analysis includes an assessment of emissions related to the full fuel lifecycle, including feedstock production, feedstock transportation, fuel production, fuel transportation and distribution, and tailpipe emissions. Per the CAA definition of lifecycle GHG emissions, 4 EPA's lifecycle analyses also include an assessment of significant indirect emissions, such as those from land use changes and agricultural sector impacts.

EPA conducted lifecycle GHG analyses for several combinations of biofuel feedstocks, production processes, and fuels and promulgated several fuel pathways as part of its March 26, 2010 RFS final rule (75 FR 14670) (the “March 2010 RFS2 rule”). In the preamble to that final rule, EPA indicated that it intended to add fuel pathways to the regulations via further notice-and-comment rulemakings. EPA subsequently completed a proposed assessment for canola oil biodiesel; this proposed assessment was published in the Federal Register for notice and comment on July 26, 2010 (75 FR 43522). This proposed assessment evaluated the GHG emissions associated with biodiesel produced from canola oil through a transesterification process. On September 28, 2010, EPA published a rule finalizing our determination that canola oil biodiesel meets the lifecycle GHG emissions reduction threshold of 50 percent required by the CAA, and added row G to table 1 to 40 CFR 80.1426, making canola oil biodiesel produced through a transesterification process eligible for biomass-based diesel (D-code 4) RINs (75 FR 59622) (September 2010 Canola Oil rule). This final rule did not include determinations for renewable diesel, jet fuel, naphtha, LPG, or heating oil produced from canola oil via a hydrotreating process. 5 In the 2013 Pathways I final rule (78 FR 14190, March 5, 2013) (“2013 Pathways I rule”), EPA added “rapeseed” to the existing pathway in row G for renewable fuel made from canola oil because “we had not intended the supplemental determination to cover just those varieties or sources of rapeseed that are identified as canola” (78 FR 14214). In that same rule, for clarity EPA also added “heating oil” to the rows in Table 1 that already included renewable diesel or biodiesel (78 FR 14201). As in the 2013 Pathways I rule, in this action we are similarly proposing to add new pathways to table 1 for biofuels produced from “Canola/Rapeseed oil” but for simplicity we refer to both canola and rapeseed as “canola.”

In 2020, the United States Canola Association (USCA) submitted a petition to EPA requesting an evaluation of the GHG emissions associated with renewable diesel, jet fuel, naphtha, LPG and heating oil produced from canola oil via a hydrotreating process, and a determination of the renewable fuel categories, if any, for which such biofuels may be eligible. 6 This preamble describes EPA's analysis of the lifecycle GHG emissions associated with these fuel pathways and provides a brief overview of its results. 7

As described in Section II.C.12 of this preamble, we estimate that the lifecycle GHG emissions associated with the production of renewable diesel via a hydrotreating process are approximately 63 to 69 percent less than the applicable diesel baseline. We estimate that the naphtha and LPG co-produced with the renewable diesel has similar reductions of 64 to 69 percent and 63 to 69 percent compared to baseline GHG emissions, respectively. We estimate that jet fuel produced from canola oil through a hydrotreating process configured to maximize jet fuel output has lifecycle GHG emissions approximately 59 to 67 percent lower than baseline emissions. These ranges of GHG emissions estimates are based on differences in hydrotreating process configurations. Section II.C.9 of this preamble discusses these estimates and our consideration of uncertainty in the analysis.

Based on these estimates, we propose to find that these biofuels meet the 50 percent GHG reduction threshold required for advanced biofuel and biomass-based diesel. In this action, based on our analysis of available data and other input, EPA is proposing to add to table 1 of 40 CFR 80.1426 pathways for the production of renewable diesel, jet fuel, naphtha, LPG and heating oil produced from canola oil via a hydrotreating process. Specifically, we propose to add “Canola oil” to the Feedstock column in rows G, H, and I of table 1 to 40 CFR 80.1426. If finalized, these fuel pathways would be eligible for either biomass-based diesel (D-code 4) or advanced biofuel (D-code 5) RINs, depending on the fuel type and whether they are produced through a hydrotreating process that co-processes renewable biomass with petroleum. EPA requests public comment on these proposed pathway approvals.

EPA is also seeking comment on its proposal to add these fuel pathways to rows G, H, and I of table 1 to 40 CFR 80.1426. We note that in addition to approving generally-applicable pathways by adding them to table 1, EPA has also approved fuel pathways on a facility-specific basis in cases where the evaluation involved a straightforward application of prior modeling and analysis established through a notice and comment process. Consistent with this practice, EPA may also consider the analysis in this proposed rule and any comments it receives in evaluating facility-specific pathway petitions submitted pursuant to 40 CFR 80.1416 that propose using canola oil as a biofuel feedstock or hydrotreating as a production process.

Canola oil is a vegetable oil that contains low concentrations of erucic acid (less than 2 percent), originally bred from cultivars of the Brassica and Sinapis genera. 8 In addition to use as a renewable fuel feedstock, canola oil is a common vegetable oil for food use. In many instances, canola oil is used synonymously with rapeseed oil, or is considered a varietal of it. We propose definitions of canola/rapeseed oil to be included in 40 CFR 80.1401. We request comment on this definition.

In September 2010, EPA evaluated a pathway for biodiesel produced from canola oil using a transesterification process to generate biomass-based diesel (D-code 4) RINs. 9 For that analysis, EPA performed lifecycle analysis using the methodology first described in the March 2010 RFS2 rule. 10 This methodology included the Forest and Agricultural Sector Optimization Model with Greenhouse Gases model (hereafter referred to as “FASOM”) and the FAPRI-CARD model (Food and Agricultural Policy Research Institute international model; hereafter referred to as “FAPRI”) developed at the Center for Agriculture and Rural Development at Iowa State University. These frameworks were used to estimate upstream GHG emissions associated with the production and transport of the canola oil feedstock. 11 These upstream emissions were evaluated in concert with a transesterification biodiesel production process using natural gas and electricity for process energy and glycerin as a co-product. Based on that analysis, EPA determined that canola oil biodiesel produced via transesterification meets the 50 percent GHG reduction threshold and added this fuel pathway to row G in table 1 to 40 CFR 80.1426, making this fuel eligible for biomass-based diesel (D-code 4) RINs. The September 2010 Canola Oil rule did not address pathways for renewable diesel, naphtha, LPG, jet fuel or heating oil produced from canola oil through a hydrotreating process.

In addition to the lifecycle GHG analysis, another factor EPA has analyzed in pathway determinations is the invasiveness properties of the feedstock and the appropriateness of requiring associated risk management measures. EPA began evaluating invasiveness concerns in the context of fuel pathway evaluation under the RFS program in the July 11, 2013 rule approving renewable fuel pathways for giant reed ( Arundo Donax ) and Napier grass ( Pennisetum Purpureum ) after receiving comments that these feedstocks present a risk of invasiveness. 12 Commenters stated that EPA should conduct an invasiveness species analysis, citing requirements of Executive Order (E.O.) 13112. 13 E.O. 13112, signed in February 1999, defines “invasive species” as “an alien species whose introduction does or is likely to cause economic or environmental harm or harm to human health.” In the July 2013 rule (78 FR 41703), we established requirements that producers of renewable fuel using giant reed or napier grass include a Risk Mitigation Plan (RMP) demonstrating measures taken to prevent the spread of these species, or demonstrate that an RMP is not needed because the species do not pose a significant likelihood of spread beyond the planted area. We are not proposing any risk management measures related to potential invasiveness of canola in this rule. Canola is an established feedstock with 89 million acres planted in over 30 countries in 2020. 14 We do not believe canola is an invasive species as defined in E.O. 13112, and we do not believe the approval of additional canola oil-based fuels would have implications for invasiveness. We request comment on this decision and the appropriateness of risk mitigation practices.

The USCA submitted a petition in March 2020, pursuant to the petition process described at 40 CFR 80.1416, requesting EPA's evaluation of the lifecycle GHG emissions associated with producing renewable diesel, jet fuel, naphtha, LPG and heating oil from canola oil feedstock through a hydrotreating process. The petition requested that EPA evaluate these pathways using the same lifecycle analysis modeling approach used to evaluate canola-oil based biodiesel in the September 2010 Canola Oil Rule (75 FR 59622). However, USCA stated in their petition that, in our 2010 analysis of canola oil-based biodiesel, we overestimated the lifecycle GHG emissions associated with canola oil production in four categories: Domestic land use change, domestic crop inputs, international land use change and international crop inputs. USCA supported their statements by comparing data sources underlying parts of our 2010 assessment of canola oil with more recent data. Specifically, the petition referenced more recent data on canola production, yields, trade, and oil extraction. Based on these comparisons, the USCA petition requested that we adjust our 2010 canola oil estimates without conducting new agricultural sector modeling.

The USCA petition requests that we simply adjust the results of our previously completed agricultural sector modeling based on new information. We believe such adjustments would be inappropriate because they would create inconsistencies between the agricultural sector modeling and the results. For example, it would be inappropriate to reduce planted area of canola based on new yield data and simply assume that the rest of the agricultural model results would remain unchanged. Thus, while we are not adjusting or otherwise reopening our 2010 canola oil-based biodiesel analysis or estimates, we do believe that the USCA petition highlights appropriate and significant areas where the data and information considered in the 2010 canola modeling should be updated for purposes of evaluating new fuel pathways that use canola oil feedstock. The petition includes detailed information showing that more recent data on canola oil production and trade patterns differed significantly from the data considered in the 2010 analysis. Based on these significant differences, and since we have not previously published lifecycle GHG emissions estimates for canola oil-based fuels produced through a hydrotreating process, we believe it is important to consider the more recent data highlighted in the USCA petition in a new lifecycle GHG analysis for these fuel pathways. This analysis uses the same modeling frameworks and methodology as we have used previously to evaluate agricultural feedstocks but includes updated data inputs as discussed later in this proposal. 15

For this proposed rule, we evaluated the lifecycle GHG emissions of producing renewable diesel and other biofuels from canola oil. In this section, we describe our methodology for conducting this evaluation, the assumptions and scenarios evaluated using this methodology, and the results of our analysis. We used the same biofuel lifecycle analysis methodology and modeling framework developed for the March 2010 RFS2 rule and that was subsequently used for the September 2010 Canola Oil Rule. 16 The components of this methodology are described further later in this proposal, but generally involve the use of agricultural modeling to estimate emissions from land use change, crop production, livestock, and rice methane, as well as application of coefficients and assumptions from the Greenhouse Gases, Regulated Emissions, and Energy use in Technologies (GREET) model  17 and other sources to evaluate emissions associated with feedstock and fuel transport, processing, and use. This methodology was developed to estimate “lifecycle greenhouse gas emissions” as defined at section 211(o)(1)(H) of the Clean Air Act. It was used for the March 2010 RFS2 rule after an extensive peer review and public comment process.

In general, this methodology involves using two agricultural sector models, FASOM and the FAPRI-CARD model, to estimate U.S. and non-U.S. GHG emissions impacts respectively. In this methodology, we model and evaluate a hypothetical canola oil demand shock scenario to estimate changes in agricultural production and land use and associated GHG emissions associated with the biofuel pathway under consideration. In this demand shock scenario, U.S. domestic consumption of a specific biofuel pathway is assumed to increase by some amount relative to the volume of U.S. domestic consumption in a reference scenario.

Following the lifecycle GHG analysis methodology developed for the March 2010 RFS2 rule, the modeling scenarios used in this analysis are designed to isolate the GHG impacts associated with the biofuel pathway being considered. They are not meant to project or forecast future market conditions, or to otherwise predict what will happen in the future if a given biofuel pathway is approved. Some of our assumptions, which are necessary to construct a scenario which appropriately isolates the impacts of a single fuel pathway, intentionally simplify what we would expect to occur in the real world. For example, in these scenarios, we hold U.S. consumption of all biofuels constant throughout the entire modeled period, except for the biofuel being evaluated. In reality, an increase in domestic consumption of one biofuel product would be expected to have some impact on consumption of other biofuel products. However, allowing for such market-balancing behavior would confound our ability to estimate the GHG impacts of one biofuel in isolation. Therefore, such simplifying assumptions are necessary for the purposes of our analysis. For these same reasons, it would be inappropriate to characterize the scenario results presented later in this proposal as a projection or forecast; these results should be interpreted as hypothetical scenarios.

This methodology also includes estimating GHG emissions associated with fuel production, distribution and use based on data from GREET and other sources. All of these GHG emissions estimates are added together and divided by the change in the amount of biofuel produced in the scenarios evaluated to estimate the lifecycle GHG emissions associated with fuel produced through the evaluated pathway, in terms of carbon dioxide-equivalent emissions per megajoule (MJ) of fuel produced. We are not reopening this overall lifecycle analysis methodology and modeling framework in this proposed rule; thus, any comments on the overall methodology and modeling framework are outside the scope of this rulemaking action.

Although we are using the same overall methodology and modeling framework as developed for the March 2010 RFS2 rule, we have updated the data inputs into this analysis in the following areas: (1) Canola/rapeseed oil production, crushing, yields and trade based on historical data from USDA and other sources, (2) GHG emissions factors and transportation and distribution assumptions based on the latest version of the GREET model, 18 (3) the most recent global warming potentials from the Intergovernmental Panel on Climate Change (IPCC), (4) international crop production energy inputs based on historical FAO data, and (5) hydrotreating process assumptions based on literature review and information submitted through new pathway petitions. We request comment on these data input updates. As discussed in Section II.C.9 of this preamble, we also request comment on our use of the energy allocation method to account for co-products from the hydrotreating process, given that prior RFS rules used a displacement approach for some of these co-products. The rest of this section describes the updated data inputs used in our analysis and the scenarios modeled.

The lifecycle analysis for the March 2010 RFS2 rule relied to a relatively large extent on data and GHG emissions factors from the GREET model developed and maintained by Argonne National Laboratory. Version 1.8b of GREET was the most recent version available at the time of the March 2010 RFS2 rule. 19 For the analysis for this proposed rule, we have updated GHG emissions factors based on more recent data in GREET-2020. Some of the emissions factors have not changed substantially, while others have. For example, the carbon dioxide-equivalent emissions factor for natural gas consumed in the U.S. in medium-size industrial boiler increased by only 1% from GREET 1.8b to GREET-2020. Whereas, the emissions factor for U.S. average electricity has decreased by 41% reflecting significant changes to the U.S. grid. 20

The latest version of GREET was released in October 2021. While the analysis for this proposed rule was almost entirely complete using data and emissions factors from GREET-2020 prior to the release of GREET-2021, we do consider the updated hydrotreating input-output data from GREET-2021 in this proposed rule. A brief review shows that the other relevant changes to emissions factors from GREET-2020 to GREET-2021 are relatively small—for example, in the latest version of GREET the GHG emissions factors per energy unit for average natural gas did not change, the emissions factor for gaseous hydrogen increased by one percent, and U.S. average grid electricity decreased by two percent. We intend to update these data to GREET-2021 for the final rule, but we do not expect these updates to change our estimates enough to affect our overall finding that the pathways evaluated satisfy the statutory 50 percent GHG reduction threshold for qualification as biomass-based diesel or advanced biofuel.

Another update is that the analysis for the March 2010 RFS2 rule used 100-year global warming potential (GWP) values from the IPCC Second Assessment Report. The analysis for this proposed rule uses 100-year GWP values from the most recent IPCC Fifth Assessment Report. 21 Based on these updates, the GWP for methane increased from 21 to 30, and the GWP for nitrous oxide decreased from 310 to 265.

Our analysis for this proposed rule considers updated data based on information submitted as part of the USCA petition. Global canola acreage has increased over the last decade, from 83 million acres globally in 2010 to 89 million acres in 2020. 22 U.S. canola acreage increased over this time from 1.43 million acres in 2010 to 1.80 million acres in 2020, representing 1.7 percent and 2 percent of global totals respectively. Yields have increased over the same period in several producing regions. Average U.S. yields grew from 1,713 pounds per acre in 2010 to 1,927 pounds per acre in 2020 (12.5 percent increase) while yields improved more substantially in Canada and China over the same period (25 percent and 18 percent increases respectively). Global production of canola oil increased 24 percent between 2010 and 2020 to meet growing demand. This increase in demand was led by China. China's consumption of canola oil grew from 13 billion pounds in 2010 to 18 billion pounds in 2020. The U.S. canola oil consumption grew by 1.9 billion pounds over this timeframe, from 3.7 billion pounds to 5.6 billion pounds, representing a 54 percent increase. 23

Specifically, for the purpose of this rulemaking we have updated our FASOM and FAPRI input assumptions to include more recent USDA historical data on global canola oil production, yields and trade. 24 Updates were made consistently between the two frameworks, using common data sources and assumption values where applicable ( i.e., where both models require the same input assumption). These assumption updates are described in more detail in Sections II.C.2 and 3 later in this proposal. We have also updated the data source for estimating GHG emissions associated with farming energy use for canola oil and other crop production outside of the U.S. For more details, see Section II.C.5 of this preamble. We also consider new data on canola crushing from the USCA petition, feedstock and fuel transport from GREET-2020 and hydrotreating from GREET-2021, as well as data from review of the literature and information provided through RFS new pathway petitions. All these updates taken together decrease our estimates of the lifecycle GHG emission associated with using canola oil as a biofuel feedstock compared to compared to our analysis for the September 2010 Canola Oil Rule. EPA previously determined that biodiesel produced from canola oil via transesterification meets the 50 percent threshold to generate D4 RINs. EPA is not revisiting, revising, or requesting comment on canola oil-based biodiesel or any other existing pathways. Given that most of the updates for this proposed rule pertain specifically to canola oil, we note that it would be inappropriate to draw any conclusions about the lifecycle GHG emissions associated with biofuel pathways that use feedstocks other than canola oil from our estimates for this proposed rule. EPA is therefore not requesting comment on pathways using any other feedstock besides canola oil.

EPA conducted two modeling scenarios in both FASOM and FAPRI for this analysis. 25 The difference in GHG emissions between these two scenarios represents our estimate of the emissions from land use change, agricultural input, livestock, and rice methane associated with using canola oil as a biofuel feedstock (our emissions estimates are described in Table II.C.8-1). First, we ran an updated Control Case that reflected the updated assumptions for global canola oil production, yields, and trade. 26 In this Control Case, we assumed no canola oil-based biofuels were consumed in the U.S. over the period of analysis (2012-2052 in FASOM, 2012-2022 in FAPRI), consistent with our Control Case assumptions for previous analyses. Second, we conducted a shock scenario that assumed a 1.53 billion pound increase in canola oil production for use as feedstock to produce approximately 200 million gallons of canola oil-based renewable diesel, jet fuel, naphtha, LPG and heating oil for U.S. consumption of in 2022 (hereafter the “Canola Case”), which was assumed to ramp up linearly from 2012 to 2022 (see Table II.C.1-1). 27 According to USDA historical data, annual U.S. consumption of canola oil ranged from about 5.3 to 6.4 billion pounds over the period between 2015 and 2020. 28 In addition, global canola/rapeseed seed annual exports ranged from approximately 32 to 38 billion pounds between 2015 and 2020 and canola/rapeseed oil exports ranged from about 9 to 13 billion pounds over the same period; this suggests substantial quantities of additional feedstock may be available for import to the U.S. market. 29 Based on data from the EPA Moderated Transaction System (EMTS), the U.S. produced approximately 160 million gallons of canola oil biodiesel in 2020, and another 123 million gallons of biodiesel produced from a mix of feedstocks were imported from Canada, which likely included a portion from canola oil. Thus, the volume of hydrotreated canola oil-based fuels in the modeled shock is a similar order of magnitude as the volume of biodiesel currently produced from canola oil. Finally, according to EPA's administrative data from the RFS program, about 1.5 billion RINs were generated for renewable diesel in 2019, equivalent to about 900 million gallons. 30 Based on these data, we believe the magnitude of the assumed shock in the Canola Case is reasonable and appropriate.

All other assumptions were held constant between the Control Case and the Canola Case. The structure of this shock was designed to be consistent with the shock methodology approach used for EPA's previous lifecycle GHG analyses of agricultural feedstocks under the RFS program.

EPA used FASOM to estimate the GHG emissions from domestic land use change, farm inputs, livestock, and rice methane associated with using canola oil as a biofuel feedstock. This is the same methodology EPA previously used to estimate these GHG emissions sources for soybean oil-based biodiesel and other agricultural feedstocks. 32 EPA updated several aspects of its analysis of the domestic U.S. emissions associated with production of fuels from canola oil for this analysis, building on the version of FASOM used for the analysis of the GHG emissions attributable to the production and transport of sugar beets for use as a biofuel feedstock. 33 In this section, we first review the updates made to model inputs and other assumptions for this analysis. Following this, we present a summary of the FASOM modeling results. 34

For this analysis, EPA updated FASOM assumptions related to market conditions for canola seed, canola meal, and canola oil. This included assumptions about historical U.S. prices; quantities of seed, meal, and oil consumed; planted area; seed yields; and trade quantities and elasticities. Updated assumptions for prices, planted area, and seed yields were primarily taken from USDA National Agricultural Statistical Service (NASS) historical data sets. 35 In some cases, these NASS data were supplemented with additional data taken from the USDA Oil Crop Yearbook and the USCA. These updates replaced previous assumptions in FASOM for the years 2011 through 2020. In the case of canola seed yields, FASOM's baseline trend of future yields was also reprojected using the updated NASS data. 36

EPA also updated FASOM to reflect differences in historical pricing between U.S. domestically-produced canola seed, oil, and meal and imported canola seed, oil, and meal. Imported canola seed and oil from Canada are important components of the U.S. market, generally representing well over 90 percent of the canola products consumed in the U.S. in any given year. 37 Reflective of this market dynamic, historical data show that Canadian producers exporting to the U.S. were systematically paid less for their canola oil than domestic U.S. producers. 38 In previous modeling analyses, FASOM assumed a single price for both domestic and imported canola oil. This led to a consumption mix that included a greater percentage share of domestically-produced canola products, especially oil, than actually occurred historically. In the updated modeling conducted for this assessment, EPA differentiated the prices at which domestic and imported canola seed and oil could be supplied to the U.S. market and then recalibrated canola trade elasticities to better reproduce historical market shares of domestically-produced canola products and Canadian imported canola products more accurately in FASOM. 39 EPA requests comment on these updates to our modeling assumptions. We are not seeking comment on the overall lifecycle analysis methodology and modeling framework used to conduct this analysis, which were subject to notice and comment in the March 2010 RFS2 rule. 40

This section describes the differences in FASOM results between modeled outcomes from the Control Case and the Canola Case (described in Table II.C.1-1). Unless otherwise stated, the data presented in this section are the calculated differences between the Control Case and the Canola Case ( i.e., the model output value for a variable reported in the Canola Case minus the output value for that same variable reported in the Control Case). In this summary, we first describe the ways in which FASOM estimates the canola oil feedstock used to supply the biofuel shock would be sourced. We then describe the market adjustments in canola oil prices, supply, demand, and trade which FASOM estimates would be necessary to facilitate this sourcing of canola oil for fuel use. Following this, we describe the shifts in production of other crops, cropland use, and land use which FASOM estimates would occur as a result of the sourcing of canola oil for fuel use.

The total quantity of canola oil required to produce the assumed marginal volume shock in the Canola Case was assumed to be approximately 1.53 billion pounds. To supply this quantity of canola oil to the biofuel production sector, FASOM made several market adjustments. Of the total 1.53 billion pounds required, FASOM estimated approximately 1.28 billion pounds would be supplied by increasing the total U.S. supply of canola oil via a combination of increased imports and increased domestic production. These 1.28 billion pounds would represent an approximately 28 percent increase in total domestic supplies of canola oil. FASOM estimates canola oil imports would increase by about 1.18 billion pounds. Domestic crushing of canola seed into meal and oil would produce about 0.1 billion pounds of additional canola oil. Domestic demand for non-fuel uses of canola oil, inclusive of all food uses ( e.g., cooking, baking, salad dressings) and non-fuel industrial uses ( e.g., industrial lubricants, cleaning products, cosmetics), would decrease by approximately 0.25 billion pounds to provide the remaining canola oil required to meet the 1.53-billion-pound shock. These shares of biofuel feedstock are summarized in Table II.C.2.ii-1.

As stated earlier in this proposal, most of the additional supply of biofuel feedstock is expected to come from imported canola oil. 41 FASOM estimates these imports would increase by approximately 40 percent in 2022 in response to the shock. Because modeled non-fuel uses of canola oil are not drawn on as significantly to provide feedstock for this shock, FASOM does not estimate there would be a significant need to backfill the domestic U.S. vegetable oil market. Domestic consumption of other vegetable oils therefore does not change significantly in these results. Following this, FASOM estimates virtually no changes in imports of other vegetable oils in these results. Increased demand for canola oil in response to the volume shock is estimated to cause the average price of canola oil for all uses to increase by approximately 24 percent in the Canola Case. This price increase would put downward pressure on other uses of canola oil, and non-biofuel domestic demand for canola oil is estimated to decrease by approximately 5.6 percent. FASOM estimates these higher prices would also induce domestic U.S. production of canola oil to increase by about 7 percent. Table II.C.2.ii-2 reports changes in supply, demand, and prices for canola oil in the Canola Case relative to the Control case. Changes for other modeled vegetable oils, specifically soybean oil and corn oil, are estimated to be in the range of 0.03 percent or less and are not presented here, though these results are available in the docket. 42

FASOM estimates the increase in canola oil production would result in an increase in canola seed crushing of approximately 253.5 million pounds, an increase in domestic canola oil production of about 7 percent compared to the Control Case. Most of this increase in canola crushing would be supplied through increased imports of whole canola seed. Of the total increase in canola seed supply to the crushing market, 87 percent is estimated to come from increased imports and 13 percent is estimated to come from increased domestic U.S. production. As observed above, the U.S. canola product markets are historically import-dependent. Based on this, we believe the response in FASOM is consistent with historical market patterns. However, FASOM estimates the increase in domestic crushing would also induce a response from domestic canola seed demands. FASOM estimates direct domestic uses of canola seed other than crushing would decrease by approximately 16 percent. Domestic canola seed production also responds, and FASOM estimates domestic production would increase by approximately 1 percent. These impacts are summarized in Table II.C.2.ii-3. This increase in U.S. canola seed production would be facilitated in part by a modeled expansion in canola harvested crop area of about 17,600 acres, or about 1.2 percent, in the U.S. in 2022 (see Table II.C.2.ii-4).

These shifts in canola supply, demand, and trade would also have implications for production and consumption of other crops. The modeled increase in canola crushing also produces an additional 156 million pounds of canola meal, all of which FASOM estimates would be supplied to the domestic livestock market. This influx of meal would primarily displace corn in livestock diets. Corn consumption in the domestic feed market is estimated to decrease by about 306 million pounds (about 0.08 percent). This same dynamic can be observed in the FASOM results for commodity trade. As international trade partners increase exports of canola oil to the U.S., these exporters crush additional canola seed. This creates additional supplies of meal for these canola-producing nations, reducing their demands for corn as well. As a result, corn exports from U.S. are estimated to decrease by about 271 million pounds (about 0.28 percent). On net, FASOM estimates that U.S. corn production would decline by about 589 million pounds and that corn harvested area would decline by about 49,100 acres, or about 0.06 percent (see Table II.C.2.ii-4).

Canola and wheat can be produced on the same type of land in high latitude agricultural systems like Canada and North Dakota, and many farmers rotate the two crops. In response to an increase in production of canola, farmers are likely to respond in one of two ways. One option is that total acres in wheat/canola rotation could increase. The other option is for canola to displace wheat area to some extent as farmers tilt rotations more heavily towards the former ( e.g., canola-canola rotations rather than canola-wheat rotations). We observe these complex dynamics in the FASOM results for the Canola Case. To increase canola exports to the U.S. market, FASOM estimates the international market would decrease production of wheat, creating an opportunity for U.S. wheat producers to increase their exports. This impact is relatively marginal in comparison to the shock. However, FASOM estimates U.S. wheat exports would increase by about 174 million pounds, or about 0.18 percent. Domestic wheat production would increase by about 169 million pounds and the harvested area in wheat production (excluding wheat used for grazing) would expand by about 63,000 acres, or about 0.02 percent (see Table II.C.2.ii-4).

The modeling results also show some minor net shifts in other cropland as markets re-equilibrate in response to the shock, totaling about 28,100 harvested acres, or about 0.01 percent. Harvested crop area impacts are summarized in Table II.C.2.ii-4. The shock results in modeled net increase in total domestic harvested crop area of approximately 60,600 acres. This increase would require some shifting of land use from other uses to cropland; as discussed later in this section this land is shifted into cropland from pasture and cropland pasture on net.

Our FASOM results estimate these small shifts in agricultural production volumes would have some modest impact on agricultural prices. In our scenario, canola meal and wheat prices are estimated to decline as production increases, by 0.02 percent and 0.51 percent respectively, while corn prices would rise by 0.44 percent as production decreases. FASOM estimates the livestock market would respond to the increase in corn prices by consuming slightly less corn (0.08 percent compared to baseline consumption). This would be made up in part by a modeled increase in canola meal consumption. However, the modeled increase in corn prices is estimated to create some upward pressure on overall feed prices as well, raising the estimated cost of livestock production. On net in these results, beef slaughter is estimated to decrease by 0.04 percent in response to higher costs and chicken (broiler) slaughter would decrease by 0.05 percent.

Geographically, the modeled domestic response to the shock is concentrated in North Dakota. Canola production is estimated to increase in North Dakota by about 28.9 million pounds (about 1.4 percent) and canola crop area is estimated to expand by 16,300 acres (as discussed later in this section, this acreage comes from a mix of existing and new agricultural land). This accounts for about 92 percent of the total estimated increase in U.S. domestic canola production in the Canola Case. As North Dakota is the dominant producer of canola in the U.S., this modeled impact appears to be consistent with historical agricultural patterns. North Dakota is also a significant producer of wheat. As canola production is estimated to expand in North Dakota, FASOM estimated wheat production would shift to North Dakota region by about 218 million pounds, decreasing on net in all other regions by about 50 million pounds.

Canola is generally crushed near areas of cultivation and a majority of U.S. facilities that process canola seed are located in North Dakota. 43 Following this, as North Dakota canola production is estimated to expand to supply the canola shock, FASOM estimates the additional seed would be crushed into oil and meal in this region as well. This would expand regional supply of livestock feed and would decrease regional feed prices, relative to other regions of the U.S. FASOM estimates that this, in turn, would create incentives to shift livestock production to North Dakota and nearby states. Since livestock feed mixes require several different components, FASOM estimates this shift in livestock production towards North Dakota would also shift production of other feed crops ( e.g., corn, soybeans, hay) into North Dakota. Production of these feed crops are estimated to increase by a total of 115,000 acres in 2022. The modeled changes in North Dakota crop area are summarized in Table II.C.2.ii-5. FASOM estimates net cropland in North Dakota would increase by 218,300 acres. 44

Within North Dakota, FASOM estimates that most this additional cropland (212,000 acres) would be taken from Conservation Reserve Program (CRP) land and a smaller amount (7,000 acres) would be taken from cropland pasture. However, as discussed later in this section, the nationwide net effect on land use from the shock would affect other land types as well.

As crop area expands in North Dakota in response to the shock and livestock production shifts to this region, FASOM estimates total crop area would decrease in the rest of the U.S. FASOM estimates this dynamic would primarily shift production from Iowa and Kansas to North Dakota, suggesting a relatively modest northwesterly shift overall. On net, national crop area is estimated to expand by 60,600 acres in 2022. The modeled state-level changes in total harvested crop area are summarized in Table II.C.2.ii-6.

As FASOM estimates cropland would expand in North Dakota, the majority, about 212,000 acres, is estimated to shift into cropland status from land that is placed in CRP in the Control Case. The remaining area shifting into cropland status is estimated to shift from cropland pasture. As modeled crop production shifts on the margin out of Iowa and Kansas, FASOM estimates CRP area would increase in these regions to compensate for the decrease in North Dakota CRP area; nationwide CRP area does not change on net in our results. FASOM estimates pasture area would decrease nationwide as greater availability of livestock feed would slightly reduce demand for grazing. In some regions, FASOM estimates this previously grazed pastureland would be forested instead, leading to a modeled increase in forestland. The changes in total regional crop area are summarized in Table II.C.2.ii-7.

Like the assessment of domestic impacts using the FASOM model described in Section II.C.2, EPA used FAPRI to estimate the GHG emissions associated with producing canola oil biofuel from international land use change and livestock. This is the same methodology EPA previously used to estimate these emissions sources for soybean oil-based biodiesel and other agricultural feedstocks ( e.g., in the March 2010 RFS2 rule, but also in several subsequent pathway determinations). EPA updated several aspects of its analysis of the international GHG emissions associated with canola oil biofuel feedstock production this analysis, building on the FAPRI model used for EPA's analysis of the GHG emissions attributable to the production and transport of sugar beets for use as a biofuel feedstock. 46 In this section, we first review the updates made for this analysis. Following this, we present a summary of the FAPRI modeling results. 47

For this analysis, EPA updated FAPRI assumptions related to market conditions for canola seed, canola meal, and canola oil. This included assumptions about historical U.S. consumption, planted area, seed yields, and trade quantities. Updated assumptions for prices, planted area, and seed yields were primarily taken from NASS historical data sets. In some cases, these NASS data were supplemented with additional data taken from the USDA Oil Crop Yearbook and the USCA. In addition to updated canola yields in the U.S., USDA Foreign Agricultural Service (FAS) Production, Supply and Distribution (PSD) data  48 was used to update the FAPRI baseline trend of future yields in the EU, China, and Canada, regions where real-world yields had diverged most from previous FAPRI baseline assumptions.

Additionally, three elasticities were adjusted to better align the projected international canola market conditions from FAPRI with recent historical data. Notably, the previous FAPRI baseline did not reflect the emergence of Canada as an important producer and exporter of canola and canola oil. Changes were made to align production and trade patterns in Canada, China, and the European (EU) using historical data for the 2009/2010-2021/2022 model periods obtained from the USDA PSD database. The first adjustment made was to increase the crush demand elasticity of canola in Canada from 0.22 to 0.4 to reflect Canada's greater canola oil production and export relative to the previous FAPRI baseline. Increasing this elasticity estimate results in more canola crushed in Canada if the price increases. If Canada produces more canola oil, all else equal, Canadian exports would increase because of this assumption of increased elasticity. Second, we reduced the Chinese canola crush elasticity from 0.26 to 0.18 to reduce the higher-than-observed Chinese canola oil production and export in the FAPRI baseline relative to historical data. 49 As a results of this change, Chinese canola crushing is less responsive to a change in the price of canola. If China crushes less canola, all else equal, Chinese canola exports would decrease. Last, the own-price demand elasticity for rapeseed oil in China was reduced from -0.25 to -0.15. This adjustment was made to further reduce the strong Chinese canola oil export position estimated by the previous FAPRI baseline. Making the Chinese own-price elasticity of demand for canola oil more inelastic has the effect of making Chinese domestic consumption of canola oil less responsive (“stickier”) to changes in price.

EPA also updated the representation of canola and canola oil production in the India region to further align FAPRI with historical data. Indian trade of canola and canola oil are fixed in the FAPRI model at historical levels given very low levels of trade activity of these commodities historically. 50 Similarly, the FAPRI modeling for this proposed rule does not allow for any changes in Indian canola or canola oil production in response to increased demand for canola oil-based biofuels. In 2020, global exports of canola oil were 14 billion pounds. Of this total, India exported 11 million pounds, or 0.08 percent. India does not export any canola seed. 51 Therefore, we believe these adjustments are reasonable based on consideration of recent data and generally consistent with observed agricultural trade patterns. 52

To meet the 200 million gallons per year shock of canola oil biofuel, FAPRI estimates that the U.S. will import 100 percent of the feedstock required to meet the canola oil biodiesel shock in 2022. The FAPRI modeling results estimate that 48 percent of this canola oil feedstock would come from new production, with the remainder coming from shifts in other end uses. FAPRI estimates that global agricultural markets would provide the U.S. this feedstock in several ways. EU and Canadian net exports are estimated to increase by 750 and 278 million pounds, equivalent to 49 percent and 18 percent of the increase in U.S. net imports respectively. China's net imports of canola oil would be reduced by 362 million pounds relative to the baseline, equivalent to 23 percent of the increase in U.S. net imports. The remaining increase in U.S. net imports are modeled to be supplied through increased net exports from other countries.

FAPRI estimates that all of the canola oil to satisfy the shock would be supplied through increased net imports to the U.S. Since we use the FASOM results to estimate U.S. GHG emissions and the FAPRI results for non-U.S. GHG emissions, the effect of this discrepancy likely increases our GHG emissions estimates relative to a case where both models are perfectly aligned on the share of canola oil supplied through increased U.S. canola production. This is because we include the GHG emissions in the U.S. associated with producing 7 percent of the needed canola oil as estimated with FASOM and also the GHG emissions associated with producing 100 percent of the needed canola oil outside of the U.S. as estimated with FAPRI. For this reason, our estimates may be viewed as conservative ( i.e., resulting in greater GHG emissions). 53 In the March 2010 RFS2 rule, we considered comments that questioned the benefit of using both FASOM and FAPRI given the inconsistencies in the results and decided that the benefits of FASOM's more detailed representation of the U.S. agricultural and forestry sectors and associated GHG emissions outweighed the inevitable inconsistencies associated with using both models (75 FR 14768). We took steps in the March 2010 RFS2 rule and in the analysis for this proposed rule to reconcile the two model results to the extent possible by applying the same set of scenarios and key input assumptions in both models. 54 Overall, we believe the 7 percent difference in sourcing of U.S. canola oil supplies provides a reasonably aligned and conservative estimate of the lifecycle GHG emissions associated with scenario modeled.

FAPRI results show that canola seed production would increase by 1,743 million pounds and canola oil production by 733 million pounds globally in 2022 in response to the shock. Table II.C.3.ii-1 illustrates the source and amounts of additional canola and canola oil production in 2022.

While FAPRI estimates that the EU will produce the most additional canola (629 million pounds), Canada is estimated to produce the most additional canola oil (263 million pounds). This is because, in addition to increasing of domestic production of canola seed, Canada is also estimated to reduce net exports of canola seed by 146 million pounds, and to crush that additional amount of seed.

The amount and composition of land use change associated with these canola expansions varies by region. While FAPRI estimates that China would experience the largest expansion of canola acres in 2022 (285,000 acres), there would be a relatively small amount of net cropland expansion (12,000 acres) as there would also be reductions in wheat and corn acres. Similarly, is the results show a net reduction of 12,000 acres of cropland in Canada as wheat, corn, and barley production would be reduced due to a change in relative prices stemming from the canola oil shock. In the EU, there would be a net expansion of cropland of 103,000 acres, and in Brazil there would be an increase of 58,000 acres of cropland, led by corn and soybean expansion. FAPRI also estimates a reduction of 232,000 acres of pasture in Brazil, as the infusion of canola meal as a byproduct of additional canola crushing alleviates demand for grazing. In total, FAPRI estimates that cropland would expand by 372,000 acres outside of the U.S. in response to the shock.

All comments must be in writing and submitted through the method specified in the Addresses section above. All submissions must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message.

All comments will be made available at http://www.regulations.gov for public review without change, including any personal information provided. We recommend that you do not submit information that you consider Confidential Business Information (CBI) or any information that is otherwise protected from disclosure by statute.

USAID will only address substantive comments on the rule. USAID may not consider comments that are insubstantial or outside the scope of the proposed rule.

Several parts in the AIDAR are outdated and no longer comply with statutory requirements or current agency policies and procedures. USAID proposes to amend the AIDAR as follows:

1. 48 CFR part 726, subpart 726.71 Relocation of U.S. Businesses, Assistance to Export Processing Zones, Internationally Recognized Workers' Rights refers to agency Policy Determination (PD) 20, “Guidelines to Assure USAID Programs do not Result in the Loss of Jobs in the U.S.” PD 20 was replaced in agency policy by Automated Directives System (ADS) Chapter 225, Program Principles for Trade and Investment Activities and the “Impact on U.S. Jobs” and “Workers' Rights.” ADS 225 is available at https://www.usaid.gov/ads/policy/200/225. USAID proposes amending the AIDAR to revise subpart 726.71 to prescribe when to include a new clause in section 752.226-70 in a solicitation and contract.

ADS 225 mandates that requiring offices and planners perform the necessary analyses to ensure that USAID-funded “trade and investment” activities do not: (a) Provide financial incentives and other assistance for U.S. companies to relocate operations abroad if it is likely to result in the loss of U.S. jobs; (b) Contribute to violations of internationally recognized workers' rights defined in 19 U.S.C. 2467(4); (c) Provide financial incentives for entities located outside the United States to relocate or transfer jobs from the United States to other countries or provide financial incentives that would adversely affect the labor force in the United States; and/or (d) Provide assistance for enforcement of certain rules if the enforcement would prohibit certain coal-fired or other power-generation projects. If the analyses conclude that the activity is a “gray-area” as described in that chapter, and the contract statement of work includes either gray-area activities or investment-related activities where specific activities are not identified at the time of obligation but could be for investment-related activities, as described in ADS Chapter 225, then the requiring office will provide the contracting officer with a clause substantially the same as new section 752.226-70 to include in the solicitation and resulting contract.

2. USAID proposes to amend AIDAR Section 729.402-70 and the corresponding clause in 752.229-71 to update them to comply with current statutory requirements. The annual Department of State, Foreign Operations, and Related Programs Appropriations Act (SFOAA) mandates that agencies take certain actions to prevent taxation of foreign assistance provided with funds appropriated in an SFOAA, or to obtain full reimbursement of all taxes paid.

Consistent with the statutory requirements, the AIDAR includes a clause requiring contractors to annually report the amount of foreign taxes assessed against foreign assistance funding during the preceding fiscal year and not reimbursed. The AIDAR reporting requirement has not been updated to reflect the changes Congress made to the foreign tax provision in 2014, specifically the revisions to the definition of “foreign taxes” and the types of transactions subject to the reporting requirements. The statutory definition of that term now includes all types of taxes imposed by the foreign government, including but not limited to value added taxes (VAT) and customs duties, but excluding individual income taxes assessed to local staff. Consistent with the current version of the SFOAA, the types of reportable transactions are expanded from “commodity purchase transactions” to all taxes assessed, with the exception of any foreign tax of a de minimis nature.

3. Section 731.205-43 and the corresponding clause in 752.231-72 are amended to include the current agency policy and procedures for funding conference costs in USAID contracts. USAID proposes adding new sections 731.374 and 731.775 to include these approval policies and procedures in the cost principles for contracts with educational institutions and nonprofit organizations, respectively. USAID policy on conferences is in ADS 580 Conference Planning and Attendance, which is available at https://www.usaid.gov/ads/policy/500/580. USAID has revised ADS 580 several times since the AIDAR was initially amended to add these two sections; the most recent revision was in February 2021 and reduced the number of USAID employees attending a conference that triggers the requirement for the contractor to obtain the agency's prior approval from 20 to 10. This proposed rule includes this number, retains the current requirement for the contractor to obtain approval when the net conference expenses by USAID will exceed $100,000, and revises both sections for clarity.

Executive Orders (E.O.s) 12866, Regulatory Planning and Review, and 13563, Improving Regulation and Regulatory Review, 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 rule has been determined “nonsignificant” under E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.

USAID does not expect this proposed rule to 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. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.

The Paperwork Reduction Act (44 U.S.C. chapter 35) applies. The proposed rule contains information collection requirements. Accordingly, USAID has submitted a request for approval of a new information collection requirement concerning this rule to the Office of Management and Budget.

The outlined information collections are an element of a proposed rule that implements USAID requirements for reporting foreign tax and conference planning. The proposed rule will amend AIDAR Section 729.402-70 and the corresponding clause in 752.229-71 to align foreign tax reporting requirements with relevant statutory requirements (Collection 1); Section 731.205-43 and the corresponding clause in 752.231-72; and add new sections 731.374 and 731.775 (Collection 2). These last two revisions are to align the AIDAR with USAID's conference planning policy.

Submit comments, including suggestions for reducing this burden, not later than June 17, 2022 using the method specified in the Addresses section above.

Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the AIDAR, and 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.

Requesters may obtain a copy of the supporting statement by contacting policymailbox@usaid.gov. Please cite RIN Number 0412-AB04 in all correspondence.

The public reporting burden for this collection of information is estimated as follows:

Respondents: 900.

Responses per respondent: 1.

Total annual responses: 900.

Preparation hours per response: 1.

Total response burden hours: 900.

The public reporting burden for this collection of information is estimated as follows:

Respondents: 20.

Responses per respondent: 1.

Total annual responses: 20.

Preparation hours per response: 2.

Total response burden hours: 40.

For the reasons discussed in the preamble, USAID proposes to amend 48 CFR Chapter 7 as set forth below:

FRA periodically reviews, and proposes amendments to, its regulations to identify ways to enhance safety and streamline and update regulatory requirements. Various Executive orders also encourage or require such reviews with an emphasis on cost-savings. 1 This proposed rule would maintain and, in some cases, enhance safety, while allowing FRA to make better use of its inspection resources, and reduce the overall regulatory burden on railroads.

The Safety Glazing Standards (or part 223) contain minimum safety requirements for glazing materials in the windows of locomotives, passenger cars, and cabooses. FRA proposes to codify long-standing waivers  2 that have provided certain older railroad equipment relief from part 223. Through the waivers, FRA has generally provided relief from part 223's requirements for certain older railroad equipment operated at speeds not exceeding 30 miles per hour (mph) and used only where the risk of propelled or fouling objects ( e.g., cinder blocks or other solid objects hanging from bridges, overpasses, or like structures) striking the equipment is low. 3 Codifying these waivers through this rulemaking proceeding  4 would continue a high level of safety and allow FRA better flexibility to use its inspection resources and reduce the regulatory burden on the railroad industry by eliminating the need to continue to use the waiver process for relief, while providing the railroad industry with regulatory certainty as to the applicability of part 223 to certain older equipment. Codifying these waivers is also consistent with the requirements of section 22411 of the Infrastructure Investment and Jobs Act (Pub. L. 117-58). Section 22411 requires the Secretary to review and analyze existing waivers issued under 49 U.S.C. 20103 that have been in continuous effect for a 6-year period to determine whether issuing a rule consistent with the waiver is in the public interest and consistent with railroad safety. After conducting the appropriate analysis, if the Secretary concludes that it would be in the public interest and consistent with railroad safety to initiate a rulemaking to incorporate into the regulations the relevant aspects of the waivers analyzed, section 22411 specifically authorizes the Secretary to initiate such a rulemaking.

Appendix A to part 223 (appendix A) contains the performance criteria and the testing methodology for the required glazing materials. Appendix A requires glazing materials in locomotives and passenger cars to be subject to two specific tests—ballistic impact and large object impact testing. The large object impact test requires the use of a certain-sized cinder block that is no longer manufactured and can be difficult to recreate accurately. Accordingly, FRA is proposing to allow the large object impact test to be performed using an easily obtainable steel ball. Permitting use of a steel ball that can be acquired with consistent properties that will not deform during testing also makes the test more consistent and repeatable, which would increase reliability. Therefore, the alternative steel ball test would allow glazing manufacturers to adopt a test that would produce more consistent and accurate results to help ensure safety. Because, as discussed in Section III.B below, the steel ball test is at least equivalent to the existing cinder block test, safety would be maintained, if not enhanced, by the standardization of testing the steel ball test provides.

Finally, FRA proposes to revise several section headings in part 223 to replace terms that have become outdated. Since 1979, when FRA first published part 223, use of the terms “new” and “existing” in various section headings has become confusing. Accordingly, for clarity, FRA is proposing to amend the section headings to refer to the relevant compliance dates for each section.

The proposed rule would eliminate the need for railroads to submit waiver petitions (and repeated extensions of those waivers every 5 years) from part 223 for certain older railroad equipment, eliminate the Federal Government's need to review and approve the waiver petitions and extension requests, and reduce window glazing manufacturers' window glazing certification costs. FRA's estimates of cost savings for the NPRM are shown in the table below. FRA estimates there will be no costs associated with implementing the proposed rule.

In the 1970s, railroads recorded many incidents involving propelled or fouling objects ( e.g., stones, cinder blocks, and bullets) striking railroad vehicle windows, resulting in injuries to railroad employees and passengers. 6 Some of the incidents were caused by intentional acts of vandalism ( e.g., thrown rocks and stones); others resulted from routine rail operations ( e.g., ballast or debris kicked-up by oncoming trains); and some were believed to be accidental ( e.g., stray bullets from nearby hunting).

In 1979, FRA issued part 223 to protect railroad crew members and passengers when train windows are struck by propelled or fouling objects. Part 223 requires exterior windows in locomotives, cabooses, and passenger cars to be equipped with glazing that meets certain technical specifications designed to protect the vehicles' occupants from injury if a window is impacted by an object. 7 Appendix A outlines the criteria for certifying a window's glazing and ensures that glazing materials in rail equipment are significantly more resistant to impact than ordinary window glass or safety glass.

Part 223 requires all equipment built or rebuilt after June 31, 1980, to be equipped with certified glazing. With certain exceptions, part 223 also phases in requirements for equipment built or rebuilt prior to July 1, 1980. As a result, almost the entire railroad fleet is equipped with certified glazing.

The exceptions from part 223 include those for some older railroad equipment that is still in use today. Specifically, FRA's 2016 amendments to part 223 exclude equipment under § 223.3(b)(3) that is more than 50 years old and, except for incidental freight service, used only for excursion, educational, recreational, or private transportation purposes. 8 The amount of remaining older equipment that was not built or rebuilt with certified glazing prior to July 1, 1980, and is not excepted under § 223.3(b)(3), is very small. 9 As discussed below, however, much of this older equipment continues to operate today subject to individual waivers from part 223's requirements.

The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission cooperatively manage summer flounder, scup, and black sea bass. The Council and the Commission's Management Boards meet jointly each year to recommend recreational management measures. Recreational management measures are required to be set so that recreational harvest achieves, but does not exceed, the recreational harvest limit (RHL). For summer flounder and black sea bass, we must implement coastwide measures or approve conservation-equivalent measures per 50 CFR 648.102(d) and 648.142(d), as soon as possible following the Council and Commission's recommendation. This action proposes establishing conservation equivalency for both species in 2022. For scup, the regulations require us to propose additional management measures if the measures recommended by the Council and Commission alone will not constrain harvest as needed. As such, we are proposing a Federal recreational closure because harvest is expected to exceed the 2022 RHL and the adjustments recommended by the Council and Commission alone will not achieve the necessary reduction.

The Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan (FMP) establishes a Monitoring Committee consisting of representatives from the Commission, the Council, state marine fishery agencies from Massachusetts to North Carolina, and NMFS. The FMP's implementing regulations require the Monitoring Committee to review scientific and other relevant information annually. The objective of this review is to recommend management measures to the Council that will constrain landings within the RHL for the upcoming fishing year. The FMP restricts the options for managements measures to minimum and maximum fish size limits, per angler possession limits, and timing of the fishing season.

The Council and the Board then consider the Monitoring Committee's recommendations and any public comment in making their recommendations. The Council forwards its recommendations to NMFS for review. The Commission similarly adopts recommendations for the states. NMFS is required to review the Council's recommendations to ensure that they are consistent with the targets specified for summer flounder, scup, and black sea bass in the FMP and all applicable laws and Executive Orders before ultimately implementing measures for Federal waters. Commission measures are final at the time they are adopted.

The current Federal recreational scup management measures are a 9-inch (22.86-cm) minimum fish size, a 50-fish per person possession limit, and a year-round open season. State measures are similar but vary slightly due to differences in scup availability. Recreational landings in 2020 were 12.91 million lb (5,855 mt), which was nearly twice the 2020 RHL of 6.51 million lb (2,952 mt). The 2022 RHL is 6.08 million lb (2,757 mt), and harvest projections indicate that a 56-percent reduction in catch would be needed to constrain harvest to the 2022 RHL.

The Council and Board proposed a 1-inch (2.54-cm) increase to the scup recreational minimum size in state and Federal waters for 2022. In Federal waters, this results in a 10-inch total length minimum size. Collectively, this change in both state and Federal waters is expected to achieve an approximate 33-percent reduction in harvest. This is less than the estimated 56-percent reduction in harvest needed to constrain recreational harvest to the 2022 RHL. Because the action proposed by the Council and Board would not sufficiently reduce scup harvest as required by the FMP, we are required by the regulations at 50 CFR 648.122(b) to propose additional measures to ensure the scup recreational annual catch limit is not exceeded. We are proposing a closure for Federal waters, which is the only management measure available that would result in any meaningful reduction in harvest, even though less than 6 percent, on average, of recreational scup catch comes from Federal waters, and a reduction in catch of an additional 23 percent is needed to achieve, but not exceed, the RHL. This closure as proposed would apply to all recreational vessels fishing in Federal waters and all federally permitted for-hire vessels fishing in either state or Federal waters. While such a closure is not expected to achieve the full 23-percent reduction, we are required, per the FMP's implementing regulations, to propose additional management measures as the Council's and Commission's recommendations do not ensure that the recreational ACL would not be exceeded. Given the potential impacts of the closure we are seeking comments on additional or alternative measures that may also achieve the overarching objective of constraining harvest to the annual catch limit and preventing overfishing.

Under conservation equivalency, Federal recreational measures are waived and federally permitted party/charter vessels and all recreational vessels fishing in Federal waters are subject to the recreational fishing measures implemented by the state in which they land. This approach allows for more customized measures at a state or regional level that are likely to meet the needs of anglers in each area, compared to coastwide measures that may be advantageous to anglers in some areas and unnecessarily restrictive in others. The combination of state or regional measures must be “equivalent” in terms of conservation ( i.e., not expected to exceed the RHL) to a set of “non-preferred coastwide measures,” which are recommended by the Council and the Board each year.

The Council and Board annually recommend that either state- or region-specific recreational measures be developed (conservation equivalency) or that coastwide management measures be implemented to ensure that the RHL will not be exceeded. Even when the Council and Board recommend conservation equivalency, the Council must specify a set of non-preferred coastwide measures that would apply if conservation equivalency is not approved for use in Federal waters.

When conservation equivalency is recommended, and following confirmation by the Commission that the proposed state or regional measures developed through its technical and policy review processes achieve conservation equivalency, NMFS may waive, for the duration of the fishing year, the permit condition found at 50 CFR 648.4(b) that requires Federal permit holders to comply with the more restrictive management measures when state and Federal measures differ. In such a situation, federally permitted summer flounder and black sea bass charter/party permit holders and individuals fishing for summer flounder and black sea bass in the exclusive economic zone (EEZ) are subject to the recreational fishing measures implemented by the state in which they land, rather than the coastwide measures. Conservation equivalency expires at the end of each fishing year (December 31).

In addition, the Council and the Board must recommend precautionary default measures when recommending conservation equivalency. The Commission would require adoption of the precautionary default measures by any state that either does not submit a management proposal to the Commission's Technical Committee or that submits measures that are not conservationally equivalent to the coastwide measures.

The development of conservation-equivalency measures happens at both the Commission and at the individual state level. The selection of appropriate data and analytical techniques for technical review of potential state conservation-equivalent measures and the process by which the Commission evaluates and recommends proposed conservation-equivalent measures are wholly a function of the Commission and its individual member states. Individuals seeking information regarding the process to develop specific state or regional measures or the Commission process for technical evaluation of proposed measures should contact the marine fisheries agency in the state of interest, the Commission, or both.

Once the states and regions select their final 2022 summer flounder and black sea bass management measures through their respective development, analytical, and review processes and submit them to the Commission, the Commission will conduct further review and evaluation of the submitted proposals, ultimately notifying NMFS as to which proposals have been approved or disapproved. NMFS has no overarching authority in the development of state or Commission management measures but is an equal participant along with all the member states in the review process. NMFS neither approves nor implements individual states' measures but retains the final authority either to approve or to disapprove the use of conservation equivalency in place of the coastwide measures in Federal waters. The final combination of state and regional measures will be detailed in a letter from the Commission to the Regional Office certifying that the combination of state and regional measures have met the conservation objectives under Addendum XXXII to the Commission's Interstate FMP and are expected to constrain catch to the 2022 recreational harvest limit. NMFS will publish its determination on 2022 conservational equivalency as a final rule in the Federal Register following review of the Commission's determination and any other public comment on this proposed rule.

This action proposes adopting conservation equivalency for summer flounder in 2022, with regional measures expected to achieve, but not exceed, the 2022 RHL of 10.36 million lb (4,699 mt). Based on the analysis conducted by the Monitoring Committee, the Council and Board recommended that recreational summer flounder measures can be liberalized, allowing for up to a 16.5-percent increase in recreational harvest.

For 2022, non-preferred coastwide measures approved by the Council and Board are a 18.5-inch (47-cm) minimum fish size, a 4-fish per person possession limit, and an open season from May 15-September 15. The only adjustment compared to 2021 is a decrease in the non-preferred minimum size from 19-inches to 18.5-inches (48.26-cm to 21.59-cm) total length. The coastwide measures become the default management measures in the subsequent fishing year, in this case 2023, until the joint process establishes either coastwide or conservation-equivalency measures for the next year.

The 2022 precautionary default measures recommended by the Council and Board are identical to those in place for 2021: A 20.0-inch (50.8-cm) minimum fish size; a 2-fish per person possession limit; and an open season of July 1-August 31, 2022. These measures may be assigned by the Commission if conservation equivalency is approved but a state or region does not submit a conservationally equivalent proposal.

This action proposes adopting conservation equivalency for black sea bass in 2022, with regional measures expected to achieve, but not exceed, the 2022 RHL of 6.74 million lb (3,057 mt). To achieve but not exceeded the RHL, a harvest reduction of 20.7 percent is needed. Preliminary analysis suggested the need for a 28-percent reduction, but subsequent analyses conducted by the Technical Committee resulted in the Council and Board adopting a reduction target of 20.7 percent. Consistent with this required reduction, the Council and Board recommended the following coastwide measures: A 14-inch (35.56-cm) minimum size; a 5-fish possession limit; and an open season of May 15-October 8. The recommended precautionary default measures are a 16-inch (40.64-cm) minimum size, a 3-fish possession limit, and an open season of June 24-December 31.

The current regulations developed by the Mid-Atlantic Fishery Management Council for summer flounder, scup, and black sea bass require NMFS to implement recreational management measures that are projected to ensure the sector-specific ACL for an upcoming fishing year or years will not be exceeded. The regulations do not provide flexibility to consider factors such as biomass or fishing mortality in the measure-setting process. Black sea bass and scup are at high levels of biomass, but projected recreational catch and harvest significantly exceeds the previously adopted ACLs and RHLs.

The current recreational management measure setting process was developed as part of the FMP by the Council in conjunction with the Board. We are required to act consistent with the regulations implementing the previously approved FMP. Absent Secretarial action, NMFS cannot change the process for setting recreational management measures, including the factors considered. We are required to propose recreational management measures (possession limit, size limit, and season) that are expected to achieve the recreational ACL. The Council and Board are currently considering changes to the recreational management process. Until the Council and Board take action to modify the FMP's underlying requirements relating to the setting of recreational management measures, we are required to propose recreational management measures consistent with the FMP requirements and corresponding regulations.

Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Act, the Assistant Administrator has determined that this proposed rule is consistent with the Summer Flounder, Scup, and Black Sea Bass FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment. This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The Council conducted an evaluation of the potential socioeconomic impacts of the proposed measures. According to the commercial ownership database, 361 for-hire affiliate firms generated revenues from recreational fishing for various species during the 2018-2020 period. All of those business affiliates are categorized as small businesses. For purposes of the Regulatory Flexibility Act, a for-hire recreational fishing business with receipts of up to $11 million is considered a small entity. The 3-year average (2018-2020) combined gross receipts (all for-hire fishing activity combined) for these small entities was $49,916,903, ranging from less than $10,000 for 105 entities (lowest value $46) to over $1,000,000 for 8 entities (highest value $3.6 million). Estimating what proportion of the overall revenues of these for-hire firms came from fishing activities for an individual species is not possible. Nevertheless, given the popularity of summer flounder, scup, and black sea bass as a recreational species in the Mid-Atlantic and New England, revenues generated from these species are likely very important for many of these firms at certain times of the year.

For summer flounder and black sea bass, this proposed action would waive Federal measures in lieu of state measures designed to reach the 2022 harvest limits. For scup, this action proposes to close the Federal recreational scup fishery (zero possession), and increase the Federal minimum size from 9 to 10 inches (22.86 to 25.4 cm). The economic impacts of the proposed measures in this action will be affected in part by the specific set of measures implemented at the state level. The impacts are likely to vary by state, but 2022 state measures will likely be liberalized for summer flounder, and will be more restrictive for black sea bass and scup compared to 2018-2021.

The entities affected by this action include recreational for-hire operations holding federal summer flounder, scup, or black sea bass party/charter permits. For-hire revenues are impacted by a variety of factors, including regulations and demand for for-hire trips for summer flounder, scup, black sea bass, and other potential target species; weather; the economy; and other factors. In addition, under similar regulations, recreational harvest of these species is variable. Therefore, it is not possible to accurately quantify the economic impact of the summer flounder liberalization or the black sea bass or scup restrictions on for-hire revenues. However, it would generally be expected that for-hire revenues may slightly increase in 2022 in response to the summer flounder liberalization and slightly decrease in response to the black sea bass and scup restrictions, assuming all other factors that impact revenues are unchanged.

The proposed Federal scup closure would apply to all vessels fishing in Federal waters, and any Federal scup charter/party permit holder. Because for-hire revenues are generated by trip sales and not harvest, and because scup generally not the primary, or only target species, during recreational trips, NMFS does not believe that the proposed closure would have a significant impact on for-hire revenues. Furthermore, impacts to Federal permit holders may be reduced if these vessels “drop” their Federal scup permit for the remainder of the fishing year, allowing them to continue to target and retain scup in state waters, in accordance with state regulations.

Therefore, although it is not possible to accurately quantify the economic impact of the summer flounder liberalization or the black sea bass or scup restrictions on for-hire revenues, it would generally be expected that for-hire revenues may slightly increase in 2022 in response to the summer flounder liberalization and slightly decrease in response to the black sea bass and scup restrictions, assuming all other factors that impact revenues are unchanged. As a result, this rule will not have a significant economic impact on a substantial number of small entities. Therefore, an initial regulatory flexibility analysis is not required and none has been prepared.

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

For the reasons set out in the preamble, 50 CFR part 648 is proposed to be amended as follows: