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-2022-1060; Project Identifier MCAI-2022-00251-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 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, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 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.

The FAA issued AD 2021-14-08, Amendment 39-21635 (86 FR 34933, July 1, 2021) (AD 2021-14-08), for all Airbus SAS Model A319-151N, A319-153N, A319-171N, A320-251N, A320-252N, A320-253N, A320-271N, A320-272N, A320-273N, A321-251N, A321-251NX, A321-252N, A321-252NX, A321-253N, A321-253NX, A321-271N, A321-271NX, A321-272N, and A321- 272NX airplanes. AD 2021-14-08 requires revising the existing AFM to include a procedure to reinforce the airspeed check during the take-off phase and provide instructions to abort take-off in certain cases. The FAA issued AD 2021-14-08 to address airspeed discrepancies, which could lead to an unstable flight path after take-off, possibly resulting in reduced control of the airplane.

The preamble to AD 2021-14-08 explains that the FAA considers that AD to be interim action and that further action might follow. Since the FAA issued AD 2021-14-08, the manufacturer developed a software update to the ELAC to address the unsafe condition, and the FAA has determined that further rulemaking is necessary. Installation of this software update would eliminate the need for the AFM revision required by AD 2021-14-08.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0028, dated February 22, 2022 (EASA AD 2022-0028) (also referred to as the MCAI), to correct an unsafe condition for all Airbus SAS Model A319-151N, -153N, and -171N airplanes; Model A320-251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model A321-251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes.

This proposed AD was prompted by the development of a software update to the ELAC to address the unsafe condition. The FAA is proposing this AD to address airspeed discrepancies, which could lead to an unstable flight path after take-off, possibly resulting in reduced control of the airplane. See the MCAI for additional background information.

Although this proposed AD does not explicitly restate the requirements of AD 2021-14-08, this proposed AD would retain all of the requirements of AD 2021-14-08. Those requirements are referenced in EASA AD 2022-0028, which, in turn, is referenced in paragraph (g) of this proposed AD.

EASA AD 2022-0028 specifies procedures for, among other actions, revising the AFM to include a procedure to reinforce the airspeed check during the take-off phase and provide instructions to abort take-off in certain cases ( e.g., and unreliable airspeed situation or certain airspeed differences); replacing each affected ELAC with a serviceable ELAC (one with the updated ELAC software standard); and removing the AFM revision required by AD 2021-14-08. EASA AD 2022-0028 also prohibits installation of affected ELACs. 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 the same type designs.

This proposed AD would retain all requirements of AD 2021-14-08. This proposed AD would require accomplishing the actions specified in EASA AD 2022-0028 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD, and except as discussed under “Differences Between this AD and the MCAI.”

Paragraph (3) of EASA AD 2022-0028 requires revising the minimum equipment list (MEL) to incorporate an EASA master minimum equipment list (MMEL) change to mandate that the integrated standby instrument system (ISIS) airspeed indication must be operative. However the FAA MMEL does not provide relief for an inoperative ISIS airspeed indication function. Therefore, paragraph (3) of EASA AD 2022-0028 is unnecessary for this AD.

EASA AD 2022-0028 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 2022-0028 by reference in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2022-0028 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 2022-0028 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 2022-0028. Service information required by EASA AD 2022-0028 for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1060 after the FAA final rule is published.

The FAA estimates that this proposed AD affects 204 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's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E surface airspace, and the Class E airspace extending upward from 700 feet above the surface at Liberal Mid-America Regional Airport, Liberal, KS, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-1004/Airspace Docket No. 22-ACE-16.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to 14 CFR part 71 by:

Amending the Class E surface airspace at Liberal Mid-America Regional Airport, Liberal, KS, by removing the Liberal VORTAC and associated extensions from the airspace legal description; updating the name (previously Liberal Municipal Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and updating the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”;

And amending the Class E airspace extending upward from 700 feet above the surface within a 6.7-mile (increased form a 6.4-mile) radius of Liberal Mid-America Regional Airport; removing the Liberal VORTAC and associated extensions from the airspace legal description; updating the extension south of the airport to 3.9 (increased from 3) miles each side of the 180° bearing from the Liberal Mid-America Regional: RWY 35-LOC (previously ILS localizer course) extending from the 6.7-mile (increased from 6.4-mile) radius of the airport to 11.9 (decreased from 12) miles south of the airport; and updating the name (previously Liberal Municipal Airport) and geographic coordinates of the airport and the name of the Liberal Mid-America Regional: RWY 35-LOC (previously Liberal Municipal Airport ILS) to coincide with the FAA's aeronautical database.

This action is necessary due to an airspace review as part of the decommissioning of the Liberal VOR, which provided navigation information for the instrument procedures this airport, as part of the VOR MON Program.

Class E airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E surface airspace and Class E airspace extending upward from 700 feet above the surface at Bartlesville Municipal Airport, Bartlesville, OK; amend the Class E airspace extending upward from 700 feet above the surface at Miami Regional Airport, Miami, OK; and remove the Class E airspace extending upward from 700 feet above the surface at Jane Phillips Medical Center Heliport, Bartlesville, OK, and Baptist Regional Health Center Heliport, Miami, OK, to support instrument flight rule operations at these airports.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-1002/Airspace Docket No. 22-ASW-20.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to 14 CFR part 71 by:

Amending the Class E airspace surface airspace to within a 4.1-mile (decreased from 4.3-mile) radius of Bartlesville Municipal Airport, Bartlesville, OK; and within 1 mile each side of the 359° bearing from the airport extending from the 4.1-mile radius to 4.6 miles north of the airport; and within 1.5 miles each side of the Bartlesville VOR/DME 168° radial extending from the 4.1-mile radius of the airport to 4.4 miles south of the airport; and within 1 mile each side of the 179° bearing from the airport extending from the 4.1-mile radius to 4.5 miles south of the airport; removing the exclusionary language from the airspace legal description as there is no technical requirement for this area and it imposes on protected airspace needed for the current public instrument procedures; updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replacing the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”;

Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile (decreased from a 6.8-mile) radius of Bartlesville Municipal Airport; amending the extension north of the airport to within 4 miles (increased from 2.2 miles) each side of the 359° bearing from the Bartlesville Municipal: RWY 17-LOC (previously Dewie LOM) extending from the 6.6-mile (decreased from 6.8-mile) radius of the airport to 14.1 miles (increased from 11.7 miles) north of the airport; amending the extension south of the airport to 4.1 miles east and 7.6 miles west (previously 1.6 miles each side) of the Bartlesville VOR/DME 168° (previously 176°) radial extending from the 6.6-mile (decreased from 6.8-mile) radius to 15.5 (increased from 11.3) miles south of the Bartlesville VOR/DME (previously the airport); removing the extension north of the airport from the Bartlesville VOR/DME as it is no longer needed; removing the Jane Phillips Medial Center Heliport point in space and associated airspace as the associated instrument procedures have been cancelled and the airspace is no longer required; removing the Dewie LOM from the airspace legal description as it is no longer required; and updating the geographic coordinates of the airport and the Bartlesville VOR/DME to coincide with the FAA's aeronautical database;

And amending the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (decreased from a 7.3-mile) radius of Miami Regional Airport, Miami, OK; removing the Baptist Regional Health Center Heliport point in space coordinates and associated airspace from the airspace legal description as the associated instrument procedures have been cancelled and the airspace is no longer required; and updating name of the airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review conducted as part of the decommissioning of the Oswego VOR, which provided navigation information for the instrument procedures at these airports, as part of the VOR MON Program.

Class E airspace designations are published in paragraphs 6002 and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the Class E airspace extending upward from 700 feet above the surface at Menominee Regional Airport, Menominee, MI, to support instrument flight rule operations at this airport.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2022-1003/Airspace Docket No. 22-AGL-30.” The postcard will be date/time stamped and returned to the commenter.

All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this notice may be changed in light of the comments received. A report summarizing each substantive public contact with FAA personnel concerned with this rulemaking will be filed in the docket.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

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

The FAA is proposing an amendment to 14 CFR part 71 by amending the Class E airspace extending upward from 700 feet above the surface at Menominee Regional Airport, Menominee, MI, by removing the extension to the north of the airport as it is no longer required; and updating the name (previously Menominee-Marinette Twin County Airport) and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is due to an airspace review conducted as part of the decommissioning of the Menominee VOR, which provided navigation information for the instrument procedures at this airport, as part of the VOR MON Program.

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

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

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

On June 6, 2018, section 151 of Public Law 115-182, the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018, or the VA MISSION Act of 2018, amended title 38 of the United States Code (U.S.C.) by adding a new section 1730C, titled Licensure of health care professionals providing treatment via telemedicine. On June 11, 2018, a final rule VA published in May 2018, 83 FR 21897, titled Authority of Health Care Providers to Practice Telehealth (RIN 2900-AQ06), became effective; this regulation, which established 38 CFR 17.417, grants VA health care providers the ability to provide telehealth services within their scope of practice, functional statement, and/or in accordance with privileges granted to them by VA, in any location, within any State, irrespective of the State or location within a State where the health care provider or the beneficiary is physically located. Congress was aware VA was promulgating this regulation and sought to codify VA's telehealth authority through legislation. See H.R. Rep. No. 115-671, Part I, at 13-14. Congress passed the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (2021 NDAA), which further amended the definition of health care professional by including post graduate health care employees and health professions trainees. See Public Law 116-283, sec. 9101, January 2, 2021. Given the enactment of these laws, we are updating our regulations to implement the new statutory authority.

Section 1730C provides a definition of covered health care professionals that differs from the definition of health care provider under § 17.417(a). We propose this regulation to make these definitions consistent. Section 1730C(b)(1)(A) defines a covered health care professional to include those VA employees appointed under 38 U.S.C. 7306, 7401, 7405, 7406, 7408 and title 5 of the U.S. Code. Section 17.417(a) defined a health care provider as an individual who is appointed to an occupation in the Veterans Health Administration that is listed in or authorized under 38 U.S.C. 7401(1) or (3). To maintain consistency between 38 U.S.C. 1730C and § 17.417, VA is proposing to amend the definition of health care provider to instead refer to health care professionals. We would also renumber the definition in § 17.417 for clarity. VA proposes to add in § 17.417(a)(2)(i) that a health care professional would include those individuals who are appointed under 38 U.S.C. 7306, 7401, 7405, 7406, 7408, and title 5 of the U.S. Code.

VA is further proposing to amend the definition of health care professional to be consistent with section 1730C(b)(1)(C) in proposed § 17.417(a)(2)(ii) to state that VA health care professionals would be required to adhere to all standards for quality relating to the provision of health care in accordance with applicable VA policies. We note that while the statute uses the phrase provision of medicine, we propose to use the phrase provision of health care because we understand these terms to be equivalent and because the term health care is used more frequently in VA's regulations than medicine.

Consistent with current § 17.417, we would state in proposed § 17.417(a)(2)(iii) that VA-contracted health care professionals remain excluded from the definition of health care professional. We maintain this exclusion because contracted health care professionals and community care professionals are not appointed under 38 U.S.C. 7306, 7401, 7405, 7406, 7408, or title 5, U.S. Code.

We would also state in proposed § 17.417(a)(2)(iv)(A) that the health care professional is qualified to provide health care based on having an active, current, full, and unrestricted license, registration, certification, or satisfy another State requirement in a State to practice the health care profession of the health care professional. This language is similar to the language in section 1730C(b)(1)(D)(i).

Proposed § 17.417(a)(2)(iv)(B) would include those health care professions listed under 38 U.S.C. 7402(b)(14) that, although they may not be required to be licensed, registered or certified in their health care profession, may be required to satisfy another State requirement in a State that might limit them to practice telehealth. This additional provision would recognize such qualifications as prescribed by the Secretary for those health care professions listed under 38 U.S.C. 7402(b)(14). This amendment is consistent with section 1730C(b)(1)(D)(2). Additionally, the proposed updates to the regulation are permitted pursuant to three general statutory provisions that permit VA to authorize health care practices by health care professionals at VA: 38 U.S.C. 303, 38 U.S.C. 7401, and 38 U.S.C. 7403(a)(1).

Proposed § 17.417(a)(2)(iv)(C) would be consistent with section 1730C(b)(1)(B) and state that a health care professional is an employee otherwise authorized by the Secretary to provide health care services.

The statutory authorities under 38 U.S.C. 303, 7401, and 7403(a)(1) also permit the VA Secretary to authorize VA health care professionals, including health professions trainees, other health care professionals, and those listed in the proposed regulation, to engage in telehealth. In addition, the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 amended section 1730C to expressly identify such persons within its statutory authority. We note that section 1730C uses the term postgraduate health care employee. However, we would instead use the term health care professional to maintain consistency in terminology with other regulations. See § 17.419. We would, therefore, state in proposed § 17.417(a)(2)(iv)(D) that a health care professional would also include those individuals who are under the clinical supervision of a health care professional that meets the requirements of paragraphs (a)(2)(iv)(A) through (C) of this section and is either a health professions trainee or a health care employee.

Health professions trainees work in an apprenticeship model with VA-employed health care professionals as part of their training programs and are not required to have a license, registration, certification, or other State requirement. Health professions trainees are appointed under 38 U.S.C. 7405 or 7406. Section 1730C(b)(3) authorizes trainees to provide health care via telehealth and as such, we would state in § 17.417(a)(2)(iv)(D)( 1 ) that such trainee must be a health professions trainee appointed under 38 U.S.C 7405 or 38 U.S.C 7406 participating in clinical or research training under supervision to satisfy program or degree requirements.

Similarly, section 1730C(b)(2) includes health care employees who are appointed under title 5, U.S. Code, 38 U.S.C. 7401(1), (3), or 38 U.S.C. 7405 for any category of personnel described in 38 U.S.C. 7401(1) or (3). Health care employees must obtain full and unrestricted licensure, registration, or certification or meet the qualification standards as defined by the Secretary within the specified time frame. We would state these requirements in § 17.417(a)(2)(iv)(D)( 2 ).

We propose to amend § 17.417(b)(1) for clarity. We would clarify the first part of the first sentence of § 17.417(b)(1), which would now be numbered as § 17.417(b)(1), by stating that when a State law, license, registration, certification, or other State requirement is inconsistent with this section, the health care professional is required to abide by their Federal duties and requirements. We would make this clarification because without a broad, clear statement about which standards a health care professional should follow when State requirements are inconsistent with VA requirements for a health care professional's practice via telehealth, such State requirements would create ambiguity for VA health care professionals, thereby delaying telehealth service delivery, and preventing VA from training and overseeing VA health care professionals based on a single, consistent standard. This change would also be consistent with the statute governing licensure requirements of VA health care professionals' practice via telehealth. See 38 U.S.C. 1730C(d)(1). One example is if VA requires verbal consent for telehealth but a State required written consent, the VA health care professional would only be required to obtain verbal consent. Alternatively, if State law did not require obtaining consent at all, but VA policy required verbal consent, the VA health care professional would still be required to obtain verbal consent. Another example is when a State has a specific training requirement for a health care professional for telehealth. We note that VA has specific training requirements for health care professionals who practice via telehealth that do not include each State's specific training or telehealth requirements. The VA health care professional must comply with VA's training requirement in order to practice via VA's telehealth program. In all instances, VA policy would establish requirements for quality and processes that would be met in all cases, but VA health care professionals would not be required to take additional steps or actions beyond those established in VA policy to comply with State law requirements.

We propose to add a new § 17.417(b)(2), which would restate the second part of the first sentence of current § 17.417(b)(1). However, we would clearly state that in order for the health care professional to be covered under this section, such professional must be practicing within the scope of their Federal duties. The provision of telehealth outside of the scope of the health care professional's Federal duties would not be covered by this rulemaking. We would, therefore, state in proposed § 17.417(b)(2) that VA health care professionals may practice their health care profession within the scope of their Federal duties in any State irrespective of the State or location within a State where the health care professional or the beneficiary is physically located, if the health care professional is using telehealth to provide health care to a beneficiary.

We propose to add a new § 17.417(b)(3) to restate the second sentence of current § 17.417(b)(1), but would add that the practice is limited by the Controlled Substances Act and its implementing regulations. Proposed § 17.417(b)(3) would state that health care professionals' practice is subject to the limitations imposed by the Controlled Substances Act, 21 U.S.C. 801, et seq. and implementing regulations at 21 CFR part 1300 on the authority to prescribe or administer controlled substances, as well as any other limitations on the provision of VA care set forth in applicable Federal law, regulation, and policy.

Section 1730C provides VA's authority to establish the scope of practice for health care professionals who practice telehealth. Section 1730C(d)(1) provides that federal law shall supersede any provisions of the law of any State to the extent that such provisions of State law are inconsistent with it. States are, therefore, prevented from interfering with the exercise of VA duties by imposing requirements that are inconsistent with federal duties and requirements of health care professionals who practice within the scope of their VA employment. While there is a general requirement that a Federal employee be licensed, registered, or certified by a State, a line must be drawn between reasonable and established rules of practice, which are understood to be incorporated by reference by Federal statutes requiring Federal employees to carry licenses, and rules that would penalize or otherwise interfere with the performance of authorized federal duties. See State Bar Disciplinary Rules as Applied to Federal Government Attorneys, 9 Op. O.L.C. 71, 72-73 (1985) (quotations omitted). A State's licensure laws or rules that would prevent a VA health care professional from engaging in telehealth would fall into the latter category and therefore could be preempted. Given our statutory authority under section 1730C, which supersedes any provisions of State law to the extent that such provision of State law are inconsistent with a VA health care professional's practice via telehealth, we propose to remove the last part of the last sentence in § 17.417(b)(1).

We propose to add a new § 17.417(b)(4), which would restate § 17.417(b)(2) with changes described herein. We are clarifying current § 17.417(b)(4)(iii) and (iv). The current language is not clear as to where the health care professional or the beneficiary is located. Proposed paragraph § 17.417(b)(4) (iii) would now state the health care professional is delivering services while the professional is located in a State other than the health care professional's State of licensure, registration, or certification. Proposed § 17.417(b)(4)(iv) would now state the health care professional is delivering services while the professional is either on or outside VA property.

We propose to clarify current § 17.417(b)(2)(v) to be inclusive of all beneficiaries. We note that all beneficiaries do not identify as she or he. We would, therefore, amend § 17.417(b)(2)(v) to state the beneficiary is receiving services while the beneficiary is located either on or outside VA property.

Current § 17.417(b)(2)(vi) states that situations where a health care provider's VA practice of telehealth may be inconsistent with a State law, or State license, registration, or certification, or other requirement include when the beneficiary has or has not previously been assessed, in person, by the health care provider. We propose to eliminate the term “has” as it refers to having been previously assessed in person. Some States require that a patient be first assessed in person prior to being provided health care via telehealth. Therefore, this part of the provision would not be inconsistent with some State requirements. Proposed § 17.417(b)(4)(vi) would only provide for situations that would be inconsistent with State law or State license, registration, certification, or other requirements related to telehealth, which includes when the beneficiary has not been previously assessed, in person, by the health care professional. The proposed change would also be consistent with section 1730C(d)(1).

We propose to add a new § 17.417(b)(4)(vii), which would provide another example of a situation where a State license, registration, certification, or other State requirement may be inconsistent or conflict with VA policy. One example would be where a beneficiary has not provided VA with a signed written consent in order to receive health care via telehealth. This example is added because some States do not allow a health care professional to provide telehealth services to a beneficiary unless the beneficiary has signed a written consent form. VA regulations only require verbal consent for the provision of telehealth. Requiring signature consent would disadvantage beneficiaries who do not possess the technology or digital skills to complete a remote signature consent prior to their telehealth visits. This provision would allow for the provision of health care services via telehealth. VA is already bound to informed consent requirements under 38 U.S.C. 7331 as implemented by 38 CFR 17.32. Section 17.32 of 38 CFR mandates that all patient care furnished under title 38, including health care services via telehealth, shall be carried out with the full and informed consent of the patient or, in appropriate cases, a representative thereof. That consent is not required to be in writing except in the narrow circumstances set forth in 38 CFR 17.32(d)(1). Thus, because 38 U.S.C. 7331 requires, in relevant part, that the Secretary of Veterans Affairs, prescribe regulations to ensure, to the maximum extent practicable, that all VA patient care be carried out only with the full and informed consent of the patient, or in appropriate cases, a representative thereof, and VA has implemented 38 CFR 17.32 establishing the standards for obtaining informed consent from a patient for a medical treatment or a diagnostic or therapeutic procedure, we assert that 38 CFR 17.32, combined with 38 U.S.C. 7331 categorically excludes any State regulation of how VA health care professionals go about obtaining informed consent.

We would not restate current § 17.417(b)(2)(vii) because this information is already captured in proposed § 17.417(b)(1).

Finally, we propose to revise the list of authorities cited for § 17.417 to include section 1730C. We note that all prior authorities cited by this regulation would continue to apply and could protect VA health care professionals practicing telehealth in situations not covered by section 1730C. For example, section 1730C only protects VA health care professionals providing treatment to individuals under chapter 17 of title 38, U.S.C. VA provides treatment to servicemembers and other beneficiaries of the Department of Defense who are not eligible for VA health care under chapter 17 pursuant to sharing agreements entered into under section 8111 in chapter 81 of title 38, U.S.C. VA's general authority on which its original regulations were premised, 38 U.S.C. 303, 7401, and 7403(a)(1), would continue to cover VA health care professionals furnishing health care not otherwise covered by section 1730C. We propose to also include 38 U.S.C. 7306, 7405, 7406, and 7408. These new authorities cover individuals who would now be included as health care professionals under the proposed definition in § 17.417(a)(2). In addition, we would also include 38 U.S.C. 7331, which would cover the informed consent as previously stated in this rulemaking. The statutory authority for § 17.417 would now be 38 U.S.C. 1701 (note), 1709A, 1712A (note), 1722B, 1730C, 7301, 7306, 7330A, 7331, 7401-7403, 7405, 7406, 7408.

Executive Order 13132 provides the requirements for preemption of State law when it is implicated in rulemaking. Where a Federal statute does not expressly preempt State law, agencies shall construe any authorization in the statute for the issuance of regulations as authorizing preemption of State law by rulemaking only when the exercise of State authority directly conflicts with the exercise of Federal authority or there is clear evidence to conclude that the Congress intended the agency to have the authority to preempt State law. Through this rulemaking process, we can preempt any State law or action that conflicts with the exercise of Federal duties in providing health care via telehealth to VA beneficiaries.

In addition, any regulatory preemption of State law must be restricted to the minimum level necessary to achieve the objectives of the statute pursuant to the regulations that are promulgated. In this rulemaking, State licensure, registration, and certification laws, rules, regulations, or other State requirements are preempted only to the extent such State laws are inconsistent with the VA health care professionals' practicing health care via telehealth while acting within the scope of their VA employment. VA also has statutory authority under 38 U.S.C. 1730C to preempt State law. Therefore, we believe that the rulemaking is restricted to the minimum level necessary to achieve the objectives of the Federal statute.

The Executive Order also requires an agency that is publishing a regulation that preempts State law to follow certain procedures. These procedures include: the agency consult with, to the extent practicable, the appropriate State and local officials in an effort to avoid conflicts between State law and federally protected interests; and the agency provide all affected State and local officials notice and an opportunity for appropriate participation in the proceedings.

Because this proposed rule would preempt certain State laws, VA consulted with State officials in compliance with sections 4(d) and (e), as well as section 6(c) of Executive Order 13132. On August 21, 2019, VA sent a letter to the following: National Association of Boards of Pharmacy (NABP), Association of State and Provincial Psychology Boards, National Governors Association, American Academy of Physicians Assistants (AAPA), National Council of State Boards of Nursing (NCSBN), National Association of State Directors of Veterans Affairs, Association of Social Work Boards (ASWB), and the Federation of State Medical Boards to state VA's intent to amend the current regulations that allow VA health care professionals to practice telehealth.

We received 11 comments from the State officials. We received three comments fully supporting the rule. The AAPA supported the objective of the proposed amendment to ensure qualified health care professionals, including trainees, employed by VA, provide veterans with the same high level of care and access to care no matter where a beneficiary or health care provider is located at the time health care is provided. AAPA also appreciated VA proposing to modify the telehealth regulation to add clarity so that, in situations where VA rules governing the practice of telehealth are in conflict with State laws or State license, registration, or certification requirements, the health care professional practicing telehealth at VA is required to adhere to VA policy or standards and is not at risk of losing their State license. AAPA stated that it supports the efforts VA is undertaking to improve the delivery of care for our nation's veterans and stands ready to assist VA in meeting its challenge to provide veterans with timely access to high quality medical care.

NABP supported expanding health care delivery by means of telehealth, specifically telepharmacy, and recognizes that telehealth can provide patients with quality health care that they may not otherwise receive or have difficulty accessing. The Model State Pharmacy Act and Model Rules of the National Association of Boards of Pharmacy (Model Act) provides model regulatory language for NABP's member boards. Pursuant to the recommendation of NABP's Task Force on the Regulation of Telepharmacy Practice, the Model Act was amended to include the practice of telepharmacy. The State boards of pharmacy also recognize the important benefits of telehealth services to the public. According to information provided to NABP from the State boards of pharmacy, approximately 40 States allow the practice of telepharmacy in some manner. NABP stated that it would communicate VA's intention to expand health care to veterans through telemedicine, encourage the State boards of pharmacy to review existing pharmacy laws and rules for hinderances to implementation of telemedicine services to veterans, and encourage the boards to make amendments to State laws and rules to facilitate telehealth access to veterans. NABP stated that the practice of telehealth, specifically telemedicine, between a health care provider and a veteran receiving care through the Veterans Health Administration is not typically subject to State regulatory oversight. One scenario that NABP wished to highlight is the legitimacy of controlled substance (CS) prescriptions that are issued by means of telecommunications that do not involve an initial face-to-face encounter for an exam/assessment, but are otherwise valid prescriptions under the Controlled Substances Act. If a CS prescription is issued via telemedicine without a face-to-face encounter and a veteran seeks the services of a community pharmacy to meet his or her immediate need, the community pharmacists may not be authorized to dispense the CS according to certain State pharmacy laws. Therefore, NABP stated it would communicate to the State boards of pharmacy about VA's telehealth initiative to help bridge the gap between the need for health care and veterans' access to it.

We received a comment from the Association of State and Provincial Psychology Boards (ASPPB). Based on a review of the information shared within the recent VA correspondences to ASPPB and ASPPB's knowledge of the strong training programs that occur throughout the nation under the authority of the VA, the ASPPB stated that they have no comments to refute the proposed upcoming changes to VA regulatory language on VA's proposed plans to amend its regulations to remove barriers and accelerate access to telehealth for veterans.

The other comments received were mostly in favor of the rule, however, the commenters expressed concern surrounding the addition of trainees as health care professionals who would be allowed to practice telehealth within the scope of their VA duties. The comments are as follows:

The ASWB requested a clarification of the definition of trainee. The ASWB asked if the term trainee included social work students in field placement only or if trainees included master of social work graduates under clinical supervision working towards licensure. The ASWB added that in both of these scenarios, the trainees would be bound to adhere to VA policies and procedures in addition to school policies as students and State policies while working towards their State licensure. The ASWB also stated that it requires a licensed social worker to obtain a State license in the State where the client is located as well as the State where the health care provider is located. The ASWB understands that VA has secure, advanced, and supervised telehealth infrastructure in place that protects the health care professional and client and is able to provide support services while the health care professional is practicing in a VA medical facility. However, the ASWB believes that this may not be the case in circumstances where the health care professional is practicing telehealth outside a VA medical facility. Social work regulators believe that by requiring a social worker to obtain a license in each jurisdiction where practice occurs, the client is better protected. The ASWB emphasized that jurisdictional boards have the power to investigate any complaints made against licensed social workers employed in VA and that VA's full cooperation with the investigation and enforcement related to licenses is needed for true protection of the public.

In response to ASWB's concerns, we note that VA has the statutory authority under 38 U.S.C. 1730C(d)(1) to preempt any provisions of the law of any State to the extent that such provisions of State law are inconsistent with this section. In addition, VA has already established in 38 CFR 17.417 that this section preempts conflicting State laws relating to the practice of health care providers when such health care providers are practicing telehealth within the scope of their VA employment. As such, VA has the authority to allow social workers to practice health care via telehealth. Also, the qualifications of a VA social worker are stated in 38 U.S.C. 7402(b)(9), which include that the social worker must hold a master's degree in social work from a college or university approved by the Secretary and be licensed or certified to independently practice social work in a State. With regards to social worker trainees, VA never intended that these trainees work without the supervision of an otherwise licensed social worker. The trainees will be supervised while practicing health care via telehealth. We appreciate the commenter's recognition of the quality of the VA telehealth program and that VA maintains a secure, advanced, and supervised telehealth infrastructure irrespective of the veterans or health care professional's location when delivering VA.

The NCSBN expressed concern regarding the expansion of telehealth privileges to nurse assistants and other assistive personnel as outlined in 38 U.S.C. 7401. Nurse assistants and other assistive personnel do not have a national governing body, leaving the regulation of these occupations to the individual States. The majority of States do not license the occupation and have widely inconsistent standards for certification. There is no national database for agencies to report disciplinary actions for many assistive personnel roles, creating a public protection issue for these for patients receiving care across State lines. NCBSN provided the following example: if VA fired a nurse assistant following an interstate telehealth interaction, there is no infrastructure by which those States can communicate nationally to ensure that appropriate disciplinary action is taken against the provider's licensure/certification across the country. Therefore, it would be possible that the provider could continue to practice in a different system and State without suffering any consequences. Additionally, NCSBN did not support allowing unlicensed or pre-licensure nurses to provide telehealth services as would be allowable for temporary full-time appointments under 38 U.S.C 7405. Boards of Nursing (BONs) do not have authority to discipline pre-licensure nurses, as they do not have an active license. Furthermore, BONs are unable to determine a nurse's competency without the completion and passage of the National Council Licensure Examination. Without a license, a nurse cannot be held accountable for a mistake by a BON, because there is no means to report them to a BON if an adverse event takes place. This also means there is no recourse for the patient if they are harmed. By allowing pre-licensure nurses to deliver telehealth services, VA would be exposing patients and nurses in the process of seeking licensure to great risk. Further, NCSBN stated that section 1730C(b)(1) defines a covered health professional as not only an employee of the Department appointed under the authority under section 7306, 7405, 7406, or 7408 of this title or title 5, but also a health care professional who has “an active, current, full and unrestricted license, registration and certification in a State to practice the health care profession of the health care professional.” NCSBN stated that while 38 U.S.C. 7405 includes unlicensed or pre-licensure individuals, it believed section 1730C explicitly states that in order to practice telemedicine, a provider must have an active license. NCSBN stated its firm belief that nurses should be fully licensed before practicing to ensure that they provide safe, competent care and retain the public protection mechanisms that allows VA to report disciplinary actions to the appropriate State licensing boards.

VA recognizes that 38 U.S.C. 1730C(b)(1)(D)(i) states that a covered health care professional must have an active, current, full, and unrestricted license, registration, or certification in a State to practice the health care profession of the health care professional. However, 38 U.S.C. 1730C was updated by the 2021 NDAA and section 1730C(b)(2) and (b)(3) now includes those individuals who are trainees and post graduate employees appointed under 38 U.S.C. 7405 and 7406. In addition, VA requires supervision of trainees pre-licensed nurses by a qualified health care professional who meet the requirement of stated in section 1730C(b)(1). VA also continuously monitors all health care professionals, including trainees, and has procedures in place to report any adverse action to the appropriate State licensing board.

VA received several comments regarding trainees. The commenters from the Virginia Board of Medicine, Federation of State Medical Boards, Kansas State Board of Healing Arts, and the Wisconsin Medical Examining Board stated that to ensure consistency in the quality of care between veterans and the general public, trainees should not be allowed to practice telehealth without supervision and that only such trainees that possessed full and unrestricted licenses should practice health care via telehealth. The commenters added that the care that is provided by VA must be of the highest quality, meaning from physicians who have been trained to practice independently, have proven their knowledge, clinical acumen, and skills, or, if not, are under the supervision of another physician who has. A commenter added that the proposed rule to amend the definition of health care provider to include trainees and authorize trainees to provide health care or telemedicine would mean that a trainee could practice independently via telemedicine or independently provide other health care without supervision, in violation of their license and with the risks of providing less than optimal care and potentially putting patients' lives at risk. They further stated that the proposed rule fails to recognize not only that States differ in qualifications to get a training license but also that these trainees differ in their knowledge and capabilities. In addition, a commenter argued that assigning a person with a trainee license to provide telemedicine or other health care is contrary to the VA mission and core value of excellence. Finally, they concluded that expanding the definition of health care provider to include trainees and asserting that where State law is inconsistent with VA practice the VA standards will prevail or supersede State law will promote lower standards of care for veterans.

In response to the comments about trainees and postgraduate employees practicing independently through telehealth, this rulemaking would not allow these individuals to practice without clinical supervision. In fact, this rulemaking explicitly requires that trainees and postgraduate employees only participate in telehealth under clinical supervision by an employee who is licensed, registered, or certified by a State, or under clinical supervision by an employee who otherwise meets qualifications as defined by the Secretary.

To be covered by the authorization to practice telehealth in 38 U.S.C. 1730C(b), a VA health care professional must have an active, current, full, and unrestricted license, registration, or certification in a State to practice the health care profession of the health care professional or, with respect to a health care profession listed under section 7402(b) of Title 38, have qualifications for such profession as set forth by the secretary. Trainees and postgraduate employees are expressly authorized to participate in telehealth in the 2021 NDAA updates to 38 U.S.C. 1730C, but only under the supervision of one of these health care professionals.

Additionally, the VA Secretary has statutory authority independent of 38 U.S.C. 1730C to permit the authorization of health care practices by health care professionals at VA pursuant to 38 U.S.C. 303, 501, and 7403.

Thus the VA Secretary has the authority to authorize by regulation the practice of telehealth by the VA health care professionals listed in 38 U.S.C. 7401 and by VA health care professional trainees appointed under 38 U.S.C. 7405 or 7406.

We also received a comment from the National Board for Certification in Occupational Therapy and another from the Federation of State Boards of Physical Therapy, however, these comments were received outside the 30-day comment period. These commenters may submit a comment during the rulemaking's notice and comment period. We received a response from the National Association of State Directors of Veterans Affairs, however, we consider these comments outside the scope of this rulemaking and do not make any changes based on these comments.

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

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

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

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

The Assistance Listing numbers and titles for the programs affected by this document are: 64.007, Blind Rehabilitation Centers; 64.008, Veterans Domiciliary Care; 64.009, Veterans Medical Care Benefits; 64.010, Veterans Nursing Home Care; 64.011, Veterans Dental Care; 64.012, Veterans Prescription Service; 64.013, Veterans Prosthetic Appliances; 64.018, Sharing Specialized Medical Resources; 64.019, Veterans Rehabilitation Alcohol and Drug Dependence; 64.022, Veterans Home Based Primary Care; 64.039, CHAMPVA; 64.040, VHA Inpatient Medicine; 64.041, VHA Outpatient Specialty Care; 64.042, VHA Inpatient Surgery; 64.043, VHA Mental Health Residential; 64.044, VHA Home Care; 64.045, VHA Outpatient Ancillary Services; 64.046, VHA Inpatient Psychiatry; 64.047, VHA Primary Care; 64.048, VHA Mental Health Clinics; 64.049, VHA Community Living Center; and 64.050, VHA Diagnostic Care.

Administrative practice and procedure, Alcohol abuse, Alcoholism, Claims, Day care, Dental health, Drug abuse, Foreign relations, Government contracts, Grant programs-health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Medical and dental schools, Medical devices, Medical research, Mental health programs, Nursing homes, Reporting and recordkeeping requirements, Scholarships and fellowships, Travel and transportation expenses, Veterans.

Denis McDonough, Secretary of Veterans Affairs, approved this document on July 21, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons set forth in the preamble, the Department of Veterans Affairs proposes to amend 38 CFR part 17 as set forth below:

On February 22, 2013, EPA issued a Federal Register notice of proposed rulemaking (NPRM) outlining EPA's policy at the time with respect to SIP provisions related to periods of SSM. EPA analyzed specific SSM SIP provisions and explained how each one either did or did not comply with the Clean Air Act (CAA) with regard to excess emission events. 1 For each SIP provision that EPA determined to be inconsistent with the CAA, EPA proposed to find that the existing SIP provision was substantially inadequate to meet CAA requirements and thus proposed to issue a SIP call under CAA section 110(k)(5). On September 17, 2014, EPA issued a document supplementing and revising what the Agency had previously proposed in the 2013 NPRM in light of a United States Court of Appeals for the District of Columbia Circuit decision in which the Court found that the CAA precludes authority of EPA to create affirmative defense provisions applicable to private civil suits. EPA outlined its updated policy that affirmative defense SIP provisions are not consistent with CAA requirements. EPA proposed in the supplemental proposal document to apply its revised interpretation of the CAA to specific affirmative defense SIP provisions and proposed SIP calls for those provisions where appropriate. See 79 FR 55920 (September 17, 2014).

On June 12, 2015, pursuant to CAA section 110(k)(5), EPA finalized “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls To Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown and Malfunction,” hereinafter referred to as the “2015 SSM SIP Action.” See 80 FR 33839 (June 12, 2015). The 2015 SSM SIP Action clarified, restated, and updated EPA's interpretation that SSM exemption and affirmative defense SIP provisions are inconsistent with CAA requirements. The 2015 SSM SIP Action found that certain SIP provisions in 36 states were substantially inadequate to meet CAA requirements and issued a SIP call to those states to submit SIP revisions to address the inadequacies. EPA established an 18-month deadline by which the affected states had to submit such SIP revisions. States were required to submit corrective revisions to their SIPs in response to the SIP calls by November 22, 2016.

EPA issued a memorandum in October 2020 (2020 Memorandum), which stated that certain provisions governing SSM periods in SIPs could be viewed as consistent with CAA requirements. 2 Importantly, the 2020 Memorandum stated that it “did not alter in any way the determinations made in the 2015 SSM SIP Action that identified specific state SIP provisions that were substantially inadequate to meet the requirements of the Act.” Accordingly, the 2020 Memorandum had no direct impact on the SIP call issued to South Carolina in 2015. The 2020 Memorandum did, however, indicate EPA's intent at the time to review SIP calls that were issued in the 2015 SSM SIP Action to determine whether EPA should maintain, modify, or withdraw particular SIP calls through future agency actions.

On September 30, 2021, EPA's Deputy Administrator withdrew the 2020 Memorandum and announced EPA's return to the policy articulated in the 2015 SSM SIP Action (2021 Memorandum). 3 As articulated in the 2021 Memorandum, SIP provisions that contain exemptions or affirmative defense provisions are not consistent with CAA requirements and, therefore, generally are not approvable if contained in a SIP submission. This policy approach is intended to ensure that all communities and populations, including overburdened communities, receive the full health and environmental protections provided by the CAA. 4 The 2021 Memorandum also retracted the prior statement from the 2020 Memorandum regarding EPA's plans to review and potentially modify or withdraw particular SIP calls. That statement no longer reflects EPA's intent. EPA intends to implement the principles laid out in the 2015 SSM SIP Action as the Agency takes action on SIP submissions, including South Carolina's November 4, 2016, SIP submittal, provided in response to the 2015 SIP call. 5

With regard to the South Carolina SIP, in the 2015 SSM SIP Action, EPA determined that two of the South Carolina SIP provisions identified in the petition for rulemaking filed by the Sierra Club with the EPA Administrator on June 30, 2011 (the Petition), S.C. Code Ann. Regs. (Regulation) 61-62.5 Standard No. 1, Section I.C, “Visible Emissions,” and Regulation 61-62.5, Standard No. 4, Section XI.D.4, “Total Reduced Sulfur (TRS) Emissions of Kraft Pulp Mills,” were substantially inadequate to meet CAA requirements. See 80 FR at 33964. In addition, in the 2015 SSM SIP Action, EPA identified one provision that provided an affirmative defense for excess emissions that occur during emergencies under Regulation 61-62.1, Section II.G.6, “Emergency Provisions” (now Section II.L, as explained below in Section II of this NPRM). This provision was not identified in the Petition but was included by EPA in the 2015 SSM SIP Action because EPA determined that it was substantially inadequate to meet CAA requirements. See id. The rationale underlying EPA's determination that these provisions are substantially inadequate to meet CAA requirements, and therefore to issue a SIP call to South Carolina to remedy the provisions, is detailed in the 2015 SSM SIP Action and the accompanying proposals. South Carolina submitted a SIP revision to EPA on November 4, 2016, 6 in response to the SIP call issued in the 2015 SSM SIP Action. EPA is proposing to approve South Carolina's November 4, 2016, SIP revision as it relates to SSM events, which would remedy the SIP-called provisions. In addition, EPA is proposing to approve portions of South Carolina's SIP revisions submitted on October 1, 2007, 7 July 18, 2011, 8 August 8, 2014, 9 and August 12, 2015, 10 that re-organize and re-number sections to clarify and streamline permitting requirements, update internal references, correct typographical errors, and incorporate minor updates to the language for clarification and consistency in South Carolina's SIP. Although these submittals include changes to several South Carolina air quality regulations, in today's proposed action, EPA is only proposing to act on the portions of each submission related to the 2015 SSM SIP Action, which include revisions to Regulation 61-62.1, Section II.L; Regulation 61-62.5, Standard No. 1, Section I.C; and Regulation 61-62.5, Standard No. 4, Section XI.D.4. EPA has acted or will act on all other changes included in the October 1, 2007, July 18, 2011, August 8, 2014, and August 12, 2015, submissions in separate actions. 11

In the 2015 SSM SIP Action, and as fully explained in the September 2014 supplemental notice of proposed rulemaking, EPA identified as inadequate and issued a SIP call for South Carolina's Regulation 61-62.1, Section II.G.6, titled “Emergency Provisions,” which provides an affirmative defense for excess emissions during emergencies. To address this SIP-called provision, South Carolina's November 4, 2016, SIP revision seeks to remove the affirmative defense for excess emissions that occur during emergencies, provide minor changes to the wording, and renumber and otherwise revise the provisions to reflect the removal of the affirmative defense provision (including replacing a reference to “demonstration” of the affirmative defense of an emergency with a reference to “documentation” of an emergency). EPA is proposing to approve this removal and to approve portions of the October 1, 2007, and August 8, 2014, SIP revisions as they relate to Section II.G.6, including the renumbering of Section II.G.6 to II.L.

The October 1, 2007, SIP revision seeks to renumber Regulation 61-62.1, Section II.G.6, as approved in the existing South Carolina SIP, as Regulation II.L and to remove the entry at Section II.G.6. The effect of relocating the provision to Section II.L is that the “Emergency Provisions” section is now a stand-alone section applicable to all air quality permits issued by the State, whereas Section II.G.6 previously applied to conditional major operating permits only. EPA is also proposing to approve minor changes from the August 8, 2014, revision which renumber the subparagraphs in the 2007 version of Section II.L as II.L.2 and II.L.3 and make minor changes related to internal citations. 12 The combined effect of these two SIP revisions, as it relates to the inadequate provisions identified in the 2015 SSM SIP Action, is to renumber II.G.6.b (the affirmative defense provision) as II.L.2 and renumber II.G.6.c. (the affirmative defense documentation provision) as II.L.3.

The November 4, 2016, SIP revision removes paragraph II.L.2 (the affirmative defense provision), renumbers the documentation provision from paragraph II.L.3 to paragraph II.L.2, and removes the affirmative defense language from the documentation provision. Thus, the “Emergency Provisions” section of Regulation 61-62.1, as revised, no longer provides an affirmative defense for emergencies.

Approval of these intervening changes previously submitted to EPA would not affect EPA's basis for the SIP call on this provision as provided in the 2015 SSM SIP Action. EPA is approving only the intervening changes from the current SIP-approved version of Regulation 61-62.1, Section II, as transmitted in the October 1, 2007, and August 8, 2014, SIP revisions in conjunction with the changes transmitted in the November 4, 2016, submittal, to remove the affirmative defense provisions. EPA proposes to find that the October 1, 2007, August 8, 2014, and November 4, 2016, SIP revisions, as they relate to Regulation 61-62.1, Section II.G.6 (now Regulation 61-62.1, Section II.L) are consistent with CAA requirements and adequately address the specific deficiencies in this provision that EPA identified in the 2015 SSM SIP Action with respect to the South Carolina SIP.

In the 2015 SSM SIP Action, EPA issued a SIP call for Regulation 61-62.5, Standard No. 1 titled “Emissions from Fuel Burning Operations,” Section I titled “Visible Emissions,” Subsection C titled “Special Provisions,” because it provided an exemption from opacity limits for excess emissions from fuel-burning operations that occur during startup or shutdown and was inadequate to meet the fundamental requirements of the CAA. To address this deficiency, South Carolina's November 4, 2016, SIP submission, in relevant part, seeks to remove the portion of Regulation 61-62.5, Standard No. 1, Section I.C, that provides the exemption. The portion being removed states, “The opacity standards set forth above do not apply during startup or shutdown.” In addition to correcting the specific deficiency in that provision that EPA identified in the 2015 SSM SIP Action, EPA proposes to approve other minor revisions, as they relate to Section I.C, from the July 18, 2011, and August 12, 2015, submissions.

The July 18, 2011, submittal seeks to amend the language in Regulation 61- 62.5, Standard No. 1, Section I.C to exclude natural gas-fired units from a requirement to maintain startup, shutdown, and maintenance records. 13 On August 12, 2015, South Carolina submitted an additional revision to this provision which seeks to modify the language to include propane-fired units in the exemption as well. 14 On August 16, 2017, EPA published a direct final rule to approve the July 18, 2011, and August 12, 2015, revisions to Section I.C. See 82 FR 38829. However, since Section I.C was SIP-called in the 2015 SSM SIP Action, EPA withdrew the direct final rule and thus did not approve this portion of the July 18, 2011, and August 12, 2015, submittals. EPA is now proposing to act on these changes to the SIP-called provision in conjunction with the State's November 4, 2016, SIP revision, which addresses the deficiencies identified in the 2015 SSM SIP Action.

Section 110(l) of the CAA provides that EPA shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in CAA section 171), or any other applicable requirement of the CAA. South Carolina considered CAA section 110(l) in requesting the changes described in the preceding paragraph. The net changes to Section I.C requested by South Carolina mean that the applicable opacity standards will apply at all times to the SIP units specified at Sections I.A and I.B of Regulation 61-62.5, Standard No. 1, and only those units burning natural gas or propane exclusively will be excluded from the requirement to maintain logs of startup and shutdown periods. In a letter dated December 30, 2016, 15 South Carolina explains that the State expects no increase in actual emissions as a result of exempting units burning only natural gas and propane fuels from maintaining logs of startup and shutdown periods because there are minimal opacity concerns with these fuels during startup, shutdown, or other operational modes. Because natural gas and propane contain relatively minor amounts of sulfur and the combustion of these fuels results in relatively minor emissions of particulate matter, sulfur dioxide, and sulfuric acid, all of which could result in visible emissions, opacity is expected to be minimal when these fuels are burned exclusively. See 58 FR 3590, 3645, 3656 (January 11, 1993). Furthermore, these requested changes to Section I.C will not result in any increase in emissions because they do not change any applicable emission limitations and will not affect the State's ability to attain or maintain state or federal standards or reasonable further progress. Thus, EPA proposes to find that the July 18, 2011, August 12, 2015, and November 4, 2016, SIP revisions pertaining to Regulation 61-62.5, Standard No. 1, Section I.C, are consistent with CAA requirements and adequately address the specific deficiencies in this provision that EPA identified in the 2015 SSM SIP Action with respect to the South Carolina SIP.

In the 2015 SSM SIP Action, EPA determined that Regulation 61-62.5, Standard No. 4 titled “Emissions from Process Industries,” Section XI titled “Total Reduced Sulfur (TRS) Emissions of Kraft Pulp Mills,” Subsection D titled “Monitoring, Recordkeeping, and Reporting,” Paragraph 4, was substantially inadequate to meet the fundamental requirements of the CAA, as it provided an exemption from sulfur limits for kraft pulp mills for excess emissions that occur during SSM. In the November 4, 2016, submission, South Carolina requests removal of Regulation 61-62.5, Standard No. 4, Section XI.D.4, thereby eliminating the exemption from sulfur limits for kraft pulp mills for excess emissions that occur during SSM events. EPA proposes to find that South Carolina's SIP revision removing Section XI.D.4 is consistent with CAA requirements and adequately addresses the specific deficiency in this provision that EPA identified in the 2015 SSM SIP Action with respect to the South Carolina SIP.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). As described in Section II of this NPRM, EPA is proposing to approve South Carolina's November 4, 2016, SIP submission with respect to Regulation 61-62.1, Section II.L; Regulation 61-62.5, Standard No. 1, Section I.C; and Regulation 61-62.5, Standard No. 4, Section XI.D.4. EPA is also proposing to approve portions of the October 1, 2007, July 18, 2011, August 8, 2014, and August 12, 2015, South Carolina SIP submissions that seek revisions to these provisions, as specified in Section II of this NPRM. EPA is further proposing to find that these SIP revisions correct the deficiencies identified in the 2015 SSM SIP Action and fully satisfy South Carolina's obligations with respect to the SIP call included in the 2015 SSM SIP Action. Accordingly, the approval would remove the inconsistency between the EPA's SIP-approved rules and South Carolina's rules ( i.e., a “SIP gap”) for Regulation 61-62.1, Section II.L; Regulation 61-62.5, Standard No. 1, Section I.C; and Regulation 61-62.5, Standard No. 4, Section XI.D.4. EPA is not reopening the 2015 SSM SIP Action and is taking comment only on whether this SIP revision is consistent with CAA requirements and whether it addresses the substantial inadequacies in the specific South Carolina SIP provisions identified in the 2015 SSM SIP Action.

In this document, EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as discussed in Sections I through III of this preamble, EPA is proposing to incorporate by reference into the South Carolina SIP Regulation 61-62.1, Section II.L, “Emergency Provisions,” State effective on September 23, 2016;  16 Regulation 61-62.5, Standard No. 1, Section I, “Visible Emissions,” State effective on September 23, 2016; and Regulation 61-62.5, Standard No. 4, Section XI, “Total Reduced Sulfur (TRS) Emissions of Kraft Pulp Mills,” State effective on September 23, 2016. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. See 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 they meet the criteria of the CAA. Accordingly, these proposed actions merely approve removal of State law not meeting Federal requirements and do not impose additional requirements beyond those already imposed by State law. For that reason, these proposed actions:

• Are not “significant regulatory actions” 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);

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

• Are 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. );

• Do 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);

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

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

• Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Are 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 CAA; and

• Do 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).

Because these proposed actions merely propose to approve state law as meeting Federal requirements and do not impose additional requirements beyond those imposed by state law, these proposed actions for the State of South Carolina do not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, these proposed actions will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by state law or local governing bodies, in accordance with the Settlement Act.

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations in title 50 of the Code of Federal Regulations (50 CFR part 424) set forth the procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants (Lists or List) in 50 CFR part 17. Section 4(b)(3)(A) of the Act requires that we make a finding on whether a petition to add a species to the List ( i.e., “list” a species), remove a species from the List ( i.e., “delist” a species), or change a listed species' status from endangered to threatened or from threatened to endangered ( i.e., “reclassify” a species) presents substantial scientific or commercial information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90 days of our receipt of the petition and publish the finding promptly in the Federal Register .

Our regulations establish that substantial scientific or commercial information with regard to a 90-day petition finding refers to credible scientific or commercial information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the action proposed in the petition may be warranted (50 CFR 424.14(h)(1)(i)). A positive 90-day petition finding does not indicate that the petitioned action is warranted; the finding indicates only that the petitioned action may be warranted and that a full review should occur.

A species may be determined to be an endangered species or a threatened species because of one or more of the five factors described in section 4(a)(1) of the Act (16 U.S.C. 1533(a)(1)). The five factors are:

(a) The present or threatened destruction, modification, or curtailment of its habitat or range (Factor A);

(b) Overutilization for commercial, recreational, scientific, or educational purposes (Factor B);

(c) Disease or predation (Factor C);

(d) The inadequacy of existing regulatory mechanisms (Factor D); and

(e) Other natural or manmade factors affecting its continued existence (Factor E).

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to, or are reasonably likely to, affect individuals of a species negatively. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition, or the action or condition itself. However, the mere identification of any threat(s) may not be sufficient to compel a finding that the information in the petition is substantial information indicating that the petitioned action may be warranted. The information presented in the petition must include evidence sufficient to suggest that these threats may be affecting the species to the point that the species may meet the definition of an endangered species or threatened species under the Act.

If we find that a petition presents such information, our subsequent status review will evaluate all identified threats by considering the individual-, population-, and species-level effects and the expected response by the species. We will evaluate individual threats and their expected effects on the species, then analyze the cumulative effect of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that are expected to have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts that may ameliorate threats. It is only after conducting this cumulative analysis of threats and the actions that may ameliorate them, and the expected effect on the species now and in the foreseeable future, that we can determine whether the species meets the definition of an endangered species or threatened species under the Act. If we find that a petition presents substantial scientific or commercial information indicating that the petitioned action may be warranted, the Act requires that we promptly commence a review of the status of the species, and we will subsequently complete a status review in accordance with our prioritization methodology for 12-month findings (81 FR 49248; July 27, 2016).

We note that designating critical habitat is not a petitionable action under the Act. Petitions to designate critical habitat (for species without existing critical habitat) are reviewed under the Administrative Procedure Act and are not addressed in this finding (see 50 CFR 424.14(j)). To the maximum extent prudent and determinable, any proposed critical habitat will be addressed concurrently with a proposed rule to list a species, if applicable.

For petitions to revise critical habitat, our regulations establish that substantial scientific information with regard to a 90-day petition finding refers to “credible scientific information in support of the petition's claims such that a reasonable person conducting an impartial scientific review would conclude that the revision proposed in the petition may be warranted” (50 CFR 424.14(i)(1)(i)). In determining whether a revision of critical habitat may be warranted, we may consider the following:

(1) Areas that the current designation does not include that should be included, or includes that should no longer be included, and any benefits of designating or not designating these specific areas as critical habitat;

(2) The physical or biological features essential for the conservation of the species and whether they may require special management considerations or protection;

(3) For any areas petitioned to be added to critical habitat within the geographical area occupied by the species at the time it was listed, information indicating that the specific areas contain one or more of the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the conservation of the species and that may require special management considerations or protection;

(4) For any areas petitioned for removal from currently designated critical habitat within the geographical area occupied by the species at the time it was listed, information indicating that the specific areas do not contain the physical or biological features (including characteristics that support ephemeral or dynamic habitat conditions) that are essential to the conservation of the species, or that these features do not require special management considerations or protection; and

(5) For areas petitioned to be added to or removed from critical habitat that were outside the geographical area occupied by the species at the time it was listed, information indicating why the petitioned areas are or are not essential for the conservation of the species.

Section 4(b)(3)(D) of the Act requires that we make a finding on whether a petition to revise a critical habitat designation presents substantial scientific information indicating that the petitioned action may be warranted. To the maximum extent practicable, we are to make this finding within 90-days of our receipt of the petition and publish the finding promptly in the Federal Register .

The petition findings contained in this document are listed in the tables below, and the basis for each finding, along with supporting information, is available on https://www.regulations.gov under the appropriate docket number.

Fish Lake Valley tui chub ( Siphateles bicolor ssp. 4); Nevada.

On March 10, 2021, we received a petition from the Center for Biological Diversity requesting that the Fish Lake Valley tui chub be listed as an endangered species or a threatened species and critical habitat be designated for the species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(c). This finding addresses the petition.

The petitioner provided credible information indicating potential threats to the Fish Lake Valley tui chub due to Factor A (effects of agriculture, encroachment of aquatic plants, geothermal energy, lithium mining) and Factor E (climate change and stochastic events).

We reviewed the petition, sources cited in the petition, and other readily available information. Based on our review of the petition and readily available information regarding Factors A and E, we find that the petition presents substantial scientific or commercial information indicating that listing the Fish Lake Valley tui chub ( Siphateles bicolor ssp. 4) as an endangered or threatened species may be warranted. The Service will fully evaluate all potential threats during our 12-month status review, pursuant to the Act's requirement to review the best available scientific information when making that finding.

The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at https://www.regulations.gov under Docket No. FWS-R8-ES-2022-0010 under the Supporting Documents section.

Pryor Mountain mustang population ( Equus caballus ); Montana, Wyoming.

On June 19, 2017, we received a petition dated June 12, 2017, from Friends of Animals requesting that the Pryor Mountain mustang population be listed as an endangered species or a threatened species under the Act. However, the Service notified the petitioner that the submission did not qualify as a petition because it did not include copies of required notification letters or electronic communications to State agencies in affected areas as required by 50 CFR 424.14(c).

The petitioner filed a complaint challenging the Service's denial of the petition, and following litigation and appeal, on July 19, 2021, the petition was remanded to the Service. This finding addresses the petition.

We evaluated information provided in the petition to determine if the petition identified an entity that may be eligible for listing as a distinct population segment (DPS) under the Service's Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS policy) (61 FR 4722; February 7, 1996). The petition presents substantial information that the Pryor Mountain mustang population may be discrete due to its physical separation from other feral horse herds, but it does not present substantial information that the population may be significant to the taxon as a whole. The petition makes no assertion that it occurs in an unusual or unique ecological setting or that it represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range. The petition does not present substantial information that loss of the discrete population segment would result in a significant gap in the range of the taxon ( Equus caballus ), or that the discrete population segment differs markedly from other populations of the taxon in its genetic characteristics. Nor does the petition present any other information in support of the significance of the Pryor Mountain population. Furthermore, the weight of scientific evidence based on readily available information shows that feral horses are nonnative and may impede the conservation of ecosystems upon which endangered and threatened species depend. Therefore, we did not further evaluate whether the petition presents substantial information indicating that the petitioned action may be warranted.

Based on our review of the petition, sources cited in the petition, and other readily available information, we find that the petition does not present substantial scientific or commercial information indicating that the petitioned entity may be a listable entity under the Act. The petition does not present substantial scientific or commercial information indicating that the petitioned entity may meet the significance criteria of our 1996 DPS policy (61 FR 4722) and, therefore, that it is a listable entity under the Act.

Because the petition does not present substantial information indicating that the Pryor Mountain mustang population may be a listable entity under the Act, we are not initiating a status review of this population in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this population or its habitat or new information that qualifies this population as listable entity under the Act at any time (see appropriate contact under FOR FURTHER INFORMATION CONTACT , above).

The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at https://www.regulations.gov under Docket No. FWS-R6-ES-2022-0011 under the Supporting Documents section.

Sonora chub ( Gila ditaenia ); Arizona, Mexico.

On August 6, 2021, we received a petition dated July 30, 2021, from Center for Biological Diversity, requesting that critical habitat be revised for the Sonora chub, a threatened species under the Act. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(c). This finding addresses the petition.

We evaluated information provided in the petition to determine if a revision to the existing critical habitat designation to include the California Gulch may be warranted. The petition does not present substantial scientific information that demonstrates that California Gulch is essential to the conservation of Sonora chub—only that the species occurs there, that it may be affected by livestock grazing, and that there is an alleged state of noncompliance with an existing biological opinion. The petition's summary statement that the stream designation of all occupied and historically occupied habitat is prudent and necessary to ensure the survival and recovery of Sonora chub is therefore unsupported. We conclude that the petition does not present substantial scientific information that the revision to the existing critical habitat is warranted.

Based on our review of the petition and sources cited in the petition, we find that the petition does not present substantial scientific information indicating the petitioned action may be warranted for the Sonora chub. Because the petition does not present substantial information indicating that revising critical habitat for the Sonora chub may be warranted, we are not initiating a review of the designated critical habitat for this species in response to this petition. However, we ask that the public submit to us any new information that becomes available concerning the status of, or threats to, this species or its habitat at any time (see appropriate contact under FOR FURTHER INFORMATION CONTACT , above).

The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at https://www.regulations.gov under Docket No. FWS-R2-ES-2022-0012 under the Supporting Documents section.

Southern sea otter ( Enhydra lutris nereis ); marine environments from San Mateo County to Ventura County, California.

On January 14, 1977, we published a final rule (42 FR 2965) to list the southern sea otter as a threatened species. In that rule, we identified the curtailment of range as an important factor in the designation of southern sea otters as threatened, citing the fact that the then-current range encompassed only about 10 percent of the southern sea otter's historical range. We also noted that the “remaining habitat and population [were] potentially jeopardized by oil spills, and possibly by pollution and competition” with human beings. Since that time, additional threats have emerged (Service 2015). On March 10, 2021, we received a November 2020 petition from the Pacific Legal Foundation, counsel for California Sea Urchin Commission and Commercial Fishermen of Santa Barbara, requesting that the southern sea otter be removed from the List of Endangered and Threatened Wildlife (“delisted”) because the species does not meet the Act's definition of an endangered species or a threatened species. The petition clearly identified itself as such and included the requisite identification information for the petitioner, required at 50 CFR 424.14(c). This finding addresses the petition.

The petition notes that the southern sea otter's occupied range has nearly doubled since the species' listing in 1977 and that the population has increased since systematic counts began in the early 1980s. The citations provided in the petition (Service 2015 and Hatfield et al. 2019) substantiate that the linear extent of the range has increased from about 293 km to 500 km and that the southern sea otter population has increased. These citations support the claim of a reduction in the threat of curtailment of habitat since the time of listing. The petition notes that offshore crude oil loading and unloading facilities at Moss Landing, Estero Bay, and Morro Bay have closed. The closure of these facilities, which eliminates the possibility of a spill from them, supports the claim of a reduction in the threat of an oil spill since the time of listing. The citations provided in the petition (California's Lempert-Keene-Seastrand Oil Spill Prevention and Response Act (1990) and the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq. )) support the claim that regulatory changes and new technologies to improve oil tanker safety have occurred, which may reduce the oil spill threat to the southern sea otter since the time of listing. The citations provided in the petition offer support for the claim that regulations have improved vessel traffic control in the range of the southern sea otter, which may reduce the oil spill threat to the southern sea otter since the time of listing. The citations provided in the petition offer support for the claim that regulations, technology, and industry practices for offshore oil rigs have improved, which may reduce the oil spill threat to the southern sea otter since the time of listing.

We reviewed the petition, sources cited in the petition, and other readily available information. We considered the factors under section 4(a)(1) of the Act and assessed the effect that the threats identified within the factors—as may be ameliorated or may be exacerbated by any existing regulatory mechanisms or conservation efforts—may have on the species now and in the foreseeable future. Based on our review of the petition, sources cited in the petition, and other readily available information regarding reduction of the threats of habitat curtailment (Factor A) and oil spills (Factor E), we find that the petition presents substantial scientific or commercial information indicating that delisting the southern sea otter may be warranted. The petitioners also presented information suggesting reduction of additional threats to the southern sea otter within Factors A (present or threatened destruction, modification, or curtailment of habitat) and C (disease or predation). We will fully evaluate these factors during our 12-month status review, pursuant to the Act's requirement to review the best scientific and commercial information available when making that finding.

The basis for our finding on this petition, and other information regarding our review of the petition, can be found as an appendix at https://www.regulations.gov under Docket No. FWS-R8-ES-2022-0013 under the Supporting Documents section.

On the basis of our evaluation of the information presented in the petitions under sections 4(b)(3)(A) of the Act, we have determined that the petitions summarized above for the Fish Lake Valley tui chub and southern sea otter present substantial scientific or commercial information indicating that the petitioned actions may be warranted. We are, therefore, initiating status reviews of these species to determine whether the actions are warranted under the Act. At the conclusion of the status reviews, we will issue findings, in accordance with section 4(b)(3)(B) of the Act, as to whether the petitioned actions are not warranted, warranted, or warranted but precluded by pending proposals to determine whether any species is an endangered species or a threatened species. In addition, we have determined that the petitions summarized above for the Pryor Mountain mustang population and Sonora chub do not present substantial scientific or commercial information indicating that the petition actions may be warranted. We are, therefore, not initiating a status review for the Pryor Mountain mustang population or proceeding with a revision of critical habitat for the Sonora chub in response to the petitions.

The primary authors of this document are staff members of the Ecological Services Program, U.S. Fish and Wildlife Service.

The authority for these actions is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).