The NRC is announcing the following corrected language to proposed rule FR Doc. 2023-08238, published at 88 FR 24130 on April 19, 2023. On page 24130, in the first column, Dates section, the public meeting time is corrected to read “from 1:00 p.m. to 4:00 p.m. eastern time (ET)”. On page 24132, in the second column, section V. Public Meeting, the second sentence in the first paragraph is corrected to read “The public meeting will be held on May 24, 2023, from 1:00 p.m. to 4:00 p.m. ET on the Microsoft Teams online platform.”.

The NRC may post materials related to this document, including public comments, on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2022-0218. In addition, the Federal rulemaking website allows members of the public to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2011-0014; NRC-2011-0015; NRC-2011-0017; NRC-2011-0018); (2) click the “Subscribe” link; and (3) enter an email address and click on the “Subscribe” link.

Comments Invited

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-2023-0935; Project Identifier MCAI-2022-01311-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 the 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 Gabriel D. Kim, Aerospace Engineer, Mechanical Systems and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email 9-avs-nyaco-cos@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.

Transport Canada, which is the aviation authority for Canada, has issued Transport Canada AD CF-2022-57, dated October 5, 2022 (Transport Canada AD CF-2022-57) (also referred to after this as the MCAI), to correct an unsafe condition for all Bombardier, Inc., Model BD-100-1A10 airplanes. The MCAI states an in-service event occurred where the nose gear door amber caution message displayed on the crew alerting system during the initial climb after gear retraction. After landing, an inspection found that one of the nose landing gear (NLG) door hinge fitting assemblies was broken. The absence of an inspection to detect cracks in the fillet radii of the NLG door hinge fitting could result in door misalignment with the airplane.

The FAA is proposing this AD to address cracked fillet radii of NLG door hinge fittings. The unsafe condition, if not addressed, could result in a NLG door misalignment, which could increase the drag and yawing movement during flight, could cause jamming of the door affecting the ability to extend or retract the NLG, or could potentially result in the NLG door detaching from the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0935.

The FAA reviewed Bombardier Challenger 300 BD-100 Time Limits/Maintenance Checks Temporary Revision (TR) TR5-2-101, dated June 30, 2022; and (Bombardier) Challenger 350 BD-100 Time Limits/Maintenance Checks Temporary Revision TR5-2-30, dated June 30, 2022. This service information specifies new or more restrictive airworthiness limitations for the NLG door hinge fittings fillet radii. These documents are distinct because they apply to different airplane configurations.

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

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

This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations.

This proposed AD would require revisions to certain operator maintenance documents to include new actions ( e.g., inspections). Compliance with these actions is required by 14 CFR 91.403(c). For airplanes that have been previously modified, altered, or repaired in the areas addressed by this proposed AD, the operator may not be able to accomplish the actions described in the revisions. In this situation, to comply with 14 CFR 91.403(c), the operator must request approval for an alternative method of compliance according to paragraph (i)(1) of this proposed AD.

The FAA estimates that this AD, if adopted as proposed, would affect 716 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

The FAA has determined that revising the maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal, including the IRFA. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0190; Project Identifier 2019-CE-048-AD” 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 again revise 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 SNPRM.

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 SNPRM 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 SNPRM, 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 SNPRM. Submissions containing CBI should be sent to James Delisio, Continued Operational Safety Program Manager, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. 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 an NPRM (87 FR 7065, February 8, 2022; corrected February 18, 2022 (87 FR 9274)) that would apply to all Viking Air Limited (Viking) Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. The NPRM proposed to supersede AD 64-09-03, Amendment 718 (29 FR 5390, April 22, 1964) (AD 64-09-03), which applies to all de Havilland (type certificate now held by Viking) Model DHC-2 “Beaver” airplanes. AD 64-09-03 requires inspecting the aileron mass balance weight arms for cracks and corrosion and replacing any damaged part. AD 64-09-03 resulted from cracks and corrosion found on aileron mass balance weight arm part numbers (P/Ns) C2WA151, C2WA152, C2WA127, and C2WA128.

The NPRM proposed to require establishing a corrosion prevention and control program to identify and correct corrosion. In the NPRM, the FAA also proposed to require completing all of the initial tasks identified in the program and reporting corrosion findings to Viking. The NPRM was prompted by AD CF-2019-25, dated July 5, 2019, issued by Transport Canada, which is the airworthiness authority for Canada (referred to after this as “the MCAI”). The MCAI states that it supersedes prior Transport Canada ADs related to a supplementary inspection and corrosion control program for aging airplanes, which identifies specific locations of an airplane that must be inspected to ensure corrosion-related degradation does not result in an unsafe condition. The MCAI continues to require the tasks included in the initial issue of Viking, DHC-2 Beaver Supplemental Inspection and Corrosion Control Manual, PSM 1-2-5, dated June 21, 2017, and requires additional inspections for components of airframe systems other than flight controls, which are included in Viking DHC-2 Beaver Supplemental Inspection and Corrosion Control Manual, PSM 1-2-5, Revision 1, dated January 10, 2019 (Viking PSM 1-2-5, Revision 1). Corrosion-related degradation, if not addressed, could lead to structural failure with consequent loss of control of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0190.

Since the FAA issued the NPRM, the FAA revised the proposed actions specified in the NPRM. In the NPRM, the FAA proposed to require establishing a corrosion prevention and control program approved by the FAA. In this SNPRM the FAA proposes to require incorporating into the existing maintenance records for your airplane the actions specified in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1.

In addition, the FAA is reopening the comment period to allow the public the chance to comment on whether the proposed AD would have a significant economic impact on a substantial number of small entities. The FAA is proposing this AD to address the unsafe condition on these products.

The FAA received comments from 23 commenters. The commenters were the Alaska Air Carriers Association, Alaska Air Transporters, Alaska Aircraft Sales and Maintenance, Alaska Seaplanes, Athens Insurance, Beluga Air, LLC, Enchanted Lake Lodge, Mountain Flying Service, Regal Air, Tailwind Aviation Inc., Taquan Air, Trail Ridge Air Inc., Ward Air, Inc., and several individuals.

The following presents the comments received on the NPRM and the FAA's response to each comment.

Alaska Air Carriers Association, Beluga Air, LLC, Trail Ridge Air, Regal Air, Ward Air, Inc., and individual commenters stated that the NPRM is not needed due to existing requirements for annual and 100-hour inspections in the Federal Aviation Regulations.

The FAA does not agree that current regulations require the same inspections as those proposed in the NPRM. The FAA acknowledges that some of the tasks are in locations of the airplane where 100-hour or annual inspections require other inspections, but the inspections proposed in this SNPRM are focused on certain areas of the airplane and more detailed than those covered in the required annual or 100-hour inspections. The inspections specified in this SNPRM are part of a supplemental inspection and corrosion prevention program that is included in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1. These inspection types and intervals address locations or parts that are not currently required to be inspected as part of annual or 100-hour inspections in existing regulations. These new inspections and intervals are needed to detect and address corrosion, which could lead to structural failure with consequent loss of control of the airplane. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Carriers Association, Alaska Seaplanes, Beluga Air, LLC, Regal Air, Trail Ridge Air, Ward Air, Inc., and individual commenters questioned the statement in the Regulatory Findings section of the NPRM that the NPRM “[w]ould not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.” Alaska Air Carriers Association, Alaska Seaplanes, Beluga Air, LLC, Mountain Flying Services, Regal Air, and Trail Ridge Air, noted that Alaska tourism, fishing, hunting, and other businesses would face an adverse economic impact. Some of these commenters noted that the costs of the proposed requirements could put some small or medium-sized businesses out of business. Alaska Air Carriers Association, Alaska Seaplanes, Beluga Air, LLC, and several individual commenters suggested that the NPRM would waste resources or add an undue burden for the small companies that operate these airplanes.

The FAA acknowledges the commenters' concerns and infers that the commenters are requesting that the NPRM be withdrawn due to the perceived adverse economic impact on small entities. Under 14 CFR 39.1, issuance of an AD is based on the finding that an unsafe condition exists or is likely to develop in aircraft of a particular type design. An aging airplane requires more attention during maintenance procedures and, at times, more frequent inspections of structural components to detect damage due to environmental deterioration, accidental damage, and fatigue. The unsafe condition addressed in this SNPRM includes undetected corrosion, which could lead to structural failure and consequent loss of control of the airplane. Inspections and repair are therefore necessary to detect and correct such corrosion before it leads to structural failure. The FAA has not changed this SNPRM regarding this issue.

Regarding the question of the NPRM having a significant economic impact on a substantial number of small entities, the FAA has developed an IRFA for this proposed action and a reason for issuing this SNPRM is to solicit comments on the IRFA.

Alaska Aircraft Sales and Maintenance and an individual commenter asked how many accidents could be traced back to corrosion on these airplanes. One individual commenter added that in over 25 years of performing maintenance, the commenter had not seen any Model DHC-2 airplanes show an unusual tendency for corrosion or excessive stress and added that, on average, there is less corrosion on a Model DHC-2 airplane than is typical of airplanes more than 10 years old. A different individual commenter noted that in 37 years of experience, the commenter was unaware of the affected airplanes having accidents or incidents due to corrosion. That individual commenter added that these airplanes are painted before assembly with corrosion-preventing primer and are probably less prone to corrosion than airplanes of the same age that are painted on the outside after assembly. Taquan Air stated that it is unaware of accidents or failures associated with corrosion on the affected airplanes. The FAA infers that the commenters are requesting that the FAA withdraw the NPRM.

The FAA does not agree with the commenters' requests to withdraw the NPRM. According to 14 CFR 39.5, the issuance of an AD is based on the finding that an unsafe condition exists or is likely to exist or develop in other products of the same type design. This section of the Federal Aviation Regulations does not specify that an accident is necessary for the FAA to determine that there is an unsafe condition. In this case, the FAA independently reviewed the MCAI and related service information and determined an unsafe condition exists and an AD is needed to address that unsafe condition. Further, it is within the FAA's authority and responsibility to issue ADs to require actions to address unsafe conditions that are not otherwise being addressed (or are not addressed adequately) by routine maintenance procedures. In addition, based upon detailed airplane tear-down inspections performed by Viking (the design approval holder), the FAA has determined that the existing maintenance procedures and inspections will not adequately detect corrosion. Although this SNPRM is not tied to a specific corrosion related accident, the FAA has determined that such undetected corrosion could lead to structural failure. The FAA has a responsibility to issue ADs to correct identified unsafe conditions in aircraft, regardless of the location or cause. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Carriers Association, Alaska Seaplanes, Beluga Air LLC, Regal Air, Trail Ridge Air, and individual commenters requested that the FAA withdraw the NPRM, explaining the FAA has no obligation to enact the NPRM simply because Transport Canada enacted an AD. Some of these commenters claimed that finalizing the NPRM to a final rule would contradict the FAA's requirement to “encourage and develop civil aeronautics” by imposing substantial costs and efforts to comply with that final rule.

The FAA disagrees with withdrawing the NPRM. Although the FAA acknowledges that it has no obligation to adopt an AD to parallel the requirements in the Transport Canada AD, the FAA has a responsibility to issue ADs to require actions to address unsafe conditions that are not otherwise being addressed. As previously stated, the FAA independently reviewed the MCAI and related service information and determined an unsafe condition exists and an AD is needed to address that unsafe condition. The FAA may address such unsafe conditions by requiring revisions to maintenance records as a condition under which airplanes may continue to be operated. Part of the FAA's obligation to “encourage and develop civil aeronautics” is to take any necessary action to keep the existing aircraft fleet safe, which includes the issuance of ADs. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Carriers Association, Alaska Seaplanes, Beluga Air LLC, and individual commenters requested that the FAA revise the NPRM to acknowledge that intrastate aviation in Alaska would be affected. Alaska Seaplanes asserted that 13 local Alaska businesses stated that the proposed AD would put them out of business; the commenter added that these businesses are the lifeline to small and rural communities not accessible by other aircraft.

The FAA acknowledges the commenters' concerns. In light of the heavy reliance on aviation for intrastate transportation in Alaska, the FAA has fully considered the effects of this SNPRM (including costs to be borne by affected operators) from the earliest possible stages of AD development. The NPRM was based on those considerations, and was developed with regard to minimizing the economic impact on operators to the extent possible, consistent with the safety objectives of this SNPRM. In any event, the Federal Aviation Regulations (14 CFR part 39) require operators to correct an unsafe condition identified on an airplane to ensure operation of that airplane in an airworthy condition. The FAA has determined that the need to correct the unsafe conditions outweighs any impact on aviation in Alaska. The FAA has not changed this SNPRM regarding this issue.

In addition, regarding the costs of this SNPRM, the FAA has developed an IRFA for this proposed action and a reason for issuing this SNPRM is to solicit comments on the IRFA.

Alaska Air Carriers Association, Beluga Air LLC, Mountail Flying Services, Regal Air, Ward Air, Inc., and individual commenters requested that the NPRM be revised to supersede all ADs related to corrosion prevention and maintenance for the affected airplanes, not just AD 64-09-03. An individual noted that the NPRM conflicts with more than just AD 64-09-03 and added that AD 2008-11-11, Amendment 39-15533 (73 FR 34611, June 18, 2008) (AD 2008-11-11) specifies a penetrant inspection for cracks in the front spar center section web of the tailplane, while task C55-10-02 in Viking PSM 1-2-5, Revision 1, allows using a penetrant or an eddy current inspection, which seems contradictory.

The FAA disagrees with the commenters' requests to supersede all corrosion-related ADs for the affected airplanes. The FAA has reviewed all potentially related ADs against the proposed requirements in this SNPRM and determined that no other ADs need to be superseded or rescinded. Any other ADs involving inspecting for corrosion on the affected airplanes require either inspecting different parts or locations on an airplane or the inspections are not as in-depth or repetitive; therefore they do not overlap with the proposed inspections. This includes AD 2008-11-11, which requires inspecting a different part than that in task C55-10-02 of Viking PSM 1-2-5, Revision 1. The FAA has not changed this SNPRM regarding this issue.

Taquan Air and an individual commenter requested that the unsafe condition be addressed by adding these airplanes to the Aging Aircraft rule (14 CFR 135.422), rather than through the NPRM. The commenters noted that doing so would evenly spread the burden, rather than having different corrosion control policies for different airplane models. Taquan Air noted that Alaska has been exempted from the Aging Aircraft rule. Both commenters suggested that 14 CFR part 43 appendix D (which specifies the scope and detail of items to be included in annual and 100-hour inspections) be rewritten to address corrosion. The individual commenter added that 14 CFR 135.422 should apply to all part 135 operators, with a similar 14 CFR regulation applicable to part 91 operators.

The FAA disagrees with adding this to the Aging Aircraft rule. The proposed action would address a known unsafe condition on the structure of Viking Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. If the FAA finds that other aircraft have similar issues to the affected airplanes, the FAA would look at appropriate rulemaking for those aircraft also. For the Viking Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes, as stated previously, the FAA has determined that annual and 100-hour inspections are currently not adequate to address the unsafe condition identified in this SNPRM. The FAA has a responsibility to address an unsafe condition that is not addressed by general maintenance by issuing an AD. Therefore, the proposed actions of this SNPRM are the appropriate way of addressing the unsafe condition. Adding inspections for corrosion to 14 CFR part 43 appendix D to address the unsafe condition identified in this SNPRM is not appropriate because that corrective action would not be limited to the products affected by this unsafe condition. 14 CFR part 43 appendix D contains general inspections that are not specific to individual products. Therefore, issuing an AD is the appropriate vehicle for addressing this identified unsafe condition. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Transporters, Alaska Seaplanes, Athens Insurance, Enchanted Lake Lodge, Tailwind Aviation, and individual commenters requested that the Costs of Compliance section in the NPRM be revised to reflect that more than 135 airplanes of U.S. registry would be affected. Several of these commenters suggested that 382 airplanes of U.S. registry would be affected, while one individual commenter stated that there are “more like 400 airplanes involved.” A second individual commenter noted that many of these airplanes have been erroneously registered as Model L-20A airplanes due to incorrect procedures when the airplanes were imported or converted from military to civilian use.

The FAA agrees with the commenters' request to revise the number of affected airplanes of U.S. registry. The FAA has re-evaluated the data and determined that 409 airplanes of U.S. registry is a better estimate. The FAA notes that there are no airplanes on the U.S. registry listed as Model L-20A airplanes. The FAA has revised the Costs of Compliance section of this SNPRM accordingly.

Alaska Air Transporters, Athens Insurance, Enchanted Lake Lodge, Tailwind Aviation, and several individual commenters requested that the FAA revise the labor rate in the Costs of Compliance section of the NPRM. The commenters noted that current labor rates are anywhere from $110 to $150 per hour. Several of these commenters added that the proposed costs do not consider airplane downtime or the current shortage of qualified mechanics able to do the inspections.

Additionally, Alaska Seaplanes asserted that three operators have complied with the service information referenced in the NPRM and the cost of compliance was $65,000 to $125,000, not the $29,070 per airplane estimated in the NPRM.

The FAA disagrees with the commenters' requests to revise the labor rate in the Costs of Compliance section of this SNPRM. The FAA notes that the labor rate of $85 per hour is provided by the FAA Office of Aviation Policy and Plans for the FAA to use when estimating the labor costs of complying with AD requirements. Regarding the comments on down-time and labor shortages, the FAA acknowledges the commenters' concerns. The FAA recognizes that in accomplishing the requirements of any AD, operators might incur “indirect” costs in addition to the “direct” costs that are reflected in the cost analysis presented in the AD. However, the cost analysis in ADs typically does not include indirect costs since the FAA does not have sufficient information to evaluate these costs including additional down-time and loss of revenue. The FAA has not changed this SNPRM regarding this issue.

Alaska Aircraft Sales and Maintenance, Alaska Air Transporters, Athens Insurance, Enchanted Lake Lodge, Mountain Flying Service, Tailwind Aviation, Taquan Air, and several individuals requested that the NPRM be revised to have different requirements based on how the airplane is used. Alaska Aircraft Sales and Maintenance suggested that the NPRM penalized operators by applying one program to all operating environments. Several of these commenters noted that airplanes used on wheels or only in freshwater would have less exposure to factors causing corrosion than airplanes operated in saltwater and suggested the requirements should be revised accordingly. Mountain Flying Services noted that its airplane is kept in a heated hanger when not in use, has been rebuilt, and has had minimal time in water, which makes it less susceptible to corrosion. An individual commenter suggested the NPRM should allow both specificity and flexibility based on atmospheric conditions, saltwater exposure, and time on floats.

The FAA disagrees with the commenters' requests to change the NPRM based on different airplane operational usage. There is no current requirement to track the hours spent flying in different conditions or types of water. Additionally, operators may not know the entire flight history of an airplane. Without this detailed knowledge of each airplane, it would be impossible for the FAA to develop a special set of inspections based on airplane usage conditions. However, operators may submit a proposal for revised requirements by requesting an alternative method of compliance (AMOC) using the procedures specified in paragraph (i) of this SNPRM. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Carriers Association, Alaska Aircraft Sales and Maintenance, Regal Air, Taquan Air, Trail Ridge Air Inc., and several individual commenters asked for clarity regarding the process of creating and getting approval for a corrosion prevention and control program. Alaska Aircraft Sales and Maintenance asked what the guidance will be for an operator who chooses to write its own program versus getting an AMOC. Alaska Aircraft Sales and Maintenance asked if any maintenance inspector could approve the program or if it would have to go to the aircraft certification office (ACO), and further questioned how the operator would comply in a timely manner if ACO approval is delayed. One individual commenter noted that the proposed AD does not include a specific definition of what the program would require, only that it should line up with an undated revision of a Viking maintenance manual. That same individual commenter added that the affected airplanes are already maintained following maintenance instructions and recommended practices (and compliance times when scheduling permits) in Viking Service Bulletin V2/0011, Revision NC, dated November 28, 2019 (Viking Service Bulletin V2/0011, Revision NC), which is related to the Viking maintenance manual, so operators should not be held to a higher level of accountability. A second individual commenter noted that it appears the NPRM would give Viking PSM 1-2-5, Revision 1, the same authority and weight as an airworthiness limitation, or operators could write their own program and get it approved by the FAA. That same individual commenter questioned what would happen when Viking PSM 1-2-5, Revision 1, is revised and contradicts the AD requirements. A third individual commenter suggested it is unfair for the FAA to require operators to develop a program without the proper qualifications, experience, or training. That same individual commenter suggested that the lack of guidance and procedures would leave room for interpretation, leading to multiple exhanges with the FAA and an ever-evolving process that could lead to significant delays and could ground airplanes. A fourth individual commenter added that trying to design a manual to be approved by several different parties could lead to confusion for both the operator submitting the manual and the FAA, and suggested targeting the area of concern and inspections based on existing Advisory Circular (AC) 43-4B, Corrosion Control for Aircraft, dated September 11, 2018. Taquan Air asked how long it would take to get a program approved. Taquan Air also asked if the Viking corrosion control program is an approved method for establishing a corrosion prevention and control program. Taquan Air suggested that the FAA establish areas that need to be in the program and an outline of expectations, so operators can get it correct.

The FAA acknowledges the commenters' concerns regarding the creation of a corrosion prevention and control program. To make compliance easier for operators and eliminate the need to create an FAA-approved corrosion prevention and control program, the FAA simplified the proposed actions. This SNPRM would require incorporating the inspections in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, into the existing maintenance records. In Note 1 to paragraph (g) of the NPRM, the use of Viking PSM 1-2-5, Revision 1, was identified as an acceptable means of compliance but was not required to be used. That note has been removed from this SNPRM and the subsequent note that appeared as Note 2 to paragraph (g) has been has re-identified as Note 1 to paragraph (g) in this proposed AD.

The FAA acknowledges that Viking Service Bulletin V2/0011, Revision NC, is related to this SNPRM because it lists the inspection tasks and descriptions that are specified in Viking PSM 1-2-5, Revision 1, and specifies to accomplish those tasks following the procedures in Viking PSM 1-2-5, Revision 1. Note 1 to paragraph (g) in this proposed AD refers to Viking Service Bulletin V2/0011, Revision NC, as an additional source of information.

If Transport Canada or the FAA determines that any revised tasks in a future Viking PSM are necessary to address an unsafe condition, the FAA will consider future rulemaking to require operators to accomplish those tasks. The FAA also acknowledges the commenters' concerns regarding delays and timeliness of approving a corrosion prevention and control program, however, since this proposed AD would require operators to incorporate the inspections in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, into the existing maintenance records, those concerns should be mitigated.

An individual commenter stated that Viking PSM 1-2-5, Revision 1, is duplicative of Viking PSM 1-2-2, DHC 2 Beaver Maintenance Manual, Revision 4, dated March 28, 2018 (Viking PSM 1-2-2, Revision 4), and provided a summary of inspections that are already included in Viking PSM 1-2-2, Revision 4, and other service information. The commenter added that the new inspections in Viking PSM 1-2-5, Revision 1, are non-destuctive testing (NDT) inspections that in Canada are issued with a pass/fall certificate. The commenter added that the pass/fail documentation does not contain any actual measured results, therefore the statistical predictive modeling for time to failure (which would allow operators to plan replacement/overhaul activities) cannot be accomplished. The commenter provided several suggestions including: Viking be required to supply measured results and predictive indicators to operators; duplicate inspection points related to Viking PSM 1-2-2, Revision 4, be removed from the NPRM; a recommended order of operations for the inspections be provided so they are streamlined; and that ADs be combined for simplification of maintenance.

The FAA acknowledges the commenter's concerns about potential duplication between Viking PSM 1-2-2, Revision 4, and Viking PSM 1-2-5, Revision 1. However, the inspections in these two documents are designed to complement each other. Viking PSM 1-2-5, Revision 1, refers to Viking PSM 1-2-2, Revision 4, and other documents. The recommended supplemental inspection and control program in Viking PSM 1-2-5, Revision 1, does not replace any aspect of the current inspection program that is described in Viking PSM 1-2-2, Revision 4, or other referenced documents. The FAA further notes that the FAA cannot use an AD to require Viking to supply results, indicators, or other information to operators, although individual operators could request that information from Viking. The FAA has not changed this SNPRM regarding this issue.

Alaska Air Transporters, Alaska Aircraft Sales and Maintenance, Athens Insurance, Enchanted Lake Lodge, Mountain Flying Services, Tailwind Aviation, and two individual commenters requested that the NPRM be revised to allow a phase-in period for the proposed new requirements. Several of these commenters noted that fully implementing the Viking PSM 1-2-5, Revision 1, and inspections in one year would double or triple their budgeted maintenance costs. Several of these commenters suggested allowing a 5-year incremental implementation of the manual, with different inspections required each year. One individual commenter noted that the airplane fleet is not that large, and flexibility could be afforded, which would allow operators to use multiple seasons of revenue to fund the inspections. Alaska Aircraft Sales and Maintenance noted that the 8-month deadline for initial inspections is too restrictive and should be phased-in, similar to Viking PSM 1-2-5, Revision 1, or aligned to be performed at the same time as other required service actions. Alaska Aircraft Sales and Maintenance added that operators should be provided credit for the initial inspection if they have already done a given task.

The FAA partially agrees with the commenters' requests to extend the compliance times. Paragraph (g) of this proposed AD would require incorporating the inspections in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, into the existing maintenance records and doing each initial task within 6 months after the effective date of the final rule or at the threshold for each applicable task specified in Part 3 of Viking Product Support Manual PSM 1-2-5, Revision 1, whichever occurs later. The FAA disagrees with increasing the compliance time up to 5 years.

Regarding Alaska Aircraft Sales and Maintenance's request for credit, the FAA agrees to provide clarification. Paragraph (f) of this proposed AD states to accomplish the required actions within the compliance times specified, “unless already done.” Therefore, if operators have accomplished the actions required for compliance specified in this SNPRM before the effective date of the final rule, no further action is necessary, unless the task is a repetitive action and then it would be required at the repetitive interval. The FAA has not revised this SNPRM in this regard.

An individual requested that “properly trained mechanics” be allowed to perform the NDT inspections (tasks). Ward Air requested that an “in-house trained aircraft technician” using “modern technology” be allowed to do the required ultrasonic testing rather than requiring an operator to hire an outside Level II trained technician to perform the testing.

The FAA partially agrees with the commenters' requests. Operators can use an in-house properly trained individual with qualifications equivalent to Level II or Level III to do the NDT inspections. FAA Advisory Circular 65-31B, Training, Qualification, and Certification of Nondestructive Inspection Personnel, dated February 24, 2014, contains FAA-approved Level II and Level III qualification standards critieria for inspection personnel doing NDT inspections. The FAA does not agree that this SNPRM specifies a requirement to hire outside properly trained Level II NDT personnel. Viking PSM 1-2-5, Revision 1, specifies that personnel certified as Level II or higher, as acceptable to the operator's cognizant airworthiness authority, can do the NDT inspections. The FAA has not changed this SNPRM regarding this issue.

An individual commenter requested that the NPRM be revised so that the results of any required reporting are sent to the FAA through the FAA's service difficulty reporting system, and not sent to a foreign company (Viking) that is not overseen by the FAA.

The FAA disagrees with the commenter's request. Transport Canada is the State of Design Authority and Viking is the type certificate holder for Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes. As such, they should be evaluating the reports to determine if any additional actions should be required to address the unsafe condition and through the appropriate bilateral airworthiness agreement will share such information with the FAA. For these reasons, the reports should be sent to Viking. The FAA has not changed this SNPRM regarding this issue.

Based on the new requirement specified in paragraph (g) of this proposed AD to incorporate the inspections in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, into the existing maintenance records, the FAA has revised the estimated costs associated with paragraph (g) of this AD from 342 work-hours to 1 work-hour. The proposed requirements to establish a corrosion prevention program and the initial inspection tasks that were included in the NPRM were removed from this SNPRM.

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 this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI described above. The FAA is issuing this SNPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design. At the request of some commenters, the FAA is reopening the comment period of this SNPRM to allow the public the chance to comment on the economic impact on a substantial number of small entities. This SNPRM also contains the changes discussed previously.

This proposed AD would retain none of the requirements of AD 64-09-03. This proposed AD would require, within 90 days after the effective date of the final rule, incorporating into the existing maintenance records the actions specified in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, and doing each initial task within 6 months after the effective date of the proposed AD or at the threshold for each applicable task specified in Part 3 of Viking Product Support Manual PSM 1-2-5, Revision 1, whichever occurs later. This proposed AD would also require reporting corrosion findings to Viking. Because the inspection of the aileron balance weight arms required by AD 64-09-03 would be included in the revision of the existing maintenance records, this proposed AD would supersede AD 64-09-03.

The FAA has previously mandated airworthiness limitations by issuing ADs that require revising the ALS of the existing maintenance manual or instructions for continued airworthiness to incorporate new or revised inspections. This proposed AD, however, would require establishing and incorporating new inspections into the existing maintenance records required by 14 CFR 91.417(a)(2) or 135.439(a)(2) for your airplane. The FAA does not intend this as a substantive change. Requiring incorporation of the new ALS requirements into the existing maintenance records, rather than requiring individual repetitive inspections and replacements, allows operators to record AD compliance once after updating the existing maintenance records, rather than recording compliance after every inspection and part replacement.

The FAA reviewed Viking PSM 1-2-5, Revision 1, which specifies procedures for inspecting locations of the airplane that are particularly susceptible to corrosion-related degradation and includes repetitive inspection intervals, defines the different levels of corrosion, and provides corrective action if corrosion is found.

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

The FAA reviewed Viking Service Bulletin V2/0011, Revision NC. This service information provides a list of new inspection tasks that have been added to the DHC-2 supplementary inspection and corrosion control program, Viking PSM-1-2-5, Revision 1.

In light of the heavy reliance on aviation for intrastate transportation in Alaska, the FAA has fully considered the effects of this SNPRM (including costs to be borne by affected operators) from the earliest possible stages of AD development. As previously stated, 14 CFR part 39 requires operators to correct an unsafe condition identified on an airplane to ensure operation of that airplane in an airworthy condition. The FAA has determined that the need to correct corrosion-related degradation in aging aircraft, which could lead to structural failure with consequent loss of control of the airplane, outweighs any impact on aviation in Alaska.

The FAA estimates that this AD, if adopted as proposed, would affect 409 airplanes of U.S. registry. The FAA also estimates that it would take about 1 work-hour per airplane at a labor rate of $85 per work-hour to revise the existing maintenance records.

Based on these figures, the FAA estimates the cost of this proposed AD on U.S. operators to be $34,765 or $85 per airplane.

The FAA estimates it would take about 1 work-hour to report any Level 2 corrosion found during the proposed initial or subsequent inspections or any Level 3 corrosion found during the proposed initial or subsequent inspections, for an estimated cost of $85 per airplane.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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 Regulatory Flexibility Act of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612) (RFA) establishes as a principle of regulatory issuance that agencies shall endeavor, consistent with the objective of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.

To achieve that principle, the RFA requires agencies to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a proposed or final rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. Based on the comments received following publication of the NPRM, the FAA has completed an IRFA and requests comments from affected small entities. The purpose of this analysis is to identify the number of small entities affected, assess the economic impact of the proposed regulation on them, and consider less burdensome alternatives and still meet the agency's statutory objectives.

The RFA, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504, Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and small organizations that are independently owned and operated and are not dominant in their fields, and small governmental jurisdictions with populations of less than fifty thousand (50,000).

The FAA is publishing this IRFA to aid the public in commenting on the potential impacts to small entities from this proposal. The FAA invites interested parties to submit data and information regarding the potential economic impact that would result from the proposal. The FAA will consider comments when making a determination or when completing a Final Regulatory Flexibility Assessment.

Under Sections 603(b) and (c) of the RFA, the initial regulatory flexibility analysis for a proposed rule must contain the following:

(1) A description of the reasons why the action by the agency is being considered;

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule;

(3) A description of and, where feasible, an estimate of the number of small entities to which the proposed rule will apply;

(4) A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities which will be subject to the requirement and the type of professional skills necessary for preparation of the report or record;

(5) An identification, to the extent practicable, of all relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule; and

(6) A description of any significant alternatives to the proposed rule which accomplish the stated objectives of applicable statutes and which minimize any significant economic impact of the proposed rule on small entities.

The NPRM proposed to supersede AD 64-09-03, which applies to all de Havilland (type certificate now held by Viking) Model DHC-2 “Beaver” airplanes, because after the FAA issued AD 64-09-03 Transport Canada superseded its MCAI to identify specific locations of an airplane that must be inspected to ensure corrosion-related degradation does not result in an unsafe condition. The NPRM proposed to require establishing a corrosion prevention and control program to identify and correct corrosion, completing all of the initial tasks identified in the program, and reporting corrosion findings to Viking. The proposed corrosion prevention and control program would incude the inspection of the aileron balance weight arms required by AD 64-09-03.

The objective of the actions proposed in this SNPRM is to meet the same safety intent as those actions proposed in the NPRM. The FAA issued the NPRM under the authority described in Title 49, Subtitle VII, Part A, Subpart III, Section 44701, General requirements. Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing minimum safety standards required in the interest of safety. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on Viking Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes.

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.

There are no relevant Federal rules that may duplicate, overlap, or conflict with the proposed rule.

The FAA used the definition of small entities in the RFA for this analysis. The RFA defines small entities as small businesses, small governmental jurisdictions, or small organizations. In 5 U.S.C. 601(3), the RFA defines “small business” to have the same meaning as “small business concern” under section 3 of the Small Business Act. The Small Business Act authorizes the Small Business Administration (SBA) to define “small business” by issuing regulations.

SBA (2022) has established size standards for various types of economic activities, or industries, under the North American Industry Classification System (NAICS). 1 These size standards generally define small businesses based on the number of employees or annual receipts.

The FAA Civil Aircraft Registry shows 409 Model DHC-2 Mk. I, DHC-2 Mk. II, and DHC-2 Mk. III airplanes that would be affected by this SNPRM. These 409 airplanes are registered to 235 private businesses, 76 individuals, and 3 government agencies. The 76 individuals and 3 government agencies are excluded from this analysis as the RFA does not apply to individuals and the 3 government agencies are not small entities as defined by the RFA. 2

Three hundred nineteen (319) airplanes are owned and operated by 235 private entities. A sample of 50 private businesses was randomly selected for the analysis. 3 Of the 50 sampled entities, 45 were found to be small. The results of the cost impact analysis for these 45 small entities is shown in Table 1 and will be discussed in the following section.

The FAA estimated that this AD, if adopted as proposed, would take about 1 work-hour per airplane at a labor rate of $85 per work-hour incorporate the inspections in Parts 2 and 3 of Viking PSM 1-2-5, Revision 1, into the existing maintenance records and comply with the initial inspection tasks of the program, plus $85 per airplane to report any corrosion found during the proposed initial inspections, for an estimated total cost of $170 per airplane.

The estimated cost of this proposed AD, per small entity, is shown in the “Cost” column of Table 1 and cost impact is measured by cost as a percentage of revenues. As the table shows, the mean cost impact is 0.1% of annual revenues, 4 while the median cost impact of less than 0.1% shows no significant impact on any of the small entities. This impact did not vary with firm size; the largest cost impact was only 0.5%, which is still not considered significant. Therefore, the FAA finds that the proposed AD would not have a significant impact on a substantial number of small entities.

The FAA did not find any significant regulatory alternatives to the proposed AD that would still accomplish the safety objectives of this proposed AD.

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, and

(2) Would not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the RFA.

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

Authority for This Rulemaking

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 Class E airspace in Cross City, FL. This action is necessary to support IFR operations in the area.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the proposal's overall regulatory, aeronautical, economic, environmental, and energy-related aspects. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should submit only once if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

The FAA will file in the docket all comments it receives and a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can 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 ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except for Federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except for Federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. This document proposes to amend the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. These updates would subsequently be published in the next update to FAA Order JO 7400.11. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA proposes an amendment to 14 CFR part 71 to amend Class E airspace extending upward from 700 feet above the surface for Cross City Airport, Cross City, FL, to accommodate area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving this airport. This amendment supports a new instrument approach at this airport. The existing radius would be increased to 7 miles (previously 6.8-miles), and the southern extension would be eliminated. This action would also update the airport's geographic coordinates to coincide with FAA's database. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA has determined that this proposed regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (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 proposed rule, when promulgated, will 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.

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

I. Background

Section 504 provides that “no otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any executive agency.” 29 U.S.C. 794(a). Through Section 504, Congress requires the head of each executive agency to promulgate regulations to implement the statute. Id. In 1988, HUD issued its Section 504 regulations for federally assisted programs and activities at 24 CFR part 8 and for federally conducted programs and activities  1 at 24 CFR part 9. 2

All recipients and subrecipients of Federal financial assistance from the Department (HUD recipients) must comply with Section 504 and 24 CFR part 8. HUD's Section 504 requirements apply broadly to any recipient of Federal financial assistance from the Department, including any State or its political subdivision, any instrumentality of a State or its political subdivision, any public or private agency, institution, organization, or other entity, or any person that receives Federal financial assistance directly or through another recipient, including any successor, assignee, or transferee of a recipient, but excluding the ultimate beneficiary of the assistance. 24 CFR 8.3 and 8.50(a). In addition, HUD has enforced Section 504 requirements against Tribal entities that receive Federal financial assistance from HUD. Federal financial assistance is also defined broadly as any assistance provided or otherwise made available by the Department through any grant, loan, contract, or any other arrangement in the form of funds, services, or property interest, excluding assistance through direct Federal procurement contracts or payments made under those contracts or any other contract of insurance or guaranty. 24 CFR 8.3.

HUD's Section 504 regulations at 24 CFR part 8 cover all programs and activities of recipients of funds from HUD, including, for example, eligibility criteria, application processes, site selection, admission to and continued participation in programs, tenancy, service delivery, and accessibility of programs and facilities. The regulations contain general prohibitions against discrimination and offer examples of discriminatory actions that either directly or indirectly result in discrimination against otherwise qualified individuals with disabilities. 24 CFR 8.4(a) and (b). Among other requirements, HUD's Section 504 regulations include an integration mandate, requiring recipients to administer programs and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities; reasonable accommodation requirements, which require recipients to adjust, modify, or make exceptions to policies or practices and structural modifications to facilities that may be necessary for an individual with a disability to equally participate in or benefit from programs and activities without discrimination; and the requirement to distribute accessible dwelling units throughout assisted projects and sites. 24 CFR 8.4(d), 8.20, 8.24(a), 8.26, and 8.33. Recipients must also take appropriate steps to ensure effective communication with applicants, beneficiaries, and members of the public who have disabilities. 24 CFR 8.6.

Recipients of Federal financial assistance from HUD must ensure that their programs and activities are readily accessible to and usable by individuals with disabilities. 24 CFR 8.20. This includes physical accessibility requirements for newly constructed and altered multifamily housing projects and non-housing facilities. This requirement also includes alterations to existing facilities that are necessary to comply with program accessibility requirements for all facilities. 24 CFR 8.20-8.25. Providers of existing assisted housing must operate such housing so, when viewed in its entirety, it is readily accessible to and usable by individuals with a disability. HUD recipients must comply with HUD's Section 504 regulations that incorporate the applicable Federal accessibility standard  3 adopted by the Department for purposes of Section 504 compliance.

The Uniform Federal Accessibility Standards (UFAS) is currently the Department's Section 504 Federal accessibility standard for compliance with HUD's Section 504 requirements. 24 CFR 8.32. However, in 2014, HUD published a Notice, commonly referred to as HUD's “Deeming Notice,” allowing HUD recipients to use the U.S. Department of Justice's (DOJ) accessibility standard under Title II of the Americans with Disabilities Act (ADA)—referred to as the 2010 ADA Standards for Accessible Design (2010 ADA Standards)—with identified exceptions, as an alternative accessibility standard in lieu of UFAS for purposes of Section 504 compliance. 79 FR 29671 (May 23, 2014). HUD provided this flexibility through the Deeming Notice because of a recognition that many facilities are designed, constructed, or altered by entities that are subject to HUD's Section 504 regulations, which are also subject to Title II and/or Title III of the ADA and, therefore, are also required to comply with the 2010 ADA Standards. This option exists until HUD formally revises its Section 504 regulations to adopt an updated accessibility standard.

HUD recipients must also ensure that designated accessible dwelling units are dispersed throughout projects and sites, are available in a sufficient range of bedroom sizes and amenities, and are tenanted to maximize the utilization of such units by individuals who need the accessibility features of the units. 24 CFR 8.26 and 8.27.

HUD's existing Section 504 regulations also set forth a compliance and enforcement mechanism. 24 CFR 8.50 through 8.58. HUD's Office of Fair Housing and Equal Opportunity (FHEO) investigates individual complaints alleging disability-related discrimination and conducts compliance reviews of recipients of HUD assistance to determine whether they are complying with these requirements. 24 CFR 8.56(a). The regulations set out the procedures used when FHEO finds noncompliance with Section 504 requirements. 24 CFR 8.56, 8.57, and 8.58.

The Department's Section 504 regulations, as a whole, have not been significantly updated since their initial publication in 1988. Since that time, HUD has continued to find widespread discrimination on the basis of disability in HUD-assisted programs and activities and an ongoing need for affordable, accessible, and integrated housing opportunities for individuals with disabilities who are eligible for the programs and activities administered by recipients of Federal financial assistance from HUD. As the agency with primary responsibility for administering the Nation's federally assisted housing programs, HUD has a responsibility to ensure that its Section 504 regulations account for these needs.

In fiscal year 2020, HUD received four hundred and sixty-one (461) complaints from individuals and organizations alleging disability discrimination under Section 504. In fiscal year 2021, HUD received five hundred and ninety-seven (597) complaints from individuals and organizations alleging disability discrimination under Section 504. In fiscal year 2022, HUD received five hundred and eighty-two (582) complaints from individuals and organizations alleging disability discrimination under Section 504. To date, in fiscal year 2023, HUD has received two hundred and two (202) complaints from individuals and organizations alleging disability discrimination under Section 504. Section 504 complaints are the most common type of civil rights related complaint  4 received with respect to the administration of HUD programs and account for more than half of such complaints.

HUD-initiated Section 504 compliance reviews also underscore ongoing discrimination faced by individuals with disabilities. Significant noncompliance has been found with respect to physical accessibility requirements within public housing and other HUD-assisted affordable housing programs. Compliance reviews have demonstrated that newly constructed and substantially altered multifamily housing developments frequently do not meet the accessibility requirements under UFAS. Furthermore, compliance reviews often reveal that HUD-assisted programs and activities do not meet other Section 504 requirements such as the provision of reasonable accommodations, establishment and maintenance of grievance procedures, ensuring effective communication, appropriate tenanting policies to ensure maximum use of accessible housing by individuals with disabilities, occupancy preferences, or physical dispersal of accessible units. Designated accessible units are often not appropriately tenanted by individuals who have a disability-related need for the accessibility features of the unit. Other examples of common violations include the imposition of inappropriate disability verification requirements, the imposition of requirements beyond what is required in a lease, the failure to protect the confidentiality of applicants' or tenants' disability-related information, discrimination against individuals with intellectual and developmental disabilities and behavioral health conditions, and policies for the admission of elderly residents that exclude persons with a disability.

In the over thirty years since HUD implemented its Section 504 regulations, the percentage of the U.S. population who are individuals with disabilities has continued to increase and diversify. In addition, as a larger share of the population increases in age, HUD will continue to play a critical role in providing affordable housing opportunities to allow older adults to age in place. This is particularly important given the significant population of older adults with disabilities, who will require accessible and affordable housing to age in place. Likewise, the mobility devices, personal aids, and other forms of assistive technology available for use by individuals with disabilities have also diversified. The characteristics of equipment that individuals with disabilities use have changed in ways that impact the design and usability of living space and methods of communication.

Significant advances have also occurred in building practices since 1988. Various accessibility codes have been developed and additional features and elements have been researched based on study of how persons use, or cannot use, facilities because of inaccessible design and construction. Many design features that make the home more usable and accessible have become readily available and widely used in residential construction, such as additional or modified environmental controls, security hardware, cabinetry, and plumbing fixtures. Also, housing models have continued to emerge that focus on identifying and mitigating barriers to accessibility and safety hazards in the home to promote healthy aging and enhance health outcomes for older adults. In addition, the severe lack of affordable housing has caused communities across the country to explore new and innovative approaches to providing housing. Examples of emerging single family and multifamily housing include tiny homes, portable homes, manufactured or prefabricated homes, 3D printed homes, townhomes, multifamily with townhome facades, and even housing developed using shipping containers and other pre-existing structures. The Department seeks to respond to these environmental, societal, and technological changes in its revised rule.

The United States is also experiencing an immediate and increasing need for affordable, accessible, and integrated housing opportunities. In particular, since the Supreme Court's Olmstead decision in 1999, there have been increased efforts to assist individuals in transitioning from institutional and other segregated settings into integrated, community-based settings. 5 As a result of Olmstead enforcement and implementation efforts by public entities, there is a crucial need for affordable and integrated housing where individuals with disabilities are able to live and interact with individuals without disabilities. 6 Individuals with disabilities cannot be subject to discrimination in their housing search.

HUD is considering how to more effectively address these significant and emerging issues and seeks public comment as it updates its Section 504 regulations.

The Department seeks input from the public, including individuals with disabilities, HUD recipients, such as public housing agencies, States, or local governments, Tribes, housing providers, and social service providers, before proposing regulatory text for comment. The Department is posing overarching questions and areas for particular comment below regarding effective communication, program accessibility, adopting an updated Federal accessibility standard, and enforcement mechanisms. The Department is also considering clarifying certain subsections of the regulations and providing further examples to enhance compliance.

When providing responsive comments, the Department requests that commenters indicate the specific question number that corresponds with the responsive comments. If providing comments not associated with a question number, please label the comment as such or identify the comment by the existing regulatory provision to which it relates. The Department also welcomes general comments on any aspect of its Section 504 regulations or how the Department can improve the administration of its federally assisted and federally conducted programs to ensure its own compliance with Section 504.

Question for Comment 1: The Department anticipates revising the definition of “individual with disabilities” consistent with the ADA Amendments Act of 2008  7 and DOJ's Title II ADA regulations. The ADA Amendments Act of 2008 revised the definition of “individual with disabilities” for purposes of the ADA and made conforming amendments to Section 504. In view of the ADA Amendments Act of 2008's change to the definition of disability, the Department is also considering whether the other definitions, currently provided at 24 CFR 8.3 should be revised to clarify how the term “disability” is used in connection with certain HUD programs, which have statutory authorizations to serve specific populations. The Department seeks general comments on updating its definitions contained at 24 CFR 8.3.

Question for Comment 2: HUD's Section 504 regulations at 24 CFR 8.4 contain general prohibitions on discrimination and include examples of discriminatory application processes, admissions policies, and service provision, as well as physical inaccessibility, eligibility, and site selection, that would either directly or indirectly result in discrimination against otherwise qualified individuals with disabilities. 24 CFR 8.4(a) and (b).

( a ) To what extent are individuals with disabilities at serious risk of entering institutional settings or being unable to transition from institutional or group home settings, including skilled nursing facilities, correctional institutions and inpatient rehabilitation for substance misuse, settings because they are unable to find affordable, accessible, and integrated housing opportunities in community-based settings? Please describe any challenges faced and solutions identified with locating affordable, integrated, and accessible housing, including issues such as ensuring housing is available when an individual is ready to transition from an institutional setting, coordinating housing and services, identifying available housing programs that individuals may be eligible for, the referral and/or application process, the use of preferences, the operation of waitlists, insufficient accessible and integrated housing opportunities, etc.

( b ) Are there specific examples of discrimination that individuals with mental health or substance use disabilities have experienced, or other challenges faced by such individuals, in securing affordable housing, such as rental policies eligibility or exclusion criteria, that meets disability-related needs that HUD should consider addressing in its Section 504 regulations?

( c ) Are there specific examples of discrimination that individuals with intellectual, cognitive, or developmental disabilities have experienced, or other challenges faced by such individuals, in securing affordable housing that meets the disability-related needs that HUD should consider addressing in its Section 504 regulations?

( d ) Are there specific examples of discrimination that individuals with physical disabilities have experienced, or other challenges faced by such individuals, in securing affordable housing that meets the disability-related needs that HUD should consider addressing in its Section 504 regulations?

Question for Comment 3: Recipients must take appropriate steps to ensure effective communication with applicants, beneficiaries, and members of the public who have disabilities and are required to provide appropriate auxiliary aids and services where necessary to afford individuals with disabilities an equal opportunity to participate in, and enjoy the benefits of, a program or activity receiving Federal financial assistance. Because of technological advances, methods of enabling effective communication have significantly changed since HUD issued its Section 504 regulations in 1988 and recipients and individuals with disabilities communicate in different ways. What types of auxiliary aids and services do individuals with disabilities need in housing and community development programs and activities? What information should the Department consider with respect to the accessibility of recipients' websites and devices, mobile applications, etc.?

Question for Comment 4: Section 504 requires that newly constructed housing and non-housing facilities be designed and constructed to be readily accessible to and usable by persons with disabilities. HUD's existing Section 504 regulations require that in new construction multifamily housing projects, currently a minimum of five (5) percent of the total dwelling units in each multifamily housing project (or at least one unit, whichever is greater) must be made accessible for persons with mobility impairments. An additional two (2) percent of the total units (or at least one unit, whichever is greater) must be made accessible for persons with hearing or vision impairments. In circumstances where greater need is demonstrated, HUD may prescribe higher percentages or numbers. 24 CFR 8.20 through 8.22. Physical accessibility requirements also apply to any alterations of housing and non-housing facilities. 24 CFR 8.21.

Additionally, recipients must operate each housing and non-housing-related program and activity receiving Federal financial assistance so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. 24 CFR 8.20, 8.21, and 8.24. This may require alterations to comply with program accessibility obligations in older facilities that were built before HUD's Section 504 regulations became effective. This may also require alterations in addition to and separate from meeting the affirmative physical accessibility requirements described above.

( a ) To what extent does the lack of accessible units and other facilities in assisted housing discourage applications from eligible persons with a disability? To what extent is the lack of accessibility a barrier to the participation in various HUD-assisted housing programs by persons with a disability? What challenges do households face in finding available affordable and accessible housing in their respective communities? What factors or sources of data should HUD and its recipients use to determine the level of need for accessible housing?

( b ) Is there information that HUD should consider to clarify, strengthen, and encourage compliance by recipients' with program accessibility obligations?

Question for Comment 5: Tenant-based housing choice voucher (HCV) and other tenant-based rental assistance programs are crucial to enable individuals with disabilities to secure affordable, accessible, and integrated housing opportunities of their choice. HUD's regulation at 24 CFR 8.28 provides examples of specific safeguards to ensure individuals with disabilities have access to these programs.

( a ) What challenges exist in using an HCV or other tenant-based rental assistance in the private rental market to secure a unit that meets a household's disability-related needs? For example, is the process for households with members with disabilities to seek an extension of the search term due to the lack of accessible housing effective or is the process for seeking exception rent under the exception payments standard for accessible housing units effective, and/or what other difficulties exist for individuals with disabilities in securing a suitable unit? Do households with members with disabilities encounter issues using HCVs or other tenant-based rental assistance due to the need for live-in caregivers? Is there information that HUD should consider on various methods or approaches that have proven effective in helping individuals with disabilities access these types of programs in order to provide equal access?

( b ) Please provide details about the availability of affordable accessible units in different areas of the United States ( e.g., urban areas, suburban areas, and rural areas, including geographically isolated and remote areas) in the private rental market and any proven strategies that encourage landlords to participate in the tenant-based HCV program.

Question for Comment 6: Most entities are subject to more than one Federal accessibility law and architectural standard in the operation of their housing services, programs, and activities. For example, a public housing agency receiving HUD funding and operating public housing and voucher programs may be subject to the design and construction requirements of the Fair Housing Act, 8 Section 504 as a recipient of Federal financial assistance, and Title II of the ADA as a public entity. This may require applying multiple accessibility laws and architectural standards, e.g., the Fair Housing Act's Accessibility Guidelines, the 2010 ADA Standards under Title II of the ADA, and HUD's Section 504 accessibility standard. In addition, State and local laws and building codes will also apply. Most States and localities now use the International Building Code (IBC) and the accessibility standard it references, the ICC A117.1 Standard for Accessible and Usable Buildings and Facilities.

The Department seeks input on ways to harmonize, to the extent possible, the requirements among the various standards and achieve greater consistency in the design and construction of buildings and facilities that are covered by multiple Federal accessibility laws. The Department also seeks to ensure, however, that accessibility for persons with disabilities is not reduced and opportunities for modernization of accessibility requirements are considered.

The Department notes that recipients of HUD funding must be aware of and comply with the accessibility requirements of all applicable laws, including Section 504, the ADA, and the Fair Housing Act. Compliance with one of these statutes does not ensure compliance with other Federal disability nondiscrimination laws. HUD's adoption of an updated Section 504 Federal accessibility standard for purposes of compliance with its own Section 504 regulations does not change an entity's obligation to comply with all applicable laws.

What standards should the Department consider for purposes of an updated accessibility standard for its recipients? HUD requests information to assist the Department in determining whether other specific guidelines provide sufficient or insufficient accessibility in the context of housing or other residential facilities funded by HUD. In addition, please provide information on scoping and other technical provisions the Department should consider to further accessibility for individuals with disabilities in the context of housing.

Question for Comment 7: HUD's Deeming Notice allowed HUD recipients to use the 2010 ADA Standards under Title II of the ADA—with identified exceptions, as an alternative accessibility standard in lieu of UFAS for purposes of Section 504 compliance. The Deeming Notice identified eleven (11) exceptions where UFAS provides greater accessibility than the 2010 ADA Standards and must continue to be utilized. 9 Are there other UFAS provisions that HUD did not identify in its Deeming Notice that should be retained to further accessibility in HUD-assisted programs?

Question for Comment 8: As the Federal agency with primary responsibility for administering the Nation's federally assisted housing programs, the Department has a unique role in considering how residential and connected spaces ( e.g., spaces for laundry, mail, telecommunications, office, maintenance, parking, recreation, service, and community functions) must be made accessible. HUD is looking at the accessibility and usability of spaces and elements within one's own home and connected spaces that will impact daily living, which is different than considering accessibility in places of public accommodation or other settings. HUD is considering how the development of various enhanced accessibility features can be incorporated or incentivized into the design and construction of affordable housing developments.

Advances in the types of accessibility features can assist individuals with various types of disabilities obtain, remain in, and receive the full benefits of their housing. For example, for individuals with mobility disabilities, such features may include: power operated or other keyless proximity-based entry at entrances and exits from buildings and passageways through the building; light weight or low resistance doors; detachable shower-heads; smart, remotely adjustable thermostats; adjustable shelves in closets and storage; full extension pull-out drawers, shelves, and racks; roll-in showers; avoiding swinging interior doors within individual accessible dwelling units; faucets with touch or motion sense water controls; and reinforced ceilings to accommodate a track and harness system. For individuals who are blind or have low vision, examples of such features may include: audible elevator indicators; innovative entry systems that do not solely rely on an individual's ability to see in order to gain access; controls with audio feedback as opposed to or in addition to touch screens; and enhanced lighting. For individuals who are deaf or hard of hearing, examples of such features may include: innovative entry systems that do not solely rely on an individual's ability to hear in order to gain access; doorbells with light alerts; activated close captioning on televisions located in public areas; and video phones or other video connections for communications.

In addition, specific accessibility features assist individuals to remain in their homes and to age in place, such as vertical and angled grab bars to get up and down from toilets and for stepping in and out of bathing fixtures. Examples to assist individuals who are blind or have low vision include contrasting surfaces, enhanced lighting, tactically discernible controls, and elimination of tripping hazards. Examples to assist individuals who are deaf or hard of hearing include innovative entry systems, doorbells with light alerts, and emergency alarms for fire and carbon monoxide leaks that can accommodate personal notification devices.

( a ) What barriers do individuals with disabilities face in public and common use areas of housing and non-housing facilities ( e.g., building entrances, building entry systems, recreation and fitness facilities, mail and package rooms, coworking facilities, parking structures, laundry rooms)? What accessibility features or advanced technology can help overcome these barriers?

( b ) What accessibility features or advanced technology should the Department be aware of that improve accessibility in designated accessible units for individuals with mobility disabilities?

( c ) What accessibility features or advanced technology should the Department be aware of that improve accessibility in designated accessible units for individuals with vision and hearing disabilities?

( d ) Given the increasing aging population, the Department is considering its role in providing affordable housing opportunities to this population and how to enable households to remain in their housing. Are there specific accessibility features that can help individuals to age in place?

( e ) There are alternative accessibility provisions in accessibility standards that address the more limited reach ranges and need for lower seat heights and dining surfaces for children with disabilities that are different than accessibility features configured for adult use. The Department is interested in any comments related to dimensions for children.

(f) To what extent does the failure to maintain accessible features, including elevators and lifts, limit individuals with disabilities access to affordable housing?

Question for Comment 9: HUD is considering how advances in the design and construction field impact accessible housing developments. There are various types of single family and multifamily housing, as well as a variety of materials and structural components to construct different types of housing, such as shipping containers or other emerging building components. In all instances, federally assisted housing must provide accessible housing opportunities for beneficiaries with disabilities.

( a ) Are there specific emerging design approaches, or specific construction materials that HUD should consider?

( b ) The Department is interested in comments related to emerging design approaches in disaster response, mitigation, and recovery situations. Are there specific design types or other issues specifically within the context of disaster relief that HUD should consider addressing to ensure accessibility for individuals with disabilities?

Question for Comment 10: A reasonable accommodation is a change, exception, or adjustment to a rule, policy, practice, or service that may be necessary for a person with disabilities to have an equal opportunity to use and enjoy a dwelling, including public and common use spaces, or to participate in a HUD-assisted program or activity. For purposes of Section 504, this also includes recipients providing structural changes to a unit or public or common use area when they may be needed as a reasonable accommodation. Generally, the failure to provide reasonable accommodation is a form of discrimination under Section 504. HUD anticipates further addressing the concept of what constitutes a reasonable accommodation in its Section 504 regulations. HUD is aware that it may be useful to its recipients to understand the broad array of the types of accommodations that may be useful to individuals with different types of disabilities, such as individuals who are blind or have low vision, individuals who are deaf or hard of hearing, individuals with intellectual, cognitive, or developmental disabilities, individuals with mental health disabilities or substance use disabilities, and individuals with mobility disabilities. The Department is interested in comments on these issues.

Question for Comment 11: HUD undertakes two types of investigations under its Section 504 regulations—complaint-based investigations and compliance reviews. Any person, or their authorized representative, who believes that they have been subjected to discrimination by a recipient of HUD financial assistance may file a Section 504 complaint with HUD. Similarly, persons may file a complaint with HUD on behalf of specific classes of individuals who have been subjected to discrimination by a recipient.

HUD may conduct periodic compliance reviews of recipients that include a review, including an on-site review of recipients' policies, practices, and procedures, to determine whether recipients are complying with HUD's Section 504 regulations. Recipients are also subject to program compliance reviews and monitoring procedures by HUD in its oversight of program requirements designed to further compliance with HUD's Section 504 regulations. 24 CFR 8.56. Are there any clarifications or changes HUD should consider in procedures for initiating and conducting investigations and/or enforcement mechanisms with respect to individual complaints or compliance reviews?

Question for Comment 12: HUD has enforced Section 504 requirements against Tribes and Tribal entities that receive HUD Federal financial assistance. While the Department recognizes Section 504 obligations are consistent across all recipients of HUD Federal financial assistance, the Department also recognizes the unique relationship between the Federal Government and Tribes and seeks comment from Tribes and Tribal entities in accordance with HUD's Government-to-Government Tribal Consultation Policy.

( a ) Are there tribal specific circumstances that HUD should consider regarding Tribes and tribal entities, particularly with respect to the construction of accessible facilities?

( b ) Are there unique types of discrimination members of Tribes with disabilities experience, particularly with respect to non-Tribal grantees or other entities covered by Section 504?

( c ) Are there unique types of discrimination members of Tribes with disabilities experience with respect to the provision of reasonable accommodations, the provision of appropriate auxiliary aids and services necessary to ensure effective communication, access to accessible facilities, or accessing services and programs in the most integrated setting appropriate to the needs of members of Tribes with disabilities?

Question for Comment 13: The Department recognizes that individuals with disabilities who are also members of other protected class groups ( e.g., race, color, national origin, sex (including sexual orientation and gender identity), familial status, religion, age, etc.) may be uniquely impacted by revisions to HUD's Section 504 regulations and is interested in receiving public comment on unique considerations related to intersectionality.

( a ) Are there unique barriers or other forms of discrimination in housing or HUD assisted programs against individuals with disabilities who are also members of other specific protected class groups?

( b ) In particular, is there information that HUD should consider regarding how disability discrimination affects persons of color, LGBTQ+ persons, families with children, older adults, and individuals with limited English proficiency who also require appropriate auxiliary aids and services necessary to ensure effective communication?

Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and, therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to, “identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.”

HUD's Section 504 regulations have not been significantly updated since originally published in 1988; whereas significant advances in building practices and assistive technologies have been made during the preceding decades. Additionally, since HUD's Section 504 regulations were first published, the percentage of the U.S. population with disabilities has continued to increase and diversify and, during this time, a larger share of the population has increased in age. Given these changes in the availability and improvement of accessibility design and technologies and the changes in the makeup of the American population that require or benefit from the improvements in accessibility and design and technologies, this ANPRM is necessary to avoid HUD's Section 504 regulations from becoming outmoded, ineffective, and insufficient.

This ANPRM has been reviewed by OMB. As a result of this review, OMB determined that this ANPRM will likely result in a “significant regulatory action,” as defined in section 3(f) of Executive Order 12866 but not an “economically significant” action.

This ANPRM sets out nondiscrimination standards. Accordingly, under 24 CFR 50.19(c)(3), it is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321-4347).

Table of Contents I. Public Comment Procedures II. Background III. Section-by-Section Analysis IV. Procedural Matters and Required Determinations I. Public Comment Procedures

You may submit written comments, identified with OSM-2022-0009 or RIN 1029-AC81, by any of the methods described in the ADDRESSES section. Written comments submitted on the proposed rule should be specific, be confined to issues pertinent to the proposed rule, and explain the reason for any recommended change. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The comments and recommendations that will be most useful and likely to influence agency decisions are those that are supported by quantitative information or studies; are based on specific, identifiable experience; and include citations to, and analyses of, the applicable laws and regulations.

Comments received after the close of the comment period (see the DATES section) or that are delivered to addresses other than those listed above (see the ADDRESSES section) may not be considered or included in the Decision File for the final rule.

Comments, including names and street addresses of respondent commenters, will be available for public review at the address listed under ADDRESSES during regular business hours (8 a.m. to 4:30 p.m. ET), Monday through Friday, except holidays.

Please be advised that we may make your entire comment—including your personal identifying information, such as your name, phone number, or email address—publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public view, we cannot guarantee that we will be able to grant your request.

Under SMCRA, each State that wishes to regulate surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders can submit a proposed State regulatory program to the Secretary of the Interior. 30 U.S.C. 1253(a). The Secretary, acting through OSMRE, reviews and approves or disapproves the proposed program. 30 U.S.C. 1211(c)(1), 1253(b). When the Secretary approves a State program, the State assumes exclusive jurisdiction or “primacy,” except as provided in sections 521 and 523 and title IV of SMCRA. 30 U.S.C. 1253(a), 1271, 1273, and 1231-1244. Under the exception at 30 U.S.C. 1271(a)(1), in a primacy State that has an approved State regulatory program, OSMRE retains oversight of the State program and some Federal enforcement authority. In this regard, SMCRA sometimes refers to a State regulatory authority as having “primary” responsibility. See, e.g., 30 U.S.C. 1201(f) and 1291(26) (defining “State regulatory authority” to mean “the department or agency in each State which has primary responsibility at the State level for administering [SMCRA]”).

This proposed rule concerns the TDN process that derives from section 521(a)(1) of SMCRA, 30 U.S.C. 1271(a)(1), and the provisions for correction of State regulatory program issues, consistent with section 521(b) of SMCRA, 30 U.S.C. 1271(b). Under the TDN process, when the Secretary of the Interior, acting through OSMRE, has “reason to believe that any person is in violation of any requirement” of SMCRA, OSMRE notifies the appropriate State regulatory authority. After OSMRE sends the notification to the State, the State has ten days to take “appropriate action” to cause the possible violation to be corrected or to demonstrate “good cause” for not doing so. If the State regulatory authority fails to respond within ten days, or if we determine that the State's response is arbitrary, capricious, or an abuse of discretion, we will conduct a Federal inspection and take appropriate enforcement action.

Given the ten-day time frame, the notice that OSMRE sends to State regulatory authorities under this provision is referred to as a TDN. While citizens, industry, and regulatory authorities have commonly understood this terminology, we propose to define “ten-day notice” for the first time in the Federal regulations so there is a uniform, consistent understanding of the term. Similarly, because possible violations identified in a “citizen complaint” are at the heart of this proposed rule, we are also proposing to define that term for the first time in the Federal regulations.

We are proposing that all citizen complaints will be considered as requests for Federal inspections, even if a citizen complaint does not specifically request an inspection. The 2020 TDN Rule requires citizens, when requesting a Federal inspection, to provide a statement that the person has notified the State regulatory authority of the existence of the possible violation. However, the existing regulations for citizen complaints do not explicitly contain a similar requirement. To resolve this issue, we believe it is important to not require citizens, who likely are not experts on SMCRA and the implementing regulations, to use certain words or phrases in their complaint to communicate their requested action to OSMRE. This approach also makes sense because if a citizen brings a possible violation to our attention, and we issue a TDN to the relevant State regulatory authority, that process could ultimately lead to a Federal inspection if the regulatory authority does not take appropriate action or demonstrate good cause for not doing so in response to the TDN, regardless of whether the citizen initially asked for a Federal inspection to be undertaken.

We are also proposing to amend the regulations at 30 CFR 842.12(a), which relate to requesting a Federal inspection, to make the process easier for citizens by removing the requirement for a citizen to also notify the relevant State regulatory authority when requesting a Federal inspection. SMCRA does not require that a citizen notify the State regulatory authority before filing a citizen complaint with OSMRE. However, we continue to believe that if a citizen contacts the State regulatory authority in the first instance, most possible violations will be resolved without the need for OSMRE to issue a TDN. To that end, we continue to strongly encourage citizens to contact the State regulatory authority about possible violations, as the State regulatory authority should be more acquainted with conditions on the ground for permits that it has issued and is often in the best position to determine the merits of a citizen complaint.

We are also proposing to remove the requirement at existing § 842.12(a) for a citizen, when requesting a Federal inspection, 1 to set forth “the basis for the person's assertion that the State regulatory authority has not taken action with respect to the possible violation.” We believe this provision is onerous and cumbersome. For example, if a citizen is filing a complaint with OSMRE, the citizen implicitly believes that there is a violation that the State regulatory authority has not addressed. And again, because citizens are not likely to be experts on the administration of SMCRA and the applicable State regulatory program, it is unduly onerous to require a citizen to cite the applicable requirements for the basis of their assertion. Moreover, citizens will not be in a position to determine a State official's reasoning for the lack of action regarding the possible violation.

Over the years, we have found that while most citizen complaints have merit, many raise issues unrelated to possible violations of SMCRA or the State regulatory program. For that reason, and to reduce duplication of inspection and enforcement efforts between OSMRE and State regulatory authorities, in the 2020 TDN Rule, we expanded the sources of information that OSMRE would consider when determining whether we have reason to believe a violation exists under a State regulatory program. Before 2020, the Federal regulations arguably implied that OSMRE could consider only information contained within the confines of a citizen complaint when determining whether there was reason to believe a violation existed that would necessitate issuance of a TDN to a State regulatory authority. For example, the pre-2020 regulations provided that OSMRE would have reason to believe that a violation exists if the facts alleged in a citizen complaint would, if true, constitute a violation. See 30 CFR 842.11(b)(2) (2019). But the pre-2020 regulations also provided that OSMRE should base its reason to believe determination upon “information available.” See id. at § 842.11(b)(1)(i). In the 2020 TDN Rule, we sought to remove any inconsistencies in the prior regulations by requiring OSMRE to consider “readily available” information, including information from a State regulatory authority. Some commenters on the 2020 TDN proposed rule contended that allowing OSMRE to gather information before determining whether it has reason to believe a violation exists implied that OSMRE did not have the information at the time of the citizen complaint. By using the phrase “readily available” in the 2020 TDN Rule, we intended to confine OSMRE's information gathering so that we could determine, as quickly as possible, whether a TDN was warranted. See, e.g., 85 FR 75157 (Nov. 24, 2020). In the 2020 TDN Rule, we also explained that when we receive a citizen complaint, we will apply our professional judgment and not merely transmit the citizen complaint to a State regulatory authority without considering whether we have reason to believe a violation exists.

After reexamining the 2020 TDN Rule and SMCRA's legislative history, and based upon our experience implementing the rule for more than two years, we have decided to further clarify OSMRE's evaluation of a citizen complaint: instead of considering all “readily available information” when determining whether we have reason to believe a violation exists, we propose to limit the sources of information that we will consider to information received from a citizen complainant, information available in our files at the time that we are notified of the possible violation, and any publicly available electronic information. In implementing this section of the 2020 TDN Rule, we found that the data collection process took longer than expected. We believe that the approach outlined in this proposed rule would continue to reduce any duplication of inspection and enforcement efforts between OSMRE and the relevant State regulatory authority and better align with SMCRA's statutory requirements and legislative history.

We further propose to amend the regulations to return to our longstanding practice of requiring the issuance of a TDN, in the first instance, when we have reason to believe a violation exists in the form of a so-called “permit defect.” Although that term is not used in SMCRA and has not been used in the Federal regulations, OSMRE has used the term in guidance documents. We generally consider a permit defect to be a deficiency in a permit-related action taken by a State regulatory authority, such as when a State regulatory authority has issued a permit with a provision that is contrary to the approved State program. We propose to specify that we will issue a TDN for such defects when we form the necessary reason to believe a violation exists.

Existing § 842.11(b)(1)(ii)(B)( 3 ) allows a corrective action plan to constitute “appropriate action” in response to a TDN. This proposed rule would exclude an action plan from the categories of “appropriate action” in response to a TDN because action plans do not themselves remedy violations. See § 842.11(b)(1)(ii)(B)( 3 ). Instead of allowing the use of these plans to be considered appropriate action, we propose that if we and the relevant State regulatory authority enter into an action plan that includes the possible violation as one of several substantively similar possible violations, such a plan could constitute “good cause” for not taking action within ten days. A completed action plan would lead to corrective action on the initial violation, as well as other similar violations.

We have determined that the changes in this proposed rule would enhance the overall administration and enforcement of SMCRA, while continuing to honor State primacy, and correspond more closely to SMCRA's statutory requirements. Once a State has achieved primacy under SMCRA to administer its own State regulatory program, section 201(c)(12) of SMCRA requires us to, among other responsibilities, “cooperate with . . . State regulatory authorities to minimize duplication of inspections, enforcement, and administration of [SMCRA].” 30 U.S.C. 1211(c)(12). To this end, we have worked closely with State regulatory authorities for over 40 years, and we will continue to do so. Equally germane to our intent in this proposed rule, one of the purposes of SMCRA is to “assure that appropriate procedures are provided for the public participation in the development, revision, and enforcement of regulations, standards, reclamation plans, or programs established by the Secretary or any State under [SMCRA.]” 30 U.S.C. 1202(i). With this in mind, this proposed rule would provide a better balance between minimizing duplication of efforts with the State regulatory authorities and affording citizens an appropriate level of involvement in enforcement of SMCRA programs.

Two provisions of SMCRA chiefly govern our oversight and enforcement of State regulatory programs. Section 521(a)(1), 30 U.S.C. 1271(a)(1), in context, requires us to notify a State regulatory authority when we have “reason to believe” that any person is in violation of any requirement of SMCRA, the approved regulatory program, an approved permit, or a required permit condition. As explained above, when we have reason to believe a violation exists, we issue a TDN to the applicable State regulatory authority. Upon receipt of the TDN, the State regulatory authority has ten days to cause the possible violation to be corrected or show good cause for not taking action and communicate either action to us. In general, if the State regulatory authority fails to respond within ten days, we must immediately order a Federal inspection of the surface coal mining operation where the described violation is alleged to be occurring.

Section 521(b) of SMCRA, 30 U.S.C. 1271(b), addresses the situation of a State regulatory authority failing to effectively implement any part of its approved State program. The relevant existing regulations implementing section 521(b) of SMCRA are found at 30 CFR part 733. The 2020 TDN Rule revised provisions in 30 CFR part 733 in an effort to address State regulatory program issues before they rise to the level that would require us to take over administration of all or part of an approved State program under section 521(b). This proposed rule would retain the basic structure of the 2020 TDN Rule, but would amend 30 CFR 733.5 and 733.12 to comply more fully with SMCRA's statutory requirements.

SMCRA creates a cooperative federalism framework between OSMRE and State regulatory authorities to ensure that SMCRA is properly administered and enforced. As mentioned above, each State desiring to implement SMCRA on non-Federal and non-Indian lands within its borders must submit a proposed SMCRA program to the Secretary of the Interior for review and approval. 30 U.S.C. 1253. Federally recognized Indian Tribes may also obtain primacy over Indian lands within their jurisdiction. Id. section 1300(j). SMCRA gives OSMRE the authority to conduct the review for the Secretary. Id. section 1211(c)(1). OSMRE must review each proposed program to ensure, among other things, that it is in accordance with the requirements of SMCRA. Once a State or Tribal regulatory authority obtains approval of its SMCRA program, it has achieved “primacy” and becomes the primary entity through which SMCRA is implemented and enforced on lands within its jurisdiction. In primacy States, we have an oversight role over approved State regulatory programs, primarily through SMCRA section 521, 30 U.S.C. 1271.

In our oversight role, any time we have reason to believe that any person is in violation of SMCRA, the applicable State regulatory program, or any required permit condition, we inform the State regulatory authority through a TDN. The information that informs our “reason to believe” that a violation exists can come from any person, but, most often, we become aware of a possible violation through a Federal oversight inspection or a citizen complaint. If we become aware of a possible violation by means other than through a Federal oversight inspection, we must determine if we have reason to believe a violation of SMCRA or the applicable State regulatory program exists. Neither SMCRA nor the Federal regulations defines the “reason to believe” standard. However, the “reason to believe” standard that would support issuance of a TDN for a possible violation is a lower standard than “reason to believe” when it is coupled with “adequate proof” of an imminent harm that would require OSMRE to bypass the TDN process and proceed directly to a Federal inspection.

Once a State receives a TDN, it has ten days to take appropriate action to cause the possible violation to be corrected or show good cause for not taking action and communicate its action to us. A TDN that results from a citizen complaint is not a direct enforcement action, a finding that any form of violation exists, or a determination that the State has acted improperly. Rather, as SMCRA envisioned, a TDN is a communication mechanism between OSMRE and the applicable State regulatory authority indicating that a possible violation exists. (Under 30 CFR 843.12(a)(2), however, we also issue a TDN to a State regulatory authority when, on the basis of a Federal oversight inspection, we determine that there is a non-imminent harm violation and we have not previously issued a TDN for the same violation.) The TDN communication mechanism allows the State the first opportunity to investigate and enforce possible non-imminent harm violations. After we send the TDN to the State, we do not take any other action regarding the possible violation during the ten-day period.

Once a State has communicated its action in response to a TDN to us, we review the State's response to determine whether it constitutes appropriate action or good cause. Under 30 CFR 842.11(b)(1)(ii)(B)( 2 ), we accept the State's action or response as appropriate action or good cause unless it is arbitrary, capricious, or an abuse of discretion. After receiving the State's response to the TDN, but before a Federal inspection, we determine in writing whether the standards for appropriate action or good cause have been satisfied. Id. at § 842.11(b)(1)(ii)(B)( 1 ).

If the State regulatory authority does not respond to the TDN within ten days, we make a determination on the TDN and proceed to a Federal inspection. Failure to respond constitutes a waiver of the right to request informal review of the determination under 30 CFR 842.11(b)(1)(iii). Id. After a written determination that the State did not take appropriate action or has not shown good cause for not taking action, the State then has an opportunity to seek informal review of the determination within OSMRE. Id. § 842.11(b)(1)(iii)(A). In general, subject to the exceptions noted in § 842.11(b)(1)(iii)(B), when a State regulatory authority requests informal review, the informal review process must conclude before we conduct a Federal inspection or issue a Federal notice of violation regarding the TDN. If, during a Federal inspection, we confirm the existence of a violation, we write a Federal notice of violation or, if applicable, a cessation order to the permittee. Id. § 843.12(a)(2).

Section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), requires us to “publish and promulgate such rules and regulations as may be necessary to carry out the purposes and provisions of [SMCRA].” Sections 1271(a) and (b) pertain to OSMRE's obligation to conduct oversight of State regulatory programs and provide any necessary Federal enforcement. We implement the relevant statutory requirements of 30 U.S.C. 1271(a) and (b), discussed above, through the existing regulations at 30 CFR parts 842 and 733.

As mentioned above, immediately prior to the 2020 TDN Rule, the Federal regulations did not specify when OSMRE had “reason to believe” a violation exists. On one hand, the pre-2020 regulations at 30 CFR 842.11(b)(1)(i) (2019) referred to OSMRE having “reason to believe on the basis of information available.” On the other hand, § 842.11(b)(2) provided that OSMRE would have reason to believe “if the facts alleged by the informant would, if true, constitute a . . . violation . . . .” In the 2020 TDN Rule, we sought to remove any confusion by amending § 842.11(b)(1)(i) to refer to “reason to believe on the basis of any information readily available [to an OSMRE authorized representative], from any source, including any information a citizen complainant or the relevant State regulatory authority submits . . . .” For consistency, we also amended § 842.11(b)(2) to provide that OSMRE will have reason to believe “a violation . . . exists if the facts that a complainant alleges, or facts that are otherwise known to the authorized representative, constitute simple and effective documentation of the alleged violation . . . .” As noted above, and as will be discussed in more detail below, we propose to amend these sections to limit the sources of information that we will consider when we are determining whether we have reason to believe that a violation exists.

While the term “permit defects” has never appeared in the regulations, OSMRE, for most of its existence, has issued TDNs to State regulatory authorities for possible “permit defects,” that is, allegations that a State regulatory authority has issued a permit with a provision, or lack thereof, that is contrary to the approved State program. The 2020 TDN Rule did not squarely address this issue, but as noted above, the preamble to the 2020 TDN Rule explained that, under 30 U.S.C. 1271(a)(1), “any person” who can be in violation of SMCRA or a State regulatory program “does not include a State regulatory authority, unless it is acting as a permit holder.” 85 FR 75176. As such, we explained that a permit defect “will typically be handled as a State regulatory program issue” under 30 CFR part 733, rather than through the TDN process, “unless there is an actual or imminent violation of the approved State program.” Id.

This proposed rule would reinstate the practice of issuing TDNs to State regulatory authorities for permit defects. Although a TDN under 30 CFR part 842 would be issued for a permit defect, the proposed regulations would still allow OSMRE and the State regulatory authority to develop an action plan under 30 CFR part 733 to address a State regulatory program issue, and the development of that action plan could, in the appropriate circumstances, constitute “good cause” for not taking action in response to the TDN. Thus, this aspect of the proposed revisions to the Federal regulations would incorporate a part 733 action plan, which originates from a citizen complaint, into the TDN process.

Before the 2020 TDN Rule, under internal guidance, OSMRE used “action plans” to resolve State “regulatory program problems.” OSMRE has used action plans extensively and effectively to address a State regulatory authority's misapplication of its approved State regulatory program. In the 2020 TDN Rule, we incorporated the action plan concept into 30 CFR 733.12 for what we defined in the regulations at § 733.5 as a “State regulatory program issue.” In general, a State regulatory program issue, as we propose to amend the definition, is one that we identify during oversight of a State or Tribal regulatory program that may result from a regulatory authority's implementation, administration, enforcement, or maintenance of its State regulatory program. Under the 2020 TDN Rule at § 842.11(b)(1)(ii)(B)( 3 ), “appropriate action” in response to a TDN could include “OSMRE and the State regulatory authority immediately and jointly initiating steps to implement corrective action to resolve any issue that [OSMRE] identif[ies] as a State regulatory program issue, as defined in 30 CFR part 733.”

Under this proposed rule, entering into an action plan to address a State regulatory program issue would no longer constitute “appropriate action” under the TDN process. However, we propose that, if a possible violation is being addressed in an action plan, along with substantively similar possible violations, that fact would constitute “good cause” in response to the TDN. In this regard, OSMRE's treatment of a State regulatory program issue under an action plan would be part of the overall TDN process. (Action plans can be developed to address other aspects of a State regulatory program, such as staff funding, adequate access to public documents, and other similar programmatic issues that may not be part of the TDN process.)

Finally, the 2020 TDN Rule perpetuated the distinction between citizen complaints and citizen requests for Federal inspections. For example, under the existing regulations, the provisions for “Federal inspections and monitoring” in 30 CFR 842.11(b)(1) are often triggered by “citizen complaints,” yet § 842.12 pertains to “Requests for Federal inspections.” As mentioned above, we propose to eliminate any confusion by proposing, at 30 CFR 842.11(b)(2) and 842.12(a), that all citizen complaints would be considered requests for Federal inspections.

To increase efficiency and make it easier for citizens to report possible violations, we propose to simplify the processes for filing a citizen complaint and requesting a Federal inspection. Under this proposed rule at §§ 842.11(b)(2) and 842.12(a), all citizen complaints would be considered as requests for a Federal inspection. After reviewing our experience implementing the citizen complaint process under the 2020 TDN Rule, we are proposing to remove two burdensome and unnecessary provisions from the existing regulations at § 842.12(a): (1) the express requirement for a person requesting a Federal inspection to notify the State regulatory authority of the possible violation and (2) the requirement for a person requesting a Federal inspection to state the basis for their assertion that the State regulatory authority has not taken action with respect to the possible violation. The State regulatory authority is often best positioned to address citizen complaints in the first instance, but, for various reasons, some citizens do not, or will not, contact the State regulatory authority. Under this proposed rule, therefore, a citizen would not be required to notify the State regulatory authority. After receiving a citizen complaint, we would evaluate information from the complainant, information in our files, and publicly available electronic information to determine if we have reason to believe a violation exists.

Prior to the 2020 TDN Rule, we often automatically sent a TDN to the State regulatory authority upon receipt of information from a citizen alleging a violation and without undertaking a “reason to believe” analysis. Under this proposed rule, instead of simply forwarding a citizen complaint to the State regulatory authority as a TDN or considering “readily available information” under the existing regulations at 30 CFR 842.11(b)(1)(i) and (b)(2), and 842.12(a), we propose to only issue a TDN to the State regulatory authority after we have undertaken a “reason to believe” analysis that considers only information received from a citizen complainant, information available in OSMRE's files at the time we receive the citizen complaint, and publicly available electronic information. This would allow the TDN process to proceed without any undue delays associated with outside research.

As explained above, we consider a TDN to be a communication mechanism between OSMRE and the State regulatory authority. A TDN that results from a citizen complaint is not itself a determination that there is a violation or that the State has failed to address a violation. Rather, consistent with the notion of State primacy, a TDN affords the State the first opportunity to address the underlying issue. A Federal inspection and possible Federal enforcement action occur only if a State regulatory authority fails to respond within ten days or submits a response that is arbitrary, capricious, or an abuse of discretion.

As mentioned above, we are proposing to restrict the sources of information that we review when determining whether we have reason to believe a violation exists to: information received from a citizen complainant, information in our files at the time that we are notified of the possible violation, and publicly available electronic information. The first source of information would include information in the citizen complaint and any other supporting information that the citizen chooses to provide. The second information source would encompass information available in our files at the time that we are notified of the possible violation or at the time that OSMRE receives a request for a Federal inspection. We propose to limit this category to information that we already have when we receive a citizen complaint or a request for a Federal inspection so that we will be able to act expeditiously and will not incur delay by engaging in a larger information gathering effort.

In the 2020 TDN Rule, we sought to place a temporal limitation on the data collection by indicating that the information must be “readily available.” Given our experience with that rule and after reexamination, we now conclude that “readily available” does not necessarily impose a time limit and could be interpreted to involve a larger information gathering than we envisioned, potentially including information that takes months to gather and analyze, and can unnecessarily delay a “reason to believe” determination. Thus, we are proposing to add a clear limitation so that the information that OSMRE will consider is contained in our files at the time that we are notified of a possible violation or receive a request for a Federal inspection.

Given the widespread public availability of electronic information via the internet or similar sources, however, we propose that we may also consider information from a third source: “publicly available electronic information.” This would include any and all data that is publicly available in an electronic format. For us to use information not already in our files when determining whether we have reason to believe a violation exists, the information would have to be in an electronic format and be “publicly available.” We propose to limit this information to electronic sources to avoid delays associated with trying to locate hard copy files. This information could include electronic permitting information that the relevant regulatory authority or governmental entity makes available to the public. Our goal with these proposed changes is to limit the sources of information that we would consider to ensure an expeditious “reason to believe” determination, and thus reduce the amount of time between when we become aware of a possible violation and when we inform the State regulatory authority of the possible violation.

In addition, treating a possible “permit defect” as we do any other possible violation and notifying the State regulatory authority through a TDN, rather than treating the issue, in the first instance, as a “State regulatory program issue” under 30 CFR 733.12, could save time and allow OSMRE and the State regulatory authorities to begin addressing possible violations more quickly.

Treating all types of possible violations the same would be more consistent with 30 U.S.C. 1271(a)(1), which provides that whenever the Secretary, “on the basis of any information available to him, including receipt of information from any person,” has “reason to believe that any person is in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA],” the Secretary must notify the State regulatory authority. (Emphasis added.) In the preamble to the 2020 TDN Rule, we explained that, under 30 U.S.C. 1271(a)(1), “any person” who can be in violation of SMCRA or a State regulatory program “does not include a State regulatory authority, unless it is acting as a permit holder.” 85 FR 75176; see also id. at 75179. The better reading of that statutory provision is one we have held throughout most of OSMRE's history: that we must issue a TDN when we have reason to believe that any person, including a State regulatory authority, is in violation of any requirement of SMCRA. If a State has issued a permit that would allow coal mining to occur in a manner that is inconsistent with SMCRA or the applicable State regulatory program, or a permit that does not comply with all requirements to obtain a permit, it makes little sense for us to wait for the permittee or operator to act in accordance with that defective permit before we can issue a TDN. Moreover, States would most likely become aware of a “permit defect” issue sooner under the proposed rule and therefore have an earlier opportunity to evaluate and address the issue. As always, if a State disagrees that there is a violation, it can respond to the TDN by explaining its position that a possible violation does not exist under the State regulatory program. 30 CFR 842.11(b)(1)(ii)(B)( 4 )( i ). We will honor a State's response to the TDN unless we conclude that the action or response is arbitrary, capricious, or an abuse of discretion. Id. § 842.11(b)(1)(ii)(B)( 2 ).

Within the cooperative federalism framework, citizens have a voice in the form of a citizen complaint. As mentioned, in this proposed rule, we are also proposing to define “citizen complaint,” at proposed 30 CFR 842.5, to remove any confusion and clarify that the purpose of a citizen complaint, in the TDN context, is for citizens to inform OSMRE of a possible violation or issue with a State regulatory program. We are proposing to define “citizen complaint” as “any information received from any person notifying the Office of Surface Mining Reclamation and Enforcement (OSMRE) of a possible violation of the Act, this chapter, the applicable State regulatory program, or any condition of a permit or an exploration approval.” Defining the phrase “citizen complaint” would remove any inconsistencies associated with the phrase or related processes.

In addition, in this proposed rule, we intend to remove any confusion concerning the difference between “citizen complaints” under § 842.11 and “requests for Federal inspections” under existing § 842.12(a). A citizen complaint may or may not expressly request a Federal inspection, and the citizen complaint may result in the issuance of a TDN if we form the requisite reason to believe and there is no imminent harm. Likewise, “[r]equests for Federal inspections,” under 30 CFR 842.12(a), may also result in the issuance of a TDN in non-imminent harm situations.

Under this proposed rule, we also propose to avoid any misunderstanding by removing the requirement for a citizen to contact the applicable State regulatory authority before requesting a Federal inspection. The SMCRA provision governing inspections and monitoring, at 30 U.S.C. 1267(h)(1), states that any person adversely affected by a surface mining operation may notify OSMRE “in writing, of any violation of [SMCRA] which he has reason to believe exists at the surface mining site.” This statutory provision does not require a citizen to notify the State regulatory authority when informing us of a possible violation. Likewise, the TDN process at 30 U.S.C. 1271(a)(1) does not require a citizen to notify the State regulatory authority when bringing a possible violation to our attention.

While we have discretion to require citizens to notify the State regulatory authority whether they are filing a citizen complaint under § 842.11 or requesting a Federal inspection under § 842.12, we have decided, consistent with our objective to remove unnecessary hurdles for citizen complainants, to propose to remove the requirement from § 842.12(a) and clarify that there is not a similar requirement for § 842.11(b).

In addition, to improve clarity, we propose to add language in both § 842.11(b)(2) and § 842.12(a) stating that all citizen complaints will also be considered as requests for Federal inspections. Accordingly, if a Federal inspection occurs as a result of any information received from a citizen complainant, the citizen would be afforded the right to accompany the Federal inspector on the inspection.

As we noted in the preamble to the 2020 TDN Rule, there has never been a stringent time frame for determining whether we have reason to believe a violation exists. 85 FR 75158. Notably, neither SMCRA nor the pre-2020 TDN rules contain such a time frame. While SMCRA gives us discretion to determine if and when we have the requisite reason to believe, we intend to make such determinations quickly after receiving a citizen complaint. Our proposed regulatory revision reflects that intention by limiting the sources of information that we will consider when evaluating whether we have reason to believe a violation exists.

In addition, SMCRA and our longstanding TDN regulations provide that a State regulatory authority has ten days to respond to a TDN indicating that it has taken appropriate action to cause the possible violation to be corrected or that it has good cause for not taking action. 30 U.S.C. 1271(a)(1); 30 CFR 842.11(b)(1)(ii)(B)( 1 ). These provisions do not require the underlying issue to be fully resolved within ten days. In some instances, in response to a TDN, a State regulatory authority will be able to demonstrate that the possible violation has already been corrected or that the allegation does not amount to a violation of the State regulatory program. However, in many instances, the ultimate resolution of the issue or abatement action occurs after we receive a State's response to a TDN. Whether we agree with the State's proposed action to resolve an issue or disagree and conduct a Federal inspection, ultimate resolution of the underlying issue often occurs well after the initial ten-day period. Many times, the final resolution of an issue occurs days or months after the initial citizen complaint, and, in some circumstances, resolution can take more than a year.

Nonetheless, we propose several steps to reduce the time between the identification of a State regulatory program issue and final resolution of that issue. Under the 2020 TDN Rule, 30 CFR part 733 corrective actions associated with State regulatory program issues may constitute “appropriate action” in response to a TDN. 30 CFR 842.11(b)(1)(ii)(B)( 3 ). However, the existing regulation provides that we will only develop and institute an action plan if we believe the State regulatory program issue will take longer than 180 days to resolve or if the State regulatory program issue is likely to result in a violation. 30 CFR 733.12(b). In addition, existing § 733.12(b) does not require any specific interim measures between identification of the State regulatory program issue and institution of a corrective action plan; the existing regulations say only that we “may employ any number of compliance strategies to ensure that the State regulatory authority corrects a State regulatory program issue in a timely and effective manner.” Id. Thus, a possible violation, if addressed under existing 30 CFR part 733 as a State regulatory program issue, could exist for a long period of time before resolution.

To hasten that process, we propose to amend 30 CFR 842.11 and 733.12 to address the possibility of delay. First, under proposed 30 CFR 842.11(b)(1)(ii)(B)( 3 ), corrective actions under 30 CFR part 733 could no longer constitute appropriate action in response to a TDN. Second, at 30 CFR 733.12(b), we propose to remove the 180-day language pertaining to development of an action plan. Instead, for each State regulatory program issue, we, in consultation with the applicable State regulatory authority, would “develop and approve an action plan within 60 days of identification of a State regulatory program issue.” When crafting a corrective action plan, the proposed rule envisions a collaborative process between OSMRE and the State regulatory authority. In addition, at § 733.12(b), we also propose that, “[w]ithin 10 business days of OSMRE's determination that a State regulatory program issue exists, OSMRE and the State regulatory authority may identify interim remedial measures that may abate the existing condition or issue.” Amending these provisions would shorten the time between identification of a State regulatory program issue and the development of measures to address the issue. Thus, the proposed rule would retain the corrective action plan concept but add timeframes to ensure that action is taken expeditiously.

Further, for State regulatory program issues, § 733.12(b)(1) of the proposed rule would allow one calendar year from receipt of an action plan for the State regulatory authority to complete the identified actions in the action plan. We recognize that final resolution of an issue may not occur within the allotted one year, but, under the proposed regulations, the State regulatory authority would need to complete the identified actions within one year. For example, a State regulatory program issue may require an amendment of the approved State regulatory program and gaining approval of a State program amendment may require more than a year. In such circumstances, the action identified in the action plan may be for the State regulatory authority to prepare and submit the proposed State program amendment within the allotted timeframe, with a recognition that there could be additional required State approvals, and that, ultimately, we would need to approve the State program amendment. Thus, when developing a corrective action plan, care must be given to identify required actions and what constitutes “completion” of the action plan. Completion criteria would need to set forth actions and milestones that would be achievable within 365 days. The goal is to keep violations from going unabated, minimize on-the-ground impacts, and prevent off-site impacts.

Under the existing regulations at 30 CFR 842.11(b)(1)(ii)(B)( 4 )( ii ), “good cause” for a State regulatory authority not to take “appropriate action” in response to a TDN includes the State's initiation of “an investigation into a possible violation” and its resulting determination that it “requires a reasonable, specified additional amount of time to determine whether a violation exists.” We propose to amend this provision by specifying the time within which the State regulatory authority must complete its investigation. The proposed rule would provide that “[t]he State regulatory authority may request up to 30 additional days to complete its investigation of the issue,” and that, “in complex situations, the State regulatory authority may request up to an additional 60 days to complete the investigation.”

We are proposing this limit so that a State regulatory authority will not postpone abatement measures while it is engaging in an open-ended investigation of whether a violation exists. In our experience, determining if a violation exists is not an exhaustive or indeterminate process. Under this proposed rule, that process would end in 30 days for most situations and 60 additional days when complex situations arise. The proposed rule would cap the maximum amount of time at 90 days from when we determine that the State regulatory authority has satisfied the criteria for good cause. In addition, when a State regulatory authority is requesting more time to address an identified issue, we would require the State regulatory authority to provide a reasoned justification for the time extension. Under the proposed rule, when we evaluate a State regulatory authority's request for additional time, we would have “discretion to approve the requested time extension or establish the length of time, up to 90 days, that the State regulatory authority has to complete its investigation.” This is intended to facilitate faster resolution of identified issues.

At proposed § 842.11(b)(1)(ii)(B)( 1 ) and (b)(1)(ii)(B)(4)( iii ), we propose similar revisions to reduce the burden on State regulatory authorities and OSMRE. In the first provision, (§ 842.11(b)(1)(ii)(B)( 1 )), we propose that “[w]here appropriate, OSMRE may issue a single ten-day notice for substantively similar possible violations found on two or more permits involving a single permittee, including two or more substantively similar possible violations identified in one or more citizen complaints.” In the second provision, (§ 842.11(b)(1)(ii)(B)(4)( iii )), we propose that good cause in response to a TDN includes OSMRE “identif[ying] substantively similar possible violations on separate permits and consider[ing] the possible violations as a single State regulatory program issue . . . .” By the phrase “substantively similar possible violations,” we mean issues or possible violations that are similar, or even identical, in that they are subject to the same statutory or regulatory provisions and have a common theme. This provision would allow similar possible violations to be addressed under a single corrective action plan. Issuing separate TDNs on substantively similar possible violations involving the same permittee is redundant and not an efficient use of our or State resources when the underlying issue can be more efficiently addressed simultaneously. Moreover, occurrence of substantively similar issues on separate permits could indicate a systemic issue in the implementation of a State regulatory authority's program, which would be more efficiently addressed as a State regulatory program issue and resolved through implementation of an action plan. It is logical to combine substantively similar issues and possible violations into a single plan of action and address all the issues as a group rather than through a series of individual actions.

On a related topic, the 2020 TDN Rule defined “State regulatory program issue” as an issue that could result in a State regulatory authority not effectively implementing, administering, enforcing, or maintaining its State regulatory program, including issues related to the requirement that a State regulatory authority must not approve a permit unless it finds that the application is accurate and complete and complies with all requirements of the Act and the State regulatory program. 30 CFR 733.5. This definition and associated provisions were intended to address issues with a State regulatory authority's implementation of its approved SMCRA program. In the TDN context, these issues often arise as “permit defects” that are identified in a citizen complaint. As explained elsewhere, we generally consider a permit defect to be a deficiency in a permit-related action taken by a State regulatory authority, such as issuance of a permit with a provision, or lack thereof, that is contrary to the approved State program. In colloquial terms, a permit defect results in a “defective permit.”

In the preamble to the 2020 TDN Rule, we explained that a permit defect “will typically be handled as a State regulatory program issue [rather than through issuance of a TDN], unless there is an actual or imminent violation of the approved State program.” 85 FR 75176. Under this proposed rule, we would once again issue TDNs for permit defects, as possible violations, when we have the requisite reason to believe a violation exists. An alleged permit defect could be grouped with substantively similar possible violations and addressed as a single State regulatory program issue. Addressing the issue as a State regulatory program issue would constitute “good cause” for not taking appropriate action within ten days under the TDN process.

In this proposed rule, we considered proposing a definition of “permit defect,” but ultimately determined that it is unnecessary to do so. In general, SMCRA states that we issue a TDN when we have “reason to believe that any person is in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA].” 30 U.S.C. 1271(a)(1). A permit defect constitutes a “violation” under the common understanding of that term. See Webster's New International Dictionary 2846 (2d ed. 1959). Although the State regulatory authority would not itself be mining in violation of SMCRA or the approved State program, it has issued a State permit or it would allow a permittee to mine in a manner that is not in compliance with the approved State program or SMCRA. In appropriate circumstances, we would issue a TDN even if mining has not started.

As mentioned, under the 2020 TDN Rule, we indicated that “a so-called `permit defect' will typically be handled as a State regulatory program issue [under 30 CFR part 733], unless there is an actual or imminent violation of the approved State program.” 85 FR 75176. As such, the existing regulations provide that nothing in 30 CFR 773.12(d) “prevents a State regulatory authority from taking direct enforcement action in accordance with its State regulatory program, or OSMRE from taking appropriate oversight enforcement action” if “a previously identified State regulatory program issue results in or may imminently result in a violation of the approved State program.” We had initially proposed that we and the State regulatory authority could take appropriate enforcement actions when “a previously identified State regulatory program issue results in or may imminently result in an on-the-ground violation.” 85 FR 28916-917 (emphasis added). In the final rule, we substituted “a violation of the approved State program” for “an on-the-ground violation.” See, e.g., 85 FR 75152, 75174. However, in the preamble to the final rule, we also explained that: “In OSMRE's experience, a violation of the approved State program often manifests itself as an on-the-ground impact, but may also manifest by other means, such as a failure to submit a required certification or monitoring report.” 85 FR 75170; see also 85 FR 75174 (“OSMRE recognizes that these violations often manifest as an on-the-ground impact, but OSMRE also recognizes that these violations may manifest by other means.”).

This proposed rule would treat all violations the same, whether they are on-the-ground or otherwise. Thus, under 30 CFR 842.11, we would issue a TDN for any possible violation after forming the requisite reason to believe a violation exists. Proposed 30 CFR 733.12(d) would remove the reference to imminent violations, so that we need not wait for an imminent or actual on-the-ground violation before issuing a TDN. For example, we would be able to issue TDNs for, e.g., failure to submit a required certification or monitoring report after forming reason to believe a violation exists. Our proposal to once again be able to issue TDNs for all violations, including those committed by a permittee and permit defects, would comport more closely with SMCRA's language in 30 U.S.C. 1271(a)(1) by treating all violations the same in the first instance and removing any concern that we have created two classes of violations: one that is subject to the TDN process and another that is not.

The term “violation” is defined at 30 CFR 701.5. That definition only applies to “the permit application information or permit eligibility requirements of sections 507 and 510(c) of [SMCRA] and related regulations” and thus is not applicable to this proposed rule, which primarily implements section 521 of SMCRA, 30 U.S.C. 1271. Nonetheless, that definition provides a useful comparison. The definition of “violation” at 701.5, in the SMCRA context, provides that a violation includes a noncompliance for which OSMRE or a State regulatory authority has provided a notice of violation; a cessation order; a final order, bill, or demand letter pertaining to a delinquent civil penalty; a bill or demand letter pertaining to delinquent reclamation fees; or a notice of bond forfeiture. In the TDN context, a violation could be any “noncompliance” for which a State regulatory authority would, or could, issue a notice of violation, cessation order, final order, bill, demand letter, or notice of bond forfeiture. The TDN process is designed to trigger the State regulatory authority to take appropriate action where there is a violation.

Moreover, State programs must be no less stringent than SMCRA and no less effective than the Federal regulations in meeting SMCRA's requirements. See 30 CFR 732.15(a) (a State program must be “in accordance with” SMCRA and “consistent with” the Federal implementing regulations); 30 CFR 730.5 (defining “[c]onsistent with” and “in accordance with”). Under 30 CFR 773.7(a) and State counterparts to that provision, a regulatory authority is required to review permit applications and related information and issue a written decision either granting, requiring modification of, or denying the application. A permit applicant has “the burden of establishing that [the] application is in compliance with all the requirements of the regulatory program.” Id. at § 773.7(b). Similarly, under 30 CFR 773.15 and State program counterparts, a permit application must affirmatively demonstrate and the regulatory authority must make a written finding that the “application is accurate and complete and the applicant has complied with all requirements of [SMCRA] and the regulatory program.” 30 CFR 773.15(a) (emphasis added).

In sum, an approved permit that is inconsistent with the approved State program, and by extension the minimum Federal permit application standards at 30 CFR parts 777 through 785, is tantamount to the applicant's noncompliance with the requirements of SMCRA and the State regulatory program. Therefore, such noncompliances are violations that are subject to the TDN process. In some instances, an applicant may provide incomplete or inaccurate information in its permit application, which may lead the State regulatory authority to issue a defective permit. In other circumstances, an applicant may believe it has complied with all of the permitting requirements although it has not, and the State regulatory authority may issue a permit that is not in compliance with the approved program or SMCRA. In such a situation, it makes little sense to wait for the permittee to begin mining activities in accordance with the defective permit before we issue a TDN. Thus, under this proposed rule, we would issue a TDN to a State regulatory authority whenever we have reason to believe that there is a violation, including violations related to defective permits.

In simple terms, an approved permit should not contain any inconsistency with an approved State program, SMCRA, or the Federal regulations. Issuance of a TDN, in appropriate circumstances, would start the process of rectifying the situation. Under this proposed rule, substantively similar possible permit defects could indicate systemic issues that would be best addressed as a single State regulatory program issue under 30 CFR part 733, with a corresponding action plan, which could establish good cause in response to a TDN.

The proposed rule would create a new definitions section at 30 CFR 842.5 that would include definitions for the terms “citizen complaint” and “ten-day notice.” Both terms have been used for years and were referenced throughout the preamble of the 2020 TDN Rule but have not been defined in the Federal regulations. To remove any uncertainty regarding the meaning and usage of these terms, and to promote consistency and clarity, we propose to define these terms.

In the definition of “citizen complaint,” we propose to include the word “possible” to modify “violation,” rather than “alleged” or something similar, to indicate that not all citizen complaints will contain an affirmative allegation of a violation, but the citizen complaint may nonetheless, in substance, identify a possible violation. Including “possible violation” in the proposed definition of “citizen complaint” would recognize that a citizen may provide information that falls short of a formal allegation but may nonetheless give us reason to believe a violation exists. A more formal allegation would also qualify as a “possible violation” under the proposed definition of citizen complaint. Thus, in this preamble, unless context dictates otherwise, references to alleged violations are references to possible violations.

As we explained in a 1982 final rule, we referred to “possible” violations at 30 CFR 842.11(b)(1)(ii)(B) because we may form “reason to believe” that a violation exists even when there is not an affirmative allegation. 47 FR 35627 (Aug. 16, 1982). Citizens may not be familiar with the intricacies of SMCRA, the Federal regulations, or the relevant State regulatory program. Thus, we propose that a citizen complaint need only identify a possible violation, rather than identifying an alleged violation with particularity, although citizens are encouraged to provide as much legal and factual information as possible in order to assist us in determining whether we have reason to believe a violation exists.

As proposed, information in a “citizen complaint” would need to be conveyed to us “in writing (or orally, followed up in writing).” Written information could be contained in a traditional letter, electronic mail, or other electronic means.

Next, as explained above, we are proposing to define the term “ten-day notice.”

Defining “ten-day notice” would provide a uniform understanding of the term. In our experience, many State regulatory authorities believe a TDN is equivalent to an “enforcement action” or is otherwise a criticism of the State's enforcement of SMCRA. As a result, some State regulatory authorities have a negative view of our issuance of TDNs. As previously stated, when a TDN results from a citizen complaint (rather than a Federal oversight inspection), the TDN is merely a communication mechanism that we use to notify State regulatory authorities of possible violations of the relevant State regulatory program. A TDN is not an “enforcement action” against the State, even though the concept is contained in the enforcement section of SMCRA. 30 U.S.C. 1271. The current State regulatory authorities obtained primacy many years ago and have since been implementing SMCRA via their approved State regulatory programs. In SMCRA, Congress envisioned States as the primary enforcers of SMCRA, with Federal oversight. In this regard, SMCRA provides a cooperative federalism model, with TDNs part of that model. A TDN that results from a citizen complaint simply represents OSMRE's statutory obligation to inform the primary regulators of possible violations of SMCRA or an approved State program. After OSMRE notifies the State regulatory authority, the State might enforce SMCRA against a permittee or operator, or, in rare cases, if we disagree with the State, we might take enforcement action. The proposed definition of “ten-day notice” would capture the understanding that a TDN is a communication mechanism that we use to notify a State regulatory authority under §§ 842.11(b)(1)(ii)(B)( 1 ) and 843.12(a)(2) whenever an “OSMRE authorized representative has reason to believe that any permittee and/or operator is in violation” of the specified provisions “or when, on the basis of a Federal inspection, OSMRE determines that a person is in violation” of the specified provisions “and OSMRE has not issued a previous ten-day notice for the same violation.”

We propose to include in the definition of “ten-day notice” a reference to “this chapter.” That reference is included in existing § 842.11(b)(1)(i), and, in this context, a violation of the regulations implementing SMCRA is within the scope of the proposed definition of “ten-day notice.”

Finally, the proposed definition specifies that TDNs are “used in non-imminent harm situations” because SMCRA, at 30 U.S.C. 1271(a)(1), specifies that “the ten-day notification period shall be waived when the person informing the Secretary provides adequate proof that an imminent danger of significant environmental harm exists and that the State has failed to take appropriate action.” Thus, when we receive adequate proof of an imminent harm and the State regulatory authority has failed to take appropriate action, we do not issue a TDN; rather, we proceed directly to a Federal inspection. 30 CFR 842.11(b)(1)(ii)(C).

We propose a change to 30 CFR 842.11(b)(1)(i) that would limit the sources of information that we review when determining whether we have reason to believe a violation exists. In the 2020 TDN Rule, we explicitly expanded the scope of information that we could use to determine whether we have reason to believe to include “any information readily available to [OSMRE], from any source, including any information a citizen complainant or the relevant State regulatory authority submits . . . .” 30 CFR 842.11(b)(1)(i); see also id. §§ 842.11(b)(2) and 842.12(a) (requests for Federal inspections). In the preamble to the 2020 TDN Rule, we explained that “[a]ny readily available information includes information from any person, including the permittee, and is not limited to information that OSMRE receives from a citizen or State regulatory authority.” 85 FR 75162. The change was intended to enable us to make a better-informed decision about whether we have reason to believe a violation exists.

Our experience implementing the 2020 TDN led us to reexamine it and SMCRA's statutory underpinnings. The reference to “receipt of information from any person” (emphasis added) in SMCRA section 1271(a) is best read as referring to “any person” who has information about the existence of a possible violation, rather than information from other sources that could disprove the existence of a violation. While in some cases it might be more efficient to consider information from the State regulatory authority up front, we believe that SMCRA envisions a back-and-forth process with the State regulatory authority during the ten-day period after issuance of a TDN. In other words, after we issue a TDN, the State regulatory authority can respond by referring to any information in its possession about the possible violation. We believe that this approach—limiting the sources of information that we review to determine whether we have reason to believe a violation exists—better aligns with SMCRA and would allow us to make a quicker determination and allow any violations to be corrected more quickly. Moreover, using information we have on hand or that is available to the public electronically in addition to information contained in a citizen complaint, will still allow us to make a “reason to believe” determination without excessive delay in issuing a TDN in appropriate circumstances. This change would make the process more efficient by reducing the amount of time between receiving information about a possible violation and issuing a TDN to the State under the appropriate circumstances, which would prompt action to correct violations as soon as possible.

To accomplish the changes discussed above, we are proposing to amend the text of § 842.11(b)(1)(i), in pertinent part, to state that the authorized representative determines whether there is “reason to believe” that there is a violation based on “information received from a citizen complainant, information available in OSMRE files at the time that OSMRE is notified of the possible violation (other than information resulting from a previous Federal inspection), and publicly available electronic information.” In the same provision of the existing regulations, we are proposing to remove the language that would allow us to determine whether we have reason to believe on the basis of “any” information “readily available,” “from any source,” “including any information . . . the relevant State regulatory authority submits.” In addition to the deletions noted above, we also propose to make minor, non-substantive changes for readability.

This change would also limit the sources of information we could consider when determining whether to conduct a Federal inspection in areas where OSMRE is the regulatory authority ( i.e., States and Tribes without primacy and Federal coal in areas without a State/Federal cooperative agreement). Under the proposed rule, we would consider information received from a citizen complainant, information available in our files at the time that we are notified of the possible violation, and any publicly available electronic information when determining whether we have reason to believe a violation exists in an area where OSMRE is the regulatory authority. Under existing 30 CFR 842.11(b)(1)(ii)(A), if we conclude we have reason to believe a violation exists, we will conduct a Federal inspection.

We propose several changes to the existing regulations at 30 CFR 842.11(b)(1)(ii). At 30 CFR 842.11(b)(1)(ii)(B)( 1 ), we are proposing to add a new sentence at the end of the existing provision, which would read: “Where appropriate, OSMRE may issue a single ten-day notice for substantively similar possible violations found on two or more permits involving a single permittee, including two or more substantively similar possible violations identified in one or more citizen complaints.” This would enhance administrative efficiency by allowing us to combine substantively similar possible violations by the same permittee involving more than one permit into a single TDN when we determine that doing so is the best course of action to resolve the larger issue expeditiously.

We propose this change for two main reasons: first, to prevent multiple, parallel Federal actions on substantively similar possible violations or citizen complaints, and second, to more efficiently resolve the possible violations. Addressing a single underlying issue on several permits or citizen complaints simultaneously would lead to more expeditious resolution of the underlying issue. In our experience, each individual TDN requires OSMRE and the State regulatory authority to commit resources to resolve the matter. Parallel actions can be inefficient and may lead to actions that are not fully consistent. Combining substantively similar possible violations into a single TDN would remove these inefficiencies and potential inconsistencies, allowing for quicker resolution of the possible violations. In sum, this change would allow us and the State regulatory authority to more efficiently use our limited resources and personnel to resolve underlying issues more quickly.

In proposed § 842.11(b)(1)(ii)(B)( 3 ), we would remove the second sentence in the existing provision, which allowed creation and implementation of a corrective action plan under 30 CFR part 733 to constitute “appropriate action” in response to a TDN. Pursuing an action plan for a State regulatory program issue under 30 CFR part 733 would no longer constitute “appropriate action.” However, as discussed in the following paragraphs, we are proposing that an action plan could constitute “good cause” in certain situations for not taking action in response to a TDN. We are also proposing a non-substantive change to the first sentence of the existing section: we propose to add “regulatory” between “State” and “program” so the reference would be to “State regulatory program.”

Inclusion of an action plan as an appropriate action under 30 CFR 842.11(b)(1)(ii)(B)( 3 ) is not fully consistent with SMCRA section 521(a)(1), 30 U.S.C. 1271(a)(1). The statute states that “appropriate action” is an action taken by the State regulatory authority within ten days to “cause said violation to be corrected . . . .” Developing an action plan, as envisioned in the 2020 rule, generally means that the State regulatory authority cannot cause the violation to be corrected within ten days of receiving a TDN; rather, OSMRE and the State can initiate the action plan process in that ten-day window. Correction of the violation would come later. Therefore, after further review, we find that the action plan process would be better incorporated into the “good cause” exception for not taking appropriate action under 30 U.S.C. 1271(a)(1). This proposed change would make the regulations adhere more closely to the statutory text.

As explained above, this proposed rule would provide for the issuance of TDNs for permit defects. Hence, those types of possible violations would no longer automatically be handled under 30 CFR part 733. Instead, we would issue TDNs for any possible violations, including permit defects, when we form the requisite reason to believe a violation exists, and entering into an action plan under part 733 would no longer constitute appropriate action in response to a TDN. When implemented appropriately, however, an action plan could lead to correction of underlying violations. Thus, in appropriate circumstances, an action plan could constitute “good cause” for not taking action within ten days of a TDN. In sum, we believe action plans are an important oversight tool to correct State regulatory program issues, but they do not demonstrate appropriate action in response to a TDN.

This proposed rule would also change the examples of State regulatory authority responses to a TDN that may constitute “good cause” under 30 CFR 842.11(b)(1)(ii)(B)( 4 ). We propose to add a new paragraph (b)(1)(ii)(B)( 4 )( iii ), which would result in redesignations of existing paragraphs (b)(1)(ii)(B)( 4 )( iii ) through ( v ) as paragraphs (b)(1)(ii)(B)( 4 )( iv ) through ( vi ).

Existing § 842.11(b)(1)(ii)(B)( 4 )( ii ) recognizes that State regulatory authorities are not always able to determine whether a possible violation exists within ten days, especially in complex circumstances. Some circumstances require complex technical and/or legal analysis to determine if there is actually a violation. For example, issues relating to property rights and right of entry may require legal review and analysis. Similarly, possible violations related to groundwater well contamination may require more than ten days to collect water samples, receive certified laboratory analyses, and develop technical expert interpretation of data to determine the possible origin of any contamination. In appropriate circumstances, State regulatory authorities have long been able to show good cause by demonstrating that they require additional time to determine whether a violation exists.

Under the proposed rule, while State regulatory authorities could still request extensions of time to respond to a TDN, we are proposing to limit the length of extensions. In § 842.11(b)(1)(ii)(B)( 4 )( ii ), we propose to remove “as a result” from the first sentence as superfluous and unnecessary. In the same sentence, we propose to remove “reasonable, specified” as a modifier for the “additional amount of time” that a State regulatory authority can request to respond to a TDN. This language would no longer be necessary because we are proposing specific extension limits. The next sentence would be new and would read: “The State regulatory authority may request up to 30 additional days to complete its investigation of the issue; in complex situations, the State regulatory authority may request up to an additional 60 days to complete the investigation.” This new provision would be consistent with our view that, when extenuating circumstances are involved, a State regulatory authority should generally be able determine if a violation exists within 30 days. The provision would also recognize the need for longer time frames in complex situations and, under this proposed rule, we would be able to approve up to an additional 60 days.

The next sentence of the proposed rule would provide: “In all circumstances, an extension request must be supported by an explanation of the need for, and the measures being undertaken that justify, an extension, along with any relevant documentation.” While this requirement is implied under the existing regulations, we are proposing to make the requirement explicit. The following sentence would amend the existing second sentence of the provision: “The authorized representative has discretion to approve the requested time extension or establish the length of time that the State regulatory authority has to complete its investigation.” We are proposing to delete the introductory clause of the existing sentence that states: “When analyzing the State regulatory authority's response for good cause, . . . .” We are proposing this non-substantive change because the existing language is unnecessary. The remaining changes to this sentence would also be non-substantive. Under this provision, the authorized representative would still have discretion to establish the length of an extension, but, under the following sentence, which would be new, any extension would be capped at 90 days. The proposed provision would set a limit to ensure that all TDNs are addressed expeditiously. Thus, under this proposed revision, we could not grant a State regulatory authority an extension of more than 90 days total to determine if a violation exists. In our experience implementing SMCRA for more than 40 years, we believe a State regulatory authority would not need more than 90 days to determine if there is a violation of SMCRA, the Federal regulations, the relevant State regulatory program, or an approved permit. If a State regulatory authority does not respond by the end of an approved extension period, we will order an immediate Federal inspection and take any appropriate enforcement action. In the last sentence of the existing provision, for grammatical reasons, we are proposing to add a comma between “response” and “including.”

Finally, as discussed above, we propose to add a new paragraph (b)(1)(ii)(B)( 4 )( iii ), which would incorporate the action plan process as a new example of what could constitute good cause for not taking appropriate action within ten days in response to a TDN. As explained above, we propose this new provision to create efficiencies by treating substantively similar possible violations under the same State regulatory program issue, which would allow similar possible violations to be addressed under a single action plan. As stated, action plans serve an important role as an oversight tool to ensure correction of State regulatory program issues, and this provision would promote uniform and consistent resolution of similar issues.

There are several proposed changes to the existing regulations at 30 CFR 842.11(b)(2) that would align the section with the changes we propose at § 842.11(b)(1)(i) regarding the sources of information we will consider when making a reason to believe determination.

As explained above, we do not think it is necessary to wait for information from the State regulatory authority when determining whether we have reason to believe a violation exists for TDN purposes. As in § 842.11(b)(1)(i), we propose to limit the information that we consider to information received from a citizen complainant, information available in OSMRE's files at the time that OSMRE is notified of the possible violation, and publicly available electronic information.

In addition, instead of stating that we have reason to believe a violation exists if the facts available to an authorized representative “constitute simple and effective documentation of the alleged violation, condition, or practice,” the proposed rule would state that we have reason to believe if the facts “support the existence of a possible violation, condition, or practice.” The existing language is confusing. For example, although the first sentence of the existing provision speaks to “facts that a complainant alleges,” the phrase “simple and effective documentation of the alleged violation” implies that a citizen complainant must provide some form of “documentation” rather than only a written statement. However, SMCRA at 30 U.S.C. 1271(a)(1) establishes that we can form “reason to believe” on the basis of any “information,” a lower threshold that need not depend on supporting documentation. By requiring information to “support” the existence of a possible violation, the proposed language would strike a balance between a citizen complainant providing minimal information about the existence of a possible violation and supplying enough information to support “reason to believe” a violation exists. It is in all parties' best interest for a citizen to provide as much information as possible, including any documentation that the citizen may have, to assist us in narrowing our focus and more readily identifying possible violations.

Moreover, we continue to believe that citizen complaints require us to engage in some review and analysis rather than simply accepting the facts in a complaint as true and passing the complaint to a State regulatory authority as a TDN. As such, we are also proposing that, in addition to information from a citizen complainant, we could consider “information available in OSMRE files at the time that OSMRE is notified of the possible violation, and publicly available electronic information.” Practically speaking, this provision would limit us to considering information that already exists at the time we receive a citizen complaint and make clear that we do not conduct investigations or inspections before we determine whether we have the requisite reason to believe a violation exists to support issuance of a TDN. This approach better aligns with SMCRA's language and legislative history. It attempts to balance the benefit of citizen assistance in implementing SMCRA with our obligation and expertise to determine if we have reason to believe a violation exists.

We are also proposing to add two new sentences to § 842.11(b)(2) specifying that: “All citizen complaints will be considered as requests for a Federal inspection under § 842.12. If the information supplied by the complainant results in a Federal inspection, the complainant will be offered the opportunity to accompany OSMRE on the Federal inspection.” This would remove the requirement for a citizen to specifically request a Federal inspection, thus resolving any confusion about the processes associated with citizen complaints versus requests for Federal inspections. A citizen seeking help with a possible SMCRA problem may not appreciate the difference under the 2020 TDN Rule between requesting a Federal inspection and alerting OSMRE to a possible SMCRA problem. We propose to eliminate any hurdles for citizens and simplify the process by specifying that any citizen complaint will be considered as a request for a Federal inspection. This proposed change would make it easier for citizens to engage in the process, as SMCRA envisioned, by not requiring them to use specific terms of art to request a Federal inspection. This clarification is also consistent with the TDN process, which could ultimately result in a Federal inspection regardless of whether the citizen specifically requested that inspection. Finally, under the proposed rule, if information supplied by a citizen complainant results in a Federal inspection, even if the complainant did not specifically request a Federal inspection, the citizen complainant would be offered the opportunity to accompany us on the Federal inspection.

The final proposed change in part 842 would be to existing 30 CFR 842.12(a). Some of the proposed changes would track our proposed revisions to § 842.11 regarding the information sources we can consider when determining whether we have reason to believe a violation exists. We also propose to add new requirements to this section. The revisions would eliminate several barriers for citizens to file and obtain resolution of their complaints.

The first proposed change would harmonize this section with the changes we propose to § 842.11(b)(1)(i) and (b)(2). Specifically, the first sentence of existing § 842.12(a) refers to OSMRE forming “reason to believe” a violation exists based upon information from a person requesting a Federal inspection, “along with any other readily available information.” As explained previously regarding the proposed changes to § 842.11(b)(1)(i), we are proposing to remove the language that we consider “readily available information,” including information from the State regulatory authority, when we determine whether we have reason to believe a violation exists. We propose a similar change to § 842.12(a) so that we could consider the requester's signed, written statement “along with any other information the complainant chooses to provide.” Similar to the proposed revisions to § 842.11(b)(1)(i) and (b)(2), we are also proposing to add a new second sentence in this section that would read: “In making this determination, the authorized representative will consider information from a citizen complainant, information available in OSMRE files at the time that OSMRE receives the request for a Federal inspection, and publicly available electronic information.” These proposed changes would better comport with SMCRA. Further, including similar language in the three instances where this concept is addressed (30 CFR 842.11(b)(1)(i), (b)(2), and 842.12(a)) would clarify the Federal regulations.

Next, we propose to delete the second sentence of the existing section. Under the existing regulation, when requesting a Federal inspection, citizens must “set forth the fact that the person has notified the State regulatory authority, if any, in writing, of the existence of the possible violation, condition, or practice, and the basis for the person's assertion that the State regulatory authority has not taken action with respect to the possible violation.” We propose to delete this sentence because we believe it is a burdensome requirement and poses a significant hurdle for citizens reporting a possible violation. While we continue to believe that the State regulatory authority is often in the best position to address citizen complaints expeditiously in the first instance, many citizens prefer not to or will not contact the State regulatory authority. In these situations, we do not believe that there should be a mandatory obligation for a citizen to contact the State regulatory authority before we will act on information about a possible violation as contained in a citizen complaint or request for a Federal inspection. SMCRA at 30 U.S.C. 1271(a) allows citizens to bring their concerns about possible SMCRA violations to OSMRE and provides for those complaints to result in issuance of TDNs when we form the requisite “reason to believe” a violation exists. Section 1271(a)(1) does not require a citizen to notify the State regulatory authority about a possible violation. In fact, that section provides that “[w]henever, on the basis of any information available to [us], including receipt of information from any person, [we have] reason to believe that any person is in violation of any requirement of [SMCRA] or any permit condition required by [SMCRA], [we] shall notify the State regulatory authority, if one exists, in the State in which such violation exists.” (Emphasis added.) Under this proposed rule, if the citizen does not notify the State regulatory authority, and we form the requisite reason to believe, we would notify the State regulatory authority through issuance of a TDN, consistent with SMCRA. Furthermore, this process would be consistent with State primacy because the State has the first opportunity to address the situation, and we will accept a State's response to a TDN unless it is arbitrary, capricious, or an abuse of discretion.

We are also proposing to remove the requirement in the existing second sentence of the section for a person requesting a Federal inspection to set forth “the basis for the person's assertion that the State regulatory authority has not taken action with respect to the possible violation.” That requirement is overly burdensome and discourages citizens from notifying us of potential SMCRA violations. Implicit in a citizen's submission of a complaint or a request for a Federal inspection is their understanding that there is an issue or violation that the State regulatory authority has not addressed. It is unduly onerous to require a citizen to cite the basis of their allegation with the specificity expected of a SMCRA expert. Likewise, citizens will likely not be in a position to readily ascertain why the relevant State officials have not taken any action regarding the possible violation.

The third and final sentence of the existing section, regarding provision of the person's contact information, would remain essentially the same, with one minor, non-substantive edit: inclusion of the word “also” to indicate that it is in addition to previously stated requirements.

We propose to add two new sentences to the end of this section. Similar to the change we propose at § 842.11(b)(2), we propose that “[a]ll citizen complaints under § 842.11(b) will be considered as requests for a Federal inspection,” even if a citizen does not specifically request a Federal inspection. There is no legal or pragmatic reason for differentiating between citizen requests for a Federal inspection and citizen complaints that do not specifically request a Federal inspection. In our view, any citizen complaint that, in substance, alleges a violation of SMCRA is tantamount to a request for a Federal inspection because, as stated above, the TDN process could ultimately result in a Federal inspection. Likewise, when a citizen complainant provides adequate proof of an imminent danger of significant environmental harm, and the State has failed to take appropriate action, we would bypass the TDN process and proceed directly to a Federal inspection. Under this proposed rule, because all citizen complaints would be considered as requests for a Federal inspection, the citizen complainant would be afforded additional rights that, under the existing rule, only extend to people who have requested a Federal inspection. Those additional rights include certain confidentiality rights contained in existing § 842.12(b) and the right to seek review of an OSMRE decision not to conduct a Federal inspection or issue an enforcement action as set forth in existing § 842.15.

Finally, we propose to add a new last sentence to the section: “If the information supplied by the complainant results in a Federal inspection, the complainant will be offered the opportunity to accompany OSMRE on the Federal inspection.” Similar language is already included at existing § 842.12(c), but we are proposing to also include the language in § 842.12(a) to emphasize this important right, derived from 30 U.S.C. 1271(a)(1).

The 2020 TDN Rule does not require us to issue a TDN for a “permit defect.” This proposed rule would require the issuance of a TDN when we have reason to believe any violation exists, including one in the form of a permit defect. We propose to clarify that we will issue a TDN in these circumstances upon forming the requisite reason to believe a violation exists. In the preamble to the 2020 TDN Rule, we explained that, under 30 U.S.C. 1271(a)(1), “any person” who can be in violation of SMCRA or a State regulatory program “does not include a State regulatory authority, unless it is acting as a permit holder.” 85 FR 75176. We further stated that a permit defect “will typically be handled as a State regulatory program issue [rather than through issuance of a TDN], unless there is an actual or imminent violation of the approved State program.” Id. Upon reexamination, we believe that a TDN is appropriate in these circumstances not because the State regulatory authority is in violation of SMCRA or its approved State program, but because it has issued a permit that is not in compliance with the approved State program or that would allow a permittee to mine in a manner that is not authorized by the State regulatory program. We would issue a TDN for possible on-the-ground violations as well as other possible violations of the approved State program, such as noncompliance with the State analogues to the permit application requirements at 30 CFR part 778. In this regard, we would issue TDNs in the appropriate circumstances even if mining under the permit has not started. Our proposed treatment of permit defects would restore our historical practice that was in place before the 2020 TDN Rule.

In the majority of cases, implementing the proposed rule would not result in issuance of a Federal notice of violation to, or any other Federal enforcement action against, a permittee resulting from a State regulatory authority's misapplication of its State regulatory program. State regulatory program issues would be addressed, in the first instance, between us and the relevant State regulatory authority. Upon resolution of the State regulatory program issue, the State regulatory authority may revise an approved permit or take similar action, and we assume that sufficient time would be allotted for the permittee to come into compliance. We believe that this mechanism—resolution of a State regulatory program issue through successful completion of an action plan, coupled with, for example, a required permit revision—should minimize the effects of the process on permittees. However, under the proposed revisions to existing § 733.12(d), even when OSMRE and a State regulatory authority are pursuing an action plan, the State could, in appropriate circumstances, take “direct enforcement action in accordance with its State regulatory program,” and we could take “additional appropriate oversight enforcement action.”

As mentioned previously, if, under proposed § 842.11(b)(1)(ii)(B)( 4 )( iii ), we were to identify “substantively similar possible violations on separate permits and consider the possible violations as a single State regulatory program issue” to be addressed through 30 CFR 733.12, that could constitute “good cause” for not taking action in response to a TDN. In these situations, the relevant provisions of 30 CFR part 733 would be part of the TDN process. Our first proposed revisions for part 733 concern the definitions of “action plan” and “State regulatory program issue” at existing 30 CFR 733.5. We propose non-substantive, clarifying changes to the definition of “action plan” at 30 CFR 733.5 to enhance its readability. The existing definition provides that an action plan “means a detailed schedule . . . .” We propose to change this to indicate that an action plan “means a detailed plan . . . .” Both the existing definition and our proposed revised definition would require us to prepare an action plan that would lead to resolution of the State regulatory program issue.

We also propose to revise the definition of “State regulatory program issue.” Some of the revisions would be for readability, but we also propose substantive changes to the definition. In the first sentence, we propose to change the language indicating that a State regulatory program issue “ could result in a State regulatory authority not effectively implementing, administering, enforcing, or maintaining all or any portion of its State regulatory program” to “ may result from a State regulatory authority's implementation, administration, enforcement, or maintenance of all or any portion of its State regulatory program that is not consistent with the basis for OSMRE's approval of the State program.” This proposed change is designed to indicate that a “State regulatory program issue” could be a possible violation that emanates from a State regulatory authority's actions. We are proposing that a possible violation identified in a TDN could, in the appropriate circumstances, be addressed as a State regulatory program issue under 30 CFR 733.12.

We also propose non-substantive changes to the existing language following “State regulatory program” and a new last sentence that would read: “State regulatory program issues will be considered as possible violations and will initially proceed, and may be resolved, under part 842 of this chapter.” After review of SMCRA section 521(a)(1), 30 U.S.C. 1271(a)(1), its legislative history, and its intent, and based on our experience implementing the 2020 TDN rule, we determined that any “noncompliance” with SMCRA, the Federal implementing regulations, the applicable State regulatory program, or any condition of a permit or exploration approval is a violation under section 521(a)(1). In our experience, the majority of violations result from an operator's or permittee's erroneous implementation of an approved permit. Under this proposed rule, a permit defect would also be considered a possible violation subject to the TDN process and could, in appropriate circumstances, be grouped together with substantively similar possible violations and addressed as a State regulatory program issue under part 733. We propose to consider a “permit defect”— i.e., a deficiency in a permit-related action taken by a State regulatory authority—to be a possible violation that would start, and may be resolved, under the 30 CFR part 842 TDN process.

We propose minor, non-substantive revisions to existing 30 CFR 733.12(a). We propose to remove “in order” before “to ensure” as it is unnecessary. We also propose to change “escalate into” to “become” to be more concise. These proposed changes would not alter the substance of the existing provisions. In existing § 733.12(a)(1), we propose to add “including a citizen complainant” at the end of the sentence to emphasize that a citizen complainant can be a source of information that allows us to identify a State regulatory program issue. In existing § 733.12(a)(2), we proposed to add “initiate procedures to” before “substitute Federal enforcement” and also to add “in accordance with § 733.13” to the end of the sentence to indicate that there is a process for substituting Federal enforcement or withdrawing approval of a State regulatory program.

We are proposing to modify existing § 733.12(b), to, among other things, require development and approval of an action plan for all State regulatory program issues, along with a specific timeframe for development and approval of such a plan. The first sentence of the existing provision provides that OSMRE's “Director or his or her delegate may employ any number of compliance strategies to ensure that the State regulatory authority corrects a State regulatory program issue in a timely and effective manner.” Under the second sentence of the existing provision, actions plans are only required to be developed and instituted “if the Director or delegate does not expect that the State regulatory authority will resolve the State regulatory program issue within 180 days after identification or that it is likely to result in a violation of the approved State program . . . .”

The proposed rule would revise the first sentence of 733.12(b) to read: “For each State regulatory program issue, the Director or their designee, in consultation with the State regulatory authority, will develop and approve an action plan within 60 days of identification of a State regulatory program issue.” (Emphasis added.) Rather than using other strategies to bring the State regulatory authority into compliance, the revised provision would require immediate development of an action plan that prescribes actions and timeframes for correcting State regulatory program issues.

Additionally, we propose to add a new second sentence that would allow us and the relevant State regulatory authority to “identify [within 10 business days] interim remedial measures that may abate the existing condition or issue.” We propose to remove the existing second sentence, which includes the 180-day language, and replace it with 60 days for development and approval of an action plan and the 10-day interim remedial measure language. The proposed provisions would ensure that corrective action occurs quickly so that resources are not wasted, and no avoidable environmental harm occurs. These proposed changes would allow us to immediately begin working with a State regulatory authority to develop an action plan to resolve issues rather than waiting up to 180 days, as is provided in the existing rules.

It bears repeating that we propose to remove the requirement for an action plan when a State regulatory program issue “is likely to result in a violation of the approved State program.” Under this proposed rule, all State regulatory program issues would begin as possible violations under § 842.11. We also propose the non-substantive substitution of the word “designee” for the word “delegate” throughout this section. Finally, at the end of the section, we propose to add, “The requirements of an action plan are as follows:” to lead into the action plan requirements at 30 CFR 733.12(b)(1) through (4).

In the first sentence of existing 30 CFR 733.12(b)(1), we propose the non-substantive inclusion of the word “identify” before “an effective mechanism for timely correction” for clarity. We are also proposing to modify § 733.12(b)(1) by adding a new second sentence that would require the State regulatory authority to “complete all identified actions contained within an action plan within 365 days from when OSMRE sends the action plan to the relevant State regulatory authority.” (Emphasis added.) Action plans should be developed and written so that the actions will be achievable within the 365-day time frame. For example, a State regulatory program issue may require a State program amendment, but the State program amendment process normally exceeds 365 days from start to finish. In this instance, an identified action in the action plan could be submission of a State program amendment or, if State legislative approval is required, submission of a plan to accomplish the program amendment, recognizing that the State program amendment likely would not be finalized within 365 days. However, under proposed § 733.12(d), even when an action plan is in place, we and a State regulatory authority could still take appropriate enforcement actions, such as actions that may be required to abate an imminent harm situation. Further, at 30 CFR 733.12(b)(2), we propose to add “upon approval of the action plan” to the end of the existing section to clarify that an approved action plan will identify any remedial measures that a State regulatory authority must take immediately after the action plan is approved.

Existing § 733.12(b)(3) sets forth additional information that an action plan must include. In § 733.12(b)(3)(iii) and (iv), we propose the non-substantive change of replacing the word “explicit” with “specific.” Also, in existing § 733.12(b)(3)(iii), after the language “complete resolution,” we propose to insert “of the violation,” which would again indicate that State regulatory program issues would be considered as possible violations under this proposed rule. In existing § 733.12(b)(3)(v), we propose to insert “detailed” before “schedule for completion” to clarify that each action identified in an action plan and associated completion milestone must be set forth with sufficient detail so that that there is a clear understanding of what is required under the action plan.

Additionally, we propose non-substantive changes to existing 30 CFR 733.12(b)(3)(vi). The existing provision reads: “A clear explanation that if the action plan, upon completion, does not result in correction of the State regulatory program issue, the provisions of § 733.13 may be triggered.” We propose minor modifications to this language to read: “A clear explanation that if, upon completion of the action plan, the State regulatory program issue is not corrected, the provision of § 733.13 may be initiated.” This language would ensure that if a State regulatory authority does not address the issues identified in an action plan and otherwise fails to complete the action plan within the time designated, we can begin the process under 30 CFR 733.13 for substituting Federal enforcement for, or withdrawing approval of, the relevant State program.

Finally, we propose to add a new paragraph 30 CFR 733.12(b)(4), which would state: “Once all items in paragraphs (b)(1) through (3) of this section are satisfactorily addressed, OSMRE will approve the action plan. If the State regulatory authority does not cooperate with OSMRE in developing the action plan, OSMRE will develop the action plan within the guidelines listed in paragraphs (b)(1) through (3) of this section and require the State regulatory authority to comply with the action plan.” We propose to add this provision to ensure that action plans to address State regulatory program issues are always developed, and that we can create and enforce an action plan with or without the State regulatory authority's input to ensure that violations are timely addressed.

We propose non-substantive and grammatical changes to existing § 733.12(c) for clarity. Among other things, we propose to substitute “Each” for “These” and “relevant” for the second occurrence of “applicable.”

In § 733.12(d), we propose to insert “additional” before “appropriate oversight enforcement action” to indicate that any oversight enforcement action that OSMRE takes is in addition to an initial TDN and corresponding identification of a State regulatory program issue. We propose to end the sentence there and delete the last clause of the existing language, which references appropriate oversight enforcement actions “in the event that a previously identified State regulatory program issue results in or may imminently result in a violation of the approved State program.” We propose this change to comport with the fact that, under this proposed rule, all “permit defects” or “State regulatory program issues” would be considered possible violations in the first instance, even when they are not on the ground or when mining has not yet started. As explained above, this proposed rule would require us to issue a TDN when we have reason to believe a violation exists, even in the form of a permit defect; thus, the language we propose to delete would no longer be necessary. The revised provision would read: “Nothing in this section prevents a State regulatory authority from taking direct enforcement action in accordance with its State regulatory program or OSMRE from taking additional appropriate oversight enforcement action.”

This proposed rule would not result in a taking of private property or otherwise have regulatory takings implications under Executive Order 12630. The proposed rule would primarily concern Federal oversight of approved State programs and enforcement when permittees and operators are not complying with the law. Therefore, the proposed rule would not result in private property being taken for public use without just compensation. A takings implication assessment is not required.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that that this proposed rule is not significant because it would not have a $100 million annual impact on the economy, raise novel legal issues, or create significant impacts.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, reduce uncertainty, and use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that agencies must base regulations on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this proposed rule in a manner consistent with these requirements.

This proposed rule complies with the requirements of Executive Order 12988. Among other things, this proposed rule:

(a) Satisfies the criteria of section 3(a) requiring that all regulations be reviewed to eliminate drafting errors and ambiguity; be written to minimize litigation; and provide clear legal standards for affected conduct.

(b) Satisfies the criteria of section 3(b) requiring that all regulations be written in clear language and contain clear legal standards.

Under the criteria in section 1 of Executive Order 13132, this proposed rule would not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. While revising the existing regulations governing the TDN process would have a direct effect on the States and the Federal government's relationship with the States, this effect would not be significant, as it would neither impose substantial unreimbursed compliance costs on States nor preempt State law. Furthermore, this proposed rule would not have a significant effect on the distribution of power and responsibilities among the various levels of government. While we may issue more TDNs to State regulatory authorities under this proposed rule, the proposed rule would not significantly increase burdens on State regulatory authorities to address and resolve underlying issues. As such, a federalism summary impact statement is not required.

The Department of the Interior strives to strengthen its government-to-government relationship with Tribes through a commitment to consultation with Tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have determined that it would not have substantial direct effects on federally recognized Tribes and that consultation under the Department's tribal consultation policy is not required. Currently, no Tribes have achieved primacy. Thus, this proposed rulemaking would not impact the regulation of surface coal mining on Tribal lands. However, we have coordinated with Tribes to inform them of the proposed rulemaking. We coordinated with the Navajo Nation, Crow Tribe of Montana, Hopi Tribe of Arizona, Choctaw Nation of Oklahoma, Muscogee (Creek) Nation, and Cherokee Nation and have received no comments or concerns. None of the Tribes have requested consultation.

Executive Order 13211 requires agencies to prepare a Statement of Energy Effects for a rule that is: (1) considered significant under Executive Order 12866, and (2) likely to have a significant adverse effect on the supply, distribution, or use of energy; or is designated as a significant energy action by the Office of Management and Budget. Because this proposed rule is not deemed significant under Executive Order 12866, and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required.

This proposed rule is not subject to Executive Order 13045 because this is not an economically significant regulatory action as defined by Executive Order 12866; and this action does not concern environmental health or safety risks disproportionately affecting children.

Section 12(d) of the National Technology Transfer and Advancement Act (NTTAA), 15 U.S.C. 3701 et seq., directs Federal agencies to use voluntary consensus standards in their regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. OMB Circular A-119 at p. 14. This proposed rule is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with SMCRA and is not applicable to this proposed rulemaking.

We have determined that the proposed changes to the existing regulations are categorically excluded from environmental review under the National Environmental Policy Act (NEPA). 42 U.S.C. 4321 et seq. Specifically, we have determined that the proposed rule is administrative or procedural in nature in accordance with the Department of the Interior's NEPA regulations at 43 CFR 46.210(i). The regulation provides a categorical exclusion for “[p]olicies, directives, regulations, and guidelines: that are of an administrative, financial, legal, technical, or procedural nature; or whose environmental effects are too broad, speculative, or conjectural to lend themselves to meaningful analysis . . . .” The proposed rule would not change the substantive regulations—whether State or Federal—with which SMCRA permittees must already comply. Rather, it would primarily change the procedure we use to notify a State regulatory authority when we have reason to believe that there is a violation of SMCRA, the Federal regulations, the relevant State regulatory program, or a permit condition. We have also determined that the proposed rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

This action does not impose any new information collection burden under the Paperwork Reduction Act. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 1029-0118. This action does not impose an information collection burden because OSMRE is not making any changes to the information collection requirements.

We evaluated the impact of the proposed regulatory changes and have determined the rule changes would not induce, cause, or create any unnecessary burdens on the public, State regulatory authorities, or small businesses; would not discourage innovation or entrepreneurial enterprises; and would be consistent with SMCRA, from which the proposed regulations draw their implementing authority. For these reasons, we certify that this proposed rule would not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). The Regulatory Flexibility Act generally requires Federal agencies to prepare a regulatory flexibility analysis for rules that are subject to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553), if the rule would have a significant economic impact, whether detrimental or beneficial, on a substantial number of small entities. See 5 U.S.C. 601-612. Congress enacted the Regulatory Flexibility Act to ensure that government regulations do not unnecessarily or disproportionately burden small entities. Small entities include small businesses, small governmental jurisdictions, and small not-for-profit entities.

This proposed rule is not a major rule under the Congressional Review Act. 5 U.S.C. 804(2). Specifically, the proposed rule: (a) would not have an annual effect on the economy of $100 million or more; (b) would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and (c) would not have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

This proposed rule would not impose an unfunded mandate on State, local, or Tribal governments, or the private sector, of $100 million or more in any given year. The proposed rule would not have a significant or unique effect on State, local, or Tribal governments, or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

The action taken herein is pursuant to an existing delegation of authority.

For the reasons set out in the preamble, the Department of the Interior, acting through OSMRE, proposes to amend 30 CFR parts 733 and 842 as follows:

The revisions and additions read as follows:

Background

The Secretary of Transportation, through MARAD, is authorized to provide guarantees of debt (obligation guarantees) to finance all types of vessel construction and shipyard modernization and improvement, except for fishing vessels. The Title XI Program is a loan guarantee program, administered by MARAD, which was established under Title XI of the Merchant Marine Act, 1936, Public Law 74-835, codified at 46 U.S.C. Chapter 537, as amended (the “Act”). Title XI provides for the full faith and credit of the United States, acting by and through the Maritime Administrator, for the payment of debt obligations for: (1) U.S. shipowners for the purpose of financing or refinancing U.S. flag vessels constructed, reconstructed, or reconditioned in U.S. shipyards; and (2) U.S. shipyards for the purpose of financing advanced shipbuilding technology and modern shipbuilding technology of a privately-owned shipyard facility located in the U.S. As the Title XI Program guarantees full payment of the obligation's unpaid principal and interest in the event of a default by the borrower, both the statute and regulations contain several criteria and requirements intended to reduce the risk of a loan default. Though the Title XI Program regulations have been amended over the years, the current financial requirements and limitations remain substantially the same as when MARAD introduced them in 1978. As lending practices have evolved, MARAD's regulatory standards have not changed to reflect modern lending practices for vessel financing. For example, when the regulations where implemented, certain leases were not included as an expense under generally accepted accounting principles (GAAP), but today GAAP requires that all leases be included as an expense. Today, retained earnings are also expected to be included in any calculation of equity or net worth pursuant to GAAP. Accordingly, the proposed modifications to the regulations will eliminate confusion and align the Title XI Program regulations with modern accounting standards.

Prior to execution of a guarantee, MARAD is bound by statute to, among other things, make determinations of economic soundness of the project and the financial and operating capability of the applicant. To that end, the Title XI regulations currently require each borrower, and operator if applicable, to have and maintain: (1) working capital of at least $1; (2) at least 90 percent of its equity as shown on the last audited balance sheet; and (3) long-term debt not to exceed twice its equity. By this notice of proposed rulemaking, MARAD proposes to modernize its financial review process by removing static financial covenants and loan thresholds and replacing them with a review and evaluation of the creditworthiness of each borrower based on revenue metrics based on federal credit and maritime lending best practices. The use of these revenue metrics is intended to improve the quality of MARAD financial requirements applied to new borrowers. As part of its regular programmatic evaluation process, MARAD frequently seeks feedback from potential applicants and borrowers on its processes. Potential applicants have advised MARAD that the challenges caused by the regulatory requirements are a reason why they will not use the program. Borrowers also have cited the incompatibility of Title XI debt financial covenants with the other lender covenants as an obstacle in the prompt processing and approval of loan guarantee applications.

The “National Defense Authorization Act for Fiscal Year 2020,” (Pub. L. 116-92; December 20, 2019) (“NDAA 2020”) established the Federal Financing Bank as the “preferred lender” for the Title XI Program. Additionally, the NDAA 2020 directed MARAD to periodically review Title XI application procedures and documents to assure they “meet current commercial best practices to the extent permitted by law.” The 2020 NDAA also provided that MARAD establish a process for expedited consideration of low-risk applications which would “utilize, to the extent practicable, relevant Federal and industry best practices found in the maritime and shipbuilding industries.” As a result, MARAD identified best practices from federal credit programs that make loans and obligation guarantees similar to the Title XI Program. MARAD considered a review of federal credit practices that identified the Title XI Program was the only program with regulatorily-imposed financial covenants and thresholds. 1 This deviation from federal credit best practices was highlighted as a significant hinderance to the Title XI Program's ability to tailor the terms of credit assistance to address the characteristics of a specific project.

Restrictions on the flexibility of the program limit the program's ability to succeed. Reliance on the current static metrics and limited amortization requirements prevent the Title XI Program from adjusting its financial terms and conditions and debt amortization when best credit practices would recommend otherwise. The proposals are intended to attract a higher volume of high-quality applicants and mitigate risk to the U.S. government.

Moreover, with the implementation of the Federal Financing Bank as the preferred lender for Title XI obligation guarantees, there is no longer a need for the strict uniformity in the regulatory structure of the guaranteed obligations. Previously, Title XI guaranteed debt was marketed to the public through investment banks. This created a need for uniformity to encourage the purchase of the debt by entities not familiar with maritime financings and to allow for easier resale by a debt purchaser to a third-party at a future date. The expectation of uniformity by the market limited the payment schedule options available for Title XI Program participants in circumstances where it may have been in the U.S. government's best interest to structure the debt differently to mitigate risk.

Due to the length of time since the regulations were last updated, the availability of modern financial requirements of similar federal programs, the evolving maritime environment, changes to federal credit and maritime lending best practices, and updates to the Title XI statute, MARAD proposes to amend its regulations. These proposed amendments would include permitting MARAD to use financial requirements, consistent with federal credit and maritime lending best practices for entities having a similar credit rating that MARAD determines are necessary and appropriate to protect the interest of the United States. The proposed amendments would also allow MARAD to use alternative methods of amortization, other than level principal or level debt payment, when an independent financial advisor approved by MARAD conducts independent analysis and review and demonstrates that such other method is in the best interests of the United States.

The proposed rule is intended to update the lending parameters in the current regulations, which no longer best achieve the intended purpose of minimizing the risk of Title XI Program defaults and to better align the lending practices to reflect federal credit and maritime lending best practices. Additionally, MARAD expects that the proposed regulations would reduce the economic burden on applicants in complying with Title XI Program requirements that are inconsistent with other lending instruments. MARAD also expects that the updated lending parameters should encourage the construction of vessels in United States shipyards which otherwise would not meet the current constrained Title XI Program financial requirements.

Include the docket number in your comments to ensure that your comments are correctly filed in the Docket. We encourage you to provide concise comments; however, you may attach additional documents as necessary. There is no limit on the length of the attachments. Please submit your comments, including the attachments, following the instructions provided under the above-entitled heading ADDRESSES .

MARAD will consider all comments received before the close of business on the comment closing date indicated above under DATES . To the extent possible, MARAD will also consider comments received after that date.

For access to the docket to submit or read comments received, go to the Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE, West Building, Room W12-140, Washington, DC 20590. The Docket Management Facility is open 9:00 a.m. to 5:00 p.m., Monday through Friday, except on Federal holidays. To review documents, read comments or to submit comments, the docket is also available online at www.regulations.gov. , keyword search “MARAD-2023-0086.”

Please note that even after the comment period has closed, MARAD will continue to file relevant information in the Docket as it becomes available. Further, some people may submit late comments. Accordingly, MARAD recommends that you periodically check the Docket for new material.

Before including your address, phone number, email address or other personal information in your comment, be aware that your entire comment, including your personal identifying information, will be made publicly available.

If you wish to submit comments under a claim of confidentiality, you should submit your complete submission, including the information you claim to be confidential business information, to the Department of Transportation, Maritime Administration, Office of Legislation and Regulations, MAR-225, W24-220, 1200 New Jersey Avenue SE, Washington, DC 20590. When you submit comments containing information claimed to be confidential information, you should include a cover letter setting forth with specificity the basis for any such claim and, if possible, a summary of your submission that can be made available to the public.

Anyone can search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). For information on DOT's compliance with the Privacy Act, please visit https://www.transportation.gov/privacy.

Under Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993), supplemented by EO13563 (76 FR 3821, January 18, 2011) and USDOT policies and procedures, a determination must be made whether a regulatory action is “significant,” and therefore subject to the Office of Management and Budget (OMB) review and the requirements of the Order. The Order defines “significant regulatory action” as one likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal government or communities. (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency. (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof. (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.

This notice of proposed rulemaking has been determined to be a significant regulatory action under section 3(f) of E.O. 12866. The rule was therefore reviewed by the Office of Information and Regulatory Affairs (OIRA) within OMB prior to publication.

The Title XI Program guarantees full payment of the obligation's unpaid principal and interest in the event of a default by the borrower. Both the statute and MARAD's implementing regulations also contain several criteria and requirements intended to reduce the risk of a loan default. Though the Title XI Program regulations have been amended over the years, the current financial requirements and limitations remain substantially the same as when they were introduced in 1978. As lending practices have evolved, the regulatory standards have not changed to reflect current lending practices for vessel financing.

The major benefits of amending Part 298 will be to: (1) modernize MARAD's financial review process by removing static financial covenants and loan thresholds and replacing them with best practices intended to improve the quality of MARAD financial reviews; and (2) allow MARAD to examine more indicators of financial health, thus improving MARAD's ability to accurately assess applicants and to better mitigate financial risk to the Government.

MARAD does not believe that the rulemaking is likely to impose quantifiable or nonquantifiable costs. The primary function of this regulatory change is to modernize MARAD financial review methods and processes, thereby improving MARAD's ability to evaluate applicants.

On December 20, 2019, the NDAA 2020 directed MARAD “to utilize, to the extent practicable, relevant Federal and industry best practices found in the maritime and shipbuilding industries.” In considering potential alternatives, MARAD reviewed a number of federal credit programs that make loans and obligation guarantees similar to the Title XI Program. MARAD considered a review of federal credit practices that identified the Title XI Program as the only Federal program with regulatorily-imposed financial covenants and thresholds. 2 The report found that the static regulatory requirements significantly hindered the Title XI Program's ability to tailor the terms of credit assistance to address the characteristics of a specific project. MARAD considered the report's findings in light of its current practices and proposed in this NPRM amendment to conform to the report's findings.

MARAD has examined the rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The Agency has concluded that the rulemaking would not have sufficient federalism implications to warrant consultation with State and local officials or the preparation of a federalism summary impact statement. The rule will not have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

MARAD has determined that this rulemaking, in which MARAD proposes to amend its regulations implementing the Title XI Program financial requirements to implement statutory changes and update the existing financial requirements imposed on Title XI Program obligors, will not significantly or uniquely affect the communities of Indian tribal governments when analyzed under the principles and criteria contained in E.O. 13175 (Consultation and Coordination with Indian Tribal Governments). Therefore, the funding and consultation requirements of this Executive Order do not apply.

The requirements of E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking, because it would not directly affect the interests of State and local governments.

The Regulatory Flexibility Act of 1980 requires MARAD to assess whether this rulemaking would have a significant economic impact on a substantial number of small entities and to minimize any adverse impact. Potential applicants to the Title XI program are vessel owners and operators, as well as shipyard owners. These industries fit under NAICS codes 336611, Ship Building and Repairing and NAICS codes 483111-483212, which cover different types of transportation by vessel and would include vessel owners and operators. 3 The SBA defines a small business under NAICS code 36611 as a business with 1,250 employees or less and under NAICS code. The SBA defines small businesses under NAICS codes 483111-483212 as businesses with 500-1,500 employees or less, depending on the specific NAICS code.

The Title XI Program guarantees full payment of the obligation's unpaid principal and interest in the event of a default by the borrower. The program maintains a $5000 application fee, a fee that has not increased in 30 years and would remain unchanged by this proposal. MARAD also estimates that the application process currently takes approximately 150 hours, a figure that would also remain unchanged by this proposal. The program provides substantial financial assistance to maritime industry participants, and the proposed changes are intended to eliminate challenges caused by the regulatory requirements, a reason cited by stakeholders as to why they will not use the program. The proposed rule is also intended to make Title XI debt financial covenants compatible with other lender covenants, which stakeholders cited as an obstacle in the prompt processing and approval of loan guarantee applications. MARAD intends for the proposed changes, if finalized, to attract a higher volume of high-quality applicants to the program. Based on the foregoing, MARAD certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities.

E.O. 12988 requires that agencies promulgating new regulations or reviewing existing regulations take steps to minimize litigation, eliminate ambiguity and to reduce burdens on the regulated public. MARAD has reviewed this rulemaking and has determined that this rulemaking action conforms to the applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform,

The Unfunded Mandates Reform Act of 1995 requires Agencies to evaluate whether an Agency action would 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 1 year, and if so, to take steps to minimize these unfunded mandates. This action will not result in additional expenditures by State, local, or tribal governments or by any members of the private sector. Therefore, MARAD has not prepared an assessment pursuant to the Unfunded Mandates Reform Act.

A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

Under the Paperwork Reduction Act of 1995 (PRA), a person is not required to respond to a collection of information by a federal agency unless the collection displays a valid OMB control number. This rulemaking amends an existing regulation without any change to the contemplated submission of information which might otherwise result in a change to the applicant's burden hours. Therefore, the rulemaking can rely on the existing information collected under OMB control number 2133-0018. Information submitted by applicants to the program will continue to be used to evaluate an applicant's project and capabilities, make the required determinations, and administer any agreements executed upon approval of loan guarantees.

E.O. 12866 requires each Agency to write regulations that are easy to understand. We invite your comments on how to make this proposed rule easier to understand, including answers to questions such as the following:

(1) Are the requirements in the proposed rule clearly stated?

(2) Does the proposed rule contain technical language or terminology that interferes with its clarity?

(3) Does the format of the proposed rule (grouping and order of sections, use of headings, paragraphs, etc.) aid or reduce its clarity?

(4) Would the rule be easier to understand if it were divided into more but shorter sections (a “section” appears in bold type and is preceded by the symbol “§” and a numbered heading; for example, “§ 393.21 Who can apply?”)

(5) Is the description of the proposed rule in the SUPPLEMENTARY INFORMATION part of this preamble helpful in understanding the proposed rule?

(6) What else could we do to make the proposed rule easier to understand?

Send a copy of any comments that concern how we could make this proposed rule easier to understand to: Division of Legislation and Regulations, Department of Transportation, Maritime Administration, Office of the Chief Counsel, Room W24-220, 1200 New Jersey Ave. SE, Washington, DC 20590. You may also email the comments to this address: Rulemakings.MARAD@dot.gov . Please include the RIN number or docket number for this rule in your submission.

For the reasons described in the preamble, the Maritime Administration proposes to amend 46 CFR part 298 to read as follows: