[Federal Register Volume 81, Number 129 (Wednesday, July 6, 2016)]
[Notices]
[Page 44083]
[FR Doc No: 2016-16075]

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SECURITIES AND EXCHANGE COMMISSION

Sunshine Act Meeting

    Notice is hereby given, pursuant to the provisions of the
Government in the Sunshine Act, Public Law 94-409, that the Securities
and Exchange Commission Equity Market Structure Advisory Committee will
hold a telephonic meeting on Friday, July 8, 2016. The meeting will
begin at 2:00 p.m. (ET) and will be open to the public via webcast on
the Commission's Web site at www.sec.gov.
    On June 10, 2016, the Commission published notice of the Committee
meeting (Release No. 34-78040), indicating that the meeting is open to
the public and inviting the public to submit written comments to the
Committee. This Sunshine Act notice is being issued because a majority
of the Commission may attend the meeting.
    The agenda for the meeting includes presentations by the Regulation
NMS and Trading Venues Regulation subcommittees and consideration of a
recommendation for an access fee pilot and recommendations related to
trading venues regulation.
    For further information, please contact Brent J. Fields from the
Office of the Secretary at<PHONE_NUMBER>.

     Dated: June 30, 2016.
Brent J. Fields,
Secretary.
[FR Doc. 2016-16075 Filed 7-1-16; 11:15 am]
 BILLING CODE 8011-01-P


[Federal Register Volume 76, Number 209 (Friday, October 28, 2011)]
[Notices]
[Pages 67004-67005]
[FR Doc No: 2011-27935]

=======================================================================
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SECURITIES AND EXCHANGE COMMISSION

[Release No. IA-3305; File No. S7-42-11; October 24, 2011]

Order Approving Filing Fees for Exempt Reporting Advisers and
Private Fund Advisers

    Section 204(c) of the Investment Advisers Act of 1940 (``Advisers
Act'') authorizes the Securities and Exchange Commission
(``Commission'') to require investment advisers to file applications
and other documents through an entity that the Commission designates
and to pay the reasonable costs associated with such filings. The
Commission recently adopted a new rule requiring exempt reporting
advisers to file portions of Form ADV on a periodic basis.\1\ As with

registered advisers, exempt reporting advisers must file Form ADV
through the Investment Adviser Registration Depository (``IARD''),
which is operated by the Financial Industry Regulatory Authority
(``FINRA'').
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    \1\ ``Exempt reporting advisers'' are investment advisers
relying on the exemption from registration under section 203(l) or
203(m) of the Advisers Act. The Commission adopted new rule 204-4 on
June 22, 2011. See Rules Implementing Amendments to the Investment
Advisers Act of 1940, Investment Advisers Act Release No. IA-3221
(June 22, 2011), 76 FR 42950 (July 19, 2011) (``Implementing
Adopting Release'').
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    In addition, the Commission recently proposed a new rule that would
require any adviser registered with the Commission and managing one or
more private funds (a ``private fund adviser'') to file proposed Form
PF on a periodic basis.\2\ On September 30, 2011, the Commission issued
notice of its determination that, if the Form PF proposal is adopted,
FINRA will develop and maintain the filing system for Form PF as an
extension of the existing IARD (the ``Notice'').\3\
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    \2\ The Commission proposed new rule 204(b)-1 on January 26,
2011. See section II.C of Reporting by Investment Advisers to
Private Funds and Certain Commodity Pool Operators and Commodity
Trading Advisors on Form PF, Investment Advisers Act Release No.
3145 (January 26, 2011), 76 FR 8068 (February 11, 2011) (``Form PF
Proposing Release''). ``Private fund'' is defined in section
202(a)(29) of the Advisers Act.
    \3\ See Approval of Filing Fees for Exempt Reporting Advisers
and Private Fund Advisers, Investment Advisers Act Release No. 3297
(Sept. 30, 2011), 76 FR 62100 (Oct. 6, 2011).
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    Following discussions with Commission staff, FINRA recommended a
schedule of filing fees for exempt reporting advisers and private fund
advisers.\4\ With respect to exempt reporting advisers, FINRA
recommended a filing fee of $150 for each initial and annual report on
Form ADV. With respect to private fund advisers, FINRA recommended
filing fees of $150 for the proposed quarterly filings of Form PF and
$150 for the proposed annual filings.\5\ In the Notice, the Commission
indicated its intent to approve filing fees for these filings
consistent with these recommendations.
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    \4\ FINRA letter dated September 28, 2011, available at http://www.sec.gov/rules/other/2011/finraletter092811-pferafees.pdf.
    \5\ Under the proposal, advisers managing $1 billion or more in
hedge fund assets, combined liquidity fund and registered money
market fund assets or private equity fund assets would file Form PF
on a quarterly basis. All other private fund advisers would file on
an annual basis. See sections II.B and II.C of the Form PF Proposing
Release.
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    The Notice also explained that the fee for exempt reporting
advisers filing Form ADV would apply starting with the date on which
this order is published in the Federal Register and, if the Form PF
proposal is adopted, the fees applicable to private fund advisers would
apply starting with the effective date of rule 204(b)-1.
    The Notice gave interested persons an opportunity to request a
hearing and stated that an order approving these filing fees would be
issued unless a hearing were ordered. No request for a hearing has been
filed, and no hearing has been ordered.
    It is therefore ordered, pursuant to Section 204(c) of the Advisers
Act, that:
    For initial reports and annual updating amendments on Form ADV
filed on or after October 28, 2011, the filing fee due from exempt
reporting advisers is $150.
    For quarterly reports on Form PF filed on or after the effective
date of rule 204(b)-1 under the Advisers Act, the filing fee due from
private fund advisers is $150.
    For annual reports on Form PF filed on or after the effective date
of rule 204(b)-1 under the Advisers Act, the filing fee due from
private fund advisers is $150.

    By the Commission.
Elizabeth M. Murphy,
Secretary.
[FR Doc. 2011-27935 Filed 10-27-11; 8:45 am]
BILLING CODE 8011-01-P


[Federal Register Volume 85, Number 33 (Wednesday, February 19, 2020)]
[Notices]
[Pages 9503-9504]
[FR Doc No: 2020-03180]

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SECURITIES AND EXCHANGE COMMISSION

[Release No. 34-88178; File No. SR-CboeEDGX-2019-048]

Self-Regulatory Organizations; Cboe EDGX Exchange, Inc.; Notice
of Designation of a Longer Period for Commission Action on Proceedings
To Determine Whether To Approve or Disapprove a Proposed Rule Change To
Introduce the Small Retail Broker Distribution Program

February 12, 2020.
    On August 1, 2019, Cboe EDGX Exchange, Inc. (the ``Exchange'' or
``EDGX'') filed with the Securities and Exchange Commission
(``Commission''), pursuant to Section 19(b)(1) of the Securities
Exchange Act of 1934 (``Act''),\1\ and Rule 19b-4 thereunder,\2\ a
proposed rule change to amend the EDGX fee schedule to introduce a
Small Retail Broker Distribution Program (the ``Program''). The
proposed rule change was immediately effective upon filing with the
Commission pursuant to Section 19(b)(3)(A) of the Act.\3\ The proposed
rule change was published for comment in the Federal Register on August
20, 2019.\4\ The Commission received no comment letters regarding the
proposed rule change. On September 30, 2019, under Sections 19(b)(2)
and (b)(3)(C) of the Act,\5\ the Commission temporarily suspended the
proposed rule change and instituted proceedings to determine whether to
approve or disapprove the proposed rule change (``OIP'').\6\ The
Commission has received no comment letters in response to the OIP.
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    \1\ 15 U.S.C. 78s(b)(1).
    \2\ 17 CFR 240.19b-4.
    \3\ 15 U.S.C. 78s(b)(2) and (b)(3)(A).
    \4\ See Securities Exchange Act Release No. 86678 (August 14,
2019), 84 FR 43246 (``Notice'').
    \5\ 15 U.S.C. 78s(b)(3)(C).
    \6\ See Securities Exchange Act Release No. 87163 (September 30,
2019), 84 FR 53203 (October 4, 2019).
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    Section 19(b)(2) of the Act \7\ provides that, after initiating
disapproval proceedings, the Commission shall issue an order approving
or disapproving the proposed rule change not later than 180 days after
the date of publication of notice of filing of the proposed rule
change. The Commission may extend the period for issuing an order
approving or disapproving the proposed rule change, however, by not
more than 60 days if the Commission determines that a longer period is
appropriate and publishes the reasons for such determination. The
proposed rule change was published for notice and

comment in the Federal Register on August 20, 2019. The 180th day after
publication of the Notice is February 16, 2020, and April 16, 2020 is
an additional 60 days from that date.
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    \7\ 15 U.S.C. 78s(b)(2).
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    The Commission finds it appropriate to designate a longer period
within which to issue an order approving or disapproving the proposed
rule change so that it has sufficient time to consider the proposed
rule change. Accordingly, the Commission, pursuant to Section 19(b)(2)
of the Act,\8\ designates April 16, 2020 as the date by which the
Commission shall either approve or disapprove the proposed rule change
(File No. SR-CboeEDGX-2019-048).
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    \8\ Id.

    For the Commission, by the Division of Trading and Markets,
pursuant to delegated authority.\9\
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    \9\ 17 CFR 200.30-3(a)(57).
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J. Matthew DeLesDernier,
Assistant Secretary.
[FR Doc. 2020-03180 Filed 2-18-20; 8:45 am]
 BILLING CODE 8011-01-P


have a more substantial impact on the scope of

jurisdictional determinations made pursuant to the CWA than
acknowledged in the analysis for the rule and would thus impact the
balance between federal, state, tribal, and local government in a way
that gives inadequate consideration to the overarching Congressional
policy to ``recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources. . . .'' 33 U.S.C. 1251(b).
    Between the agencies' ``historic'' (i.e., 1986 regulations) and
``recent'' practices of making jurisdictional determinations under the
Rapanos Guidance, the Supreme Court held that the agencies' application
of the 1986 regulation was overbroad in some important respects. See
SWANCC, 531 U.S. at 174 (reversing and remanding the assertion of
jurisdiction); Rapanos, 547 U.S. at 715 (vacating and remanding, for
further analysis, the assertion of CWA jurisdiction). Throughout the
rulemaking process for the 2015 Rule, the agencies stressed in public
statements,\38\ fact sheets,\39\ blog posts,\40\ and before Congress
\41\ that the rule would not significantly expand the jurisdictional
reach of the CWA. Some commenters questioned the accuracy of these
statements during the rulemaking process for the 2015 Rule and in
response to the July 27, 2017 NPRM. The court in North Dakota
questioned the scope of waters subject to the 2015 Rule, and based its
preliminary injunction in principal part on those doubts, stating, for
example, that ``the definition of tributary'' in the 2015 Rule
``includes vast numbers of waters that are unlikely to have a nexus to
navigable waters within any reasonable understanding of the term.'' 127
F. Supp. 3d at 1056; see also In re EPA, 803 F.3d at 807 (finding that
``it is far from clear that the new Rule's distance limitations are
harmonious'' with Justice Kennedy's significant nexus test in Rapanos);
Georgia, 2018 U.S. Dist. LEXIS 97223, at *17 (holding that the 2015
Rule's ``tributary'' definition ``is similar to the one invalidated in
Rapanos, and it carries with it the same concern that Justice Kennedy
had there'').
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    \38\ Addressing farmers in Missouri in July 2014, then-EPA
Administrator Gina McCarthy stated that no additional CWA permits
would be required under the proposed 2015 Rule. See: http://www.farmfutures.com/story-epas-mccarthy-ditch-myths-waters-rule-8-114845 (``The bottom line with this proposal is that if you weren't
supposed to get a permit before, you don't need to get one now.'').
    \39\ U.S. EPA. Facts About the Waters of the U.S. Proposal at 4
(July 1, 2014), available at https://www.regulations.gov/contentStreamer?documentId=EPA-HQ-OW-2011-0880-16357&attachmentNumber=38&contentType=pdf (``The proposed rule does
not expand jurisdiction.'').
    \40\ U.S. EPA blog post entitled ``Setting the Record Straight
on Waters of the US'' (June 30, 2014), available at https://blog.epa.gov/blog/2014/06/setting-the-record-straight-on-wous/
(``The proposed rule does not expand jurisdiction.'').
    \41\ In a hearing before the House Committee on Science, Space,
and Technology entitled ``Navigating the Clean Water Act: Is Water
Wet?'' (July 9, 2014), then-Deputy EPA Administrator Bob Perciasepe
told the Committee that the agencies are not expanding the
jurisdiction of the CWA. See https://science.house.gov/legislation/hearings/full-committee-hearing-navigating-clean-water-act-water-wet.
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    Given the concerns raised by some commenters and the federal
courts, the agencies have reviewed data previously relied upon to
conclude that the 2015 Rule would have no or ``marginal at most''
impacts on jurisdictional determinations, Brief for Respondents at 32
n.6, In re EPA, No. 15-3571 (6th Cir. Jan. 13, 2017), and are
reconsidering the validity of this conclusion. The agencies solicit
comment on whether the agencies appropriately characterized or
estimated the potential scope of CWA jurisdiction that could change
under the 2015 Rule, including whether the documents supporting the
2015 Rule appropriately considered the data relevant to and were clear
in that assessment.
    For example, the agencies relied upon an examination of the
documents supporting the estimated 2.84 to 4.65 percent annual increase
in positive approved jurisdictional determinations (AJDs) to conclude
that the 2015 Rule would only ``result in a small overall increase in
positive jurisdictional determinations compared to those made under the
Rapanos Guidance.'' See Brief for Respondents at 32, In re EPA, No. 15-
3571 (6th Cir. Jan. 13, 2017). However, others have raised concerns
that this information and other data show the 2015 Rule may have
expanded jurisdiction more significantly, particularly with respect to
so-called ``other waters'' that are not adjacent to navigable waters
and their tributaries.
    In developing the 2015 Rule, the agencies examined records in the
Corps' Operation and Maintenance Business Information Link, Regulatory
Module (ORM2) database that documents jurisdictional determinations
associated with various aquatic resource types, including an isolated
waters category. ``The isolated waters category is used in the Corps'
ORM2 database to represent intrastate, non-navigable waters; including
wetlands, lakes, ponds, streams, and ditches, that lack a direct
surface connection to other waterways. These waters are hereafter
referred to as `ORM2 other waters.' '' \42\ To examine how assertion of
jurisdiction could change under the 2015 Rule, the agencies reviewed
ORM2 aquatic resource records from Fiscal Year (FY)13 and FY14 and
placed them into three groups: Streams (ORM2 categories of
traditionally navigable waters, relatively permanent waters, and non-
relatively permanent waters), wetlands adjacent to the stream category
group, and other waters. Of the 160,087 records for FY13 and FY14,
streams represented 65 percent of the total records available, wetlands
represented 29 percent, and other waters represented 6 percent.
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    \42\ 2015 Rule Economic Analysis at 7.
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    From this baseline, the agencies assumed that 100 percent of the
records classified as streams would meet the jurisdictional tests
established in the final rule, and 100 percent of the records
classified as adjacent wetlands would meet the definition of adjacent
in the final rule. These assumptions resulted in a relatively minor
projected increase in positive jurisdictional determinations under the
final rule for these categories: 99.3 to 100 percent for the streams
category, and 98.9 to 100 percent for the wetlands category.
    The agencies also performed a detailed analysis of the other waters
category to determine whether jurisdiction might change for those
waters under the final rule. In total, ``these files represented over
782 individual waters in 32 states.'' \43\
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    \43\ 2015 Rule Economic Analysis at 9.
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    Of the existing negative determinations for other waters, the
agencies made the following estimates:
     17.1 percent of the negative jurisdictional determinations
for other waters would become positive under the 2015 Rule because the
aquatic resources would meet the new definition of adjacent waters. See
80 FR 37105. These waters fall within the 100-year floodplain and are
within 1,500 feet of a stream included in the United States Geological
Survey's (USGS) National Hydrography Dataset (NHD).
     15.7 percent of the other waters could become
jurisdictional under category (7) of the 2015 Rule following a
significant nexus analysis. See id. at 37104-05.
     1.7 percent of the other waters could become
jurisdictional under category (8) of the 2015 Rule following a
significant nexus analysis. See id. at 37105.
    In total, the agencies estimated that 34.5 percent of the other
waters represented in the FY13 and FY14 ORM2 database could become
jurisdictional under the 2015 Rule after

having been declared not jurisdictional under the existing regulations
and agency guidance. Thus, while the agencies acknowledged in the 2015
Rule Economic Analysis that ``[f]ollowing the Supreme Court decisions
in SWANCC (2001) and Rapanos (2006), the agencies no longer asserted
CWA jurisdiction over isolated waters,'' the agencies estimated in the
2015 Rule Economic Analysis that 34.5 percent of the other waters
category could become jurisdictional under the 2015 Rule.\44\ By way of
comparison, a similar analysis of this category of other waters
performed in support of the proposed rule in 2014 (using FY09 and FY10
data from the ORM2 database) estimated that 17 percent of the negative
jurisdictional for other waters would become positive.\45\
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    \44\ 2015 Rule Economic Analysis at 5, 12.
    \45\ U.S. EPA and U.S. Army Corps of Engineers. Economic
Analysis of Proposed Revised Definition of Waters of the United
States at 12, Exhibit 3 (Mar. 2014) (Docket ID: EPA-HQ-OW-2011-0880-
0003), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-0003.
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    While the Economic Analysis for the 2015 Rule estimated that 34.5
percent of negative jurisdictional determinations for other waters
would become positive,\46\ the agencies nevertheless premised the 2015
Rule on assertions that the ``scope of jurisdiction in this rule is
narrower than that under the existing regulation,'' the scope of
jurisdiction in the rule would result ``in an estimated increase
between 2.84 and 4.65 percent in positive jurisdictional determinations
annually'' based on existing practice, and that such impacts would be
``small overall'' and ``marginal at most.'' See 80 FR 37054, 37101;
Brief for Respondents at 32-33 & n.6, In re EPA, No. 15-3571 (6th Cir.
Jan. 13, 2017). The agencies are examining these statements and how
this data relates specifically to the regulatory changes made in the
2015 Rule (as opposed to those provisions which already subjected many
streams and wetlands to CWA jurisdiction). The agencies request comment
on whether the projected increase for this category is most relevant to
measuring the impacts of the 2015 Rule, whether the public had ample
notice of the doubling of projected positive jurisdiction over the
other waters category from the proposed to final rule, and whether the
final rule could expand overall CWA positive jurisdictional
determinations by a material amount inconsistent with the findings and
conclusions that justified the 2015 Rule.
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    \46\ 2015 Rule Economic Analysis at 13, Figure 2.
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    In particular, the agencies seek comment on the conclusions that
were based on the method that estimated a 2.84 to 4.65 percent increase
in overall jurisdiction, including the use of a method whereby the
increase in assertion of jurisdiction in a particular category of
waters (e.g., streams, wetlands, and other waters) was proportionally
applied based on the raw number of records in a category relative to
the total number of records across all categories in the ORM2 database,
notwithstanding whether the regulatory changes in the 2015 Rule did not
materially impact those other categories. For example, of the 160,087
records in the ORM2 database for FY13 and FY14, 103,591 were associated
with the streams category, 46,781 were associated with the wetlands
category, and 9,715 were related to the other waters category. Thus,
although 34.5 percent of previously non-jurisdictional ``other waters''
would become jurisdictional under the 2015 Rule, the proportional
method used in the 2015 Rule Economic Analysis resulted in only an
estimated 2.09 percent increase in positive jurisdictional
determinations for ``other waters'' relative to the total number of
jurisdictional determinations considered.\47\
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    \47\ The following summarizes the methodology used to derive the
low-end estimated increase in jurisdiction of 2.84 percent: Streams
account for 103,591 of the 160,087 total records (64.709 percent of
the total ORM2 records) and 100 percent of streams are assumed to be
jurisdictional under the final rule compared to 99.3 percent under
previous practice (100 percent minus 99.3 percent = 0.7 percent).
The relative contribution of streams to the overall change in
jurisdictional determinations is thus 64.709 percent multiplied by
0.7 percent for a total of 0.45 percent. Wetlands account for 46,781
of the 160,087 total records (29.222 percent of the total ORM2
records) and 100 percent of wetlands are assumed to be
jurisdictional under the final rule compared to 98.9 percent under
previous practice (100 percent minus 98.9 percent = 1.1 percent).
The relative contribution of wetlands to the overall estimated
change in jurisdictional determinations is thus 29.222 percent
multiplied by 1.1 percent for a total of 0.32 percent. Other waters
account for 9,715 of the 160,087 total records (6.069 percent of the
total ORM2 records) and 34.5 percent of other waters are assumed to
be jurisdictional under the final rule compared to 0.0 percent under
previous practice (34.5 percent minus 0.0 percent = 34.5 percent).
The relative contribution of other waters to the overall estimated
change in jurisdictional determinations is thus 6.069 percent
multiplied by 34.5 percent for a total of 2.09 percent. The agencies
then added the relative contribution to the overall estimated change
in jurisdictional determinations for each category of waters (i.e.,
0.45 percent for streams, 0.32 percent for wetlands, and 2.09
percent for other waters) to get a total projected change in
positive jurisdictional determinations of 2.86 percent. The
differences between this calculation and the reported 2.84 percent
in the 2015 Rule Economic Analysis may be the result of rounding
error.
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    In addition, the record for the 2015 Rule includes a 57-page
document entitled ``Supporting Documentation: Analysis of
Jurisdictional Determinations for Economic Analysis and Rule,'' \48\
along with an accompanying 3,695 page document of approved
jurisdictional determination (AJD) forms.\49\ This contains the
agencies' assessment conducted in April 2015 of almost two hundred
previously performed AJDs to help the agencies better understand how
waters might change jurisdictional status based on the distance
limitations included in the final 2015 Rule for adjacent and case-
specific waters (see 80 FR 37105), including where they might no longer
be jurisdictional under the final rule. Certain examples included in
the assessment suggest that the 2015 Rule could modify CWA jurisdiction
over waters that were deemed not jurisdictional under the 1986
regulatory framework and Supreme Court precedent. The agencies request
comment on whether the examples illustrate the concerns expressed by
the recent court decisions discussed above that the 2015 Rule may have
exceeded the significant nexus standard articulated by Justice Kennedy
in the Rapanos opinion and concerns expressed by certain commenters
that the 2015 Rule may have created additional regulatory uncertainty
over waters that were previously thought beyond the scope of CWA
jurisdiction. The examples are intended to be illustrative, and are not
intended to attempt to quantify or reassess previous estimates of CWA
jurisdiction, as the agencies are not aware of any map or dataset that
accurately or with any precision portrays CWA jurisdiction at any point
in the history of this complex regulatory program.
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    \48\ U.S. EPA. Supporting Documentation: Analysis of
Jurisdictional Determinations for Economic Analysis and Rule (Docket
ID: EPA-HQ-OW-2011-0880-20877), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20877.
    \49\ U.S. EPA and U.S. Army Corps of Engineers. Supporting
Documentation: Jurisdictional Determinations (Docket ID: EPA-HQ-OW-
2011-0880-20876), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-20876.
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    In the first example, a property in Chesapeake, Virginia, was
reviewed by the Corps' Norfolk District in early January 2014 and again
in March 2015 and was determined not to contain jurisdictional wetlands
because the wetlands on the property lacked a hydrological surface
connection of any duration, frequency, or volume of flow to other
jurisdictional waters. The Corps noted that the wetlands ``appear to be
dependent upon groundwater for hydrology, and have no surface
connections'' to nearby tributaries, the closest one of which was
approximately 80 feet from the wetland. The agencies

later stated that the wetland features ``would be jurisdictional under
the new rule'' because they are ``within 100-feet of a tributary'' and
would thus meet the rule's definition of ``neighboring'' and, in turn,
``adjacent.'' Further information regarding this AJD and property has
been added to the docket for the NPRM and is identified as ``Case Study
A--AJD Number NAO-2014-2269'' (see Support Document).
    In another example, the Corps' Buffalo District reviewed a small
wetland approximately 583 feet away from the Johlin Ditch near Toledo,
Ohio, which eventually leads north to Lake Erie. After conducting a
field investigation in September 2014, the Corps determined that the
wetlands were not jurisdictional because the ``wetlands are isolated
and there is no surface water connections [sic] and the only potential
jurisdiction would be the [Migratory Bird Rule],'' noting that the area
previously would have been regulated under the Migratory Bird Rule
prior to the Supreme Court's SWANCC decision. The agencies later stated
that the wetlands would be jurisdictional under the 2015 Rule. Further
information regarding this AJD and property has been added to the
docket for the NPRM and is identified as ``Case Study B--AJD Number
2004-001914'' (see Support Document).
    In another example, the Corps' Memphis District reviewed a borrow
pit on a property in Mississippi County, Missouri, and concluded that
the borrow pit did not contain jurisdictional wetlands. The project
area was described in the AJD as follows:

    The borrow pit has been abandoned for some time. Vegetation
consists mainly of black willow (Salix nigra) and poison ivy
(Toxicodendron radicans). A site visit was conducted on 8 December
2014. The borrow pit is bordered by agricultural land on three sides
and County Road K on the western border. There are no surface water
connections to other waters of the U.S. A sample was taken within
the site and all three parameters for a wetland are present. The
Soil Survey book for Cape Girardeau, Mississippi and Scott Counties
Missouri, compiled in 1974 and 1975 from aerial photography
indicates no drainage into or out of the project site. The area is
an isolated wetland approximately 7.6 acres in size.

    The abandoned pit in this example was 2,184 feet from the nearest
``tributary,'' a feature that itself appears to be a ditch in an
agricultural field. The wetlands in the borrow pit were determined by
the Corps to be isolated and non-jurisdictional ``with no substantial
nexus to interstate (or foreign) commerce'' and on the basis that
``prior to . . .`'SWANCC,' the review area would have been regulated
based solely on the `Migratory Bird Rule.' '' A later review by the
agencies, however, stated that these wetlands would be jurisdictional
under the 2015 Rule. Further information regarding this property and
associated AJD has been added to the docket for the NPRM and is
identified as ``Case Study C--AJD Number MVM-2014-460'' (see Support
Document).
    In another example, the Corps' New England District reviewed a
``mowed wet meadow within a mowed hayfield'' in Greensboro, Vermont, in
August 2012 and concluded the site did not contain jurisdictional
wetlands. The AJD described the wetlands as ``surrounded on all sides
by similar upland,'' ``500'-985' away'' from the nearest jurisdictional
waters, and ``isolated intrastate waters with no outlet, no
hydrological connection to the Lamoille River, no nexus to interstate
commerce, and no significant nexus to the Lamoille River (located about
1.7-1.8 miles southeast of the site).'' A later review by the agencies,
however, stated the wetlands would be jurisdictional under the 2015
Rule. Further information regarding this property and associated AJD
has been added to the docket for the NPRM and is identified as ``Case
Study D--AJD Number NAE-2012-1813'' (see Support Document).
    In another example, the Corps' Chicago District completed AJD
number LRC-2015-31 for wetlands in agricultural fields in Kane County,
Illinois, in January 2015. AJD Number LRC-2015-31 was completed using
two separate AJD forms: One form for the features at the project site
that were determined to be jurisdictional according to the Rapanos
Guidance (``positive AJD form'') and a second form for the features at
the site that the Corps determined were not jurisdictional under the
Rapanos Guidance (``negative AJD form''). Only the positive AJD form
was included in the docket in Supporting Documentation entitled,
``Jurisdictional Determinations--Redacted.'' \50\ The negative AJD form
is available on the Chicago District website.\51\
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    \50\ Id. at 2082-83.
    \51\ Available at: http://www.lrc.usace.army.mil/Portals/36/docs/regulatory/jd/lrcnjd02-2015.pdf (page 1 and 2).
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    Using a field determination and desk determinations, the Corps
found on the AJD form that there were ``no `waters of the U.S.' within
Clean Water Act (CWA) jurisdiction (as defined by 33 CFR part 328) in
the review area.'' The Corps described the project area in the AJD form
as follows: ``Wetland A is a 1.37 acre high quality closed depressional
isolated wetland. Wetlands B and C (0.08 ac and 0.15 ac) are isolated
wetlands that formed over a failed drain tile and are over 1,200 feet
away from the closest jurisdictional waterway.'' The AJD also notes,
``Weland [sic] A and the area around Wetlands B and C were previously
determined to be isolated in 2008. Wetland C is mapped as Prior
Converted in a NRCS certified farmed wetland determination--other areas
are mapped as not inventoried.'' Upon later reviewing the negative AJD,
however, the agencies determined the wetlands would be ``now Yes JD''
under the 2015 Rule. Further information regarding this property and
associated positive and negative AJDs has been added to the docket for
the NPRM and is identified as ``Case Study E--AJD Number LRC-2015-31''
(see Support Document).
    In another example, the Corps' Pittsburgh District visited a
property in Butler, Pennsylvania, in October 2014 and determined the
site did not contain waters of the United States because the wetland
was ``completely isolated and has no nexus to a TNW or interstate or
foreign commerce.'' The Corps noted that the wetland would have been
regulated based solely on the Migratory Bird Rule prior to the decision
in SWANCC. Upon reviewing the AJD, the agencies later stated the
wetland is ``[i]solated but would have flood storage function.'' The
agencies' review notes that the wetland is 1,270 feet from the nearest
relatively permanent water (RPW) or traditional navigable water (TNW).
Given the wetland is within 4,000 feet of a tributary and the agencies
have stated it possesses at least one of the nine functions relevant to
the significant nexus evaluation, see 80 FR 37106 (i.e., retention and
attenuation of flood waters), the wetland would be subject to a
significant nexus evaluation under the 2015 Rule. It is unclear,
however, whether the wetland and its flood storage function would
contribute significantly to the chemical, physical, or biological
integrity of the nearest category (1) through (3) water as required by
the 2015 Rule to satisfy the significant nexus test. Further
information regarding this property and associated AJD has been added
to the docket for the NPRM and is identified as ``Case Study F--AJD
Number LRP 2014-855'' (see Support Document).
    In addition to the projected increase in positive jurisdictional
determinations and the above examples of expected JD changes, an
examination of the documents supporting the estimated 2.84 to 4.65
percent annual increase in positive AJDs raises concerns that the 2015
Rule may have significantly expanded jurisdiction over tributaries in

certain States, particularly those in more arid parts of the country.
    As described previously, to assess how assertion of jurisdiction
may change under the 2015 Rule, the agencies reviewed ORM2 aquatic
resource records from FY13 and FY14 and placed the aquatic resources
into three groups: Streams, wetlands adjacent to the stream category
group, and other waters. With respect to the streams category, the
agencies assumed that ``100 percent of the records classified as
streams will meet the definition of tributary in the final rule,'' \52\
resulting in a relatively minor projected increase in positive
jurisdictional determinations under the final rule for streams: 99.3
percent to 100 percent, or a 0.7 percent increase.
---------------------------------------------------------------------------

    \52\ 2015 Rule Economic Analysis at 8.
---------------------------------------------------------------------------

    However, the agencies have reexamined the 57-page ``Supporting
Documentation: Analysis of Jurisdictional Determinations for Economic
Analysis and Rule'' and have questions regarding the minor projected
increase in positive jurisdictional determinations over streams in some
states. An untitled table on page 46 of the supporting document lists
an analysis of a subset of streams and the number of those streams
estimated to be non-jurisdictional by State in the FY13-FY14 ORM2
records for the purpose of estimating stream mitigation costs
associated with the 2015 Rule.\53\
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    \53\ The table includes all states except Hawaii.
---------------------------------------------------------------------------

    Investigating the percent of streams estimated to be non-
jurisdictional on a State-by-State basis coupled with the 2015 Rule
Economic Analysis's assumption that 100 percent of the stream
jurisdictional determinations will be positive under the 2015 Rule
could indicate that there may be a significant expansion of
jurisdiction over tributaries in some States beyond current practice.
For example, in the FY13-FY14 ORM2 records for Arizona, the table
identifies 709 of 1,070 total streams (66.3 percent) were non-
jurisdictional. For Arkansas, the table identifies 116 of 213 total
streams (54.5 percent) as non-jurisdictional. In South Dakota, North
Dakota, Nevada, New Mexico, and Wyoming, 8.5 percent, 9.2 percent, 13.2
percent, 16.7 percent, and 57.1 percent of streams in the FY13-FY14
ORM2 database, respectively, were identified in the table as non-
jurisdictional. The agencies are concerned that because the 2015 Rule
may assert jurisdiction over 100 percent of streams as the agencies
assumed in the 2015 Rule Economic Analysis, certain States,
particularly those in the arid West, would see significant expansions
of federal jurisdiction over streams. The agencies solicit comment on
whether such expansions conflict with the assumptions underlying and
statements justifying the 2015 Rule, and if such expansions were
consistent with the policy goals of section 101(b) of the CWA.
    Several questions were raised by commenters regarding whether the
2015 Rule expanded CWA jurisdiction over intermittent and ephemeral
streams, and whether the agencies accurately identified that potential
expansion in the development of the 2015 Rule. Several commenters, for
example, suggested that the amount of jurisdictional river and stream
miles in the United States may increase from approximately 3.5 million
miles to more than 8 million miles in response to the per se
jurisdictional treatment of millions of miles of ephemeral and
intermittent streams under the tributary definition.\54\ To frame their
analysis, those commenters compared river and stream miles reported in
recent CWA section 305(b) reports submitted by States to EPA, and
transmitted by EPA to Congress, to the river and stream miles depicted
in maps developed by the agencies and the USGS prior to the 2015 Rule's
proposal.
---------------------------------------------------------------------------

    \54\ See comments submitted by Arizona Department of
Environmental Quality et al. (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-
2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096; comments submitted by CropLife
America (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14630),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14630; comments submitted by American Foundry Society (Nov. 14,
2014) (Docket ID: EPA-HQ-OW-2011-0880-15148), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15148; comments
submitted by U.S. Chamber of Commerce et al. (Nov. 12, 2014) (Docket
ID: EPA-HQ-OW-2011-0880-14115), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14115.
---------------------------------------------------------------------------

    Section 305(b)(1)(A) of the CWA directs each state to ``prepare and
submit to the Administrator . . . biennially . . . a report which shall
include . . . a description of the water quality of all navigable
waters in such State during the preceding year. . . .'' 33 U.S.C.
1315(b)(1)(A). Section 305(b)(2) additionally directs the Administrator
to ``transmit such State reports, together with an analysis thereof, to
Congress . . . .'' Id. at 1315(b)(2). Over the years, those reports to
Congress have identified between 3.5 and 3.7 million river and stream
miles nationwide (see Support Document). The agencies previously
observed that this analysis may not be precise, because of concerns
regarding the baseline for comparison and assumptions regarding which
intermittent and ephemeral streams may be covered under the 2015
Rule.\55\
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    \55\ See U.S. EPA and U.S. Army Corps of Engineers. Clean Water
Rule Response to Comments--Topic 8: Tributaries at 88-89, available
at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_8_tributaries.pdf.
---------------------------------------------------------------------------

    The agencies are not aware of any national, regional, or state-
level map that identifies all ``waters of the United States'' and
acknowledge that there are limitations associated with existing
datasets. The agencies, however, developed a series of draft maps using
the NHD identifying ``rivers and streams and tributaries and other
water bodies'' in each State, which then-EPA Administrator Gina
McCarthy mentioned at a March 27, 2014 hearing before the U.S. House of
Representatives Appropriations Committee Subcommittee on Interior,
Environment, and Related Agencies.\56\ The EPA provided a copy of those
draft maps to Congress on July 28, 2014,\57\ and they remain available
to the public on the U.S. House of Representatives Committee on
Science, Space and Technology website.\58\ The draft maps identify a
total of 8,086,742 river and stream miles across the 50 States (see
Support Document).
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    \56\ EPA Administrator Gina McCarthy testimony before the U.S.
House of Representatives Appropriations Committee Subcommittee on
Interior, Environment, and Related Agencies (March 27, 2014),
available at https://www.c-span.org/video/?318438-1/fy2015-epa-budget.
    \57\ Letter from Nancy Stoner, Acting Asst. Administrator, U.S.
EPA Office of Water, to Rep. Lamar Smith, Chairman, U.S. House of
Representatives Committee on Science, Space, and Technology (July
28, 2014), available at https://science.house.gov/sites/republicans.science.house.gov/files/documents/epa_releases_maps_letter.pdf.
    \58\ EPA State and National Maps of Waters and Wetlands,
available at https://science.house.gov/epa-state-and-national-maps-waters-and-wetlands.
---------------------------------------------------------------------------

    Given the significant differences between the CWA section 305(b)
reports and the draft NHD maps submitted to Congress, and the
possibility that each may represent potential estimates for the
relative jurisdictional scope of the 1986 regulations and practice
compared to the 2015 Rule, several States have questioned whether the
proposed definition of ``tributary'' for the 2015 Rule would expand
federal jurisdiction over State water resources. Eight State
departments of environmental quality, for example, stated in joint
comments that ``comparing the `waters of the United States' reported by
States to recent USGS maps released by the EPA shows a 131% increase in
federal waters.'' \59\ Comments filed by the State

of Kansas on the proposed rule raised similar concerns and focused on
the inclusion of ephemeral streams in the proposed definition of
tributary: ``In Kansas we have identified approximately 31,000 miles of
perennial and intermittent waters that have been treated as WOTUS for
several decades. . . . As per the preamble to the Rule and EPA/ACOE
statements, the additional 133,000 miles [of ephemeral streams] would
result in a 460% increase in the number of Kansas waters presumed to be
jurisdictional under the Rule.'' \60\ Kansas added that the State does
``not believe ephemeral waters have always been considered de facto
tributaries for CWA jurisdictional purposes.'' \61\ Referencing a
statement made by then-EPA Administrator McCarthy in which she stated,
``[u]nfortunately, 60 percent of our nation's streams and millions of
acres of wetlands currently lack clear protection from pollution under
the Clean Water Act,'' \62\ Kansas noted that ``if those 60 percent
that `lack clear protection' are brought under the umbrella of the CWA,
[there will be] a significantly larger expansion than estimated in the
economic analysis for the Rule.'' \63\
---------------------------------------------------------------------------

    \59\ See comments submitted by Alabama Dept. of Environ. Mgmt.,
Arizona Dept. of Environ. Quality, Indiana Dept. of Environ. Mgmt.,
Kansas Dept. of Health and Environ., Louisiana Dept. of Environ.
Quality, Mississippi Dept. of Environ. Quality, Oklahoma Dept. of
Environ. Quality, and Wyoming Dept. of Environ. Quality (Nov. 14,
2014) (Docket ID: EPA-HQ-OW-2011-0880-15096), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15096.
    \60\ See comments submitted by the State of Kansas at Appendix A
(Oct. 23, 2014) (Docket ID: EPA-HQ-OW-2011-0880-16636), available at
https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-16636.
    \61\ Id. (emphasis in original).
    \62\ See ``Clean Water Drives Economic Growth'' by Gina McCarthy
(Sept. 29, 2014), available at http://www.huffingtonpost.com/gina-mccarthy/clean-water-act_b_5900734.html.
    \63\ See supra note 60.
---------------------------------------------------------------------------

    The agencies in 2015 suggested that a feature that flows very
infrequently would not form the physical indicators required to meet
the 2015 Rule's definitions of ``ordinary high water mark'' and
``tributary.'' \64\ In response to comments questioning the agencies'
characterization of the change in scope of jurisdiction under the 2015
Rule, the agencies stated that the 2015 Rule was narrower in scope than
the existing regulations and historical practice, and reiterated that
an increase of approximately 3 percent represented the agencies'
estimate of the increased positive jurisdictional determinations
compared to recent practice.\65\ In the administrative record for the
2015 Rule and in a brief filed with the Sixth Circuit (based on that
record), the agencies asserted that the definition of ``waters of the
United States'' historically has included ephemeral streams and that
some federal court decisions after SWANCC upheld assertions of CWA
jurisdiction over surface waters that have a hydrologic connection to
and that form part of the tributary system of a traditional navigable
water, including intermittent or ephemeral streams. 80 FR 37079; Brief
for Respondents at 11, 62-64, In re EPA, No. 15-3571 (6th Cir. Jan. 13,
2017).\66\ The agencies are requesting comment on whether these
responses to these issues are adequate. While some ephemeral streams
may have been jurisdictional after a case-specific analysis pursuant to
the Rapanos Guidance,\67\ and while challenges to some of those
determinations have been rejected by courts, the agencies are
requesting public comment on whether these prior conclusions and
assertions were correct.
---------------------------------------------------------------------------

    \64\ See, e.g., U.S. EPA and U.S. Army Corps of Engineers. Clean
Water Rule Response to Comments--Topic 11: Cost/Benefits (Volume 2)
at 223, available at https://www.epa.gov/sites/production/files/2015-06/documents/cwr_response_to_comments_11_econ_vol2.pdf.
    \65\ See, e.g., id. at 10-13, 17.
    \66\ See also U.S. EPA and Department of the Army. Technical
Support Document for the Clean Water Rule: Definition of Waters of
the United States at 28 (May 27, 2015), available at https://www.epa.gov/sites/production/files/2015-05/documents/technical_support_document_for_the_clean_water_rule_1.pdf.
    \67\ See Rapanos Guidance at 7 (`` `[R]elatively permanent'
waters do not include ephemeral tributaries which flow only in
response to precipitation and intermittent streams which do not
typically flow year-round or have continuous flow at least
seasonally. However, CWA jurisdiction over these waters will be
evaluated under the significant nexus standard.'').
---------------------------------------------------------------------------

    Given the concerns expressed by three federal courts regarding the
potential scope of the 2015 Rule and comments raised during the 2015
rulemaking and submitted in response to the July 27, 2017 NPRM, the
agencies are re-evaluating the 2015 Rule and the potential change in
jurisdiction. While the agencies are not aware of any data that
estimates with any reasonable certainty or predictability the exact
baseline miles and area of waters covered by the 1986 regulations and
preexisting agency practice or data that accurately forecasts of the
additional waters subject to jurisdiction under the 2015 Rule, the
agencies are examining whether the data and estimates used to support
the 2015 Rule's conclusions that the rule would be narrower than
preexisting regulations may not have supported those conclusions, and
instead the 2015 Rule may have had more than a marginal impact on CWA
jurisdictional determinations and may impact well-defined and
longstanding relationships between the federal and State governments in
implementing CWA programs. The agencies seek comment on this and other
data that may be relevant to a proposed finding, and whether such a
change in finding would, either independently or in conjunction with
other factors, support the agencies' proposal to repeal the 2015 Rule.
4. Potential Impact on Federal-State Balance
    When promulgating the 2015 Rule, the agencies concluded and
prominently stated that ``State, tribal, and local governments have
well-defined and longstanding relationships with the Federal government
in implementing CWA programs and these relationships are not altered by
the final rule,'' 80 FR 37054. Indeed, it was ``the policy of the
Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution, to plan the development and use (including restoration,
preservation, and enhancement) of land and water resources, and to
consult with the Administrator in the exercise of his authority under
this Act.'' 33 U.S.C. 1251(b).
    In response to the agencies' July 27, 2017 NPRM, some commenters
have suggested that the 2015 Rule--including, inter alia, elements of
the final rule that commenters were not able to address during the
comment period--may not effectively reflect the specific policy that
Congress articulated in CWA section 101(b). The agencies are
considering whether and are proposing to conclude that the 2015 Rule
did not draw the appropriate line, for purposes of CWA jurisdiction,
between waters subject to federal and State regulation, on the one
hand, and waters subject to state regulation only, on the other. In
comments submitted to the agencies in response to the July 27, 2017
NPRM, many States, representatives of entities within many sectors of
the regulated community, and numerous other commenters expressed
concerns that the 2015 Rule permits federal encroachment upon the
States' traditional and primary authority over land and water
resources. Such commenters cite the Supreme Court's recognition that
``Congress chose to `recognize, preserve, and protect the primary
responsibilities and rights of states . . . to plan the development and
use' '' of those resources in enacting the CWA rather than ``readjust
the federal-state balance,'' SWANCC, 531 U.S. at 174 (quoting CWA
section 101(b), 33 U.S.C. 1251(b)).

    Under the 2015 Rule, commenters have observed that the agencies
asserted categorical jurisdiction over water features that may be
wholly intrastate and physically remote from navigable-in-fact waters.
Such waters ``adjacent'' to jurisdictional waters are deemed to meet
the definition of ``waters of the United States'' under the 2015 Rule,
so long as any portion of the water is located within 100 feet of the
ordinary high water mark of a category (1) through (5) ``jurisdictional
by rule'' water; within the 100-year floodplain of a category (1)
through (5) ``jurisdictional by rule'' water but not more than 1,500
feet from the ordinary high water mark of such water; or within 1,500
feet of the high tide line of a primary water or the ordinary high
water mark of the Great Lakes. 80 FR 37085-86, 37105. The agencies also
established case-specific jurisdiction over water features generally at
a greater distance, including waters (including seasonal or ephemeral
waters) located within 4,000 feet of the high tide line or ordinary
high water mark of a category (1) through (5) water. See 80 FR 37105.
For such waters, ``the entire water is a water of the United States if
a portion is located within the 100-year floodplain of a water
identified in paragraphs (a)(1) through (3) . . . or within 4,000 feet
of the high tide line or ordinary high water mark'' of a category (1)
through (5) water.'' Id.
    The agencies are considering whether the 2015 Rule's coverage of
waters based, in part, on their location within the 100-year floodplain
of a jurisdictional water is consistent with the policy articulated in
CWA section 101(b) that States should maintain primary responsibility
over land and water resources. The agencies received many comments on
the proposal to the 2015 Rule indicating that the potential breadth of
this standard could conflict with other federal, State or local laws
that regulate development within floodplains.\68\ In particular,
certain local governments expressed concern that the floodplain element
of the rule could conflict with local floodplain ordinances or
otherwise complicate local land use planning and development.\69\
Though the agencies added a distance-based threshold to limit the use
of the 100-year floodplain as a basis for categorical CWA jurisdiction
with respect to adjacent waters, the agencies are concerned that the
Rule's use of this standard, including its use as a basis for requiring
a case-specific significant nexus determination, could nonetheless
interfere with traditional state and local police power, as suggested
by some of the comments received in 2014.\70\ Comments received in
response to the July 27, 2017 NPRM also raise concerns about the use of
the 100-year floodplain. Specifically, commenters expressed concern
about the absence of suitable maps and about the accuracy of existing
maps. Given these concerns, the agencies request comment on whether the
2015 Rule's use of the 100-year floodplain as a factor to establish
jurisdiction over adjacent waters and case-specific waters interferes
with States' primary responsibilities over the planning and development
of land and water resources in conflict with CWA section 101(b). The
agencies also seek comment on to what extent the 100-year floodplain
component of the 2015 Rule conflicts with other federal regulatory
programs, and whether such a conflict impacts State and local
governments.
---------------------------------------------------------------------------

    \68\ See, e.g., comments submitted by City of Chesapeake (Sept.
9, 2014) (Docket ID: EPA-HQ-OW-2011-0880-9615), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-9615.
    \69\ See, e.g., comments submitted by National Association of
Counties (Nov. 14, 2014) (Docket ID: EPA-HQ-OW-2011-0880-15081),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-15081.
    \70\ See, e.g., comments submitted by Georgia Municipal
Association (Nov. 13, 2014) (Docket ID: EPA-HQ-OW-2011-0880-14527),
available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-14527; comments submitted by City of St. Petersburg (Nov. 13,
2014) (Docket ID: EPA-HQ-OW-2011-0880-18897), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2011-0880-18897.
---------------------------------------------------------------------------

    The agencies noted in 2015 ``that the vast majority of the nation's
water features are located within 4,000 feet of a covered tributary,
traditional navigable water, interstate water, or territorial sea.''
\71\ The agencies' broadening of certain key concepts and terms
relative to the prior regulatory regime means that the agencies can
potentially review the ``vast majority'' of water features in the
country under the 2015 Rule, unless those features have been excluded
from the definition. Similar concern was raised in response to the July
27, 2017 NPRM, for example, by the Missouri Department of Natural
Resources and Department of Agriculture.\72\ The agencies seek comment
on that analysis and whether the 2015 Rule readjusts the federal-state
balance in a manner contrary to the congressionally determined policy
in CWA section 101(b). Indeed, when issuing a preliminary injunction of
the 2015 Rule, the Southern District of Georgia held that ``The [2015]
WOTUS Rule asserts jurisdiction over remote and intermittent waters
without evidence that they have a nexus with any navigable-in-fact
waters.'' Georgia, 2018 U.S. Dist. LEXIS 97223, at *19. The agencies
thus solicit comment on whether the definitions in the 2015 Rule would
subject wholly intrastate or physically remote waters or wetlands to
CWA jurisdiction, either categorically or on a case-by-case basis, and
request information about the number and scope of such waters of which
commenters may be aware.\73\
---------------------------------------------------------------------------

    \71\ 2015 Rule Economic Analysis at 11.
    \72\ See comments submitted by the Missouri Department of
Natural Resources and Department of Agriculture (Sept. 26, 2017)
(Docket ID: EPA-HQ-OW-2017-0203-13869), available at https://www.regulations.gov/document?D=EPA-HQ-OW-2017-0203-13869 (``The
broad definition of tributary and the inclusion of a three-quarter
mile buffer around every tributary and impoundment, would have cast
a very broad jurisdictional umbrella over the state; requiring
significant nexus determinations on all but a very few number of
waters.'').
    \73\ This includes whether the 2015 Rule is supported by a
``clear and manifest'' statement under the CWA to change the scope
of traditional state regulatory authority. See BFP v. Resolution
Trust Corp., 511 U.S. 531, 544 (1994); see also Bond v. United
States, 134 S. Ct. 2077, 2089-90 (2014); SWANCC, 531 U.S. at 172-74.
---------------------------------------------------------------------------

    Further, the agencies solicit comment about whether these, or any
other, aspects of the 2015 Rule as finalized would, as either a de
facto or de jure matter, alter federal-state relationships in the
implementation of CWA programs and State regulation of State waters,
and whether the 2015 Rule appropriately implements the Congressional
policy of recognizing, preserving, and protecting the primary rights of
states to plan the development and use of land and water resources.
Because such findings would, if adopted by the agencies, negate a key
finding underpinning the 2015 Rule, the agencies request comment on
whether to repeal the 2015 Rule on this basis.
5. Additional Bases for Repealing the 2015 Rule That the Agencies Are
Considering
    In addition to our proposed conclusions that the 2015 Rule failed
to provide regulatory certainty and that it exceeded the agencies'
authority under the CWA, the agencies are also considering several
other supplemental bases for repealing the 2015 Rule. These are
discussed below along with requests for public comment.
    Some commenters have suggested that the 2015 Rule may exceed
Congress' power under the Commerce Clause. The Supreme Court in SWANCC
found that, in enacting the CWA, Congress had in mind as its authority
``its traditional jurisdiction over waters that were or had been
navigable in fact or which could reasonably be so made.'' 531 U.S. at
172. The Court went on to construe the CWA to avoid the significant
constitutional

questions raised by the agencies' assertion that the `` `Migratory Bird
Rule' falls within Congress' power to regulate intrastate activities
that `substantially affect' interstate commerce.'' Id. at 173. The
agencies are evaluating the concerns, reflected in certain comments
received by the agencies, that many features that are categorically
jurisdictional under the 2015 Rule, such as wetlands that fall within
the distance thresholds of the definition of ``neighboring,'' test the
limits of the scope of the Commerce Clause because they may not have
the requisite effect on the channels of interstate commerce.\74\
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    \74\ Though the agencies have previously said that the 2015 Rule
is consistent with the Commerce Clause and the CWA, the agencies are
in the process of considering whether it is more appropriate to draw
a jurisdictional line that ensures that the agencies regulate well
within our constitutional and statutory bounds.
---------------------------------------------------------------------------

    For example, according to certain litigants challenging the 2015
Rule, the ``seasonally ponded, abandoned gravel mining depressions''
specifically at issue in SWANCC, 531 U.S. at 164, which the Supreme
Court determined were ``nonnavigable, isolated, intrastate waters,''
id. at 166-72, might be subject to case-specific jurisdiction under the
2015 Rule. The depressions appear to be located within 4,000 feet of
Poplar Creek, a tributary to the Fox River, and may have the ability to
store runoff or contribute other ecological functions in the watershed.
    The agencies request comment, including additional information, on
whether the water features at issue in SWANCC or other similar water
features could be deemed jurisdictional under the 2015 Rule, and
whether such a determination is consistent with or otherwise well-
within the agencies' statutory authority, would be unreasonable or go
beyond the scope of the CWA, and is consistent with Justice Kennedy's
significant nexus test expounded in Rapanos wherein he stated,
``[b]ecause such a [significant] nexus was lacking with respect to
isolated ponds, the [SWANCC] Court held that the plain text of the
statute did not permit'' the Corps to assert jurisdiction over them.
See 547 U.S. at 767.
    The examples identified in Section II.C.3 above raise similar
issues. The abandoned borrow pit, for example, discussed in Case Study
C--AJD Number MVM-2014-460, was determined by the Corps in December
2014 to be an isolated water located 2,184 feet from a relatively
permanent body of water ``with no substantial nexus to interstate (or
foreign) commerce'' (see Support Document), yet the agencies later
stated the feature would be jurisdictional under the 2015 Rule. In
addition, the wetlands at issue in Case Study B--AJD Number 2004-001914
(see Support Document) described above in Section II.C.3 were located
583 feet from the Johlin Ditch outside Toledo, Ohio, situated east of
an existing medical building and west of an agricultural area. The
wetlands were determined by the Corps to be isolated, lacking a surface
connection to a water of the United States and a substantial nexus to
interstate commerce. Those wetlands, however, were later stated by the
agencies to be subject to CWA jurisdiction under the 2015 Rule. The
agencies therefore solicit comment on whether the 2015 Rule would cover
such wetlands and, if so, whether that would exceed the CWA's statutory
limits. See, e.g., SWANCC, 531 U.S. at 171-72, 174 (``[W]e find nothing
approaching a clear statement from Congress that it intended Sec.
404(a) to reach an abandoned sand and gravel pit'' that is
``isolated.'').
    Interested parties are encouraged to provide comment on whether the
2015 Rule is consistent with the statutory text of the CWA and relevant
Supreme Court precedent, the limits of federal power under the Commerce
Clause as specifically exercised by Congress in enacting the CWA, and
any applicable legal requirements that pertain to the scope of the
agencies' authority to define the term ``waters of the United States.''
The agencies also solicit comment on any other issues that may be
relevant to the agencies' consideration of whether to repeal the 2015
Rule, such as whether any potential procedural deficiencies limited
effective public participation in the development of the 2015 Rule.\75\
---------------------------------------------------------------------------

    \75\ See, e.g., Small Refiner Lead Phase-Down Task Force v. EPA,
705 F.2d 506, 549 (DC Cir. 1983).
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D. The Agencies' Next Steps

    In defining the term ``waters of the United States'' under the CWA,
Congress gave the agencies broad discretion to articulate reasonable
limits on the meaning of that term, consistent with the Act's text and
its policies as set forth in CWA section 101. In light of the
substantial litigation risk regarding waters covered under the 2015
Rule, and based on the agencies' experience and expertise in applying
the CWA, the agencies propose to repeal the 2015 Rule and put in place
the prior regulation. This is based on the concerns articulated above
and the agencies' concern that there may be significant disruption to
the implementation of the Act and to the public, including regulated
entities, if the 2015 Rule were vacated in part. The agencies therefore
propose to exercise their discretion and policy judgment by repealing
the 2015 Rule permanently and in its entirety because the agencies
believe that this approach is the most appropriate means to remedy the
deficiencies of the 2015 Rule identified above, address the litigation
risk surrounding the 2015 Rule, and restore a regulatory process that
has been in place for years.
    The agencies have considered other alternatives that could have the
effect of addressing some of the potential deficiencies identified,
including proposing revisions to specific elements of the 2015 Rule,
issuing revised implementation guidance and implementation manuals, and
proposing a further change to the February 6, 2020 applicability date
of the 2015 Rule. The agencies are soliciting comments on whether any
of these alternative approaches would fully address and ameliorate
potential deficiencies in and litigation risk associated with the 2015
Rule. Consistent with the President's Executive Order, the agencies are
also evaluating options for revising the definition of ``waters of the
United States.''
    The agencies are proposing to permanently repeal the 2015 Rule at
this time, and are taking comment on whether this proposal is the best
and most efficient approach to address the potential deficiencies
identified in this notice and to provide the predictability and
regulatory certainty that alternative approaches may not provide.

E. Effect of Repeal

    The 2015 Rule amended longstanding regulations contained in
portions of 33 CFR part 328 and 40 CFR parts 110, 112, 116, 117, 122,
230, 232, 300, 302, and 401 by revising, removing, and re-designating
certain paragraphs and definitions in those regulations. In this
action, the agencies would repeal the 2015 Rule and restore the
regulations in existence immediately prior to the 2015 Rule. As such,
if the agencies finalize this proposal and repeal the 2015 Rule and
thus repeal those amendments, the regulatory definitions of ``waters of
the United States'' in effect would be those portions of 33 CFR part
328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302, and
401 as they existed immediately prior to the 2015 Rule's amendments.
See, e.g., API v. EPA, 883 F.3d 918, 923 (DC Cir. 2018) (regulatory
criterion in effect immediately before enactment of criterion that was
vacated by the court ``replaces the now-vacated'' criterion). Thus, if
the agencies

determine that repeal of the 2015 Rule is appropriate, the agencies
concurrently would recodify the prior regulation in the CFR, which
would not have the effect of creating a regulatory vacuum, and the
agencies need not consider the potential consequences of such a
regulatory vacuum in light of this. If this proposed rule is finalized,
the agencies propose to apply the prior definition until a new
definition of CWA jurisdiction is finalized.
    The current regulatory scheme for determining CWA jurisdiction is
``familiar, if imperfect,'' In re EPA, 803 F.3d at 808, and the
agencies and regulated public have significant experience operating
under the longstanding regulations that were replaced by the 2015 Rule.
The agencies would continue to implement those regulations, as they
have for many years, consistent with Supreme Court decisions and
practice, other case law interpreting the rule, and informed by agency
guidance documents. Apart from a roughly six-week period when the 2015
Rule was in effect in 37 States, the agencies have continued to
implement the preexisting regulatory definitions as a result of the
court orders discussed in Section I.B. above, as well as the final rule
adding an applicability date to the 2015 Rule (83 FR 5200, Feb. 6,
2018). While the agencies acknowledge that the 1986 and 1988
regulations have been criticized and their application has been
narrowed by various legal decisions, including SWANCC and Rapanos, the
longstanding nature of the regulatory framework and its track record of
implementation makes it preferable until the agencies propose and
finalize a replacement definition. The agencies believe that, until a
new definition is completed, it is important to retain the status quo
that has been implemented for many years rather than the 2015 Rule,
which has been and continues to be mired in litigation.
    In other words, restoration of the prior regulatory text in the
CFR, interpreted in a manner consistent with Supreme Court decisions,
and informed by applicable agency guidance documents and longstanding
practice, will ensure that the scope of CWA jurisdiction will be
administered in the same manner as it is now; as it was during the
Sixth Circuit's lengthy, nationwide stay of the 2015 Rule; and as it
was for many years prior to the promulgation of the 2015 Rule. To be
clear, the agencies are not proposing a new definition of ``waters of
the United States'' in this specific rulemaking separate from the
definition that existed immediately prior to the 2015 Rule. The
agencies also are not proposing to take this action in order to fill a
regulatory gap because no such gap exists today. See 83 FR 5200, 5204.
Rather, the agencies are solely proposing to repeal the 2015 amendments
to the above-referenced portions of the CFR and recodify the prior
regulatory text as it existed immediately prior to the 2015 Rule's
amendments.

III. Minimal Reliance Interests Implicated by a Repeal of the 2015 Rule

    More than 30,000 AJDs of individual aquatic resources and other
features have been issued since August 28, 2015, the effective date of
the 2015 Rule. However, less than two percent of the AJDs of individual
aquatic resources were issued under the 2015 Rule provisions in the six
weeks the rule was in effect in a portion of the country.\76\ The 2015
Rule was in effect in only 37 States for about six weeks between the
2015 Rule's effective date and the Sixth Circuit's October 9, 2015
nationwide stay order, see In re EPA, 803 F.3d 804 (6th Cir. 2015), and
only 540 AJDs for aquatic resources and other features were issued
during that short window of time. The remainder of the AJDs issued
since August 28, 2015, were issued under the regulations defining the
term ``waters of the United States'' that were in effect immediately
before the effective date of the 2015 Rule.
---------------------------------------------------------------------------

    \76\ See Clean Water Act Approved Jurisdictional Determinations,
available at https://watersgeo.epa.gov/cwa/CWA-JDs, as of May 9,
2018. The 2015 Rule was enjoined in 13 States by the U.S. District
Court for the District of North Dakota and has never gone into
effect in those States.
---------------------------------------------------------------------------

    ``Sudden and unexplained change, . . . or change that does not take
account of legitimate reliance on prior [agency] interpretation, . . .
may be arbitrary, capricious [or] an abuse of discretion[,] [b]ut if
these pitfalls are avoided, change is not invalidating[.]'' Smiley v.
Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996) (internal
quotation marks and citations omitted). Therefore, in proposing to
repeal the 2015 Rule, the agencies are considering any interests that
may have developed in reliance on the 2015 Rule, as well as the
potential harm to such reliance interests from repealing the Rule
against the benefits. The agencies solicit comment on whether the AJDs
that were issued under the 2015 Rule's brief tenure (and any ensuing
reliance interests that were developed) would be adversely affected by
the Rule's repeal. If the potential for such harm exists, the agencies
also solicit comment on whether those harms outweigh the potential
benefits of repealing the 2015 Rule.
    In staying the 2015 Rule nationwide, the Sixth Circuit found no
indication ``that the integrity of the nation's waters will suffer
imminent injury if the [2015 Rule] is not immediately implemented and
enforced.'' In re EPA, 803 F.3d at 808. The Sixth Circuit wrote that
the ``burden--potentially visited nationwide on governmental bodies,
state and federal, as well as private parties--and the impact on the
public in general, implicated by the Rule's effective redrawing of
jurisdictional lines over certain of the nation's waters'' was of
``greater concern.'' Id. As a result, the Sixth Circuit held that ``the
sheer breadth of the ripple effects caused by the Rule's definitional
changes counsels strongly in favor of maintaining the status quo for
the time being.'' Id. For the reasons expounded in this notice and the
NPRM, the agencies believe that any potential adverse reliance
interests are outweighed by the benefits of the agencies' proposed
action. The agencies therefore propose to repeal the 2015 Rule and
request comment on that proposal.

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review prior to the
NPRM and again prior to issuance of the SNPRM. Any changes made in
response to OMB recommendations have been documented in the docket.
    While economic analyses are informative in the rulemaking context,
the agencies are not relying on the economic analysis performed
pursuant to Executive Orders 12866 and 13563 and related procedural
requirements as a basis for this proposed action. See, e.g., NAHB, 682
F.3d at 1039-40 (noting that the quality of an agency's economic
analysis can be tested under the APA if the ``agency decides to rely on
a cost-benefit analysis as part of its rulemaking'').

B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Cost

    This rule is expected to be an Executive Order 13771 deregulatory
action. Details on the estimated cost savings of this proposed rule can
be found in the economic analysis that was published together with the
NPRM.

C. Paperwork Reduction Act

    This proposed rule does not impose any new information collection
burdens under the Paperwork Reduction Act.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act generally requires an agency to
conduct a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements unless the agency certifies that
the rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small not-for-profit enterprises, and small governmental jurisdictions.
    The proposed repeal of the 2015 Rule is a deregulatory action that
would effectively maintain the status quo as the agencies are currently
implementing it, and avoid the imposition of potentially significant
adverse economic impacts on small entities in the future. Details on
the estimated cost savings of this proposed rule can be found in the
economic analysis that was published together with the NPRM.
Accordingly, after considering the potential economic impacts of the
proposed repeal action on small entities, we certify that this proposed
action will not have a significant economic impact on a substantial
number of small entities.

E. Unfunded Mandates Reform Act

    Under section 202 of the Unfunded Mandates Reform Act of 1995
(UMRA), signed into law on March 22, 1995, an agency must prepare a
budgetary impact statement to accompany any proposed or final rule that
includes a federal mandate that may result in estimated cost to state,
local, or tribal governments in the aggregate, or to the private
sector, of $100 million or more. Under section 205 of the UMRA, the
agency must select the most cost-effective and least burdensome
alternative that achieves the objectives of the rule and is consistent
with statutory requirements. Section 203 requires the agency to
establish a plan for informing and advising any small governments that
may be significantly or uniquely impacted by the rule. This proposed
action does not contain any unfunded mandate as described in the UMRA,
and does not significantly or uniquely affect small governments. The
definition of ``waters of the United States'' applies broadly to CWA
programs. The proposed action imposes no enforceable duty on any state,
local, or tribal governments, or the private sector, and does not
contain regulatory requirements that significantly or uniquely affect
small governments.

F. Executive Order 13132: Federalism

    Executive Order 13132 requires the agencies to develop an
accountable process to ensure ``meaningful and timely input by state
and local officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have federalism
implication'' is defined in the Executive Order to include regulations
that 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.'' Under Executive Order 13132, the agencies may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the federal government provides the funds necessary to pay the direct
compliance costs incurred by state and local government, or the
agencies consult with state and local officials early in the process of
developing the proposed regulation. The agencies also may not issue a
regulation that has federalism implications and that preempts state law
unless the agencies consult with state and local officials early in the
process of developing the proposed regulation.
    This proposed rule will not have substantial direct effects on the
states, on the relationship between the national government and states,
or on the distribution of power and responsibilities among the various
levels of government, as specified in Executive Order 13132, because it
merely proposes to repeal a rule that was in effect in only a portion
of the country for a short period of time, and does not alter the
relationship or the distribution of power and responsibilities
established in the CWA. The agencies are proposing to repeal the 2015
Rule in part because the 2015 Rule may have impermissibly and
materially affected the states and the distribution of power and
responsibilities among the various levels of government and therefore
likely should have been characterized as having federalism implications
when promulgated in 2015. Thus, the requirements of section 6 of the
Executive Order do not apply to this proposed rule because it returns
the federal-state relationship to the status quo.

G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires
the agencies to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This proposed rule does not
have tribal implications, as specified in Executive Order 13175. This
proposed rule will not have substantial direct effects on tribal
governments, on the relationship between the federal government and
Indian tribes, or on the distribution of power and responsibilities
between the federal government and Indian tribes, because it merely
preserves the status quo currently in effect today and in effect
immediately before promulgation of the 2015 Rule. Thus, Executive Order
13175 does not apply to this proposed rule. Consistent with E.O. 13175,
however, the agencies have and will continue to consult with tribal
officials, as appropriate, as part of any future rulemaking to define
``waters of the United States.''

H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, Apr. 23, 1997), applies
to any rule that: (1) Is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that an agency has reason to
believe may have a disproportionate effect on children. If the
regulatory action meets both criteria, the agency must evaluate the
environmental health or safety effects of the planned rule on children,
and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the agency. This proposed rule is not subject to Executive Order
13045 because it does not involve decisions intended to mitigate
environmental health or safety risks.

I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.

J. National Technology Transfer and Advancement Act

    Section 12 of the National Technology Transfer and Advancement Act
of 1995 requires federal agencies to evaluate existing technical
standards when developing a new regulation. The proposed rule does not
involve technical standards.

K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    This proposed rule maintains the legal status quo. The agencies
therefore believe that this action does not have disproportionately
high and adverse human health or environmental effects on minority,
low-income populations, and/or indigenous peoples, as specified in
Executive Order 12898 (59 FR 7629, Feb. 16, 1994).

List of Subjects

33 CFR Part 328

    Environmental protection, Administrative practice and procedure,
Navigation (water), Water pollution control, Waterways.

40 CFR Part 110

    Environmental protection, Oil pollution, Reporting and
recordkeeping requirements.

40 CFR Part 112

    Environmental protection, Oil pollution, Penalties, Reporting and
recordkeeping requirements.

40 CFR Part 116

    Environmental protection, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 117

    Environmental protection, Hazardous substances, Penalties,
Reporting and recordkeeping requirements, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 230

    Environmental protection, Water pollution control.

40 CFR Part 232

    Environmental protection, Intergovernmental relations, Water
pollution control.

40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Occupational safety and health, Oil pollution,
Penalties, Reporting and recordkeeping requirements, Superfund, Water
pollution control, Water supply.

40 CFR Part 302

    Environmental protection, Air pollution control, Chemicals,
Hazardous substances, Hazardous waste, Intergovernmental relations,
Natural resources, Reporting and recordkeeping requirements, Superfund,
Water pollution control, Water supply.

40 CFR Part 401

    Environmental protection, Waste treatment and disposal, Water
pollution control.

0
For the reasons stated herein, the agencies propose to amend 33 CFR
part 328 and 40 CFR parts 110, 112, 116, 117, 122, 230, 232, 300, 302,
and 401 of the Code of Federal Regulations to repeal the amendments
that were promulgated in the 2015 Rule and reestablish the regulatory
text that was in place immediately prior to promulgation of the 2015
Rule.

    Dated: June 29, 2018.
E. Scott Pruitt,
Administrator, Environmental Protection Agency.
    Dated: June 29, 2018.
R.D. James,
Assistant Secretary of the Army (Civil Works).
[FR Doc. 2018-14679 Filed 7-11-18; 8:45 am]
 BILLING CODE 6560-50-P


[Federal Register Volume 87, Number 163 (Wednesday, August 24, 2022)]
[Rules and Regulations]
[Pages 51871-51873]
[FR Doc No: 2022-18221]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 97

[Docket No. 31442; Amdt. No. 4021]

Standard Instrument Approach Procedures, and Takeoff Minimums and
Obstacle Departure Procedures; Miscellaneous Amendments

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Final rule.

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SUMMARY: This rule establishes, amends, suspends, or removes Standard
Instrument Approach Procedures (SIAPS) and associated Takeoff Minimums
and Obstacle Departure procedures (ODPs) for operations at certain
airports. These regulatory actions are needed because of the adoption
of new or revised criteria, or because of changes occurring in the
National Airspace System, such as the commissioning of new navigational
facilities, adding new obstacles, or changing air traffic requirements.
These

changes are designed to provide safe and efficient use of the navigable
airspace and to promote safe flight operations under instrument flight
rules at the affected airports.

DATES: This rule is effective August 24, 2022. The compliance date for
each SIAP, associated Takeoff Minimums, and ODP is specified in the
amendatory provisions.
    The incorporation by reference of certain publications listed in
the regulations is approved by the Director of the Federal Register as
of August 24, 2022.

ADDRESSES: Availability of matters incorporated by reference in the
amendment is as follows:

For Examination

    1. U.S. Department of Transportation, Docket Ops-M30. 1200 New
Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001.
    2. The FAA Air Traffic Organization Service Area in which the
affected airport is located;
    3. The office of Aeronautical Information Services, 6500 South
MacArthur Blvd., Oklahoma City, OK 73169 or,
    4. The National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, email
[email protected] or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html.

Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free
of charge. Visit the National Flight Data Center at nfdc.faa.gov to
register. Additionally, individual SIAP and Takeoff Minimums and ODP
copies may be obtained from the FAA Air Traffic Organization Service
Area in which the affected airport is located.

FOR FURTHER INFORMATION CONTACT: Thomas J. Nichols, Flight Procedures
and Airspace Group, Flight Technologies and Procedures Division, Flight
Standards Service, Federal Aviation Administration. Mailing Address:
FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace
Group, 6500 South MacArthur Blvd., Registry Bldg. 29, Room 104,
Oklahoma City, OK 73169. Telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: This rule amends 14 CFR part 97 by
establishing, amending, suspending, or removes SIAPS, Takeoff Minimums
and/or ODPS. The complete regulatory description of each SIAP and its
associated Takeoff Minimums or ODP for an identified airport is listed
on FAA form documents which are incorporated by reference in this
amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20.
The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B,
when required by an entry on 8260-15A, and 8260-15C.
    The large number of SIAPs, Takeoff Minimums and ODPs, their complex
nature, and the need for a special format make publication in the
Federal Register expensive and impractical. Further, airmen do not use
the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead
refer to their graphic depiction on charts printed by publishers or
aeronautical materials. Thus, the advantages of incorporation by
reference are realized and publication of the complete description of
each SIAP, Takeoff Minimums and ODP listed on FAA form documents is
unnecessary. This amendment provides the affected CFR sections and
specifies the typed of SIAPS, Takeoff Minimums and ODPs with their
applicable effective dates. This amendment also identifies the airport
and its location, the procedure, and the amendment number.

Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as
listed in the ADDRESSES section.
    The material incorporated by reference describes SIAPS, Takeoff
Minimums and/or ODPs as identified in the amendatory language for Part
97 of this final rule.

The Rule

    This amendment to 14 CFR part 97 is effective upon publication of
each separate SIAP, Takeoff Minimums and ODP as amended in the
transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments
may have been issued previously by the FAA in a Flight Data Center
(FDC) Notice to Airmen (NOTAM) as an emergency action of immediate
flights safety relating directly to published aeronautical charts.
    The circumstances that created the need for some SIAP and Takeoff
Minimums and ODP amendments may require making them effective in less
than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an
effective date at least 30 days after publication is provided.
    Further, the SIAPs and Takeoff Minimums and ODPs contained in this
amendment are based on the criteria contained in the U.S. Standard for
Terminal Instrument Procedures (TERPS). In developing these SIAPs and
Takeoff Minimums and ODPs, the TERPS criteria were applied to the
conditions existing or anticipated at the affected airports. Because of
the close and immediate relationship between these SIAPs, Takeoff
Minimums and ODPs, and safety in air commerce, I find that notice and
public procedure under 5 U.S.C. 553(b) are impracticable and contrary
to the public interest and, where applicable, under 5 U.S.C. 553(d),
good cause exists for making some SIAPs effective in less than 30 days.
    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current.
It, therefore--(1) is not a ``significant regulatory action'' under
Executive Order 12866; (2) is not a ``significant rule'' under DOT
Regulatory Policies and Procedures (44 FR 11034; February 26, 1979);
and (3) does not warrant preparation of a regulatory evaluation as the
anticipated impact is so minimal. For the same reason, the FAA
certifies that this amendment will not have a significant economic
impact on a substantial number of small entities under the criteria of
the Regulatory Flexibility Act.

Lists of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference,
Navigation (air).

    Issued in Washington, DC, on August 5, 2022.
Thomas J. Nichols,
Aviation Safety, Flight Standards Service, Manager, Standards Section,
Flight Procedures & Airspace Group, Flight Technologies & Procedures
Division.

Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14,
Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by
establishing, amending, suspending, or removing Standard Instrument
Approach Procedures and/or Takeoff Minimums and Obstacle Departure
Procedures effective at 0901 UTC on the dates specified, as follows:

PART 97--STANDARD INSTRUMENT APPROACH PROCEDURES

0
1. The authority citation for Part 97 continues to read as follows:

    Authority:  49 U.S.C. 106(f), 106(g), 40103, 40106, 40113,
40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

0
2. Part 97 is amended to read as follows:

Effective 8 September 2022

Sitka, AK, PASI, RNAV (GPS)-B, Orig
Yakutat, AK, PAYA, RNAV (GPS) RWY 2, Amdt 4
Yakutat, AK, PAYA, RNAV (GPS) RWY 11, Amdt 5
Yakutat, AK, PAYA, RNAV (GPS) RWY 29, Amdt 5
Butler, AL, 09A, Takeoff Minimums and Obstacle DP, Amdt 2
Tuscaloosa, AL, KTCL, TACAN RWY 4, Orig
Tuscaloosa, AL, KTCL, TACAN RWY 22, Orig
San Martin, CA, E16, RNAV (GPS) RWY 32, Amdt 2A
New Haven, CT, KHVN, RNAV (GPS) RWY 20, Amdt 1
Willimantic, CT, KIJD, RNAV (GPS) RWY 9, Amdt 1D
Apalachicola, FL, KAAF, RNAV (GPS) RWY 24, Amdt 1E
Apalachicola, FL, KAAF, RNAV (GPS) RWY 32, Amdt 2E
Macon, GA, KMCN, ILS OR LOC RWY 5, ILS RWY 5 (SA CAT I), ILS RWY 5
(SA CAT II), Amdt 4
Macon, GA, KMCN, VOR RWY 14, Amdt 10C, CANCELLED
Macon, GA, KMCN, VOR RWY 23, Amdt 4D, CANCELLED
Mc Rae, GA, KMQW, Takeoff Minimums and Obstacle DP, Amdt 2
Kahului, HI, PHOG, RNAV (GPS) Y RWY 2, Amdt 3
Ottumwa, IA, KOTM, ILS OR LOC RWY 31, Amdt 6
Ottumwa, IA, KOTM, LOC BC RWY 13, Amdt 4
Ottumwa, IA, KOTM, RNAV (GPS) RWY 13, Amdt 1
Ottumwa, IA, KOTM, RNAV (GPS) RWY 31, Amdt 1
Ottumwa, IA, KOTM, Takeoff Minimums and Obstacle DP, Amdt 1
Ottumwa, IA, KOTM, VOR RWY 13, Amdt 8
Belleville, IL, KBLV, ILS OR LOC RWY 14L, Orig-H
Belleville, IL, KBLV, ILS OR LOC RWY 14R, Orig-H
Belleville, IL, KBLV, ILS OR LOC RWY 32L, Amdt 2B
Belleville, IL, KBLV, ILS OR LOC RWY 32R, Orig-K
Belleville, IL, KBLV, RADAR-1, Orig-A
Belleville, IL, KBLV, RNAV (GPS) RWY 14L, Orig-B
Belleville, IL, KBLV, RNAV (GPS) RWY 14R, Orig-G
Belleville, IL, KBLV, RNAV (GPS) RWY 32L, Orig-F
Belleville, IL, KBLV, RNAV (GPS) RWY 32R, Orig-F
Belleville, IL, KBLV, TACAN RWY 14R, Amdt 1D
Belleville, IL, KBLV, TACAN RWY 32L, Amdt 1D
Chicago, IL, KMDW, RNAV (RNP) X RWY 22L, Amdt 2
Chicago, IL, KMDW, RNAV (RNP) Y RWY 4R, Amdt 2
Chicago, IL, KMDW, RNAV (RNP) Y RWY 13C, Amdt 3
Chicago, IL, KMDW, RNAV (RNP) Y RWY 22L, Amdt 4
Chicago, IL, KMDW, RNAV (RNP) Y RWY 31C, Amdt 2
Meade, KS, KMEJ, RNAV (GPS) RWY 17, Orig-D
Ulysses, KS, KULS, NDB RWY 12, Amdt 5
Mount Pleasant, MI, KMOP, Takeoff Minimums and Obstacle DP, Amdt 6
Mount Pleasant, MI, KMOP, VOR RWY 27, Amdt 2
Duluth, MN, KDLH, TACAN Y RWY 9, Amdt 3A
Minneapolis, MN, KANE, ILS OR LOC RWY 27, Amdt1
Minneapolis, MN, KANE, RNAV (GPS) RWY 27, Amdt 1
Rochester, MN, KRST, COPTER ILS Y OR LOC Y RWY 31, Amdt 3B
Rochester, MN, KRST, ILS Z OR LOC Z RWY 31, ILS Z RWY 31 (SA CAT I),
ILS Z RWY 31 (SA CAT II), Amdt 23B
Rochester, MN, KRST, RNAV (GPS) RWY 2, Amdt 3D
Rochester, MN, KRST, RNAV (GPS) RWY 13, Amdt 1C
Rochester, MN, KRST, RNAV (GPS) RWY 20, Amdt 2D
Rochester, MN, KRST, RNAV (GPS) RWY 31, Amdt 2B
Erwin, NC, KHRJ, RNAV (GPS) RWY 5, Amdt 2D
Erwin, NC, KHRJ, RNAV (GPS) RWY 23, Amdt 2C
Monroe, NC, KEQY, ILS OR LOC RWY 5, Amdt 3
Monroe, NC, KEQY, RNAV (GPS) RWY 5, Amdt 3
Monroe, NC, KEQY, RNAV (GPS) RWY 23, Amdt 1B
East Hampton, NY, KJPX, RNAV (GPS) Z RWY 10, Orig
East Hampton, NY, KJPX, RNAV (GPS) Z RWY 28, Orig
East Hampton, NY, KJPX, Takeoff Minimums and Obstacle DP, Orig
Johnstown, NY, NY0, RNAV (GPS) RWY 10, Amdt 1
Johnstown, NY, NY0, RNAV (GPS) RWY 28, Amdt 1
Pendleton, OR, KPDT, ILS OR LOC RWY 26, Amdt 25E
Portland, OR, KPDX, RNAV (RNP) Z RWY 10R, Orig-C
Toughkenamon, PA, N57, Takeoff Minimums and Obstacle DP, Amdt 1A
Walla Walla, WA, KALW, ILS OR LOC RWY 20, Amdt 1A
Walla Walla, WA, KALW, ILS Y OR LOC RWY 20, Amdt 10, CANCELLED
Walla Walla, WA, KALW, RNAV (GPS) RWY 2, Amdt 2A
Walla Walla, WA, KALW, RNAV (GPS) RWY 20, Amdt 1B
Walla Walla, WA, KALW, Takeoff Minimums and Obstacle DP, Amdt 5
Walla Walla, WA, KALW, VOR RWY 2, Orig-D
Walla Walla, WA, KALW, VOR RWY 20, Orig-A
Afton, WY, KAFO, RNAV (GPS) RWY 16, Amdt 3
Afton, WY, KAFO, RNAV (GPS) RWY 34, Amdt 3

[FR Doc. 2022-18221 Filed 8-23-22; 8:45 am]
BILLING CODE 4910-13-P