I. Background

FHFA is responsible for ensuring that the regulated entities operate in a safe and sound manner, including the maintenance of adequate capital and internal controls, that their operations and activities foster liquid, efficient, competitive, and resilient national housing finance markets, and that they carry out their public policy missions through authorized activities. See 12 U.S.C. 4513. These Orders are being issued under 12 U.S.C. 4516(a), which authorizes the Director of FHFA to require by Order that the regulated entities submit regular or special reports to FHFA and establishes remedies and procedures for failing to make reports required by Order. The Orders, through the accompanying Summary Instructions and Guidance, prescribe for the regulated entities the scenarios to be used for stress testing. The Summary Instructions and Guidance also provides to the regulated entities advice concerning the content and format of reports required by the Orders and the rule.

For the convenience of the affected parties and the public, the text of the Orders follows below in its entirety. The Orders and Summary Instructions and Guidance are also available for public inspection and copying at the Federal Housing Finance Agency's Freedom of Information Act (FOIA) Reading Room at https://www.fhfa.gov/AboutUs/FOIAPrivacy/Pages/Reading-Room.aspx by clicking on “Click here to view Orders” under the Final Opinions and Orders heading. You may also access these documents at http://www.fhfa.gov/SupervisionRegulation/DoddFrankActStressTests.

The text of the Orders is as follows:

Whereas, section 165(i)(2) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”), as amended by section 401 of the Economic Growth, Regulatory Relief, and Consumer Protection Act (“EGRRCPA”) requires certain financial companies with total consolidated assets of more than $250 billion, and which are regulated by a primary Federal financial regulatory agency, to conduct periodic stress tests to determine whether the companies have the capital necessary to absorb losses as a result of severely adverse economic conditions;

Whereas, FHFA's rule implementing section 165(i)(2) of the Dodd-Frank Act, as amended by section 401 of EGRRCPA is codified as 12 CFR 1238 and requires that “[e]ach Enterprise must file a report in the manner and form established by FHFA.” 12 CFR 1238.5(b);

Whereas, The Board of Governors of the Federal Reserve System issued stress testing scenarios on February 9, 2023; and

Whereas, section 1314 of the Safety and Soundness Act, 12 U.S.C. 4514(a) authorizes the Director of FHFA to require regulated entities, by general or specific order, to submit such reports on their management, activities, and operation as the Director considers appropriate.

Now therefore, it is hereby Ordered as follows:

Each Enterprise shall report to FHFA and to the Board of Governors of the Federal Reserve System the results of the stress testing as required by 12 CFR 1238, in the form and with the content described therein and in the Summary Instructions and Guidance, with Appendices 1 through 7 thereto, accompanying this Order and dated March 7, 2023.

It Is So Ordered, this the 7th day of March, 2023.

This Order is effective immediately.

Background

The FAA received a report that a GE overhaul shop internal investigation found that several HPC rotor stage 7-9 spools were shipped to operators prior to a final FPI being performed on the dovetail pressure face. A final FPI is performed to confirm that any linear indications have been removed, as indications on the HPC rotor stage 7-9 spool may potentially propagate and eventually lead to failure of the HPC rotor stage 7-9 spool. This condition, if not addressed, could result in an in-flight shutdown, damage to the engine, and damage to the airplane. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency has determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed GE GE90-100 Service Bulletin 72-0905 R00, dated July 25, 2022. This service information specifies procedures for performing a piece-part inspection of the affected HPC rotor stage 7-9 spools. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

This AD requires, at the next shop visit after the effective date of this AD, performing an FPI of each affected HPC rotor stage 7-9 spool and, depending on the results of the inspection, replacement with a part eligible for installation.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

The FAA has found the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because no domestic operators use this product. It is unlikely that the FAA will receive any adverse comments or useful information about this AD from any U.S. operator. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “FAA-2023-0423 Project Identifier AD-2022-01525-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Stephen Elwin, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 0 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this AD:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-07-09, Amendment 39-21486 (86 FR 17899, April 7, 2021) (AD 2021-07-09). AD 2021-07-09 applied to all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on September 8, 2022 (87 FR 54919). The NPRM was prompted by reports of sealant deteriorating on the outside of the center wing fuel tank and analysis showing that sealant may deteriorate inside the tank due to excess heat from TADDs. The NPRM was also prompted by reports indicating that the high temperature composite material TADD failed. AD 2021-07-09 requires replacing original fiberglass fabric material with high temperature composite material TADDs, repetitively inspecting the TADDs for damage, and as applicable inspecting the center wing fuel tank secondary fuel barrier coating and primary sealant for damage, and repairing damage. In the NPRM, the FAA proposed to continue to require repetitive inspections of the TADDs for damage, with revised compliance times, and repair if applicable. The NPRM also proposed to require repetitive replacement of the TADDs and remove the structural inspections of the center fuel tanks. In addition, this AD prohibits the installation of affected parts. The FAA is issuing this AD to address potential hot air leakage from original fiberglass fabric material or high temperature composite material TADD that can cause damage to the center wing fuel tank secondary fuel barrier coating and primary sealant, which can cause fuel leakage into an ignition zone, possibly resulting in a fire or explosion.

For information on the procedures and compliance times, see the service information at regulations.gov under Docket No. FAA-2022-1058.

The FAA received comments from four commenters. Commenters included Air Line Pilots Association, International (ALPA) who supported the NPRM without change, and an individual whose comment is outside the scope of this rulemaking. The FAA received additional comments from Boeing and another commenter. The following presents the comments received on the NPRM and the FAA's response to each comment.

A commenter asked if an operator can claim full credit against the proposed AD if the operator with Group 2 airplanes performed Boeing Service Bulletin 747-21A2577-00 and conducted the TADD replacement associated with certain comments from AD 2021-07-09 in order to extend the inspection interval.

The FAA infers the commenter is referring to the FAA's response to a comment in AD 2021-07-09. That response states as follows:

The FAA infers the commenter is requesting the same allowance from the FAA's response to the comment in AD 2021-07-09 to replace the TADD in lieu of performing repetitive inspections of the TADD at 1,200-flight-hour intervals. The FAA provides the following clarifications of the AD requirements. This AD requires operators to perform repetitive inspection of the TADD, report any TADD damages to Boeing, and replace the TADD at 16,000-flight-hour intervals. This AD does not provide an option for a TADD to continue in service after 16,000 flight hours.

The proposed AD would have required Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 1, dated March 9, 2022. This AD has been revised to require Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 2, dated February 10, 2023. However, paragraph (j) of this AD provides credit for actions done before the effective date of the AD using Boeing Alert Requirements Bulletin 747-21A2577 RB, dated February 18, 2020; or Revision 1, dated March 9, 2022.

Boeing requested that the FAA revise paragraph (c), “Applicability,” of the proposed AD to remove the following Model 747 Large Cargo Freighters (LCF) airplanes: variable numbers RT631, RT743, RT876, and RT632. The listed LCF airplanes should not be applicable because the listed LCF airplanes do not have original fiberglass fabric material or high temperature composite material TADD.

The FAA agrees with the request for the reasons provided by the commenter. The FAA notes that paragraph 1.A., “Effectivity,” of Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 2, dated February 10, 2023, specifically excludes line numbers 766, 778, 904, and 932 (variable numbers RT631, RT743, RT876, and RT632). The FAA revised paragraph (c) of this AD to limit the applicability to airplanes identified in Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 2, dated February 10, 2023.

Boeing requested the FAA to reference Revision 2 instead of Revision 1 of Service Bulletin and Requirements Bulletin 747-21A2577. Revision 2 of this service information will address the issue of Appendix A and Appendix B not being in the RB.

The FAA agrees with Boeing's request. As stated previously, the FAA has revised this AD to require Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 2, dated February 10, 2023. Revision 2 added the missing appendixes and introduces no other changes that affect compliance.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 747-21A2577 RB, Revision 2, dated February 10, 2023. This service information specifies procedures for repetitive detailed inspections for damage of TADDs made of original fiberglass fabric material and high temperature composite material, repetitive replacement of TADDs, and repair of damaged TADDs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 104 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1309; Project Identifier MCAI-2021-01288-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0257, dated November 17, 2021 (EASA AD 2021-0257) (referred to after this as the MCAI), to correct an unsafe condition on all Airbus SAS Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes. The MCAI states that the limit of validity (LOV) has been revised to be more restrictive, reflecting the engineering data that supports the structural maintenance program and that corresponds to the time period during which it is demonstrated that Widespread Fatigue Damage (WFD) will not occur.

EASA AD 2021-0257 specifies that it requires a task (limitation) related to the LOV already in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 03, dated December 14, 2018, that is required by EASA AD 2019-0091, dated April 26, 2019 (which corresponds to FAA AD 2019-20-06, Amendment 39-19759 (84 FR 55859, October 18, 2019) (AD 2019-20-06)) (and is incorporated by reference in AD 2019-20-06), and that incorporation of EASA AD 2021-0257 invalidates (terminates) the prior LOV as specified in Airbus A310 Airworthiness Limitations Section (ALS), Part 2, Damage Tolerant Airworthiness Limitation Items (DT-ALI), Revision 03, dated December 14, 2018. This AD therefore terminates the limitations for the LOV, as required by paragraph (g) of AD 2019-20-06.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1309.

The FAA reviewed EASA AD 2021-0257. This service information specifies new or more restrictive airworthiness limitations for airplane LOVs. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

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

This AD requires revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, which are specified in EASA AD 2021-0257 described previously, as incorporated by reference. Any differences with EASA AD 2021-0257 are identified as exceptions in the regulatory text of this AD.

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

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2021-0257 is incorporated by reference in this AD. This AD requires compliance with EASA AD 2021-0257 through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2021-0257 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2021-0257. Service information required by EASA AD 2021-0257 for compliance will be available at regulations.gov under Docket No. FAA-2022-1309 after this final rule is published.

The FAA's process of incorporating by reference MCAI ADs as the primary source of information for compliance with corresponding FAA ADs has been limited to certain MCAI ADs (primarily those with service bulletins as the primary source of information for accomplishing the actions required by the FAA AD). However, the FAA is now expanding the process to include MCAI ADs that require a change to airworthiness limitation documents, such as airworthiness limitation sections.

For these ADs that incorporate by reference an MCAI AD that changes airworthiness limitations, the FAA requirements are unchanged. Operators must revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in the new airworthiness limitation document. The airworthiness limitations must be followed according to 14 CFR 91.403(c) and 91.409(e).

The previous format of the airworthiness limitation ADs included a paragraph that specified that no alternative actions ( e.g., inspections or intervals) may be used unless the actions and intervals are approved as an AMOC in accordance with the procedures specified in the AMOCs paragraph under “Additional AD Provisions.” This new format includes a “New Provisions for Alternative Actions and Intervals” paragraph that does not specifically refer to AMOCs, but operators may still request an AMOC to use an alternative action or interval.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

There are currently no domestic operators of these products. Accordingly, notice and opportunity for prior public comment are unnecessary, pursuant to 5 U.S.C. 553(b)(3)(B). In addition, for the foregoing reason(s), the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.

Currently, there are no affected U.S.-registered airplanes. For any affected airplane that may be imported and placed on the U.S. Register in the future, the FAA provides the following cost estimates to comply with this AD:

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

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

For the reasons discussed above, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-12-01, Amendment 39-21135 (85 FR 34959, June 8, 2020) (AD 2020-12-01). AD 2020-12-01 applied to certain RRD Trent XWB-75, Trent XWB-79, Trent XWB-79B, and Trent XWB-84 model turbofan engines. AD 2020-12-01 required initial and repetitive inspections of the LPC OGV outer mount ring assembly and, depending on the results of the inspections, possible replacement of the OGV outer mount ring assembly. The FAA issued AD 2020-12-01 to prevent failure of the front engine mount support structure.

The NPRM published in the Federal Register on September 30, 2022 (87 FR 59347). The NPRM was prompted by EASA AD 2022-0129, dated June 30, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0129) (referred to after this as “the MCAI”). The MCAI superseded EASA AD 2019-0234, dated September 19, 2019 (EASA AD 2019-0234). EASA AD 2019-0234 specified that operators perform repetitive inspections (on-wing or in-shop) of the OGV outer mount ring assembly lug fillet area in accordance with RRD Alert Non-Modification Service Bulletin (NMSB) Trent XWB 72-AK188, Initial Issue, dated August 13, 2019. The manufacturer subsequently revised the NMSB and determined that the inspections of the LPC OGV outer mount ring assembly are also necessary for RRD Trent XWB-97 model turbofan engines. In addition, manufacturer analysis indicated that the on-wing inspections, previously specified in RRD NMSB Trent XWB 72-AK188, original issue, dated August 13, 2019, could be discontinued, and the interval of the in-shop inspection could coincide with a qualified shop visit, as outlined in RRD NMSB Trent XWB 72-AK188, Revision 3, dated May 9, 2022. As a result, EASA issued EASA AD 2022-0129 to discontinue the on-wing inspections, allow the in-shop inspection interval to be adjusted, and expand the applicability to include Trent XWB-97 model turbofan engines. You may examine issued EASA AD 2022-0129 in the AD docket at regulations.gov under Docket No. FAA-2022-1244.

In the NPRM, the FAA proposed to require initial and repetitive inspections of the LPC OGV outer mount ring assembly and, depending on the results of the inspections, replacement of the LPC OGV outer mount ring assembly, as specified in EASA AD 2022-0129. The FAA is issuing this AD to prevent failure of the front engine mount support structure.

The FAA received comments from three commenters. The commenters were Air Line Pilots Association, International (ALPA), Delta Air Lines, Inc, (DAL), and Rolls-Royce, plc. The following presents the comments received on the NPRM and the FAA's response to each comment.

ALPA supported the NPRM without change.

DAL requested that the FAA remove the Special Flight Permit paragraph, as proposed in the NPRM. DAL explained that EASA AD 2022-0129 specifies that all inspections and corrective actions occur during a qualified engine shop visit. DAL stated that an affected engine cannot be returned to service until all inspections and corrective actions are complied with and, therefore, the special flight permit prohibition proposed in the NPRM is not necessary.

The FAA agrees and has omitted the proposed Special Flight Permit paragraph from this final rule.

Rolls-Royce, plc. commented that both the Background section and paragraph (e), Unsafe Condition, of the proposed AD refer to “the most highly stressed LPC OGV outer mount ring assembly.” The commenter stated that both paragraphs should be revised to instead refer to “the most highly stressed LPC Outlet Guide Vane” in order to correct the description of the affected part that has a life that could be substantially less than one shop visit.

In response to this comment, the FAA partially agrees with the request to correct the description of the affected part, and has updated this final rule by changing “the most highly stressed LPC OGV outer mount ring assembly” to “the most highly stressed LPC OGV assembly” in paragraph (e), Unsafe Condition, and in the preamble.

Rolls-Royce, plc. noted that the proposed AD references RRD Alert NMSB Trent XWB 72-AK188, Revision 3, dated May 9, 2022, when referring to inspections of the LPC OGV on Trent XWB-97 model turbofan engines. However, Rolls-Royce, plc. stated inspections of the LPC OGV on Trent XWB-97 model turbofan engines are covered in RRD Alert NMSB Trent XWB 72-AK583, Initial Issue, dated May 9, 2022.

The FAA agrees and has updated the Actions Since AD 2020-12-01 Was Issued paragraph of the preamble to reference RRD Alert NMSB Trent XWB 72-AK583, Initial Issue, dated May 9, 2022, when referencing inspections of the LPC OGV for Trent XWB-97 model turbofan engines. The FAA also added RRD Alert NMSB Trent XWB 72-AK583, Initial Issue, dated May 9, 2022, to the Other Related Service Information paragraph of the preamble.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed EASA AD 2022-0129. This EASA AD specifies instructions for performing fluorescent penetrant inspections (FPIs) of the LPC OGV outer mount ring assembly.

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

The FAA reviewed RRD Alert NMSB Trent XWB 72-AK188, Revision 3, dated May 9, 2022, and RRD Alert NMSB Trent XWB 72-AK583, Initial Issue, dated May 9, 2022. This service information specifies procedures for performing FPIs of the LPC OGV outer mount ring assembly.

The FAA estimates that this AD affects 60 engines installed on airplanes of U.S. Registry.

The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary repairs or replacements that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these repairs or replacements:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain MHI RJ Aviation ULC Model CL-600-2C10 (Regional Jet Series 700, 701 & 702); CL-600-2C11 (Regional Jet Series 550); CL-600-2D15 (Regional Jet Series 705); CL-600-2D24 (Regional Jet Series 900); and CL-600-2E25 (Regional Jet Series 1000) airplanes. The NPRM published in the Federal Register on May 17, 2022 (87 FR 29841). The NPRM was prompted by AD CF-2022-06, dated February 28, 2022, issued by Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that laboratory tests showed that the oxygen tubes of the crew oxygen system may be contaminated with lubricants, as a result of the inadvertent use of a non-conforming aqueous degreasing process for oxygen line flushing and cleaning during the manufacturing process. If not corrected, lubricant remaining in oxygen lines could lead to a fire within the oxygen tubes or a health hazard related to the inhalation of lubricant fumes through the masks when masks are in use.

In the NPRM, the FAA proposed to require cleaning and flushing the crew oxygen system. The FAA is issuing this AD to address the contaminated oxygen tubes of the crew oxygen system, which could lead to a fire within the oxygen tubes, or a health hazard related to the inhalation of lubricant fumes when the masks are in use.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0521.

The FAA received a comment from MHI RJ Aviation ULC. The following presents the comment received on the NPRM and the FAA's response to the comment.

MHI RJ Aviation ULC requested that the NPRM be revised to correct its contact information.

The FAA has included the correct contact information under ADDRESSES in this final rule and in paragraph (k)(3) of this AD.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed MHI RJ Service Bulletin 670BA-35-016, Revision B, dated December 17, 2021. This service information specifies procedures for low-pressure and high-pressure cleaning of the crew oxygen tubes. The tasks include cleaning the end fittings and threads, cleaning the inner wall of the tubes with solvent, and flushing the inner wall of the tubes with nitrogen.

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

The FAA estimates that this AD would affect 34 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Embraer S.A. Model EMB-545 and EMB-550 airplanes. The NPRM published in the Federal Register on July 13, 2022 (87 FR 41629). The NPRM was prompted by AD 2021-11-01R1, issued by ANAC, which is the aviation authority for Brazil (referred to after this as the MCAI). The MCAI states that there is a possibility of the shoulder belt getting stuck during flight due to a step between the divan shroud chamfer and the sideledge panel. This set up may interfere with the correct kinematics of the shoulder belt during its retraction. This condition, if not addressed, could affect the shoulder belt release during turbulence or an emergency landing situation and result in injury to passengers and the flightcrew.

In the NPRM, the FAA proposed to require installing, on the right- and left-hand side divan, a protective fairing covering on the divan shroud and the sideledge panel, as specified in ANAC AD 2021-11-01R1.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-0873.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

ANAC AD 2021-11-01R1 specifies procedures for installing, on the right- and left-hand side divan, a protective fairing covering on the divan shroud and the sideledge panel.

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

The FAA estimates that this AD affects 63 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify that this AD:

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

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

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

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

The preamble below is designed to assist readers in understanding these technical amendments to the rules of practice and procedure to conform with the USMCA Act. This preamble provides background information, a regulatory analysis of the rules, a section-by-section explanation of amendments and new rules, and a description of the amendments and new rules.

These rules are being promulgated in accordance with the Administrative Procedure Act (5 U.S.C. 553) (APA), and will be codified in 19 CFR parts 206 and 207.

On November 30, 2018, the “Protocol Replacing the North American Free Trade Agreement with the Agreement Between the United States of America, the United Mexican States, and Canada” (the Protocol) was signed to replace the North American Free Trade Agreement (NAFTA). The Agreement Between the United States of America, the United Mexican States (Mexico), and Canada (the USMCA) is attached as an annex to the Protocol and was subsequently amended to reflect certain modifications and technical corrections in the “Protocol of Amendment to the Agreement Between the United States of America, the United Mexican States, and Canada,” which the Office of the United States Trade Representative (USTR) signed on December 10, 2019. The United States adopted the USMCA through the enactment of the USMCA Act on January 29, 2020, and the USMCA entered into force on July 1, 2020.

Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) (Tariff Act) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. In addition, sections 103(b) and 412(g) of the USMCA Act (19 U.S.C. 4513(b) and 4582(g), respectively) direct the Commission to prescribe implementing regulations necessary or appropriate to carry out actions required by or authorized by the USMCA Act.

The Commission is making technical amendments to existing rules of procedures and practice regarding the USMCA Act. In part 206, these include amendments that (1) implement provisions in section 301 of the Act that require the Commission to make special findings with respect to imports from Canada or Mexico if the Commission makes an affirmative determination in a global safeguard action investigation under section 202(b) of the Trade Act of 1974; and (2) delete references to U.S.-Canada and U.S.-Mexico bilateral safeguard actions, since section 601 of the USMCA Act repeals former statutory provisions that provided for such actions. In part 207, these include amendments to the provisions regarding the issuance of administrative protective orders (APOs) in binational dispute panels concerning antidumping and countervailing duty determinations now covered under section 422 of the USMCA Act.

Sections 301-302 of the USMCA Act implements the provisions of Article 10.2 of the USMCA concerning global safeguard investigations under section 202 of the Trade Act of 1974 (19 U.S.C. 2252). A similar provision appeared in sections 311-312 of the North American Free Trade Agreement Implementation Act (NAFTA Act); section 502(b)-(c) of the USMCA Act amended these provisions and transferred them to sections 301-302 of the USMCA Act. The USMCA Act retains without substantive change the global safeguard procedures established under the NAFTA Act. For example, these unaltered provisions required that, if the Commission finds that increased global imports are causing or threaten to cause serious injury to a domestic industry, the Commission also must provide factual findings to the President as to whether imports from Canada and/or Mexico “account for a substantial share of imports” and “contribute importantly to the serious injury caused by U.S. imports” (19 U.S.C. 4551(a)). The USMCA Act maintains these and all global safeguard provisions from the NAFTA Act while updating references to the applicable agreements and implementing laws, consistent with sections 301-302 of the USMCA Act.

Neither the USMCA Act nor the USMCA contains provisions for bilateral safeguard actions concerning imports from USMCA countries. Accordingly, section 601 of the USMCA Act repeals provisions under the NAFTA Act that had allowed for such investigations. Additionally, bilateral safeguard actions under the United States-Chile Free Trade Agreement Implementation Act (19 U.S.C. 3805 note), the Dominican Republic Central American-United States Free Trade Agreement Implementation Act (19 U.S.C. 4064), and United States-Peru Trade Promotion Implementation Act (19 U.S.C. 3805 note) have expired.

Section 422 of the USMCA Act amends U.S. law to implement Chapter 10, Section D of the USMCA, which retains the mechanism from NAFTA for the establishment of binational dispute panels to resolve disputes between any two of the USMCA countries with respect to antidumping and countervailing duty cases.

Section 422 strikes references to previous agreements and replaces them with references to either USMCA (for new binational disputes initiated after implementation of USMCA) or NAFTA (for prior binational disputes that are on-going following implementation of USMCA). Section 422 does not otherwise substantively alter previous procedures established under the NAFTA Act. Accordingly, these technical amendments largely maintain the rules of practice and procedure, adopted in 1995, concerning the protection of business proprietary information (BPI), and access to that information under APO, that had been implemented under the NAFTA Act, while updating references to the applicable agreements and implementing laws. These technical amendments also update certain provisions consistent with agency practice regarding electronic filing.

The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the notice-and-comment rulemaking procedure in section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). That procedure entails publication of proposed rulemaking in the Federal Register that solicits public comments on the amendments, consideration by the Commission of public comments on the contents of the amendments, and publication of the final amendments at least 30 days prior to their effective date.

In this instance, however, the Commission is amending rules in 19 CFR parts 206 and 207 on a final basis. The Commission's authority to adopt final amendments without following all steps listed in section 553 of the APA is derived from section 335 of the Tariff Act (19 U.S.C. 1335), sections 103(b) and 412(g) of the USMCA Act (19 U.S.C. 4513(b) and 4582, respectively), and section 553 of the APA.

Section 553(b) of the APA allows an agency to dispense with publication of a notice of proposed rulemaking when the agency for good cause finds that notice and public comment on the rules are impracticable, unnecessary, or contrary to the public interest, and the agency incorporates that finding and the reasons therefor into the rules adopted by the agency. Section 553(d)(3) of the APA allows an agency to dispense with the publication of notice of final rules at least thirty days prior to their effective date if the agency finds that good cause exists for not meeting the advance publication requirements and the agency publishes that finding along with the rules.

In this instance, the Commission has determined that the requisite circumstances exist for dispensing with the notice, comment, and advance publication procedure that ordinarily precedes the adoption of Commission rules. The amendments to part 206 are technical amendments reflecting the retention in the USMCA Act of the precise requirements from the NAFTA Act for certain Commission findings concerning goods from Canada and/or Mexico when conducting a global safeguard investigation. The amendments to part 206 likewise reflect the expiration of provisions addressing bilateral safeguard actions involving USMCA countries. The amendments to part 207 are technical amendments, mostly involving changing references from the NAFTA Act to the USMCA Act, that do not alter the substance of agency procedures regarding the treatment of BPI in binational panel disputes. Given the technical nature of these amendments, the Commission has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment is unnecessary. Moreover, the Commission finds under section 553(b)(3)(B) of the APA that good cause exists to waive prior notice and opportunity for comment. Under section 504(k)(1) of the USMCA Act (19 U.S.C. 4581), challenges to final antidumping and countervailing duty determinations initiated on or after July 1, 2020 will be subject to the provisions of the USMCA Act, and rules of procedure updating reference to the USMCA Act are thus necessary. Hence, it would be impracticable as well as unnecessary for the Commission to comply with the usual notice of proposed rulemaking and public comment procedure. Therefore, the Commission has determined to issue these technical amendments as final rules under these circumstances.

The Commission has determined that the technical amendments to the rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a “significant regulatory action” for purposes of the Executive order.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute.

The final rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, Aug. 4, 1999).

No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Pubic Law 104-4 (2 U.S.C. 1531-1538), because the final rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and will not significantly or uniquely affect small governments, as defined in 5 U.S.C. 601(5).

These final rules are not “major rules” as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ). Moreover, they are exempt from the reporting requirements of that Act because they contain rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties.

Section 206.1 is amended to remove references to the NAFTA Act and to add references to the USMCA Act.

Section 206.6 is amended to remove references to the NAFTA Act and to add references to the USMCA Act.

Section 206.14(i) is amended to remove references to NAFTA countries and to add references to USMCA countries.

The heading of subpart C of part 206 is amended to replace “NAFTA” with “USMCA.”

Section 206.21 is amended to remove references to the NAFTA Act and to add references to the USMCA Act.

Section 206.23 is amended to remove references to the NAFTA Act and NAFTA countries and to add references to the USMCA Act and USMCA countries.

Section 206.24(c) is amended to remove a reference to NAFTA country and to add a reference to USMCA country.

Section 206.31 is amended to remove references to agreements whose bilateral safeguard provisions have expired, including the United States-Chile Free Trade Agreement Implementation Act, the Dominican Republic-Central America-United States Free Trade Agreement Implementation Act, the NAFTA Act, and the United States-Peru Trade Promotion Agreement Implementation Act.

Section 206.33(a) is amended to remove a reference to Canadian articles; § 206.33(b) is amended to remove references to free trade agreements whose bilateral safeguard provisions have expired; and § 206.33(c) and (d) are amended to remove references to Canada and Mexico.

Section 206.34's introductory text is amended to remove references to Canadian articles, Canada, and Mexico.

Section 206.37 is amended to remove a reference to NAFTA.

The heading of subpart G to part 207 is amended to replace “North American Free Trade Agreement” with “United States-Mexico-Canada Agreement.”

Section 207.90 is amended to remove references to the NAFTA and NAFTA Act and to add references to the USMCA and USMCA Act.

Section 207.91 definitions are amended as follows: “Agreement” is amended to reference applicable agreements, including the USMCA and NAFTA; “Article 1904 Rules” is removed; “Binational Panel Rules” is added and defined as the Rules of Procedure for Article 10.12 published by the United States Trade Representative in 88 FR 10171, February 16, 2023, or, where applicable, Article 1904 of the NAFTA; “Complaint” is amended to reflect Binational Panel Rules; “Counsel” is amended to reflect the definition of counsel under applicable rules; “Date of service” is amended to add reference to electronic service; “Days” is amended to replace “shall be” with “will be”; “Extraordinary challenge committee” is amended to add reference to the USMCA; “ECC Rules” is amended to add reference to the USMCA; “Final determination” is amended to add reference to the USMCA; “Free Trade Area Country” is amended to reference 19 U.S.C. 1516a(f)(9) instead of 19 U.S.C. 1516a(f)(10); “NAFTA Act” is removed; “Notice of appearance” is amended to reflect applicable rules; “Panel review” is amended to add reference to the USMCA; “Relevant FTA Secretary” is removed; “Responsible Secretary” is added and defined as the Secretary of the Section of the Secretariat located in the country in which the final determination under review was made; “Secretariat” is amended to include reference to the USMCA; “Service address” is amended to reflect Commission practice and to allow for electronic service; “USMCA Act” is added and defined as the United States-Mexico-Canada Implementation Act, Public Law 116-113 (January 29, 2020); reference to the definitions set forth in Article 1904 is amended to reference the definitions set forth in the Binational Panel Rules.

Section 207.92 is amended to remove references to the Department of Commerce regulations at 19 CFR part 356 and replace it with reference to “Binational Panel Rules.”

Section 207.93(b)(6) and (c)(3) are amended to add reference to Secretaria de Economia; § 207.93(c)(2)(i) is amended to add reference to the website of the Commission Secretary; § 207.93(c)(2)(ii)(B) is amended to add reference to the USMCA; § 207.93(c)(4)(ii)(A) is amended to replace “NAFTA” with “USMCA”; § 207.93(c)(4)(ii)(B) is amended to replace “Article 1904 Panel “with “Binational Panel”; § 207.93(c)(4)(v) is amended to replace “relevant FTA secretary” with “Responsible Secretary”; § 207.93(c)(5)(i) is amended to replace “NAFTA” with “USMCA”; § 207.93(c)(5)(ii)(A) and (B) are amended to replace “NAFTA” with “USMCA”; and § 207.93(d)(1) is amended to replace “United States-Canada Free Trade Agreement” with “NAFTA”.

Section 207.94 is amended to replace “extraordinary challenge committee” with the shorthand “ECC.”

For the reasons stated in the preamble, the United States International Trade Commission amends 19 CFR parts 206 and 207 as follows:

I. Approvals

FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during July, August, and September 2022, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOI Summaries) under the Freedom of Information Act (FOIA). These public documents may be seen in the office of the Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, between 9 a.m. and 4 p.m., Monday through Friday, 240-402-7500. Persons with access to the internet may obtain these documents at the CVM FOIA Electronic Reading Room: https://www.fda.gov/about-fda/center-veterinary-medicine/cvm-foia-electronic-reading-room. Marketing exclusivity and patent information may be accessed in FDA's publication, Approved Animal Drug Products Online (Green Book) at: https://www.fda.gov/animal-veterinary/products/approved-animal-drug-products-green-book.

FDA has verified the website addresses as of the date this document publishes in the Federal Register , but websites are subject to change over time.

Also, FDA is amending the animal drug regulations to reflect approval of supplemental applications, as listed in table 2, to change the marketing status of dosage form antimicrobial animal drug products from over-the-counter (OTC) to by veterinary prescription (Rx). These applications were submitted in voluntary compliance with the goals of the FDA Center for Veterinary Medicine's (CVM's) Judicious Use Initiative as identified by guidance for industry #263, “Recommendations for Sponsors of Medically Important Antimicrobial Drugs Approved for Use in Animals to Voluntarily Bring Under Veterinary Oversight All Products That Continue to be Available Over-the-Counter,” June 11, 2021 ( https://www.fda.gov/media/130610/download ).

On December 18, 2019, the National Labor Relations Board published a final rule amending various aspects of its representation case procedures. (84 FR 69524, Dec. 18, 2019.) The Board published the Final Rule as a procedural rule “exempt from notice and public comment, pursuant to 5 U.S.C. 553(b)(3)(A), as a rule of `agency organization, procedure, or practice.' ” 84 FR at 69587. On March 30, 2020, the Board delayed the effective date of the final rule to May 31, 2020. (85 FR 17500, Mar. 30, 2020.)

On May 30, 2020, the United States District Court for the District of Columbia issued an order in AFL-CIO v. NLRB, Civ. No. 20-cv-0675, vacating five provisions of the Final Rule and enjoining their implementation. 466 F. Supp. 3d 68 (D.D.C. 2020). The District Court concluded that each of the five provisions was substantive in nature, not procedural, and therefore required notice and comment rulemaking prior to promulgation under the Administrative Procedure Act. Id. at 92.

On January 17, 2023, the United States Court of Appeals for the District of Columbia Circuit issued a decision and order affirming the District Court as to three of the five provisions. AFL-CIO v. NLRB, 57 F.4th 1023, 2023 U.S. App. LEXIS 990 (D.C. Cir. Jan. 17, 2023). The three provisions that remain vacated are: (1) amendments to 29 CFR 102.62(d) and 102.67(l) giving employers up to 5 business days to furnish the voter list following the direction of election;  1 (2) an amendment to 29 CFR 102.69(a)(5) limiting a party's selection of election observers to individuals who are current members of the voting unit whenever possible;  2 and (3) an amendment to 29 CFR 102.69(b), (c), and (h) precluding Regional Directors from issuing certifications following elections if a request for review is pending or before the time has passed during which a request for review could be filed. 3

The Court of Appeals also found that a fourth amendment, located at 29 CFR 102.67(c), (h), and (i)(3), 4 imposing an automatic impoundment of ballots under certain circumstances when a petition for review was pending with the Board, was contrary to Section 3(b) of the National Labor Relations Act. 57 F.4th 1023, 2023 U.S. App. LEXIS 990, at *59-*64. It accordingly vacated that portion of the Final Rule. Id. at *65. 5

The Board is promulgating this rule to remove references in the regulations to the four provisions set aside and vacated by the Court of Appeals' decision and to revert the language of the regulations amended by the 2019 Final Rule to that which existed prior to the Final Rule as necessary to comply with the Court's decision. This rule is not subject to the requirement to provide notice and an opportunity for public comments because it falls under the good cause exception at 5 U.S.C. 553(b)(B). The good cause exception is satisfied when notice and comment is “impracticable, unnecessary, or contrary to the public interest.” Id. The four provisions of the 2019 Final Rule identified above have already been vacated by a court of law and no party has sought further review. This rule is simply an administrative step that reverts the language of the relevant regulations to their pre-2019 versions, to reflect the court order vacating those four provisions of the 2019 Final Rule. 6

Additionally, because this rule implements a court order, the Board has good cause to waive the 30-day effective date under 5 U.S.C. 553(d). It would be contrary to the public interest to fail to keep the public informed of the accurate state of the Board's rules and regulations, especially now that these provisions have been ruled upon by the D.C. Circuit. See Action on Smoking & Health v. Civil Aeronautics Bd., 713 F.2d 795, 797 (D.C. Cir. 1983) (judgment of court vacating rule “had the effect of reinstating the rules previously in force”); Mobil Oil Corp. v. EPA, 35 F.3d 579, 584 (D.C. Cir. 1994) (same); see also Administrative Conference of the United States, Improving Notice of Regulatory Changes, https://www.acus.gov/recommendation/improving-notice-regulatory-changes (June 16, 2022); 5 U.S.C. 552(a)(1)(D), (E) (reading-room requirements under FOIA). In addition, it is unnecessary to take public comment on provisions that the D.C. Circuit has vacated.

In 2019, the Board issued a final rule  7 amending certain provisions of its representation-case rules, which had been extensively modified in a final rule enacted in 2014. 8 It did so without first issuing a notice of proposed rulemaking because it deemed the amendments rules of agency procedure exempt from notice-and-comment requirements under 5 U.S.C. 553(b)(3)(A). The AFL-CIO challenged the 2019 Rule in Federal District Court for the District of Columbia on several grounds, including that five provisions of the 2019 Rule were not procedural and therefore not exempt from notice-and-comment rulemaking. The district court agreed with the AFL-CIO and vacated all five. 9 Recently, a divided Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) reversed in part, holding that two of the five are procedural but three are not. 10 “Those three provisions,” said the court, “must remain vacated unless and until the Board repromulgates them with notice and comment.”  11 In dissent, Judge Rao said that the majority had applied an “obsolete legal standard” and that “[u]nder the correct standard,” all five “are classic procedural rules.”  12

My colleagues have decided not to ask the Solicitor General to file a petition for certiorari with the Supreme Court. I dissented from their decision. The court's decision turned on its interpretation of what the controlling legal test should be for determining when rulemaking is procedural and therefore exempt from notice-and-comment requirements under the Administrative Procedure Act. Given that the D.C. Circuit is often the venue for cases involving federal rulemaking, all federal agencies that engage in rulemaking would be well served to have the Supreme Court decide whether the standard applied by the court in this matter was the appropriate test. Accordingly, unlike my colleagues, I consider this to be “an important question of federal law that has not been, but should be, settled by” the Supreme Court. 13

That leaves the other possibility the court pointed out: repromulgating the three vacated provisions of the 2019 Rule in a notice of proposed rulemaking. But from my colleagues' rule rescinding those provisions, 14 you would not know that this is even an option. “This rule,” my colleagues say, “is simply an administrative step that reverts the language of the relevant regulations to reflect the court order vacating” them, adding that their rulemaking is “necessary to comply with the Court's decision.” It is clear, however, that rescinding the three provisions is not “necessary to comply with the Court's decision.” As the D.C. Circuit made clear, there is another option: repromulgating the three provisions in a notice of proposed rulemaking and inviting public comment. The Board should pursue that option. Accordingly, I dissent.

The three provisions at issue are these: (1) a rule providing that the employer must file and serve a list of eligible voters within 5 business days of the regional director's approval of an election agreement or issuance of a decision and direction of election (the “voter-list rule”); (2) a rule providing that, in their choice of individuals to serve as election observers, the parties shall select, whenever possible, current members of the voting unit, and when this is not possible, a party should select a current nonsupervisory employee (the “election-observers rule”); and (3) a rule providing that the regional director will only issue a certification of the results of an election—including, where appropriate, a certification of representative—after the deadline for filing a request for review of a decision and direction of election has passed without such a request being filed, and if a request for review is timely filed, the certification will issue only after the Board has ruled on that request (the “certification-timing rule”).

The voter-list rule and the certification-timing rule amended corresponding provisions of the 2014 Rule, and the Board set forth persuasive reasons for doing so. The election-observers rule did not amend a provision of the 2014 Rule but rather was promulgated to bring transparency and uniformity to an area of Board law that was “riddled with inconsistencies.” 84 FR 69552. I believe, subject to comments, that each of these provisions in the 2019 Rule should be preserved. In my view, therefore, the Board should propose readopting them in a notice of proposed rulemaking and invite public comment. 15

The voter-list rule: Prior to the 2014 Rule, an employer's duty to furnish a list of eligible voters was governed by Excelsior Underwear, Inc., 156 NLRB 1236 (1966). Under that precedent, an employer was required to file with the regional director a list of the names and addresses of employees eligible to vote in an upcoming representation election within 7 calendar days after the regional director approved an election agreement or issued a decision and direction of election. Id. at 1239-1240. The 2014 Rule shrank 7 calendar days to 2 business days and added a number of other requirements, including by requiring the employer to furnish employees' personal email addresses and home and cellphone numbers. The 2019 Rule left most of those additional requirements intact, but it increased the amount of time the employer has to furnish the voter list from 2 business days to 5 business days.

The Board's explanation of its reasons for making this change was thorough and persuasive.

First, the main reason the 2014 Rule cut the time to 2 business days—namely, to speed the election—was no longer a relevant consideration. Under another provision of the 2019 Rule—one the D.C. Circuit agreed was procedural and therefore did not require notice and comment—regional directors will not normally schedule an election before the 20th business day following issuance of the decision and direction of election. Accordingly, directed elections will not take place any sooner with the 2-day deadline imposed by the 2014 Rule than with a 5-day deadline. And while this rationale is only pertinent to directed elections, applying the same 5-day deadline for all elections, including those conducted pursuant to stipulated election agreements, promotes uniformity.

Second, the Board's 2019 Rule stated several reasons why allowing employers 5 business days to furnish the voter list is superior as a matter of policy to allotting just 2 business days. To begin with, although technological changes since Excelsior Underwear make it easier for some employers to compile the necessary information rapidly, this is not the case for all employers. The information may not be computerized, or it may be kept in multiple locations. Assembling the voter list can be challenging for large or decentralized employers, and it may pose special problems for employers in the construction industry, where the Board's voter-eligibility formula is based on the fact that employment in that industry is often sporadic. 16 Moreover, one of the reasons stated in the 2014 Rule for the 2-day deadline raised questions of transparency and fairness. There, the Board justified the 2-day limit partly on the basis that employers may begin assembling the voter list before the regional director approves the election agreement or issues the decision and direction of election. The Board criticized this rationale in the 2019 Rule, and justly so. No duty to assemble the voter list attaches until the election agreement is approved or the decision and direction issues. “It is anything but transparent,” the Board observed, “to state that a procedural requirement attaches at a certain point yet defend a truncated timeline for meeting that requirement by opining that employers have ample time to comply with the requirement before it has even attached to begin with.” 84 FR 69532. I agree.

Finally, giving employers three more days to compile the voter list reduces the potential for inaccurate lists. And because an unacceptably incomplete list is grounds to set aside the results of an election, reducing the potential for inaccuracy also reduces litigation and resulting costs for the parties and the Agency.

For these reasons and those set forth more fully in the 2019 Rule, the Board should repromulgate the voter-list rule in a notice of proposed rulemaking.

The election-observers rule: The Board should do likewise with the election-observers rule.

Beginning in 1946, the Board's Rules and Regulations broadly provided that “[a]ny party may be represented by observers of [its] own selection, subject to such limitations as the Regional Director may prescribe.” 11 FR 177A-602-612 (Sept. 11, 1946). Thereafter, however, the Board imposed certain limitations decisionally. Employers may not use individuals closely identified with management. 17 Unions may not use supervisors, 18 and they may not use nonemployee union officials in decertification elections. 19 The Board encouraged the use of nonsupervisory employees, 20 and a past edition of its Casehandling Manual even mandated this practice, declaring that absent written agreement, the parties must use nonsupervisory employees of the employer as election observers. 21 Moreover, even though the standard wording of stipulated election agreements provides for the parties to station equal numbers of “nonsupervisory-employee observers” at the polls, Board precedent since 1993 had held that it was not a material breach of the agreement for the union to use a nonemployee. 22

Because Board law concerning the selection of observers was “riddled with inconsistencies,” 84 FR 69552, the Board included a new election-observers provision in the 2019 Rule. The rule provided that any party may be represented by observers of its own selection; that whenever possible, a party “shall” select a current member of the voting unit; and that, when no such individual is available, a party “should” select a current nonsupervisory employee. To effectively overrule precedent permitting unions to use their agents (who are employees of the union ) as observers, the Board also clarified that (a) the “nonsupervisory-employee” wording of the standard election agreement refers to nonsupervisory employees of the employer that is party to the election, and (b) any use of an observer not employed by that employer is a material breach of the election agreement.

The Board justified the election-observers rule on several grounds. It promotes transparency by codifying the historical preference for using nonsupervisory employees as observers. It further promotes transparency by making clear that this preference applies to any party, not just to employers as certain decisions had suggested. It promotes uniformity by setting forth a clear framework under which all parties select their observers. And it promotes efficiency by eliminating wasteful litigation over the identity of election observers.

These are sound justifications for a sound rule. Rather than rescind it as my colleagues have done, the better course would be for the Board to repromulgate it in a notice of proposed rulemaking and invite public comment.

The certification-timing rule: Before the 2014 Rule issued, regional directors issued certifications of election results—including, where appropriate, certifications of representative—only in limited circumstances. Under the 2014 Rule, they were effectively required to do so in almost all cases. Moreover, they were required to do so regardless of whether a request for review of the decision and direction of election remained pending or the time within which to file a request for review had not yet elapsed. As a result, a union would be certified as the representative of a bargaining unit, even though a pending or yet-to-be-filed request for review could result in the certification being vacated. This could have untoward consequences, especially for employers, since the duty to bargain attaches when the union is certified. Thus, under the 2014 Rule, an employer could be found to have violated Section 8(a)(5) by refusing to bargain, at a time when its pending or to-be-filed request for review could yet result in the union's representative status being undone. 23

To fix this state of affairs, the 2019 Rule specified that regional directors will only issue certifications after the time for filing a request for review has passed without any request being filed, and that, if a request for review is filed, certification will issue only after the Board rules on the request. The Board provided several justifications for this certification-timing rule. It “advances transparency by eliminating confusion and complications occasioned by certifications that issue prior to the Board's ruling on a request for review.” 84 FR 69554. It promotes finality, since the duty to bargain will attach only after the Board has ruled on a request for review or the time for filing one has passed. And since the Board's ruling on a request for review may nullify a previously issued certification, waiting to issue the certification until after the Board rules “is a far more orderly way of proceeding” and thus promotes efficiency. 84 FR 69555.

For these reasons and all the reasons stated more fully in the 2019 Rule, the certification-timing rule makes eminent sense—far better sense than the 2014-Rule framework it replaced. I would not rescind it as my colleagues do, but rather repromulgate it—and with it, the voter-list and election-observers rules—for notice-and-comment rulemaking.

For the reasons stated in the preamble, the National Labor Relations Board amends 29 CFR part 102 as follows:

On December 18, 2019, the National Labor Relations Board published a final rule amending various aspects of its representation-case procedures. (84 FR 69524, Dec. 18, 2019.) The Board published the Final Rule as “a procedural rule which is exempt from notice and public comment, pursuant to 5 U.S.C. 553(b)(3)(A), as a rule of `agency organization, procedure, or practice.' ” 84 FR at 69587. On March 30, 2020, the Board delayed the effective date of the final rule to May 31, 2020, upon request of the United States District Court for the District of Columbia and to “facilitate the resolution of the legal challenges that have been filed with respect to the rule.” (85 FR 17500, Mar. 30, 2020.)

On May 30, 2020, the United States District Court for the District of Columbia issued an order in AFL-CIO v. NLRB, Civ. No. 20-cv-0675, vacating five provisions of the Final Rule and enjoining their implementation. 466 F. Supp. 3d 68 (D.D.C. 2020). The District Court concluded that each of the five provisions was substantive in nature, not procedural, and that the Board therefore violated the Administrative Procedure Act by failing to use notice and comment rulemaking. Id. at 92.

On January 17, 2023, the United States Court of Appeals for the District of Columbia Circuit issued a decision and order reversing the District Court as to two of the five provisions, agreeing with the Board that those provisions were procedural in nature and not subject to notice and comment rulemaking. AFL-CIO v. NLRB, 57 F.4th 1023, (D.C. Cir., 2023). The two provisions are: (1) an amendment to 29 CFR 102.64(a) allowing the parties to litigate disputes over unit scope and voter eligibility prior to the election;  1 and (2) an amendment to 29 CFR 102.67(b) instructing Regional Directors not to schedule elections before the 20th business day after the date of the direction of election. 2 The D.C. Circuit remanded the case to the District Court to consider two counts in the complaint that challenge these two provisions and that remain viable in light of its decision.

Due to the District Court's injunction, these two provisions have never taken effect. The time for filing a petition for rehearing with the D.C. Circuit under Federal Rule of Appellate Procedure 40 has passed, and, once the District of Columbia Circuit's mandate issues on or about March 10, 2023, the District Court's injunction will be lifted. At that point, the two previously enjoined provisions will go into effect pursuant to the original May 31, 2020 effective date. The District Court will also begin its consideration of the challenges to the two provisions remaining for decision.

The Board has decided to stay the effective date of the two provisions to September 10, 2023, six months from the expected issuance of the District of Columbia Circuit's mandate. The Board has determined that staying those provisions until September 10, 2023 would accommodate the pending legal challenges before the District Court. 5 U.S.C. 705. Moreover, a stay is necessary and appropriate because the Board is currently considering whether to revise or repeal the Final Rule, including potential revisions to these two provisions. Delayed implementation of these provisions will permit further consideration by the Board of the merits of the Final Rule and will avoid the possible waste of administrative resources and public uncertainty if the provisions were to go into effect only for a short period of time before being impacted by forthcoming revisions. The stay of the two provisions' effective date merely extends the status quo.

We disagree with the dissenting position of Member Kaplan, who argues a stay in the effective date of the two provisions is unwarranted. His position is based on his view of the policy merits of the provisions and the legal merits of the pending challenge to them in the District Court. At this juncture, however, consideration of the provisions' merits by the Board is premature. Resolution of the legal challenge to the provisions, in turn, is a matter for the District Court. As explained, a stay of the effective date of the provisions facilitates both processes, by preserving the status quo.

This stay is published as a final rule. The Board considers this rule to be a procedural rule that is exempt from notice and public comment, pursuant to 5 U.S.C. 553(b)(3)(A), because it concerns a rule of “agency organization, procedure, or practice.” AFL-CIO v. NLRB, 57 F.4th at 1035.

In 2019, the Board issued a final rule  1 amending certain provisions of its representation-case rules, which had been extensively modified in a final rule enacted in 2014. 2 It did so without first issuing a notice of proposed rulemaking because it viewed the amendments as pertaining to “rules of agency . . . procedure,” and such “procedural rules” are exempt from notice-and-comment requirements under 5 U.S.C. 553(b)(3)(A). The AFL-CIO challenged the 2019 Rule in the United States District Court for the District of Columbia on several grounds, including that five provisions of the 2019 Rule were not procedural and therefore not exempt from notice-and-comment rulemaking. The district court agreed with the AFL-CIO and vacated all five. 3 Recently, a divided Court of Appeals for the District of Columbia Circuit (“D.C. Circuit” or “court of appeals”) reversed in part, holding that two of the five are procedural but three are not. 4 “Those three provisions,” said the court, “must remain vacated unless and until the Board repromulgates them with notice and comment.”  5 In dissent, Judge Rao said that the majority had applied an “obsolete legal standard” and that “[u]nder the correct standard,” all five “are classic procedural rules.”  6

In a separate final rule issued today, my colleagues rescind the three provisions of the 2019 Rule that the D.C. Circuit held to be not procedural. As I explain in my dissent to that rule, I would have asked the Solicitor General to file a petition for certiorari from the D.C. Circuit's decision because the controlling legal test for determining when rulemaking is procedural and therefore exempt from notice-and-comment requirements under the Administrative Procedure Act presents “an important question of federal law that has not been, but should be, settled by” the Supreme Court. 7 But since my colleagues did not join me in that regard, I would pursue the option the D.C. Circuit suggested and repromulgate the three provisions the court held not procedural for notice-and-comment rulemaking. 8 I would do so because I believe, subject to comments, that those three provisions are superior to the rules that my colleagues have snapped back into place.

In the instant final rule, the majority addresses the two provisions of the 2019 Rule that the D.C. Circuit held to be procedural and therefore properly implemented without notice and comment. The AFL-CIO's challenge to those two provisions was not limited to its claim that they are not procedural, but the district court, having vacated them (erroneously) as not procedural, did not address the AFL-CIO's remaining contentions. Accordingly, the D.C. Circuit remanded the two provisions to the district court to address those contentions. Meanwhile, because the D.C. Circuit has held that those two provisions are procedural and therefore were properly enacted without notice and comment, they will take effect when the court of appeals issues its mandate. To prevent that from happening, my colleagues issue this rule to stay the effective date of the two provisions to September 10, 2023.

I disagree with their decision to do so. My colleagues state two reasons for issuing this stay: to give the district court time to consider the AFL-CIO's remaining arguments on remand, and to give themselves time to decide whether to revise or repeal the 2019 Rule, including the two provisions that have been sent back to the district court. I will not take this occasion to mount a comprehensive defense of the 2019 Rule. There is not time for me to do so; the court of appeals will issue its mandate on March 10, and my colleagues are determined to issue this rule before that happens. I will, however, explain why the two provisions of the 2019 Rule at issue here should be allowed to take effect when the court issues its mandate.

The two provisions are these: (1) a rule providing that unit scope and voter eligibility (including supervisory status) normally will be litigated and resolved by the regional director before he or she directs the election (the “unit-scope-and-eligibility rule”), and (2) a rule providing that normally, the regional director will not schedule an election before the 20th business day after the date of the direction of election (the “20-days rule”). As the Board said in the 2019 Rule, these two provisions go hand in hand: the regional director will resolve disputes over unit scope and voter eligibility before directing the election, and the 20-days rule will give the Board time to act on a request for review of the regional director's decision if one is filed. They should be allowed to take effect when mandate issues for two reasons. They promote important interests that the 2014 Rule subordinated to speed. And there is no good reason to wait for the district court to rule on the AFL-CIO's remaining arguments for vacating these provisions because those arguments are meritless.

The rules at issue promote important interests.

Under the 2014 Rule, regional directors were instructed to schedule elections on “the earliest date practicable,” and litigation of disputes over unit scope and voter eligibility, including supervisory status, were largely postponed until after the election. Speed— i.e., shortening the time between the filing of the representation petition and the election—was prioritized over other interests. In the 2019 Rule, the Board acknowledged that speed is an important interest and that some of the changes it was making to the Board's representation-case procedures would unavoidably result in some delay between the filing of the petition and the election. But the Board made clear that none of the changes had a purpose of delay but were being made to serve other important interests.

Specifically as to the provisions of the 2019 Rule at issue here, I cannot improve on the concise explanation the Board furnished there of the interests those rules serve. The italics are mine.

The AFL-CIO's remaining arguments are meritless.

The other reason the majority gives for staying of the unit-scope-and-eligibility rule and the 20-days rule is to provide time for the district court to rule on remand concerning the AFL-CIO's remaining grounds of attack on those rules. The AFL-CIO contends that both provisions must be vacated as arbitrary and capricious, and that the 20-days rule must additionally be vacated as contrary to Section 3(b) of the Act. There is no good reason to wait for the district court to dispose of these contentions because they will not succeed.

Regarding the AFL-CIO's arbitrary-and-capricious attack, one need look no further than the D.C. Circuit's decision to see that it will fail. The AFL-CIO had also argued before the district court that the 2019 Rule as a whole was arbitrary and capricious. Affirming the district court's dismissal of that argument, the court of appeals wrote as follows:

In other words, in explaining why the district court correctly rejected the AFL-CIO's contention that the 2019 Rule as a whole was arbitrary and capricious, the D.C. Circuit singled out the very provisions that are now back before the district court to determine whether they are arbitrary and capricious. The court of appeals could not have sent a clearer signal to the lower court that any other resolution besides dismissal is out of the question.

The AFL-CIO's claim that the 20-days rule is also unlawful as contrary to Section 3(b) of the Act also fails. Section 3(b) relevantly provides:

In sum, my colleagues have failed to provide a persuasive reason for staying the effective date of the unit-scope-and-eligibility and 20-days rules. I favor allowing these rules to take effect just as soon as the D.C. Circuit issues mandate. Accordingly, from the majority's final rule, I dissent.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of The Port Sector Upper Mississippi River DHS Department of Homeland Security FR Federal Register MM Mile marker NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this temporary safety zone immediately to protect personnel, vessels, and the marine environment from potential hazards created by the electrical work and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the ongoing construction work.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with electrical line work will be a safety concern for anyone operating or transiting within the Missouri River from MM 175.5-176.5. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while electrical line work is being conducted.

Electrical line work will be occurring near MM 175.5-176.5 beginning March 13, 2023. The safety zone is designed to protect waterway users until work is complete.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of USCG Sector Upper Mississippi River. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through USCG Sector Upper Mississippi River at 314-269-2332. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement, as well as reductions in the size of the safety zone as conditions improve, through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Safety Marine Information Broadcast (SMIB), as appropriate.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on a safety zone located on the Missouri River at MM 175.5-176.5, near Jefferson City, MO. The Safety Zone is expected to be active only during the hours of 9 a.m. through 4 p.m., or only when work is being conducted, every day until March 24, 2023.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator because the zone will be enforced only when work is being conducted.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, 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.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing the width of the Upper Mississippi River at MM 139.5-139.2. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

The EPA is removing an unrelated amendatory instruction in its final rule, FRL-10209-01-OAR, published February 13, 2023 (88 FR 9336). Amendatory instruction 20 is corrected by removing instruction “20a.” and designating instruction “20b.” as the full instruction 20.

In FR Doc. 2023-02407, appearing on page 9336 in the Federal Register of Monday, February 13, 2023 (88 FR 9336), the following correction is made:

1. On page 9384, in the second column, amendatory instruction 20 is correctly revised to read as follows:

“20. Section 52.2275 is amended by adding paragraph (o) to read as follows:”.

The EPA is taking this final action without providing an opportunity for public comment, based on the good cause exception in section 553(b)(3)(B) of the Administrative Procedure Act (APA). The Agency has determined that seeking public comment is impracticable, unnecessary, or contrary to the public interest. The deadline for state plan submission has already passed, which necessitates an extension, and it is important that the EPA grant that extension as soon as possible to avoid confusion and uncertainty among states and regulated industry as to what their obligations are.

On July 8, 2019, the EPA promulgated the Affordable Clean Energy (ACE) rule, under CAA section 111(d) (84 FR 32520, July 8, 2019). The ACE rule is an emissions guideline that directs states to develop plans that establish standards of performance for carbon dioxide (CO 2 ) emissions from existing coal-fired electricity generating units. The ACE rule repealed and replaced the Clean Power Plan, which the EPA had promulgated in 2015 (80 FR 64662, October 23, 2015).

Under CAA section 111(d)(1), the standards of performance in such a state plan are required to achieve an amount of emission reduction that the EPA determines can be achieved through application by the sources of what the EPA determines to be the “best system of emission reduction . . . adequately demonstrated” (BSER) for reducing emissions of the pollutant in question from the sources in question. CAA section 111(a)(1). The ACE rule required states to submit plans to the EPA that establish standards of performance within three years of the date that the rule was published, that is, by July 8, 2022 (40 CFR 60.5745a).

Numerous state and municipal governments, power utilities, renewable energy trade associations, public health and environmental advocacy groups, and other parties filed petitions to review the ACE rule before the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit).

On January 19, 2021, following briefing and oral argument, the D.C. Circuit issued a decision vacating the ACE rule. American Lung Ass'n v. EPA, 985 F.3d 914 (D.C. Cir. 2021). The court based the vacatur on its holding that the ACE rule's underlying legal interpretation, which was that CAA section 111(a)(1) and (d)(1) limited the BSER to control measures that can be applied at and to the source to reduce emissions at the source, is incorrect. Id. at 944-51. In light of this holding, the court did not find it necessary to address, and did not address, other legal and factual issues that petitioners raised concerning the ACE rule. The court issued a partial mandate concerning this part of its decision on March 5, 2021. American Lung Ass'n v. EPA, No. 19-1140, Order, Doc. Id. No. 1888579 (D.C. Cir. March 5, 2021).

On October 2021, the U.S. Supreme Court granted petitions for certiorari filed by several parties to the case, and, on June 30, 2022, issued a decision reversing the D.C. Circuit on other grounds. West Virginia v. EPA, 142 S.Ct. 2587 (2022). Specifically, the Court reversed the D.C. Circuit's vacatur of the ACE rule's repeal of the Clean Power Plan, holding that the Clean Power Plan was invalid under the major questions doctrine. Id. at 2615-16.

On October 27, 2022, the D.C. Circuit responded to the Supreme Court decision by issuing an order that, in relevant part, withdrew the above-noted mandate, thereby reinstating the ACE rule. Because the EPA had informed the court that it is presently undertaking a rulemaking process to replace the ACE rule with a new rule governing greenhouse gas emissions from existing fossil-fuel-fired power plants, the court placed the case in abeyance pending completion of that rulemaking, rather than proceed to consider the remaining factual and legal issues raised by petitioners with respect to the ACE rule.

Thus, the ACE rule was vacated for the last 536 days of the three-year period for state plan submittal, beginning on January 19, 2021, and extending through July 8, 2022. The rule remained vacated through October 26, 2022, and then was reinstated on October 27, 2022. Because the ACE rule has been reinstated, states are once again under an obligation to submit the state plans required under the rule. However, because the rule's July 8, 2022, deadline has passed, and because states had no reason to continue to work on their plans during the period when the ACE rule was vacated, it is necessary to extend the deadline for state plan submittal.

Accordingly, in this action, the EPA is extending the date of state plan submittal by 536 days from the October 27, 2022, reinstatement of the ACE rule. Thus, the ACE rule state plans are now due on April 15, 2024. As just noted, this 536-day period is the length of time that the ACE rule was vacated from the January 19, 2021, D.C. Circuit decision in American Lung Ass'n v. EPA to the rule's July 8, 2022, state plan submittal due date.

The EPA is taking this final action without providing an opportunity for public comment, based on the good cause exception in section 553(b)(3)(B) of the Administrative Procedure Act (APA). The Agency has determined that seeking public comment is impracticable, unnecessary, or contrary to the public interest. The deadline for state plan submission has already passed, which necessitates an extension, and it is important that the EPA grant that extension as soon as possible to avoid confusion and uncertainty among states and regulated industry as to what their obligations are. In addition, granting the extension as soon as possible is consistent with the public's interest in timely implementation of public health and environmental protections. See generally Wisconsin v. EPA, 933 F.3d 303, 312-20 (D.C. Cir. 2019) (invalidating EPA rule for granting upwind states a period of time that exceeded statutory limitations to reduce air pollutants that contribute significantly to air quality problems in downwind states). Although the ACE rule would achieve little emission reduction (85 FR 32561 & table 3) the extended deadline provides certainty to the public as to the timeline for submittal and implementation of state plans to achieve those reductions and preserves the original, three-year period for submittal as of the date of reinstatement of the rule.

Moreover, an extension equal to the number of days from when the ACE rule was vacated to the rule's submittal date is logical and is consistent with recent actions in which the D.C. Circuit granted a compliance date extension for a rule that had been stayed or vacated for a period of time. Michigan v. EPA, No. 98-1497, Order, Doc. Id. No. 540209 (D.C. Cir. Aug. 30, 2000) (extending the date for sources to implement state implementation plan (SIP) revisions required under EPA's NO X SIP call rule by the number of days the D.C. Circuit had stayed the rule, so that sources will have the same number of days for developing the SIP revisions as provided in the original rule); “Rulemaking To Amend Dates in Federal Implementation Plans Addressing Interstate Transport of Ozone and Fine Particulate Matter: Interim final rule with request for comment,” 79 FR 71663 (December 3, 2014) (amending the Code of Federal Regulations to correctly reflect the deadlines for sources to comply with the Cross-State Air Pollution Rule, which deadlines were revised by the D.C. Circuit when it lifted the previous stay of the rule and, accordingly, delayed the compliance deadlines by three years).

For the same reasons, the EPA is also making today's action effective immediately upon publication in the Federal Register . Section 553(d) of the APA provides that rules generally may not take effect until 30 days after they are published in the Federal Register . The purpose of this APA provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. Fed. Commc'n Comm'n, 78 F.3d 620, 630 (D.C. Cir. 1996); see also United States v. Gavrilovic, 551 F.2d 1099, 1104 (8th Cir. 1977) (quoting legislative history). However, when an agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Thus, APA section 553(d) allows an effective date less than 30 days after publication for any rule that “grants or recognizes an exemption or relieves a restriction” (see 5 U.S.C. 553(d)(1)). An accelerated effective date may also be appropriate for “good cause” pursuant to APA section 553(d)(3) where an agency can “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.” Gavrilovic, 551 F.2d at 1105. The EPA has determined that the state plan submittal date extension is effective upon publication because it relieves a restriction, thereby providing obligated parties with additional time to comply with the ACE rule's requirements. There is additionally good cause for immediate implementation of these requirements to avoid confusion and uncertainty among states and regulated industry regarding the timing of their compliance obligations.

It should be noted that the EPA has initiated a rulemaking process to repeal the ACE rule and replace it with another emissions guideline under CAA section 111(d) that would direct states to develop plans that establish standards of performance for CO 2 emissions from existing coal-fired electricity generating units. The EPA expects to propose this repeal and replacement rulemaking in the spring of 2023. If finalized, states would no longer be required to submit state plans to meet the requirements of ACE rule, and instead would be required to submit state plans to meet the requirements of the replacement emissions guideline, on the schedule established by that guideline.

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

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

This action does not impose an information collection burden under the PRA. In this action, the EPA is extending the date of state plan submittal by the time that was lost due to the ACE rule being vacated. Any burden for information collection requests is consistent with the original ACE rule.

This action is not subject to the RFA. The RFA applies only to rules subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA), 5 U.S.C. 553, or any other statute a “rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of this title, or any other law. . . .” 5 U.S.C. 601(2). The EPA is not publishing a notice of proposed rulemaking for this rule because it is invoking the APA “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments.

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

This action does not have tribal implications as specified in Executive Order 13175. In this action, the EPA is extending the date of state plan submittal by the time that was lost due to the ACE rule being vacated. Thus, Executive Order 13175 does not apply to this action.

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

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

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.

The EPA believes that this type of action does not concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples. In this action, the EPA is extending the date of state plan submittal by the time that was lost due to the ACE rule being vacated.

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

The statutory authority for this action is provided by sections 111, 301, and 302 of the CAA as amended (42 U.S.C. 7411, 7601, 7602). This action is also subject to section 553(b)(3)(B) of the APA (5 U.S.C. 553(b)(3)(B).

For the reasons set forth in the preamble, 40 CFR chapter I is amended as follows:

Throughout this document, whenever “we,” “us,” or “our” is used, we mean the EPA. The information in this document is organized as follows:

The purpose of this final action is to announce and promulgate the EPA's area redesignation of a portion of the Canton, Ohio area from “unclassifiable/attainment” to “nonattainment” for the 2008 Pb NAAQS. The EPA originally designated Stark County, Ohio, including the Canton area, along with the remaining areas of Ohio, as unclassifiable/attainment on November 8, 2011. 1

After originally designating the Canton, Ohio area unclassifiable/attainment on November 8, 2011, the EPA determined in 2021 that quality-assured, certified monitoring data collected during 2017-2020 at the Ohio EPA ambient air monitoring site located at 3150 Georgetown Road NE in Canton, Ohio (Republic Steel ambient air monitoring site), showed that the area was violating the Pb NAAQS. Consistent with CAA section 107(d)(3)(A), the EPA notified the Governor of Ohio in a letter dated April 26, 2022, of an intended redesignation of a portion of the Canton, Ohio area as “nonattainment” for the 2008 Pb NAAQS. The EPA published a Notice of Availability (NOA) for this action in the Federal Register shortly thereafter, on May 3, 2022. 2

Upon publication of the NOA in the Federal Register , a 30-day public comment period began. This comment period closed on June 2, 2022, and yielded three public comments, all of which proved supportive of the EPA's redesignation decision and intended nonattainment area boundary.

On August 22, 2022, Ohio EPA submitted their recommendations and response to the EPA's April 26, 2022, notification letter concurring with the EPA's boundaries for the intended nonattainment area in the Canton, Ohio area. Ohio EPA, in their response to the EPA's notification, acknowledged pending enforcement actions and a July 2, 2021, Consent Order for Preliminary Injunction in the Stark County Court of Common Pleas, which mandated that the Republic Steel facility, which is located within the bounds of the area to be redesignated, undertake certain actions to reduce Pb emissions. Since Ohio EPA's response concurred with the EPA's intended boundaries of the area to be redesignated, the EPA has not modified those boundaries and is finalizing its redesignation of the identified portion of the Canton area within Stark County, Ohio as “nonattainment.”

The issuance of this final rule will require the state of Ohio to undertake certain planning requirements to reduce Pb concentrations within this newly redesignated nonattainment area, including, but not limited to, the requirement to submit within 18 months of redesignation, a revision to the Ohio state implementation plan (SIP) that provides for attainment of the 2008 Pb NAAQS as expeditiously as practicable, but no later than 5 years after the effective date of redesignation to nonattainment.

Under section 109 of the Act, the EPA has established primary and secondary NAAQS for certain pervasive air pollutants (referred to as “criteria pollutants”) and conducts periodic reviews of the NAAQS to determine whether they should be revised or whether new NAAQS should be established. The primary NAAQS represent ambient air quality standards, the attainment and maintenance of which the EPA has determined, including a margin of safety, are requisite to protect the public health. The secondary NAAQS represent ambient air quality standards, the attainment and maintenance of which the EPA has determined are requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.

Under the CAA, the EPA must establish NAAQS for criteria pollutants, including Pb. Lead is generally emitted in the form of particles that are deposited in water, soil, and dust. People may be exposed to Pb by inhaling it or by ingesting Pb-contaminated food, water, soil, or dust. Once in the body, Pb is quickly absorbed into the bloodstream and can result in a broad range of adverse health effects including damage to the central nervous system, cardiovascular function, kidneys, immune system, and red blood cells. Children are particularly vulnerable to Pb exposure, in part because they are more likely to ingest Pb and in part because their still-developing bodies are more sensitive to the effects of Pb. The harmful effects to children's developing nervous systems (including their brains) arising from Pb exposure may include intelligence quotient (IQ)  3 loss, poor academic achievement, long-term learning disabilities, and an increased risk of delinquent behavior. 4

The EPA first established primary and secondary Pb standards in 1978 at 1.5 micrograms per cubic meter (µg/m 3 ) as a quarterly average. 5 On October 15, 2008, the EPA revised the federal Pb standards to 0.15 µg/m 3 and revised the averaging time for the standards. 6 A violation of the 2008 Pb NAAQS occurs if any arithmetic 3-month mean concentration is greater than 0.15 µg/m 3 . 7 Since the primary and secondary Pb standards are the same, we refer to them hereafter in this document using the singular Pb standard or NAAQS.

Following promulgation of any new or revised NAAQS, the EPA is required by CAA section 107(d) to designate areas throughout the nation as attaining or not attaining the NAAQS. The EPA initially designated all areas of the country as “unclassifiable,” “unclassifiable/attainment,” or “nonattainment” for the 2008 Pb NAAQS in two rounds on November 16, 2010, and November 8, 2011.

The CAA, under section 107(d)(3), provides the EPA with the authority to, at any time, notify the Governor of any state that available information indicates that the designation of any area or portion of an area should be revised. Such available information prompting a revised designation can include air quality data, planning and control considerations, or any other air quality-related considerations the Administrator deems appropriate. Once the EPA notifies a state, the state then has the opportunity to respond and submit supplemental information that the Governor considers appropriate. Before the EPA promulgates the redesignation, if any, the agency will consider the supplemental information provided by the state, making any modifications that the Administrator deems necessary. The EPA is not required under CAA section 107(d)(3) to seek public comment during the redesignations process, but we elected to do so for this area with respect to the 2008 Pb NAAQS to provide the public with an opportunity to give input for the EPA's consideration before promulgating any final redesignation.

A determination of whether an area's air quality meets applicable standards is generally based upon the most recent 3 years of complete, quality-assured data recorded by established state and local air monitoring stations (SLAMS) and entered into the EPA's Air Quality System (AQS) database. 8 Data from ambient air monitors operated by state and local agencies in compliance with the EPA monitoring requirements must be submitted to AQS. 9 Monitoring agencies annually certify that these data are accurate to the best of their knowledge. 10 All data are reviewed to determine the area's air quality status for Pb in accordance with 40 CFR part 50, appendix R.

Under the EPA regulations in 40 CFR 50.16 and in accordance with 40 CFR part 50, appendix R, the 2008 Pb NAAQS is met when the design value is less than or equal to 0.15 µg/m 3 at each eligible monitoring site within the area. The Pb design value at each eligible monitoring site is the maximum valid rolling 3-month arithmetic mean Pb concentration from the 38-month period consisting of the most recent 3-year calendar period plus two previous months. The 3-month mean Pb concentrations are rounded to the nearest hundredth µg/m 3 for comparison to the NAAQS. Data completeness requirements for a given 3-month period are met if the average of the data capture rate of the three constituent monthly means is greater than or equal to 75 percent. 11

Section 110(a)(2)(B)(i) of the CAA requires states to establish and operate air monitoring networks to compile data on ambient air quality for all criteria pollutants. The EPA's monitoring requirements are specified by regulations in 40 CFR part 58. These requirements are applicable to state and, where delegated, local air monitoring agencies that operate criteria pollutant monitors. The regulations in 40 CFR part 58 establish specific requirements for operating air quality surveillance networks to measure ambient concentrations of Pb, including requirements for measurement methods, network design, quality assurance procedures and, in the case of large urban areas, the minimum number of monitoring sites designated as SLAMS.

In sections 4.4 and 4.5 of appendix D to 40 CFR part 58, the EPA specifies minimum monitoring requirements for Pb, respectively, to operate at SLAMS. SLAMS produce data that are eligible for comparison with the NAAQS, and therefore, the monitor must be an approved federal reference method (FRM) monitor, federal equivalent method (FEM) monitor, or approved regional method (ARM) monitor.

The minimum number of required Pb SLAMS is described in section 4.5 of appendix D to 40 CFR part 58. There must be at least one source-oriented SLAMS site located to measure the maximum Pb concentration in ambient air resulting from each non-airport Pb source that emits 0.50 or more tons per year (tpy) and from each airport that emits 1.0 tpy or more based on either the most recent National Emission Inventory (NEI) or other scientifically justifiable methods and data.

According to the 2017 NEI, one non-airport source in Stark County, Ohio exceeded the 0.50 tpy threshold and therefore required source-oriented Pb monitoring: the Republic Steel plant located at 2633 Eighth Street NE in Canton, Ohio (Republic Steel). 12 Republic Steel is a steel manufacturer that manufactures leaded steel and other steel products.

Federal regulations at 50 CFR part 679 implement the FMP and govern the groundfish fisheries in the BSAI. The Council prepared the FMP, and NMFS approved it, under the Magnuson-Stevens Act. General regulations governing U.S. fisheries also appear at 50 CFR part 600.

The FMP and its implementing regulations require NMFS, after consultation with the Council, to specify annually the total allowable catch (TAC) for each target species category. The sum of all TACs for all groundfish species in the BSAI must be within the optimum yield (OY) range of 1.4 million to 2.0 million metric tons (mt) (see § 679.20(a)(1)(i)(A) and 679.20(a)(2)). This final rule specifies the sum of the TAC at 2.0 million mt for 2023 and 2.0 million mt for 2024. NMFS also must specify apportionments of TAC; prohibited species catch (PSC) allowances and prohibited species quota (PSQ) reserves established by § 679.21; seasonal allowances of pollock, Pacific cod, and Atka mackerel TAC; American Fisheries Act allocations; Amendment 80 allocations; Community Development Quota (CDQ) reserve amounts established by § 679.20(b)(1)(ii); acceptable biological catch (ABC) surpluses and reserves for CDQ groups and any Amendment 80 cooperatives for flathead sole, rock sole, and yellowfin sole; and halibut discard mortality rates (DMRs). The final harvest specifications set forth in Tables 1 through 22 of this action satisfy these requirements.

Section 679.20(c)(3)(i) further requires that NMFS consider public comment on the proposed harvest specifications and, after consultation with the Council, publish final harvest specifications in the Federal Register . The proposed 2023 and 2024 harvest specifications for the groundfish fishery of the BSAI were published in the Federal Register on December 14, 2022 (87 FR 76435). Comments were invited and accepted through January 13, 2023. As discussed in the Response to Comments section below, NMFS received six letters raising seventeen distinct comments during the public comment period for the proposed BSAI groundfish harvest specifications. NMFS's responses are addressed in the Response to Comments section below.

NMFS consulted with the Council on the final 2023 and 2024 harvest specifications during the December 2022 Council meeting. After considering public comments during public meetings and public comments submitted for the proposed rule (87 FR 76435), as well as biological and socioeconomic data that were available at the Council's December 2022 meeting, NMFS implements in this final rule the final 2023 and 2024 harvest specifications as recommended by the Council.

The final ABC amounts for Alaska groundfish are based on the best available biological information, including projected biomass trends, information on assumed distribution of stock biomass, and revised technical methods used to calculate stock biomass. In general, the development of ABCs and overfishing levels (OFLs) involves sophisticated statistical analyses of fish populations. The FMP specifies a series of six tiers to define OFL and ABC amounts based on the level of reliable information available to fishery scientists. Tier 1 represents the highest level of information quality available, while Tier 6 represents the lowest.

In December 2022, the Council, its Scientific and Statistical Committee (SSC), and its Advisory Panel (AP) reviewed current biological and harvest information about the condition of the BSAI groundfish stocks. The Council's BSAI Groundfish Plan Team (Plan Team) compiled and presented this information in the 2022 SAFE report for the BSAI groundfish fisheries, dated November 2022 (see ADDRESSES ). The SAFE report contains a review of the latest scientific analyses and estimates of each species' biomass and other biological parameters, as well as summaries of the available information on the BSAI ecosystem and the economic condition of groundfish fisheries off Alaska. NMFS notified the public of the comment period for these harvest specifications—and of the publication of the 2022 SAFE report—in the proposed harvest specifications (87 FR 76435, December 14, 2022). From the data and analyses in the SAFE report, the Plan Team recommended an OFL and ABC for each species and species group at the November 2022 Plan Team meeting.

In December 2022, the SSC, AP, and Council reviewed the Plan Team's recommendations. The final TAC recommendations were based on the ABCs, and were adjusted for other biological and socioeconomic considerations, including maintaining the sum of all the TACs within the required OY range of 1.4 million to 2.0 million mt. As required by annual catch limit rules for all fisheries (74 FR 3178, January 16, 2009), none of the Council's recommended 2023 or 2024 TACs exceed the final 2023 or 2024 ABCs for any species or species group. NMFS finds that the Council's recommended OFLs, ABCs, and TACs are consistent with the preferred harvest strategy outlined in the FMP and the biological condition of groundfish stocks as described in the 2022 SAFE report that was approved by the Council. Therefore, this final rule provides notification that the Secretary of Commerce approves the final 2023 and 2024 harvest specifications as recommended by the Council.

The 2023 harvest specifications set in this final action supersede the 2023 harvest specifications previously set in the final 2022 and 2023 harvest specifications (87 FR 11626, March 2, 2022). The 2024 harvest specifications herein will be superseded in early 2024 when the final 2024 and 2025 harvest specifications are published. Pursuant to this final action, the 2023 harvest specifications therefore will apply for the remainder of the current year (2023), while the 2024 harvest specifications are projected only for the following year (2024) and will be superseded in early 2024 by the final 2024 and 2025 harvest specifications. Because this final action (published in early 2023) will be superseded in early 2024 by the publication of the final 2024 and 2025 harvest specifications, it is projected that this final action will implement the harvest specifications for the BSAI for approximately 1 year.

For 2023 and 2024, the Board of Fisheries (BOF) for the State of Alaska (State) established the guideline harvest level (GHL) for vessels using pot, longline, jig, and hand troll gear in State waters in the State's Aleutian Islands (AI) State waters sablefish registration area that includes all State waters west of Scotch Cap Light (164°44.72′ W longitude) and south of Cape Sarichef (54°36′ N latitude). The 2023 AI GHL is set at 5 percent (865 mt) of the combined 2023 Bering Sea subarea (BS) and AI subarea ABC (mt). The 2024 AI GHL is set at 5 percent (1,025 mt) of the combined 2024 BS subarea and AI subarea ABC (mt). The State's AI sablefish registration area includes areas adjacent to parts of the Federal BS. The Council and its BSAI Groundfish Plan Team (Plan Team), SSC, and AP recommended that the sum of all State and Federal waters sablefish removals from the BS and AI not exceed the ABC recommendations for sablefish in the BS and AI. Accordingly, the Council recommended, and NMFS approves, that the 2023 and 2024 sablefish TACs in the BS and AI account for the State's GHLs for sablefish caught in State waters.

For 2023 and 2024, the BOF for the State established the GHL for vessels using pot gear in State waters in the BS equal to 12 percent of the Pacific cod ABC in the BS when the ABC is between 125,000 mt and 150,000 mt. For 2023, the BS Pacific cod ABC is 144,834 mt, and for 2024, it is 140,159 mt. Therefore, the GHL in the BS for pot gear will be 12 percent for 2023 (17,380 mt) and 2024 (16,819 mt). Also, for 2023 and 2024, the BOF established an additional GHL for vessels using jig gear in State waters in the BS equal to 45 mt of Pacific cod in the BS. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal waters Pacific cod removals from the BS not exceed the ABC recommendations for Pacific cod in the BS. Accordingly, the Council recommended, and NMFS approves, that the 2023 and 2024 Pacific cod TACs in the BS account for the State's GHLs for Pacific cod caught in State waters in the BS.

For 2023 and 2024, the BOF for the State established the GHL in State waters in the Aleutian Islands subarea (AI) equal to 39 percent of the AI ABC. The AI GHL will increase annually by 4 percent of the AI ABC, if 90 percent of the GHL is harvested by November 15 of the preceding year, but may not exceed 39 percent of the AI ABC or 15 million pounds (6,804 mt). For 2023 and for 2024, 39 percent of the AI ABC is 5,387 mt. The Council and its Plan Team, SSC, and AP recommended that the sum of all State and Federal waters Pacific cod removals from the AI not exceed the ABC recommendations for Pacific cod in the AI. Accordingly, the Council recommended, and NMFS approves, that the 2023 and 2024 Pacific cod TACs in the AI account for the State's GHL of 5,387 mt for Pacific cod caught in State waters in the AI.

On December 9, 2022, NMFS published a proposed rule (87 FR 75570), and an extension of public comment (87 FR 75569), to implement Amendment 123 to the FMP, which if approved would establish abundance-based management of Amendment 80 Program PSC for Pacific halibut. The proposed action would replace the current Amendment 80 sector static halibut PSC limit (1,745 mt) with a process for annually setting the Amendment 80 sector halibut PSC limit based on the most recent halibut abundance estimates from the International Pacific Halibut Commission setline survey and the NMFS Alaska Fisheries Science Center Eastern Bering Sea shelf trawl survey. The annual process would use a table with pre-established halibut abundance ranges based on those surveys. The annual Amendment 80 sector halibut PSC limit would be set at the value found at the intercept of the results from the most recent surveys. Further details are available in the proposed rule to implement Amendment 123. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2024. Until effective, NMFS will continue to use the current Amendment 80 halibut PSC limit listed at § 679.21(b)(1) and published in the harvest specifications.

On February 9, 2023, NMFS published a proposed rule to implement Amendment 122 to the FMP, which if approved would implement a limited access privilege program called the Pacific cod Trawl Cooperative (PCTC) Program (88 FR 8592, February 9, 2023). The PCTC Program would allocate quota share (QS) to groundfish License Limitation Program license holders and to processors based on history during the qualifying years. Under this program, QS holders would be required to join cooperatives annually. Cooperatives would be allocated the BSAI trawl catcher vessel (CV) sector's A and B season Pacific cod allocations as an exclusive harvest privilege in the form of cooperative quota, equivalent to the aggregate QS of all cooperative members. NMFS anticipates that the regulations at § 679.20(a)(7)(viii) will be removed through implementation of the PCTC Program, if approved. Further details are available in the proposed rule to implement Amendment 122. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective in 2024. Until effective, NMFS will continue the current management of the BSAI trawl CV Pacific cod allocation.

On November 23, 2022, NMFS published a proposed rule (87 FR 71559) to implement Amendment 124 to the FMP, which if approved would allow jig gear as an authorized fishing gear type in the BSAI sablefish IFQ and CDQ fisheries. The Council's intent in recommending Amendment 124 is to increase entry-level opportunities and increase flexibility for IFQ holders. This is because jig gear is a smaller investment than other gear types and does not require significant vessel retrofits as with other gear. Additionally, jig gear is already an authorized gear type for the harvest of halibut IFQ and CDQ and this action would further align the authorized gear types in the halibut and sablefish IFQ and CDQ fisheries. Further details are available in the proposed rule to implement Amendment 124. If the FMP amendment and its implementing regulations are approved by the Secretary of Commerce, the action is anticipated to be effective for the 2023 IFQ and CDQ season.

The Council's recommendations for the proposed 2023 and 2024 harvest specifications (87 FR 76435, December 14, 2022) were based largely on information contained in the 2021 SAFE report for the BSAI groundfish fisheries. Through the proposed harvest specifications, NMFS notified the public that these harvest specifications could change, as the Council would consider information contained in the 2022 SAFE report; recommendations from the Plan Team, SSC, and AP; and public comments when making its recommendations for final harvest specifications at the December 2022 Council meeting. NMFS further notified the public that, as required by the FMP and its implementing regulations, the sum of the TACs must be within the OY range of 1.4 million and 2.0 million mt.

Information contained in the 2022 SAFE report indicates biomass changes from the 2021 SAFE report for several groundfish species. The 2022 SAFE report was made available for public review during the public comment period for the proposed harvest specifications. At the December 2022 Council meeting, the SSC recommended the 2023 and 2024 OFLs and ABCs based on the best and most recent information contained in the 2022 SAFE report. The SSC's recommendation resulted in an ABC sum total for all BSAI groundfish species in excess of 2.0 million mt for both 2023 and 2024.

Based on larger spawning biomass estimates, the Council recommends final BS pollock TACs increase by 11,000 mt in 2023 and 13,000 mt in 2024 compared to the proposed 2023 and 2024 BS pollock TACs. The Council also recommends increasing the BSAI rock sole TAC by 11,000 mt in 2023 and 11,000 mt in 2024, and increasing the flathead sole TAC by 10,000 mt in 2023 and 10,000 mt in 2024, compared to the proposed 2023 and 2024 TACs. In terms of tonnage, the Council recommends reducing the TACs from the proposed TACs of several species of lower economic value to maintain an overall total TAC within the required OY range of 1.4 to 2.0 million mt with Alaska plaice, arrowtooth flounder, northern rockfish, and “other flatfish” having the largest TAC decreases. In terms of percentage, the largest TAC decreases from the proposed TACs of lower economically valued species were for Alaska plaice, arrowtooth flounder, Greenland turbot, Kamchatka flounder, octopuses, “other flatfish,” northern rockfish, and sharks. The Council recommends lowering the TACs of both BS and AI Pacific cod in 2023 and 2024 due to lower spawning biomasses.

The changes to TACs between the proposed and final harvest specifications are based on the most recent scientific and socioeconomic information and are consistent with the FMP, regulatory obligations, and harvest strategy as described in the proposed and final harvest specifications, including the required OY range of 1.4 million to 2.0 million mt. These changes are compared in Table 1A.

Table 1 lists the Council's recommended final 2023 OFL, ABC, TAC, initial TAC (ITAC), CDQ reserve allocations, and non-specified reserves of the BSAI groundfish species and species groups; and Table 2 lists the Council's recommended final 2024 OFL, ABC, TAC, ITAC, CDQ reserve allocations, and non-specified reserves of the BSAI groundfish species and species groups. NMFS concurs in these recommendations. These final 2023 and 2024 TAC amounts for the BSAI are within the OY range established for the BSAI and do not exceed the ABC for any species or species group. The apportionment of TAC amounts among fisheries and seasons is discussed below.

Section 679.20(b)(1)(i) requires that NMFS reserve 15 percent of the TAC for each target species (except for pollock, fixed gear allocation of sablefish, and Amendment 80 species) in a non-specified reserve. Section 679.20(b)(1)(ii)(B) requires that NMFS allocate 20 percent of the fixed gear allocation of sablefish to the fixed-gear sablefish CDQ reserve for each subarea. Section 679.20(b)(1)(ii)(D) requires that NMFS allocate 7.5 percent of the trawl gear allocations of sablefish in the BS and AI and 10.7 percent of the BS Greenland turbot and arrowtooth flounder TACs to the respective CDQ reserves. Section 679.20(b)(1)(ii)(C) requires that NMFS allocate 10.7 percent of the TACs for Atka mackerel, AI Pacific ocean perch, yellowfin sole, rock sole, flathead sole, and Pacific cod to the respective CDQ reserves. Section 679.20(b)(1)(ii)(A) also requires that 10 percent of the BS pollock TAC be allocated to the pollock CDQ directed fishing allowance (DFA). Section 679.20(b)(1)(ii)(A) requires that 10 percent of the AI pollock TAC be allocated to the pollock CDQ DFA. The entire Bogoslof District pollock TAC is allocated as an ICA pursuant to § 679.20(a)(5)(ii) because the Bogoslof District is closed to directed fishing for pollock by regulation (§ 679.22(a)(7)(B)). With the exception of the fixed gear sablefish CDQ reserve, the regulations do not further apportion the CDQ allocations by gear.

Pursuant to § 679.20(a)(5)(i)(A)( 1 ), NMFS allocates a pollock ICA of 50,000 mt of the BS pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2000 through 2022. During this 23-year period, the pollock incidental catch ranged from a low of 2.2 percent in 2006 to a high of 4.6 percent in 2014, with a 23-year average of 3 percent. Pursuant to § 679.20(a)(5)(iii)(B)( 2 )( i ) and ( ii ), NMFS establishes a pollock ICA of 2,500 mt of the AI pollock TAC after subtracting the 10 percent CDQ DFA. This allowance is based on NMFS's examination of the pollock incidental catch, including the incidental catch by CDQ vessels, in target fisheries other than pollock from 2003 through 2022. During this 20-year period, the incidental catch of pollock ranged from a low of 5 percent in 2006 to a high of 17 percent in 2014, with a 20-year average of 9 percent.

After subtracting the 10.7 percent CDQ reserve and pursuant to § 679.20(a)(8) and (10), NMFS allocates ICAs of 3,000 mt of flathead sole, 6,000 mt of rock sole, 4,000 mt of yellowfin sole, 10 mt of WAI Pacific ocean perch, 60 mt of CAI Pacific ocean perch, 100 mt of Eastern Aleutian district (EAI) Pacific ocean perch, 20 mt of Western Aleutian district (WAI) Atka mackerel, 75 mt of Central Aleutian district (CAI) Atka mackerel, and 800 mt of EAI and BS Atka mackerel. These ICA allowances are based on NMFS's examination of the incidental catch in other target fisheries from 2003 through 2022.

The regulations do not designate the remainder of the non-specified reserve by species or species group. Any amount of the reserve may be apportioned to a target species that contributed to the non-specified reserves during the year, provided that such apportionments are consistent with § 679.20(a)(3) and do not result in overfishing (see § 679.20(b)(1)(i)). The Regional Administrator has determined that the ITACs specified for one species group listed in Tables 1 and 2 need to be supplemented from the non-specified reserve because U.S. fishing vessels have demonstrated the capacity to catch the full TAC allocations. Therefore, in accordance with § 679.20(b), NMFS is apportioning the amounts shown in Table 3 from the non-specified reserve to increase the ITAC for AI “other rockfish” by 15 percent of the “other rockfish” TAC in 2023 and 2024.

Section 679.20(a)(5)(i)(A) requires that the BS pollock TAC be apportioned as a DFA, after subtracting 10 percent for the CDQ program and 50,000 mt for the ICA in both 2023 and 2024, as follows: 50 percent to the inshore sector, 40 percent to the catcher/processor (CP) sector, and 10 percent to the mothership sector. In the BS, 45 percent of the DFAs are allocated to the A season (January 20-June 10), and 55 percent of the DFAs are allocated to the B season (June 10-November 1) (§§ 679.20(a)(5)(i)(B)( 1 ) and 679.23(e)(2)). The AI directed pollock fishery allocation to the Aleut Corporation is the amount of pollock TAC remaining in the AI after subtracting 1,900 mt for the CDQ DFA (10 percent) and 2,500 mt for the ICA (§ 679.20(a)(5)(iii)(B)( 2 )). In the AI, the total A season apportionment of the TAC (including the AI directed fishery allocation, the CDQ DFA, and the ICA) may not exceed 40 percent of the ABC for AI pollock, and the remainder of the TAC is allocated to the B season (§ 679.20(a)(5)(iii)(B)( 3 )). Tables 4 and 5 list these 2023 and 2024 amounts.

Section 679.20(a)(5)(iii)(B)( 6 ) sets harvest limits for pollock in the A season (January 20 to June 10) in Areas 543, 542, and 541. NMFS establishes harvest limits for pollock in the A season in Area 541 of no more than 30 percent, in Area 542 of no more than 15 percent, and in Area 543 of no more than 5 percent of the Aleutian Islands pollock ABC.

Section 679.20(a)(5)(i)(A)( 4 ) also includes several specific requirements regarding BS pollock allocations. First, it requires that 8.5 percent of the pollock allocated to the CP sector be available for harvest by AFA CVs with CP sector endorsements, unless the Regional Administrator receives a cooperative contract that allows for the distribution of harvest among AFA CPs and AFA CVs in a manner agreed to by all members. Second, AFA CPs not listed in the AFA are limited to harvesting not more than 0.5 percent of the pollock allocated to the CP sector. Tables 4 and 5 list the 2023 and 2024 allocations of pollock TAC. Table 20 lists the AFA CP prohibited species sideboard limits, and Tables 21 and 22 list the AFA CV groundfish and prohibited species sideboard limits. The tables for the pollock allocations to the BS inshore pollock cooperatives and open access sector will be posted on the Alaska Region website at https://www.fisheries.noaa.gov/alaska/sustainable-fisheries/alaska-groundfish-fisheries-management.

Tables 4 and 5 also list seasonal apportionments of pollock and harvest limits within the Steller Sea Lion Conservation Area (SCA). The harvest of pollock within the SCA, as defined at § 679.22(a)(7)(vii), is limited to no more than 28 percent of the annual pollock DFA before 12 p.m. (noon), April 1, as provided in § 679.20(a)(5)(i)(C). The A season pollock SCA harvest limit will be apportioned to each sector in proportion to each sector's allocated percentage of the DFA.

Section 679.20(a)(8) allocates the Atka mackerel TACs to the Amendment 80 and BSAI trawl limited access sectors, after subtracting the CDQ reserves, ICAs for the BSAI trawl limited access sector and non-trawl gear sector, and the jig gear allocation (Tables 6 and 7). The percentage of the ITAC for Atka mackerel allocated to the Amendment 80 and BSAI trawl limited access sectors is listed in Table 33 to 50 CFR part 679 and in § 679.91. Pursuant to § 679.20(a)(8)(i), up to 2 percent of the EAI and the BS Atka mackerel TAC may be allocated to vessels using jig gear. The percent of this allocation is recommended annually by the Council based on several criteria, including, among other criteria, the anticipated harvest capacity of the jig gear fleet. The Council recommended, and NMFS approves, a 0.5 percent allocation of the Atka mackerel TAC in the EAI and BS to the jig gear sector in 2023 and 2024.

Section 679.20(a)(8)(ii)(A) apportions the Atka mackerel TAC, after subtraction of the jig gear allocation, into two equal seasonal allowances. Section 679.23(e)(3) sets the first seasonal allowance for directed fishing with trawl gear from January 20 through June 10 (A season), and the second seasonal allowance from June 10 through December 31 (B season). Section 679.23(e)(4)(iii) applies Atka mackerel seasons to CDQ Atka mackerel trawl fishing. Within any fishing year, any under harvest or over harvest of a seasonal allowance may be added to or subtracted from a subsequent seasonal allowance (§ 679.20(a)(8)(ii)(B)). The ICAs and jig gear allocations are not apportioned by season.

Sections 679.20(a)(8)(ii)(C)( 1 )( i ) and ( ii ) limits Atka mackerel catch within waters 0 nautical miles (nmi) to 20 nmi of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located west of 178° W longitude to no more than 60 percent of the annual TACs in Areas 542 and 543, and equally divides the annual TACs between the A and B seasons as defined at § 679.23(e)(3). Section 679.20(a)(8)(ii)(C)( 2 ) requires that the annual TAC in Area 543 will be no more than 65 percent of the ABC in Area 543. Section 679.20(a)(8)(ii)(D) requires that any unharvested Atka mackerel A season allowance that is added to the B season be prohibited from being harvested within waters 0 nmi to 20 nmi of Steller sea lion sites listed in Table 6 to 50 CFR part 679 and located in Areas 541, 542, and 543.

Tables 6 and 7 list these 2023 and 2024 Atka mackerel seasonal and area allowances, and the sector allocations. One Amendment 80 cooperative has formed for the 2023 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2023. The 2024 allocations for Atka mackerel between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2023.

The Council separated BSAI subarea OFLs, ABCs, and TACs for Pacific cod in 2014 (79 FR 12108, March 4, 2014). Section 679.20(b)(1)(ii)(C) allocates 10.7 percent of the BS TAC and the AI TAC to the CDQ program. After CDQ allocations have been deducted from the respective BS and AI Pacific cod TACs, the remaining BSAI Pacific cod TACs are combined for calculating further BSAI Pacific cod sector allocations. If the non-CDQ Pacific cod TAC is or will be reached in either the BS or the AI subareas, NMFS will prohibit non-CDQ directed fishing for Pacific cod in that subarea as provided in § 679.20(d)(1)(iii).

Section 679.20(a)(7)(ii) allocates to the non-CDQ sectors the Pacific cod TAC in the combined BSAI, after subtracting 10.7 percent for the CDQ program, as follows: 1.4 percent to vessels using jig gear; 2.0 percent to hook-and-line or pot CVs less than 60 ft (18.3 m) length overall (LOA); 0.2 percent to hook-and-line CVs greater than or equal to 60 ft (18.3 m) LOA; 48.7 percent to hook-and-line CPs; 8.4 percent to pot CVs greater than or equal to 60 ft (18.3 m) LOA; 1.5 percent to pot CPs; 2.3 percent to AFA trawl CPs; 13.4 percent to Amendment 80 sector; and 22.1 percent to trawl CVs. The ICA for the hook-and-line and pot sectors will be deducted from the aggregate portion of Pacific cod TAC allocated to the hook-and-line and pot sectors. For 2023 and 2024, the Regional Administrator establishes an ICA of 500 mt based on anticipated incidental catch by these sectors in other fisheries. During the fishing year, NMFS may reallocate unharvested Pacific cod among sectors, consistent with the reallocation hierarchy set forth at § 679.20(a)(7)(iii).

The ITAC allocation of Pacific cod to the Amendment 80 sector is established in Table 33 to 50 CFR part 679 and § 679.91. One Amendment 80 cooperative has formed for the 2023 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2023. The 2024 allocations for Pacific cod between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2023.

The sector allocations of Pacific cod are apportioned into seasonal allowances to disperse the Pacific cod fisheries over the fishing year (see §§ 679.20(a)(7)(i)(B), 679.20(a)(7)(iv)(A), and 679.23(e)(5)). Tables 8 and 9 list the non-CDQ sector and seasonal allowances. In accordance with § 679.20(a)(7)(iv)(B) and (C), any unused portion of a non-CDQ Pacific cod seasonal allowance for any sector, except the jig sector, will become available at the beginning of that sector's next seasonal allowance. Section 679.20(a)(7)(i)(B) sets forth the CDQ Pacific cod gear allowances by season, and CDQ groups are prohibited from exceeding those seasonal allowances (§ 679.7(d)(6)).

Section 679.20(a)(7)(vii) requires that the Regional Administrator establish an Area 543 Pacific cod harvest limit based on Pacific cod abundance in Area 543 as determined by the annual stock assessment process. Based on the 2022 stock assessment, the Regional Administrator determined for 2023 and 2024 the estimated amount of Pacific cod abundance in Area 543 is 15.7 percent of the total AI abundance. To calculate the Area 543 Pacific cod harvest limit, NMFS first subtracts the State GHL Pacific cod amount from the AI Pacific cod ABC. Then NMFS determines the harvest limit in Area 543 by multiplying the percentage of Pacific cod estimated in Area 543 (15.7 percent) by the remaining ABC for AI Pacific cod. Based on these calculations, the Area 543 harvest limit is 2,233 mt for 2023 and 2024.

On March 21, 2019, the final rule adopting Amendment 113 to the FMP (81 FR 84434, November 23, 2016) was vacated by the U.S. District Court for the District of Columbia ( Groundfish Forum v. Ross, No. 16-2495 (D.D.C. March 21, 2019)), and the corresponding regulations implementing Amendment 113 are no longer in effect. Therefore, this final rule is not specifying amounts for the AI Pacific Cod Catcher Vessel Harvest Set-Aside Program (see § 679.20(a)(7)(viii)). NMFS anticipates that in 2024 the regulations at §  679.20(a)(7)(viii) will be removed through implementation of the PCTC Program, if Amendment 122 and its regulations are approved by the Secretary of Commerce (described above in Other Actions Affecting the 2023 and 2024 Harvest Specifications).

Based on the final 2023 and 2024 Pacific cod TACs, Table 8 and Table 9 list the CDQ and non-CDQ TAC amounts; non-CDQ seasonal allowances by gear; the sector allocations of Pacific cod; and the seasons set forth at § 679.23(e)(5).

Sections 679.20(a)(4)(iii) and (iv) require allocation of the sablefish TAC for the BS and AI subareas between the trawl gear and fixed gear sectors. Gear allocations of the sablefish TAC for the BS are 50 percent for trawl gear and 50 percent for fixed gear. Gear allocations of the TAC for the AI are 25 percent for trawl gear and 75 percent for fixed gear. Section 679.20(b)(1)(ii)(B) requires that NMFS apportions 20 percent of the fixed gear allocation of sablefish TAC to the CDQ reserve for each subarea. Also, § 679.20(b)(1)(ii)(D)( 1 ) requires that in the BS and AI 7.5 percent of the trawl gear allocation of sablefish TAC from the non-specified reserve, established under § 679.20(b)(1)(i), be assigned to the CDQ reserve.

The Council recommended that only trawl sablefish TAC be established biennially. The harvest specifications for the fixed gear sablefish Individual Fishing Quota (IFQ) fisheries are limited to the 2023 fishing year to ensure those fisheries are conducted concurrently with the halibut IFQ fishery. Concurrent sablefish and halibut IFQ fisheries reduce the potential for discards of halibut and sablefish in those fisheries. The sablefish IFQ fisheries remain closed at the beginning of each fishing year until the final harvest specifications for the sablefish IFQ fisheries are in effect. Table 10 lists the 2023 and 2024 gear allocations of the sablefish TAC and CDQ reserve amounts.

Sections 679.20(a)(10)(i) and (ii) require that NMFS allocate AI Pacific ocean perch and BSAI flathead sole, rock sole, and yellowfin sole ITACs between the Amendment 80 sector and the BSAI trawl limited access sector, after subtracting 10.7 percent for the CDQ reserves and ICAs for the BSAI trawl limited access sector and vessels using non-trawl gear. The allocations of the ITACs for AI Pacific ocean perch and BSAI flathead sole, rock sole, and yellowfin sole to the Amendment 80 sector are established in accordance with Tables 33 and 34 to 50 CFR part 679 and § 679.91.

One Amendment 80 cooperative has formed for the 2023 fishing year. Because all Amendment 80 vessels are part of the sole Amendment 80 cooperative, no allocation to the Amendment 80 limited access sector is required for 2023. The 2024 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2023. Tables 11 and 12 list the 2023 and 2024 allocations of the AI Pacific ocean perch and BSAI flathead sole, rock sole, and yellowfin sole TACs.