The NRC is announcing the following corrected language in FR Doc. 2023-03944, published at 88 FR 15864 on March 14, 2023.

The Federal Reserve Banks make primary and secondary credit available to depository institutions as a backup source of funding on a short-term basis, usually overnight. The primary and secondary credit rates are the interest rates that the twelve Federal Reserve Banks charge for extensions of credit under these programs. In accordance with the Federal Reserve Act, the primary and secondary credit rates are established by the boards of directors of the Federal Reserve Banks, subject to review and determination of the Board.

On March 22, 2023, the Board voted to approve a 0.25 percentage point increase in the primary credit rate, thereby increasing the primary credit rate from 4.75 percent to 5 percent. In addition, the Board had previously approved the renewal of the secondary credit rate formula, the primary credit rate plus 50 basis points. Under the formula, the secondary credit rate increased by 0.25 percentage points as a result of the Board's primary credit rate action, thereby increasing the secondary credit rate from 5.25 percent to 5.50 percent. The amendments to Regulation A reflect these rate changes.

The 0.25 percentage point increase in the primary credit rate was associated with a 0.25 percentage point increase in the target range for the federal funds rate (from a target range of 4 1/2 percent to 4 3/4 percent to a target range of 4 3/4 percent to 5 percent) announced by the Federal Open Market Committee on March 22, 2023, as described in the Board's amendment of its Regulation D published elsewhere in today's Federal Register .

In general, the Administrative Procedure Act (“APA”)  1 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  2 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 3 The APA further provides that the notice, public comment, and delayed effective date requirements of 5 U.S.C. 553 do not apply “to the extent that there is involved . . . a matter relating to agency management or personnel or to public property, loans, grants, benefits, or contracts.”  4

Regulation A establishes the interest rates that the twelve Reserve Banks charge for extensions of primary credit and secondary credit. The Board has determined that the notice, public comment, and delayed effective date requirements of the APA do not apply to these final amendments to Regulation A. The amendments involve a matter relating to loans and are therefore exempt under the terms of the APA. Furthermore, because delay would undermine the Board's action in responding to economic data and conditions, the Board has determined that “good cause” exists within the meaning of the APA to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to the final amendments to Regulation A.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 5 As noted previously, a general notice of proposed rulemaking is not required if the final rule involves a matter relating to loans. Furthermore, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 6 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board is amending 12 CFR chapter II as follows:

For monetary policy purposes, section 19 of the Federal Reserve Act (“Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. 1 Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”). 2 Section 19 also provides that balances maintained by or on behalf of certain institutions in an account at a Reserve Bank may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. 3 Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions. 4 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank. 5 Prior to these amendments, Regulation D established IORB at 4.65 percent. 6

The Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 4.9 percent. The amendment represents a 0.25 percentage point increase in IORB. This decision was announced on March 22, 2023, with an effective date of March 23, 2023, in the Federal Reserve Implementation Note that accompanied the FOMC's statement on March 22, 2023. The FOMC statement stated that the Committee decided to raise the target range for the federal funds rate to 4 3/4 to 5 percent.

The Federal Reserve Implementation Note stated:

As a result, the Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 4.9 percent.

In general, the Administrative Procedure Act (“APA”)  7 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  8 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 9

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to these final amendments to Regulation D. The rate change for IORB that is reflected in the final amendment to Regulation D was made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to this final amendment to Regulation D.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 10 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 11 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board amends

12 CFR part 204 as follows:

The Consumer Financial Protection Act of 2010 (CFPA) establishes the Bureau as an independent bureau in the Federal Reserve System and assigns the Bureau a range of rulemaking, enforcement, supervision, and other authorities. 1 The Bureau's enforcement powers under the CFPA include section 1053, which authorizes the Bureau to conduct adjudication proceedings. 2 The Bureau finalized the original version of the Rules of Practice, which govern adjudication proceedings, in 2012 (2012 Rule). 3 The Bureau later finalized certain amendments, which addressed the issuance of temporary cease-and-desist orders, in 2014 (2014 Rule). 4

The Bureau issued the Updated Rules of Practice in February 2022. 5 The Updated Rules of Practice were exempt from the notice-and-comment requirements of the Administrative Procedure Act, because they were a rule of agency organization, procedure, and practice. 6 Consequently, they were effective upon publication (although no adjudication proceedings have occurred under the Updated Rules of Practice). The Bureau invited the public to submit comments.

The Bureau received four comments. These came from a group of trade associations, a consumer advocacy organization, a bank holding company, and a legal foundation. 7 The group of trade associations noted that administrative adjudication can play an important and valuable role in an effective regulatory system by providing an efficient, and equally fair, alternative to civil litigation. However, the trade associations opposed the changes regarding the content of answers, bifurcation of proceedings, rulings on dispositive motions, and issue exhaustion. By contrast, the consumer advocacy organization supported the rule, stating that it simultaneously strengthens the ability of the agency to protect consumers and the rights of respondents subject to agency action. The bank holding company expressed support for the trade associations' comment. Finally, the legal foundation opposed the issue-exhaustion provision.

After carefully considering these comments, the Bureau has decided to retain the amendments made in the Updated Rules of Practice. The Bureau addresses the comments in more detail below.

Section 1053(e) of the CFPA provides that the Bureau “shall prescribe rules establishing such procedures as may be necessary to carry out” section 1053. 8 Additionally, section 1022(b)(1) provides, in relevant part, that the Bureau's Director “may prescribe rules . . . as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.”  9 The Bureau issues this rule based on its authority under section 1053(e) and section 1022(b)(1).

12 CFR 1081.114(a) (Rule 114(a)) governs the computation of any time limit that is prescribed by Rules of Practice, by order of the Director or the hearing officer, or by any applicable statute. The Updated Rules of Practice amended Rule 114(a) for the purpose of simplifying and clarifying it, based on similar amendments made to Federal Rule of Civil Procedure 6(a) in 2009.

As amended by the Updated Rules of Practice, Rule 114(a) provides for time periods to be computed in the following manner. First, exclude the day of the event that triggers the period. Second, count every day, including intermediate Saturdays, Sundays, and Federal holidays. Third, include the last day of the period unless it is a Saturday, Sunday, or Federal holiday as set forth in 5 U.S.C. 6103(a). When the last day is a Saturday, Sunday, or Federal holiday, the period runs until the end of the next day that is not a Saturday, Sunday, or Federal holiday.

The Updated Rules of Practice also made adjustments to various specific deadlines in the Rules of Practice, to roughly compensate for the update in computation method. For example, a 10-day period under the previous computation method would most frequently correspond to a 14-day period under the updated computation method, so 10-day periods were generally changed to 14 days.

No comments opposed the amendments to Rule 114(a), and the Bureau is retaining them.

12 CFR 1081.115(b) (Rule 115(b)) concerns motions for extensions of time. Under the 2012 Rule, the provision stated that the Director or the hearing officer should adhere to a policy of strongly disfavoring granting motions for extensions of time, except in circumstances where the moving party makes a strong showing that the denial of the motion would substantially prejudice its case. It then listed factors that the Director or hearing officer will consider.

The Updated Rules of Practice simplified the provision, to state only that such motions are generally disfavored, while retaining the same list of factors that the Director or hearing officer will consider. The preamble explained that the Bureau continues to believe that extensions of time should generally be disfavored, but it believes that relatively more flexibility than the previous language provided may be appropriate.

No comments opposed the amendment to Rule 115(b), and the Bureau is retaining it.

12 CFR 1081.201(b) (Rule 201(b)) requires a respondent to file an answer containing, among other things, any affirmative defense.

The Updated Rules of Practice amended Rule 201(b) to make clear that the answer must include any avoidance, including those that may not be considered “affirmative defenses.” As the Securities and Exchange Commission (SEC) explained when it adopted a similar amendment to its rules of practice, timely assertion of such theories should help focus the use of prehearing discovery, foster early identification of key issues and, as a result, make the discovery process more effective and efficient. 10

The comment by a group of trade associations opposed the amendment to Rule 201(b). The comment stated that the amendment would reduce protections for respondent companies in a way that will lead to a denial of due process. However, the comment did not articulate why a duty to include avoidances in the answer would be a denial of due process. The Bureau considers the amendment to Rule 201(b) to be a reasonable requirement that promotes early identification of issues, and the Bureau notes that the answer can later be amended in appropriate circumstances under 12 CFR 1081.202(a) (Rule 202(a)). The Bureau is retaining the amendment to Rule 201(b).

12 CFR 1081.203 (Rule 203) requires a scheduling conference with all parties and the hearing officer for the purpose of scheduling the course and conduct of the proceeding. Before that scheduling conference, Rule 203 requires the parties to meet to discuss the nature and basis of their claims and defenses, the possibilities for settlement, as well as the matters that will be discussed with the hearing officer at the scheduling conference. The Updated Rules of Practice made certain changes to the details of Rule 203, including renumbering its provisions. This discussion cites the provisions as renumbered.

First, the Updated Rules of Practice amended Rule 203(b) to require that the parties exchange a scheduling conference disclosure after that initial meeting, but before the scheduling conference. That disclosure must include a factual summary of the case, a summary of all factual and legal issues in dispute, and a summary of all factual and legal bases supporting each defense. The disclosure must also include information about the evidence that the party may present at the hearing, other than solely for impeachment, including (i) the contact information for anticipated witnesses, as well as a summary of the witness's anticipated testimony; and (ii) the identification of documents or other exhibits.

The Updated Rules of Practice also made certain amendments to Rules 203(c), (d), and (e). Amended Rule 203(c) provides that a party must supplement or correct the scheduling conference disclosure in a timely manner if the party acquires other information that it intends to rely upon at a hearing. Amended Rule 203(d) provides a harmless-error rule for failures to disclose in scheduling conference disclosures. Finally, the Updated Rules of Practice made certain minor clarifications to Rule 203(e), which governs the scheduling conference itself.

As the preamble to the Updated Rules of Practice stated, these amendments to Rule 203 are intended to foster early identification of key issues and, as a result, make the adjudication process, including any discovery process, more effective and efficient. They are also intended to, early in the process, determine whether the parties intend to seek the issuance of subpoenas or file dispositive motions so that, with input from the parties, the hearing officer can set an appropriate hearing date, taking into account the time necessary to complete the discovery or decide the anticipated dispositive motions.

The preamble to the Updated Rules of Practice recognized that, in most cases, the deadline for making the scheduling conference disclosure will also be the date the Office of Enforcement must commence making documents available to the respondent under 12 CFR 1081.206 (Rule 206). The preamble reiterated a statement from the preamble to the 2012 Rule, which was that the Bureau expects that the Office of Enforcement will make the material available as soon as possible in every case. 11 And even in cases where the Office of Enforcement cannot make those documents available within that time, a respondent may request a later hearing date and can move the hearing officer to alter the dates for either the scheduling conference or the scheduling conference disclosure.

No comments opposed the amendments to Rule 203, and the Bureau is retaining them.

The Updated Rules of Practice added a new 12 CFR 1081.204(c) (Rule 204(c)) to address bifurcation of proceedings. It provides that the Director may order that the proceeding be divided into two or more stages, if the Director determines that it would promote efficiency in the proceeding or for other good cause. For example, the Director may order that the proceeding have two stages, so that at the conclusion of the first stage the Director issues a decision on whether there have been violations of law and at the conclusion of the second stage the Director issues a final decision and order, including with respect to any remedies. The Director may make an order under Rule 204(c) either on the motion of a party or on the Director's own motion after inviting submissions by the parties. The Director may include, in that order or in later orders, modifications to the procedures in the Rules of Practice in order to effectuate an efficient division into stages, or the Director may assign such authority to the hearing officer. 12

The preamble to the Updated Rules of Practice noted that bifurcation is a standard case-management tool available to Federal district courts. It explained that Rule 204(c) will provide the Bureau with the flexibility to use bifurcation in adjudication proceedings, if warranted by particular cases, and to tailor its procedures to the circumstances of those bifurcated cases.

The comment by a consumer advocacy organization supported Rule 204(c). According to the organization's comment, separating the determination of whether there has been a violation of law from the issue of remedies would help promote the development of legal precedent and also save resources by the Bureau and respondents.

The comment by a group of trade associations opposed Rule 204(c). This comment argued that assigning too much authority to the Director risked depriving respondents of due process, because, in the commenters' view, the Director is insufficiently impartial. However, it is unclear why the decision to bifurcate a proceeding is any different from the many other decisions that the Director makes in an adjudication. The Director can and will adjudicate matters fairly, whether in bifurcated or non-bifurcated proceedings. As courts have consistently held, heads of executive agencies can perform adjudicative functions, and such adjudications provide due process of law. Accordingly, the Bureau is retaining Rule 204(c).

12 CFR 1081.206 (Rule 206) provides that the Bureau's Office of Enforcement will make certain documents available for inspection and copying. The Updated Rules of Practice amended Rule 206 to clarify certain categories of documents that may be withheld or information that may be redacted, as well as to make clear that the Office of Enforcement may produce those documents in an electronic format rather than making the documents available for physical inspection and copying.

As the preamble to the Updated Rules of Practice explained, the clarifying amendments regarding documents that may be withheld or information that may be redacted are based on amendments the SEC recently made to its rules of practice. Amended Rule 206(b)(1)(iv) makes clear that the Office of Enforcement need not produce a document that reflects only settlement negotiations between the Office of Enforcement and a person or entity who is not a current respondent in the proceeding. As the SEC explained when it amended its rules of practice, this amendment is consistent with the important public policy interest in candid settlement negotiations, will help to preserve the confidentiality of settlement discussions, and help safeguard the privacy of potential respondents with whom the Office of Enforcement has negotiated. 13 Amended Rule 206 also permits the Office of Enforcement to redact from the documents it produces information it is not obligated to produce (Rule 206(b)(2)(i)) and sensitive personal information about persons other than the respondent (Rule 206(b)(2)(ii)). These amendments also track the SEC's recent amendments to its rules of practice and are designed to provide further protections for sensitive personal information and to permit the redaction of information that is not required to be produced in the first place.

The Updated Rules of Practice also amended Rule 206(d) to change the date by which the Office of Enforcement must commence making documents available to the respondent, changing that date from seven days after service of the notice of charges to fourteen. This clarification harmonizes these timing provisions with 12 CFR 1081.119 (Rule 119), which protects the rights of third parties who have produced documents under a claim of confidentiality. The previous Rule 119 required a party to give a third party notice at least ten days prior to the disclosure of information obtained from that third party subject to a claim of confidentiality. Under the previous Rules of Practice, that meant that the Office of Enforcement had to provide notice to third parties before it commenced the adjudication proceeding because the Office of Enforcement had to give those third parties at least ten days' notice before producing the documents and the Office of Enforcement had to commence making documents available seven days after filing. The Updated Rules of Practice amended Rule 119 to require parties to notify the third parties at least seven days prior to the disclosure of information the third party produced under a claim of confidentiality. Together, Rules 119 and 206 now require the Office of Enforcement to commence making documents available fourteen days after service of the notice of charges and to notify third parties who produced documents subject to that disclosure requirement under a claim of confidentiality at least seven days before producing those documents.

Under the 2012 Rule, Rule 206(e) provided that the Office of Enforcement must make the documents available for inspection and copying at the Bureau's office where they are ordinarily maintained. The preamble to the 2012 Rule explained that the Bureau anticipated providing electronic copies of documents to respondents in most cases. 14 Subsequently, the Updated Rules of Practice amended Rule 206(e) to recognize this practice and expressly provide that the Office of Enforcement may produce those documents in an electronic format rather than making the documents available for inspection and copying. Under the amended Rule 206(e), the Office of Enforcement retains the discretion to make documents available for inspection and copying.

No comments opposed the amendments to Rule 206, and the Bureau is retaining them.

The Updated Rules of Practice made certain interrelated changes to 12 CFR 1081.208 and 1081.209 (Rules 208 and 209).

Under the 2012 Rule, Rule 209 permitted parties to take depositions only if the witness was unable to attend or testify at a hearing. As the Bureau noted in the preamble to the 2012 Rule, the Bureau's Rules of Practice were modeled in part on the approach that the SEC took in its rules of practice. 15 Since that time, the SEC has amended its rules of practice to permit discovery depositions. 16

The Updated Rules of Practice amended Rule 209 to permit discovery depositions—either by oral examination or written questions—in addition to depositions of unavailable witnesses. If a proceeding involves a single respondent, amended Rule 209(a)(1) allows the respondent and the Office of Enforcement to each depose up to three persons ( i.e., up to three depositions per side). If a proceeding involves multiple respondents, amended Rule 209(a)(2) allows respondents to collectively depose up to five persons and the Office of Enforcement to depose up to five persons ( i.e., up to five depositions per side). This approach is consistent with the approach the SEC adopted when it amended its rules of practice to allow depositions. 17 Under Rule 209(a)(3), a party may also move to take additional depositions, though that motion must be filed no later than 28 days prior to the hearing date. Amended Rule 209(a)(3) also sets forth the procedure for requesting to taking additional depositions.

The preamble to the Updated Rules of Practice explained that the above amendments to Rule 209 are intended to provide parties with further opportunities to develop arguments and defenses through deposition discovery, which may narrow the facts and issues to be explored during the hearing. Allowing depositions should facilitate the development of the case during the prehearing stage, which may result in more focused prehearing preparations, with issues distilled for the hearing and post-hearing briefing.

Under amended Rules 208(a) and 209(a), a party must request that the hearing officer issue a subpoena for the deposition. If the subpoena is issued, under amended Rule 209(d) the party must also serve written notice of the deposition. New Rule 208(e) governs the standard for issuance of subpoenas seeking depositions upon oral examination. Under Rule 208(e), the hearing officer will promptly issue any subpoena requiring the attendance and testimony of witnesses at a deposition only if the subpoena complies with Rule 209 and if the proposed deponent: (i) is a witness identified in the other party's scheduling conference disclosure now required under revised Rule 203(b); (ii) a fact witness;  18 (iii) is a designated expert witness under 12 CFR 1081.210(b) (Rule 210(b)); or (iv) a document custodian. 19 The preamble to the Updated Rules of Practice explained that fact witnesses, expert witnesses, and document custodians, whose knowledge of relevant facts does not arise from the Bureau's investigation, the Bureau's examination, or the proceeding, are the individuals most likely to have information relevant to the issues to be decided. Because the Bureau will also disclose to respondents the documents described in Rule 206 as well as witness statements upon request under 12 CFR 1081.207 (Rule 207), deposing Bureau staff whose only knowledge of relevant facts arose from the investigation, examination, or proceeding is unlikely to shed light on the events underlying the proceeding and will likely lead to impermissible inquiries into the mental processes and strategies of Bureau attorneys or staff under their direction. Not only does this implicate privileges or the work-product doctrine, but deposition of Bureau staff in this manner can be burdensome and disruptive because it embroils the parties in controversies over the scope of those protections.

The Updated Rules of Practice also amended Rule 208(e)(2) to provide a process for the hearing officer to request more information about the relevance or scope of the testimony sought and to refuse to issue the subpoena or issue it only upon conditions. The preamble to the Updated Rules of Practice explained that this provision is intended to foster use of depositions where appropriate and encourage meaningful discovery, within the limits of the number of depositions provided per side. The provision should encourage parties to focus any requested depositions on those persons most likely to yield relevant information and thereby make efficient use of time during the prehearing stage.

Under the 2012 Rule, Rule 208(a) permitted parties to request issuance of subpoenas requiring the attendance and testimony of witnesses at the designated time and place of the hearing, for the production of documentary or other tangible evidence, or for the deposition of a witness who will be unavailable for the hearing. Rule 210 also permitted the deposition of expert witnesses. The Updated Rules of Practice kept these provisions, making conforming amendments to account for the new provision permitting discovery depositions. A subpoena seeking the deposition of a witness who will be unavailable for the hearing does not count against the number of depositions permitted under Rule 209(a).

As the preamble to the Updated Rules of Practice explained, the above amendments expand the available legitimate mechanisms respondents may use to conduct discovery, providing respondents a clearer understanding of the bases of the Bureau's factual contentions while reducing the costs and burdens of hearings on all parties. Additionally, the grounds for a hearing officer denying a request to issue a subpoena under Rule 208(e)—that it is “unreasonable, oppressive, excessive in scope, or unduly burdensome”—are consistent with well-established judicial standards, and hearing officers will, in their consideration of requests for subpoenas, act diligently and in good faith to implement the standards for refusing or modifying deposition subpoenas set forth under the amended rule. These combined changes are overall less burdensome yet are equally effective in the resolution of the case on the merits.

Amended Rule 209 also includes additional procedures governing the taking of depositions. For example, once a subpoena for a deposition is issued, the party seeking the deposition must serve written notice of the deposition pursuant to Rule 209(d). That notice must include several things, including the time and place of the deposition, the identity of the deponent, and the method for recording the deposition. The preamble to the Updated Rules of Practice explained that these procedural provisions track the SEC's recent amendments to its rules of practice. 20 They govern the process for seeking depositions by written questions and the taking of all depositions, including setting forth the deposition officer's duties, the process for stating objections, motions to terminate or limit the deposition, and the process for finalizing a transcript.

Finally, the Updated Rules of Practice added a new Rule 208(l), which addresses the relationship of subpoenas to the scheduling of the hearing. In the 2012 Rule, one reason why the Bureau did not—as a general matter—permit discovery depositions was because the additional time required for depositions before the hearing could be in tension with the statutory timetable for hearings under section 1053(b) of the CFPA. 21 As the preamble to the 2012 Rule noted, prehearing depositions would present extreme scheduling difficulties in those cases in which respondents did not request hearing dates outside the default timeframe under section 1053(b), which provides for the hearing to be held 30 to 60 days after service of the notice of charges, unless an earlier or a later date is set by the Bureau, at the request of any party so served. 22 The new Rule 208(l) addresses this scheduling obstacle to depositions and other discovery, by specifying that a respondent's request for issuance of a subpoena constitutes a request that the hearing not be held until after a reasonable period, determined by the hearing officer, for the completion of discovery. 23 This is because a request for discovery reasonably entails a delay for the discovery process to be completed.

The preamble to the Updated Rules of Practice explained that, given this resolution of the 2012 Rule's scheduling concern, the Bureau believes that the benefits of discovery depositions under the amended Rule 209, as described earlier, outweigh other concerns expressed in the preamble to the 2012 Rule about the time, expense, and risk of collateral disputes arising from depositions. 24

The comment that the Bureau received from a consumer advocacy organization supported the amendments to Rules 208 and 209. The consumer advocacy organization stated that discovery depositions would allow respondents to further develop their cases, which should lead to a more informed and deliberative process. It also stated that the amendments should prevent disruption from surprise witnesses. No comments opposed the amendments to Rules 208 and 209, and the Bureau is retaining them.

12 CFR 1081.211 (Rule 211) governs interlocutory review by the Director. Under the 2012 Rule, the provision included language stating that interlocutory review is disfavored, and that the Director will grant a petition to review a hearing officer's ruling or order prior to the Director's consideration of a recommended decision only in extraordinary circumstances. The Updated Rules of Practice simplified this language to state only that interlocutory review is generally disfavored. The preamble explained that, although interlocutory review remains disfavored, the Bureau believes that there can be situations where interlocutory review can contribute to the efficiency of proceedings short of extraordinary circumstances.

No comments opposed the amendment to Rule 211, and the Bureau is retaining it.

The Updated Rules of Practice relocated the previous 12 CFR 1081.212(g) and (h) (Rule 212(g) and (h)), which addressed oral argument and decisions on dispositive motions, respectively, to form part of 12 CFR 1081.213 (Rule 213). Rule 213 is discussed in the next section of this section-by-section analysis.

Additionally, the Updated Rules of Practice added new Rule 212(g) to address the relationship of dispositive motions to the scheduling of the hearing. It is codified as Rule 212(g) but unrelated to the previous Rule 212(g). It is analogous to Rule 208(l), discussed above. It specifies that a respondent's filing of a dispositive motion constitutes a request that the hearing not be held until after the motion is resolved. 25 This is because the filing of a dispositive motion, whose purpose is to avoid or limit the need for a hearing, reasonably entails a delay of that hearing so that the motion can be resolved.

No comments opposed the amendments to Rule 212, and the Bureau is retaining them.

The Updated Rules of Practice amended Rule 213 to adopt a new procedure for rulings on dispositive motions, based on a procedure used by the Federal Trade Commission (FTC). The Bureau also made related technical changes for clarity.

Under the 2012 Rule, the Director could, “at any time, direct that any matter be submitted to him or her for review.”  26 However, prior to the Updated Rules of Practice, there was no specific procedure for the Director to exercise this discretion in the context of dispositive motions.

As amended by the Updated Rules of Practice, Rule 213(a) provides that the Director will either rule on a dispositive motion, refer the motion to the hearing officer, or rule on the motion in part and refer it in part. This is based on a similar process under the FTC's rules of practice. 27 The preamble to the Updated Rules of Practice noted that Bureau agrees with the reasoning of the FTC when it adopted this process a decade ago. The FTC explained that the head of the agency has authority and expertise to rule initially on dispositive motions, and doing so can improve the quality of decision-making and expedite the proceeding. 28 As the FTC further noted, an erroneous decision by an administrative law judge on a dispositive motion may lead to unnecessary briefing, hearing, and reversal, resulting in substantial costs and delay to the litigants. 29 The preamble to the Updated Rules of Practice explained that adopting this process will give the Director the flexibility to decide whether a given dispositive motion would be most efficiently addressed by the hearing officer, with ultimate review by the Director, or simply by the Director.

Rule 213(b) was amended to provide that, if the Director rules on the motion, the Director must do so within 42 days following the expiration of the time for filing all responses and replies, unless there is good cause to extend the deadline. If the Director refers the motion to the hearing officer, the Director may set a deadline for the hearing officer to rule. This was based on the parallel timing requirements under the FTC's rules of practice. 30 Under the 2012 Rule, Rule 212(h) provided a 30-day timeframe for the hearing officer to decide dispositive motions, subject to extension. 31 But the preamble to the Updated Rules of Practice stated that the FTC's somewhat more flexible approach to timing is warranted, given that the Director must first decide whether or not to refer the motion to the hearing officer and also has other responsibilities as the head of the agency. The preamble stated that that the overall efficiency gains to adjudication proceedings from the new process, as discussed above, should generally compensate for any delays associated with a more flexible deadline.

Rule 213(c) was amended to provide that, at the request of any party or on the Director or hearing officer's own motion, the Director or hearing officer (as applicable) may hear oral argument on a dispositive motion. The amended Rule 213(c) was identical to the previous Rule 212(g), except that it was updated to reflect the fact that the Director would be the appropriate official to hear oral argument, if any, to the extent the Director is deciding the motion.

Finally, Rule 213(d) was amended to describe the types of rulings that the Director or hearing officer may make on a dispositive motion. It consolidated language from the previous Rules 212(h) and 213, with updates to reflect the fact that the Director may be the official who decides the motion, as well as other technical changes for clarity.

The comment by a group of trade associations opposed the amendments to Rule 213. This comment argued that having the Director decide dispositive motions is inconsistent with due process. It asserted that the Director is not impartial, since the Director would have previously authorized the Office of Enforcement to file the notice of charges. The comment further argued that Directors can change depending on the administration, so vesting authority in the Director would lead to instability in legal doctrine.

The Bureau disagrees. The Director can and will act fairly in performing his or her adjudicative functions. The Director's ability to do so is unaffected by whether he or she decides that a dispositive motion would be most efficiently addressed by the hearing officer, with ultimate review by the Director, or simply by the Director. Also, as noted, it was already the case under the 2012 Rule that the Director could, “at any time, direct that any matter be submitted to him or her for review.” The adoption of a specific process for review of dispositive motions does not substantively change the Director's adjudicative role. In sum, Rule 213 is entirely consistent with due process principles.

The Bureau also disagrees with the suggestion that the changes to Rule 213 will lead to instability in legal doctrine. Commenters' observation that leadership of the agency will change over time, including as presidential administrations change, is true regardless of whether the Director or the hearing officer reviews a dispositive motion in the first instance. It is also true of many other agencies that use adjudication proceedings, including both single-head and multimember agencies.

Accordingly, the Bureau is retaining the amendments to Rule 213.

12 CFR 1081.400(a) (Rule 400(a)) sets the deadline for the hearing officer to file preliminary findings and conclusions. Under the 2012 Rule, subject to possible extensions, the hearing officer was required to file a recommended decision (now known as “preliminary findings and conclusions”) no later than 90 days after the deadline for filing post-hearing responsive briefs pursuant to 12 CFR 1081.305(b) (Rule 305(b)) and in no event later than 300 days after filing of the notice of charges. The Updated Rules of Practice extended the latter, 300-day interval to 360 days, in light of the amendments to Rule 209 that expanded the opportunities for depositions. The Updated Rules of Practice also changed terminology from “recommended decision” to “preliminary findings and conclusions” throughout the Rules of Practice, as discussed later in this section-by-section analysis.

The comment by a consumer advocacy organization supported the extension of the 300-day deadline to 360 days. It noted that the extension would benefit respondents by giving them more time to develop their cases and would provide for a more informed and deliberative agency process. Other commenters did not address the amendments to Rule 400(a), and the Bureau is retaining them.

The Updated Rules of Practice added a new 12 CFR 1081.408 (Rule 408), which addresses issue exhaustion.

As the Supreme Court has explained: “Administrative review schemes commonly require parties to give the agency an opportunity to address an issue before seeking judicial review of that question.”  32 These requirements can be “creatures of statute or regulation” or else are “judicially created.”  33 It is “common for an agency's regulations to require issue exhaustion in administrative appeals. And when regulations do so, courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.”  34 Consistent with the Court's case law, the Administrative Conference of the United States has recommended that agencies address issue exhaustion requirements in their regulations. 35

The Updated Rules of Practice adopted Rule 408, which is an express regulation on issue exhaustion. Section 1053 of the CFPA contemplates that the Bureau will conduct a proceeding to decide whether to issue a final order, and then parties may petition courts to review the Bureau's decision, based on the record that was before the Bureau. 36 But if parties do not adequately present their arguments to the Bureau, it frustrates this statutory scheme. Accordingly, having procedures to address issue exhaustion in adjudication proceedings is important to carry out section 1053. 37 Additionally, having express procedures on this subject should benefit both the Bureau and the parties, by avoiding any potential confusion about how parties must raise arguments in adjudication proceedings.

Rule 408(a) defines the new Rule 408's scope. It applies to any argument to support a party's case or defense, including any argument that could be a basis for setting aside Bureau action under 5 U.S.C. 706 or any other source of law. This broad scope ensures that the Bureau has the opportunity to consider any issue affecting its proceedings.

Rule 408(b) provides, first, that a party must raise an argument before the hearing officer, or else it is not preserved for later consideration by the Director. Second, a party must raise an argument before the Director, or else it is not preserved for later consideration by a court. This is consistent with the roles of the hearing officer and Director. 38

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to 14 CFR 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments, and will consider comments filed late if it is possible to do so without incurring delay. The FAA may change these special conditions based on the comments received.

On August 19, 2022, Boeing applied for an amendment to Type Certificate No. T00001SE to include the new Model 777-9 series airplane. The Boeing Model 777-9 series airplane, which is a derivative of the Model 777-300ER currently approved under Type Certificate No. T00001SE, is a twin-engine, transport category airplane, with capacity for 495 passengers, and a maximum takeoff weight of 775,000 pounds.

Under the provisions of title 14, Code of Federal Regulations (14 CFR), § 21.101, Boeing must show that the Model 777-9 airplane meets the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-9 series airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-9 series airplane must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Boeing Model 777-9 series airplane will incorporate the following novel or unusual design feature:

This design feature is the installation of large, non-structural glass in the passenger cabin. Possible installations of large non-structural glass items include, but are not limited to, the following items:

The installation of these glass items in the passenger compartment, which can be occupied during taxi, take-off and landing (TT&L), is a novel or unusual design feature with respect to the installed material. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features.

The use of glass results in trade-offs between the one unique characteristic of glass—its capability for undistorted or controlled light transmittance, or transparency—and the negative aspects of the material. Glass, in its basic form as annealed, untreated sheet, plate, or float glass, when compared to metals, is extremely notch-sensitive, has a low fracture resistance, has a low modulus of elasticity, and can be highly variable in its properties. While reasonably strong, it is nonetheless not a desirable material for traditional airplane applications because it is heavy (about the same density as aluminum), and when it fails, it breaks into extremely sharp fragments that have the potential for injury, and which have been known to be lethal. Thus, the use of glass traditionally was limited to windshields, and instrument or display transparencies. The regulations in 14 CFR 25.775 only address, and likewise only recognize, the unique use of glass in windshield or window applications where no other material will serve. This regulation does address the adverse properties of glass, but pilots occasionally are injured from shattered glass windshields.

The FAA divides other uses of glass in the passenger cabin into four groups. These groups were created to address the practical and functional uses of glass. The four groups are as follows:

The first group is glass items installed in rooms or areas in the cabin that are not occupied during taxi, takeoff, and landing (TT&L), and a person does not have to enter or pass through the room or area to get to any emergency exit.

The second group is glass integrated into a functional device the operation of which is dependent upon the characteristics of glass, such as instrument or indicator protective transparencies, or monitor screens such as liquid crystal displays or plasma displays. This group may be installed in any area in the cabin regardless of occupancy during TT&L. Acceptable means of compliance for these items may depend on the size and specific location of the device containing the glass.

The third group is small glass items installed in occupied rooms or areas during TT&L, or rooms or areas that a person does not have to enter or pass through to get to any emergency exit. The FAA defines a small glass item as less than 8.8 lbs (4 kg) in mass.

The fourth group is large glass items, the subject of these special conditions, installed in occupied rooms or areas during TT&L, or rooms or areas that a person must enter or pass through to get to any emergency exit. A large glass item is defined as 8.8 lbs (4 kg) or greater in mass. Groups of glass items that collectively weigh 4 kg or more would also be included. The mass is based on the amount of glass that becomes hazardous in high inertial loads.

The glass items in groups one, two, and three are restricted to applications where the potential for injury is either highly localized, such as flight-instrument faces, or the location is such that injury due to failure of the glass is unlikely, for example mirrors in lavatories, because these installations necessitate the use of glass. These glass items typically are addressed in a method-of-compliance issue paper for each project based on existing part 25 regulations, or in established policy. These issue papers identify specific tests that could include abuse loading and ball-impact testing. In addition, these items are subject to the inertia loads contained in § 25.561, and maximum positive-differential pressure for items like video monitors to meet § 25.789.

The items in group four are much larger and heavier than previously approved, and raise additional safety concerns. These large, heavy glass panels, primarily installed as architectural features, were not envisioned in the regulations. The unique aspects of glass, with the potential to become highly injurious or lethal objects during emergency landing, minor crash conditions, or in flight, warrant a unique approach to certification that addresses the characteristics of glass that prevented its use in the past. These special conditions were developed to ensure that airplanes with large glass features in passenger cabins provide the same level of safety as airplanes using traditional, lightweight materials. The FAA reiterates this intention in the text of the special conditions by qualifying their use for group four glass items.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Boeing Model 777-9 airplane. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.

This action affects only a certain novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for The Boeing Company Model 777-9 series airplanes.

For large glass items (a single item, or a collective group of glass items, that weigh 4 kg or more in mass) installed in passenger-occupied rooms or areas during taxi, takeoff, and landing, or installed in rooms or areas that occupants must enter or pass through to access any emergency exit, the glass installations on the Boeing Model 777-9 series airplanes must meet the following conditions:

1. Material Fragmentation—The glass used must be tempered or otherwise treated to ensure that when fractured, it breaks into small pieces with relatively dull edges. The glass component installation must retain all glass fragments to minimize the danger from flying glass shards or pieces. The applicant must demonstrate this by impact and puncture testing and testing to failure.

2. Strength—The glass component must be strong enough to meet the load requirements for all flight and landing loads, including any of the applicable emergency landing conditions in subparts C & D of 14 CFR part 25. In addition, glass components that are located such that they are not protected from contact with cabin occupants must not fail due to abusive loading, such as impact from occupants stumbling into, leaning against, sitting on, or performing other intentional or unintentional forceful contact. The effect of design details such as geometric discontinuities or surface finish e.g., embossing, etching, etc., must be assessed.

3. Retention—The glass component, as installed in the airplane, must not come free of its restraint or mounting system in the event of an emergency landing. Both the directional loading and rebound conditions must be assessed. The effect of design details such as geometric discontinuities or surface finish e.g., embossing, etching, etc., must be assessed.

4. Instructions for Continued Airworthiness—The instructions for continued airworthiness must reflect the fastening method used and must ensure the reliability of the methods used ( e.g., life limit of adhesives, or clamp connection). Inspection methods and intervals must be defined based upon adhesion data from the manufacturer of the adhesive or actual adhesion test data, if necessary.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it as it amends airspace for Middle Georgia Regional Airport, Macon, GA, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2022-1614 in the Federal Register (87 FR 78885; December 23, 2022), amending Class D airspace, Class E surface airspace, and Class E airspace extending upward from 700 feet above the surface at Middle Georgia Regional Airport, Macon, GA.

Subsequent to the publication of the Notice of Proposed Rulemaking, the FAA found the Macon Class D and Class E2 language incorrectly described the southwest point of intersection between the Middle Georgia Regional 4.9-mile radius, the Robins AFB 5.5-mile radius, and the Middle Georgia Regional 210 degree bearing. These three points do not converge together and are in excess of 300 feet. There was a similar discrepancy found for the northeast point of intersection. The three references do not converge together on the 65-degree bearing, where it intersects the Robins AFB 5.5-mile radius and the Middle Georgia 4.9-mile radius. This action updates the Macon Class D and Class E2 descriptions with the appropriate language.

Class D and E airspace designations are published in paragraphs 5000, 6002, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace for Middle Georgia Regional Airport by extending the airspace from a 4.1-mile radius to a 4.9-mile radius surrounding the airport. Class E surface airspace for Middle Georgia Regional Airport is amended by extending the airspace from a 4.1-mile radius to a 4.9-mile radius surrounding the airport. The Class E airspace extending upward from 700 feet above the surface is amended to within a 7.4-mile radius of Middle Georgia Regional Airport (reduced from a 7.8-mile radius). The Class E airspace extending upward from 700 feet above the surface is amended to within a 7.5-mile radius of Macon Downtown Airport (reduced from an 8.8-mile radius).

In addition, this action replaces the outdated terms Airport/Facility Directory with the term Chart Supplement and Notice to Airmen with the term Notice to Air Missions in the airspace descriptions.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The Coast Guard will enforce a safety zone for the French Quarter Festival fireworks display from 7:30 to 8:45 p.m. on April 13, 2023. The safety zone will be enforced for all navigable waters of the Lower Mississippi River, New Orleans, LA from MM 94 to MM 95. In the event of inclement weather, the safety zone will be enforced from 7:30 to 8:45 p.m. on April 14, 2023. During the enforcement period, as reflected in § 165.845 paragraphs (a) through (d), entry into this zone is prohibited to all vessels and persons except vessels authorized by the COTP or designated representative. A designated representative means any Coast Guard commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of Sector New Orleans. Persons and vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67 or by telephone at (504) 365-2545. Persons and vessels permitted to enter this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via Marine Safety Information Bulletin and Broadcast Notice to Mariners.

The supplementary information in this preamble is organized as follows:

The amendments promulgated in this final rule apply to industries that are subject to the current provisions of 40 CFR parts 51, 60, and 63. We did not list all the specific affected industries or their North American Industry Classification System (NAICS) codes herein since there are many affected sources in numerous NAICS categories. If you have any questions regarding the applicability of this action to a particular entity, consult either the air permitting authority for the entity or your EPA Regional representative as listed in 40 CFR 63.13.

We are promulgating corrections and revisions to source test methods, performance specifications (PS), and associated regulations. The revisions correct typographical and technical errors, provide updates to testing procedures, and add clarity and consistency among monitoring requirements.

Under section 307(b)(1) of the Clean Air Act (CAA), judicial review of this final rule is available by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by May 30, 2023. Under section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. Moreover, under section 307(b)(2) of the CAA, the requirements that are the subject of this final rule may not be challenged later in civil or criminal proceedings brought by the EPA to enforce these requirements.

The EPA catalogs errors and corrections, as well as necessary revisions to test methods, performance specifications, and associated regulations in 40 CFR parts 51, 60, and 63 and periodically updates and revises these provisions. The most recent updates and revisions were proposed on April 26, 2022 (87 FR 24488). The public comment period for the present proposed revisions ended June 27, 2022, and 11 comment letters were received from the public. This final rule was developed based on public comments that the agency received on the proposed rule.

The EPA is incorporating by reference two ASTM International (ASTM) standards. Specifically, the EPA has incorporated ASTM D6216-20, which covers the procedure for certifying continuous opacity monitors and includes design and performance specifications, test procedures, and quality assurance (QA) requirements to ensure that continuous opacity monitors meet minimum design and calibration requirements necessary for accurate opacity monitoring measurements in regulatory environmental opacity monitoring applications subject to 10 percent or higher opacity standards. The EPA also updated the incorporation by reference for ASTM D6784, a test method for elemental, oxidized, particle-bound, and total mercury in emissions from stationary sources, from the 2002 version to the 2016 version. This update applies to incorporations by reference in 40 CFR part 60, appendix B, Performance Specification 12A for continuous monitoring of mercury emissions. The EPA updated the incorporations by reference in 40 CFR part 63 for use of ASTM D6784 under table 5 and appendix A of Subpart UUUUU, for mercury emissions measurement and monitoring. Both the ASTM D6216-20 and ASTM D6784-16 standards were developed and adopted by the ASTM International. The ASTM standards may be obtained from www.astm.org or from the ASTM at 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959.

The EPA also is incorporating by reference the Standard Methods Committee Method 5210 Biochemical Oxygen Demand (BOD) from “Standard Methods for the Examination of Waste and Wastewater.” This standard is acceptable as an alternative to method 405.1 and is available from the Standards Method Committee at www.standardmethods.org or by telephone at (844) 232-3707.

The EPA also made specific modifications to requirements in an existing incorporation by reference, the ASTM E2515-11 test method. The stipulations modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run.

The following standards are already currently incorporated in the location where they appear in the rule: ANSI/ASME PTC 19.10-1981, ASTM-D6348-03. ASTM-D6348-03(R2010), ASTM-D6522-00 (2005).

In method 201A, the erroneous equation 25 in section 12.5 is corrected.

In the General Provisions of part 60, § 60.17(h) is revised to add ASTM D6216-20 and D6784-16 to the list of incorporations by reference and to re-number the remaining consensus standards that are incorporated by reference in alpha-numeric order.

Subpart AAA is amended to add stipulations for use of the ASTM E2515-11 test method. The stipulations modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the quality assurance/quality control (QA/QC) requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the particulate matter (PM) results from a non-leaking sampling system with those from a leaking sampling system, which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination.

We revised the language in § 60.534(c) and developed new language to replace ASTM E2515-11, section 9.6.5.1 by adding § 60.534(c)(1), which specifies appropriate post-test leak check procedures and in § 60.534(c)(2) by adding procedures for performing leak checks during a sampling run. These modifications bring appropriate QA/QC requirements to PM measurements required by the rule and eliminate opportunity for emissions test results to be considered valid when a leaking sampling system allows dilution of the PM sample(s). This language was amended slightly based on comments received to further clarify that sample volume collected during the process of conducting leak checks during a test run is not to be included in the overall sampling volume as it would dilute the collected sample volume were it treated in that manner.

In § 60.534(d), the first hour PM emissions measurements are to be conducted using a separate ASTM E2515-11 sampling train operated concurrently with the paired ASTM E2515-11 sampling trains used in compliance PM sampling. In this manner, the first hour PM emissions will be collected appropriately, and the compliance test measurements will not be impacted by a sampling pause for filter replacement at the 1-hour mark.

The regulatory language in § 60.539b(b) is revised to include General Provisions that were added to § 60.8(f)(2) (81 FR 59801, August 30, 2016) and were inadvertently exempted from inclusion in subpart AAA as that rule, as promulgated in 2015, exempted § 60.8(f) in its entirety. The exemption promulgated in subpart AAA at § 60.539b(b) was intended to exempt those affected sources from § 60.8(f), which, at the time, consisted of what is now currently § 60.8(f)(1) and is specific to compliance testing results consisting of the arithmetic mean of three replicate tests. These modifications will ensure that emissions test reporting includes all data necessary to assess and assure the quality of the reported emissions data and appropriately describes and identifies the specific unit covered by the emissions test report. Since compliance tests in this category consist of a single test, the original regulatory exemption to the General Provisions of § 60.8(f)(1) is retained.

The erroneous PM emission limits in g/MJ in § 60.5474(b)(2), (3) and (6) are corrected.

In addition, subpart QQQQ is amended to add stipulations for use of the ASTM E2515-11 test method. The stipulations modify the post-test leak check procedures as well as add procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the QA/QC requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the PM results from a non-leaking sampling system with those from a leaking sampling system, which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination. The language in § 60.5476(c)(5) and (6) is removed and the paragraphs are reserved.

We revised the language in § 60.5476(f) and developed new language to replace ASTM E2515-11, section 9.6.5.1 by adding § 60.5476(f)(1), which specifies appropriate post-test leak check procedures and in § 60.5476(f)(2) by adding procedures for performing leak checks during a sampling run. These modifications bring appropriate QA/QC requirements to PM measurements required by the rule and eliminate opportunity for emissions test results to be considered valid when a leaking sampling system allows dilution of the PM sample(s). This language was amended slightly based on comments received to further clarify that sample volume collected during the process of conducting leak checks during a test run should not be included in the overall sampling volume as it would dilute the collected sample volume were it treated in that manner.

In § 60.5476(f), we are also requiring that first hour PM emissions measurements be conducted using a separate ASTM E2515-11 sampling train operated concurrently with the paired ASTM E2515-11 sampling trains used in compliance PM sampling. In this manner, the first hour PM emissions will be collected appropriately, and the compliance test measurements will not be impacted by a sampling pause for filter replacement at the one-hour mark. In § 60.5476(f), we incorporated language about filter type and size acceptance currently in § 60.5476(c)(5). Additionally, we removed language relating to EN 303-5 currently found in § 60.5476(f).

The regulatory language in § 60.5483(b) is revised to include General Provisions that were added to § 60.8(f)(2) (81 FR 59801, August 30, 2016) and were inadvertently exempted from subpart QQQQ as that rule, as promulgated in 2015, exempted § 60.8(f) in its entirety. The exemption promulgated in subpart QQQQ at § 60.5483(b) was intended for those affected sources subject to § 60.8(f), which, at the time, consisted of what is currently § 60.8(f)(1) and is specific to compliance testing results consisting of the arithmetic mean of three replicate tests. These modifications ensure that emissions test reporting includes all data necessary to assess and assure the quality of the reported emissions data and appropriately describes and identifies the specific unit covered by the emissions test report. Since compliance tests in this category consist of a single test, the original regulatory exemption to the General Provisions of § 60.8(f)(1) is retained.

In subpart QQQQ, in method 28WHH, in section 13.8, the erroneous CO calculation instructions for equation 23 are corrected to include the summation of CO emissions over four test categories instead of three.

In method 1, the heading in section 11.5.1 is moved to 11.5, and the word “procedure” is moved to the first sentence in section 11.5.1 for clarity. Section 11.5.2 is revised to clearly specify the number of traverse points that must be used for sampling and velocity measurements once a directional flow-sensing probe procedure has been used to demonstrate that an alternative measurement site is acceptable. The last sentence of section 11.5.2, which appears unclear as to what “same traverse point number and locations” it is referring, is revised to instead specify the “same minimum of 40 traverse points for circular ducts and 42 points for rectangular ducts” that are used in the alternative measurement procedure of section 11.5.3.

Also, table 1-2 is revised to correct the erroneous requirement that calls for 99.9 percent of stack diameter from the inside wall to the traverse point to 98.9 percent.

In method 4, table 4-3 is formatted correctly.

In method 7, section 10.1.3 is revised to change the word “should” to “shall” in the last sentence because the difference between the calculated concentration values and the actual concentrations are required to be less than 7 percent for all standards.

In method 19, the erroneous equation 19-5 is corrected.

In method 25, a record and report section (section 12.9) was added to confirm that the quality control (QC) is successfully performed. Also, the erroneous figure 25-6 is corrected.

In method 25C, in response to a comment, the first sentence in section 9.1 is corrected to read, “If the 3-year average annual rainfall is greater than 20 inches, verify that landfill gas sample contains less than 20 percent N 2 or 5 percent O 2 .” Also, the nomenclature in section 12.1 for C N2 and C mN2 is revised to provide clarity. More specifically, C N2 is changed from “N 2 concentration in the diluted sample gas” to “N 2 concentration in the landfill gas sample,” and the C mN2 is changed from “Measured N 2 concentration, fraction in landfill gas” to “Measured N 2 concentration, diluted landfill gas sample.”

In method 26, erroneous equations 26-4 and 26-5 in sections 12.4 and 12.5, respectively, are revised to be consistent with the nomenclature in section 12.1.

In Performance Specification 1, references to ASTM D6216-12 (in sections 2.1, 3.1, 6.1, 8.1(1), (2)(iii), and (3)(ii), 8.2(1) through (3), 9.0, 12.1, 13.1, 13.2, and 16.0, reference 8) are replaced with ASTM D6216-20. Note: If the initial certification of the continuous opacity monitoring system (COMS) has already occurred using D6216-98, D6216-03, D6216-07, or D6216-12, it will not be necessary to recertify using D6216-20.

Also, in Performance Specification 1, section 8.1(2)(iii) is revised by removing the next to the last sentence, which reads, “The opacities of the two locations or paths may be measured at different times but must represent the same process operating conditions,” because the statement is confusing and unclear; furthermore, it is unlikely that one would achieve the same conditions at two different times.

In Performance Specification 2, in section 8.3.3, a sentence is added to clarify that during a calibration, the reference gas is to be introduced into the sampling system prior to any sample conditioning or filtration equipment and must pass through as much of the probe as is practical. In section 12.5, minor revisions are made to clarify that relative accuracy (RA) test results are expressed as a percent of emission rate or concentration (units of the applicable standard) and the definition of the average reference method (RM) value for Equation 2-6.

The entire Performance Specification 4B is updated to the Environmental Monitoring Management Council (EMMC) methods format used for all other performance specifications. In response to comment, some of the references to other sections are replaced with text.

In Performance Specification 6, section 13.2 is revised to specifically state the relative accuracy criteria including significant figures. On October 7, 2020 (85 FR 63394), we revised section 13.2 of Performance Specification 6 to make the relative accuracy calculations and criteria consistent with Performance Specification 2 and offer an alternate calculation and criterion for low emission concentration/rate situations; however, we neglected to specifically cite the alternate relative accuracy criterion from Performance Specification 2 for low emission sources and to ensure consistency with Performance Specification 2 with regard to significant figures in the relative accuracy criteria. In response to comment, we are adding “you may elect to” to the last sentence in section 13.2 to clarify that the 10% RA is an option as opposed to a requirement.

We are revising the references (in sections 8.4.2, 8.4.4, 8.4.5, 8.4.6.1, and 17.5 and the footnote to Figure 12A-3) to ASTM D6784, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), to update them from the 2002 version to the latest version, which was authorized in 2016.

The capabilities of mercury CEMS have improved since initial deployment to support regulations over a decade ago. Therefore, we are revising section 13.3 to modify the alternative relative accuracy criterion such that: (1) it applies only at mercury concentrations less than 2.5 µg/scm and (2) the difference between the average reference method and CEMS values added to the confidence coefficient is now 0.5 µg/scm. This revised criterion is consistent with revisions that we made to the mercury monitoring requirements in 40 CFR part 63, subpart UUUUU (81 FR 20172, April 6, 2016).

In Performance Specification 16, several corrections and modifications are made to clarify the intent of the requirements. In section 1.1, the language is revised to make it clear that if a PEMS (predictive emission monitoring system) contains a diluent component, then the diluent component must be tested as well. Also, in section 1.1, the language referring to PS-17 is removed because PS-17 was not promulgated.

In sections 3.11 and 3.12, language is added to define commonly used acronyms, and in section 3.12, the language is corrected to indicate that the relative accuracy test audit (RATA) is to be conducted as specified in section 8.2.

In section 9.1, the QA/QC Summary chart is corrected to reflect the language found in section 2.2, which indicates that the relative accuracy audit (RAA) is required on all PEMS and not just those classified as compliance PEMS. The QA/QC Summary Chart is also modified to align the criteria for a RAA with that found in section 13.5.

In section 9.4, we proposed to correct the language stating a RATA is to be conducted at the normal operating level to indicate the RATA is to be conducted as specified in section 8.2. Also in section 9.4, we proposed to remove the statement that the statistical tests in section 8.3 are not required for the yearly RATA. However, based on public comment, we are not making any revisions to section 9.4 at this time.

In section 12.3.2, we proposed to remove the alternative criteria language because it does not apply to F-factor determinations. However, based on public comment, we have decided not to make changes to section 12.3.2 at this time.

In sections 13.1 and 13.5, the language is modified to add the corresponding alternative criteria in units of lb/mmBtu. Although, we did not propose a change in the criteria for applying the 2 ppm difference in the proposed rule, we agree with a public comment that the 20 ppm criteria in section 13.5 should be the same as the 10 ppm criteria in section 13.1, so section 13.5 is revised to reflect this.

In Procedure 1, in section 4.1, a sentence is added to clarify that during a calibration, the reference gas is to be introduced into the sampling system prior to any sample conditioning or filtration equipment and must pass through as much of the probe as is practical. Section 5.2.3(2) is modified to refine the alternative cylinder gas audit (CGA) criteria in response to the use of analyzers with lower span values. In section 6.2, to provide clarity and clear up any confusion, the language referring to the relevant performance specification is removed, and the language referring to the use of equation 1-1 is inserted.

Regulated entities have pointed out that we did not include criteria for the system integrity check required in Procedure 5. In section 2.5, we clarified that ongoing daily calibration of the Hg CEMS must be conducted using elemental mercury reference gas. This is consistent with revisions that we made to the Hg monitoring requirements in 40 CFR part 63, subpart UUUUU (81 FR 20172, April 6, 2016). We revised the title of section 4.0 and added section 4.4 to explain more explicitly the procedure for conducting the system integrity check as well as to provide the criteria for passing the check. In response to comment, we changed “calendar” days to “operating” days in the first sentence in section 4.4 to provide harmonization with the Mercury Air Toxics Standards (MATS) Rule (40 CFR part 63, subpart UUUUU). Also, in response to comment, we revised the acceptance criteria for the system integrity check in section 4.4 to better comport with the MATS Rule. The acceptance criteria for the system integrity check now reads “The absolute value of the difference between the Hg CEMS output response and the reference gas must be less than or equal to 10.0 percent of the reference gas value or 0.8 µg/scm.”

In section 5.1.3, to add clarity, we inserted language referring to equation 1-1 of Procedure 1 for calculating relative accuracy.

In the General Provisions of part 63, § 63.14 is revised to: (1) add ASTM D6784-16 to paragraph (h) and (2) add “Standard Methods for the Examination of Waste and Wastewater” method 5210 to paragraph (u).

In subpart S, the existing reference in 40 CFR 63.457(c)(4) to method 405.1 of part 136 of chapter 40 for the measurement of biochemical oxygen demand (BOD) is no longer valid, as method 405.1 was withdrawn in 2007. It was replaced with Biochemical Oxygen Demand Standard Methods 5210 B (72 FR 11199, March 12, 2007), which has been previously approved in test plans for measuring BOD to demonstrate compliance with the requirements of subpart S. In § 63.457(c)(4), the reference to method 405.1 is replaced with reference to method 5210B. The parent method, method 5210, which includes method 5210B, is also incorporated by reference in 40 CFR 63.14.

In the appendix to subpart EEE, the erroneous language regarding an Interference Response Test in the introductory paragraph of section 5 is removed, and section 5.3 in its entirety is removed.

In 2009, revisions were made to § 63.3360(e)(1)(viii) to clarify that the results of method 25 or method 25A were being used to determine “total organic volatile matter” (85 FR 41276). At the time, the use of the terminology “total gaseous non-methane organic volatile organic matter” in § 63.3360(e)(1)(vi) was overlooked. We are revising § 63.3360(e)(1)(vi) by removing the term “non-methane” to be consistent with § 63.3360(e)(1)(viii).

We have received multiple inquiries regarding the requirements in table 4 of Subpart ZZZZ that are used to measure the exhaust gas moisture when measuring the concentration of carbon monoxide (CO), formaldehyde, or total hydrocarbon (THC) to demonstrate compliance with the rule. It was first pointed out that it is not always necessary to measure that exhaust gas moisture when measuring CO. We are adding language to all three sections of table 4 stating that that the moisture measurement is only necessary when needed to correct the CO, formaldehyde, THC and/or O 2 measurements to a dry basis.

In subpart PPPPP, the existing erroneous statement in § 63.9306(d)(2)(iv) is corrected to read, “Using a pressure sensor with measurement sensitivity of 0.002 inches water, check gauge calibration quarterly and transducer calibration monthly.” Also, in subpart PPPPP, the existing erroneous statement in § 63.9322(a)(1) is corrected to read, “The capture system meets the criteria in Method 204 of appendix M to 40 CFR part 51 for a permanent total enclosure (PE) and directs all the exhaust gases from the enclosure to an add-on control device.”

We are revising the references in sections 4.1.1.5 and 4.1.1.5.1 in subpart UUUUU, appendix A, to ASTM Method D6784, Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury in Flue Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method), to update them from the 2002 version to the latest version, which was authorized in 2016. In table 5, we are adding ASTM Method D6784-16 as a mercury testing option as it was inadvertently left out previously.

Section 16.2 is mislabeled as section 6.2 and is corrected.

In method 323, sections 10.1 and 10.3 are revised to require best laboratory practices. The nomenclature in section 12.1 is revised to include “b,” which is the intercept of the calibration curve at zero concentration and revise K c . These additions are necessary because equation 323-5 in section 12.6 is revised to reflect changes in calibration procedures for calculating the mass of formaldehyde.

Eleven comment letters were received from the public on the proposed rule. The public comments and the agency's responses are summarized in the Response to Comments document located in the docket for this rule. See the ADDRESSES section of this preamble.

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. The amendments to test methods, performance specifications, and testing regulations only make corrections, updates, and clarifications to existing testing methodology.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This final rule will not impose emission measurement requirements beyond those specified in the current regulations, nor does it change any emission standard.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

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. This action corrects and updates existing testing regulations. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only 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 action involves technical standards. The EPA used ASTM D6216-20 for continuous opacity monitors in Performance Specification 1. The ASTM D6216-20 standard covers the procedure for certifying continuous opacity monitors and includes design and performance specifications, test procedures, and QA requirements to ensure that continuous opacity monitors meet minimum design and calibration requirements, necessary in part, for accurate opacity monitoring measurements in regulatory environmental opacity monitoring applications subject to 10 percent or higher opacity standards. The EPA also updated the version of ASTM D6784, a test method for elemental, oxidized, particle-bound, and total mercury in emissions from stationary sources, from the 2002 to 2016 version in the references contained in 40 CFR part 60, appendix B, Performance Specification 12A, for continuous monitoring of mercury emissions. The EPA updated the version of ASTM D6784 referenced in table 5 and appendix A of subpart UUUUU in 40 CFR part 63, for mercury emissions measurement and monitoring.

The EPA also used the Standard Methods Committee Method 5210 Biochemical Oxygen Demand (BOD) from “Standard Methods for the Examination of Water and Wastewater.” Section B of this standard, 5-day BOD, is acceptable as an alternative to method 405.1.

The EPA added language to correct a portion of the ASTM E2515-11 test method. The stipulations modified the post-test leak check procedures as well as added procedures for performing leak checks during a sampling run. The stipulations to ASTM E2515-11 are necessary as we have learned that the quality assurance/quality control (QA/QC) requirements for leak tests required by ASTM E2515-11, section 9.6.5.1 are not sufficient to provide assurance of the sampling system integrity. Additionally, the language of ASTM E2515-11, section 9.6.5.1 currently allows for averaging the PM results from a non-leaking sampling system with those from a leaking sampling system which effectively reduces reported PM emissions by as much as half, rendering the test method inappropriate for compliance determination.

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 because it does not establish an environmental health or safety standard. This action corrects, updates, and provides clarity to existing testing regulations.

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).

For the reasons set forth in the preamble, the Environmental Protection Agency amends title 40, chapter I of the Code of Federal Regulations as follows:

As described in a notice of proposed rulemaking (NPRM) published on February 7, 2023 (88 FR 7903), CAA section 176(c)(4)(E) and 40 CFR 51.390(b) require states to develop conformity SIPs that address three specific provisions of federal regulations. First, EPA's transportation conformity rule requires states to develop their own processes and procedures which meet the criteria in 40 CFR 93.105 for interagency consultation and resolution of conflicts among the federal, state, and local agencies. The SIP revision must include processes and procedures to be followed by the metropolitan planning organization (MPO), state Department of Transportation (DOT), and the United States Department of Transportation (USDOT) in consultation with the state and local air quality agencies and EPA before making conformity determinations. The conformity SIP revision must also include processes and procedures for the state and local air quality agencies and EPA to coordinate the development of applicable SIPs with MPOs, state DOTs and the USDOT.

States may choose to develop, in place of regulations, an MOA which establishes the roles and procedures for transportation conformity. The MOA includes the detailed consultation procedures developed for that particular area. The MOAs are enforceable through the signature of all the transportation and air quality agencies, including the USDOT's Federal Highway Administration, USDOT's Federal Transit Administration, and EPA.

North Carolina's September 24, 2021, conformity SIP revisions add new interagency partners and MPOs, establish new procedures for interagency consultation, dispute resolution, public participation and enforceability of certain transportation- related control measures and mitigation measures, and supersede the MOAs incorporated into the SIP on December 26, 2013. The list of MPOs for which North Carolina has established MOAs in the September 24, 2021, submission, include Burlington-Graham MPO, Cabarrus-Rowan MPO, Charlotte Regional Transportation Planning Organization, Durham-Chapel Hill-Carrboro MPO, Gaston-Cleveland-Lincoln MPO, Greater Hickory MPO, Greensboro Urban Area MPO, High Point Urban Area MPO, North Carolina Capital Area MPO, Rocky Mount Urban Area MPO, the Great Smoky Mountains National Park (NPS), and Rural Area (NC DOT).

Table 1, below, identifies the applicable national ambient air quality standards (NAAQS) for which each planning agency is required to implement transportation conformity, and therefore, establish interagency consultation procedures. As stated above, the MOAs are the documents which establish each area's interagency consultation procedures.

In the February 7, 2023, NPRM, EPA proposed to approve updated MOAs for thirteen counties in North Carolina. The changes to the MOAs provide for updates to roles and responsibilities as they relate to transportation conformity. The details of North Carolina's submission and the rationale for EPA's action are explained further in the February 7, 2023, NPRM. Comments on the February 7, 2023, NPRM were due on or before March 9, 2023. No adverse comments were received.

EPA is approving the aforementioned changes to the North Carolina SIP. Specifically, EPA is approving the replacement of previously approved MOAs with thirteen updated MOAs for the Burlington-Graham MPO, Cabarrus-Rowan MPO, Charlotte Regional Transportation Planning Organization, Durham-Chapel Hill-Carrboro MPO, Gaston-Cleveland-Lincoln MPO, Greater Hickory MPO, Greensboro Urban Area MPO, High Point Urban Area MPO, North Carolina Capital Area MPO, Rocky Mount Urban Area MPO, the Great Smoky Mountains National Park (NPS), and Rural Area (NC DOT); outlining transportation conformity criteria and procedures related to interagency consultation; conflict resolution; public participation; and enforceability of certain transportation-related control and mitigation measures. This action also establishes consultation procedures and mitigation measures in the State of North Carolina. EPA is approving these actions because are consistent with section 110 and 176 of the CAA and will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing these actions and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . These actions are not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 30, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. These actions may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as follows:

Throughout this document wherever “we” or “our” is used, it refers to the EPA.

On May 4, 2022, Idaho submitted updates to the SIP to incorporate the national ambient air quality standards and other Federal regulations by reference as of July 1, 2021. The SIP revision, state effective March 24, 2022, includes specific air quality regulations codified in the Idaho Rules for the Control of Air Pollution (IDAPA 58.01.01). On December 19, 2022, the EPA proposed to approve the submitted SIP revision (87 FR 77544). The reasons for our proposed approval are included in the proposal and will not be restated here. The public comment period closed on January 18, 2023. We received no public comments. Therefore, we are finalizing the action as proposed.

The EPA is approving and incorporating by reference revisions to the Idaho SIP submitted on May 4, 2022. Upon the effective date of this action, the Idaho SIP will include IDAPA 58.01.01.107 Incorporation by Reference, subsection 03, paragraphs a through e, state effective March 24, 2022. This provision incorporates the national ambient air quality standards and related planning and monitoring requirements as of July 1, 2021.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of Idaho regulatory provisions described in section II of this preamble and set forth below in the amendments to 40 CFR part 52. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

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

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

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

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

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

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

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

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

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its SIP submittal; the Clean Air Act and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of this action, it is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

This action is subject to the Congressional Review Act, 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 30, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at https://www.ecfr.gov/current/title-40/chapter-I/subchapter-E/part-180?toc=1.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0744 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 30, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0744, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of October 24, 2022 (87 FR 64196) (FRL-9410-06-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E8947) by Syngenta Crop Protection, LLC, 410 Swing Road, Greensboro, NC 27409. The petition requested that 40 CFR 180.516 be amended by establishing import tolerances for residues of the fungicide fludioxonil, [4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1 H -pyrrole-3-carbonitrile], in or on mango at 15 parts per million (ppm) and papaya at 8 ppm. That document referenced a summary of the petition prepared by Syngenta Crop Protection, LLC, the registrant, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is modifying the existing tolerances for residues of fludioxonil in or on mango and papaya at different levels than requested. The reasons for these changes are explained in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for fludioxonil, including exposure resulting from the tolerances modified by this action. EPA's assessment of exposures and risks associated with fludioxonil follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections of the rule that repeat what has been previously published in tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published a number of tolerance rulemakings for fludioxonil in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to fludioxonil and established tolerances for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rule, as they remain unchanged.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Specific information on the studies received and the nature of the adverse effects caused by fludioxonil as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in Unit III.A. of the final rule published in the Federal Register of November 6, 2018 (83 FR 55491) (FRL-9982-75).

A summary of the toxicological endpoints for fludioxonil used for human health risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of August 14, 2015 (80 FR 48743) (FRL-9931-06).

Much of the exposure assessment remains the same although updates have occurred to accommodate exposures from the petitioned-for tolerances. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, please reference Unit III.C. of the November 6, 2018, rulemaking.

1. Dietary exposure from food and feed uses. EPA's dietary exposure assessments have been updated to include the additional exposure from the petitioned-for tolerances for residues of fludioxonil on mango and papaya. An acute dietary risk assessment was not performed since no endpoint attributable to a single exposure (dose) was identified from the available oral toxicity database. The chronic assessment is based on tolerance-level residues and assumes 100 percent crop treated (PCT); the chronic assessment is unrefined. The assessment was conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID), Version 4.02, which incorporates 2005-2010 food consumption information from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). A cancer dietary exposure and risk assessment was not conducted for fludioxonil as it is a Group D chemical—not classifiable as to human carcinogenicity.

2. Dietary exposure from drinking water. The proposed post-harvest application uses on imported fruit do not result in an increase in the estimated residue levels in drinking water, so the estimated drinking water concentrations used in the November 6, 2018, final rule are the same as those used in this assessment.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). The assessment used the same assumptions as the November 6, 2018. The residential exposures used in the aggregate assessment are inhalation exposures from handlers applying paints with airless sprayers for adults and incidental oral exposures (hand-to-mouth) from post-application exposure to outdoor treated turf for children 1 to <2 years old.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, leave in effect, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to fludioxonil and any other substances, and fludioxonil does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that fludioxonil has a common mechanism of toxicity with other substances.

EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor. See Unit III.D. of the November 6, 2018, rulemaking for a discussion of the Agency's rationale for that determination.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate points of departure (PODs) to ensure that an adequate margin of exposure (MOE) exists.

An acute dietary exposure assessment was not performed as there were no indication of an adverse effects attributable to a single dose. Fludioxonil is not expected to pose an acute risk. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 14% of the cPAD for the general population and 49% of the cPAD for children 1-2 years old, the population subgroup receiving the highest exposure.

EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 1200 for adults and 290 for children 1-2 years old. Because EPA's level of concern for fludioxonil is an MOE of 100 or below, short-term aggregate risks are not of concern. Intermediate- and long-term aggregate risk assessments were not performed because there are no registered or proposed uses of fludioxonil that result in intermediate- or long-term residential exposures. Fludioxonil is not classifiable as to human carcinogenicity; therefore, EPA does not expect exposures to pose an aggregate cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to fludioxonil residues. More detailed information on this action can be found in the document titled “Fludioxonil. Human Health Risk Assessment for the Proposed Tolerances without a U.S. Registration for Residues of Fludioxonil in/on Mango and Papaya.” in docket ID number EPA-HQ-OPP-2021-0744.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the November 6, 2018, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

There is no Codex MRL for fludioxonil in or on papaya. Canada has established an MRL for fludioxonil in or on papaya at 5 ppm, which is the same as the U.S. tolerance as modified by this action. Codex and Canada have established MRLs for fludioxonil in or on mango at 2 ppm. These MRLs are different than the U.S. tolerance as modified by this action, which is 8 ppm for fludioxonil residues in or on mango. EPA is not harmonizing the U.S. tolerance with the Codex and Canadian MRLs because the proposed post-harvest application use on fruit imported into the United States results in residues greater than 2 ppm. The increased tolerance of 8 ppm is needed to cover residues resulting from post-harvest application to imported fruit and would not affect trade channels with Canada or the European Union.

The registrant petitioned for import tolerances of 15 ppm for mango and 8 ppm for papaya. However, EPA has previously established tolerances for residues of fludioxonil in or on mango and papaya, both at 5.0 ppm, at 40 CFR 180.516. In this action, EPA is modifying these established tolerances by increasing the tolerance for mango to 8 ppm and revising the tolerance for papaya to 5 ppm based on the submitted field trial data, Organization for Economic Co-operation and Development (OECD) tolerance calculation procedures, and rounding rules. These tolerances are inclusive of imported commodities as well as domestically produced.

Therefore, tolerances are modified for residues of fludioxonil, [4-(2,2-difluoro-1,3-benzodioxol-4-yl)-1 H -pyrrole-3-carbonitrile], in or on mango at 8 ppm and papaya at 5 ppm.

This action modified tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0069 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before May 30, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2022-0069, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/where-send-comments-epa-dockets.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of January 3, 2023 (88 FR 38) (FRL-9410-08-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 1E8966) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The January 3, 2023, document supersedes the document published on April 28, 2022 (87 FR 25178) (FRL-9410-12-OCSPP). The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of trinexapac-ethyl in or on the raw agricultural commodities clover, forage at 8 parts per million (ppm) and clover, hay at 15 ppm. As a result of feeding clover that has been treated with trinexapac-ethyl to livestock, the following tolerances were proposed in livestock commodities: cattle, fat and cattle, meat at 0.03 ppm; cattle, meat byproducts at 0.1 ppm; egg at 0.01 ppm; goat, fat and goat, meat at 0.03 ppm; goat, meat byproducts at 0.1 ppm; hog, meat byproducts at 0.1 ppm; milk at 0.01 ppm; horse, meat at 0.03 ppm; poultry, fat and poultry, meat at 0.01 ppm; poultry, meat byproducts at 0.1 ppm; sheep, fat and sheep, meat at 0.03 ppm; and sheep, meat byproducts at 0.1 ppm. That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. A comment was received in response to the April 28, 2022, notice of filing. EPA's response to the comment is discussed in Unit IV.C.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for trinexapac-ethyl including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with trinexapac-ethyl follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for trinexapac-ethyl in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to trinexapac-ethyl and established tolerances for residues of that chemical. EPA is incorporating previously published sections from these rulemakings as described further in this rulemaking, as they remain unchanged.

Toxicological profile. For a discussion of the Toxicological Profile of trinexapac-ethyl, see Unit III.A. of the trinexapac-ethyl tolerance rulemaking published in the Federal Register of May 20, 2015 (80 FR 28843) (FRL-9926-62).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for trinexapac-ethyl used for human health risk assessment, please reference Unit III.B. of the trinexapac-ethyl tolerance rulemaking published in the Federal Register of March 2, 2012 (77 FR 12740) (FRL-9337-9).

Exposure assessment. EPA's dietary exposure assessments have been updated to include the additional exposure from the proposed new regional use on clover as well for associated residues on animal commodities. The assessments were conducted with Dietary Exposure Evaluation Model software using the Food Commodity Intake Database (DEEM-FCID) Version 4.02, which uses the 2005-2010 food consumption data from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). The unrefined acute and chronic dietary exposure assessments used tolerance-level residues, EPA's default processing factors, and assumed 100 percent crop treated (PCT) for the registered commodities.

Drinking water and non-occupational exposures. The drinking water numbers have not changed as a result of the new use on clover. For a detailed summary of the drinking water analysis for trinexapac-ethyl used for the human health risk assessment, please reference Unit III.C.2. of the May 20, 2015, rulemaking.

Trinexapac-ethyl is currently registered for the following uses that could result in residential exposures: residential lawns, athletic fields, parks, and golf courses. For a detailed summary of the non-occupational analysis for trinexapac-ethyl used for the human health risk assessment, please reference Unit III.C.3. of the May 20, 2015, rulemaking.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to trinexapac-ethyl and any other substances. For the purposes of this action, therefore, EPA has not assumed that trinexapac-ethyl has a common mechanism of toxicity with other substances.

Safety factor for infants and children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor from 10X to 1X. See Unit III.D. of the May 20, 2015, rulemaking for a discussion of the Agency's rationale for that determination.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population-adjusted dose (aPAD) and chronic population-adjusted dose (cPAD). Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists.

Acute dietary risks are below the Agency's level of concern of 100% of the aPAD; they are 2.5% of the aPAD for females 13 to 49 years old, the only population group of concern. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 6.8% of the cPAD for children 1 to 2 years old, the group with the highest exposure.

Short-term aggregate (average dietary and residential turf exposures) MOEs for adults (235) and youth (4,500) are above EPA's level of concern of 100 and are not of concern. Trinexapac-ethyl is classified as “not likely to be carcinogenic to humans.” Therefore, EPA does not expect trinexapac-ethyl to pose a cancer risk from aggregate exposure.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to trinexapac-ethyl residues. More detailed information on this action can be found in the document titled “Trinexapac-ethyl. Human Health Risk Assessment for the New Use on Clover (Seed Crop).” in docket ID EPA-HQ-OPP-2022-0069.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the May 20, 2015, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

There are no established Codex MRLs on clover forage and hay. There are established Codex MRLs for trinexapac-ethyl in or on livestock commodities. The U.S. tolerances are harmonized with Codex MRLs for ruminant and hog meat byproduct at 0.1 ppm. However, the ruminant and swine meat and fat tolerances increased to 0.03 ppm because there is the potential for secondary transfer of trinexapac-ethyl resides in ruminant meat from the new use on clover. Because the U.S. tolerances are higher based on the estimated livestock dietary burden, it is not possible to harmonize with the 0.01 ppm Codex MRL for ruminant and swine meat and fat commodities.

One comment was received on the notice of filing, which opposed EPA establishing the requested tolerances and objected to the presence of pesticide residues on crops. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerances are safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that the trinexapac-ethyl tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

Therefore, tolerances are established for residues of trinexapac-ethyl in or on egg at 0.01 ppm; milk at 0.01 ppm; poultry, fat at 0.01 ppm; poultry, meat at 0.01 ppm; and poultry, meat byproducts at 0.1 ppm. The following established tolerances for residues of trinexapac-ethyl are revised to the specified levels: cattle, fat at 0.03 ppm; cattle, meat at 0.03 ppm; cattle, meat byproducts at 0.1 ppm; goat, fat at 0.03 ppm; goat, meat at 0.03 ppm; goat, meat byproducts at 0.1 ppm; hog, meat byproducts at 0.1 ppm; horse, meat at 0.03 ppm; sheep, fat at 0.03 ppm; sheep, meat at 0.03 ppm; and sheep, meat byproducts at 0.1 ppm. Additionally, tolerances with regional registrations are established for residues of trinexapac-ethyl in or on clover, forage at 8 ppm and clover, hay at 15 ppm.

As a housekeeping measure, EPA is removing the word “imported” from the commodity entry for “Poppy, seed imported”, as unnecessary and redundant. Moreover, use of that adjective is not consistent with how EPA typically identifies tolerances for residues in or on imported commodities. The associated footnote 1 indicates that there are no U.S. registrations for use of trinexapac-ethyl on poppy seed; thus, the tolerance itself is intended to cover residues on imported commodities. Additionally, footnote 1 is being added to the table as identified in the March 15, 2018, final tolerance rule. The changes have no substantive effect and can be accomplished without further notice and comment.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613 et seq.

To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).

As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).

The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other Federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other Federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each Federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.

There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. On January 9, 2017 (82 FR 2760), a subsurface intrusion component was added to the HRS to enable the EPA to consider human exposure to hazardous substances or pollutants and contaminants that enter regularly occupied structures through subsurface intrusion when evaluating sites for the NPL. The current HRS evaluates four pathways: ground water, surface water, soil exposure and subsurface intrusion, and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:

• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.

• The EPA determines that the release poses a significant threat to public health.

• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.

The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.

A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with a permanent remedy, taken instead of or in addition to removal actions” (40 CFR 300.5).) However, under 40 CFR 300.425(b)(2), placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.

The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.

Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.

When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.

In other words, while geographic terms are often used to designate the site ( e.g., the “Jones Co. Plant site”) in terms of the property owned by a particular party, the site, properly understood, is not limited to that property ( e.g., it may extend beyond the property due to contaminant migration), and conversely may not occupy the full extent of the property ( e.g., where there are uncontaminated parts of the identified property, they may not be, strictly speaking, part of the “site”). The “site” is thus neither equal to, nor confined by, the boundaries of any specific property that may give the site its name, and the name itself should not be read to imply that this site is coextensive with the entire area within the property boundary of the installation or plant. In addition, the site name is merely used to help identify the geographic location of the contamination; and is not meant to constitute any determination of liability at a site. For example, the name “Jones Co. plant site,” does not imply that the Jones Company is responsible for the contamination located on the plant site.

EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.

Further, as noted previously, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.

For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.

The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:

(i) Responsible parties or other persons have implemented all appropriate response actions required;

(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or

(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment and taking of remedial measures is not appropriate.

In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.

The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.

Sites qualify for the CCL when: (1) any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction ( e.g., institutional controls); or (3) the site qualifies for deletion from the NPL. For more information on the CCL, see the EPA's internet site at https://www.epa.gov/superfund/construction-completions-national-priorities-list-npl-sites-number.

The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments, and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to https://www.epa.gov/superfund/about-superfund-cleanup-process#reuse.

In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following website: https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

The EPA has improved the transparency of the process by which state and tribal input is solicited. The EPA is using the web and where appropriate more structured state and tribal correspondence that: (1) Explains the concerns at the site and the EPA's rationale for proceeding; (2) requests an explanation of how the state intends to address the site if placement on the NPL is not favored; and (3) emphasizes the transparent nature of the process by informing states that information on their responses will be publicly available.

A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's website at https://www.epa.gov/superfund/statetribal-correspondence-concerning-npl-site-listing.

Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices.

An electronic version of the public docket is available through https://www.regulations.gov (see table below for docket identification numbers). Although not all docket materials may be available electronically, you may still access any of the publicly available docket materials through the docket facilities identified in section II.D.

The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score, a list of documents referenced in the documentation record for each site and any other information used to support the NPL listing of the site. These documents are also available online at https://www.regulations.gov.

The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.

You may view the documents that support this rule online at https://www.regulations.gov or by contacting the EPA HQ docket or appropriate regional docket. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. Please contact the individual regional dockets for hours. For addresses for the headquarters and regional dockets, see ADDRESSES section in the beginning portion of this preamble.

You may obtain a current list of NPL sites via the internet at https://www.epa.gov/superfund/national-priorities-list-npl-sites-site-name.

This final rule adds the following site to the General Superfund section of the NPL. The site is being added to the NPL based on an HRS score of 28.50 or above.

The EPA reviewed all comments received on the site in this rule and responded to all relevant comments. The EPA is adding one site to the NPL in this final rule. The East Basin Road Groundwater site in New Castle, DE, was proposed for addition to the NPL on September 9, 2022 (87 FR 55342).

Comments on the East Basin Road Groundwater site are being addressed in a response to comment support document available in the public docket concurrently with this rule. To view public comments on this site, as well as EPA's response, please refer to the support document available at https://www.regulations.gov.

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. This rule does not contain any information collection requirements that require approval of the OMB.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local, or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.

This final rule 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. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only 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 this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.

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.

The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.

This action is subject to the Congressional Review Act (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).

Provisions of the CRA or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although INS v. Chadha, 462 U.S. 919,103 S. Ct. 2764 (1983), and Bd. of Regents of the University of Washington v. EPA, 86 F.3d 1214,1222 (D.C. Cir. 1996), cast the validity of the legislative veto into question, the EPA has transmitted a copy of this regulation to the Secretary of the Senate and the Clerk of the House of Representatives.

If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the Federal Register .

For the reasons set out in the preamble, title 40, chapter I, part 300, of the Code of Federal Regulations is amended as follows:

EPA is taking direct final action because the agency views this as a noncontroversial action and anticipates no adverse comment because the rule extends the date for existing coal-fired power plants to submit a NOPP in the 2020 rule's (85 FR 64650, October 13, 2020) subcategory for electric generating units (EGUs) permanently ceasing coal combustion by December 31, 2028, from October 13, 2021, to June 27, 2023. This direct final rule does not otherwise amend 40 CFR part 423 in any way. In the “Proposed Rules” section of this issue of the Federal Register , however, EPA is publishing a separate document that will serve as the proposed rulemaking to extend the initial notification date if adverse comments are received on this direct final rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document.

If EPA receives adverse comment on this direct final rule, it will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. EPA would address all public comments in any subsequent final rule based on the proposed rule.

Entities potentially regulated by this action include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table includes the types of entities that EPA is now aware could potentially be regulated by this action. Other types of entities not included could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 423.10 (Applicability). If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble.

The authority for this rule is the Federal Water Pollution Control Act, 33 U.S.C. 1251 et seq., including sections 101; 301; 304(b), (c), (e), and (g); 306; 307; 308 and 501.

EPA promulgated the Steam Electric Reconsideration Rule in 2020. In the 2020 rule, EPA established a subcategory for EGUs permanently ceasing coal combustion by December 31, 2028. For these EGUs, less stringent total suspended solids limitations and standards were established for discharges of pollutants found in flue gas desulfurization (FGD) wastewater and bottom ash (BA) transport water. These limitations and standards were based on the use of surface impoundments. In order to participate in this subcategory, facilities had to submit a NOPP to their permitting authority or control authority by October 13, 2021, and subsequently submit annual progress reports on the steps taken to achieve permanent cessation of coal combustion. 1 After the October 13, 2021 NOPP date had passed, EPA learned in meetings with trade associations and utilities that additional facilities wish to avail themselves of the compliance pathway for EGUs seeking to retire or convert to a non-coal fuel source by December 31, 2028, but were unable to make that commitment by October 13, 2021.

Based on the recent information submitted to EPA suggesting that there are likely additional EGUs seeking to permanently cease coal combustion by December 31, 2028, EPA is extending the NOPP date in 40 CFR 423.19(f) to June 27, 2023. This direct final rule does not change any other dates for the reporting and recordkeeping requirements of section 423.19, nor does it make any other changes to 40 CFR part 423.

Elsewhere in this Federal Register issue, EPA is proposing certain revisions to strengthen the steam electric effluent guidelines. That document proposes that EPA would retain the subcategory for EGUs permanently ceasing coal combustion by December 31, 2028. EPA is using the same docket for this action as for the proposed rulemaking, and thus the agency requests that any comments on this direct final action be submitted separately from comments on the broader proposed rulemaking and contain language that explicitly denotes they are intended to be for this direct final action relating solely to the NOPP date. Where it is not clear that the comment relates to the extension of the NOPP date, EPA may consider it to be a comment on the broader proposed rulemaking rather than this action. To the extent that a comment explicitly indicates that it is being submitted on this direct final rule, EPA will not consider items on any topic other than the extension of the NOPP date for the permanent cessation of coal combustion by 2028 subcategory. Any other comments will be considered outside the scope of this action; if the comments are intended for the companion proposal, they should be provided separately.

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

Under Executive Order 12866 (58 FR 51735; October 4, 1993) and Executive Order 13563 (76 FR 3821; January 21, 2011), this action is not a “significant regulatory action” and is, therefore, not subject to review by the Office of Management and Budget (OMB). Nevertheless, since this is a companion action to a proposed rulemaking which is a significant regulatory action, EPA has provided this action to OMB to assist with review of the companion proposal.

This action does not impose an information collection burden under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2040-0004. This rule contains no new requirements for reporting and recordkeeping.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule has no net burden on the small entities subject to the rule. EPA is limiting its changes to the date that a facility may submit an initial notification to the permitting or control authority. The agency has therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain any unfunded mandate as described in Unfunded Mandates Reform Act, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

This action does not have significant federalism implications under Executive Order 13132, entitled “Federalism” (64 FR 43255; August 10, 1999). 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 create new binding legal requirements that substantially and directly affect Tribes under Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249; November 9, 2000). This action does not have significant federalism implications under Executive Order 13132, entitled “Federalism” (64 FR 43255; August 10, 1999). 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.

EPA interprets Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern environmental health or safety risks that 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, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards; thus, the requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

EPA believes that this action is not subject to Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629; February 16, 1994), because it does not establish an environmental health or safety standard. This regulatory action is a minor date change for filing a notice contained in a previously promulgated regulatory action and does not have any impact on human health or the environment.

This action is subject to the Congressional Review Act, and 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).

For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR part 423 as follows:

The South Atlantic snapper-grouper fishery includes black sea bass south of 35°15.19′ N latitude, due east of Cape Hatteras Light, North Carolina, and is managed under the Fishery Management Plan for the Snapper-Grouper Fishery of the South Atlantic Region (FMP). The South Atlantic Fishery Management Council prepared the FMP and NMFS implements the FMP under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The recreational fishing year for black sea bass is April 1 through March 31. The recreational AM for black sea bass requires that before the April 1 start date of each recreational fishing year, NMFS projects the length of the recreational fishing season based on when NMFS projects the recreational ACL will be met, and announces the recreational season end date in the Federal Register (50 CFR 622.193(e)(2)). The purpose of this AM is to allow recreational fishers to maximize their opportunity to harvest the recreational ACL through a more predictable recreational season while NMFS manages harvest within the recreational ACL to protect the stock from experiencing adverse biological consequences.

The recreational ACL for black sea bass during the 2023-2024 fishing year is 310,602 lb (140,887 kg) in gutted weight, or 366,510 lb (166,246 kg) in round weight (50 CFR 622.193(e)(2)).

NMFS estimates that recreational landings for the 2023-2024 fishing year will be less than the 2023-2024 recreational ACL. To make this determination, NMFS compared recreational landings of black sea bass in the last 3 fishing years with available data (2019-20 through 2021-22) to the recreational ACL for the 2023-2024 fishing year. Recreational landings in each of these past 3 fishing years have been less than the 2023-2024 recreational ACL; and NMFS expects similar landings for the 2023-2024 fishing season. Therefore, because NMFS projects that the recreational landings of black sea bass will be less than the 2023-2024 recreational ACL, NMFS does not expect to close the recreational sector during the fishing year and announces the season end date for recreational fishing for black sea bass in the South Atlantic EEZ south of 35°15.19′ N latitude is March 31, 2024.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.193(e)(2), which were issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary. Such procedures are unnecessary because the rule establishing the AM has already been subject to notice and comment and all that remains is to notify the public of the recreational season length.

For the reasons already stated, the Assistant Administrator for NMFS also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season apportionment of the 2023 Pacific cod total allowable catch (TAC) specified for vessels using jig gear in the BSAI is 1,019 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023).

The 2023 Pacific cod TAC allocated to catcher vessels less than 60 feet (18.3 meters (m)) length overall (LOA) using hook-and-line or pot gear in the BSAI is 2,410 mt as established by final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023).

The Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that jig vessels will not be able to harvest 950 mt of the A season apportionment of the 2023 Pacific cod TAC allocated to those vessels under § 679.20(a)(7)(ii)(A)( 1 ). Therefore, in accordance with § 679.20(a)(7)(iv)(C), NMFS apportions 950 mt of Pacific cod from the A season jig gear apportionment to the annual amount specified for catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

The harvest specifications for 2023 Pacific cod included in final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023) are revised as follows: 69 mt to the A season apportionment and 748 mt to the annual amount for vessels using jig gear, and 3,360 mt to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the reallocation of Pacific cod specified from jig vessels to catcher vessels less than 60 feet (18.3 m) LOA using hook-and-line or pot gear. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 20, 2023.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.