The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace at Benton Field Airport, Redding, CA, to support the safety and management of IFR operations at the airport.

The FAA published a notice of proposed rulemaking in the Federal Register (85 FR 49985; August 17, 2020) for Docket No. FAA-2020-0707 to establish Class E airspace at Benton Field Airport, Redding, CA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received in support of the proposal.

Subsequent to the publication of the NPRM, the FAA determined that a modification of the original Benton Field Class E5 airspace proposal is needed to remove a small gap between the proposed airspace at Benton Field Airport and the existing airspace at Redding Regional Airport, Redding, CA. Additionally, the arrival procedures were modified and renamed to circling-only type approaches, which warranted a revision to the proposed modification of Class E airspace extension to the south of the airport to better contain the procedures. Accordingly, the FAA published a supplemental notice of proposed rulemaking (88 FR 19895; April 4, 2023). Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace areas extending upward from 700 feet or more above the surface of the earth are published in paragraph 6005 of FAA Order 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.

The FAA is amending 14 CFR part 71 by establishing Class E airspace extending upward from 700 feet above the surface within a 3.3-mile radius of Benton Field Airport, CA. In addition, airspace extending upward from 700 feet above the surface is established within 4 miles east and 2.3 miles west of the 002° bearing from the airport, extending from the 3.3-mile radius to 12.4 miles north of the airport. Furthermore, airspace is established extending upward from 700 feet above the surface within 3.1 miles each side of the 179° bearing from the airport, extending from the 3.3-mile radius to 8.8 miles south of the airport. This airspace would contain IFR departures to 1,200 feet above the surface and IFR arrivals below 1,500 feet above the surface, supporting the airport's transition from VFR to IFR operations.

Class E5 airspace designations are published in paragraph 6005 of FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designation listed in this document will be published subsequently in FAA Order JO 7400.11.

FAA Order 7400.11is published annually and becomes effective on September 15.

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

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 5-6.5a. 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 FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Wabash Municipal Airport, Wabash, IN, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-1008 in the Federal Register (88 FR 29577; May 8, 2023) proposing to amend the Class E airspace at Wabash, IN. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 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 amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile (decreased from a 7-mile) radius of Wabash Municipal Airport, Wabash, IN; and updates geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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:

In the Federal Register of July 5, 2023, in FR Doc. 2023-14042, published at 88 FR 42870, the following correction is made:

Section 5b(c)(2) of the Commodity Exchange Act (CEA) sets forth core principles with which a DCO must comply in order to be registered and to maintain registration as a DCO (DCO Core Principles), 1 and part 39 of the Commission's regulations implement the DCO Core Principles. DCO Core Principle O requires a DCO to establish governance arrangements that are transparent, fulfill public interest requirements, and permit the consideration of the views of owners and participants. 2 Regulation § 39.24 implements this aspect of Core Principle O by providing minimum requirements regarding the substance and form of a DCO's governance arrangements.

In August 2022, the Commission proposed several amendments to § 39.24 to enhance the Commission's DCO governance standards (the “Proposal”). 3 The purpose of the Proposal was to further the implementation of DCO Core Principle O, which requires a DCO to establish governance arrangements that are transparent, fulfill public interest requirements, and permit the consideration of the views of owners and participants, 4 by enhancing and standardizing DCO risk governance requirements and improving participant involvement in DCO risk management. The specific recommendations in the Proposal are consistent with recommendations made in a report by the Central Counterparty (CCP) Risk and Governance Subcommittee (Subcommittee) of the Market Risk Advisory Committee (MRAC), a discretionary advisory committee established by the authority of the Commission in accordance with the Federal Advisory Committee Act, as amended. 5 In the Proposal, the Commission first proposed to require each DCO to establish one or more RMCs and require the DCO to require its board to consult with, and consider and respond to input from, its RMC(s) on matters that could materially affect the risk profile of the DCO. The Commission also proposed requirements related to the composition and activities of RMCs. Second, the Commission proposed to require each DCO to establish one or more RWGs in order to seek risk-based input (as opposed to commercially-driven input) from a broader array of market participants. The Commission also requested comment on the following topics that the Commission might address in a future rulemaking: (1) whether the Commission should require a DCO to consult with a broad spectrum of market participants prior to submitting any rule change pursuant to §§ 40.5, 40.6, or 40.10; and (2) whether the Commission should require a DCO to maintain policies and procedures designed to enable an RMC member to share certain types of information it learns in its capacity as an RMC member with fellow employees in order to obtain additional expert opinion.

The comment period for the Proposal ended on October 11, 2022. The Commission received 18 substantive comment letters. 6 After considering the comments, the Commission is adopting the Proposal subject to certain changes, as noted below.

Regulation § 39.24(b) sets forth requirements for a DCO's governance arrangements. The Commission proposed to enhance these requirements by requiring a DCO to: (1) establish one or more RMCs, and require its board to consult with, and consider and respond to input from, its RMC(s) on matters that could materially affect the risk profile of the DCO; (2) appoint clearing members and customers of clearing members to each RMC; (3) rotate RMC membership on a regular basis; (4) establish one or more RWGs; and (5) establish written policies and procedures regarding the RMC consultation process and the formation and role of each RWG.

Proposed § 39.24(b)(11) would require a DCO to maintain governance arrangements that establish one or more RMCs, 7 and require a DCO's board of directors to consult with, and consider and respond to input from, its RMC(s) on all matters that could materially affect the risk profile of the DCO, including any material change to the DCO's margin model, default procedures, participation requirements, and risk monitoring practices, as well as the clearing of new products. 8

Barclays et al., BlackRock, CME, Eurex, FIA, ICE, ISDA, Nodal, OCC, Paolo Saguato, and SIFMA AMG generally supported proposed § 39.24(b)(11). 9

However, CME suggested that the Commission modify proposed § 39.24(b)(11) to specify that the board is required to consult with, and consider and respond to “risk-based” input (as opposed to commercially-driven input) from the RMC. CME argued that the Commission should make clear its preference for risk-based input as opposed to commercially-driven input because it is imperative to ensure that market participants acting as RMC members, consistent with current Commission regulations, prioritize the safety and efficiency of the DCO and support the stability of the broader financial system.

FIA and SIFMA AMG recommended that the Commission modify proposed § 39.24(b)(11) to require an RMC to meet at least quarterly. FIA further recommended that the Commission should require a DCO to provide regular written risk reports to RMC members between RMC meetings. FIA also suggested that the Commission should require an RMC to include the following topics as standing agenda items: stress testing results, sensitivity analysis, stress test scenarios review, back testing results, collateral composition, and financial resources.

ForecastEx and NADEX expressed support for the concept of an RMC, but argue that applying the proposed RMC requirements to DCOs that clear only fully collateralized positions would serve no meaningful purpose because they carry no credit risk, which, in turn, eliminates or minimizes the significance of margin models, default procedures, participation requirements, and risk management procedures.

ICE and OCC requested that the Commission clarify whether proposed § 39.24(b)(11) will provide a DCO with the option to structure its RMC as either an advisory committee or as a board-level committee. ICE, which operates four registered DCOs, 10 argued that a DCO should be able to choose either option, noting that some ICE DCOs have an advisory RMC which makes recommendations to the board, while others have a board-level RMC with responsibility delegated by the board for governance and oversight over the DCO's risk management function. ICE stated that the decision to establish an advisory RMC or a board-level RMC depends upon each DCO's size, markets, business model, and other regulatory requirements. OCC noted that it has delegated its risk management responsibilities to several board-level committees, each with a specific subject matter responsibility, that in most instances make recommendations to the board and in some instances may act on behalf of the board through delegated authority. OCC urged the Commission to collaborate with the Securities and Exchange Commission (SEC) to resolve what it believes to be a potential conflict between proposed § 39.24(b)(11), which OCC believes requires an RMC to be an advisory committee, and recently proposed SEC regulations (SEC Proposal), 11 which OCC believes require an RMC to be a committee of the board of directors.

OCC asked that the Commission clarify that a DCO would be permitted under the proposed rules to delegate various risk management responsibilities to multiple committees ( e.g., an Audit Committee that oversees legal and compliance risk, and a Technology Committee that oversees information technology and security risks), rather than using a single body labeled “risk management committee,” so long as those bodies each satisfy the requirements of an RMC.

With regard to the non-exhaustive list of matters that could materially affect the risk profile of the DCO included in proposed § 39.24(b)(11), ISDA recommended that the Commission add “rule enforcement policy [and] public information policy,” while FIA recommended that the Commission add “outsourcing function, system safeguards, access models, liquidity risk, financial resources, and non-default procedures.”

Cboe Digital stated that the Commission should remove the list and simply require DCOs to have policies and procedures for determining whether a matter could affect the DCO's risk profile. It argued that the list is broad and undefined, and added that if the Commission is going to keep the list, that it should more narrowly define the included matters. Specifically, Cboe Digital argued that it's not clear whether a change to one of the included matters that is material but not risk-based would still need to go to the RMC. OCC recommended removing “new products” from the list of items that could materially affect the risk profile of a DCO, but requested that if the Commission retains the explicit reference to “new products” in the final rule, it limit the requirement to new “asset classes,” or define a subset of “new products” that would be captured by the final rule to include only those that have margining, liquidity, default management, pricing, or other risk characteristics that differ materially from those currently cleared by the DCO.

The Commission agrees with CME that it is important to ensure that market participants serving on an RMC provide risk-based input and prioritize the safety and efficiency of the DCO and support the stability of the broader financial system, rather than the commercial interests of the firm they represent. For that reason, proposed § 39.24(c)(3) requires a DCO to maintain policies designed to enable its RMC members to provide independent, expert opinions in the form of risk-based input (as opposed to commercially-driven input) on all matters presented to the RMC for consideration.

However, there is a distinction between the substantive merits of RMC members' input and their motivations for providing that input. A DCO's board of directors cannot reliably determine whether input from RMC members is motivated by the RMC members' views of the safety and efficiency of the DCO and financial stability, or by the commercial interests of the members' firms. Accordingly, the Commission declines to modify proposed § 39.24(b)(11) to require a DCO's board of directors to only respond to risk-based input, as suggested by CME. In the interest of transparency, a DCO's board must respond on the merits to all substantive input from the RMC. If a DCO's board believes that RMC input is incorrect or misguided on the merits, the board should note that in its response.

In response to comments by FIA and SIFMA AMG suggesting that the Commission should require an RMC to meet at least quarterly, the Commission believes that an RMC would generally need to meet at least quarterly to meet its obligation to consult with the board on all matters that could materially affect the risk profile of the DCO, and notes that many DCOs already require their RMC(s) to meet at least quarterly. 12 In an unusual circumstance in which the material risk issues facing the DCO would allow for more than three months to pass between RMC meetings, the Commission does not wish to impose a meeting on RMC members that are already devoting significant time to advising the board on risk issues. Therefore, the Commission declines to modify proposed § 39.24(b)(11) to add a requirement that each RMC convene at least quarterly.

The Commission also declines to adopt FIA's suggestion that the Commission require a DCO to provide a regular written risk report to RMC members between RMC meetings. While the Commission recognizes the potential benefits of this practice, a DCO should have the flexibility to determine the best method of communication with its RMC members to ensure that they are adequately informed on material risk issues such that they can provide effective input to the board. Similarly, the Commission declines to require RMCs to have certain topics as standing items on its agenda. The Commission believes that a DCO's RMC is in the best position to identify the risks most pertinent to the DCO and should have the flexibility to design its meeting agenda accordingly.

The Commission agrees with ForecastEx and NADEX that a DCO that requires each of its clearing members to fully collateralize its positions before a trade is executed has eliminated the credit risk associated with those positions, which, in turn, eliminates or reduces the significance of risk management issues including margin models, liquidity risk management, guaranty funds, stress testing, default procedures, and participation requirements. It is the Commission's understanding that these are the primary topics on which RMCs and RWGs contribute to DCO risk management. The Commission recognizes that fully collateralized DCOs still face operational, legal, and other risks that could materially affect the risk profile of the DCO. However, the Commission believes that given the reduction of many risks facing these DCOs, and the significant attendant reduction in issues for any RMC to address, it is not appropriate to require these DCOs to assume the costs associated with maintaining RMCs and RWGs that satisfy the requirements of this final rule. As a result, the Commission believes that the requirements to have an RMC and RWG are not appropriate for fully-collateralized DCOs. Accordingly, the Commission is adopting new § 39.24(d) to provide that a DCO may satisfy the requirements of paragraphs (b)(11), (b)(12), (c)(1)(iv), and (c)(3) of § 39.24 by having rules that permit it to clear only fully collateralized positions. The Commission notes that this is consistent with the carveouts from certain risk-related requirements that the Commission previously provided to fully collateralized DCOs. 13

In response to comments by ICE and OCC asking the Commission to clarify whether § 39.24(b)(11) will provide a DCO with the option to structure its RMC as either an advisory committee or as a board-level committee, the Commission notes that proposed § 39.24 seeks to provide a DCO with flexibility to design its governance arrangements in a manner that best fits its unique structure provided that it does so in a manner that is consistent with the minimum requirements set forth in § 39.24, as amended by this final rule. Therefore, the Commission confirms that a DCO may structure its RMC as either an advisory committee or as a board-level committee to satisfy the requirements of § 39.24(b)(11). 14 Moreover, in response to OCC's inquiry, the Commission confirms that a DCO may delegate various risk management responsibilities to multiple committees, rather than a single body labeled “risk management committee,” so long as each committee complies with the requirements of § 39.24. The Commission notes that the text of § 39.24(b)(11), as proposed and adopted, explicitly acknowledges the possibility of “one or more” risk management committees.

In response to comments on the non-exhaustive list of matters that could materially affect the risk profile of the DCO included in proposed § 39.24(b)(11), the Commission continues to believe that the proposed list provides DCOs with an appropriate level of guidance to illustrate matters that require RMC consultation. In response to comments by FIA and ISDA suggesting additional topics, the Commission notes that the list of topics in § 39.24(b)(11) is meant to be illustrative, not exhaustive, and that all matters that could materially affect the risk profile of the DCO are subject to the consultation requirement, regardless of whether they fit in a listed category. Therefore, it is not necessary to endeavor to include all potential categories of issues that could materially affect the risk profile of the DCO. In response to Cboe Digital's request that the Commission clarify whether a material change to one of the matters included on the list that does not involve risk issues would still need to go to the RMC, the Commission notes that such a change would not necessarily be subject to the consultation requirement; a board is only required to consult with its RMC(s) on matters that could materially affect the risk profile of the DCO.

The Commission also requested comment on whether a DCO's proposal to clear a new product should be categorically treated as a matter that could materially affect the DCO's risk profile for purposes of the proposed § 39.24(b)(11) RMC consultation requirement given the potential for novel and complex risks associated with clearing new products. If so, the Commission requested comment on whether it should define what constitutes a new product for this purpose, and how should it do so. The Commission further questioned whether it should define new products to include, for example, those that have margining, liquidity, default management, pricing, or other risk characteristics that differ from those currently cleared by the DCO, or, in the alternative, should require DCOs to adopt policies defining what constitutes a new product.

In response, BlackRock, Cboe Digital, CCP12, CME, Eurex, FTX, ICE, NADEX, Nodal, and OCC commented that a new product should not be treated categorically as a matter that could materially affect the DCO's risk profile. Several of these commenters (Eurex, Nodal, Cboe Digital, CCP12, NADEX, OCC) noted that many new contracts are simply extensions of, or are substantially similar to, existing contracts. CME, CCP12, Eurex, ICE, and Nodal stated that categorically treating new products as a matter that could materially affect the DCO's risk profile could lead to delays in product launches and unnecessary administrative burden. OCC argued that a categorical definition of new products is incompatible with OCC's unique obligation, as the only listed equity option clearinghouse, to clear an option on an underlying equity within one day after receipt of notification of a registered options exchange's intent to list such option. 15

Tiki Lee's Dock Bar of Sparrows Point, MD, notified the Coast Guard that they will be conducting the 2023 Tiki Lee's Shootout on the River from 9 a.m. to 5 p.m. on July 15, 2023. The individually-timed power boat speed runs event consists of approximately 40 participants competing on a designated, marked linear course located on Back River between Porter Point to the south and Stansbury Point to the north. The event is being staged out of Tiki Lee's Dock Bar, 4309 Shore Road, Sparrows Point, in Baltimore County, MD. In the event of inclement weather on July 15, 2023, the event will be conducted from 9 a.m. to 5 p.m. on July 16, 2023. Potential hazards from the high-speed power boat event include collisions between participants operating within and adjacent to the designated navigation channel and with vessels operating within that channel or within approaches to local marinas and boat facilities and waterfront residential communities. The COTP Maryland-National Capital Region has determined that these potential hazards would be a safety concern for anyone participating in this event and for other vessels operating within specified waters of Back River. In response, on June 15, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Back River, Baltimore County, MD (88 FR 39206). There, we stated why we issued the NPRM and we invited comments on our proposed regulatory action related to this event. During the comment period, which ended June 30, 2023, we received no comments.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . As there are fewer than 30 days remaining before the date of the event, it would be impracticable and contrary to the public interest to make the regulation effective 30 days after publication in the Federal Register . Delaying the effective date of this rule would delay the implementation of safety measures necessary to respond to the potential safety hazards associated with this marine event. These potential hazards include collisions between participants operating within and adjacent to the designated navigation channel and with vessels not affiliated with the event operating within that channel and within approaches to local marinas, boat facilities, and waterfront residential communities. Immediate action is needed to protect participants, spectators, and other persons and vessels during the high-speed power boat event on these navigable waters.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the high-speed power boat event to be held on July 15, 2023 (or on a rain date of July 16, 2023) will be a safety concern for anyone intending to operate within certain waters of Back River in Baltimore County, MD, in or near the event area.

As noted above, we received no comments on our NPRM published June 1, 2023. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM other than the addition of language specifying the effective date of the rule and the deletion of an extraneous definition of “aerobatics box.”

This rule establishes special local regulations effective from 8 a.m. on July 15 to 6 p.m. on July 16, 2023 and subject to enforcement from 8 a.m. to 6 p.m. on each of those days. The regulated area will cover all navigable waters of Back River within an area bounded by a line connecting the following points: from the shoreline at Lynch Point at latitude 39°14′46″ N, longitude 076°26′23″ W, thence northeast to Porter Point at latitude 39°15′13″ N, longitude 076°26′11″ W, thence north along the shoreline to Walnut Point at latitude 39°17′06″ N, longitude 076°27′04″ W, thence southwest to the shoreline at latitude 39°16′41″ N, longitude 076°27′31″ W, thence south along the shoreline to the point of origin, located in Baltimore County, MD. The regulated area is approximately 4,200 yards in length and 1,200 yards in width.

This rule provides additional information about areas within the regulated area and their definitions. These areas include “Course Area,” “Buffer Area,” and “Spectator Areas.”

The duration of the special local regulations and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after the high-speed power boat event, scheduled from 9 a.m. to 5 p.m. on July 15, 2023, (with an alternate date of July 16, 2023 in case of inclement weather). The COTP and the Coast Guard Event PATCOM will have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area will be required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for participants in the 2023 Tiki Lee's Shootout on the River and vessels already at berth, a vessel or person will be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators will be able to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Vessel traffic will be able to transit the regulated area once the Event PATCOM deems it safe to do so. A person or vessel neither registered with the event sponsor as a participant nor assigned as an official patrol will be considered a spectator. An official Patrol is any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign. Official Patrols enforcing this regulated area can be contacted on VHF-FM channel 16 and channel 22A.

If permission is granted by the COTP or Event PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels will be required to operate at a safe speed that minimizes wake while within the regulated area, and in a manner that would not endanger event participants or any other craft. A spectator vessel must not loiter within the navigable channel while within the regulated area. Official patrol vessels will direct spectators to the designated spectator area. The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event dates and times.

The regulatory text appears at the end of this document.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under section 3(f) of Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size and duration of the regulated area, which will impact a small, designated area of Back River for a total of 10 hours during which the area will be subject to enforcement. This waterway mainly supports recreational vessel traffic, which at its peak, occurs during the summer season. Although this regulated area extends across the entire width of the waterway, the rule allows vessels and persons to seek permission to enter the regulated area, and vessel traffic will be able to transit the regulated area as instructed by Event PATCOM. Such vessels must operate at safe speed that minimizes wake and not loiter within the navigable channel while within the regulated area. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and the Coast Guard's Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shoreside activities in the event area lasting for 10 total enforcement hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

On June 7, 2023, Fantastic Fireworks, on behalf of Tiki Lee's Dock Bar, notified the Coast Guard that it will be conducting a fireworks display between 9 and 10 p.m. on July 15, 2023, as a part of the “Shootout on the River” event activities. The fireworks are to be launched from a barge in the Back River located near Tiki Lee's Dock Bar in Sparrows Point, MD. In the event of inclement weather on July 15, 2023, the fireworks display will be conducted between 9 and 10 p.m. on July 16, 2023. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port, Maryland-National Capital Region (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 600 foot radius of the barge. The Coast Guard anticipates a large spectator fleet for these events.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to respond to the potential safety hazards associated with fireworks debris and the anticipated large spectator fleet.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Due to the date of the event, it would be impracticable to make the regulation effective 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because it would delay the safety measures necessary to respond to potential safety hazards associated with this fireworks event. Hazards include explosive materials, dangerous projectiles, and falling debris. The fireworks fall out zone extends across the navigable channel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 and 46 U.S.C. 70041. The Captain of the Port, Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the fireworks to be used in the July 15, 2023, display will be a safety concern for anyone intending to operate within certain waters of Back River in Baltimore County, MD, in or near the event area.

This rule establishes a special local regulation for the area in the Back River in which spectating vessels will transit and gather. The regulated area covers all navigable waters of Back River within an area bounded by a line connecting the following points: From the shoreline at Lynch Point at latitude 39°14′46″ N, longitude 076°26′23″ W, thence northeast to Porter Point at latitude 39°15′13″ N, longitude 076°26′11″ W, thence north along the shoreline to Walnut Point at latitude 39°17′06″ N, longitude 076°27′04″ W, thence southwest to the shoreline at latitude 39°16′41″ N, longitude 076°27′31″ W, thence south along the shoreline to the point of origin, located in Baltimore County, MD. The regulated area is approximately 4,200 yards in length and 1,200 yards in width.

In addition to establishing a special local regulation, the COTP is establishing a temporary safety zone around the fireworks discharge site, in approximate position latitude 39°15′35.54″ N, longitude 76°26′56.62″ W. The safety zone covers all navigable waters within 600 feet of a fireworks barge in the Back River located near Tiki Lee's Dock Bar in Sparrow's Point, MD. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, duration, and time-of-day of the special local regulation and safety zone, which would impact a small designated area of the Back River for a total of no more than 2.5 enforcement-hours, during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue Local Notices to Mariners and a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zones.

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

While some owners or operators of vessels intending to transit the regulated area or safety zone may be small entities, for the reasons stated in section V.A above, this rule would not have a significant economic impact on any vessel owner or operator.

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area, and within 33 CFR part 165 establishing a temporary safety zone that would prohibit entry within 600 feet of a fireworks barge, both lasting a total of 2.5 consecutive hours. It is categorically excluded from further review under paragraph L61 and L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 100 and 165 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor notified the Coast Guard with insufficient time to publish an NPRM and immediate action is necessary to protect personnel, vessels, and the marine environment on Lake St. Clair. It is impracticable and contrary to the public interest to publish a NPRM because we must establish this safety zone by July 28, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety hazards associated with a fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 200-yard radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is necessary to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

This rule establishes a safety zone from 9:30 through 10:30 p.m. on July 28, 2023. In the case of inclement weather on July 28, 2023, this safety zone will be enforced from 10 through 10:30 p.m. on July 29, 2023. The safety zone will encompass all U.S. navigable waters of Lake St. Clair within a 200-yard radius of the fireworks launch site located 42°39′55.69″ N, 082°45′23.58″ W, near Brandenburg Park, in Chesterfield, MI. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. The Captain of the Port Detroit or his designated representative may be contacted via VHF Channel 16.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small, designated area of Lake St. Clair one hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM Marine Channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

This rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 1 hour that will prohibit entry within 200-yard radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Each State has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

Each State must formally adopt the control measures and strategies in the SIP after the public has had an opportunity to comment on them and then submit the proposed SIP revisions to EPA. Once these control measures and strategies are approved by EPA, and after notice and comment, they are incorporated into the federally-approved SIP and are identified in part 52—“Approval and Promulgation of Implementation Plans,” Title 40 of the Code of Federal Regulations (40 CFR part 52). The full text of the State regulation approved by EPA is not reproduced in its entirety in 40 CFR part 52 but is “incorporated by reference.” This means that EPA has approved a given State regulation or specified changes to a given regulation with a specific effective date. The public is referred to the location of the full text version should they want to know which measures are contained in any given SIP. The information provided allows EPA and the public to monitor the extent to which a State implements a SIP to attain and maintain the NAAQS and to take enforcement action for violations of the SIP.

The SIP is a living document which the State can revise as necessary to address the unique air pollution problems in the State. Therefore, EPA from time to time must take action on proposed revisions containing new or revised State regulations. A submission from a State can revise one or more rules in their entirety or portions of rules. The State indicates the changes in the submission (such as by using redline/strikethrough text), and EPA then takes action on the requested changes. EPA establishes a docket for its actions using a unique Docket Identification Number, which is listed in each action. These dockets and the complete submission are available for viewing on www.regulations.gov.

On May 22, 1997 (62 FR 27968), EPA revised the procedures for incorporating by reference, into the Code of Federal Regulations, materials approved by EPA into each SIP. These changes revised the format for the identification of the SIP in 40 CFR part 52, streamlined the mechanisms for announcing EPA approval of revisions to a SIP, and streamlined the mechanisms for EPA's updating of the IBR information contained for each SIP in 40 CFR part 52. The revised procedures also called for EPA to maintain “SIP Compilations” that contain the federally approved regulations and source-specific permits submitted by each State agency.

EPA generally updates these SIP Compilations on an annual basis. Under the revised procedures, EPA must periodically publish an informational document in the rules section of the Federal Register notifying the public that updates have been made to a SIP Compilation for a particular State. EPA applied the 1997 revised procedures to South Carolina on July 1, 1997 (62 FR 35441) and is providing this notice in accordance with such procedures.

In this action, EPA is providing notice of an update to the materials incorporated by reference into the South Carolina SIP as of November 14, 2022 and identified in 40 CFR 52.2120(c) and (d). This update includes SIP materials approved by EPA since the last IBR update. See 83 FR 14591 (April 5, 2018). In addition, EPA is providing notice of the following corrections and clarifying changes to 40 CFR 52.2120(c) and (d).

A. Correcting the header of paragraph (c), from “ (c) EPA-Approved regulations. ” to “ (c) EPA-Approved Laws and Regulations. ”

B. Changing Table (c)'s title from “EPA-Approved South Carolina Regulations” to “EPA-Approved South Carolina Laws and Regulations”

C. Correcting Federal Register citations to reflect the beginning page of the preamble as opposed to that of the regulatory text.

A. Correcting the header of paragraph (d), from “ (d) EPA-Approved State source-specific requirements. ” to “ (d) EPA-Approved State Source-Specific Requirements. ”

EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation and section 553(d)(3) which allows an agency to make an action effective immediately (thereby avoiding the 30-day delayed effective date otherwise provided for in the APA). This administrative action simply codifies provisions which are already in effect as a matter of law in Federal and approved State programs, makes typographical/ministerial revisions to the tables in the CFR, and makes ministerial changes to the prefatory heading to the tables in the CFR. Under section 553(b)(3)(B) of the APA, an agency may find good cause where procedures are “impracticable, unnecessary, or contrary to the public interest.” Public comment for this administrative action is “unnecessary” and “contrary to the public interest” since the codification (and corrections) only reflect existing law, and the changes to the prefatory heading to the tables are ministerial in nature. Immediate notice of this action in the Federal Register benefits the public by providing the public notice of the updated South Carolina SIP Compilation and notice of typographical corrections and ministerial changes to the South Carolina “Identification of Plan” portion of the CFR. Further, pursuant to section 553(d)(3), making this action immediately effective benefits the public by immediately updating both the SIP Compilation and the CFR “Identification of plan” section (which includes table entry corrections).

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of regulations promulgated by South Carolina, previously approved by EPA and federally effective before November 14, 2022, contained in “South Carolina, Volume 1, 40 CFR 52.2120(c), State Implementation Plan Compilation, EPA-Approved Laws and Regulations” and “South Carolina, Volume 2, 40 CFR 52.2120(d), State Implementation Plan Compilation, EPA-Approved Source-Specific Requirements”. The IBR changes are further described in sections I and II of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 that they meet the criteria of the CAA. Accordingly, this final rule and notification of administrative change 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 ection 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.

Because this action merely updates and corrects regulatory text in the CFR tables for regulations previously submitted by South Carolina and approved by EPA, this action for the State of South Carolina does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Therefore, this action will not impose substantial direct costs on Tribal governments or preempt Tribal law. The Catawba Indian Nation (CIN) Reservation is located within the boundary of York County, South Carolina. Pursuant to the Catawba Indian Claims Settlement Act, S.C. Code Ann. 27-16-120 (Settlement Act), “all state and local environmental laws and regulations apply to the Catawba Indian Nation and Reservation and are fully enforceable by all relevant state and local agencies and authorities.” The CIN also retains authority to impose regulations applying higher environmental standards to the Reservation than those imposed by State law or local governing bodies, in accordance with the Settlement Act.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 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. 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.” 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.” EPA did not perform an EJ analysis and did not consider EJ in this action. 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 E.O. 12898 of achieving EJ for people of color, low-income populations, and Indigenous peoples.

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 this action 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

EPA also believes that the provisions of section 307(b)(1) of the CAA pertaining to petitions for judicial review are not applicable to this action. This is because prior EPA rulemaking actions for each individual component of the South Carolina SIP Compilation previously afforded interested parties the opportunity to file a petition for judicial review in the United States Court of Appeals for the appropriate circuit within 60 days of such rulemaking action. Thus, EPA believes judicial review of this action under section 307(b)(1) is not available.

40 CFR part 52, is amended as follows:

Throughout this document, “we,” “us,” and “our” refer to the EPA.

On March 30, 2023, the EPA proposed to approve the Coso Junction Second Maintenance Plan prepared by the Great Basin Unified Air Pollution Control District (GBUAPCD) and submitted by the California Air Resources Board (CARB) on October 21, 2021, as a revision to the California SIP. 1 In doing so, we proposed to find that the Coso Junction Second Maintenance Plan adequately demonstrates that the CJPA will maintain the 1987 annual national ambient air quality standards (NAAQS or “standards”) for particulate matter of ten microns or less (PM 10 ) through the year 2030 ( i.e., for more than 10 years beyond the first 10-year maintenance period), with the maintenance period ending on October 4, 2030. We also proposed to find that the Plan includes sufficient contingency provisions to promptly correct any violation of the PM 10 standards that may occur. Lastly, we proposed to find that motor vehicle related PM 10 emissions do not contribute significantly to the PM 10 air quality problem in the CJPA based on consideration of the factors identified in § 93.109(f) of the EPA's transportation conformity regulations. 2

The EPA announced the availability of the Plan and motor vehicle emissions insignificance finding on the EPA's transportation conformity website on April 3, 2023, and requested comments by May 3, 2023. We received no comments in response to the adequacy review posting.

The EPA's proposed action provided a 30-day public comment period that ended on May 1, 2023. We received no comments on our proposal during the comment period.

As part of our proposal, we evaluated complete, quality-assured, and certified, data available at the time ( i.e., through 2021). 3 These data indicated that there had been four exceedances of the PM 10 NAAQS in the CJPA between 2018 and 2020. The District and CARB provided information to the EPA about the September 7, 2020 exceedance that explained that the exceedance was not within the State's control. 4 As conveyed in the EPA's concurrence letter, we concurred that, based on the weight of evidence, the September 7, 2020 exceedance was caused by an exceptional event due to the Creek Fire in the Sierra National Forest and the SQF Complex wildfire in the Sequoia National Forest. 5 Based on a review of air quality data during the three-year period covered by the Plan (2018-2020) and excluding the exceedance flagged by CARB and GBUAPCD and concurred with by the EPA as an exceptional event, we find that the 2020 design value for the Coso Junction PM 10 nonattainment area is 1.0 and that the area maintained the PM 10 standards in that year.

In 2021, there were three additional exceedances of the PM 10 NAAQS in the area. These additional exceedances in 2021 caused the number of exceedances recorded at the air monitor averaged over three consecutive years ( i.e., 2019-2021) to be greater than 1.05. However, we do not think these data contradict the EPA's finding that the State's plan provides for maintenance of the PM 10 NAAQS under section 175A(b) of the Clean Air Act (CAA). The District and CARB provided information to the EPA about the six exceedances that occurred in 2019-2021 that explained that three of the exceedances were not within the State's nor District's control. 6 The information provided indicates that the September 7, 2020, September 19, 2021, and September 27, 2021 exceedances were all caused by wildfire smoke. The EPA has reviewed the information provided by the State regarding the 2019-2021 exceedances, and we agree that this information does not call into question the EPA's proposed approval of the Coso Junction Second Maintenance Plan as providing for maintenance of the PM 10 NAAQS. We note as well that the State's analysis and the EPA's evaluation are consistent with the proposed changes to the maintenance plan that the EPA is approving in this final action to evaluate data that may have been influenced by certain events in determining whether contingency provisions should be triggered.

As part of this final action, we evaluated complete, quality-assured, and certified data available for 2022. 7 These data indicated that there had been one exceedance of the PM 10 NAAQS in the CJPA in 2022. 8 Given the EPA's agreement that the 2021 exceedances do not call into question the EPA's proposal to approve the Coso Junction Second Maintenance Plan as providing for maintenance of the NAAQS, the State is not required at this time to submit additional information and analyses for the 2022 exceedance, because such exceedance, without the 2021 exceedances, would not on its own cause a violation of the NAAQS. Upon the effective date of this final action, if additional exceedances occur in 2023 or a later year such that the number of exceedances averaged over three consecutive years is greater than 1.05, per Section 7 of the Plan, the State will be required to submit information regarding those exceedances if it wishes to request that the exceedances be excluded from the contingency trigger calculation. The EPA will review such information and will notify the State whether the contingency provisions have been triggered per the schedule outlined in the Plan.

As described in detail in our proposal, the EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within the southwest portions of Inyo County. 9 The EPA then compared the data to the corresponding data for the United States as a whole for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes.

This final action approves the Coso Junction Second Maintenance Plan, which provides for the continued maintenance of the PM 10 NAAQS. We expect that this action will generally be neutral or contribute to reduced environmental and health impacts on all populations in the CJPA, including people of color and low-income populations. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

For the reasons discussed in our proposed action and herein, the EPA is taking final action to approve the Coso Junction Second Maintenance Plan, submitted by CARB on October 20, 2021, as a revision to the California SIP. We are approving the maintenance demonstration and contingency provisions as meeting all of the applicable requirements for maintenance plans and related contingency provisions in CAA section 175A, and we are finalizing an insignificance finding for motor vehicle emissions in the CJPA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 CAA. 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 14094 (88 FR 21879, April 11, 2023);

• 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 subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;

• 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 CAA.

In addition, there are no areas of Indian country within the CJPA, and the State plan 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 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).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 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 EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA's evaluation of environmental justice is described in the section of this document titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. In addition, there is no information in the record upon which this decision is based that is inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 11, 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 stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

The EPA uses multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Organization of this document. The information in this preamble is organized as follows:

This rule does not regulate the conduct or determine the rights of any entity or individual outside the Agency, as this action pertains only to internal EPA practices. However, the Agency recognizes that any entity or individual interested in the EPA's regulations promulgated under the CAA may be interested in this rule. In addition, this rule may be of particular interest to entities and individuals interested in how the EPA conducts and considers benefit-cost analyses (BCA).

The Agency is taking this action pursuant to CAA section 301(a)(1). 1 Section 301(a)(1) provides authority to the Administrator “to prescribe such regulations as are necessary to carry out his functions” under the CAA. As discussed in section III of this preamble, the EPA has determined that the Benefit-Cost Rule was not “necessary” and lacked a rational basis under CAA section 301(a), and therefore the EPA lacked authority to issue it; we are accordingly rescinding the Rule.

On December 23, 2020, the EPA finalized the Benefit-Cost Rule. 2 The Benefit-Cost Rule was a procedural rule establishing requirements related to the development and consideration of BCA that the EPA would have been required to undertake when promulgating certain proposed and final regulations under the CAA. Specifically, the Benefit-Cost Rule (1) required a BCA for all significant proposed and final regulations under the CAA; (2) codified specific practices for developing the BCA; (3) required certain presentations of the BCA results in the preamble; and (4) required the EPA to consider the BCA in promulgating the regulation except where prohibited. The final Benefit-Cost Rule was effective upon publication in the Federal Register based on the procedural-rule exemption from delayed-effective-date requirements in the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(A). After publication, several parties filed petitions for review of the Benefit-Cost Rule in the U.S. Court of Appeals for the District of Columbia, and these consolidated cases are currently in abeyance. 3

On January 20, 2021, President Biden signed Executive Order (E.O.) 13990, “Protecting Public Health and the Environment and Restoring Science To Tackle the Climate Crisis,”  4 which, among other things, directed the EPA to immediately review and consider suspending, revising, or rescinding the Benefit-Cost Rule. Accordingly, the EPA conducted a comprehensive review of both the legal and factual predicates for the Benefit-Cost Rule and, in particular, the need for the regulations that the Agency promulgated in the Benefit-Cost Rule. Based on this review, the EPA determined that the changes to Agency practice required by the Benefit-Cost Rule were inadvisable, not needed, and untethered to the CAA. Therefore, in May 2021, the EPA published an interim final rule rescinding the Benefit-Cost Rule (hereinafter, the “Interim Final Rule”). 5 The Interim Final Rule became effective on June 14, 2021, which was 30 days after its publication in the Federal Register .

While procedural rules are exempt from the notice-and-public-comment requirements in the APA, the EPA nonetheless decided to voluntarily seek post-promulgation public comment on the Interim Final Rule. 6 This final action considers and responds to the public comments the EPA received on the Interim Final Rule. The EPA's process is consistent with Administrative Conference of the United States Recommendation 95-4, which recommends that agencies consider providing post-promulgation notice and comment even where an exemption is justified, be it a substantive rule relying on the “good cause” exception to notice and comment, 5 U.S.C. 553(b)(B), or a procedural rule such as this one. 7

In the Interim Final Rule, the EPA concluded that the Benefit-Cost Rule should be rescinded in its entirety. The EPA has reviewed and considered comments received on the Interim Final Rule, as discussed in section IV, but none of the comments received have led the EPA to materially change our view, as explained in the Interim Final Rule, that the Benefit-Cost Rule is not needed and does not further the CAA's goals. As such, the EPA is finalizing the rescission of the Benefit-Cost Rule with this action. Consistent with and as discussed further in the Interim Final Rule, the rationales for rescission are summarized below.

In the Benefit-Cost Rule, the Agency stated that it had authority to promulgate the Rule under CAA section 301(a) because the Rule's additional procedures were necessary to ensure consistency and transparency in CAA rulemakings. However, as discussed in the Interim Final Rule, the Agency failed to articulate a rational basis for the Benefit-Cost Rule and did not explain how the existing CAA rulemaking process had created or was likely to create inconsistent or non-transparent outcomes, i.e., that an actual or even theoretical problem existed. After reviewing each element of the Benefit-Cost Rule, we have determined that the additional procedures required were not needed, useful, or advisable policy changes. In some cases, the new procedures established by the Benefit-Cost Rule could have hindered the EPA's compliance with the CAA and may not have even furthered the Rule's stated purposes of consistency and transparency. Our rationale for rescinding each of the four independent elements of the Benefit-Cost Rule is severable and discussed in the Interim Final Rule and summarized below. In addition, as noted in the Interim Final Rule, the existing public process provides ample ability for the public to participate in the EPA's CAA rulemakings.

First, the EPA has determined that the Agency failed to provide a rational basis to support the Benefit-Cost Rule or explain why the Rule was needed or reasonable. The Benefit-Cost Rule did not provide any record evidence that the guidance and administrative processes already in place presented problems that justified the mandate imposed by the Rule. Indeed, the Benefit-Cost Rule failed to point to a single example of a rule promulgated under the CAA where problems emerged that would have been avoided had the mandate imposed by the rule been in place. Furthermore, there was no discussion of how the requirements of the Benefit-Cost Rule would have improved the Agency's ability to accomplish the CAA's goals to protect and enhance air quality. Moreover, there has been an unbroken, bipartisan, decades-long commitment from Presidential Administrations to conduct BCAs for economically significant regulations issued in the United States. These analyses are rigorous, publicly available, subject to interagency review, and are conducted according to extensive peer-reviewed guidelines from OMB and the EPA. We are therefore finalizing rescission of the Benefit-Cost Rule on the basis that it failed to articulate a rational basis justifying its promulgation.

Second, the Benefit-Cost Rule's expansion of BCA to all “significant” CAA rulemakings, rather than just those that are significant under monetary thresholds of E.O. 12866, is unnecessary. The Benefit-Cost Rule greatly expanded the universe of CAA rulemakings for which the EPA would have been required to conduct resource-intensive BCAs without justifying why such expansion was necessary or appropriate. In many cases, rules may be designated “significant” by the Office of Management and Budget (OMB) for reasons other than economic significance such that other types of assessments of economic impact are appropriate. Requiring BCA for all rules designated “significant” by OMB, even when the primary issues of importance are not economic, would have unnecessarily complicated the rulemaking process, potentially diverted the Agency's resources from those aspects of the rule that warrant additional consideration ( i.e., the reasons why the rule was designated significant), and could have delayed rules needed for protection of public health and the environment. Existing directives under E.O. 12866 and guidance regarding BCAs for economically significant rules, while retaining flexibility for agencies to analyze costs, benefits, and other factors for non-economically significant rules, strike the better balance between agency resources and the information provided by additional economic analysis for such rules. Simply put, a BCA is not warranted for every CAA rule that is designated as significant under E.O. 12866.

Third, the codification of specific practices for the development of BCA is inadvisable because it is contrary to best practices for preparing BCAs and could have prevented the EPA from relying on best available science. As articulated by OMB and EPA guidelines, best practices for conducting a high-quality BCA cannot be established using a set formula, and the Benefit-Cost Rule's codification of specific practices would have prevented situation-specific tailoring of the regulatory analysis to the policies being proposed. In addition, best practices evolve over time, and the Benefit-Cost Rule would have locked the EPA into using outdated practices until those practices were amended via rulemaking, which could have delayed incorporation of new scientific information and methods. Some of the Benefit-Cost Rule's “best practice” requirements did not even derive from the EPA's Guidelines for Preparing Economic Analyses (hereinafter “Economic Guidelines”), 8 OMB's Circular A-4, 9 or the EPA's Science Advisory Board (SAB) advice. As discussed in more detail in the Interim Final Rule, a number of the specific provisions required by the Benefit-Cost Rule, in particular those related to health-benefits assessments, would have promoted particular types of data in a way that could have conflicted with the use of best scientific practices or arbitrarily caused the Agency to disregard important or high-quality data. The Benefit-Cost Rule's attempt to craft a one-size-fits-all approach to BCAs in fact demonstrated the difficulty and inadvisability of codifying specific practices appropriate for every BCA.

Fourth, the Benefit-Cost Rule required the EPA to present net-benefit calculations in regulatory preambles in a manner that would have been misleading and inconsistent with economic best practices. Specifically, the Rule required a presentation of only the benefits “that pertain to the specific objective (or objectives, as the case may be) of the CAA provision or provisions under which the significant regulation is promulgated.” 40 CFR 83.4(b). The Rule also required that if any benefits and costs accrue to non-U.S. populations, they must be reported separately to the extent possible. This information is duplicative of existing information provided in EPA's Regulatory Impact Analyses (RIAs) because EPA already presents these types of benefits in disaggregated form in its RIAs, so these presentational requirements would not have provided additional transparency. EPA is careful, however, not to use these disaggregated subsets of benefits in calculating total net benefits. Both EPA and OMB guidelines, and economic best practice generally, are clear that the purpose of a BCA is to assess the economic efficiency of policies, and in order to do so accurately, net benefits are calculated by subtracting total costs from total benefits, regardless of whether the benefits and costs arise from intended or unintended consequences and regardless of the particular recipients of the benefits or costs. Even though the Benefit-Cost Rule did not specifically require incorrect partial net-benefit calculations that excluded certain impacts due to the regulation, we are concerned that retaining the Rule's presentational requirements could have invited such misleading partial calculations. In fact, in one of the rules that was promulgated during the same time period as the Benefit-Cost Rule's requirements were being considered, the EPA used calculations of segregated benefits—like those required under the Benefit-Cost Rule—to create tables of misleading “net” benefit calculations ( i.e., benefits minus costs) that only accounted for a subset of the rule's benefits. 10

Fifth, we are rescinding the Benefit-Cost Rule because the Rule did not reconcile its requirement that the Agency “consider” in its CAA rulemakings the required BCAs with the various and varied substantive mandates of the CAA. The Benefit-Cost Rule did not even identify the CAA provisions to which it would apply. This identification is critical because the statute, not Agency procedural rules, dictate what the Agency may or may not “consider” in the context of exercising authority. For those CAA provisions where EPA is prohibited from considering costs, the Benefit-Cost Rule's requirement to prepare a BCA and include it in the judicially reviewable rulemaking record solely for the purpose of providing “additional information” is not necessary to effect any purpose under the Act. Even for those CAA authorities that permit consideration of cost or other economic factors, the Benefit-Cost Rule did not establish why BCA specifically is an appropriate way to consider cost. The rule failed entirely to grapple with the varied ways in which Congress granted authority or directed the EPA whether and how to consider benefits, costs, and other factors, and how the Benefit-Cost Rule's requirement to consider BCA should be reconciled with the need to adhere to particular statutory language and context. As noted in the Interim Final Rule, we are finalizing rescission of the Benefit-Cost Rule's requirement to prepare and consider BCA (followed by a subsequent attempt to reconcile that analysis with the CAA's mandates) in favor of the Agency's current “statute first” approach to decision making. That is, we believe the traditional process of statutory interpretation is superior, wherein we first look to the text of the relevant statutory provision to determine whether Congress intended or permitted the Agency to consider cost or economic factors, and, if yes, we then examine the statutory context, legislative history, and nature of the program or environmental problem to be addressed to determine a reasonable manner of considering that cost or economic factor.

Finally, we are finalizing rescission of the Benefit-Cost Rule on the basis that its requirements are not needed with respect to process, and that the pre-existing administrative process, including existing procedures under the APA and, where applicable, CAA section 307(d), provide for ample consistency and transparency. These requirements are more than adequate to accomplish the general good-government goals of “consistency” and “transparency,” and the Benefit-Cost Rule failed to provide any support for its contention that the pre-existing process was deficient so as to warrant the Rule's new procedures.

This section of the preamble summarizes significant comments received on the Interim Final Rule  11 and the EPA's responses to those comments. All comments made on the Interim Final Rule and the EPA's responses can be found in the document, “Summary of Public Comments and Responses for Rescinding the Rule on Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process,” available in the docket for this rulemaking.

Comment: Some commenters supported retaining the Benefit-Cost Rule and opposed the Interim Final Rule rescinding it. Several of these commenters cited their 2020 comments on the proposed Benefit-Cost Rule, asserting that in those comments, they had raised examples of prior analyses being performed by the EPA that were inconsistent in their approaches or methodologies or inappropriately relied upon a “misuse of co-benefits.” The commenters claimed that leaving the Benefit-Cost Rule in place would have addressed their concerns.

Response: The commenters to the Interim Final Rule did not provide in their comments, with any kind of specificity, examples of how the Benefit-Cost Rule would have resolved any problems those commenters had with prior BCAs performed by the EPA. Nevertheless, the EPA has examined the prior comments that were referenced to determine whether any commenter demonstrated that there was a significant problem of inconsistency or transparency that the Benefit-Cost Rule's requirements would have resolved. After examining the rulemaking record for the Benefit-Cost Rule, we do not agree with these commenters that they identified concrete examples of how the Benefit-Cost Rule would have improved their perceived flaws. To the contrary, the comments in support of the Benefit-Cost Rule proposal simply alleged broadly that the EPA had “historically used inconsistent approaches” to BCA, that there was a need to “correct past practices,” that there was “inconsistency in methodologies,” and that EPA had “misused co-benefits.” We do not agree that these general complaints about past inconsistency, without any specificity, provide an adequate basis for establishing a concrete problem, nor do they explain how the Benefit-Cost Rule would have addressed any such problem.

Comment: A commenter contended that the EPA should not make a major change, such as rescinding the Benefit-Cost Rule, through an Interim Final Rule. The commenter stated that this action, by itself, is an indication that the EPA has already made up its mind to rescind the rule. The commenter added that, in developing the Benefit-Cost Rule, the EPA went through a proposed rulemaking process, so in rescinding the rule, or revising it, the EPA should go through a similar process and revise the Benefit-Cost Rule only to the extent necessary to address any concerns that remain after properly considering public comments.

Response: Agencies are always free to adopt additional notice-and-comment procedures, but to the extent that the commenter suggests that such procedures were required in this instance, we do not agree. The Benefit-Cost Rule was a procedural rule, i.e., a rule of agency organization, procedure, or practice. A procedural rule does not regulate any party outside of the EPA but instead exclusively governs the EPA's internal process for conducting business. As discussed in section IV of the Interim Final Rule, procedural rules are exempt from the APA's notice-and-comment requirements, and therefore it was permissible and appropriate to make the rescission of that rule effective using an interim final rule. However, EPA recognizes the value of transparency and public input and therefore voluntarily sought public comment on its decision to rescind, consistent with Administrative Conference of the United States Recommendation 95-4, which recommends that agencies consider providing post-promulgation notice and comment even where an exemption is justified, be it a substantive rule relying on the “good cause” exception to notice and comment, 5 U.S.C. 553(b)(B), or a procedural rule such as this one.

Comment: Several commenters requested that the EPA revise rather than rescind the Benefit-Cost Rule in its entirety. These commenters said that they do not agree that the issues raised by the EPA were significant enough to warrant rescinding the Benefit-Cost Rule. Some commenters urged the EPA to reconsider each provision of the Benefit-Cost Rule on an individual basis, seek public comment on the issue, and amend the provisions after considering the comments. Another commenter contended that the EPA should have amended the scope of the Benefit-Cost Rule to address concerns raised in the Interim Final Rule regarding burdensome requirements for some non-economically significant rules. One commenter noted that, rather than rescinding the rule, the EPA could have revised the rule to retain some provisions as regulation and left some as guidance, as the Agency's Science Advisory Board (SAB) had suggested as a possible improvement in its comments on the Benefit-Cost Rule. Some commenters contended that EPA's decision to repeal the Benefit-Cost Rule is in direct conflict with the January 27, 2021 memorandum, “Restoring Trust in Government Through Scientific Integrity and Evidenced-Based Policymaking.” These commenters stated that ensuring “evidence-based decisions” that are “guided by the best available science and data” requires the EPA to undertake a rigorous and objective BCA and to present the analysis, including key uncertainties, in a transparent manner.

Other commenters agreed with EPA's decision as explained in the Interim Final Rule that the rule should be rescinded in its entirety. These commenters further stated that fixing the rule through targeted amendments was not viable because the problematic elements were significant and difficult to address in piecemeal fashion. The commenters agreed the problems were substantive and the Benefit-Cost Rule as a whole should be rescinded.

Response: We disagree that the EPA should have revised the Benefit-Cost Rule rather than rescind it. The EPA conducted a comprehensive review of both the legal and factual predicates for the Benefit-Cost Rule and, in particular, the need for an imposition of and codification of “one-size-fits-all” requirements governing economic analyses for a large subset of regulations promulgated under the CAA. We do not agree that revision rather than rescission would have resolved our concerns with the Benefit-Cost Rule. The problematic elements of the Rule were significant, and many of those problems extended across the entirety of the rule and could not be excised and resolved on a case-by-case basis. For example, one particularly problematic element of the Benefit-Cost Rule was its codification of methodologies and practices that we think are better suited to guidance. As explained in the preamble to the Interim Final Rule and in section III of this preamble, and as recognized by OMB itself, guidance allows the EPA to tailor economic analyses to the regulatory question and problem at hand, and it also facilitates using up-to-date methodologies in those analyses without first undergoing a notice-and-comment rule revision. Therefore, some of the revisions suggested by commenters, such as amending the scope of the Benefit-Cost Rule to exclude non-economically significant rules, would not have addressed this fundamental problem.

With respect the SAB's suggestion, we do not agree that the SAB was specifically endorsing revision of the Benefit-Cost Rule over rescission. The one sentence in the SAB's cover letter in which it “urges EPA to carefully consider which aspects of BCA should be included in the final [Benefit-Cost] rule versus which aspects should be in guidance,” should be read in context of the significant and detailed concerns detailed by the SAB with many of the Rule's specific requirements. 12 The more accurate overall message from the SAB's report is that the proposed rule as drafted would have been problematic if implemented, and that at the very least the EPA should consider retaining some requirements as guidance “given the case-by-case nature of BCA.” In some instances, the SAB acknowledged that while it was providing specific recommendations regarding how to improve certain sections of the rule, complete overhaul was preferable. 13 We also disagree with the commenters who assert that repealing the Benefit-Cost Rule is in direct conflict with the January 27, 2021 memorandum, “Restoring Trust in Government Through Scientific Integrity and Evidenced-Based Policymaking.” To the contrary, the Benefit-Cost Rule was not necessary to making “evidence-based decisions” “using best available science and data,” and as we have explained, could have hindered that outcome.

Comment: Numerous commenters agreed with the EPA's assertion that the Benefit-Cost Rule codified certain practices that conflicted with the best science, particularly for quantifying the health benefits of a rule. Other commenters disagreed with the EPA's assertion that the Benefit-Cost Rule codified certain practices that conflicted with the best science. These commenters asserted that the Benefit-Cost Rule directed the EPA to base its decisions on the best available science and in accordance with best practices from science and fields such as economics. The commenters argued that this requirement was a broadly supported principle for sound regulatory decision making that has enjoyed bipartisan support for decades, as stated in E.O. 13563 and E.O. 12866. One commenter asserted that the Benefit-Cost Rule required the use of best practices for risk assessment/characterization and would have prevented the Agency from taking shortcuts in analyses or applying assumptions that are not identified or supportable.

Response: We agree that the EPA should use the best available scientific information and best scientific practices for BCAs. However, we disagree that the Benefit-Cost Rule was necessary to promote best practices. Indeed, in section III.C.3 of the preamble of the Interim Final Rule, we provided several examples of how implementation of some of the Benefit-Cost Rule's requirements could have undermined the scientific integrity of the EPA's BCAs for CAA regulations rather than strengthened them. We also disagree that the Benefit-Cost Rule's requirements regarding risk assessments and characterization would have prevented the Agency from taking shortcuts or applying unsupportable assumptions. As discussed in section III.C.3 of the Interim Final Rule, those requirements could have led to inferior selection of health studies or the potential exclusion of some health endpoints altogether. By imposing a requirement that studies or analyses used to quantify concentration-response relationships should “consider how exposure is measured,” and favor “particularly those that provide measurements at the level of the individual and that provide actual measurements of exposure,” the Benefit-Cost Rule introduced a bias against methods that in some cases may have been both higher quality and more appropriate by discouraging consideration of studies that combine both measured and modeled concentrations. 14 We have also noted how, rather than codifying a best practice, the Benefit-Cost Rule's requirement to limit assessment of human health benefit endpoints to instances where there is “a clear causal or likely causal relationship between pollutant exposure and effect” was unsupportable. It did not derive from the Economic Guidelines, Circular A-4, or SAB advice, and in fact was criticized by the SAB. 15 Finally, as noted in the Interim Final Rule, we are concerned that the Benefit-Cost Rule's imposition of highly specific and stringent requirements for assessing benefits in conjunction with substantially less stringent requirements for assessing costs would have led to unbalanced BCAs. Moreover, these requirements only applied to health benefits, which created an inconsistency with other categories of benefits ( e.g., visibility, ecological effects) that were not subject to the requirements. By rescinding the Benefit-Cost Rule, the EPA is not forswearing BCAs, which it has undertaken for decades consistent with the Executive Orders cited by the commenters. Rather, we think undertaking those BCAs pursuant to guidelines issued by EPA and OMB, which provide for flexibility and tailoring in order to permit incorporation of evolving science and best practices, will produce higher quality analyses than if EPA conducted BCAs subject to the Benefit-Cost Rule's rigid codification of particular practices that were frozen at a moment in time, and in some cases, were substantively problematic.

Comment: Some commenters agreed with the EPA's assertion that the Benefit-Cost Rule would have locked the EPA into using outdated practices until the rule could be amended. Another commenter said the Benefit-Cost Rule would have weakened the integrity of the BCA process for CAA regulations by hindering EPA's ability to use the best scientific data available. Another commenter asserted that if the Benefit-Cost Rule had conflicted with future changes to the Economic Guidelines, the EPA would have had to undergo a lengthy notice-and-comment process to make updates to its rule, as opposed to just updating the Economic Guidelines already in existence, and this process could seriously delay the EPA's ability to adapt to changes in best practices and could hinder the promulgation of public health and environmental protections.

Other commenters argued that the Benefit-Cost Rule would not have stopped the adoption of new practices, but instead would have required the EPA to notify the public and seek public comment on the basis for the Agency's decision to adopt the new procedures. Some of these commenters said that 40 CFR 83.3(a)(11)(v) of the Benefit-Cost Rule specifically authorized departures from the Rule's requirements if the EPA provided a “reasoned explanation,” including a discussion of the “likely effect of the departures on the results of the BCA.” The commenters argued that, in response to changes in best practices, the EPA could at any time simply amend the Rule separate from or in parallel with a new covered CAA rulemaking after seeking notice and comment and providing a reasoned explanation. The commenters asserted that rescission of the Benefit-Cost Rule allows the EPA to make ad hoc decisions without notification or explanation. Another commenter contended that the Benefit-Cost Rule did not force the EPA to revise the rule if best practices change over time. The commenter pointed out that the Benefit-Cost Rule did not provide a specific definition of best practices, and the requirements of 40 CFR 83.3(a)(1) through (12) were predominantly general in nature without prescribing exact methods. The commenter said that many of the requirements in 40 CFR 83.3(a) addressed what information the EPA was required to provide, not the specific methodology the EPA had to use to estimate benefits and costs.

Response: We agree that with the Benefit-Cost Rule in place, if the latest or best scientific practice differed from the Rule's requirements, the EPA would have been required to amend the Rule in order to be consistent with best practice. The process of revising a rule often takes a year or more to complete, which would have prevented the EPA from keeping up with evolving best practices and required the EPA to rely on potentially outdated methods until a revised rulemaking could be completed. We maintain this is inconsistent with making decisions based on the best scientific data available. As discussed in section III.C.2 of the Interim Final Rule, by freezing and defining what constituted “best practices” at a single point in time, the Benefit-Cost Rule elevated “consistency” over the exercise of sound judgment based on latest scientific knowledge and, given that revision by rulemaking could take a long time, would have slowed or discouraged progress in the development and use of newer and better methods. Promulgating updates to the Benefit-Cost Rule every time the Rule became outdated “in parallel with” substantive, statutorily required CAA rules would have been no small regulatory burden; it would have required a significant amount of agency resources to do so and created uncertainty in the CAA rule, by linking that rule to an unsettled regulatory change to the Benefit-Cost Rule that was itself open to challenge and judicial review.

We also do not agree with commenters that the requirement in 40 CFR 83.3(a)(11)(v) that the EPA include in every BCA “[a] reasoned explanation for any departures from best practices in the BCA, including a discussion of the likely effect of the departures on the results of the BCA” was an authorization for the Agency to diverge from the Benefit-Cost Rule. That provision states that the EPA has to explain why it has diverged from “best practices,” not from the Benefit-Cost Rule. “Best practices” is a term not defined in the Benefit-Cost Rule, and is on its face subject to interpretation. Far from providing clear guidance to the Agency on when it would have been permitted to take an updated approach to BCA absent a change to the Benefit-Cost Rule, we think that provision itself bred a great deal of uncertainty—how, for example, is the Agency to know whether it has adequately explained the “likely effect” of its departures from best practices (which, if the Agency is taking such departure, it likely does not believe to be “best practice”)? As further evidence of how best practices change over time, we note that the Economic Guidelines are in the process of being updated as part of a periodic review undertaken by the EPA. In addition, President Biden issued a memorandum on January 20, 2021, on Modernizing Regulatory Review, 16 which directs OMB in consultation with other agencies to recommend revisions to Circular A-4. The confluence of updates to these two documents, which provided the ostensible underpinning to the regulatory requirements of the Benefit-Cost Rule, only highlights the misguided nature of attempting to freeze “best practices” at one moment in time.

Finally, we do not agree with the commenters who asserted that the regulatory requirements of 40 CFR 83.3(a)(1) through (12) were predominantly general in nature. For example, as noted in the Interim Final Rule, those provisions contained highly prescriptive (but in many cases vague and confusing) requirements for benefits assessment and uncertainty analyses (with no corresponding requirements for how costs are calculated and considered). In contrast, since guidance is inherently less prescriptive than regulation, it can be more flexible in allowing agencies to keep up with the evolution of best practices to support CAA regulations.

Comment: Some commenters agreed with the EPA's assertion that the Benefit-Cost Rule was inconsistent with the mandates in the CAA that prohibited the EPA from considering cost for some types of rulemakings. They agreed with the EPA that the Benefit-Cost Rule's rationale for including BCA in the records and preambles of rulemakings in which the agency is prohibited from considering cost is not “necessary” to carry out the statute within the meaning of CAA section 301(a).

Other commenters disagreed with the EPA's assertion that the Benefit-Cost Rule was inconsistent with the mandates in the CAA that prohibited the EPA from considering cost for some types of rulemakings. These commenters argued that the Benefit-Cost Rule applied with respect to a significant rule implementing the CAA only when the CAA required or permitted consideration of cost. These commenters contended that the Benefit-Cost Rule did not violate the CAA because it required (at 40 CFR 83.2(b)) EPA to consider the results of a BCA except in those circumstances where the applicable CAA provision(s) prohibited that consideration. These commenters added that when not prohibited by the statute, the Benefit-Cost Rule left the EPA significant discretion in how it would consider the BCAs in individual CAA rules to account for the significant differences among statutory provisions as long as the Agency provided the public with a description in the preamble. Another commenter said that 40 CFR 83.4(d) provided the EPA with clear direction and appropriate discretion in when and how to consider the results of BCAs in making regulatory decisions.

One commenter stated that, while the EPA may be prohibited from considering costs in some cases, such as with revisions to the NAAQS, this did not negate the need for the Rule's requirements with regard to how the EPA calculates benefits. The commenter also stated that the EPA routinely presents cost information in addition to benefits even in cases where the EPA is prohibited from considering costs, such as in the RIA for the 2015 ozone NAAQS revision. The commenter contended that such information is still beneficial in that it informs the public on the potential cost impacts of the EPA's regulatory actions, even if the EPA cannot directly consider those cost impacts. Another commenter argued that the actual text of the CAA's substantive authorities (and most other statutory provisions) rarely prohibits benefit-cost balancing and arguably may require it. The commenter stated that Administrations have recognized that the public has a right to know the projected benefits and costs of a new rule even if the underlying statutory provision (as in the case of CAA section 109 for setting NAAQS) has been interpreted to prohibit the consideration of costs. The commenter said elevating BCA practices is consistent with the recent Supreme Court decisions on BCA, particularly Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009) and Michigan v. EPA, 135 S. Ct. 2699 (2015). The commenter asserted that these decisions apply the fundamental principle, established in Motor Vehicle Mfrs. Ass'n, Inc. v. State Farm Mut. Auto. Ins. Co., 463U.S. 29, 43 (1983), that it is arbitrary for an agency to neglect an important aspect of a regulatory problem. Another commenter also pointed out that Michigan v. EPA, 135 S. Ct. 2699 (2015), concluded that when interpreting CAA section 112(n)(1)(A), “Read naturally in the present context, the phrase `appropriate and necessary' requires at least some attention to cost.”

Response: We disagree that provisions in the Benefit-Cost Rule's regulations granting EPA discretion in how and when to consider the results of the mandated BCA resolves the problems presented by the Rule. Where the CAA prohibits the EPA from considering cost in implementing a provision, it cannot be “necessary” to require the EPA to conduct a BCA and include it in the decisional rulemaking record. The EPA is already conducting BCAs pursuant to Executive Order in situations where it is appropriate to do so, so commenters' assertions that the Benefit-Cost Rule is necessary for public information ring hollow, and the commenters did not address how incorporation of a BCA into the agency's rulemaking record where Congress has instructed the Agency not to consider cost is consistent with the CAA. As one commenter pointed out, the Agency's current practice for rules like the 2015 ozone NAAQS, where the rule is economically significant but where the statute does not permit the Agency to consider cost, is to conduct RIAs but not to include those in the record. The Benefit-Cost Rule's requirement that the EPA include the BCA in its record is a distinct change from its current practice, and is both unnecessary and inappropriate given the limits of EPA's statutory authority to consider cost.

We are also unconvinced by the commenters who assert that the Benefit-Cost Rule is not inconsistent with the CAA for those rules promulgated under provisions that permit consideration of cost just because the Rule left it to the Agency's discretion how it should consider cost. The fact remains that the Rule did not explain why, for any particular CAA provision, BCA is the best or even a reasonable way for the agency to consider cost. For CAA rules that would have been impacted by the Benefit-Cost Rule, the EPA believes it would have needed to justify why complying with the Rule's requirement to conduct and consider a BCA was reasonable under the given CAA provision; the existence of the Agency's own procedural rule requiring analysis and consideration of a factor does not create statutory authority to consider a factor that Congress did not intend the Agency to consider. We do not agree that what would have been a case-by-case post-hoc rationalization of the Benefit-Cost Rule as it applied to any particular provision is superior to the existing process of statutory interpretation, where we first look to the CAA to try to ascertain those factors Congress intended the Agency to consider, and whether the statutory provision suggested how the EPA should consider any such factor. We disagree that any of the court decisions cited by the commenters evince any general principles that “elevate” BCA over any other economic analysis. In Entergy, the Court upheld as reasonable the EPA's choice to consider cost using a BCA given particular statutory language in the Clean Water Act. In Michigan, the Court spoke only to whether the EPA needed to consider cost at all in implementing a CAA provision and explicitly did not opine on how the Agency might reasonably consider cost. The Michigan Court's holding that a particular CAA phrase required the Agency to consider cost is more consistent with the EPA's findings today that it should look first to the statute to determine what factors are required under a State Farm analysis, rather than start from an Agency-generated procedural rule that articulates a particular type of analysis irrespective of statutory text.

Comment: Several commenters agreed with the EPA's assertion that the administrative processes already in place before the Benefit-Cost Rule was promulgated provide ample consistency and transparency in the rulemaking process. One commenter asserted that rather than increasing transparency, the Benefit-Cost Rule's requirements would have obscured the basis of the EPA's decisions. Another commenter said that the Benefit-Cost Rule did not support its contention that the pre-existing procedural requirements established by Congress were deficient. A commenter also noted that the EPA is already required to transparently share its data, relevant statutory interpretations, and methodology underlying its rulemaking, and concerned parties are able to supplement that data, raise arguments that BCA should be integrated into a rulemaking, make other recommendations for consideration of costs, or share any concerns that the Agency has been insufficiently transparent. Another commenter asserted that the EPA failed to articulate any inconsistency or lack of transparency in existing BCAs that would call for the drastic changes the Benefit-Cost Rule would impose, and that the EPA violated numerous executive orders by, for example, failing to consult with States on the Benefit-Cost Rule's federalism implications and failing to assess regulatory costs and environmental justice impacts.

Other commenters disagreed with the EPA's assertion that the administrative processes already in place before the Benefit-Cost Rule was promulgated provided ample consistency and transparency in the rulemaking process. Several of these commenters referenced comments they had submitted on the proposed Benefit-Cost Rule. The commenters reiterated their comments on the proposed Benefit-Cost Rule that an overriding goal of the Agency should be to present data regarding benefits and costs to decisionmakers and the public as objectively and accessibly as possible.

Some commenters also pointed out that the Benefit-Cost Rule included additional procedural requirements to increase transparency in the presentation of results, such as providing a summary of the overall results of the BCA. A commenter noted that while the EPA cannot consider the result of the BCA in setting NAAQS, the RIA does play an important role in informing the public of the likely costs and benefits of setting a new standard. The commenter argued that the Benefit-Cost Rule further advanced transparency by requiring more objective analysis and explanation of uncertainties in the benefit and cost estimation. The commenter added that the analyses should be consistent with Circular A-4, establishing the appropriate baseline, analyzing alternatives, and estimating benefits and costs. The commenter added that rules should be fully transparent about the many uncertainties underpinning their cost and benefit estimates, including the many embedded policy assumptions made in developing the various estimates of costs and benefits associated with a rulemaking and the significance of the impact of those assumptions on the final policy decision. Another commenter asserted that if the EPA decides to rescind the Benefit-Cost Rule, then the EPA must still maintain transparency in calculating and reporting the ancillary benefits associated with regulatory actions under the CAA and all other sources of regulatory authority.

Response: We disagree that the administrative process already in place before the Benefit-Cost Rule was promulgated is inadequate. For CAA rules that are subject to the rulemaking requirements of CAA section 307(d), which include many of the major CAA rulemakings that would have been subject to the Benefit-Cost Rule, the CAA already requires proposed rulemakings to include a statement of basis and purpose, which must include “(A) the factual data on which the proposed rule is based; (B) the methodology used in obtaining the data and in analyzing the data; [and] (C) the major legal interpretations and policy considerations underlying the proposed rule.” CAA section 307(d)(3). The CAA also requires that these statements “set forth or summarize and provide a reference to any pertinent findings, recommendations, and comments by the Scientific Review Committee, . . . and, if the proposal differs in any important respect from any of these recommendations, an explanation of the reasons for such differences.” Id. Finally, the CAA already requires, for rules subject to CAA section 307(d), that “[a]ll data, information, and documents . . . on which the proposed rule relies shall be included in the docket on the date of publication of the proposed rule.” Id. Those CAA rulemakings that are not subject to these specific requirements are still subject to the requirements that apply to all proposed rulemakings under the APA, which similarly require the proposal to include “reference to the legal authority under which the rule is proposed; and either the terms or substance of the proposed rule.” APA section 553(b). EPA must also provide an opportunity for comment on proposed rulemakings and respond to all significant comments, and all final rules are subject to judicial review for EPA's failure to adequately respond to significant comments.

We agree that BCA requirements and analyses should be clear and transparent, and we agree that EPA should follow OMB Circular A-4 guidance to present data regarding benefits and costs to decisionmakers and the public as objectively and transparently as possible. We disagree that this was not the case prior to the promulgation of the Benefit-Cost Rule, and we disagree that EPA's analyses of its regulatory actions are inconsistent with OMB Circular A-4. Then, as now, in performing analyses of regulatory actions, the EPA follows the guidance laid out by OMB Circular A-4 and the Economic Guidelines in areas such as identifying the baseline, analyzing alternatives, and estimating costs and benefits, including ancillary benefits. The analyses and results are subject to internal review and an interagency review process under E.O. 12866 that involves application of the principles and methods defined in Circular A-4. The results of the analyses, documented in RIAs, are also reviewed by OMB to ensure consistency with Circular A-4. While BCAs are similar for different rules, as instructed in Circular A-4 and the Economic Guidelines, the analyses are often tailored to the specific source category by considering a number of variables, such as the type of pollutants being controlled, available data, and the location of the emission sources.

Additionally, we disagree with commenters who contended that the Benefits-Cost Rule would have increased transparency in the presentation of results. The EPA already disaggregates benefit and cost estimates in BCAs, so these narrow presentational requirements do not provide additional transparency. As discussed in the Interim Final Rule, the Benefits-Cost Rule would have required the preambles of significant proposed and final CAA regulations to include a separate presentation that excluded certain categories of benefits that Circular A-4 and the Economic Guidelines indicate should be considered. This could have resulted in misleading net-benefit calculations that would have inaccurately characterized the benefits of a rulemaking and would have called into question the significance of the excluded benefits.

We disagree that RIAs are difficult to find as they are always included in the docket for significant rulemakings. Additionally, all of the RIAs are available online, and many can be found at EPA's website sorted by source category: https://www.epa.gov/economic-and-cost-analysis-air-pollution-regulations/regulatory-impact-analyses-air-pollution. While the RIAs are technical in nature, the EPA takes steps to provide information to aid in their interpretation by the public.

We also note that the overall summary of BCA results that one of the commenters supports, which present the overall net benefits associated with a rulemaking, are already recommended by Circular A-4 and are thus included in the RIAs for our rulemakings. The contents of the summary tables already provided by the EPA are consistent with the guidance for such summary tables in Circular A-4 for all rulemakings. For significant rules, the EPA also follows Circular A-4 procedures that require presenting a formal quantitative analysis of the relevant uncertainties about benefits and costs.

Comment: Some commenters agreed with the EPA that the Benefit-Cost Rule's presentation requirements would be misleading. These commenters supported the EPA's assertion that requiring a separate presentation that excluded certain categories of benefits that Circular A-4 and the Economic Guidelines indicate should be considered could call into question the significance of those benefits without justification. They contended that excluding co-benefits from a presentation of benefits would violate established economic principles, established best practices, and longstanding practices of previous administrations. One commenter cited Michigan v. EPA, stating that in its view, the Supreme Court held that the EPA needed to consider all advantages and disadvantages in deciding whether a regulation is appropriate, such as in the case where a regulation controls emissions but has the indirect effect of causing new health harms.

Another commenter noted that, out of the hundreds of pollutants the EPA regulates under the CAA, the EPA only has sufficient information on particulate matter, and more than 90 percent of all benefits that the EPA quantifies in its BCAs are attributable to this one pollutant. The commenter stated that when significant benefits are missing from the monetized estimate, calculating a number that meaningfully represents a rule's net benefits is simply a logical impossibility, and any calculation that purports to do so is, as OIRA itself acknowledges, “misleading” at best.

Other commenters opposed rescinding the Benefit-Cost Rule's requirements regarding the presentation of ancillary benefits and non-domestic benefits. One commenter defended the Benefit-Cost Rule on the basis that the Rule did not prescribe any specific requirement as to how EPA must consider ancillary benefits or provide a formula for when a rule “passes” a benefit-cost test; the Benefit-Cost Rule only required the EPA to better inform the public about basic information contained in BCAs and to differentiate in a clear fashion what the ancillary benefits are in a given rule. Other commenters stated that the Benefit-Cost Rule's requirement to present statutory- objective benefits separately from ancillary co-benefits and non-U.S. based benefits would enhance transparency and would not limit the Agency's ability to recognize and account for these benefits. Another commenter contended that, without the required clarity and accounting for the sources of the benefits, the public and decisionmakers are more likely to be misled in understanding the nature of the benefits and whether those benefits could have been achieved more efficiently under other provisions of the statute. A commenter re-iterated its previous comment on the proposed Benefit-Cost Rule that presenting disaggregated cost and benefit information allows for evaluation and consideration of possibly disproportionate costs on one population from a rule where the benefits are primarily focused on another population. The commenter provided an example where it asserted that the EPA's BCA for the Clean Power Plan estimated benefits using the global social cost of carbon but compared those benefits to costs within the U.S. The commenter asserted that such a comparison was misleading and could have caused parties to not question EPA's justification of the Clean Power Plan when they might have if the EPA had disaggregated the benefits and costs as required by the Benefit-Cost Rule. Another commenter contended that estimates of global benefits should be reported separately in a manner consistent with Circular A-4. The commenter added that the EPA's failure to abide by OMB Circular A-4 by reporting only global benefits resulted in analyses that compared U.S. costs with global benefits—an asymmetry that should be fully disclosed.

Some commenters contended that the EPA used ancillary benefits to justify rules that did not quantify emission reductions or that showed only minimal emission reductions from pollutants directly regulated. Another commenter cited two greenhouse gas regulations, the EPA's Phase 2 rule for Medium and Heavy-Duty Engines and Vehicles and the Clean Power Plan, where the EPA estimated substantial net economic benefits due to the inclusion of the non-climate effects of climate policies as co-benefits. Another commenter added that the EPA used ancillary benefits to support six major CAA rules that did not quantify direct benefits, and in 21 of 26 major non-particulate matter rulemakings analyzed from 1997 to 2011, the particulate matter ancillary benefits accounted for more than half of the total benefits. A commenter contended that reliance on co-benefits to justify regulatory action circumvents Congressional intent because it disregards the target of the underlying statutory provision and circumvents the substantive focus and procedural safeguards established under the law. The commenter added that regulation through co-benefits also undermines the very purpose of BCA by obscuring the question of whether the proposed action accomplishes its intended purpose in a reasonable and resource-efficient manner. One commenter suggested that the EPA can avoid using cost-ineffective “co-benefits” in the BCA by requiring a robust regulatory baseline that reflects all projected federal and state emission reductions, as well as a robust alternatives analysis that outlines the opportunity costs of pursuing “co-benefits” through sub-optimal, if not unnecessary, measures to achieve standards.

Response: At the outset, we note that, by definition, a BCA includes all the costs and benefits of a rulemaking, i.e., the net benefits of a regulatory change, in order to ascertain the economic efficiency of that change. We believe some commenters are mistaken in their understanding of how the EPA currently presents net benefits and also what the Benefit-Cost Rule required. To clarify, the EPA already disaggregates benefit and cost estimates in its RIAs, per the instructions in Chapter 11 of the Economic Guidelines (Presentation of Analysis and Results) and the OMB Circular A-4 section on characterizing uncertainty in benefits, costs, and net benefits. The results of BCAs are presented in RIAs. Both guidance documents are clear that net benefits are calculated by subtracting total costs from total benefits, regardless of whether the benefits and costs arise from intended or unintended consequences of the regulation. Section 6 of Circular A-4 instructs that the “analysis should look beyond the direct benefits and direct costs of your rulemaking and consider any important ancillary benefits and countervailing risks,” where an ancillary benefit is defined as a “favorable impact of the rule that is typically unrelated or secondary to the statutory purpose of the rulemaking.”  17 This is particularly important in instances when unintended effects are important enough to potentially change the rank ordering of the regulatory options considered in the analysis or to potentially generate a superior regulatory option with strong ancillary benefits and fewer countervailing risks. Circular A-4 also notes that, “In some cases the mere consideration of these secondary effects may help in the generation of a superior regulatory alternative with strong ancillary benefits and fewer countervailing risks.”

In our view, the Benefit-Cost Rule's requirements would not have provided additional transparency, and we are concerned that the Rule's requirements may have led to misleading net-benefit calculations. The Benefit-Cost Rule required preambles of affected rules to include a summary of both the overall BCA results as well as an additional reporting of subsets of the total benefits of the rule. Specifically, the Benefit-Cost Rule required a presentation of only the benefits “that pertain to the specific objective (or objectives, as the case may be) of the CAA provision or provisions under which the significant regulation is promulgated.” The Benefit-Cost Rule also required that if any benefits and costs accrue to non-U.S. populations, they must be reported separately to the extent possible. These presentational requirements are duplicative of information the EPA already presents in its RIAs, so they would not have provided additional transparency. If, however, these subsets of benefits were compared to total costs and deemed to be some type of limited net-benefits calculation, we think that application of the information would be misleading and contrary to best economic practice. In addition, requiring a separate presentation that excluded certain categories of benefits that Circular A-4 and the Economic Guidelines indicate should be considered might lead the public to question the significance of those benefits without any justification.

The remainder of the comments summarized above are outside the scope of this action, and the question of whether the EPA should rescind the Benefit-Cost Rule. Specifically, with respect to the suggestion that the EPA should include in its baselines projected federal and state emission reductions, the Benefit-Cost Rule would not have changed how the Agency calculates baselines, and we do not agree that the commenter's suggestion would be consistent with recommended guidelines or advisable, to the extent that the commenter is including in “projected” reductions any that are not finalized and on-the-books. The EPA follows Circular A-4 and the EPA's Economic Guidelines, which direct the EPA to develop baselines that include all significant projected federal emission reductions for fully promulgated rules and the future impacts of state regulation to the extent they are known and on the books at the time of the rulemaking.

Regarding the suggestion that the EPA conduct a “robust alternatives analysis” looking at lost opportunity costs of pursuing co-benefits through “sub-optimal” if not unnecessary measures, the comment is unclear but also appears to be beyond the scope of this action. We disagree that the EPA has designed regulatory options to meet its statutory obligations for the purpose of pursuing reductions in other pollutants (or ancillary benefits). It is simply a fact that many of the control technologies designed to reduce emissions of specific pollutants also happen to reduce emissions of other pollutants, in part because sources that are targeted under the Act often tend to emit many kinds of pollutants and control of one pollutant can often result in reductions of other non-targeted pollutants.

Moreover, we disagree with comments that the EPA used ancillary benefits to justify regulations or circumvent Congress, but in any case, the Benefit-Cost Rule's requirement to report certain subsets of benefits separately would not have addressed these concerns. In general, the Agency undertakes RIAs in order to comply with E.O. 12866. Those Clean Air Act rulemaking RIAs, in almost every instance, are not part of the Agency's record basis for the action. They are not included in the Agency's record basis for the action because they are not used to justify the Agency's decision making. The net-benefits calculations in RIAs, which, consistent with Circular A-4 and the Economic Guidelines, include all benefits, are provided in order to comply with E.O. 12866 and for illustrative and informational purposes only. Therefore, even if the monetized particulate matter benefits associated with a number of CAA rules were greater than the monetized benefits for any other pollutant, it does not follow that the EPA justified promulgation of these rules based on particulate matter benefits. Instead, it indicates that the Agency may have more data and information to monetize the benefits of reducing that particular pollutant and that it is extremely common for required emissions controls to result in ancillary benefits.

Commenters cited two examples of EPA RIAs that they claimed would have been conducted differently had the Benefit-Cost Rule's presentational requirements for ancillary benefits been in place—the 2016 Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2 Rule and the 2015 Clean Power Plan, but we do not agree. Both examples adhered to OMB Circular A-4. The RIAs provided separate reporting for all categories of both benefits and costs (see summary beginning on page 8-71 of the Phase 2 Rule RIA and Tables ES-6 through ES-8 and additional details in Chapter 4 of the Clean Power Plan RIA). For example, for the Phase 2 Rule RIA, benefits in the form of savings in fuel expenditures, increased vehicle use associated with the fuel economy “rebound” effect, benefits of greenhouse gas emission reductions, benefits of non-greenhouse gas emissions reductions, and the economic value of improvements in U.S. energy security are separately reported. We also disagree with the commenter who cited the Clean Power Plan RIA's estimation of climate benefits as an example of a misleading analysis that could have caused parties to not question EPA's justification of the Clean Power Plan when they might have if the EPA had disaggregated the climate benefits as required by the Benefit-Cost Rule. In the RIA, the EPA strove to be very transparent and provided a lengthy discussion of why EPA appropriately centers attention on a global measure of the social cost of carbon when estimating climate benefits resulting from reductions in this global pollutant. In addition, the Agency clearly stated that the monetized benefits analysis was not EPA's justification for the rule. As explained in the preamble for the final rule, “As required under Executive Order 12866, the EPA conducts benefit-cost analyses for major Clean Air Act rules. While benefit-cost analysis can help to inform policy decisions, as permissible and appropriate under governing statutory provisions, the EPA does not use a benefit-cost test ( i.e., a determination of whether monetized benefits exceed costs) as the sole or primary decision tool when required to consider costs or to determine whether to issue regulations under the Clean Air Act, and is not using such a test here.”

Comment: One commenter noted that the Benefit-Cost Rule's limits on the types of scientific data that the EPA can consider, as well as its prescriptions regarding the presentation of certain categories of benefits, would have impeded the adoption of additional public health protections that are critically needed to ensure breathable air to overburdened communities. Some commenters stated that the Benefit-Cost Rule's failure to undertake any analysis of these potential environmental justice impacts is directly contrary to the EPA's mission under the CAA. Some commenters asserted that the Benefit-Cost Rule would have interfered with the EPA's efforts to address distributional and environmental justice impacts. These commenters said that rescinding the Benefit-Cost Rule removed an unnecessary and inappropriate impediment to the Agency's rigorous pursuit of its mission, including its ability to advance environmental justice. The commenters asserted that the Interim Final Rule reduced this risk and associated negative environmental health and safety risks that often disproportionately affect children and residents of environmental justice communities. Some commenters said that the Interim Final Rule was fully in line with the Administration's commitment to advancing environmental justice, both broadly and through specific agency actions. Another commenter contended that the Benefit-Cost Rule disregarded the complex ways in which pollutants interact within and across environmental media, thereby undermining environmental protections and the existing regulatory programs that are essential to public health, protection of ecosystems and wildlife, and local economies.

Some commenters argued that the EPA's development of the Benefit-Cost Rule did not adequately reflect the mandates of E.O. 12898 and 13045 or comply with the required analysis. A commenter contended that E.O. 12898 applies to programs, policies, and activities, and the Benefit-Cost Rule was clearly a policy, and therefore, should have been subject to E.O. 12898 directives to consider environmental justice. One commenter stated that the Benefit-Cost Rule would have codified value judgments that could impact the evaluation and development of regulations that can significantly affect health risks to children and the pollution burdens on environmental justice communities. Another commenter asserted that aggregating those health benefits that can be quantified overlooks communities of color that have been subjected to racist practices, such as redlining, that have confined them to pollution hotspots or areas of disinvestment. Another commenter said that the Benefit-Cost Rule would have applied benefits as an average across societies instead of a distributional analysis and that this was extremely problematic and even unethical because the approach masks disparities in the location of polluting facilities and resultant air pollution (and health outcomes).

Other commenters said that ongoing efforts are needed to ensure that the EPA appropriately considers environmental justice implications moving forward. A commenter asserted that the EPA failed to recognize any environmental justice considerations in both its reasoning for rescinding the Benefit-Cost Rule and its explanation for returning to the pre-existing BCA process. The commenter argued that building environmental-justice considerations into the BCA process is needed to ensure that the EPA's future CAA actions do not re-enforce the existing pollution-exposure discrepancies underserved communities face. Similarly, another commenter asserted that low-income communities and communities of color have long been disproportionately harmed by air pollution and other forms of environmental degradation. The commenter added that the Benefit-Cost Rule would have obscured environmental-justice implications because the EPA's BCA would be required to focus on calculated net benefits of actions and would ignore distributional equities. Another commenter requested that the EPA promulgate a better Benefit-Cost Rule to truly realize equality under the law and environmental justice—a rule that accurately accounts for cumulative and aggregate impacts of pollutants on overburdened communities and gives unquantifiable and/or non-monetary harms the attention they deserve.

Response: The EPA agrees that the Benefit-Cost Rule did not address the environmental justice impacts raised by the commenters. While this final rule rescinding the Benefit-Cost Rule will not directly address environmental justice impacts, it should be noted that a cornerstone goal of the EPA is to provide an environment where all people enjoy the same degree of protection from environmental and health hazards and equal access to the decision-making process to maintain a healthy environment in which to live, learn, and work.

Section 307(b)(1) of the CAA indicates which federal courts of appeals are the proper forum for petitions of review of final actions by the EPA under the CAA. This section provides, in part, that petitions for review must be filed in the Court of Appeals for the District of Columbia Circuit for (i) “Any nationally applicable regulations promulgated, or final actions taken, by the Administrator” or (ii) when such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).

This final action is “nationally applicable” within the meaning of section 307(b)(1). Pursuant to CAA section 307(b), any petitions for review of this final action must be filed in the Court of Appeals for the District of Columbia Circuit within 60 days from the date this final action is published in the Federal Register .

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 as defined in Executive Order 12866. The EPA does not anticipate that this rulemaking will have an economic impact on regulated entities. This is a rule of agency procedure and practice. EPA notes the release of E.O. 14094 after issuance of the interim final rule, which amended E.O. 12866. The discussion in this final action relates to interpretation of E.O. 12866, which was the governing executive order for the duration of when the rule was in effect. The same reasoning applies to the updated definitions contained in E.O. 14094. That is, the Benefit-Cost Rule expanded the universe of CAA rulemakings for which the EPA would be required to conduct BCAs without justifying why such expansion was necessary or appropriate.

This action does not contain any information collection activities and therefore does not impose an information collection burden under the PRA.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action would not impose any requirements on small entities. This action would not regulate any entity outside the federal government and is a rule of agency procedure and practice.

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. 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 a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs.

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies and activities on minority populations (people of color and/or Indigenous peoples) 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. This action has no current or projected monetized costs or benefits nor does it stipulate any changes that may adversely affect people of color, low-income populations and/or Indigenous peoples. This rule pertains only to internal EPA practices in how the EPA conducts and considers benefit-cost analyses. While this rule does not directly address environmental justice impacts, it should be noted that a cornerstone goal of the EPA is to provide an environment where all people enjoy the same degree of protection from environmental and health hazards and equal access to the decision-making process to maintain a healthy environment in which to live, learn, and work.

This rule is exempt from the CRA because it is a rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties.

I. Background II. Overview of Final Rule A. Renumbering To Combine Provisions Into One CFR Part B. Part-by-Part (New Subpart-by-Subpart) Summary of Changes 1. Changes to Current Part 2525 (New Subpart A) 2. Changes to Current Part 2526 (New Subpart B) 3. Changes to Current Part 2527 (New Subpart C) 4. Changes to Current Part 2528 (New Subpart D) 5. Changes to Current Part 2529 (New Subpart E) 6. Changes to Current Part 2530 (New Subpart F) III. Response to Public Comments IV. Regulatory Analyses I. Background

The National and Community Service Act of 1990, as amended, 42 U.S.C. 12501 et seq., aims to encourage United States citizens to engage in national service and to expand educational opportunity by rewarding individuals who participate in national service with an increased ability to pursue higher education or job training. Specifically, the Act establishes the National Service Trust and authorizes AmeriCorps to use funds from that Trust to provide education awards to eligible individuals who have fulfilled a term of service in an approved national service position and meet other applicable requirements. AmeriCorps' regulations implementing the Act are within 45 CFR parts 2525 through 2530 and address the National Service Trust (the Trust), who is eligible to receive education awards from the Trust, how the amount of the education awards is determined, the purposes for which the education awards may be used, the circumstances under which AmeriCorps participants will receive forbearance and payment of interest expenses on qualified student loans, and the circumstances in which participants may transfer their educational awards.

Overall, this final rule is intended to improve clarity of the regulations through use of consistent terminology and plain language, improve the transparency of the criteria and procedures for extensions, transfers, and revocations of education awards; and increase flexibility for those who earn education awards to use and transfer those awards. To meet these objectives, this rule makes changes to the following CFR parts:

Some changes apply to all these CFR parts, including updating references to the Corporation for National and Community Service to refer to it by its operating name, AmeriCorps, rather than “the Corporation.” Specific mentions of AmeriCorps programs, Silver Scholar, and Summer of Service positions were replaced with the term “national service position,” where appropriate. Other changes affect only one or some CFR parts. Substantive changes specific to each CFR part are summarized here.

The rule also renumbers sections, combining these CFR parts into one resulting CFR part, at part 2525, with different subparts. Combining these CFR parts into one allows readers to find regulations on education awards in a single CFR part, which improves navigability and prevents readers from having to switch back and forth between CFR parts for relevant provisions (for example, to refer back to part 2525 for definitions that apply to later CFR parts).

The final rule renumbers the provisions that currently appear in parts 2526 through 2530 to move them into part 2505, so that the regulatory provisions regarding the National Service Trust education awards can be found in one central CFR part. The following table shows where the provisions that fall under the current CFR parts will instead fall under subparts to part 2525.

The following table provides a more detailed comparison of where current regulatory provisions are located, and where those provisions will be located under the final rule. This table also shows where new subpart headings and new sections are being finalized.

Under this rule, part 2525 is newly designated as subpart A of part 2525 and continues to set out the description of the National Service Trust and definitions. Changes ensure that definitions apply throughout the newly compiled CFR part 2525. For example, the changes delete the phrase “for the purposes of this section” for definitions of the following terms: “AmeriCorps education award,” “economically disadvantaged youth,” “education award,” “G.I. Bill-approved program,” “Silver Scholar education award,” and “Summer of Service education award.”

The changes to part 2525 add definitions for two terms and substantively revise two definitions. The newly added definitions are for the following terms:

• “Eligible Individual” as the individual who is eligible for an education award; and

• “Designated Recipient” as the person to whom an education award is transferred.

The two definitions being revised are for “educational expenses” and “qualified student loan.” The changes revise the definition of “educational expenses” to:

• Provide that costs of attendance are determined by the Title IV institution of higher education or G.I. Bill approved program;

• Include tuition or associated costs as determined by the program offered by the institution or establishment approved for offering benefits for which educational assistance may be provided by the Secretary for Veterans Affairs;

• Include expenses incurred participating in a school-to-work program approved by the Secretaries of Labor and Education;

• Delete reference to the following, because they would be included in the category of “costs of attendance” as determined by the institution or G.I. Bill approved program:

○ Tuition and fees “normally assessed” by an institution;

○ Tuition and fees for students engaged in a course of study by correspondence; and

○ Expenses related to a student's disability; and

• Delete reference to costs associated with student engagement in a work experience under a cooperative education program or course because the costs would be included in the category for expenses incurred in participating in a school-to-work program.

These changes will simplify the definition and do not affect what educational expenses an education award may be used for.

Changes to the definition of “qualified student loan” delete the lists of specific federal family education loans, William D. Ford federal direct loans, Federal Perkins loans, and Public Health Service Act loans because they are included in the broad categories set out in the new definition. The changes also replace the category “any other loan designated as such by Congress” with the more specific category of loans determined by an institution of higher education or approved veterans' benefits program to be necessary to cover a student's educational expenses and made, insured, or guaranteed by certain listed entities.

The changes also correct the cross-reference to the Higher Education Act of 1965 to cite to the correct section defining “institution of higher education.”

Other changes to this newly designed subpart A are non-substantive, such as adding the legal name of the education awards to the definition of “education award,” eliminating unnecessary verbiage in definitions that first state the term and then repeat the term to provide the meaning.

Current part 2526, which is newly designated as subpart B to part 2525, addresses eligibility for an education award.

Changes to current part 2526, which will now be located at subpart B to part 2525, incorporate the newly defined terms for “Eligible Individual” and “Designated Recipient” for clarity. Edits to § 2525.10 clarify when Eligible Individuals are entitled to receive an education award, and clarify that an Eligible Individual may receive a full education award for a full-time term of service, a partial education award for a less than full-time term of service, or a pro-rated education award if the Eligible Individual was granted a release from completing the term of service for compelling personal circumstances but completed at least 15 percent of the originally approved term of service and performed satisfactorily during that time. The final rule also moves to a separate section (§ 2525.15) the specifics for what the organization responsible for the individual's supervision must certify.

Section 2525.15 combines requirements for AmeriCorps State and National approved national service positions with other approved national service positions for consistency. Section 2525.20 clarifies that there is a requirement, in the cross-referenced § 2522.230(a)(3), for the program to document the basis for any determination that compelling personal circumstances prevent the Eligible Individual from completing their term of service.

Section 2525.30 revises the factors that AmeriCorps considers when determining whether an Eligible Individual may be entitled to use their education award when the Eligible Individual has three or more convictions for possession or sale of a controlled substance. The final rule deletes factors relating to the nature and extent of any other criminal record, the nature and extent of any involvement in trafficking of controlled substances, and the length of time between offenses. AmeriCorps has determined that these factors are unnecessary considerations, given that the type and amount of controlled substance and whether firearms or dangerous weapons were involved in the offense are already considered, and there is already a catch-all factor to allow for consideration of other relevant aggravating or ameliorating circumstances.

Section 2525.40 revises the current section to separate information on extensions to the use period into new sections specific to various questions regarding extensions. Edits to this section also delete the specific reference to Summer of Service education awards.

Section 2525.41 is a new section that specifically addresses when an application for an extension must be submitted and adds an exception to the requirement to submit a request for extension prior to the use period deadline for instances when the individual was unavoidably prevented from timely submitting their application.

Section 2525.42 is a new section that specifically addresses the circumstances in which AmeriCorps will grant an extension. This section clarifies that AmeriCorps will automatically (upon receipt of an application) extend the use period when an individual served and successfully completed another term of service in an approved national service position during the use period. This section then clarifies that AmeriCorps treats all service in AmeriCorps and the Peace Corps as service in another approved national service position for the purposes of extensions, and specifies the documentation required to evidence service in the Peace Corps. Paragraph (b) of this section adds information on AmeriCorps' discretion to grant an extension when an Eligible Individual or Designated Recipient is unavoidably prevented from using the education award during the use period. Paragraph (b) also adds examples of situations that may warrant an extension. Paragraph (b)(2) provides factors that AmeriCorps will consider in determining whether to grant an extension. Paragraph (c) adds examples of circumstances that do not warrant an extension, but removes the current example of an individual who cannot use the education award as a result of the individual's conviction for possession or sale of a controlled substance, to allow AmeriCorps to examine the specific circumstances involved with the conviction under the factors.

Section 2525.43 is a new section that specifies what will happen if a request for extension is missing information or documentation. Section 2525.44 is a new section that specifies how AmeriCorps will notify the Eligible Individual or Designated Recipient of its decision on the extension request. Section 2526.45 is a new section that provides new procedures for an Eligible Individual or Designated Recipient to appeal a denied request for extension.

Section 2525.50 deletes information about the calculation of the value of each individual education award and instead focuses on how the aggregate value of awards is calculated, given that the limit is the aggregate value of two full-time education awards. Section 2525.55 also simplifies the section to convey the impact of the aggregate value of education awards on ability to serve and to receive additional education awards.

Section 2525.70 adds a new paragraph (b) to state that AmeriCorps will disallow the education award and/or initiate debt collection if AmeriCorps determines the certification made by a national service program is knowingly false or inaccurate.

Current part 2527, which will now be subpart C to part 2525, addresses determining the amount of an education award.

Section 2525.100 replaces the text on the education award amounts that may be earned for part-time and reduced part-time service with a table setting out amounts specifically for three quarters time, half-time, reduced half-time, quarter-time, minimal time and summer associate, and abbreviated time terms of service. These specifics better reflect the range of alternatives to full-time service and the accompanying partial education award amounts available. This section also labels as “pro-rated awards” those awards available to Eligible Individuals who are released from completing a term of service for compelling personal circumstances. This section also replaces the formula for discounted education award amounts (where discounting is required to ensure an Eligible Individual receives no more than the aggregate value of two awards) with a narrative explanation of how the award amounts are discounted, for clarity.

Current part 2528, which will now be subpart D to part 2525, addresses using an education award.

Sections 2525.210 and 2525.240 refer to the updated definition of “educational expenses” instead of repeating what the educational expenses include.

Section 2525.250 specifies that the institution does not need to refund AmeriCorps for disbursed, but not used, education award funds if the Eligible Individual was charged for the uncompleted period of study or training. This section also clarifies that the institution must provide a pro-rata refund to AmeriCorps if the institution does not have a published refund policy.

Section 2525.290, a new section, specifies that an education award is not to be treated as marital property and that, unless the listed circumstances are present, that an education award expires upon the Eligible Individual's death.

Part 2529, which will now be subpart E to part 2525, addresses payment of accrued interest.

Section 2525.310 adds that the loan holder specifies the period of forbearance during the term of service. Paragraph (b) of this section adds that the portion of accrued interest AmeriCorps will pay is based on the length of service.

Part 2530, which will now be subpart F to part 2525, addresses the transfer of education awards.

Section 2530.10 deletes the provision regarding enrollment on or before 2010 because the final rule will apply only after the effective date, which is in 2023. This section also adds the stepchild of an Eligible Individual to the categories of Designated Recipients for transferred awards.

Section 2530.30 breaks out procedures for a Designated Recipient to accept a transferred award into a new paragraph (c). This section also adds a new paragraph (e) to clarify that a Designated Recipient may refuse to accept a transferred education award, and an Eligible Individual may revoke the amount of transfer that has not been requested for use.

Section 2530.40 allows Eligible Individuals to transfer their education award to one or two individuals, rather than just one individual. Paragraph (b) of this section allows Designated Recipients to reject part of the education award designated to be transferred to them. These provisions also clarify that the main restriction on transfer or re-transfer of an education award to an eligible Designated Recipient is that the use period for the education award must not have expired.

Section 2530.50 clarifies that any education awards the Designated Recipient may have earned through their own service term or that were previously been transferred to them are included in the calculation of the aggregate education award value limit. Paragraph (c) allows Eligible Individuals to re-transfer an education award if it is rejected in part by a Designated Recipient, allowing for more flexibility than the current regulation, which prohibits re-transfer of the rejected portion of the award.

This final rule also adds a new paragraph to § 2540.70 to clarify that a Designated Recipient who originally accepted a transferred education award may rescind their acceptance of any unused portion of the award at any time before the education award expires, and for any reason.

Section 2540.80 removes the requirement for AmeriCorps to approve a re-transfer of an education award after an Eligible Individual revokes the award.

Section 2530.85 deletes the paragraph regarding the mechanics of deducting and crediting the revoked amount because these functions are handled internally by AmeriCorps.

Section 2530.87 is a new section that addresses what happens to a transferred education award upon divorce or death.

AmeriCorps published the proposed rule on January 6, 2023 (88 FR 1021) and received two public comment submissions before the March 7, 2023, comment deadline. Summaries of the points raised in those comments and AmeriCorps' responses are provided here. No changes to the proposed regulatory text were made in response to these comments or otherwise.

One commenter was supportive of allowing those who earn education awards to spread the benefit to more than one beneficiary. This commenter stated that they have multiple grandchildren and would like to share their education award with as many of them as possible. They also stated they believe allowing sharing with multiple recipients would be an incentive for other older individuals to do more national service.

Response: The final rule carries forward the proposal to increase the number of Designated Recipients to whom an Eligible Individual can transfer their earned award from one to two. The final rule does not increase the number of recipients to whom an education award may be transferred beyond two in order to best prevent fraud, waste, and abuse. Allowing transfers to more than two persons would substantially increase the level of internal controls needed and pose an undue administrative burden on the agency. The agency has determined that these risks can be more efficiently mitigated by limiting the number of transferees to two individuals.

The other commenter stated their general support of the changes but provided the following suggestions and recommendations for additional changes.

The commenter noted that § 2525.55 states that the aggregate value of education awards does not limit an individual's ability to serve additional terms of service and requested that AmeriCorps leverage its waiver authority to allow commissions to request a waiver to the four-term limit on AmeriCorps members.

Response: The general limitation on four terms of service in an AmeriCorps State and National program is set out in a different regulation than the one being revised by this final rule ( see 45 CFR 2522.235); however, AmeriCorps will consider this comment as in any future updates to that regulation.

This commenter also suggested that AmeriCorps should provide for an end-of-service “cash stipend” in lieu of an education award for individuals that have already earned the maximum aggregate value of education awards. The commenter stated this change would create more equity among AmeriCorps programs and assist AmeriCorps in recruitment and retention efforts:

Response: This comment is beyond the scope of this regulation, but AmeriCorps will take it under advisement.

This commenter requested that § 2525.290 be revised so that, instead of an education award expiring upon an Eligible Individual's death, it could be transferred to an eligible Designated Recipient at that time and allow an extension of time for the Designated Recipient to access the education award if needed, even if the recipient was not age-eligible at the time the Eligible Individual earned the education award.

Response: The proposed and final § 2525.290 reflect the statutory limitation, which provides that the Eligible Individual must transfer the education award prior to death in order for the death not to affect the use of the education award by the Designated Recipient. See 42 U.S.C. 12604(f)(5).

This commenter expressed their support of adding stepchild and step-grandchild to the categories of Designated Recipients for transferred awards, allowing transfer to one or two individuals rather than just one, allowing the recipient to reject all of part of the education award, and allowing the re-transfer of the rejected portion of the education award to someone else.

Response: The final rule carries forward these aspects of the proposed rule.

The commenter suggested removing or lowering the age requirement for transferring the education award and encouraged AmeriCorps to work with Congress to remove the limitation that an individual must be age 55 or more the day service begins to be eligible to transfer the award, and instead allow anyone of any age to transfer their education award.

Response: The commenter is correct that the rule cannot remove or lower the age requirement for transferring an education award because the statute provides as a condition for transfer of an education award that the eligible individual is age 55 or older before beginning the term of service involved. See 42 U.S.C. 12604(f)(2)(A)(ii).

The commenter recommended not having transferred education awards count as part of an individual's aggregate value of education awards earned.

Response: The current regulation provides that the amount received as a transferred education award is included in the aggregate value of awards received. See 45 CFR 2526.50(c)(4). The proposed rule did not propose any change to this requirement; however, AmeriCorps will take this recommendation under advisement for any future rulemaking.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined this is not a significant regulatory action, and therefore is not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review.

As required by the Congressional Review Act (5 U.S.C. 801-808), before an interim or final rule takes effect, AmeriCorps will submit an interim or final rule report to the US House of Representatives, U.S. Senate, and to the Comptroller General of the U.S. A major rule cannot take effect until 60 days after it is published in the Federal Register . The Office of Information and Regulatory Affairs in the Office of Management and Budget anticipates that this will not be a major rule under 5 U.S.C. 804 because this rule will not result in (1) an annual effect on the economy of $100 million or more; (2) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (3) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of US-based enterprises to compete with foreign-based enterprises in domestic and export markets.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ), AmeriCorps certifies that this rule will not have a significant economic impact on a substantial number of small entities. Therefore, AmeriCorps has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) for rules that are expected to have such results.

For purposes of Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any federal mandate that may result in increased expenditures in either federal, state, local, or tribal governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

This rule requires a revision to one OMB Control Number, Education Award Transfer Forms, currently approved under OMB Control Number 3045-0136, which expires January 31, 2024.

The other information collections in the rule are already authorized by another OMB Control Number. Specifically, the requirements for certifications referred to in §§ 2525.15 and 2525.20 restate requirements in other parts of title 45 (specifically §§ 2522.220 and 2522.230), which are authorized by OMB Control Number 3045-0006, Enrollment and Exit Forms, on which the sponsoring entity provides their certifications, and for which entities maintain supporting documentation as a usual and customary business practice.

This final rule does not affect the information collections associated with parts 2528 and 2529 (other than affecting the CFR citations, which will be updated during routine renewals) that have been approved by OMB:

• For 45 CFR 2528: Voucher and Payment Request Form—approved under OMB Control Number 3045-0014, which expires March 31, 2026.

• For 45 CFR 2529: Interest Accrual Form—currently approved under OMB Control Number 3045-0053, which expires March 31, 2026. Forbearance Request for National Service Form—approved under OMB Control Number 3045-0030, which expires March 31, 2026.

This final rule affects the Education Award Transfer Forms because the Request to Transfer a Segal Education Award Amount form must be updated to clarify that an award may be transferred to no more than two individuals, that a transfer may be declined in part or in full or revoked in part or in full, and to delete the portion of the form requiring request of a waiver to re-transfer. The Accept/Decline Award Transfer Form requires a change to indicate that step-children and step-grandchildren may accept the transfer of an education award. There is no change to the estimated time or hour or non-hour cost burdens resulting from these form changes. With this rulemaking, AmeriCorps is seeking to revise the following information collection:

OMB Control Number: 3045-0136.

Title: Education Award Transfer Forms.

Brief Description of Collection: This information collection consists of the questions that AmeriCorps members answer to request a transfer of their education award or revoke a transfer, and that education award recipients answer to accept or decline the transfer or rescind their acceptance. The information collected identifies those qualified to transfer their award, the transfer award amount, and those qualified to receive the award transfer, as well as establish a National Service Trust account for the transfer recipient.

Forms Affected: Transfer Application Form, Award Transfer Acceptance Form.

Type of Review: Revision of a currently approved information collection:

Respondents/Affected Public: Individuals.

Total Estimated Number of Annual Respondents: 900.

Total Estimated Number of Annual Responses: 900.

Estimated Time per Response: 5 minutes.

Estimated Total Annual Hour Burden: 75 hours.

Respondents' Obligation: Required to obtain a benefit.

Frequency of Response: Occasional.

Total Estimated Annual Non-Hour Burden Response: $0.

As part of our continuing effort to reduce paperwork and respondent burdens, we invite the public to comment on any aspect of this information collection, including:

(1) Whether or not the collection of information is necessary for the proper performance of the functions of the agency, including whether or not the information will have practical utility;

(2) The accuracy of our estimate of the burden for this collection of information, including the validity of the methodology and assumptions used;

(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and

(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of response.

Written comments and recommendations for the information collection revision should be sent within 30 days of publication of this rulemaking to www.reginfo.gov/public/do/PRAMain. Find this particular information collection by selecting “Currently under 30-day Review—Open for Public Comments” or by using the search function. Please provide a copy of your comments to the person listed in the FOR FURTHER INFORMATION CONTACT section. Please reference OMB Control Number 3045-0136 in the subject line of your comments.

Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This rulemaking does not have any federalism implications, as described above.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rulemaking: (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

AmeriCorps recognizes the inherent sovereignty of Indian tribes and their right to self-governance. The agency has evaluated this rulemaking under the AmeriCorps consultation policy and the criteria in Executive Order 13175 and determined that this rule does not impose substantial direct effects on federally recognized tribes.

For the reasons discussed in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapter XXV of title 45 of the Code of Federal Regulations as follows:

This is a summary of the Commission's Order, FCC 23-39, MD Docket No. 23-156, adopted on May 17, 2023 and released on May 18, 2023, which is the subject of this rulemaking. The full text of this document is available for public inspection and copying by downloading the text from the Commission's website at https://www.fcc.gov/document/closure-lockbox-used-collect-fee-payments-wtb.

1. Section 603 of the Regulatory Flexibility Act, as amended, requires a regulatory flexibility analysis in notice and comment rulemaking proceedings. See 5 U.S.C. 603(a). As we are adopting these rules without notice and comment, no regulatory flexibility analysis is required.

2. This document does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

3. The Commission will not send a copy of the Order pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of agency organization, procedure, or practice that do not “substantially affect the rights or obligations of non-agency parties. See 5 U.S.C. 804(3)(C).

4. In the Order, we reduce expenditures by the Federal Communications Commission (FCC or Commission) and modernize Commission procedures by amending § 1.1102 of our rules, 47 CFR 1.1102, which sets forth the fees for applications and other filings processed by the FCC's Wireless Telecommunications Bureau (WTB). The rule amendment reflects the closure of the P.O. Box 979097 ( i.e., lockbox)  1 used for manual payment of filing fees for three different broad categories of filings: (1) Site-based license applications; (2) Personal license applications; and (3) Geographic-based license applications. We discontinue the option of manual fee payments and instead require the use of an electronic payment for each listing in this rule, and make conforming changes to other related provisions.

5. Section 1.1102 of the Commission's rules, 47 CFR 1.1102, provides a schedule of fees for applications and other filings processed by WTB. The rule also directs filers that do not utilize the Commission's on-line filing and fee payment systems to send manual filings and/or payments to the Commission at P.O. Box 979097 at U.S. Bank in St. Louis, Missouri. In recent years, there have been a decreasing number of lockbox payments, and, although paper filings are contemplated by the rule, WTB now requires electronic filing of all wireless radio service applications and pleadings. As a result, transition to all electronic payments is consistent with Commission-wide efforts to digitize our systems and create efficient and more accessible interactions with the agency.

6. The Commission has reduced its reliance on P.O. Boxes for the collection of fees, instead encouraging the use of electronic payment systems for all application and regulatory fees and closing certain lockboxes. We find that electronic payment of fees for the services processed by WTB reduces the agency's expenditures (including eliminating the annual fee for the bank's services) and the cost of manually processing each transaction, with little or no inconvenience to the Commission's regulatees, applicants, and the public. As part of this effort, we are now closing P.O. Box 979097 and modifying the relevant rule provisions that permit manual filings and require payment of fees via the closed P.O. Box. Specifically, §§ 0.482, 1.1102, and 1.2107 are being modified to eliminate references to the lockbox at U.S. Bank. In addition, § 1.907 is being modified to eliminate references to applications submitted on paper, and the caption to § 1.913 is being adjusted to eliminate a reference to manual filing. In addition, we make minor modifications to our rules to reflect the replacement of the Commission's prior payment interface, Fee Filer, with a module contained within the Commission's Registration System (CORES). These rule changes are contained in the Appendix of the Order and the Final Rules of this document. We make these changes without notice and comment because they are rules of agency organization, procedure, or practice exempt from the general notice-and-comment requirements of the Administrative Procedure Act, see 5 U.S.C. 553(b)(A).

7. Implementation of Lockbox Closure. As a temporary transition measure, for 90 days after publication of this order in the Federal Register , U.S. Bank will continue to process payments to P.O. Box 979097. After that date, payments for these WTB services must be made in accordance with the procedures set forth on the Commission's website, https://www.fcc.gov/wireless-fees. For now, such payments will be made upon log-in at https://apps.fcc.gov/cores/userLogin.do. Users will then access the link Manage Existing FRNs, and subsequently FRN Financials. Batch filers will use ULS Pay fees to make electronic payments. In the event an applicant is unable to make an electronic payment, the Commission's existing waiver standard in 47 CFR 1.925(b)(3) remains the appropriate vehicle to seek relief from the electronic payment requirement. As we assess and implement U.S. Treasury initiatives toward an all-electronic payment system, we may transition to other secure payment systems with appropriate public notice and guidance.

9. Accordingly, it is ordered, that pursuant to sections 4(i), 4(j), 158, 208, and 224 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 158, 208, and 224, the Order is hereby adopted and the rules set forth in the Appendix of the Order are hereby amended effective August 14, 2023.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 0, 1, and 80 as follows:

The annual management measures for the 2023 and early 2024 ocean salmon fisheries (88 FR 30235, May 11, 2023) govern the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 16, 2023, until the effective date of the 2024 management measures, as published in the Federal Register . NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Chairman of the Pacific Fishery Management Council (Council), and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions).

Management of the salmon fisheries is divided into two geographic areas: north of Cape Falcon (NOF) (U.S./Canada border to Cape Falcon, OR), and south of Cape Falcon (Cape Falcon, OR, to the U.S./Mexico border). The action described in this document affects the NOF commercial salmon troll fisheries, as set out under the heading “Inseason Actions” below.

Consultation with the Council Chairperson on these inseason actions occurred on May 16, 2023, May 24, 2023, and June 8, 2023. These consultations included representatives from NMFS, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, and California Department of Fish and Wildlife. Representatives from the Salmon Advisory Subpanel and Salmon Technical Team were also present. A Council representative was present on May 24, 2023, and June 8, 2023.

These inseason actions were announced on NMFS' telephone hotline and U.S. Coast Guard radio broadcast on the date of the consultations (50 CFR 660.411(a)(2)).

The NMFS West Coast Regional Administrator (RA) considered the 2023 abundance forecasts for Chinook salmon stocks, the timing of the actions relative to the length of the season, and determined that these inseason actions described below are necessary to meet management and conservations goals for the 2023-2024 management measures. These inseason actions modified quotas and/or fishing seasons under 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #1 modifies the NOF ocean salmon troll commercial fishery. The area between the U.S./Canada border and the Queets River (La Push and Neah Bay subareas) is closed.

Effective dates: Inseason action #1 takes effect on May 17, 2023, at 12:01 a.m. and remains in effect until superseded.

Reason for the action: The area between the U.S./Canada border and the Queets River (La Push and Neah Bay subareas) was closed through inseason action under the 2022-2023 management measures (88 FR 37479, June 8, 2023) from May 11, 2023, to May 15, 2023. The 2023 management measures (88 FR 30235, May 11, 2023) set the start of the season on Tuesday, May 16, 2023, however, the landing week adopted in the 2023 management measures is Thursday-Wednesday. To remain consistent with the fishing season as adopted into regulation, the fishery was closed in order for managers to take subsequent action to align the initial open fishery period with the landing week as defined in the 2023 management measures.

Description of the action: Inseason action #2 modifies the NOF ocean salmon troll commercial fishery. The landing and possession limit in the area between the U.S./Canada border and Cape Falcon is 150 Chinook salmon per vessel per landing week (Thursday-Wednesday) May 17, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #2 took effect on May 17, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #2 was necessary to align the landing and possession limit for the area between the U.S./Canada border to Cape Falcon under the 2022-23 management measures (adopted through inseason action (88 FR 37479, June 8, 2023)) for fisheries occurring after May 15, 2023, with fisheries that occurred from May 11, 2023, through May 15, 2023.

Description of the action: Inseason action #3 modifies the NOF ocean salmon troll commercial fishery. The area between the U.S./Canada border and the Queets River (La Push and Neah Bay subareas) is open. For the area between the U.S./Canada border and the Queets River, the landing and possession limit is 35 Chinook salmon per vessel per landing week (Thursday-Wednesday) May 18, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #3 took effect on May 18, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #3 opens the area from the U.S./Canada border and the Queets River (La Push and Neah Bay subareas) that was previously closed on May 11, 2023 (88 FR 37479, June 8, 2023). In addition, the landing and possession limit that was put in place for the landing week from May 1, 2023, to May 10, 2023, was reduced from 70 Chinook salmon to 35 Chinook salmon per vessel per landing week (Thursday-Wednesday). This adjustment was necessary in order to not exceed the Chinook salmon guideline in the area due to high Chinook salmon catch to date and to preserve the length of the season.

Description of the action: Inseason #4 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between the Queets River and Leadbetter Point (Westport subarea) is 200 Chinook salmon per vessel per landing week (Thursday-Wednesday) May 15, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #4 took effect on May 25, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #4 increases the landing and possession limit for the Westport subarea from 150 Chinook salmon to 200 Chinook salmon. Due to lower than anticipated catch rates, this action will result in increased fishing interest and allow greater access to the quota for the area without exceeding it.

Description of the action: Inseason #5 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between Leadbetter Point and Cape Falcon (Columbia River subarea) is 80 Chinook salmon per vessel per landing week (Thursday-Wednesday) May 25, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #5 took effect on May 25, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #5 increases the landing and possession limit for the area between Leadbetter Point and Cape Falcon (Columbia River subarea) from 60 Chinook salmon to 80 Chinook salmon. The action was taken because of lower than anticipated catch rates. This action will result in increased fishing interest and allow greater access to the quota without exceeding it.

Description of the action: Inseason #6 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between the U.S./Canada border and Cape Falcon is 200 Chinook salmon per vessel per landing week (Thursday-Wednesday) May 25, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #6 took effect on May 25, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #6 increases the area NOF landing and possession limit from 150 Chinook salmon to 200 Chinook salmon to match the landing and possession limit of the largest of the subareas from the Queets River to Leadbetter Point (Westport subarea).

Description of the action: Inseason #7 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between Leadbetter Point and Cape Falcon (Columbia River subarea) is 100 Chinook salmon per vessel per landing week (Thursday-Wednesday) June 8, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #7 took effect on June 8, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #7 increases the landing and possession limit in the area between Leadbetter Point and Cape Falcon (Columbia River subarea) from 80 Chinook salmon to 100 Chinook salmon. This action will allow for better fishing opportunities to harvest the remaining quota and subarea caps without exceeding them.

Description of the action: Inseason action #8 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between the Queets River and Leadbetter Point (Westport subarea) is 250 Chinook salmon per vessel per landing week (Thursday-Wednesday) June 8, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #8 took effect on June 8, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #8 increases the landing and possession limit in the area between the Queets River and Leadbetter Point (Westport subarea) from 200 Chinook salmon to 250 Chinook salmon. This action will allow for better fishing opportunities to harvest the remaining quota and subarea caps without exceeding them.

Description of the action: Inseason action #9 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between the Queets River and the U.S./Canada border (La Push and Neah Bay subareas) is 40 Chinook salmon per vessel per landing week (Thursday-Wednesday) June 9, 2023, through June 21, 2023, and for the period June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #9 took effect on June 8, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #9 increases the landing and possession limit in the area between the Queets River and the U.S./Canada border (La Push and Neah Bay subareas) from 35 Chinook salmon to 40 Chinook salmon. This action will allow for better fishing opportunities to harvest the remaining quota and subarea caps without exceeding them.

Description of the action: Inseason action #10 modifies the NOF commercial salmon troll fishery. The landing and possession limit in the area between the U.S./Canada border and Cape Falcon is 250 Chinook salmon per vessel per landing week (Thursday-Wednesday) June 8, 2023, through June 21, 2023, and for the period June 22, 2023, through June 22, 2023, through June 29, 2023.

Effective dates: Inseason action #10 took effect on June 8, 2023, at 12:01 a.m. and remains in effect until June 29, 2023, at 11:59 p.m.

Reason for the action: Inseason action #10 increases the landing and possession limit in the area NOF from 200 Chinook salmon to 250 Chinook salmon. This action will allow for better fishing opportunities to harvest the remaining quota without exceeding it.

All other restrictions and regulations remain in effect as announced for the 2023 ocean salmon fisheries (88 FR 30235, May 11, 2023).

The RA determined that these inseason actions were warranted based on the best available information on Pacific salmon abundance forecasts, landings and effort patterns to date, anticipated fishery effort and projected catch, and the other factors and considerations set forth in 50 CFR 660.409. The States and tribes manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone (3-200 nautical miles; 5.6-370.4 kilometers) off the coasts of the States of Washington, Oregon, and California consistent with these Federal actions. As provided by the inseason notice procedures at 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the actions became effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NMFS issues these actions pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). These actions are authorized by 50 CFR 660.409, which was issued pursuant to section 304(b) of the MSA, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(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. Prior notice and opportunity for public comment on this action was impracticable because NMFS had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook and coho salmon abundance, catch, and effort information were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best scientific information available. As previously noted, actual notice of the regulatory action was provided to fishers through telephone hotlines and radio notifications. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (88 FR 30235, May 11, 2023), the Pacific Salmon Fishery Management Plan (FMP), and regulations implementing the FMP under 50 CFR 660.409 and 660.411.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date, as a delay in effectiveness of this action would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.

NMFS manages the groundfish fishery in the 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 (Magnuson-Stevens 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 2023 blackspotted and rougheye rockfish ITAC in the CAI/WAI of the BSAI is 141 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023 and 88 FR 18258, March 28, 2023). In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2023 blackspotted and rougheye rockfish ITAC in the CAI/WAI of the BSAI has been reached. Therefore, NMFS is requiring that blackspotted and rougheye rockfish in the CAI/WAI of the BSAI be treated in the same manner as a prohibited species, as described under § 679.21(a), for the remainder of the year, except blackspotted and rougheye rockfish species in the CAI/WAI caught by catcher vessels using hook-and-line, pot, or jig gear as described in § 679.20(j).

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 prohibited retention of blackspotted and rougheye rockfish in the CAI/WAI of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of July 7, 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.