This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposed rulemaking is issued under Marketing Agreement and Order No. 989, as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California. Part 989 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and handlers of raisins operating within the area of production, and a public member.

AMS is issuing this proposed rulemaking in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866, 13563, and 14094 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, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 directs agencies to conduct proactive outreach to engage interested and affected parties through a variety of means, such as through field offices, and alternative platforms and media. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This proposed rulemaking has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this proposed rulemaking is unlikely to have substantial direct effects 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.

This proposed rulemaking has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order now in effect, California raisin handlers are subject to assessments. Funds to administer the order are derived from such assessments. It is intended that the proposed assessment rate would be applicable to all assessable raisins beginning on August 1, 2023, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

Section 989.79 provides authority for the Committee, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members are familiar with the Committee's needs and with the costs of goods and services in their local area and are thus in a position to formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting. Thus, all directly affected persons have an opportunity to participate and provide input.

For the 2018-2019 and subsequent crop years, an assessment rate of $22 per assessable ton of raisins handled (84 FR 2049) was in place. That rate continues in effect from crop year to crop year until modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other information available to AMS.

This proposed rulemaking would increase the assessment rate from $22 per ton to $24 per ton of assessable raisins for the 2023-2024 and subsequent crop years. Prior to arriving at this proposed assessment rate, the Committee considered information from its Audit Subcommittee (Subcommittee), which met on June 21, 2023. The Subcommittee discussed alternative spending levels before making a recommendation to the full Committee. On June 28, 2023, the full Committee discussed the recommendation of the Subcommittee and voted unanimously to recommend a budget of $5,241,000 and an assessment rate of $24 per ton as reasonable and necessary to properly administer the Order.

The Committee last amended the assessment rate in 2019 to $22 per ton, which continues to remain in effect; however, California raisin acreage and volume have steadily declined since 2019. The Committee determined the level of assessment revenue under the current rate as now insufficient to meet the rising costs of program operations given a production estimate of 192,000 tons of assessable raisins for the 2023-2024 crop year.

The proposed assessment rate of $24 is $2 higher than the rate currently in effect and is expected to generate assessment income of approximately $4,608,000 ($24 per ton multiplied by 192,000 assessable tons) for the 2023-2024 crop year. This assessment revenue, combined with other Committee income and monetary reserves is sufficient to cover the balance of $633,000 ($5,241,000 minus $4,608,000).

The major expenditures recommended by the Committee for the 2023-2024 crop year include $3,303,000 for marketing promotion; $1,205,000 for salaries and employee-related costs; $658,000 for administrative expenses; $55,000 for compliance activities; and $20,000 for research and studies. Budgeted expenditures for the 2022-2023 crop year were $3,592,000; $1,232,000; $703,900; $55,000; and $45,000, respectively. The proposed assessment rate increase would help cover the expenditures for the 2023-2024 crop year, while reducing the amount of money needing to be expended from reserves.

This proposed assessment rate would continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Committee or other available information.

Although this assessment rate would be in effect for an indefinite period, the Committee would continue to meet prior to or during each crop year to recommend a budget of expenses and consider recommendations for modification of the assessment rate. The dates and times of Committee meetings are available from the Committee or AMS. Committee meetings are open to the public and interested persons may express their views at these meetings. AMS would evaluate Committee recommendations and other available information to determine whether modification of the assessment rate is needed. Further rulemaking would be undertaken as necessary. The Committee's budget for subsequent crop years would be reviewed and, as appropriate, approved by AMS.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the AMS has considered the economic impact of this proposed rulemaking on small entities. Accordingly, AMS has prepared this initial regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 1,700 producers of California raisins and approximately 17 handlers subject to regulation under the marketing order. Small agricultural producers of raisins are defined by the Small Business Administration (SBA) as those having annual receipts equal to or less than $4.0 million (NAICS code 111332, Grape Vineyards) and small agricultural service firms are defined as those whose annual receipts are equal to or less than $34.0 million (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).

Using USDA National Agricultural Statistics Service (NASS) data, the 2022 season average value of utilized production of California processed raisin-type grapes (most of which are dried into raisins) is $376.618 million. Dividing that figure by 1,700 producers yields an annual average revenue per producer of $221,540, well below the SBA large farm size threshold of $4.0 million. Therefore, in terms of average annual sales of processed raisin-type grapes, the majority of California raisin producers may be classified as small entities.

To make a similar computation for handlers, the first step is to estimate a representative handler price received per pound for packaged raisins. Recent USDA purchases under the Commodity Procurement Program provide such an estimate. For the most recent raisin crop year used by the RAC (August 2022-July 2023) the average price paid for packaged raisins purchased by the USDA for feeding programs was $1.56 per pound. For that time period, the RAC provided a list of quantities delivered by handlers. When multiplied by the $1.56 price per pound, the results showed that 5 handlers had annual raisin receipts greater than $34 million, the SBA threshold level for a large handler. The remaining 12 handlers out of 17 are small handlers, using the SBA criterion.

This proposed rulemaking would increase the assessment rate collected from handlers for the 2023-2024 and subsequent crop years from $22 to $24 per ton of assessable raisins acquired by handlers. The Committee reviewed its ongoing activities and determined the expenses that would be reasonable and necessary to continue program operations for the 2023-2024 crop year. Additionally, the Committee considered that California raisin acreage and volume have steadily declined. Consequently, the revenue collected from assessments also decreased, while program operating costs have continued to increase. Ultimately, the Committee recommended budget totals $5,241,000 for the 2023-2024 crop year. With the current assessment of $22 a ton, and an operating budget of $5,241,000, the Committee would face a deficit of over $1MM. At the recommended assessment rate of $24 per ton, the anticipated assessment income would be $4,608,000 and would help reduce the estimated deficit by approximately $384,000.

The major expenditures recommended by the Committee for the 2023-2024 crop year include $3,303,000 for marketing promotion; $1,205,000 for salaries and employee-related costs; $658,000 for administrative expenses; $55,000 for compliance activities; and $20,000 for research and studies. Budgeted expenditures for the 2022-2023 crop year were $3,592,000; $1,232,000; $703,900; $55,000; and $45,000, respectively. The increased assessment rate is necessary to help cover the expenditures for the 2023-2024 crop year, while reducing the amount of money needing to be expended from reserves.

The Order provides authority for the Committee to formulate an annual budget of expenses and propose an assessment rate to cover such expenses authorized by AMS. Prior to arriving at this budget and assessment rate, the Committee considered alternative spending levels at its June 28, 2023, meeting but ultimately decided that the recommended budget and assessment rate were reasonable and necessary to properly administer the Order.

This proposed rulemaking would increase the assessment obligation imposed on handlers. While the increased assessment rate would impose some additional costs on handlers, the costs are minimal and applied uniformly on all handlers. Some of the additional costs may be passed on to producers. However, these costs would be offset by the benefits derived by the industry from the operation of the Order.

The Committee's meetings are widely publicized throughout the production area. The raisin industry and all interested persons are invited to attend the meetings and participate in Committee deliberations on all issues. Like all Committee meetings, the June 28, 2023, meeting was public meeting and all entities, both large and small, were able to express views on this issue. In addition, interested persons are invited to submit comments on this proposed rulemaking, including the regulatory and information collection impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements are necessary as a result of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rulemaking would not impose any additional reporting or recordkeeping requirements on either small or large California raisin handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this proposed rulemaking.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, USDA has determined that this proposed rulemaking is consistent with and will effectuate the purposes of the Act.

A 30-day comment period is provided to allow interested persons to respond to this proposed rulemaking. All written comments timely received will be considered before a final determination is made on this proposed rule.

For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 989 as follows:

The National Environmental Policy Act, as amended, (42 U.S.C. 4321 et seq. ) requires Federal agencies to provide a detailed statement regarding the environmental impacts of proposals for major Federal actions significantly affecting the quality of the human environment. The Council on Environmental Quality (CEQ) regulations implementing NEPA (40 CFR parts 1500-1508) require agencies to develop their own NEPA implementing procedures to apply the CEQ regulations to their specific programs and decision-making processes (40 CFR 1507.3). DOE's NEPA procedures are contained in 10 CFR part 1021.

NEPA establishes three types of review for proposed actions—environmental impact statement, environmental assessment, and categorical exclusion—each involving different levels of information and analysis. An environmental impact statement is a detailed analysis of reasonably foreseeable environmental effects prepared for a major Federal action significantly affecting the quality of the human environment (42 U.S.C. 4332(2)(C) and 40 CFR part 1502 and section 1508.1(j)). An environmental assessment is a concise public document prepared by a Federal agency to set forth the basis for its finding of no significant impact or its determination that an environmental impact statement is necessary (42 U.S.C. 4336(b)(2) and 40 CFR 1501.5, 1501.6, and 1508.1(h)). A categorical exclusion is a category of actions that the agency has determined, in its agency NEPA procedures, normally does not have a significant effect on the human environment and therefore does not require preparation of an environmental assessment or environmental impact statement (40 CFR 1501.4, 1507.3(e)(2)(ii), and 1508.1(d)). DOE's procedures for applying categorical exclusions require the agency to consider whether extraordinary circumstances exist due to which a normally excluded action may have a significant environmental effect.

DOE establishes and revises categorical exclusions pursuant to a rulemaking, such as this one, for defined classes of actions that the Department determines are supported by a record showing that the actions normally do not have significant environmental impacts, individually or cumulatively. The rulemaking process provides the public with an opportunity to review and comment on DOE's proposed changes. DOE will consider the comments received during the public comment period.

Once established in DOE's NEPA procedures, use of a categorical exclusion requires evaluation of a proposed action against several conditions. DOE must determine, in accordance with 10 CFR 1021.410(b), that: (1) the proposed action fits within a categorical exclusion listed in appendix A or B to subpart D of part 1021; (2) there are no extraordinary circumstances  1 related to the proposal that may affect the significance of the environmental impacts of the proposed action and require preparation of an environmental assessment or environmental impact statement, consistent with 40 CFR 1501.4(b)(1) and (b)(2); and (3) the proposal has not been improperly segmented  2 to meet the definition of a categorical exclusion, there are no connected or related actions with cumulatively significant impacts, and the proposed action is not precluded by 40 CFR 1506.1 or 10 CFR 1021.211 as an impermissible interim action.

In addition, DOE evaluates whether the proposed action satisfies conditions included within the text of the individual categorical exclusion and the conditions known as “integral elements” that apply to all categorical exclusions listed in appendix B to subpart D of part 1021 (appendix B, paragraphs (1) through (5)). Together, these conditions limit the types of proposals that fit within a categorical exclusion and help ensure that adverse environmental impacts are avoided or reduced. These conditions are discussed generally in this section and also in section II of this document, which describes each of DOE's proposed changes.

The categorical exclusions discussed in this proposed rulemaking include conditions specific to the categorical exclusion. For example, the proposed action must follow applicable codes and best management practices. These codes and practices vary by technology and location ( e.g., fire protection codes that differ by state). Also, they change over time to reflect lessons learned and to address emerging technology and practices. The Technical Support Document provides links to and summarizes information on some of the relevant codes and best practices for the categorical exclusions that are included in this proposed rulemaking. As another example, the changes proposed in this rulemaking specify conditions regarding siting proposed actions on previously disturbed or developed land and on land contiguous to previously disturbed and developed land. DOE defines previously disturbed or developed as “land that has been changed such that its functioning ecological processes have been and remain altered by human activity. The phrase encompasses areas that have been transformed from natural cover to non-native species or a managed state, including, but not limited to, utility and electric power transmission corridors and rights-of-way, and other areas where active utilities and currently used roads are readily available.” (10 CFR 1021.410(g)(1)) As DOE explained in a 2011 notice of proposed rulemaking, “In DOE's experience, the potential for certain types of actions to have significant impacts on the human environment is generally avoided when that action takes place within a previously disturbed or developed area, i.e., land that has been changed such that the former state of the area and its functioning ecological processes have been altered.” (76 FR 218; January 3, 2011) DOE's experience reviewing proposed projects across the United States since 2011 supports this same conclusion. DOE also has experience implementing categorical exclusions that allow construction on land that is contiguous to previously disturbed or developed areas and proposes to make certain siting on contiguous land part of one of the proposed categorical exclusions. The area of contiguous land affected would be small as discussed in 10 CFR 1021.410(g)(2). Any proposed use of contiguous land is subject to review against all the conditions relevant to the categorical exclusion, including the integral elements that require consideration of effects on threatened species, historic properties, and other environmentally sensitive resources. The Technical Support Document includes summaries of environmental assessments for projects proposed on previously disturbed or developed land and on contiguous land.

In addition to conditions within an individual categorical exclusion, the proposed action also must satisfy conditions known as “integral elements.” Integral elements are part of each categorical exclusion in appendix B. These conditions appear at the beginning of the appendix and are not repeated for each categorical exclusion. Integral elements require that, to fit within a categorical exclusion, the proposed action must not threaten a violation of applicable environment, safety, and health requirements; require siting and construction or major expansion of waste storage, disposal, recovery, or treatment facilities; disturb hazardous substances, pollutants, or contaminants that preexist in the environment such that there would be uncontrolled or unpermitted releases; have the potential to cause significant impacts on environmentally sensitive resources; or involve governmentally designated noxious weeds or invasive species, unless certain conditions are met. 3 In appendix B, DOE defines “environmentally sensitive resource” as a resource that has typically been identified as needing protection through Executive Order, statute, or regulation by Federal, state, or local government, or a federally recognized Indian tribe. Environmentally sensitive resources include historic properties, threatened and endangered species, floodplains, and wetlands, among others. (10 CFR part 1021, subpart D, appendix B)

Only if DOE determines that all the applicable conditions have been met may it issue a categorical exclusion determination. DOE posts its categorical exclusion determinations at www.energy.gov/nepa/doe-categorical-exclusion-cx-determinations.

In this proposed rulemaking, DOE proposes to add a categorical exclusion for certain energy storage systems and revise categorical exclusions for upgrading and rebuilding transmission lines and for solar photovoltaic (PV) systems, as well as make conforming changes to related sections of DOE's NEPA regulations. DOE last made changes to its categorical exclusions in these areas in 2011 (76 FR 63764; October 13, 2011). Since then, DOE has developed a better understanding of the potential environmental impacts of these types of actions through research, conducting environmental reviews, and engaging with industry, local communities, and other government agencies. The proposed changes are based on the experience of DOE and other Federal agencies, current technologies, regulatory requirements, and accepted industry practice. DOE consulted with CEQ during the development of these proposed changes.

DOE has documented the technical substantiation for the proposed changes in this preamble and in an accompanying Technical Support Document. The Technical Support Document summarizes environmental assessments for the types of projects addressed in this proposed rulemaking and other information. The environmental assessments demonstrate how DOE and other Federal agencies evaluated potential environmental impacts of these projects and determined that they would not result in a significant environmental effect. To be clear, not every environmental assessment discussed in the Technical Support Document reflects a project that would have qualified for a categorical exclusion proposed in this rulemaking. Such determinations would have to be made on a case-by-case basis.

DOE developed its support for this proposed rulemaking consistent with CEQ's 2010 guidance on establishing, applying, and revising categorical exclusions under NEPA (75 FR 75628; December 6, 2010). DOE also considered climate impacts and greenhouse gas (GHG) emissions in preparing these proposals consistent with CEQ's 2023 interim guidance on the consideration of GHG emissions and climate change (88 FR 1196; January 9, 2023). The description of the proposed changes in section II of this document includes a discussion of how the proposed changes may affect GHG emissions.

The public made suggestions for revising DOE's categorical exclusions in response to a Request for Information (RFI) published in the Federal Register on November 15, 2022. (87 FR 68385). Those suggestions, along with others made by DOE's NEPA Compliance Officers and other staff, led to the proposals included in this proposed rulemaking. DOE evaluated the proposals by reviewing environmental assessments prepared by DOE and by other Federal agencies, categorical exclusions established by other Federal agencies, technical reports, applicable requirements and industry practices, and other publicly available information.

Thirty-three individuals or entities responded to the Request for Information. The Request for Information and these comments are available at www.regulations.gov/docket/DOE-HQ-2023-0002/comments. Relevant to this proposed rulemaking, commenters asked DOE to add energy storage systems to its categorical exclusions, to expand the scope of its categorical exclusion for upgrading and rebuilding powerlines, and to expand its categorical exclusion for solar photovoltaic systems to at least 200 acres within previously disturbed or developed areas. DOE addresses these and related comments in its discussion of proposed changes in section II.B of this document. The identification number for individual commenter documents used on www.regulations.gov and the page(s) where a particular comment appears are included in section II.B of this document.

DOE proposes to establish a new categorical exclusion for certain energy storage systems and to revise existing categorical exclusions for upgrading and rebuilding transmission lines and for solar photovoltaic systems. DOE's proposal also includes conforming changes to other categorical exclusions, to a class of actions normally requiring an environmental assessment, and to a class of actions normally requiring an environmental impact statement (10 CFR part 1021, subpart D, appendices B, C, and D). These proposed changes are discussed in sections II.B through II.D of this document.

These proposed changes, if finalized, would not require any changes to or otherwise affect categorical exclusion determinations completed prior to the effective date of any final rule.

Powerlines are a critical component of the electric grid that moves electricity from facilities that generate electricity to our communities, businesses, and factories. Upgrading and rebuilding  4 powerlines extends their useful life. Upgrades and rebuilds can also help reduce the need for new powerlines and can allow the replacement of components with newer, more efficient and resilient technology.

One example is reconductoring. Conductors are the wires that carry electricity. Most of the existing electric grid uses conductors with a steel core for strength surrounded by aluminum for the electrical current. More recently, conductor designs (called advanced conductors) with composite or carbon cores, in place of steel, have come into use. Advanced conductors provide a variety of benefits including increased capacity, which can be used to integrate renewable energy and other sources into the grid without the need to build new transmission lines. Use of advanced conductors reduces line losses ( i.e., power lost during transmission and distribution of electricity) relative to traditional conductors, thereby improving efficiency. 5 Improvements to capacity and efficiency can help to ensure reliability, reduce costs to consumers, and reduce GHG emissions associated with electricity generation, transmission, and distribution.

Upgrading and rebuilding powerlines also can avoid or reduce adverse environmental impacts, such as by relocating small  6 segments of the existing line to avoid a sensitive environmental resource. Upgrading and rebuilding powerlines also can enhance resilience. For example, an upgrade or rebuild project might convert segments of existing overhead powerlines to underground lines or replace old transmission poles to ensure continued safe operations.

Categorical exclusion B4.13 currently applies to upgrading or rebuilding “approximately 20 miles in length or less” of existing powerlines and allows for minor relocations of small segments of powerlines. DOE proposes to remove the mileage limitation, add options for relocating within an existing right of way or within otherwise previously disturbed or developed lands, and add new conditions.

The potential significance of environmental impacts from upgrading or rebuilding powerlines is more related to local environmental conditions than to the length of the powerlines. For example, the presence of environmentally sensitive resources along the existing right-of-way is more pertinent than the length of the existing powerlines to be upgraded or rebuilt. DOE reviewed environmental assessments for transmission line upgrades and rebuilds of various lengths. ( See Technical Support Document, page 4.) The length of the projects is based on the endpoints, which are commonly substations ( e.g., rebuild the transmission line from substation A to substation B). Environmental assessments and other information summarized in the Technical Support Document, as well as DOE's experience with powerline upgrades and rebuilds do not indicate a particular mileage limit that would mark a threshold for significant impacts.

DOE also proposes to clarify options for relocating powerlines within the scope of categorical exclusion B4.13. Relocating segments of a powerline can improve resilience, avoid sensitive resources, or serve other purposes. ( See, in the Technical Support Document, page 6, DOE/EA-1912 for an example of relocation to avoid cultural resources and DOE/EA-1967 to avoid a rock fall and landslide area.) Currently, B4.13 allows “minor relocations of small segments of the powerlines.” DOE proposes to delete “minor” because it is unnecessary to qualify “relocations of small segments” with “minor.” DOE also proposes to specify that, under the proposed revisions, small segments of powerlines may be relocated “within an existing right of way or within otherwise previously disturbed or developed lands.” This change would provide additional flexibility without increasing adverse environmental impacts. Any proposed relocation would be subject to all the conditions with the proposed categorical exclusion B4.13, including conformity to the integral elements that require consideration or potential impacts on environmentally sensitive resources and other potential impacts.

DOE's review of environmental assessments and other information in preparing this proposed rulemaking identified conditions that would be appropriate to add to categorical exclusion B4.13. Proposals to upgrade or rebuild powerlines normally incorporate practices that avoid or reduce potential land disturbance, erosion, disturbance of environmentally sensitive resources, and take other measures to protect the local environment. To account for this, DOE proposes to add a condition that the proposed project would be in accordance with applicable requirements and would incorporate appropriate design and construction standards, control technologies, and best management practices. This condition, together with the integral elements and consideration of extraordinary circumstances (described in section I.A of this document), would ensure that DOE considers whether a proposed upgrade or rebuild of an existing powerline would be sited and designed appropriately prior to determining whether categorical exclusion B4.13 applies.

DOE proposes a conforming change to its class of action, C4, that normally requires an environmental assessment for upgrading and rebuilding existing powerlines more than approximately 20 miles in length. That proposed change would remove the reference to powerline length and, instead, clarify that an environmental assessment normally would be prepared when the proposal does not qualify for categorical exclusion B4.13.

In response to DOE's November 2022 Request for Information, 7 Edison Electric Institute (EEI) suggested that DOE increase the length of powerlines in categorical exclusion B4.13 to “at least 100 miles” within previously disturbed or developed rights-of-way. (EEI (RFI 0010), pages 7-8) EEI stated that, “Such [rights-of-way] are already managed from an environmental, safety, and reliability standpoint and thus, projects in these areas should not result in significant effects on the human environment.” (EEI (RFI 0010), page 8) EEI further stated that this change would “prioritize projects in existing [rights-of-way] over new greenfield projects” and that utilizing existing rights-of-way would “more efficiently build the transmission infrastructure necessary for the clean energy transformation.” (EEI (RFI 0010), page 8) The Cross-Cutting Issues Group suggested that DOE omit the 20-mile limitation in B4.13 and stated that, “Projects in previously disturbed or developed [rights-of-way] will not significantly impact the human environment regardless of the length of the powerlines.” (Cross-Cutting Issues Group (RFI 0012), page 5) DOE's proposed changes to categorical exclusion B4.13 are consistent with these comments.

The Cross-Cutting Issues Group requested that DOE confirm that categorical exclusion B4.13 covers all types of powerlines, including “gen-tie lines” and “powerlines that feed into a federal electric transmission system ( e.g., Tennessee Valley Authority)” and related project elements such as access roads. (Cross-Cutting Issues Group (RFI 0012), pages 4-5) DOE interprets B4.13 to encompass all types of powerlines, including those identified by the commenter. In regard to access roads and other project elements, DOE's NEPA regulations explain, “A class of actions [ e.g., a categorical exclusion] includes activities foreseeably necessary to proposals encompassed within the class of actions (such as award of implementing grants and contracts, site preparation, purchase and installation of equipment, and associated transportation activities).” (10 CFR 1021.410(d))

For purposes of this proposed rulemaking, an energy storage system is a device or group of devices assembled together, capable of storing energy in order to supply electrical energy at a later time. Energy storage can be used to integrate renewable energy (such as wind and solar energy) into the electric grid, help generation facilities operate at optimal levels to meet customer demand, and reduce the use of less efficient generating units that would otherwise run only at peak times. An energy storage system also provides protection from power interruptions and serves as reserve power in case of power outages or fluctuations. The most familiar type of energy storage system is a group of electrochemical batteries and associated equipment referred to as a battery energy storage system. Another form uses a flywheel, which converts excess electricity from the grid to kinetic energy in a fast-spinning rotor. As needed, the stored energy is converted back to electricity and returned to the grid or put to other use.

DOE and others have been developing large-scale energy storage systems for decades. Deployment of these systems has increased over the past decade. Today, energy storage systems support the operation of electric transmission facilities, microgrids, energy generation facilities, and commercial and industrial facilities. 8

DOE proposes to establish new categorical exclusion B4.14 for the construction, operation, upgrade, or decommissioning of an electrochemical-battery or flywheel energy storage system within a previously disturbed or developed area or within a small area contiguous to a previously disturbed or developed area. Section I.A of this document includes discussion of DOE's definition of previously disturbed or developed area and DOE's experience referring to contiguous areas in its categorical exclusions. The total acreage used for an energy storage system will be defined by the needs of the proposed project. Based on past experience, DOE anticipates that energy storage systems typically require 15 acres or less and would be sited close to energy, transmission, or industrial facilities. ( See Technical Support Document, page 24.) Consistent with this expectation and because contiguous land might be undisturbed and undeveloped, DOE proposes that siting outside a previously disturbed or developed be limited to a “small” contiguous area. DOE would consider whether a contiguous area is small “in the context of the particular proposal, including its proposed location. In assessing whether a proposed action is small, in addition to the actual magnitude of the proposal, DOE considers factors such as industry norms, the relationship of the proposed action to similar types of development in the vicinity of the proposed action, and expected outputs of emissions or waste. When considering the physical size of a proposed facility, for example, DOE would review the surrounding land uses, the scale of the proposed facility relative to existing development, and the capacity of existing roads and other infrastructure to support the proposed action.” (10 CFR 1021.410(g)(2)) In addition, the proposed categorical exclusion includes conditions that the proposed project be in accordance with applicable requirements (such as land use  9 and zoning requirements) and would incorporate appropriate design and construction standards, control technologies, and best management practices. In addition, DOE would review the proposed project against the criteria, including integral elements and extraordinary circumstances, described in section I.A of this document. This review would ensure that DOE considers the potential environmental effects of a proposed energy storage system prior to determining whether categorical exclusion B4.14 applies. In proposing this categorical exclusion, DOE has evaluated environmental assessments and findings of no significant impact prepared by DOE and other Federal agencies, categorical exclusion determinations made by DOE, and other information. ( See Technical Support Document, page 24.)

DOE also proposes conforming changes to three related categorical exclusions. Based on its past experience with energy storage systems, in 2011, DOE added “power storage (such as flywheels and batteries, generally less than 10 MW)” as an example of conservation actions to categorical exclusion B5.1, Actions to conserve energy or water. DOE also added “load shaping projects (such as the installation and use of flywheels and battery arrays)” to the list of example actions in categorical exclusion B4.6, Additions and modifications to transmission facilities. DOE now proposes to delete “power storage” from the examples in B5.1. DOE would not include the 10 MW (megawatt) limit in new categorical exclusion B4.14 because capacity, whether denominated in megawatts as a measure of instantaneous output or megawatt-hours as a measure of the total amount of energy capable of being stored, is not a reliable indicator of potential environmental impacts. Including a capacity limit within the categorical exclusion could mean that technology improvements resulting in more power storage within the same physical footprint may not qualify for the categorical exclusion even though the potential environmental impacts have not changed. DOE also proposes to delete the example of flywheels and battery arrays from B4.6 but retain the reference to “load shaping projects” and add “reducing energy use during periods of peak demand” as a new example. DOE would add a note to B4.6 that energy storage systems are addressed in B4.14. DOE also would add this note to categorical exclusion B4.4, Power marketing services and activities, which was established in 1992 and lists storage and load shaping as examples. These conforming changes would avoid confusion over which categorical exclusion and associated conditions apply to energy storage systems.

In response to DOE's November 2022 Request for Information, 10 three commenters (Cross-Cutting Issues Group, Duke Energy, and EEI) requested that DOE include energy storage systems, and the installation and operation of such systems, in categorical exclusions B4.4 and B4.6. Cross-Cutting Issues Group explained that including energy storage systems explicitly in B4.4 and B4.6 would “provide more certainty” as project proponents explore different types of energy storage system technologies (such as compressed air energy storage and molten salt storage), “particularly the timing and costs associated with deploying such projects.” (Cross-Cutting Issues Group (RFI 0012), page 6) EEI and Cross-Cutting Issues Group asked DOE to explicitly include the addition or modification of a “battery array or other energy storage device(s)” as part of these categorical exclusions. (EEI (RFI 0010), pages 9-10; Cross-Cutting Issues Group (RFI 0012), page 6)

DOE's proposed changes address these comments. DOE believes that the best way to ensure consistency is to have a single categorical exclusion for energy storage systems. DOE is proposing that new categorical exclusion B4.14 be limited to electrochemical-battery and flywheel energy storage systems. At this time, DOE has not identified sufficient information to conclude that compressed air energy storage, thermal energy storage ( e.g., molten salt storage), or other technologies normally do not present the potential for significant environmental impacts. DOE welcomes comments that provide analytic support for whether these other energy storage technologies meet the requirements for a categorical exclusion. If DOE identifies sufficient support, DOE may revise the categorical exclusion in the final rule to include additional energy storage technologies.

Solar photovoltaic (PV) technology converts sunlight into electrical energy. Individual PV cells, which may produce only 1 or 2 watts of electricity, are connected together to form modules (otherwise known as panels). The modules are combined with other components ( e.g., to convert electricity from direct current (DC) to alternating current (AC)) to create a solar PV system. These systems can be located in a wide variety of locations and sized for an individual home or business up to utility-scale, generating hundreds of megawatts. 11

Solar PV systems do not release GHGs while operating, though, as with any industrial activity, manufacturing and installing solar PV systems can release GHGs. The U.S. Energy Information Administration reports that, “Studies conducted by a number of organizations and researchers have concluded that PV systems can produce the equivalent amount of energy that was used to manufacture the systems within 1 to 4 years. Most PV systems have operating lives of up to 30 years or more.”  12 Thus, on a life-cycle basis, solar PV systems provide many years of electricity generation without GHG emissions.

DOE's current categorical exclusion B5.16, Solar photovoltaic systems, includes the installation, modification, operation, and removal of solar PV systems located on a building or other structure or, if located on land, within a previously disturbed or developed area generally comprising less than 10 acres. DOE proposes to change “removal” of a solar PV system to “decommissioning.” Decommissioning encompasses recycling and other types of actions that occur when a facility is taken out of service. DOE also proposes to remove the acreage limitation for proposed projects. Based on DOE's experience, acreage is not a reliable indicator of potential environmental impacts. As discussed in section I.B of this document, the potential significance of environmental impacts is more related to local environmental conditions than to acreage. DOE's review of various environmental assessments indicate that an acreage limit would not serve as an appropriate indicator of significant impacts. This conclusion is illustrated, for example, by environmental assessments for solar PV projects larger than 1,000 acres on previously disturbed or developed land that would not result in significant environmental impacts. ( See Technical Support Document, page 42.)

The nature and significance of environmental impacts is determined by a proposed project's proximity to and potential effects on environmentally sensitive resources and other conditions accounted for in categorical exclusion B5.16 and in the integral elements, extraordinary circumstances, and other factors described in section I.A of this document. If the proposed changes are finalized, DOE would consider the integral elements and the presence of any extraordinary circumstances when reviewing proposed solar PV projects' eligibility for this categorical exclusion. This review would ensure that DOE considers potential environmental impacts of a proposed solar PV system prior to determining whether categorical exclusion B5.16 applies. For example, in preparing the Technical Support Document, DOE observed that some large solar PV systems have been proposed for agricultural land. While integrating solar PV systems with farms may provide a variety of economic and environmental benefits to farmers, 13 doing so also raises questions about land use and the protection of important farmlands. One of the integral elements ensures that DOE considers the potential impacts on prime or unique farmland, or other farmland of statewide or local importance. (10 CFR part 1021, appendix B, paragraph (4)(v).)

DOE also proposes to make conforming changes in appendix C, Classes of Actions that Normally Require EAs but not Necessarily EISs, and in appendix D, Classes of Actions that Normally Require EISs. These appendices each include a class of actions, C7 and D7, that associates the level of NEPA review for interconnection requests and power acquisition with the power output of the electric generation resource. In 2011, DOE proposed for C7 that an environmental assessment normally would be required for the interconnection of, or acquisition of power from, new generation resources that are equal to or less than 50 average megawatts “and that would not be eligible for categorical exclusion under 10 CFR part 1021.” (76 FR 233; January 3, 2011) DOE did not receive public comment on the proposed addition regarding categorical exclusion eligibility. In the 2011 final rule, DOE did not include the condition regarding eligibility for a categorical exclusion. DOE explained this decision by stating “to improve clarity, DOE is removing the previously proposed condition that the new generation resource `would not be eligible for categorical exclusion under this part.' DOE normally would not prepare an environmental assessment when a categorical exclusion would apply. Therefore, the condition is unnecessary and potentially confusing.” (76 FR 63784; October 13, 2011) DOE's practice continues to be that it “normally would not prepare an environmental assessment when a categorical exclusion would apply.” DOE is again proposing to add a condition regarding the applicability of a categorical exclusion to C7, however. In light of the proposed change to B5.16—which would remove the acreage restriction for solar PV systems, thereby allowing the categorical exclusion to apply to systems generating up to hundreds of megawatts—DOE believes that including a condition in C7 is appropriate and helpful. It will clarify DOE's practice that an environmental assessment is normally required “unless the generation resource is eligible for a categorical exclusion.” DOE did not propose a similar condition in 2011 for D7, which applies to new generation resources greater than 50 average megawatts. DOE is now proposing to add the same condition to both C7 and D7 for the reasons previously described. For D7, DOE also is proposing to specify that an environmental impact statement is not required when an environmental assessment was prepared that resulted in a finding of no significant impact. This is standard practice, and DOE proposes to add this text only to avoid any potential confusion.

In response to DOE's November 2022 Request for Information, 14 EEI suggested that DOE revise categorical exclusion B5.16 to apply to “solar photovoltaic systems, both large- and small-scale, and increase the acreage to at least 200 acres within previously disturbed or developed areas to fully capture the extent of large-scale solar installation that utilize more than 10 areas and may not be contiguous.” (EEI (RFI 0010), page 10) DOE's proposal in this rulemaking is consistent with this comment.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011) and amended by E.O. 14094, “Modernizing Regulatory Review,” 88 FR 21879 (April 11, 2023), requires agencies, to the extent permitted by law, to (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. Many benefits and costs associated with this proposed rule are not quantifiable. The direct benefits include reduced cost and time for environmental analysis incurred by DOE, project proponents, and the public. Indirect benefits are expected to include deployment of technologies that improve the reliability and resilience of the nation's electric grid and that expand electricity generation capacity while reducing emissions of GHGs. For the reasons stated in this preamble, this proposed regulatory action is consistent with these principles.

This regulatory action has been determined not to be “a significant regulatory action” under E.O. 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action is not subject to review under that Executive order by OIRA of OMB.

E.O. 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” as supplemented and amended by E.O. 14096, “Revitalizing Our Nation's Commitment to Environmental Justice for All,” requires each Federal agency, consistent with its statutory authority, to make achieving environmental justice part of its mission. E.O. 14096 directs Federal agencies to carry out environmental reviews under NEPA in a manner that “(A) analyzes direct, indirect, and cumulative effects of Federal actions on communities with environmental justice concerns; (B) considers best available science and information on any disparate health effects (including risks) arising from exposure to pollution and other environmental hazards, such as information related to the race, national origin, socioeconomic status, age, disability, and sex of the individuals exposed; and (C) provides opportunities for early and meaningful involvement in the environmental review process by communities with environmental justice concerns potentially affected by a proposed action, including when establishing or revising agency procedures under NEPA.” DOE is providing opportunities for public engagement in this proposed rulemaking, including opportunities for communities with environmental justice concerns. Also, in determining whether the proposed categorical exclusions apply to a future proposed action, DOE will consider whether the proposed action threatens a violation of these Executive Orders, consistent with the first integral element listed in appendix B of DOE's NEPA procedures.

The Department's NEPA procedures assist the Department in fulfilling its responsibilities under NEPA and the CEQ regulations but are not themselves final determinations of the level of environmental review required for any proposed action. The CEQ regulations do not direct agencies to prepare an environmental assessment or environmental impact statement before establishing agency procedures that supplement the CEQ regulations to implement NEPA (40 CFR 1507.3). In establishing a new categorical exclusion and making other changes as described in this notice, DOE is following the requirements of CEQ's procedural regulations, which include publishing the Notice of Proposed Rulemaking in the Federal Register for public review and comment, considering public comments, and consulting with CEQ regarding conformity with NEPA and the CEQ regulations. ( See 40 CFR 1507.3(b)).

In this proposed rule, DOE proposes amendments that establish, modify, and clarify procedures for considering the environmental effects of DOE actions within DOE's decisionmaking process, thereby enhancing compliance with the letter and spirit of NEPA. DOE has preliminarily determined that this proposed rule would qualify for categorical exclusion under 10 CFR part 1021, subpart D, appendix A6, because it is a strictly procedural rulemaking, and no extraordinary circumstances exist that require further environmental analysis. Therefore, DOE has preliminarily determined that promulgation of these amendments is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an environmental assessment or an environmental impact statement.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's website: https://energy.gov/gc under Resources.

DOE has reviewed this proposed rule under the provisions of the Regulatory Flexibility Act and the procedures and policies published on February 19, 2003. The proposed revisions to 10 CFR part 1021 streamline the environmental review for proposed actions, resulting in a decrease in burdens associated with carrying out such reviews. For example, the proposed revisions to DOE's categorical exclusions are expected to reduce the number of environmental assessments that applicants would need to pay to have prepared for DOE's consideration. Applicants may sometimes incur costs in providing environmental information that DOE requires when making a categorical exclusion determination. The Government Accountability Office found in 2014 that there is little data available on the costs for preparing NEPA reviews and that agencies “generally do not reports costs that are `paid by the applicant' because these costs reflect business transactions between applicants and their contractors and are not available to agency officials.”  15 In 2011, DOE estimated the cost of preparing environmental assessments over the prior decade at an average of $100,000 and a median of $65,000. 16 DOE does not have more current cost data. The costs of making a categorical exclusion determination are less than those to prepare an EA. Although DOE does not have data on what percentage of EAs were funded by applicants that qualified as small entities, a beneficial cost impact is expected to accrue to entities of all sizes.

Based on the foregoing, DOE certifies that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a regulatory flexibility analysis for this proposed rulemaking. DOE's certification and supporting statement of factual basis will be provided to the Chief Counsel for Advocacy of the Small Business Administration pursuant to 5 U.S.C. 605(b).

This proposed rulemaking will impose no new information or record-keeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act (44 U.S.C. 3501 et seq. ) and the procedures implementing that Act, 5 CFR 1320.1 et seq.

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 104-4) requires each Federal agency to assess the effects of Federal regulatory actions on state, local, and tribal governments, in the aggregate, or to the private sector, other than to the extent such actions merely incorporate requirements specifically set forth in a statute. Section 202 of UMRA requires a Federal agency to perform a detailed assessment of the anticipated costs and benefits of any rule that includes a Federal mandate which may result in costs to State, local, or Tribal governments, or to the private sector, of $100 million or more in any one year (adjusted annually for inflation) (2 U.S.C. 1532(a) and (b)). Section 204 of UMRA requires each agency that proposes a rule containing a significant Federal intergovernmental mandate to develop an effective process for obtaining meaningful and timely input from elected officers of State, local, and Tribal governments (2 U.S.C. 1534).

The proposed rule would amend DOE's existing regulations governing compliance with NEPA to better align DOE's regulations, including its categorical exclusions, with its current activities and recent experiences. The proposed rule would not result in the expenditure by State, local, and Tribal governments in the aggregate, or by the private sector, of $100 million or more in any one year. Accordingly, no assessment or analysis is required under the UMRA.

Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well-being. The proposed rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 4, 1999), imposes certain requirements on agencies formulating and implementing policies or regulations that preempt state law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the states and carefully assess the necessity for such actions. DOE has examined this proposed rule and has determined that it would not preempt state law and would not have a substantial direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. No further action is required by E.O. 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” 61 FR 4729 (Feb. 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any; (2) clearly specifies any effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction; (4) specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met, or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, the proposed rule meets the relevant standards of E.O. 12988.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB.

OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has reviewed this proposed rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OMB a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that: (1)(i) is a significant regulatory action under E.O. 12866, or any successor order, and (ii) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. This regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy, and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

DOE has determined pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 18, 1988), that this proposed rule would not result in any takings that might require compensation under the Fifth Amendment to the United States Constitution.

DOE will accept comments, data, and information regarding this notice of proposed rulemaking no later than the date provided in the DATES section at the beginning of this document. Interested individuals are invited to submit data, views, or arguments with respect to the specific sections addressed in this proposed rule using the methods described in the ADDRESSES section at the beginning of this document.

1. Submitting comments via www.regulations.gov. Your contact information will be viewable by DOE's Office of the General Counsel staff only. Your contact information will not be publicly viewable except for your first and last names, organization name (if any), and submitter representative name (if any). If your comment is not processed properly because of technical difficulties, DOE will use this information to contact you. If DOE cannot read your comment due to technical difficulties and cannot contact you for clarification, DOE may not be able to consider your comment. However, your contact information will be publicly viewable if you include it in the comment itself or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.

Do not submit to www.regulations.gov information for which disclosure is restricted by statute, such as trade secrets and commercial or financial information (hereinafter referred to as Confidential Business Information (CBI)). Comments submitted through www.regulations.gov cannot be claimed as CBI. Comments received through www.regulations.gov will waive any CBI claims for the information submitted. For information on submitting CBI, see the Confidential Business Information section.

DOE processes submissions made through www.regulations.gov before posting. Normally, comments will be posted within a few days of being submitted. However, if large volumes of comments are being processed simultaneously, your comment may not be viewable for up to several weeks. Please keep the comment tracking number that www.regulations.gov provides after you have successfully uploaded your comment.

2. Submitting comments via email or mail. Comments and documents submitted via email or mail will also be posted to www.regulations.gov. If you do not want your personal contact information to be publicly viewable, do not include it in your comment or any accompanying documents. Instead, provide your contact information in a cover letter. Include your first and last names, email address, telephone number, and optional mailing address. The cover letter will not be publicly viewable as long as it does not include any comments.

Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, that are written in English, and that are free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.

3. Confidential Business Information. Pursuant to the provisions of 10 CFR 1004.11, any person submitting information or data he or she believes to be confidential and exempt by law from public disclosure should submit two well-marked copies: One copy of the document marked “CONFIDENTIAL” including all the information believed to be confidential, and one copy of the document marked “NON-CONFIDENTIAL” with the information believed to be confidential deleted. Submit these documents via email to DOE-NEPA-Rulemaking@hq.doe.gov. DOE will make its own determination about the confidential status of the information and treat it according to its determination.

It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).

4. Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.

The Secretary of Energy has approved publication of this notice of proposed rulemaking and request for comment.

This document of the Department of Energy was signed on November 8, 2023, by Samuel T. Walsh, General Counsel, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE proposes to amend part 1021 of chapter X of title 10, Code of Federal Regulations, as set forth below:

The revisions and addition read as follows:

On September 26, 2023, the U.S. Copyright Office issued a supplemental notice of proposed rulemaking seeking comments from the public on questions regarding the applicability of the derivative works exception to termination rights under the Copyright Act to the new statutory mechanical blanket license established by the Music Modernization Act and other matters relevant to identifying the proper payee to whom the mechanical licensing collective must distribute royalties. 1 The supplemental notice set an October 26, 2023 deadline for submitting initial comments and a November 13, 2023 deadline for reply comments. On October 11, 2023, the Office extended these deadlines to November 8, 2023 and November 28, 2023, respectively. 2

To ensure that members of the public have sufficient time to prepare responses to the Office, and to ensure that the Office can proceed on a timely basis with its inquiry of the issues identified in its supplemental notice with the benefit of a complete record, the Office is further extending the reply comment period deadlines as set forth here. Reply comments will now be due by 11:59 p.m. Eastern Time on Tuesday, December 5, 2023.

Participation in virtual public hearing. To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the hearing will be held via virtual platform on December 1, 2023. The hearing will convene at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be November 28, 2023. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers at: https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to smith.korbin@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by November 24, 2023. The EPA may not be able to arrange accommodations without advance notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2019-0392. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov.

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2019-0392. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov/ any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed in the Submitting CBI section of this document.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc. ) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and should be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in the Instructions section of this document. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol, or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the Office of Air Quality Planning and Standards (OAQPS) CBI Office at the email address oaqpscbi@epa.gov, and as described earlier in this preamble, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: U.S. Environmental Protection Agency, Attention Docket ID No. EPA-HQ-OAR-2019-0392, OAQPS Document Control Officer (C404-02), OAQPS, 109 T.W. Alexander Drive, P.O. Box 12055, Research Triangle Park, North Carolina 27711. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

Preamble acronyms and abbreviations. Throughout this preamble the use of “we,” “us,” or “our” is intended to refer to the EPA. We use 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:

Table 1 of this preamble lists the National Emission Standards for Hazardous Air Pollutants (NESHAP) and associated regulated industrial source categories that are the subject of this proposal. Table 1 is not intended to be exhaustive but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to the affected sources. Federal, State, local, and Tribal government entities would not be affected by this proposed action. As defined in the “Initial List of Categories of Sources Under Section 112(c)(1) of the Clean Air Act Amendments of 1990” (see 57 FR 31576; July 16, 1992) and Documentation for Developing the Initial Source Category List, Final Report (see EPA-450/3-91-030; July 1992), the “Tire Production” source category “is any facility engaged in producing passenger car and light duty truck tires, aircraft tires, and miscellaneous other tires.” This source category has been referred to as the “Rubber Tire Manufacturing” source category since the EPA first proposed NESHAP requirements for this source category in 2000. (See 65 FR 62414; October 18, 2000.)

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key technical documents at this same website.

A memorandum showing the rule edits that would be necessary to incorporate the changes to 40 CFR part 63, subpart XXXX, proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2019-0392). Following signature by the EPA Administrator, the EPA also will post a copy of this document to https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous.

This action proposes to amend the NESHAP for the Rubber Tire Manufacturing source category.

The statutory authority for this action is provided by section 112 of the CAA, as amended (42 U.S.C. 7401, et seq. ). In the first stage of the CAA section 112 standard-setting process, the EPA promulgates technology-based standards under CAA section 112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards in lieu of numerical emission standards. The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as “beyond-the-floor” standards.

CAA section 112(d)(6) requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. While conducting this review, which we call the “technology review,” the EPA is not required to recalculate the MACT floors that were established during earlier rulemakings. Nat. Resources Def. Council (NRDC) v. EPA, 529 F.3d 1077, 1084 (D.C. Cir. 2008); Ass'n of Battery Recyclers, Inc. v. EPA, 716 F.3d 667 (D.C. Cir. 2013). The EPA may consider cost in deciding whether to revise the standards pursuant to CAA section 112(d)(6).

CAA section 112(f) requires the EPA to determine whether promulgation of additional standards is needed to provide an ample margin of safety to protect public health or to prevent an adverse environmental effect. This review is known as the “residual risk review,” and it must occur within 8 years after promulgation of the standards. When the EPA conducts the “technology review” together with the “residual risk review,” the combined review is known as a “risk and technology review” (RTR).

The EPA initially promulgated the Rubber Tire Manufacturing NESHAP on July 9, 2002 (67 FR 45588). These standards are codified at 40 CFR part 63, subpart XXXX.

In 2016, a coalition of environmental advocacy groups filed a lawsuit to compel the EPA to fulfill its statutory duty to conduct the CAA sections 112(d) and 112(f)(2) reviews of 13 NESHAPs, including the NESHAP for the Rubber Tire Manufacturing source category. Blue Ridge Environmental Defense League v. McCarthy, No. 1:16-cv-00364. As a result of that litigation, the EPA was required to complete its review of the Rubber Tire Manufacturing source category. The resulting residual RTR conducted for the Rubber Tire Manufacturing NESHAP was published in the Federal Register on July 24, 2020 (85 FR 44752) (2020 RTR).

In an April 2020 decision by the U.S. Court of Appeals for the District of Columbia Circuit, the court held that the EPA has an obligation to address unregulated HAP emissions from a source category when the Agency conducts the 8-year technology review required by CAA section 112(d)(6). Louisiana Environmental Action Network v. EPA, 955 F.3d, at 1098-99 (D.C. Cir. 2020) (“ LEAN decision or LEAN ”). The parties in the Blue Ridge Environmental Defense League case filed a joint motion for an extension of the deadline to allow the EPA to revise the 2020 final rule to comply with the LEAN opinion. The court granted the motion, setting a new deadline for this rule of October 27, 2022. Blue Ridge Environmental Defense League, Order (Apr. 15, 2021). This deadline was subsequently extended to November 13, 2024. Id., Order (Mar. 14, 2022).

In light of this litigation history, this proposed rule includes proposed new emission standards to address currently unregulated emissions of HAP from the rubber processing subcategory of Rubber Tire Manufacturing, pursuant to the LEAN decision and CAA sections 112(d)(2) and (d)(3).

The Rubber Tire Manufacturing source category consists of facilities that produce rubber tire components including but not limited to rubber compounds, sidewalls, tread, tire beads, tire cord, and liners. The source category covered by the NESHAP currently includes 15 facilities. The Rubber Tire Manufacturing source category is split into 4 subcategories for different phases of rubber tire manufacturing. These subcategories include rubber processing, tire production, tire cord production, and puncture sealant application.

The 2002 NESHAP for the Rubber Tire Manufacturing source category established emission limits on a subcategory basis as follows.

There are currently no emission limits for the rubber processing subcategory.

There are 2 equivalent standards for the tire production subcategory, and sources can choose to comply with either standard. The first standard, which is based on HAP materials purchased and used in the process, is an emission limit that requires that emissions of each HAP in table 16 to 40 CFR part 63, subpart XXXX, that is used in the tire production process not exceed 1,000 grams (g) HAP per megagram (Mg) (2 pounds per ton (lb/ton)) of total cements and solvents used at the tire production affected source, and requires that the amount of each HAP not in table 16 to 40 CFR part 63, subpart XXXX, that is used in the tire production process not exceed 10,000 g HAP per Mg (20 lb/ton) of total cements and solvents used at the tire production affected source.

The second standard is a production-based emission-limit option. For this option, emissions of HAP must not exceed 0.024 g/Mg (0.00005 lb/ton) of rubber used at the tire production affected source.

There are 3 equivalent standards for the tire cord production subcategory, and sources can choose which standard to comply with within this subcategory, depending, in part, on whether the source is an existing or new source. The first standard is a production-based emission-limit option for existing tire cord production affected sources. As part of this standard, emissions must not exceed 280 g HAP per Mg (0.56 lb/ton) of fabric processed at the tire cord production affected source.

The second standard is a production-based emission-limit option for new or reconstructed tire cord production affected sources. As part of this standard, emissions must not exceed 220 g HAP per Mg (0.43 lb/ton) of fabric processed at the tire cord production affected source.

The third standard is a HAP constituent emission-limit option available to both existing and new or reconstructed tire cord production affected sources. To comply with this standard, emissions of each HAP in table 16 to 40 CFR part 63, subpart XXXX, that is used in the tire cord production process must not exceed 1,000 g HAP per Mg (2 lb/ton) of total coatings used at the tire cord production affected source, and emissions of each HAP not in table 16 to 40 CFR part 63, subpart XXXX, that is used in the tire cord production process must not exceed 10,000 g HAP per Mg (20 lb/ton) of total coatings used at the tire cord production affected source.

There are 3 equivalent standards for the puncture sealant application subcategory, and sources can choose which standard to comply with within this subcategory depending, in part, on whether the source is an existing or new source. The first standard is a percent reduction emission-limit option for existing puncture sealant application spray booths. As part of this standard, facilities are required to reduce spray booth HAP (measured as volatile organic compounds (VOCs)) emissions by at least 86 percent by weight.

The second standard is a percent reduction emission-limit option for new or reconstructed puncture sealant application spray booths. As part of this standard, facilities are required to reduce spray booth HAP (measured as VOCs) emissions by at least 95 percent by weight.

The third standard is a HAP constituent emission-limit option for both existing and new or reconstructed puncture sealant application spray booths. As part of this standard, emissions of each HAP in table 16 to 40 CFR part 63, subpart XXXX, must not exceed 1,000 g HAP per Mg (2 lb/ton) of total puncture sealants used at the puncture sealant affected source, and emissions of each HAP not in table 16 to 40 CFR part 63, subpart XXXX, must not exceed 10,000 g HAP per Mg (20 lb/ton) of total puncture sealants used at the puncture sealant affected source.

Compliance alternatives are available for the 3 subcategories currently subject to emission limits (tire production, tire cord production, and puncture sealant application) to meet the emission limits mentioned earlier in section II.B of this preamble. For more information on these compliance alternatives, a detailed breakdown of the compliance alternatives for these subcategories may be found at 40 CFR 63.5985, 40 CFR 63.5987, and 40 CFR 63.5989, for tire production, tire cord production, and puncture sealant application, respectively.

In the 2020 RTR, the EPA found that the risk associated with air emissions from rubber tire manufacturing was acceptable and that the current NESHAP provides an ample margin of safety to protect public health. The EPA determined that there were no developments in practices, processes, or control technologies that warranted revisions to the standards. Based on the analysis conducted as part of the RTR, no revisions to the numerical emission limits were made for any of the Rubber Tire Manufacturing subcategories. The 2020 RTR addressed periods of startup, shutdown, and malfunction (SSM) by clarifying that emissions during SSM operations are subject to the NESHAP. In addition, the 2020 amendments included provisions requiring electronic reporting of performance test results and reports, compliance reports, and Notification of Compliance Status reports.

To inform this current action, the EPA sent an information request pursuant to CAA section 114 (hereinafter “CAA section 114 information request”) to all 5 parent companies that operate major source rubber tire facilities (15 major source facilities) within the United States. The CAA section 114 information request was conducted in 2 phases.

The first phase was sent to the parent companies in June 2022. It consisted of a questionnaire relating to rubber tire manufacturing processes. The questionnaire requested the following information from rubber tire facilities: facility information, including facility location and production background; process and control information from each mixer at the facility, including ingredients added and associated tire component for each combination of ingredients; available mixer emissions data for filterable particulate matter (fPM) HAP and VOC HAP; mixing schematics; and emission controls in use at the facility.

The second phase of the CAA section 114 information request sought emissions data on mixers through stack testing and required each company that received the request to submit the data and associated documentation via an EPA-developed response template. Draft emission factors developed by the U.S. Rubber Tire Manufacturers Association (USTMA) in 2008, and available in the Mixing 30800111 tab in the Emission Factors Tables excel file at https://www.epa.gov/air-emissions-factors-and-quantification/ap-42-fifth-edition-volume-i-chapter-4-evaporation-loss-0, were reviewed and those compounds whose unit risks were assessed to provide risks near or above 1-in-1 million were selected for emissions testing. Those compounds included polycyclic aromatic hydrocarbons (PAHs)—aniline, dibenzofuran, hydroquinone, naphthalene, and o -toluidine. In addition, HAP metals, fPM, and total hydrocarbons (THC) were required to be collected using EPA test methods. The second phase of the CAA section 114 information request specified the emission testing procedures and methods to be followed, the process information to be collected during emission testing, how to report and submit the data to the EPA, and required contact information for the facility.

The measured HAP were reported in units of nanograms per dry standard cubic meter (ng/dscm) and rates in pounds per hour (lb/hr). The amount of rubber processed in units of tons per hour (ton/hr) was recorded, and the HAP data were also reported in units of lb/ton rubber processed. For HAP testing, one 3-run test was conducted for each mixer when organic HAP emissions were expected to be highest. THC measured in parts per million by volume dry (ppmvd) as propane were also collected during the second phase. For THC, data were also collected over a minimum 30-day period. Emissions of fPM and metal HAP were measured in units of milligrams per dry standard cubic meter (mg/dscm) and lb/hr, and data were collected per parent company for a minimum of six runs. The amount of rubber processed was recorded and the fPM and metal HAP data were reported in the units of lb/ton rubber processed. For units and facilities, the testing runs were split between mixing silica-containing compounds and non-silica-containing compounds, due to an expected difference in emission profiles.

Other parameters measured during testing included: gas flow rate, measured in actual cubic feet per minute (acfm); oxygen (O 2 ) and carbon dioxide (CO 2 ), measured in dry percent volume; and moisture, measured in percent volume. The measured flow rates were converted to standard cubic feet per minute (scfm) and dry standard cubic feet per minute (dscfm). The THC measurements were converted to ppmvd.

In November of 2022, the USTMA voluntarily provided to the EPA test reports containing metals and particulate matter (PM) data. Of the test reports provided, only 1 report (pertaining to Mixer #5 and #7 of the Goodyear Danville, Virginia facility) contained the fPM and corresponding rubber production data needed to calculate a production-based emission limit (pounds of fPM per ton of rubber produced). As a result, we considered fPM data from Mixer #5 and #7 from the Goodyear Danville facility when setting the MACT standard for fPM.

The current Rubber Tire Manufacturing NESHAP does not contain any emission limits for the rubber processing subcategory. For the HAP emitted from this subcategory, we are proposing to establish MACT emission limits pursuant to CAA section 112(d)(2) and 112(d)(3). The results and proposed decisions based on the analyses performed pursuant to CAA section 112(d)(2) and 112(d)(3) are presented in section IV of this preamble. We discuss these emissions in the following 3 groupings: THC, PAH, and PM & metal HAP.

In response to the CAA section 114 information request, we received THC emissions data from the rubber processing subcategory that we did not have in 2002 when subpart XXXX was first promulgated nor when we conducted the 2020 RTR. The emissions data received indicate that THC is emitted from the rubber processing subcategory. Measured THC includes organic HAP, including but not limited to 2-butanone, acetophenone, cumene, hexane, isooctane, methylene chloride, phenol, toluene, and xylene, which are the compounds identified by the rubber manufacturing association (now USTMA) as being emitted during rubber processing in original testing to determine emission factors for the Rubber Tire Manufacturing NESHAP. Draft emission factors developed by the U.S. Rubber Tire Manufacturers Association (USTMA) in 2008 are available in the Mixing 30800111 tab in the Emission Factors Tables excel file at https://www.epa.gov/air-emissions-factors-and-quantification/ap-42-fifth-edition-volume-i-chapter-4-evaporation-loss-0.

The THC emissions data also includes PAHs and other VOCs that are not HAP, such as ethanol. Because the THC measurements, by definition, include all relevant organic HAP (as well as non-HAP), and considering the significant difficulty of measuring numerous individual, speciated organic HAP compounds, we are proposing a MACT standard in accordance with CAA section 112(d)(2) and (d)(3) to limit THC emissions as a surrogate for organic HAP emissions, as described further in section IV.A.2 of this preamble. We solicit comment on the use of THC as a surrogate for organic HAP, as well as on the EPA's approach to testing for THC, as opposed to testing for individual speciated organic HAP. As explained below, we consider the use of THC as a surrogate to be an appropriate alternative to testing mixers to identify all individual, speciated, organic HAP emitted during rubber processing, and subsequently setting separate standards and monitoring requirements for each specific identified HAP.

PAHs are a group of over 100 different chemicals that are formed during the incomplete burning of coal, oil and gas, garbage, or other organic substances. PAHs are usually found as a mixture containing 2 or more of these compounds, such as soot. Additives to rubber provide characteristics important for tire performance; included in those additives is carbon black, which, depending on its origin, includes many PAHs. In response to the CAA section 114 information request, the EPA received PAH emissions data from the rubber processing subcategory that we did not have in 2002 when subpart XXXX was first promulgated nor in 2020 when we conducted the RTR. We used this new emissions data to develop the proposed MACT standards in accordance with CAA section 112(d)(2) and (d)(3). Specifically, we are proposing to use THC emissions as a surrogate for PAH and all organic HAP emissions, as discussed further in section IV.A.1 of this preamble.

PM, specifically fPM, is a criteria pollutant created and emitted by many activities, including addition of carbon black to rubber while mixing. Filterable particulate matter contains a number of compounds including filterable metals, which are HAP. Baghouses, or fabric filters, employed at tire manufacturing facilities control and collect fPM and its inherent filterable metals, and, in some instances, the collected fPM is reintroduced into the mixers. In response to the CAA section 114 information request, the EPA received fPM and metal HAP emissions data from rubber processing that we did not have in 2002 when subpart XXXX was first promulgated nor in 2020 when we conducted the 2020 RTR. The emissions data received indicate that fPM and metal HAP are emitted from rubber processing. Pursuant to this data and information, we are proposing a MACT standard in accordance with CAA section 112(d)(2) and (d)(3) to limit fPM emissions as a surrogate for metal HAP emissions, as described further in section IV.A.3 of this preamble.

When developing MACT standards, the MACT “floor” for existing sources is calculated based on the average performance of the best performing sources in each category or subcategory. The MACT floor for new sources is based on the single best performing source. The MACT floor for new sources cannot be less stringent than the emissions performance that is achieved in practice by the best controlled similar source. To account for variability in the rubber processing operations and resulting emissions, we calculated the MACT floors using the 99 percent Upper Predictive Limit (UPL) approach with available stack test data. 1

The UPL approach addresses emissions data from the best performing source or sources in setting MACT standards. The UPL also accounts for uncertainty associated with emission values in a dataset, which can be influenced by factors such as the number of samples available for developing MACT standards and the number of samples that will be collected to assess compliance with the emission limit. The UPL approach has been used in many environmental science applications. As explained in more detail in the memorandum, Use of Upper Prediction Limit for Calculating MACT Floors, available in the docket for this action, the EPA uses the UPL approach to reasonably estimate the emissions performance of the best performing source or sources to establish MACT floor standards.

In addition, under CAA section 112(d)(2), the EPA must examine more stringent “beyond-the-floor” regulatory options to determine the appropriate level for the MACT standards. Unlike the MACT floor minimum stringency requirements, the EPA must consider various impacts of the more stringent regulatory options in determining whether MACT standards are to reflect beyond-the-floor requirements. These impacts include the cost of achieving emission reductions beyond those achieved by the MACT floor, and any non-air quality health and environmental impacts and energy requirements that would result from imposing controls beyond the MACT floor. If the EPA concludes that the more stringent regulatory options are not reasonable, the EPA sets the standards at the MACT floor level. However, if the EPA concludes that impacts associated with beyond-the-floor levels of control are reasonable in light of the additional considerations, the EPA selects those levels as MACT.

Data submitted to the EPA in response to the CAA section 114 information request included air emissions test results from 12 rubber processing mixers at 6 facilities in the source category. The responses also included the types of materials being processed and the types of controls in use at mixers within the source category. The types of tires produced included passenger and light truck tires, off road tires, truck tires, earth moving tires, and aircraft tires, which are representative of the major types of tires produced by facilities in the Rubber Tire Manufacturing source category. Similarly, all of the tire component types of rubber compounds (inner liner, ply coat, belt coat, base/sidewall, apex, tread) were represented. The types of air emission controls included fPM controls ( e.g., fabric filter baghouses, cartridge dust collectors, and scrubbers) on all mixers and regenerative thermal oxidizers (RTOs) on 3 mixers at 3 facilities (in addition to the fPM controls).

Due to issues with availability of testing equipment and due to unforeseen issues with some of the emissions testing, not all data for the second phase of the CAA section 114 information request was timely submitted. The EPA received some data after the requested deadline, and some of the late-submitted data was not submitted in time for us to consider it for the proposal. The EPA anticipates incorporating these additional data, which includes data from 6 additional mixers (Continental Mt Vernon Mixer 19 and 21, Cooper Texarkana Mixer 1, 5, and 8, and Titan Tire Mixer 6 (just 30-day THC data)) when we develop the final rule. Three of these mixers (Continental Mt Vernon Mixer 19 and 21, Cooper Texarkana Mixer 8) operate RTOs, with the two mixers from Continental (Mixer 19 and 21) operating RTOs continuously for all batch types and Cooper (mixer 8) operating only when utilizing silica containing compounds. Although we have not had adequate time to evaluate the data from these mixers it is possible that the mixers (especially those that operate RTOs) may be among the top performing mixers tested, and thus be the new basis of the MACT floor calculations. Additionally, we anticipate that the addition of data for these 6 mixers will change the number of mixers used to calculate the MACT floors both for mixers using silica-containing compounds and for mixers using non-silica-containing compounds, thus resulting in a change of the proposed calculated MACT floor emission limits. All the CAA section 114 data, including the late-submitted data are available at https://www.epa.gov/stationary-sources-air-pollution/rubber-tire-manufacturing-national-emission-standards-hazardous. We are specifically requesting comment on the late-submitted data, which was not received in time for us to consider for proposal.

The CAA provides that MACT standards for existing sources may be no less stringent, but may be more stringent, than the average emission limitation achieved by the best performing 12 percent of the existing sources (or best performing 5 sources in the category or subcategory where there are fewer than 30 sources) for which the Administrator has information. Since there are over 29 mixers for each of the silica-containing and non-silica-containing compounds, the MACT floors are calculated using the top 12 percent of data available. For this proposal, the EPA was able to use THC data for 11 mixers, and 12 percent of 11 mixers is 1.32 mixers. When determining the best performing 12 percent of existing sources for the MACT floor pool, we round fractional amounts to the next whole number to ensure that the MACT floor calculations are based on no fewer than the best performing 12 percent of existing sources. In this instance, we rounded up to 2 mixers for purposes of determining the existing source MACT floor. As previously mentioned, we received late-submitted data for an additional 6 mixers that were not provided in time to consider for this proposal, but which we intend to consider for the final rule; when the data from the additional 6 mixers are included, the number of mixers identified as the best performers is expected to change from 2 to 3 ( i.e., 17 mixers, and 12 percent of 17 mixers is 2.04, which rounds up to 3 mixers). It is possible that the fPM and metal HAP MACT floor may change when including the new data. For additional information on the data collected in the CAA section 114 information request, please see the memorandum, Maximum Achievable Control Technology (MACT) Analysis for the Rubber Processing Subcategory in the Rubber Tire Manufacturing Industry, available in the docket for this action.

The EPA received data from five facilities for PAH emissions. The PAH compounds measured were aniline, dibenzofuran, hydroquinone, naphthalene, and o -toluidine. The PAH emissions were collected using U.S. EPA SW-846 Method 0010, extracted using Method 3542, and analyzed using Method 8270E. 2

Many of the measured emissions were below the detection limit of the approved testing method, and others were detection level limited (DLL). Results are considered below detection limit (BDL) when every measured result for a compound in a test run is less than the laboratory's reported detection level. Data are considered DLL when the results in a given test run are a mixture of values less than and greater than the laboratory's reported detection level for that compound. All of the test results for hydroquinone and dibenzofuran were BDL. The test results for aniline, naphthalene, and o -toluidine included values that were above the detection level.

Reported levels of two PAH compounds—dibenzofuran and hydroquinone—are below current detection levels at each facility; therefore, the EPA is not proposing emission limits for dibenzofuran or hydroquinone. Moreover, because the World Health Organization recognizes 17 dioxin-like congeners  3 (7 polychlorinated dioxins and 10 polychlorinated dibenzofurans), the USTMA emission factor data contain no polychlorinated dioxins or polychlorinated dibenzofurans, and measured unpolychlorinated dibenzofuran values are BDL, the EPA is proposing that no emission limits for dioxin-like compounds are needed.

The General Services Administration (GSA) conducts routine reviews of its acquisition regulations and acquisition policies and procedures. The review indicated a need to standardize and simplify the Schedule clause for economic price adjustments.

The Schedule program, also known as the Federal Supply Schedule (FSS) program, establishes long-term governmentwide contracts with commercial companies. Schedule contracts routinely last up to 20 years and are issued as fixed price with economic price adjustment (EPA) Indefinite Delivery Indefinite Quantity (IDIQ) contracts. Schedule contracts provide access to commercial products, services, and solutions at fair and reasonable pricing to the Federal Government and other authorized customers ( e.g., state and local governments).

The use of EPA provides for upward and downward revision of contract pricing upon the occurrence of specified conditions over the anticipated 20 year contract period of performance. The Schedule program has a long history of providing the ability for Schedule contractors to submit EPA requests ( e.g., see 47 FR 50242 dated November 5, 1982).

Currently, Schedule contracts contain at least one of the following EPA clauses ( i.e., a Schedule contract may include more than one EPA clause based on their offering and participation in Transactional Data Reporting (TDR)): (1) Alternate I of GSAR clause 552.216-70, Economic Price Adjustment-FSS Multiple Award Schedule Contracts; (2) an authorized deviation of GSAR clause 552.216-70; (3) clause I-FSS-969, Economic Price Adjustment-FSS Multiple Award Schedule; or (4) an Alternate to clause I-FSS-969. The primary focus of these EPA clauses is the establishment of the procedures, including, but not limited to specific procedural limits ( e.g., timing and frequency) around the submission of EPA price increase requests. In terms of price decrease requests, all four clauses require such requests to be handled in accordance with GSAR clause 552.238-81, Price Reductions. Altogether, for the most part these four Schedule EPA clauses are very similar, with only minor differences, most of which are related to the EPA mechanism(s) proposed by the contractor ( e.g., annual fixed increases or increases based on their published or publicly available commercial price list) and the applicability of TDR.

In March 2022, in response to the highest level of inflation in over 40 years as well as other factors ( e.g., supply chain disruptions), GSA issued Acquisition Letter MV-22-02 to provide a temporary moratorium on the enforcement of certain procedural limits contained in the Schedule EPA clauses. The moratorium relaxes the limits on the frequency, timing, and number of EPA price increase requests.

Since the issuance of Acquisition Letter MV-22-02, the Schedule program has seen benefits. The relaxing of these procedural limits has provided industry Schedule partners with greater flexibility and agility in response to market changes and economic conditions that impact their Schedule pricing. This flexibility has increased their ability to support federal customers in acquiring critically needed products, services, and solutions through a single contracting action. In the absence of this flexibility, they would likely have chosen not to respond to order-level solicitations and/or requested the removal of the items from their Schedule contract to avoid selling them at a loss. The loss of such items under such conditions, increases the administrative costs and time for federal agencies and other customers in meeting their needs.

The positive results of Acquisition Letter MV-22-02 underscore the need for the Schedule program to continually evolve and provide a viable and competitive vendor base for needed products, services, and solutions at competitive prices. The absence of items from the competitive marketplace increases the administrative cost for the Government, customers, and Schedule contractors; reduces the efficacy of the Schedule program; and undercuts objectives to support small business especially in underserved communities.

GSA is seeking to standardize and simplify the Schedule clauses for EPA. The revisions will result in the consolidation of the four existing Schedule EPA clauses into a single Schedule EPA clause. The revisions will also remove several procedural limits contained in these clauses to better align with commercial standards and practices. GSA anticipates these changes will increase the number and extent of offerings available through the Schedule program, improve customer satisfaction by ensuring needed products, services, and solutions are initially offered and are not removed from the Schedule program, and reduce administrative costs on Schedule contractors, particularly small businesses and new entrants.

This proposed rule amends the GSAR to standardize and simplify the Schedule clauses related to economic price adjustments. A summary of the revisions is as follows:

A. GSAR clause 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, is being revised, renumbered, and renamed 552.238-118, Economic Price Adjustment—Federal Supply Schedule Contracts. The clause is being renumbered to be consistent with the numbering used for Schedule provisions and clauses. The current clause number reflects the clause being located in GSAR part 516. This is inconsistent with the current practice of locating Schedule provisions and clauses within GSAR part 538, specifically section 538.273. The clause is being renamed to remove the words “Multiple Award Schedule” since it is duplicative of the acronym “FSS” that is already included in the clause title. The clause title is also being renamed in order to spell out the acronym “FSS”. Spelling out of the acronym “FSS” is consistent with the current practice of using the words “Federal Supply Schedule” in GSAR provision and clause titles where appropriate.

The revisions to the clause itself provide for the: (1) standardization and simplification of existing Schedule EPA requirements; (2) retention of the Schedule Contracting Officer's authority to reject, accept, or partially accept an EPA request; (3) creation of a definition for “economic price adjustment method” for the purpose of formalizing within resultant contracts offerors' proposed EPA mechanism(s), the applicable pricing subject to EPA, and any other agreed upon requirements; (4) clarification on what is not covered by an EPA request; (5) ability for the EPA method to be revised via mutual agreement during contract performance; and (6) establishment of a single consolidated Schedule EPA clause.

Currently, the Schedule solicitation contains the following provision: SCP-FSS-001, Instructions Applicable to All Offerors. Paragraph (i)(3)(v) of this provision requests offerors propose an EPA mechanism. The EPA mechanisms available within the Schedule solicitation for offerors to choose from are: a published or publicly-available commercial price list; a fixed annual escalation rate; and relevant market indicator ( e.g., the Bureau of Labor Statistics Employment Cost Index (ECI)). Paragraph (c) of the clause I-FSS-969 also includes the ability to determine an appropriate mechanism in response to unforeseeable major changes in market conditions.

Schedule contracts currently contain at least one of the following clauses: (1) Alternate I of GSAR clause 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts; (2) an authorized deviation of GSAR clause 552.216-70; (3) clause I-FSS-969, Economic Price Adjustment—FSS Multiple Award Schedule; or (4) an Alternate to clause I-FSS-969. The incorporation of one or more of these clauses into a Schedule contract is dependent on the EPA mechanism(s) proposed by the offeror and whether the offeror elected to participate in TDR. For example, the authorized deviation to GSAR clause 552.216-70 applies to Schedule contracts subject to TDR that use published or publicly-available commercial price lists as the EPA mechanism. These four Schedule EPA clauses include essentially the same requirements ( e.g., timing, number, and frequency of EPA price increase requests), with only minor differences, most of which are related to the clause prescription ( i.e., type of EPA mechanism selected by the contractor and applicability of TDR).

In consideration of the above existing requirements, the revised clause seeks to consolidate the four existing EPA clauses into a single clause. The new clause maintains GSA's responsibility to: ensure schedules operate at the lowest overall cost alternative and feature fair and reasonable pricing at the Schedule level throughout contract performance; review, process, and, if necessary, negotiate EPA requests. This could mean accepting, rejecting, or partially accepting EPA requests. For example, paragraph (f) of the revised clause maintains the Schedule contracting officer's options in response to an EPA request. Currently, this requirement is found within each of the four EPA clauses ( e.g., see paragraph (f) of clause I-FSS-969).

The revised clause moves GSA closer to the commercial marketplace and provides greater flexibility and agility in terms of responding to market changes, economic conditions, and Government/customer requirements. For example, due to the inflexibility of the existing Schedule EPA clauses some Schedule contractors have removed items from their Schedule contract to avoid selling those items at a loss. The absence of such items has an unnecessary negative impact on the Schedule program. The lack of items on the Schedule program directly impacts competition and the availability of needed items; increases administrative costs to the Government, customers, and Schedule contractors; reduces the efficacy of the Schedule program; and undercuts the objectives to support small businesses and new entrants.

B. Alternate I of GSAR clause 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, is being deleted in its entirety. The Alternate is being deleted because it is no longer necessary as a result of the aforementioned revisions. The newly created GSAR clause 552.238-118, Economic Price Adjustment—Federal Supply Schedule Contracts, addresses Schedule EPA requirements.

C. Section 538.273, FSS solicitation provisions and contract clauses, is being revised to provide for the prescription of the newly created GSAR clause 552.238-118, Economic Price Adjustment—Federal Supply Schedule Contracts. Section 538.273 is the appropriate location for the prescription of this new clause because this is the section that provides the prescription for Schedule provisions and clauses.

D. GSAR clause 552.238-115, Special Ordering Procedures for the Acquisition of Order-Level Materials, is being revised to update paragraph (d)(10)(i) from “552.216-70 Economic Price Adjustment—FSS Multiple Award Schedule Contracts” to “552.238-118, Economic Price Adjustment—Federal Supply Schedule Contracts.” This revision is appropriate because 552.238-118 is the GSAR clause that is replacing the GSAR clause 552.216-70 under the proposed revisions.

E. Section 502.101 Definitions, is being revised to add the definition for EPA method.

F. The table in section 501.106 OMB Approval under the Paperwork Reduction Act, is being revised to reflect the proposed revisions and existing requirements not currently shown in the table.

GSA believes that these changes benefit the Schedule program as a whole. For example, GSA anticipates that these changes will increase the number and extent of offerings available through the Schedule program, improve customer satisfaction/reduce customer cost by ensuring needed products, services, and solutions are not removed from the Schedule program due to market volatility, and reduce administrative costs on Schedule contractors, particularly small businesses and new entrants.

GSA receives hundreds of modification requests each month from contractors to remove items from their Schedule contracts or declined orders due to price variability in the commercial market. By statute, the procedures for the Schedule program are competitive so long as they are open to all and contracts and orders results in the lowest overall cost alternative. GSA anticipates this rule will help it ensure customers experience the lowest overall cost alternative on their orders by maximizing the chance that full solutions are available on the Schedule contract, thus minimizing the need to conduct multiple separate acquisitions to fulfill a requirement.

Currently, Schedule contracts include at least one of the following four clauses related to the submission and processing of EPA requests during contract performance: (1) an authorized deviation to GSAR clause 552.216-70; (2) Alternate I of GSAR clause 552.216-70; (3) clause I-FSS-969; or (4) an Alternate of clause I-FSS-969. These changes standardize and simplify the EPA requirements contained in these four clauses. These changes will result in the consolidation of these clauses into a single Schedule EPA clause. These changes do not alter the way Schedule contractors conduct business, or their ability to submit an EPA request.

The qualitative anticipated benefits include, but are not limited to, the creation of a single standardized Schedule EPA clause; greater flexibility around EPA requests; providing clarity around EPA within the Schedule program; providing a connection between the Schedule solicitation and resultant contracts; and greater flexibility and agility for purposes of responding to changing conditions.

GSA anticipates the quantitative benefits to be related to improved regulatory familiarization. GSA calculates the estimated total cost for Schedule contractors to familiarize themselves with existing EPA requirements as $3,251,640 ( i.e., 3 hours * $77.42  1 (GS-12 Step 5 base pay plus “Rest of US Locality Pay” plus “Fringe”) * 14,000 approximate number of current Schedule contractors)). After these revisions: GSA estimates the total cost as $2,709,700 ( i.e., 2.5 hours * $77.42 (GS-12 Step 5 base pay plus “Rest of US Locality Pay” plus “Fringe”) * 14,000 approximate number of current Schedule contractors)). Resulting in a reduction in estimated total cost of $541,940.

Executive Order (E.O.) 12866 (Regulatory Planning and Review) directs 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). E.O. 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. OIRA has determined that this rule is not a significant regulatory action, and, therefore, is not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

GSA does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because this rule is to standardize and simplify existing EPA requirements related to Schedules ( e.g., revise GSAR clause 552.216-70, Economic Price Adjustment-FSS Multiple Award Schedule Contracts). The underlying purpose of the changed text remains the same ( i.e., supporting the submission and processing of EPA requests), and therefore any burden would have been identified previously. However, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603.

The Regulatory Secretariat Division will be submitting a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. GSA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

GSA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (GSAR Case 2020-G510), in correspondence.

The analysis is summarized as follows:

The Paperwork Reduction Act (44 U.S.C. chapter 3501) does apply; however, these changes do not impose additional information collection requirements to the burden previously approved under the Office of Management and Budget (OMB) Control Number 3090-0235, titled: Federal Supply Schedule Pricing Disclosures and Sales Reporting and OMB Control Number 3090-0306, titled: Transactional Data Reporting. Both OMB information collections, however, will be updated to reflect the change in the clause title and number from 552.216-70, Economic Price Adjustment—FSS Multiple Award Schedule Contracts, to 552.238-118, Economic Price Adjustment—Federal Supply Schedule Contracts.

Therefore, GSA proposes to amend 48 CFR parts 501, 502, 538, and 552 as set forth below:

The revision and additions read as follows:

Background

On December 28, 2022, NMFS issued its SIMP proposed rule (85 FR 58321). The proposed rule was initially open for 90 days of public comment, and this period was extended for an additional 30 days. It included a proposal to incorporate additional priority species in SIMP, as well as to make other administrative changes.

SIMP has been in effect for more than 1,100 unique species, representing 13 species groups, for approximately 4 years. SIMP was established as a screening tool to identify and deter products derived from Illegal, Unreported, and Unregulated (IUU) fishing, as well as misrepresented seafood from entering the U.S. market. The information required under SIMP can lead to the interdiction of IUU fish and fish products as they enter the United States, but it was not designed to achieve that outcome, nor has that been typically how it functions. It is primarily a permitting, reporting and recordkeeping program that conducts post-entry audits, and in some cases, enforcement inspections and, when potentially illegal imports are identified, follow-up investigations.

It is clear, based on the comments received, combined with feedback received over the past few years, that this is the right time to review SIMP. There are a diverse array of viewpoints, and sometimes unrealistic expectations, on what SIMP should or could be doing. In order to strengthen our impact and effectiveness, it is important to better define our goals, and then identify clear mechanisms to achieve them.

As an integral part of this undertaking, NMFS will actively seek engagement and input from all relevant stakeholder groups, including industry, non-governmental organizations, other Federal agencies, congressional representatives, and foreign governments. NMFS intends to bring together an informal interagency working group to review our approach and identify possible strategies for increasing the effectiveness and impact of SIMP on countering IUU fishing and seafood fraud. This collaborative effort will also explore alternative or complementary approaches available to address seafood traceability for NMFS and its interagency partners. Some questions that NMFS will consider during the review are:

1. Determine the goals: What is the problem or problems that SIMP was designed to address? Are there changes that should be made to the goals? What do we want to achieve and what is the best way to do it?

2. Determine whether the goals are achievable: Are the goals feasible? What does success look like? Are there limitations of resources, technology, or other elements that must be considered in determining whether the goals are achievable?

3. Determine what is needed to achieve the goals: Are there additional authorities needed for NOAA or other agencies to achieve these goals? What new tools are needed to accomplish this goal? Are there existing tools that could be used more effectively? How can we use a whole-of-government approach to achieve these goals?

NMFS will review and consider all aspects of the Program, including the initial constraints that shaped SIMP's original framework. NMFS will use both the public comments received and internal and external program assessments to refine the areas of focus. NMFS also plans to conduct public listening sessions to solicit written and oral feedback from public stakeholders, as well as participating in other engagement opportunities with stakeholders or groups of stakeholders.

The withdrawal of this proposed rule does not preclude NMFS from reinitiating rulemaking concerning the issues addressed in the proposed rule. Should that occur, NMFS will re-propose the action and provide new opportunities for comment. More information on SIMP and the NMFS review are available online at the Agency's website ( https://www.fisheries.noaa.gov/action/noaa-fisheries-withdrawal-its-simp-proposed-rule-and-announcement-comprehensive-review ).

The Mid-Atlantic Fishery Management Council and the Atlantic States Marine Fisheries Commission jointly manage the Atlantic Bluefish Fishery Management Plan (FMP). The FMP requires the specification of annual regulatory limits for up to 3 years at a time, including: an acceptable biological catch (ABC), commercial and recreational annual catch limits (ACL), commercial and recreational annual catch targets (ACT), a commercial quota, a recreational harvest limit (RHL), and other management measures. This action proposes bluefish specifications for the 2024 fishing year, and projects specifications for 2025, based on Council and Commission recommendations.

Recent research track and management track assessments for bluefish (December 2022 and June 2023, respectively) determined that the stock is no longer overfished and overfishing is not occurring. However, the spawning stock biomass has not yet reached its target, so the fishery remains under its rebuilding plan. These proposed specifications would decrease the 2024 acceptable biological catch by 43 percent from 2023, based on recommendations from the Council's Scientific and Statistical Committee (SSC), results from these assessments, and the rebuilding plan for the stock.

The Council's Bluefish Monitoring Committee recommended that no uncertainty buffers be applied to either the commercial or recreational sector in 2024 or 2025, but did recommend that commercial discards be accounted for in the specifications process beginning in fishing year 2024. In prior years, commercial discards have been considered negligible, but with updated assessment information, it is recommended that discards from both sectors be included. Although the stock is no longer overfished and therefore transferring quota between recreational and commercial sectors is no longer prohibited by governing regulations, no sector quota transfer is recommended because the fishery is still under a rebuilding plan. The resulting 2024 specifications would decrease the commercial quota by 43 percent, and the RHL by 15 percent from 2023. At their joint meeting in August 2023, the Council and the Commission's Bluefish Board reviewed and approved these specifications as recommended by the SSC and Monitoring Committee. No changes were recommended to recreational management measures ( i.e., bag limits), as the average recreational harvest since 2021 (11.54 million pounds (lb); 5,234 metric tons (mt)) remains below the proposed RHL for 2024 (11.96 million lb; 5,425 mt). Status quo recreational measures are also intended to promote continued stability and consistency in the fishery while minimizing the risk of an overage in the recreational sector.

Although catch limits are decreasing, neither sector of the fishery is expected to be substantially impacted by this action. Harvest in both sectors has been decreasing in recent years; coastwide commercial landings have not exceeded 2.2 million lb (998 mt) in the last 3 years, and recreational harvest averaged 11.54 million lb (5,234 mt), both lower than the proposed future limits.

This action proposes the Council's recommendations for 2024 and projected 2025 bluefish catch specifications, which are consistent with the SSC and Monitoring Committee recommendations (Table 1). These proposed specifications would decrease catch limits in 2024 based on best available information from the recent assessments and the rebuilding plan, but increases to limits are projected in 2025. A comparison of the current 2023, proposed 2024, and projected 2025 specifications is summarized below in Table 1. As previously mentioned, the Council did not recommend any changes to recreational management measures in these specifications, as the expected recreational landings under the existing measures are likely to achieve the proposed RHL without exceeding it. Therefore, all other Federal management measures, including commercial management measures, recreational season (open all year) and recreational fish size (none), would also remain unchanged under this action.

The coastwide commercial quota is allocated to coastal states from Maine to Florida based on percent shares specified in the FMP. Table 2 provides the proposed commercial state allocations based on the Council-recommended coastwide commercial quotas for 2024 and 2025, and the phased-in changes to the percent share allocations to the states specified in Amendment 7. No states exceeded their allocated quota in 2022, or are projected to do so in 2023; therefore, no accountability measures for the commercial fishery are required for the 2024 fishing year based on the data available at this time.

The catch limits for 2025 were projected based on the new assessment data and the fourth year of the rebuilding plan model. The Council will review the projected 2025 specifications in light of any new information to determine if changes need to be made prior to their implementation. We will publish a notice prior to the 2025 fishing year to confirm these limits as projected or announce any necessary changes.

Pursuant to section 304(b)(1)(A) of the Magnuson Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Atlantic Bluefish FMP, other provisions of the Magnuson-Stevens Act, and other applicable law, subject to further consideration after public comment.

NMFS finds that a 15-day comment period for this action provides a reasonable opportunity for public participation in this action pursuant to Administrative Procedure Act section 553(c) (5 U.S.C 553(c)), while also ensuring that the final specifications are in place for the start of the bluefish fishing year on January 1, 2024. Stakeholder and industry groups have been involved with the development of this action and have participated in public meetings throughout the past year. A prolonged comment period and subsequent potential delay in implementation past the start of the 2024 fishing year would be contrary to the public interest, as it could create confusion both in the bluefish industry around current quotas and with state agencies as they prepare their annual management measures.

This action is exempt from review under Executive Order 12866 because it contains no implementing regulations.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The factual basis for this determination is as follows.

The Councils conducted an evaluation of the potential socioeconomic impacts of the proposed specifications in conjunction with an EA. There are no proposed regulatory changes in this bluefish action, so none are considered in the evaluation. The proposed action would decrease the 2024 ABC by 43 percent, the commercial quota by 43 percent, and the recreational harvest limit by 15 percent from 2023, consistent with the Mid-Atlantic Council SSC's recommendations, the results of the 2023 management track assessment, and the rebuilding plan for the stock. This action proposes no changes to recreational management measures beyond annual catch limits, such as bag limits.

This action would affect entities that participate in commercial bluefish fishing (those that hold commercial bluefish permits), and those with Federal for-hire (party/charter) recreational fishing permits for bluefish. Vessels may hold multiple fishing permits and some entities own multiple vessels and/or permits. According to the Northeast Fisheries Science Center commercial ownership database, 479 commercial fishing affiliate firms landed bluefish during the 2020-2022 period (the most recent and complete data available), with 473 of those commercial entities categorized as small businesses and 6 categorized as large businesses. Analyses indicate that bluefish revenues contributed less than two percent of the annual total gross receipts on average for those small businesses that landed bluefish in those years. For the recreational for-hire fishery, 412 for-hire affiliate firms generated revenues from recreational fishing for various species during 2020-2022. All of those business affiliates are categorized as small businesses, but it is not possible to derive the proportion of overall revenues for these for-hire firms resulting from fishing activities for an individual species such as bluefish. Nevertheless, given the popularity of bluefish as a recreational species in the Mid-Atlantic and New England, it is likely that revenues generated from bluefish may be somewhat important for many of these firms at certain times of the year.

Overall, proposed specifications for 2024 and projected specifications for 2025 are expected to provide similar fishing opportunities when compared to the 2023 fishing year. Although catch limits are decreasing in both the commercial and recreational sectors under these specifications, this change is not expected to substantially change overall fishing activity, result in catch overages or revenue losses to industry, or substantially impact the bluefish fishery as a whole. Harvest in both sectors has been decreasing in recent years; coastwide commercial landings have not exceeded 2.2 million lb (998 mt) in the last 3 years, and recreational harvest has averaged 11.54 million lb (5,234 mt), both lower than the proposed 2024 limits of 2.4 million lb (1,099 mt) and 11.96 million lb (5,425 mt), respectively. Additionally, this action is expected to provide similar fishing opportunities in the recreational sector compared to the previous year, as there are no proposed changes to the management measures such as recreational bag limits, which are most limiting to fishery behavior. Finally, state quota allocations are still changing, as 2024 is the third year of the phased-in quota re-allocation implemented by Amendment 7 to the Bluefish Fishery Management Plan. Therefore, regionally, there may be different amounts of commercial quota available. Often, fishing behavior and short-term landings are based on market conditions, which are not expected to substantially change as a result of these specifications. As such, this proposed action is not expected to have a substantial impact on the way the fishery operates or the revenue of small entities.

Overall, analyses indicate that the proposed specifications will not substantially change fishing effort, the risk of overfishing, prices/revenues, or fishery behavior. Therefore, the Council concluded, and NMFS agrees, that this action would not have a significant economic impact on a substantial number of small businesses. As a result, an initial regulatory flexibility analysis is not required and none has been prepared.

This action would not establish any new reporting or record-keeping requirements.

This proposed rule contains no new information collection requirements under the Paperwork Reduction Act of 1995.