On October 3, 2023 (88 FR 67929), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to the TN Americas LLC, Standardized NUHOMS® Horizontal Modular Storage System for Irradiated Nuclear Fuel listing within the “List of approved spent fuel storage casks” to include Renewed Amendment No. 18 to Certificate of Compliance (CoC) No. 1004. Renewed Amendment No. 18 amends the certificate of compliance to:

• provide a 24PTH improved basket design (Type 3) using staggered plates similar to EOS-37PTH to simplify construction, reduce weight, and improve fabricability;

• delete Appendix A inspections, tests, and evaluations requirement for initial horizontal storage module delta temperature measurement with a loaded dry shielded canister (DSC);

• clarify Appendix B technical specification (TS) Section 4.3.2 language related to transfer casks with liquid neutron shields regarding the OS197L transfer cask (TC), which is significantly different than other TC models;

• update Appendix C American Society of Mechanical Engineers (ASME) Code Alternatives Table C-12 to add code alternative NG-4231.1;

• clarify in Appendix B TS LCO 3.1.3 that there is no transfer time limit associated with the 24PTH-S-LC DSC, consistent with existing updated final safety analysis report analysis;

• incorporate administrative controls during short duration independent spent fuel storage installation handling operations that are unanalyzed for tornado hazards in accordance with the guidance contained in NRC EGM 22-001, “Enforcement Discretion for Noncompliance of Tornado Hazards Protection Requirements at Independent Spent Fuel Storage Installations”; and

• change the horizontal storage module concrete, to allow use of different cement, which is a blended Portland cement meeting the requirements of the American Society for Testing and Materials C595 standard.

This amendment also includes an editorial correction to the certificate of compliance name/address information by adding a missing space between 7160 and Riverwood Drive.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on December 18, 2023. The NRC did not receive any comments on the direct final rule. Therefore, this direct final rule will become effective as scheduled.

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Deutsche Aircraft GmbH Model 328-100 airplanes. The NPRM published in the Federal Register on August 14, 2023 (88 FR 54939). The NPRM was prompted by AD 2023-0081, dated April 18, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0081) (also referred to as the MCAI). The MCAI states a report of finding cracks in fuselage frames FR24 and FR26. Investigation of the root cause for cracking is ongoing. This condition, if not detected and corrected, could lead to failure of load carrying structural elements, possibly resulting in reduced integrity of the fuselage.

In the NPRM, the FAA proposed to require a one-time detailed and eddy current inspection of fuselage FR24 and FR26 (left and right sides), performing corrective actions if necessary, and reporting the inspection results, as specified in EASA AD 2023-0081. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1707.

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

The FAA added paragraph (h)(5) of this AD to clarify that any cracks found during the required inspections must be repaired before further flight. The FAA has determined that, because of the safety implications and consequences associated with that cracking, any cracking in the fuselage FR24 and FR26 must be repaired before further flight.

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

EASA AD 2023-0081 specifies procedures for a one-time detailed and eddy current inspection of fuselage FR24 and FR26 (left and right sides) for damage (cracks). Depending on the inspection results, EASA AD 2023-0081 also specifies corrective action, including obtaining and following instructions for crack repair. EASA AD 2023-0081 also requires reporting the inspection results to Deutsche Aircraft GmbH. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA considers that this AD is an interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 21 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

Background

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of EASA ADs with the most recent being EASA AD 2023-0001, dated January 4, 2023 (EASA AD 2023-0001), to correct an unsafe condition on Airbus Helicopters Model SA 365 C1, SA 365 C2, SA 365 C3, and SA 365 N helicopters, all manufacturer serial numbers.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters Model SA-365C1, SA-365C2, and SA-365N helicopters. The NPRM published in the Federal Register on September 1, 2023 (88 FR 60402). The NPRM was prompted by reports of damaged dual bearings that are installed on the TGB. The NPRM proposed to require repetitively inspecting the TGB magnetic plug for particles, analyzing any particles collected, taking corrective actions if necessary, and reporting certain information. The NPRM also proposed to allow installing an affected dual bearing on a helicopter if certain actions are accomplished, as specified in EASA AD 2023-0001.

The FAA is issuing this AD to inspect for particles in the TGB magnetic plug. The unsafe condition, if not addressed, could result in loss of yaw control and subsequent loss of control of the helicopter. See EASA AD 2023-0001 for additional background information.

The FAA received no comments on the NPRM or on the determination of the costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. Except for clarifying the conditions that could exist after performing a metallurgical analysis in paragraph (h)(17) of this AD and minor editorial changes, this AD is adopted as proposed in the NPRM.

EASA AD 2023-0001 requires continuing close monitoring for certain helicopters and analyzing any particles collected during required inspections, repetitively inspecting the magnetic plug of the TGB for particles, and corrective actions. Corrective actions include replacing or repairing an affected TGB; sending certain information and affected parts to the manufacturer; accomplishing a metallurgical analysis; and replacing an affected dual bearing and other affected parts.

Additionally, EASA AD 2023-0001 requires for certain helicopters with an affected dual bearing installed, performing a one-time inspection of the dual bearing.

EASA AD 2023-0001 allows a dual bearing part number (P/N) 360A33-4052-00 installed on a control rod of a TGB P/N 365A33-4000-00, 365A33-4000-01, 365A33-4000-02, or 365A33-5000-00 to be installed on an aircraft, if certain requirements are met.

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. AS365-05.00.83 and Airbus Helicopters ASB No. SA365-05.35, both Revision 0, and both dated February 7, 2022. This service information specifies procedures to inspect the magnetic plug of the TGB for particles; analyze and define the particles collected; replace an affected TGB and an affected dual bearing; perform a metallurgical analysis; and report certain information to the manufacturer.

The FAA also reviewed Airbus Helicopters ASB No. AS365-65.00.20 Revision 0, dated November 23, 2022. This service information specifies procedures for a one-time inspection of a certain dual bearing and replacement of the dual bearing if any particles are found.

Additionally, the FAA reviewed Airbus Standard Practices Manual, 20-08-01-601, Periodical monitoring of lubricating oil checking elements, dated July 7, 2020. This service information specifies procedures for analyzing collected particles.

The FAA considers this AD to be an interim action. If final action is later identified, the FAA might consider further rulemaking then.

EASA AD 2023-0001 applies to Airbus Helicopters Model SA 365 C3 helicopters, whereas this AD does not because that model is not FAA type-certificated.

This AD clarifies that Model SA-365N helicopters with an affected dual bearing installed that has an unknown total number of hours time-in-service accumulated on the dual bearing are subject to certain requirements in this AD, whereas EASA AD 2023-0001 is unclear about those parts with an accumulated usage that cannot be determined.

EASA AD 2023-0001 does not clarify what is considered an anomaly regarding the chip detector and conical housing chip detector; whereas, for this AD, an anomaly may be indicated by the magnetic component of the TGB chip detector or the conical housing chip detector not being magnetized. EASA AD 2023-0001 also does not clarify what is considered good condition regarding the chip detector or conical housing chip detector; whereas, for this AD, good condition for the chip detector is indicated when there are no signs of wear on the locking systems (including wear on the bayonets and slotted tubes) and good condition for the conical housing chip detector is when the conical housing chip detector is magnetized.

Where EASA AD 2023-0001 describes a doubt concerning the physical characteristics of any collected particles, this AD requires performing a metallurgical analysis. If there is any doubt remaining after performing the metallurgical analysis, EASA AD 2023-0001 requires contacting Airbus, whereas this AD requires removing an affected TGB from service and replacing it with an airworthy part, or repairing the TGB in accordance with a method approved by the FAA, EASA, or Airbus Helicopters' Design Organizational Approval (DOA) if the type, size, or classification of any collected particle cannot be determined after performing a metallurgical analysis.

If any particles (including abrasion-type particles) are found on the magnetic plug during any inspection that are outside the limits, EASA AD 2023-0001 requires replacing each affected dual bearing with a serviceable dual bearing, and replacing the TGB, whereas this AD requires removing each affected dual bearing and replacing with a serviceable dual bearing, or removing the TGB from service and replacing it with an airworthy TGB, or repairing the TGB in accordance with a method approved by the FAA, EASA, or Airbus Helicopters' DOA.

Service information referenced in EASA AD 2023-0001 permits a pilot to perform a magnetic plug check, whereas this AD does not.

Service information referenced in EASA AD 2023-0001 specifies sending compliance forms, certain parts, and particles to the manufacturer, whereas this AD requires reporting certain information but does not require sending any parts or particles to the manufacturer.

The FAA estimates that this AD affects 1 helicopter of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the magnetic plug of the TGB for particles takes about 1 work-hour for an estimated cost of $85 per inspection and up to $85 for the U.S. fleet, per inspection cycle.

Inspecting a dual bearing takes about 16 work-hours for an estimated cost of $1,360 per inspection and up to $1,360 for the U.S. fleet. If required, replacing a dual bearing takes about 1 additional work-hour following the inspection and parts cost about $6,678 for an estimated cost of $6,763 per dual bearing replacement.

If required, analyzing collected particles takes about 1 work-hour for an estimated cost of $85 per helicopter. If required, a metallurgical analysis takes about 1 work-hour for an estimated cost of $85 per instance.

If required, replacing an O-ring takes about 1 work-hour and parts cost about $100 for an estimated cost of $185 per O-ring.

If required, replacing a TGB takes about 8 work-hours and parts cost about $155,302 for an estimated cost of $155,982 per replacement.

The FAA has received no definitive data for the repair cost of a TGB.

If required, reporting information to the manufacturer takes about 1 work-hour for an estimated cost of $85 per instance.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Embraer S.A. Model ERJ 190-100 STD, -100 LR, -100 IGW, -200 STD, -200 LR, and -200 IGW airplanes. The NPRM published in the Federal Register on August 17, 2023 (88 FR 55956). The NPRM was prompted by AD 2022-12-01, effective December 14, 2022, issued by ANAC (ANAC AD 2022-12-01), which is the aviation authority for Brazil (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed to address structural fatigue. Additionally, an evaluation by the DAH indicated that some structural elements, particularly the wing lower skin stringers, are subject to WFD. A modification is needed before the wing lower skin panel reaches its structural modification point (SMP), and inspections are needed to preclude WFD. ANAC AD 2022-12-01 specifies that it requires a modification of the wing lower skin panels that terminates the repetitive inspections required by ANAC AD 2019-06-01 (which corresponds to FAA AD 2020-04-16, Amendment 39-19853 (85 FR 18435, dated April 2, 2020)) (AD 2020-04-16). Accomplishment of the modification specified in this AD terminates the repetitive inspections required by paragraph (g) of AD 2020-04-16, for the airplanes identified in paragraph (a)(2) of ANAC AD 2022-12-01 only.

In the NPRM, the FAA proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, and for certain airplanes to require a structural modification of the wing lower skin panels, as specified in ANAC AD 2022-12-01. The FAA is issuing this AD to address cracking in principle structural elements. The unsafe condition, if not addressed, could result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1635.

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

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

ANAC AD 2022-12-01 describes new or more restrictive airworthiness limitations for airplane structures. For certain airplanes, ANAC AD 2022-12-01 specifies procedures for the incorporation of a certain structural modification ( i.e., reinforcement of left-hand (LH) and right-hand (RH) wing lower skin panels). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES section.

The FAA estimates that this AD affects 33 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

The FAA estimates the total cost per operator for the new revision to the existing maintenance or inspection program to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A350-941 airplanes. The NPRM published in the Federal Register on July 14, 2023 (88 FR 45112). The NPRM was prompted by AD 2023-0051, dated March 10, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0051) (also referred to as the MCAI). The MCAI states that the forward (#1) and rear (#3) main landing gear door (MLGD) hinge axis index washers were found inverted in production (index washer for forward fitting installed at rear fitting and vice versa). This condition, if not detected and corrected, could lead to reduced structural integrity of the MLGD hinge fittings, possibly resulting in the loss of an MLGD during flight, and consequent injury to persons on the ground.

The FAA is issuing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1414.

The FAA received a comment from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

The FAA received additional comments from Delta Air Lines (Delta). The following presents the comments received on the NPRM and the FAA's response to the comments.

Delta requested that an exception should be added to paragraph (h) of the proposed AD stating that the accomplishment of A350 maintenance procedures A350-A-32-12-72-00ZZZ-520Z-A and A350-A-32-12-72-00ZZZ-720Z-A to be utilized with the terminology “Refer to” in lieu of “in accordance with” to allow utilizing only the portions of the maintenance procedure that pertains to the replacement of the index washers, index pins and axis assemblies, one at a time, first the FWD side and then the AFT side in lieu of removing and re-installing the entire MLGD when replacing the affected parts per the proposed AD. Delta stated that, alternatively, the exception could identify specific steps and paragraphs of the maintenance procedures that are utilized for replacement of the affected parts only. Delta contends that the removal of the entire MLGD appears not to be the intent of Airbus Service Bulletin A350-52-P048 (the service information referenced in EASA AD 2023-0051), the EASA AD, and this proposed AD. Delta noted that the “in accordance with” language in the service information is contradictory to the detailed subsequent steps of the service information.

The FAA agrees the intent was not to remove and re-install the MLGD, but to replace the affected parts. The FAA AD agrees that A350 maintenance procedures A350-A-32-12-72-00ZZZ-520Z-A and A350-A-32-12-72-00ZZZ-720Z-A are for reference when accomplishing the required actions. The FAA added paragraph (h)(2) to this AD to clarify the required actions.

Delta requested an exception should be added to paragraph (h) of the proposed AD stating where maintenance procedure A350-A-52-XX-P048-01ZZZ-93CZ-A, paragraphs C(1)(c)3 & 4, Figure BC refers to Detail E, change to Detail F; and where paragraphs C(2)(c)3 & 4, Figure BD, refers to Detail E, change to Detail F. Delta noted these errors are in the original issue and Revision 01 of Airbus Service Bulletin A350-52-P048.

The FAA has confirmed with the manufacturer that the service information steps are correct and address the unsafe condition and that Figures BC and BD are for reference only. The manufacturer stated that it is considering addressing any errors in a future revision of Airbus Service Bulletin A350-52-P048. The FAA has not changed this AD in this regard.

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

EASA AD 2023-0051 specifies procedures for a one-time detailed inspection of the MLGD forward and rear hinges for incorrectly installed axis index washers and, depending on findings, replacement of the axis index washers.

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

The FAA estimates that this AD affects 23 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition action that would be required based on the results of any required actions. The FAA has no data to determine the number of airplanes that might need this on-condition action:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Embraer Model EMB-505 airplanes. The NPRM published in the Federal Register on July 21, 2023 (88 FR 47092). The NPRM was prompted by AD 2023-02-01R1, effective March 14, 2023 (ANAC AD 2023-02-01R1) (also referred to as the MCAI), issued by ANAC, which is the aviation authority for Brazil. The MCAI states that an occurrence of corrosion was found on the clutch retaining bolt of the aileron autopilot servo mount. This condition could result in failure of the clutch retaining bolt of the aileron autopilot servo mount, which could disengage the clutch from the drive pin and jam the aileron controls, resulting in reduced controllability of the airplane.

In the NPRM, the FAA proposed to require repetitively replacing the clutch retaining bolt and washer of the aileron autopilot servo mount, as specified in ANAC AD 2023-02-01R1. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1504.

The FAA received comments from Embraer and NetJets. The following presents the comments received on the NPRM and the FAA's response to each comment.

Embraer requested that paragraph (h)(3) of the proposed AD, “Exceptions to ANAC AD 2023-02-01R1”, be revised to state “. . . this AD requires compliance with the most restrictive criteria for each applicability range (in months and flight hours) in Table 01 of ANAC AD 2023-02-01R1.” The commenter explained that this change would clarify the language within this exception so that operators would know that not all affected aircraft would have to perform the task within the most restrictive criteria of within 3 months or 50 flight hours.

The FAA agrees with the commenter's request and revised paragraph (h)(3) of this AD accordingly.

NetJets requested that a credit for previous actions paragraph be added to the proposed AD, similar to paragraph (c) of ANAC AD 2023-02-01R1. The commenter explained that this change would allow operators to sign off the compliance to the FAA AD using Embraer Service Bulletin SB505-22-0004, Revision 01, dated September 23, 2022 (Embraer SB505-22-0004, Revision 01); Revision 02, dated September 30, 2022 (Embraer SB505-22-0004, Revision 02); or Revision 03, dated October 10, 2022 (Embraer SB505-22-0004, Revision 03).

The FAA disagrees with the commenter's request. This AD already implicitly provides credit for certain actions completed prior to the effective date of this AD. Paragraph (g) of this AD requires operators to comply with all required actions and compliance times specified in ANAC AD 2023-02-01R1, except as specified in paragraphs (h) and (i) of this AD. Paragraph (h) of this AD is “Exceptions to ANAC AD 2023-02-01R1” and paragraph (i) of this AD is “No Reporting Requirement.” Paragraph (h) of this AD does not include an exception to paragraph (c) of ANAC AD 2023-02-01R1, which is identified as “Credit for previous actions.” Paragraph (c) of ANAC AD 2023-02-01R1 provides credit for replacement of the aileron autopilot servo mount clutch retaining bolt and washer using Embraer Service Bulletin SB505-22-0004, dated September 22, 2023; Embraer SB505-22-0004, Revision 01; Embraer SB505-22-0004, Revision 02; or Embraer SB505-22-0004, Revision 03. Because this AD does not include an exception to paragraph (c) of ANAC AD 2023-02-01R1, it allows operators to take credit for actions done prior to the effective date of this AD using revisions of Embraer SB505-22-0004 that are earlier than Revision 04, dated January 6, 2023, as provided by paragraph (c) of ANAC AD 2023-02-01R1; therefore, there is no need to revise this AD per the commenter's request.

The FAA has not changed this AD regarding this issue.

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

ANAC AD 2023-02-01R1 specifies procedures for replacing the clutch retaining bolt and washer of the aileron autopilot servo mount.

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

The FAA estimates that this AD affects 505 airplanes of U.S. registry.

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

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, all of the costs associated with the initial bolt and washer replacement may be covered under warranty.

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-02-13, Amendment 39-19827 (85 FR 6744, February 6, 2020) (AD 2020-02-13). AD 2020-02-13 applied to certain Dassault Aviation Model FAN JET FALCON, FAN JET FALCON SERIES C, D, E, F, and G. AD 2020-02-13 required revising the existing maintenance or inspection program, as applicable, to incorporate new maintenance requirements and airworthiness limitations. The FAA issued AD 2020-02-13 to address, among other things, fatigue cracking and damage in principal structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.

The NPRM published in the Federal Register on August 11, 2023 (88 FR 54500). The NPRM was prompted by AD 2023-0059, dated March 16, 2023 (EASA AD 2023-0059) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to continue to require certain actions in AD 2020-02-13 and to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0059. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1705.

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

The FAA has added paragraph (l) of this AD to clarify that this AD terminates the requirements of paragraph (g)(1) of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010) (AD 2010-26-05), for Dassault Aviation Model FAN JET FALCON, FAN JET FALCON SERIES C, D, E, F, and G airplanes on which the supplemental structural inspection program (SSIP) has been incorporated into the airplane's maintenance program only. The FAA has also redesignated subsequent paragraphs accordingly. The FAA also added paragraph (b)(2) of this AD to specify that AD 2010-26-05 is affected by this AD. AD 2020-02-13 included this terminating action, but the FAA inadvertently omitted it from the proposed AD.

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

The FAA reviewed EASA AD 2023-0059. This service information specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires Chapter 5-40-01, Airworthiness Limitations, Revision 10, effective January 1, 2019, of the Dassault Aviation Falcon 20 Maintenance Manual, which the Director of the Federal Register approved for incorporation by reference as of March 12, 2020 (85 FR 6744, February 6, 2020).

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

The FAA estimates that this AD affects 61 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-02-13 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-23-10, Amendment 39-21326 (85 FR 73404, November 18, 2020) (AD 2020-23-10). AD 2020-23-10 applied to certain Dassault Aviation Model FAN JET FALCON and FAN JET FALCON SERIES C, D, E, F, and G airplanes. AD 2020-23-10 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2020-23-10 to address, among other things, fatigue cracking and damage in principle structural elements; such fatigue cracking and damage could result in reduced structural integrity of the airplane.

The NPRM published in the Federal Register on August 14, 2023 (88 FR 54935). The NPRM was prompted by AD 2023-0060, dated March 16, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0060) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to continue to require the actions in AD 2020-23-10 and to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0060. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1651.

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

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

EASA AD 2023-0060 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2019-0141, dated June 17, 2019, which the Director of the Federal Register approved for incorporation by reference as of December 23, 2020 (85 FR 73404, November 18, 2020).

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

The FAA estimates that this AD affects 168 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-23-10 to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2018-02-10, Amendment 39-19163 (FR 83 2896, January 22, 2018), (“AD 2018-02-10”). AD 2018-02-10 applied to PW Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines with ODC part number (P/N) 50J775 or P/N 50J930, installed. The NPRM published in the Federal Register on August 8, 2023 (88 FR 53406). The NPRM was prompted by an updated analysis by the engine manufacturer, which determined that cracks on the ODC originated due to high stress in the area between Tt3 boss and thermocouple bracket boss. PW developed a modification to improve the surface area between Tt3 boss and thermocouple bracket boss to reduce the ODC's susceptibility to cracking.

Consequently, the FAA determined that it is necessary to expand the applicability to all ODC P/Ns, adjust the initial FPI threshold for the ODC to improve the inspection program, and to require certain ODCs to be replaced with an ODC that has been modified to lower the stresses in the area between Tt3 boss and thermocouple bracket boss.

In the NPRM, the FAA proposed to continue to require retain certain requirements of AD 2018-02-10. In the NPRM, the FAA also proposed to require revising the ALS of the existing airplane maintenance manual or ICA and your existing approved maintenance program, as applicable, to include piece-part inspections of the ODC; expanding the applicability to include all engines; initial and repetitive FPIs, and depending on the results of the FPI, require removal or re-inspection of the ODC. Lastly the NPRM proposed to require replacement of certain ODCs with a part eligible for installation at next piece-part exposure.

The FAA received comments from three commenters. Commenters included United Airlines, The Boeing Company, and Air Lines Pilots Association, International. All commenters supported the NPRM without change.

The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes which include updating the manufacturer contact information, this AD is adopted as proposed in the NPRM.

The FAA reviewed PW Alert Service Bulletin (ASB) PW4G-112-A72-347, Revision 4, dated September 1, 2022. This ASB provides guidance on performing FPIs on certain bosses of the ODC. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES.

The FAA reviewed PW Service Bulletin (SB) PW4G-112-72-357, dated February 25, 2019. This SB provides procedures to modify and re-identify ODC assemblies to lower the stresses in the area between the Tt3 boss and the thermocouple bracket boss.

The FAA estimates that this AD, affects 108 engines installed on airplanes of U.S. registry. The FAA has no way to determine the number of operators that will replace the ODC with a modified ODC or a zero-time ODC. As a result, the total cost on U.S. operators for these actions is not estimated.

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all RRD Model Trent 1000-A2, Trent 1000-AE2, Trent 1000-C2, Trent 1000-CE2, Trent 1000-D2, Trent 1000-E2, Trent 1000-G2, Trent 1000-H2, Trent 1000-J2, Trent 1000-K2, and Trent 1000-L2 engines. The NPRM published in the Federal Register on July 31, 2023 (88 FR 49361). The NPRM was prompted by EASA AD 2023-0027, dated January 31, 2023 (EASA AD 2023-0027) (also referred to as the MCAI) issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that manufacturer inspections detected cracking and separation of blade pairs in the weld region of certain LPT stage 1 blade assemblies. A blade assembly consists of a pair of blades welded together at the outer shroud. There are 85 LPT stage 1 blade assemblies in one set. Such cracking and separation could cause failure of affected parts and damage to the LPT module.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1637.

In the NPRM, the FAA proposed to require initial and repetitive inspections of affected LPT stage 1 blade assemblies for cracking or separation and, depending on the results of the inspections, reduction of the inspection interval or replacement of the LPT stage 1 blade set and disk. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received one comment from The Boeing Company (Boeing). Boeing supported the NPRM without change.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2023-0027, which specifies procedures for inspection of affected LPT stage 1 blade assemblies and replacement of the LPT stage 1 blade set and disk. EASA AD 2023-0027 also specifies a reduction of the repetitive inspection intervals if cracking or separation is detected and meets certain criteria.

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

The FAA estimates that this AD affects 26 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-08-02, Amendment 39-21496 (86 FR 26651, May 17, 2021), (AD 2021-08-02). AD 2021-08-02 applied to all Safran Model Arriel 2D and Arriel 2E engines. AD 2021-08-02 required replacing certain critical parts before reaching their published in-service life limits, performing scheduled maintenance tasks before reaching their published periodicity, and performing unscheduled maintenance tasks when the engine meets certain conditions. As a terminating action, AD 2021-08-02 required operators to revise the ALS of their existing approved aircraft maintenance program (AMP) by incorporating the revised airworthiness limitations and maintenance tasks. The FAA issued AD 2021-08-02 to prevent failure of the engine.

The NPRM published in the Federal Register on October 31, 2022 (87 FR 65535). The NPRM was prompted by EASA AD 2022-0083, dated May 11, 2022 (EASA AD 2022-0083), issued by EASA, which is the Technical Agent for the Member States of the European Union (referred to after this as the MCAI), which supersedes EASA AD 2018-0273, dated December 13, 2018 (EASA AD 2018-0273). The MCAI states that the manufacturer published a revised ALS introducing new and more restrictive maintenance tasks and airworthiness limitations. These new or more restrictive maintenance tasks and airworthiness limitations include initial and repetitive inspections for clogging of the power turbine air pressurization pipe.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1311.

In the NPRM, the FAA proposed to require revising the ALS of the operator's existing approved maintenance or inspection program, as applicable, to incorporate new and more restrictive airworthiness limitations.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2021-08-02. The SNPRM published in the Federal Register on July 14, 2023 (88 FR 45109). The SNPRM was prompted by the FAA's determination that the NPRM contained an inaccurate reference to a certain paragraph of EASA AD 2022-0083 and that a reduced compliance time of 90 days is necessary. In the SNPRM, the FAA proposed to require revising the ALS of the existing EMM or ICA and the existing approved maintenance or inspection program, as applicable, to incorporate the actions specified in paragraph (1) of the MCAI, described previously, except as discussed under “Differences Between this AD and the MCAI.” The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received no comments on the SNPRM or on the determination of the costs.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the SNPRM.

The FAA reviewed EASA AD 2022-0083, which specifies instructions for accomplishing the actions specified in the applicable ALS, including performing maintenance tasks, replacing life-limited parts, and revising the existing approved AMP by incorporating the limitations, tasks, and associated thresholds and intervals described in the ALS.

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

EASA AD 2022-0083 applies to Arriel 2D, 2E, 2H, 2L2, and 2N model turboshaft engines, whereas this AD only applies to Model Arriel 2D and Arriel 2E engines. Arriel 2H, 2L2, and 2N engines are not U.S. type certificated.

Paragraph (1) of EASA AD 2022-0083 specifies to replace each component before exceeding the applicable life limit and, within the thresholds and intervals, accomplishing all applicable maintenance tasks after its effective date. Instead, this AD requires revising the ALS of the existing EMM or ICA and the existing approved maintenance or inspection program, as applicable, by incorporating the requirements specified in paragraph (1) of EASA AD 2022-0083 within 90 days after the effective date of this AD.

The FAA estimates that this AD affects 426 engines installed on helicopters of U.S. Registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all MHI RJ Aviation ULC Model CL-600-2B19 (Regional Jet Series 100 & 440) airplanes. The NPRM published in the Federal Register on July 12, 2023 (88 FR 44226). The NPRM was prompted by AD CF-2023-19, dated March 13, 2023 (Transport Canada AD CF-2023-19) (also referred to after this as the MCAI), issued by Transport Canada, which is the aviation authority for Canada. The MCAI states there was a report of a missing 12-inch piece of insulation in the 14th stage bleed ducts installed in both left hand (LH) and right hand (RH) engine pylon areas.

In the NPRM, the FAA proposed to require, for certain airplanes, inspecting the engine pylon structure for discrepancies and repair if necessary. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate a new CMR task.

The FAA is issuing this AD to address missing or damaged insulation in the engine pylon area. The unsafe condition, if not addressed, could result in the bleed duct to radiate heat to the surrounding structure and, if not corrected, could lead to the loss of the structural integrity of the engine pylon and possible loss of the engine.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1404.

The FAA received comments from Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

The FAA received additional comments from Air Wisconsin Airlines and MHI RJ Aviation ULC (MHI RJ). The following presents the comments received on the NPRM and the FAA's response to each comment.

MHI RJ requested that the FAA revise the proposed AD to refer to MHI RJ Temporary Revision 2A-77, dated May 8, 2023, which was issued to revise the phase-in (initial) compliance time in MHI RJ Temporary Revision 2A-76, dated September 29, 2022, from 40 months to 48 months.

The FAA concurs with the request and has revised paragraph (h) of this AD to refer to MHI RJ Temporary Revision 2A-77, dated May 8, 2023, for the new CMR task. The FAA has also provided credit for using MHI RJ Temporary Revision 2A-76, dated September 29, 2022, in paragraph (j)(2) of this AD. The CMR task and interval is the same in both temporary revisions. In addition, there is no change to initial compliance time because paragraph (j) of the proposed AD did not refer to MHI RJ Temporary Revision 2A-76, dated September 29, 2022, for the initial compliance time and instead specified “The initial compliance time for doing the task is within 48 months or 6,600 flight hours, whichever occurs first after the effective date of this AD.” The compliance time change in MHI RJ Temporary Revision 2A-77, dated May 8, 2023, is within the initial compliance time specified in this AD.

MHI RJ stated it noticed that the FAA is re-starting the clock in paragraph (h) of the proposed AD from the effective date of the AD rather than the issue date of the temporary revision: MHI RJ states that the task interval should start from September 29, 2022, which is the issue date of MHI RJ Temporary Revision 2A-76. MHI RJ stated that, in this particular case, the start of the compliance from September 29, 2022, is critical for safety. The FAA infers that MHI RJ is requesting that the agency reduce the initial compliance time specified in paragraph (h) of this AD by referring to the September 29, 2022, date instead of the effective date of this AD.

The FAA acknowledges MHI RJ's concern. However, reducing the compliance time in paragraph (h) of this AD would result in a more restrictive compliance time that would necessitate issuing a supplemental NPRM, delaying the issuance of the final rule. Since the detailed visual inspection of spar FS654.50, spar FS672.20, and the firewall for discrepancies specified in paragraph (g) of this AD would be delayed if a supplemental NPRM is issued, any increase in the level of safety by reducing the compliance time in paragraph of (h) of this AD may be offset by delaying the inspections in paragraph (g) of this AD. The FAA has determined to delay this action is not appropriate in this case as the compliance times in this AD will ensure an acceptable level of safety.

Air Wisconsin Airlines asked if the “40 months” specified in MHI RJ Temporary Revision 2A-76, dated September 29, 2022, is in error. Air Wisconsin Airlines noted that both paragraphs (g) and (h) of the proposed AD mention “within 48 months.”

The FAA agrees to clarify. As stated previously, MHI RJ Temporary Revision 2A-76, dated September 29, 2022, was revised by MHI RJ Temporary Revision 2A-77, dated May 8, 2023, to correct the “40 months” and change it to “48 months.” The FAA has not changed this AD in this regard.

MHI RJ requested that the proposed AD should not only mention missing insulation but damaged insulation as well and stated the sentence in paragraph (e) of the proposed AD should read: “The FAA is issuing this AD to address missing or damaged insulation in the engine pylon area.”

The FAA concurs and has revised paragraph (e) of this AD accordingly. The tasks associated with the new CMR task specifies inspecting for damaged insulation as well as missing insulation. Therefore, it is accurate to state that the FAA is issuing this AD to address both conditions.

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

The FAA reviewed MHI RJ Service Bulletin 601R-54-006, Revision A, dated May 24, 2023. This service information specifies procedures for doing a detailed visual inspection of spar FS654.50, spar FS672.20, and the firewall for discrepancies, including corrosion, cracks, web waviness or flatness and damaged fasteners.

The FAA reviewed MHI RJ Temporary Revision 2A-77, dated May 8, 2023. This service information specifies a new CMR task, number C36-12-133-01, “Detailed Visual Inspection for missing insulation/heat shield on the 14th stage bleed duct, running through the pylon area between FS654 and FS672.”

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

The FAA estimates that this AD affects 338 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the agency estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-15-07, Amendment 39-21170 (85 FR 43682, July 20, 2020) (AD 2020-15-07). AD 2020-15-07 applied to RRD RB211-524G2-19, RB211-524G2-T-19, RB211-524G3-19, RB211-524G3-T-19, RB211-524H2-19, RB211-524H2-T-19, RB211-524H-36, and RB211-524H-T-36 model turbofan engines with LPT stage 1 disks, P/N UL37606, UL37607, UL37608, UL37722, or UL37790, installed. AD 2020-15-07 required replacement of the LPT stage 1 disk before it reaches its new Declared Safe Cycle Limit (DSCL) or within 25 flight cycles after the effective date of the AD, whichever occurs later. The FAA issued AD 2020-15-07 to prevent failure of the LPT stage 1 disk.

The NPRM published in the Federal Register on July 12, 2023 (88 FR 44235). The NPRM was prompted by AD 2022-0237, dated December 2, 2022 (EASA AD 2022-0237) (also referred to as the MCAI), issued by EASA, which is the Technical Agent for the Member States of the European Union. The MCAI states that further investigation by the manufacturer identified additional part-numbered LPT stage 1 disks affected by the unsafe condition. As a result of this finding, RRD published revised service information, which includes the additional affected LPT stage 1 disk P/Ns.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1399.

In the NPRM, the FAA proposed to include additional LPT stage 1 disks and require accomplishing the actions specified in the MCAI described previously, except for any differences identified as exceptions in the regulatory text of the NPRM. The FAA is issuing this AD to prevent failure of the LPT stage 1 disk, which if not addressed, could result in uncontained release of high-energy debris from the engine, in-flight shutdown of the engine, damage to the engine, and damage to the airplane.

The FAA received a comment from the Air Line Pilots Association, International (ALPA) and The Boeing Company who supported the NPRM without change.

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2022-0237, which specifies procedures for replacement of the LPT stage 1 disk and reducing the DSCL for LPT stage 1 disks.

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

The FAA estimates that this AD affects 18 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

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

Background

The final regulations (TD 9981) that are the subject of this correction are under section 509(a) of the Code.

Accordingly, the final regulations (TD 9981) that are the subject of FR Doc. 2023-22286, published on October 16, 2023, are corrected on page 71298, in the first column, the sixth through eighth lines under the heading “Statement of Availability of IRS Documents” are corrected to read “visiting the IRS website at: https://www.irs.gov/irb/2014-02_IRB#NOT-2014-4”.

I. Background

On March 11, 2021, the American Rescue Plan Act of 2021 (ARPA) was signed into law. 1 The ARPA amended Title VI of the Social Security Act to add sections 602 and 603, which established the State and Local Fiscal Recovery Funds (SLFRF). 2 The SLFRF program provides support to State, local, territorial, and Tribal governments (together, recipients) to mitigate the fiscal effects of the COVID-19 public health emergency. 3 As enacted in 2021, recipients are authorized to use SLFRF award funds to respond to the COVID-19 public health emergency or its negative economic impacts; to provide premium pay to essential workers; to provide government services to the extent of a reduction in a recipient's revenue due to the COVID-19 public health emergency; or to make necessary investments in water, sewer, or broadband infrastructure. 4 On November 15, 2021, the Infrastructure Investment and Jobs Act amended the SLFRF program to authorize recipients to use funds to satisfy any non-federal match requirement of an authorized Bureau of Reclamation project. 5 On December 29, 2022, the Consolidated Appropriations Act, 2023 (2023 CAA), further amended the SLFRF program to authorize recipients to use funds to provide emergency relief from natural disasters or their negative economic impacts; to use funds for projects eligible under certain Department of Transportation programs (Surface Transportation projects); and to use funds for projects that are eligible under Title I of the Housing and Community Development Act of 1974 (Title I projects). 6 The 2023 CAA also codified the $10 million “standard allowance” under the revenue loss eligible use category. 7

In May 2021, Treasury published an interim final rule (2021 IFR) that implemented the SLFRF program as established by the ARPA. 8 In January 2022, Treasury published a final rule (2022 final rule), which responded to comments received on the 2021 IFR, made several clarifications to the 2021 IFR, and took effect on April 1, 2022. 9 In September 2023, Treasury published an additional interim final rule (2023 IFR) to implement the changes made to the SLFRF program by the 2023 CAA. 10 The 2023 IFR generally did not change the eligible uses discussed in the 2022 final rule.

Sections 602 and 603 of the Social Security Act provide that SLFRF funds may only be used to cover costs incurred by December 31, 2024. 11 The term “cost incurred” does not have a precise meaning in this context. One approach to implementing this requirement might have been to have set December 31, 2024, as the end of the period of performance for SLFRF awards. However, Congress expressly provided for water, sewer, and broadband projects as eligible uses of the SLFRF. If Treasury had set the end of period of performance as December 31, 2024, such that recipients would have had to not only obligate funds but complete expenditures by that date, it would have been very difficult for recipients to engage in significant water, sewer, and broadband projects. Instead, Treasury implemented the statutory requirement by providing that a cost is considered incurred by December 31, 2024, if a recipient has incurred an obligation with respect to the cost by December 31, 2024. 12 Treasury defined “obligation” as “an order placed for property and services and entering into contracts, subawards, and similar transactions that require payment,”  13 which is based on the definition of “financial obligations” in the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance). 14 Treasury then set the period of performance as ending on December 31, 2026, which serves as the deadline for expenditures. Treasury's approach was confirmed by Congress in the amendments made to the SLFRF program in the CAA 2023. In providing authority for recipients to use SLFRF funds for the new eligible use categories, Congress expressly provided for the same framework of separate obligation and expenditure deadlines as is provided for in Treasury's SLFRF award terms and conditions and rule. Specifically, the CAA 2023 amendments provided that funds may be obligated for Surface Transportation projects and Title I projects until December 31, 2024, and must be expended by September 30, 2026.

Treasury is amending the definition of “obligation” to provide additional flexibility to recipients, providing clarification regarding the application of the obligation deadline to subrecipients, and providing guidance regarding the amendment and replacement of contracts and subawards. Additional guidance from Treasury regarding closeout and specific deadlines by which recipients must return funds not obligated or expended will be forthcoming.

Recipients have identified for Treasury that they anticipate difficulty using SLFRF funds to satisfy administrative and other legal requirements applicable to the SLFRF program after the obligation deadline has passed. The expenses associated with these requirements include payroll and benefits of personnel responsible for compliance and reporting and expenses of maintaining records. Recipients will not have incurred an obligation to make many of these types of expenditures prior to the obligation deadline. For example, Treasury understands that recipient personnel costs are typically obligated with respect to one pay period at a time because recipient personnel generally are not subject to long-term employment contracts. As such, expenses of personnel needed to comply with administrative and other legal requirements between the obligation deadline and the end of the period of performance could not be paid for using SLFRF funds (or at least, not after the end of the last pay period that begins prior to the obligation deadline). To the extent that recipients have been covering such expenses and other related administrative expenses under their current negotiated indirect costs rate agreement established with their federal cognizant agency or using the de minimis rate of 10 percent of modified total direct costs pursuant to 2 CFR 200.414(f), they may continue to do so, and this interim final rule will also provide recipients with an additional way to cover such costs when they are charged directly.

In this interim final rule, Treasury is amending the definition of “obligation” previously adopted at 31 CFR 35.3 in response to recipients' concerns. Under the revised definition, an “obligation” continues to include an order placed for property and services and entry into contracts, subawards, and similar transactions that require payment. However, under the revised definition, a recipient is also considered to have incurred an obligation by December 31, 2024, with respect to a requirement under federal law or regulation or a provision of the SLFRF award terms and conditions to which the recipient becomes subject as a result of receiving or expending SLFRF funds. A recipient may use the SLFRF funds to cover the cost of meeting such a requirement. Such expenditures include the following:

• Reporting and compliance requirements: Funds expended to comply with SLFRF reporting and compliance requirements, including in connection with the preparation and submission of recipients' required reports, review of subaward reports or subrecipient monitoring generally, maintenance of data and reporting tools, and review and processing of invoices.

• Single Audit costs: Funds expended for the conduct of audits required by the Single Audit Act, including on audit costs, on preparation for such audits, and on audit resolution, including funds spent by pass-through entities to carry out their responsibilities related to audit resolution of subawards.

• Record retention and internal control requirements: Expenditures to comply with records retention requirements and other expenditures necessary to ensure program integrity through the closeout of the award.

• Property standards: Expenditures on insurance, inventory and other recordkeeping requirements, and maintenance of equipment and other expenditures made to comply with the property standards of the Uniform Guidance (2 CFR 200.310-200.316).

• Environmental compliance requirements: Expenditures to comply with environmental requirements, including to obtain environmental permit renewals.

• Civil rights and nondiscrimination requirements: Expenditures related to comply with civil rights and nondiscrimination requirements, including the investigation of complaints arising from SLFRF-funded projects.

In each case, these would include costs, calculated in compliance with the rules for compensation charged to federal awards set out at 2 CFR 200.430, of recipient personnel whose time is required to comply with these requirements.

To take advantage of this additional flexibility, recipients must (1) determine the amount of SLFRF funds the recipient estimates it will use to cover such expenditures, (2) document a reasonable justification for this estimate, (3) report that amount to Treasury by April 30, 2024, with an explanation of how the amount was determined, and (4) report at award closeout the final amount expended for these costs. Recipients may not include within this estimate any expenditure that will be made after December 31, 2026, other than administrative expenditures necessary to close out the SLFRF award in accordance with the Uniform Guidance. Other than such closeout expenditures, recipients must expend all SLFRF funds by the end of the period of performance regardless of whether they continue to have expenses of the type outlined above after that date. A recipient's estimate of the amount that it expects to expend must be reasonable, based on the considerations listed at 2 CFR 200.404. If a recipient's estimate exceeds what is ultimately expended, the recipient must return the excess funds to Treasury. Treasury will update the SLFRF Compliance and Reporting Guidance to reflect the additional reporting requirements.

In response to suggestions from recipients, Treasury considered whether “costs incurred” could be defined by reference to a standard other than “obligation.” However, for the reasons discussed above, the revised definition of “obligation” provides the best and most reasonable interpretation of the statutory requirement for recipients to incur costs by December 31, 2024. For example, some recipients recommended that Treasury revise the rule to define “costs incurred” by reference to recipient appropriation, budget, or allocation processes. This approach would not provide a standard that could be applied consistently across recipients. Further, as noted above, Congress, in the amendments made by the 2023 CAA with respect to the SLFRF program, has confirmed the definition of “costs incurred” by reference to the obligation of funds. The 2023 CAA was more specific than the ARPA, providing that SLFRF funds “shall remain available for obligation” for Surface Transportation projects and Title I projects until December 31, 2024, and that funds obligated for such uses must be expended by September 30, 2026.

Treasury is also amending the provision of the rule requiring repayment of amounts not obligated and expended by the applicable deadlines to align with the amendment to the definition of “obligation.” Pursuant to the amended definition, recipients must still return to Treasury any SLFRF funds not obligated by December 31, 2024, pursuant to entry into a contract or subaward, but need not at that time pay back the amounts they previously reported to Treasury as estimates of the amounts that they will use during the remainder of the period of performance to comply with legal requirements; recipients will be required to repay after December 31, 2026, any part of the estimated amount that is not expended.

Recipients have asked whether the December 31, 2024, obligation deadline applies to subrecipients. Treasury is clarifying that subrecipients are not subject to this deadline. As stated in the SLFRF rule and as referenced above, Treasury defined obligation to include entry into a subaward. A cost is considered to have been incurred once a recipient enters into a subaward that obligates the recipient to cover that cost. Once a recipient has obligated funds, the requirement in the statute and Treasury's rule to obligate funds by December 31, 2024, has been satisfied, such that subrecipients need not themselves also obligate funds received under a subaward by December 31, 2024. (Contractors also do not need to obligate funds received under a contract by December 31, 2024.) It remains the case that all SLFRF award funds must be expended by the recipient and any subrecipients by 2026, given the termination of the period of performance on December 31, 2026. In the case of funds used for Title I projects and Surface Transportation projects, all funds must be expended by September 30, 2026. Further, as the provisions of the Uniform Guidance are generally applicable to the SLFRF program, recipients must comply with the Uniform Guidance provisions regarding the timing of payment to subrecipients as provided in 2 CFR 200.305.

Recipients have asked to what extent they may, after December 31, 2024, amend or replace contracts and subawards entered into prior to that date. In general, recipients may not re-obligate funds or obligate additional funds after the obligation deadline because to do so would violate the statutory deadline by which costs must be incurred. For example, if a contractor requests an unexpected change order due to a cost increase that requires a contract amendment after December 31, 2024, the recipient would not be permitted to obligate additional SLFRF funds to the project because the December 31, 2024, obligation deadline would have passed and the recipient would be required to return to Treasury any funds that had not been obligated by that date. 15

Treasury is clarifying that after December 31, 2024, recipients are permitted to replace a contract or subaward entered into prior to December 31, 2024, if:

(1) the recipient terminates the contract or subaward because of the contractor or subawardee's default, because the contractor or subawardee goes out of business, or because the recipient otherwise determines that the contractor or subawardee will not be able to perform under the contract or carry out the subaward; or

(2) the recipient and contractor or subrecipient mutually agree to terminate the contract or subaward for convenience;  16 or

(3) the recipient terminates the contract or subaward for convenience if the contract or subaward was not properly awarded (such as if the contractor was not eligible to receive the contract), there is clear evidence that the contract or subaward was improper, the recipient documents its determination that the contract or subaward was not properly awarded, and the original contract or subaward was entered into by the recipient in good faith.

A contract will be considered made in good faith for purposes of clause (3) above if the parties followed standard procurement or subaward practices, as applicable, and the contract or subaward was not entered into for the purpose of evading the obligation deadline. A recipient that re-obligates funds to a new contractor or subrecipient after the obligation deadline will be considered to have used its funds to cover an obligation incurred prior to the obligation deadline if any of the three situations above is present and if the original contract or subaward being replaced was entered into by December 31, 2024.

If a recipient enters into a replacement contract or subaward, the recipient still must expend all funds by the expenditure deadline. Treasury will update the SLFRF Compliance and Reporting Guidance to provide a means for recipients to report any contract or subaward replacements after the December 31, 2024, obligation deadline. Recipients should maintain documentation to justify their determinations, which should include an analysis of the factors discussed above. Treasury may ask recipients to provide this information in their periodic reports.

Treasury is seeking comment from recipients regarding this interim final rule, and in particular, responses to the following question: What are the advantages and disadvantages of the change made by this interim final rule to the definition of “obligation”?

This interim final rule is being issued without advance notice and public comment to allow for immediate implementation of the amendment to the definition of “obligation” at 31 CFR 35.3. Immediate implementation of this amendment will enable recipients to complete their internal budgeting processes in time to meet the statutory deadline to incur costs by December 31, 2024. As discussed below, the requirements of advance notice and public comment do not apply “to the extent that there is involved . . . a matter relating to agency . . . grants.” This interim final rule revises the standard pursuant to which recipients satisfy the statutory requirement to incur costs for eligible uses of SLFRF funds by December 31, 2024. In addition and as discussed below, the Administrative Procedure Act provides an exception to ordinary notice-and-comment procedures “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” This good cause justification also supports waiver of the 60-day delayed effective date for major rules under the Congressional Review Act at 5 U.S.C. 808(2). Although this interim final rule is effective immediately, comments are solicited from interested members of the public and from recipient governments on all aspects of this interim final rule. These comments must be received on or before December 20, 2023.

This interim final rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, as amended.

Executive Order 13132 (entitled Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on state, local, and Tribal governments, and is not required by statute, or preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This interim final rule does not have federalism implications within the meaning of the Executive Order and does not impose substantial, direct compliance costs on state, local, territorial, and Tribal governments or preempt state law within the meaning of the Executive Order. The compliance costs are imposed on state, local, territorial, and Tribal governments by sections 602 and 603 of the Social Security Act. Pursuant to the requirements set forth in section 8(a) of Executive Order 13132, Treasury certifies that it has complied with the requirements of Executive Order 13132.

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., generally requires public notice and an opportunity for comment before a rule becomes effective. However, the APA provides that the requirements of 5 U.S.C. 553 do not apply “to the extent that there is involved . . . a matter relating to agency . . . grants.” This interim final rule implements statutory conditions on recipients' eligible uses of their SLFRF award funds. The rule is thus “both clearly and directly related to a federal grant program.” National Wildlife Federation v. Snow, 561 F.2d 227, 232 (D.C. Cir. 1976). The rule sets forth the “process necessary to maintain state . . . eligibility for federal funds,” id., as well as other “integral part[s] of the grant program,” Center for Auto Safety v. Tiemann, 414 F. Supp. 215, 222 (D.D.C. 1976). As a result, the requirements of 5 U.S.C. 553 do not apply.

The APA also provides an exception to ordinary notice-and-comment procedures “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B); see also 5 U.S.C. 553(d)(3) (creating an exception to the requirement of a 30-day delay before the effective date of a rule “for good cause found and published with the rule”). Assuming 5 U.S.C. 553 applied, Treasury would still have good cause under sections 553(b)(3)(B) and 553(d)(3) for not undertaking section 553's requirements. As discussed above, Congress authorizes recipients to use SLFRF funds for costs incurred for eligible purposes by December 31, 2024. Given the rapidly approaching deadline, there is an urgent need for recipients to undertake the planning necessary for sound fiscal policymaking, which requires clarity on how SLFRF funds will augment and interact with existing budgetary resources. Treasury understands that many recipients require immediate rules on which they can rely, especially in light of the approaching obligation deadline. This statutory urgency and practical necessity are good cause to forego the ordinary requirements of notice-and-comment rulemaking.

This rule is not a major rule for purposes of the Congressional Review Act (5 U.S.C. 801 et seq. ).

The information collections associated with the SLFRF program have been reviewed and approved by OMB pursuant to the Paperwork Reduction Act (44 U.S.C. Chapter 35) (PRA) and assigned control number 1505-0271. Under the PRA, an agency may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a valid OMB control number. This interim final rule is not altering the previously approved information collections for the SLFRF program. The table below includes the estimates of hourly burden under this program that have been approved in previously approved information collections.

The Regulatory Flexibility Act (RFA) generally requires that when an agency issues a proposed rule, or a final rule pursuant to section 553(b) of the APA or another law, the agency must prepare a regulatory flexibility analysis that meets the requirements of the RFA and publish such analysis in the Federal Register . 5 U.S.C. 603, 604.

Rules that are exempt from notice and comment under the APA or any other law are also exempt from the RFA requirements, including the requirement to conduct a regulatory flexibility analysis, when among other things the agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest. Because this rule is exempt from the notice and comment requirements of the APA, Treasury is not required to conduct a regulatory flexibility analysis.

For the reasons stated in the preamble, the United States Department of the Treasury amends 31 CFR part 35 as set forth below:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor did not submit notice of the fireworks display to the Coast Guard with sufficient time remaining before the event to publish an NPRM. Delaying the effective date of this rule to wait for a comment period to run would be impracticable and contrary to the public interest by inhibiting the Coast Guard's ability to protect spectators and vessels from the hazards associated with this fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . For the same reasons discussed in the preceding paragraph, waiting for a 30-day notice period to run would be impracticable and contrary to the public interest.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Buffalo has determined that fireworks over the water presents significant risks to public safety and property. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the fireworks display is taking place.

This rule establishes a safety zone from 5:15 p.m. through 6:45 p.m. on November 25, 2023. The safety zone will cover all navigable waters within a 210-foot radius of land launched fireworks over the Oswego River in Oswego, NY. The duration of the zone is intended to protect spectators, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP Buffalo or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone will encompass a 210-foot radius of land launched fireworks in the Oswego River, in Oswego, NY, lasting approximately 1.5 hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately 1.5 hours that will prohibit entry within a 210-foot radius on the Oswego River, in Oswego, NY. for a fireworks display. It is categorically excluded from further review under paragraph L60(a)of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security COTP Captain of the Port Sector Southeast Alaska FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code NM Nautical Miles COTP Captain of the Port DNR Alaska Department of Natural Resources II. Background Information and Regulatory History

On November 14, 2023, a Coast Guard MH-60 Jayhawk Helicopter crashed on Read Island, AK, while responding to a disabled vessel. The MH-60 helicopter is still on Read Island and must remain in place for the appropriate investigations and hazardous materials cleanup to take place. The purpose of the temporary security zone is to facilitate the security and preserve the crash site of the MH-60 helicopter.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because immediate action is needed to facilitate the ongoing investigation at the crash site. Publishing a NRPM is impracticable and contrary to public interest because the security zone must be established as soon as possible to enhance public and maritime safety and security and to protect personnel, vessels, and the marine environment in the navigable waters within the security zone from potential hazards created by the MH-60 Helicopter crash site.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action to restrict vessel traffic is needed to protect the MH-60 Helicopter crash site, mitigate potential maritime threats, and enhance maritime safety and security.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70051 and 70124. The Captain of the Port Sector Southeast Alaska (COTP) has determined that potential hazards associated with ongoing salvage and safety investigation measures, will be a safety concern for anyone within a 2 nautical miles radius of Read Island, centered at Latitude: 57°06′48.3″ N, Longitude: 133°11′43.4″ W. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the security zone from potential hazards created by the MH-60 Helicopter crash site.

This rule establishes a security zone from 5 p.m. November 14, 2023, until 11:59 p.m. on January 13, 2024. The security zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the hazardous materials cleanup at the MH-60 Helicopter crash site and the ongoing safety investigation. The security zone will cover all navigable waters within a 2 nautical miles radius of Read Island, centered at Latitude: 57°06′48.3″ N, Longitude: 133°11′43.4″ W to conduct salvage and gather evidence pursuant to the safety investigation. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the hazardous materials cleanup and during the safety investigation. No vessel or person will be permitted to enter the security zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, remote location, and 60-day duration of the security zone. Vessel traffic will be able to safely transit around this security zone which would impact a designated area of Farragut Bay for 60 days when vessel traffic is normally low due to deteriorating weather and reduced daylight. The surrounding land and islands are owned predominantly by the United States Forest Service via Tongass National Forest and the State of Alaska Department of Natural Resources (DNR) owns Read Island. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine Channel 16 about the zone, and local Coast Guard assets enforcing the zone would reiterate the rule. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the security zone when permitted by the COTP or a designated representative.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a security zone lasting only 60 days that will prohibit entry within a 2 nautical miles radius of Read Island, centered at Latitude: 57°06′48.3″ N, Longitude: 133°11′43.4″ W, where ongoing salvage and safety investigation measures occur. It is categorically excluded from further review under paragraph L60(d) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

On September 29, 2023, the Postal Service published a notice of proposed rulemaking (88 FR 67159) to remove Change Service Requested, Option 1, as an ancillary service endorsement option for Ballot Mail. The Postal Service did not receive any formal comments.

The Postal Service is clarifying that the notice of proposed rulemaking focused on removing “Change Service Requested”, Option 1 and that Change Service Requested, Option 2 was not originally included in the Ballot Mail Ancillary Service Endorsement Federal Register Notice because Change Service Requested, Option 2 was never associated with any Ballot Mail STIDs. Only Change Service Requested, Option 1 was available for use. However, both Change Service Requested Options 1 and 2 permit all mailpieces that are undeliverable-as-addressed to be disposed of and it against postal policy to dispose of any ballot mailpiece. The Postal Service is providing a clarification, to avoid any misunderstanding, that will state that the endorsement “Change Service Requested”, is not available for Ballot Mail.

Ballot Mail that is undeliverable as addressed must be forwarded to the voter if a Change of Address notice is on file or returned to the election office that sent the Ballot Mail.

We believe this revision will provide a more efficient mailing experience.

The Postal Service adopts the described changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations.

Accordingly, 39 CFR part 111 is amended as follows:

Preamble acronyms and abbreviations. Throughout this document 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:

The source category that is the subject of this final action is composed of secondary lead smelters regulated under CAA section 111, New Source Performance Standards (NSPS). The 2022 North American Industry Classification System (NAICS) code for the source category is 331492. The NAICS code serves as a guide for readers outlining the type of entities that this final action is likely to affect. The NSPS codified in 40 CFR part 60, subpart L are directly applicable to secondary lead smelters constructed, reconstructed, or modified after June 11, 1973, and on or before December 1, 2022. The NSPS codified in 40 CFR part 60, subpart La, are directly applicable to affected facilities that begin construction, reconstruction, or modification after December 1, 2022. Federal, state, local and tribal government entities would not be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, you should carefully examine the applicability criteria found in 40 CFR part 60, subparts L and La, and consult the person listed in the FOR FURTHER INFORMATION CONTACT section of this preamble, your state air pollution control agency with delegated authority for NSPS, or your EPA Regional Office.

In addition to being available in the docket, an electronic copy of this final action is available on the internet at https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps. Following publication in the Federal Register , the EPA will post the Federal Register version of the final rule and key technical documents at this same website.

A redline/strikeout version of the rules showing the final edits being made to incorporate the changes to 40 CFR part 60, subpart L and the new text for 40 CFR part 60, subpart La finalized in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2022-0481). Following signature by the EPA Administrator, the EPA also will post a copy of these documents to https://www.epa.gov/stationary-sources-air-pollution/secondary-lead-smelters-new-source-performance-standards-nsps.

Under CAA section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by January 19, 2024. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC West Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

The EPA's authority for this final rule is CAA section 111, which governs the establishment of standards of performance for stationary sources. Section 111(b)(1)(A) of the CAA requires the EPA Administrator to list categories of stationary sources that in the Administrator's judgment cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA must then issue performance standards for new (and modified or reconstructed) sources in each source category pursuant to CAA section 111(b)(1)(B). These standards are referred to as new source performance standards, or NSPS. The EPA has the authority to define the scope of the source categories, determine the pollutants for which standards should be developed, set the emission level of the standards, and distinguish among classes, types, and sizes within categories in establishing the standards.

CAA section 111(b)(1)(B) requires the EPA to “at least every 8 years review and, if appropriate, revise” the NSPS. However, the Administrator need not review any such standard if the “Administrator determines that such review is not appropriate in light of readily available information on the efficacy” of the standard. When conducting a review of an existing performance standard, the EPA has the discretion and authority to add emission limits for pollutants or emission sources not currently regulated for that source category.

In setting or revising a performance standard, CAA section 111(a)(1) provides that performance standards are to reflect “the degree of emission limitation achievable through the application of the BSER which (taking into account the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” The term “standard of performance” in CAA section 111(a)(1) makes clear that the EPA is to determine both the BSER for the regulated sources in the source category and the degree of emission limitation achievable through application of the BSER. The EPA must then, under CAA section 111(b)(1)(B), promulgate standards of performance for new sources that reflect that level of stringency. CAA section 111(b)(5) generally precludes the EPA from prescribing a particular technological system that must be used to comply with a standard of performance. Rather, sources can select any measure or combination of measures that will achieve the standard. CAA section 111(h)(1) authorizes the Administrator to promulgate “a design, equipment, work practice, or operational standard, or combination thereof” if in his or her judgment, “it is not feasible to prescribe or enforce a standard of performance.” CAA section 111(h)(2) provides the circumstances under which prescribing or enforcing a standard of performance is “not feasible,” such as, when the pollutant cannot be emitted through a conveyance designed to emit or capture the pollutant, or when there is no practicable measurement methodology for the particular class of sources.

Pursuant to the definition of new source in CAA section 111(a)(2), standards of performance apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Under CAA section 111(a)(4), “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. Changes to an existing facility that do not result in an increase in emissions are not considered modifications. Under the provisions in 40 CFR 60.15, reconstruction means the replacement of components of an existing facility such that: (1) the fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new facility; and (2) it is technologically and economically feasible to meet the applicable standards. Pursuant to CAA section 111(b)(1)(B), the standards of performance or revisions thereof shall become effective upon promulgation.

As noted in section II.A. of this preamble, CAA section 111 requires the EPA to, at least every 8 years, review and, if appropriate, revise the standards of performance applicable to new, modified, and reconstructed sources. If the EPA revises the standards of performance, they must reflect the degree of emission limitation achievable through the application of the BSER considering the cost of achieving such reduction and any nonair quality health and environmental impact and energy requirements. CAA section 111(a)(1).

In reviewing an NSPS to determine whether it is “appropriate” to revise the standards of performance, the EPA evaluates the statutory factors, which may include consideration of the following information:

• Expected growth for the source category, including how many new facilities, reconstructions, and modifications may trigger NSPS in the future.

• Pollution control measures, including advances in control technologies, process operations, design or efficiency improvements, or other systems of emission reduction, that are “adequately demonstrated” in the regulated industry.

• Available information from the implementation and enforcement of current requirements indicating that emission limitations and percent reductions beyond those required by the current standards are achieved in practice.

• Costs (including capital and annual costs) associated with implementation of the available pollution control measures.

• The amount of emission reductions achievable through application of such pollution control measures.

• Any non-air quality health and environmental impact and energy requirements associated with those control measures.

In evaluating whether the cost of a particular system of emission reduction is reasonable, the EPA considers various costs associated with the particular air pollution control measure or a level of control, including capital costs and operating costs, and the emission reductions that the control measure or particular level of control can achieve. The Agency considers these costs in the context of the industry's overall capital expenditures and revenues. The Agency also considers cost effectiveness analysis as a useful metric and a means of evaluating whether a given control achieves emission reduction at a reasonable cost. A cost effectiveness analysis allows comparisons of relative costs and outcomes (effects) of 2 or more options. In general, cost effectiveness is a measure of the outcomes produced by resources spent. In the context of air pollution control options, cost effectiveness typically refers to the annualized cost of implementing an air pollution control option divided by the amount of pollutant reductions realized annually.

After the EPA evaluates the statutory factors, the EPA compares the various systems of emission reductions and determines which system is “best,” and therefore represents the BSER. The EPA then establishes a standard of performance that reflects the degree of emission limitation achievable through the implementation of the BSER. In doing this analysis, the EPA can determine whether subcategorization is appropriate based on classes, types, and sizes of sources, and may identify a different BSER and establish different performance standards for each subcategory. The result of the analysis and BSER determination leads to standards of performance that apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Because the NSPS reflect the BSER under conditions of proper operation and maintenance, in doing its review, the EPA also evaluates and determines the proper testing, monitoring, recordkeeping and reporting requirements needed to ensure compliance with the emission standards.

The EPA first promulgated NSPS for the secondary lead smelting source category on March 8, 1974 (39 FR 9308). These standards of performance are codified in 40 CFR part 60, subpart L, and are applicable to sources that commence construction, modification, or reconstruction after June 11, 1973. These standards of performance regulate emissions of PM from blast and reverberatory furnaces and specifies limits for visible emissions (opacity) for blast and reverberatory furnaces and for pot (refining) furnaces. The EPA amended NSPS subpart L on October 6, 1975 (40 FR 46250) to remove a provision providing that the failure to meet the NSPS emissions limits due to the presence of uncombined water in the stack gases was not considered a violation. In March 1979, the EPA reviewed the NSPS and analyzed possible revisions to the NSPS; however, the review did not result in any revisions to the NSPS subpart L at that time. 1

The secondary lead smelting source category consists of facilities that produce lead and lead alloys from lead-bearing scrap material. Lead is used to make various construction, medical, industrial, and consumer products such as batteries, glass, x-ray protection gear, and various fillers. The secondary lead smelting process consists of: (1) pre- processing of lead bearing materials, (2) melting lead metal and reducing lead compounds to lead metal in the smelting furnace, and (3) refining and alloying the lead to customer specifications.

At secondary lead smelting facilities, blast and reverberatory furnaces are used in the smelting processes, and pot furnaces are used in the refining process. The process exhaust from blast and reverberatory furnaces is a source of PM emissions, and emissions of PM also occur as process fugitives at various points during the smelting process, such as during charging and tapping of furnaces and refining processes. Entrainment of dry materials in ambient air due to material processing, vehicle traffic, wind erosion from storage piles, and other activities can also be a source of PM emissions.

Currently, there are 11 secondary lead smelting facilities in the United States and each facility operates furnaces that are subject to NSPS subpart L, which specifies that owners or operators of affected facilities must limit PM emissions from blast and reverberatory furnaces to not more than 50 milligrams per dry standard cubic meter (mg/dscm) or 0.022 grains per dry standard cubic feet (gr/dscf). Subpart L also specifies that visible emissions must not exceed 20 percent opacity from blast or reverberatory furnaces and 10 percent opacity from pot furnaces. Secondary lead smelting facilities use a variety of control devices ( e.g., baghouses, gas scrubbers), often in combination, to comply with the PM emissions and opacity limits of the NSPS.

The EPA proposed the current review and revisions of the secondary lead smelting source category NSPS subpart L on December 1, 2022 (87 FR 73708). We received four comment letters, including one from the industry trade association (the Association of Battery Recyclers, or ABR) and three from other stakeholders, during the comment period. Summaries of the more significant comments we timely received regarding the proposed rule and our responses are provided in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in Summary of Public Comments and Responses on Proposed Rule: New Source Performance Standards for Secondary Lead Smelting (40 CFR part 60, subparts L and La) Best System of Emission Reduction Review, Final Amendments, Docket ID No. EPA-HQ-OAR-2022-0481. In this action, the EPA is finalizing decisions and revisions pursuant to CAA section 111(b)(1)(B) review for the secondary lead smelting NSPS subpart L after our considerations of all the comments received.

On December 1, 2022, the EPA proposed revisions to the NSPS for secondary lead smelters pursuant to CAA section 111(b)(1)(B) review of NSPS subpart L. In that action, the EPA proposed to establish a new subpart (40 CFR part 60, subpart La) applicable to affected sources that begin construction, reconstruction, or modification after December 1, 2022. The EPA proposed in the NSPS subpart La, revised standards for PM emissions and opacity for blast furnaces, reverberatory furnaces, and process fugitive emissions sources that apply at all times, including periods of SSM. The EPA proposed initial and periodic PM and opacity performance testing, recordkeeping, and reporting requirements. The EPA also proposed to revise the definitions for blast and reverberatory furnaces and added a new definition for pot furnaces.

The EPA also proposed to amend NSPS subpart L to clarify that NSPS subpart L applies to affected sources that commenced construction, reconstruction, or modification after June 11, 1973, and on or before December 1, 2022, and to update the NSPS furnace definitions, performance testing schedule, and monitoring, recordkeeping, and reporting requirements to be more consistent with the NESHAP (40 CFR part 63, subpart X). The EPA also proposed the IBR of an alternative method for determining opacity and the requirement for the submission of electronic performance test reports.

The EPA is finalizing revisions to the NSPS for secondary lead smelters pursuant to CAA section 111(b)(1)(B) review. The EPA is promulgating the NSPS revisions in a new subpart, 40 CFR part 60, subpart La. The revised NSPS subpart is applicable to affected sources constructed, modified, or reconstructed after December 1, 2022. This action also finalizes standards of performance in NSPS subpart La for PM emission and opacity that apply at all times including during periods of SSM and other proposed changes such as electronic reporting. Additionally, this action finalizes proposed revisions to the testing, monitoring, notification, recordkeeping, and reporting requirements, which are the same for both NSPS subparts L and La, and finalizes a definition for “process fugitive emissions source” in NSPS subpart La based on consideration of public comments.

Based on the EPA's permit review and assessment of control costs and other CAA section 111 statutory considerations, the EPA proposed to identify for NSPS subpart La that the BSER for PM emissions and opacity from new, modified, or reconstructed blast furnaces is an afterburner followed by efficient particulate controls ( e.g., fabric filter that may be installed in series with a high efficiency particulate air (HEPA) filter and/or a venturi scrubber). For new, modified, or reconstructed reverberatory and pot furnaces, the EPA proposed that the BSER for PM emissions and opacity is efficient particulate controls ( e.g., fabric filter that may be installed in series with a HEPA filter, venturi scrubber and/or a wet electrostatic precipitator (WESP)).

Based on the available PM emissions and opacity data, the EPA proposed in NSPS subpart La that the standard of performance for blast and reverberatory furnaces that reflects the application of BSER is an emission limit of 10 mg PM/dscm. For pot furnaces, the EPA proposed in NSPS subpart La that the standard of performance that reflects the application of BSER is a PM emissions limit of 3 mg/dscm. The EPA also proposed that the standard of performance for opacity from blast, reverberatory, and pot furnaces emissions is 0 percent.

After considering the comments regarding the EPA's proposed BSER determinations for NSPS subpart La and the proposed PM emissions and opacity standards, the EPA is finalizing the BSER determinations and the PM standards for blast and reverberatory furnaces for NSPS subpart La, as proposed. However, after considering the comments and additional opacity data provided by one commenter, the EPA is finalizing the opacity limits for blast and reverberatory furnace in the final NSPS subpart La at 5 percent, rather than the proposed opacity standard of 0 percent. Also, the EPA is revising the PM limit for pot furnaces to address comments associated with the interaction of the proposed limit for pot furnaces with the NESHAP subpart X requirements. In the final NSPS subpart La (40 CFR 60.122a(a)), the EPA is promulgating a definition for “process fugitives emission source” (see the discussion in section IV.F. of this preamble) and finalizing an emissions limit for PM of 4.9 mg/dscm and an opacity limit of 5 percent from process fugitive emissions sources that includes emissions from pot furnaces, as well as other combined process fugitive emissions ( e.g., emissions from furnace charging and tapping and casting).

Comment: One commenter disagreed with the EPA's determination in the proposal preamble (87 FR 73715) that the BSER for PM emissions and opacity from new, modified, or reconstructed blast furnaces is an afterburner followed by efficient PM controls ( e.g., fabric filter installed in series with a high-efficiency particulate air (HEPA) filter and/or a venturi scrubber). The commenter noted that secondary lead smelting facilities use afterburners primarily to reduce emissions of carbon monoxide and unburned hydrocarbons from certain types of furnaces and configurations ( e.g., blast furnaces, collocated reverberatory furnaces) and that afterburners have little if any role in reducing emissions of PM.

Response: The EPA disagrees with the commenter's assertion that BSER for PM emissions and opacity from new, modified, or reconstructed blast furnaces should not include an afterburner. The afterburner helps to prevent fouling of the fabric filter by organics and moisture in the furnace exhaust, which results in better PM control. This determination is consistent with the BSER discussed in previous Secondary Lead Smelting NSPS review documents. For example, Volume 1 of the NSPS background document (June 1973, Air Pollution Technical Data (APTD)-1352a) states that the blast furnace afterburner is used upstream of the baghouse to “incinerate oily and sticky materials to avoid binding the fabric.” Additionally, the March 1979 NSPS review document (EPA-450/3-79-015) states that, “As previously noted, with blast furnaces an afterburner is employed to ensure complete combustion of such material [sparks and other burning material in furnace gas] before it enters the baghouse.” The commenter did not provide any additional information to contradict this long-standing analysis of the benefits of using in blast furnaces an afterburner to further reduce PM emissions.

Comment: One commenter contended that the EPA based the proposed standard of 0 percent opacity limit for blast, reverberatory, and pot furnaces on insufficient information and limited data. The commenter also said that the EPA did not evaluate opacity measurements across the affected sources and under different operating conditions (particularly SSM periods).

In response to the EPA's request in the proposal for comments regarding the available opacity data for blast, reverberatory, and pot furnaces, the commenter provided a subset of opacity data measured in a common stack utilizing a continuous opacity monitor system (COMS) at the outlet of the baghouses before the scrubber (the commenter asserted a claim of CBI over the baghouse data). The commenter stated that the baghouse data demonstrate the presence of non-zero opacities during normal operations and contradict the EPA's proposed opacity limitation of 0 percent.

The commenter stated that the inherent subjectivity in the measurement of opacity precludes the EPA from establishing an absolute 0 percent opacity emissions standard. The commenter noted that the subjectivity of opacity measurements is acknowledged in the certification requirements for both EPA Method 9 and ASTM D7520-16 ( i.e., >15 percent opacity at any single plume reading or a >7.5 percent opacity average error in each plume category). The commenter added that ASTM D7520-16 references a repeatability (precision) study at 0 percent opacity of ±3 percent opacity ( i.e., at 0 percent opacity, ASTM D7520-16 will read between 0 percent opacity to 3 percent opacity 95 percent of the time), which could result in an exceedance of the 0 percent opacity standard. The commenter also noted that the proposed methodologies to determine opacity or visible emissions can be impacted by limitations in contrasting backgrounds and by the presence of wet plumes, which vary from source to source.

To account for the subjectivity and the margin of error associated with the proposed compliance test methods presented above, the commenter stated that the EPA should revise the proposed opacity limit to 5 percent.

Response: The EPA acknowledges that, on occasion during process operations and particularly during startup and shutdown events, brief periods of visible emissions from these sources are possible. However, since these sources are located in negative pressure locations, these periods of visible emissions should not typically occur. As such, to account for the remote possibility of these periods of visible emissions, limited data availability, and the subjectivity and margin of error of the visible emissions test methods, we are finalizing a visible emission standard of no greater than 5 percent over a single 6-minute averaging period. The 5 percent value “threshold” is the lowest visible emission increment reading achievable by EPA Method 9 that is greater than 0 percent, and the 6-minute averaging period represents the minimum number of visible emissions observations prescribed by EPA Method 9 to calculate a valid visible emissions average ( i.e., a minimum of 24 visible emissions observations shall be made at 15-second intervals). This opacity standard and averaging period accounts for brief periods of visible emissions while still maintaining stringency with the expected absence of emissions in a negative pressure environment.

To verify this, a 6-minute EPA Method 22 visible emissions check should occur at a minimum of once per calendar day during normal operations, as well as during each SSM event. If any visible emissions are observed for any period of time ( i.e., >0 seconds), a 30-minute EPA Method 9 visible emissions test must be conducted as soon as practicable. As an alternative, a 30-minute EPA Method 9 visible emissions test can be performed at a minimum of once per calendar day during normal operations, as well as during each SSM event without having to perform the EPA Method 22 visible emissions check. If any rolling 6-minute averaging period from the 30-minute visible emissions test is greater than 5 percent, corrective action must be initiated within 1 hour of detecting visible emissions above the applicable limit. After the corrective action is completed, an additional 30-minute visible emissions test must be performed. After the corrective action is completed, if any rolling 6-minute averaging period from the follow-up 30-minute visible emissions test is greater than 5 percent, the source is deemed out of compliance with the prescribed opacity standard.

Comment: One commenter noted an apparent typographical error in the proposed NSPS subpart La (40 CFR 60.122a) and suggested that the EPA change the text from “Exhibit 0 percent opacity or greater” to “Exhibit opacity greater than” the limit.

Response: The EPA has revised the text in NSPS subpart La 40 CFR 60.122a(a)(2) and 60.122a(b)(2) to address the typographical error.

Comment: One commenter stated that the proposed rule's treatment of “pot furnaces,” including the establishment of PM standards for new pot furnaces, is misaligned with the functioning of pot furnaces at secondary lead smelters and with their treatment under other regulatory provisions, including NESHAP subpart X. The commenter said that NESHAP subpart X regulates pot furnace emissions as process fugitives, which are typically combined with emissions from other sources for ducting to controls, and that isolating pot furnace emissions for the purpose of performance testing may not be practical. The commenter said that the EPA should remove the proposed PM standard for pot furnaces.

The commenter stated that NESHAP subpart X (40 CFR 63.542) considers pot furnaces to be a process fugitive emissions source, rather than a process emissions source. The commenter noted that facilities may mix emissions from pot furnaces with process emissions from the smelting furnaces which makes it more difficult to segregate pot furnace emissions for compliance determination purposes. If the EPA does establish NSPS subpart La emission standards for new pot furnaces at secondary lead smelters, the commenter asserted that the EPA should clarify that commingled emissions from smelting furnaces and pot furnaces are subject to the proposed emission standards in 40 CFR 60.122a(a).

The commenter contended that the data the EPA used to establish the proposed PM emissions limit for pot furnaces are insufficient because the data include contributions from emission sources other than pot furnaces ( e.g., casting emissions).

The commenter also stated that the EPA should confirm that smaller refining kettles used for research and development (R&D) are excluded from the proposed definition of pot furnaces. For example, the EPA could exclude such kettles by establishing a size limit ( e.g., smaller than 5 tons of molten metal at maximum capacity) and a usage limit (operated fewer than 4000 hours per year). The commenter noted that the R&D refining kettles are a fraction of the size of normal production refining kettles ( e.g., 1 ton v. 100 tons) and are, therefore, insignificant emission sources at smelters.

Response: The EPA disagrees with commenter's statement that the final rule should not include a PM standard for pot furnaces. As noted in sections IV.A.1. and 2. of this preamble, the EPA has determined that the final BSER for PM emissions and opacity from new, modified, or reconstructed pot furnaces is efficient particulate controls, and the commenter does not dispute that PM emissions from pot furnaces can be reduced by application of these controls. Consequently, the EPA must establish a PM emissions limit that reflects BSER. However, the EPA acknowledges that isolating pot furnace emissions for NSPS compliance testing may not be feasible for all secondary lead smelting facilities. The EPA also acknowledges that the limited data the EPA used to establish the proposed PM emissions limit for pot furnaces include contributions from emission sources other than pot furnaces ( i.e., data from 5 of 6 test reports used to calculate the proposed pot furnace limit included contributions from casting fugitives).

To address the commenter's concern related to isolating emissions for compliance testing and the limited data set, the EPA conducted a further evaluation of the available test data to identify data values that included contributions from pot furnaces combined with other process fugitive sources ( e.g., emissions from furnace charging and tapping and casting). The EPA used this data set of comingled pot furnace emissions, which consists of 45 test runs from 3 facilities (Clarios, South Carolina; Gopher Resource, Florida; and Gopher Resource, Minnesota), to derive a PM emissions limit for pot furnace emissions combined with emissions from other process fugitives. Based on this updated analysis, in the final NSPS subpart La (40 CFR 60.122a(a)), the EPA is promulgating a process fugitive source emissions limit for PM of 4.9 mg/dscm from the process emissions control devices. This analysis can be found in the Particulate Matter Emissions Test Data Memorandum for Process Fugitive Sources as Secondary Lead Smelting Facilities located in the docket for this rulemaking. This approach of regulating pot furnace emissions as a process fugitive source is consistent with the approach used under NESHAP subpart X, which requires that new or reconstructed sources must capture all process fugitive emissions (including pot furnace emissions) with hoods or negative pressure enclosures and route those emissions to a control device.

Regarding the commenter's assertion that the EPA should confirm that smaller refining kettles used for R&D are excluded from the proposed definition of pot furnaces, the commentor did not provide any data demonstrating that R&D kettles cannot meet the proposed requirement. Additionally, the EPA is not finalizing the proposed definition for pot furnaces and is finalizing a process fugitive emissions limit. Therefore, the EPA has no basis to provide an exception to the emissions limits specified in NSPS subpart La at this time. However, the EPA may revisit this issue under the NESHAP subpart X review.

Consistent with Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the EPA has established standards in NSPS subpart La that apply at all times. We are finalizing in NSPS subpart La specific requirements at 40 CFR 60.122a(c) that override the general provisions for SSM requirements. In finalizing the standards in NSPS subpart La, the EPA has taken into account startup and shutdown periods and, for the reasons explained in this section of the preamble, has not finalized alternate standards for those periods.

Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead, they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment (40 CFR 60.2). The EPA interprets CAA section 111 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 111 standards. Nothing in CAA section 111 or in case law requires that the EPA consider malfunctions when determining what standards of performance reflect the degree of emission limitation achievable through “the application of the best system of emission reduction” that the EPA determines is adequately demonstrated. While the EPA accounts for variability in setting emissions standards, nothing in CAA section 111 requires the Agency to consider malfunctions as part of that analysis. The EPA is not required to treat a malfunction in the same manner as the type of variation in performance that occurs during routine operations of a source. A malfunction is a failure of the source to perform in a “normal or usual manner” and no statutory language compels the EPA to consider such events in setting CAA section 111 standards of performance. The EPA's approach to malfunctions in the analogous circumstances (setting “achievable” standards under CAA section 112) has been upheld as reasonable by the D.C. Circuit in U.S. Sugar Corp. v. EPA, 830 F.3d 579, 606-610 (2016).

The EPA proposed in NSPS subpart La that the PM emissions and opacity limits for blast, reverberatory, and pot furnaces apply at all times, including periods of SSM. The proposed NSPS subpart La included specific requirements at 40 CFR 60.122a(c) that would override the general provisions for SSM requirements.

After considering the comment on the proposed SSM provisions, the EPA is finalizing in NSPS subpart La that the PM emissions and opacity limits for blast, reverberatory, and pot furnaces apply at all times, including periods of SSM, and is finalizing the SSM provision in 40 CFR 60.122a(c), as proposed.

Comment: One commenter asserted that the EPA should not remove from NSPS subpart La the exception in the NSPS general provisions (40 CFR 60.8(c)) which states that emissions during SSM periods that exceed the applicable NSPS limit are not considered to be a violation of the applicable emission limit. The commenter noted that multiple rulings by the D.C. Circuit ( e.g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375, 398 (D.C. Cir. 1973); Essex Chem. Corp. v. Ruckelshaus, 486 F.2d 427, 432 (D.C. Cir. 1973); and National Lime Ass'n v. EPA, 627 F.2d 416, 431 n.46 (D.C. Cir. 1980)) have affirmed the EPA's historic approach of not requiring affected sources to meet NSPS emission limits during SSM events. The commenter stated that it would be arbitrary and capricious for the EPA to interpret Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), as preventing the EPA from exercising discretion in establishing an SSM exception in NSPS subpart La or as making an SSM exception inappropriate in NSPS subpart La on the current record.

Response: As discussed in more detail in the proposal, the EPA has determined that the reasoning in the court's decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), which vacated the SSM exemption in CAA section 112, applies equally to CAA section 111. Therefore, we disagree with the commenter on the applicability of this decision to CAA section 111. While the EPA recognizes the differences between the NESHAP and NSPS programs, the court in Sierra Club held that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature, and the definition of emission or standard in CAA section 302(k) and the requirement for continuous standards applies to both NESHAP and NSPS.

The EPA proposed requiring that facilities subject to 40 CFR part 60, subparts L and La conduct periodic PM testing of blast, reverberatory, and pot furnace emissions. The EPA also proposed under 40 CFR part 60, subpart La periodic testing of opacity from blast, reverberatory, and pot furnace emissions. The proposed amendments would allow facilities to request less frequent periodic PM testing, reduced from every 12 months to every 24 months, if the previous periodic compliance test demonstrates that PM emissions are 50 percent or less of the final emissions limit ( e.g., PM emissions from blast and reverberatory furnaces of 25 mg/dscm or less for facilities subject to 40 CFR part 60, subpart L).

To reduce the testing burden on facilities, the EPA also proposed allowing facilities to determine the PM emissions by either EPA Method 12 (Determination of Inorganic Lead Emissions from Stationary Sources) or EPA Method 29 (Determination of Metals Emissions from Stationary Sources). For determining opacity under NSPS subpart L, the EPA proposed allowing the use of ASTM, International (ASTM) D7520-16 (Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere) as an alternative to EPA Method 9. For NSPS subpart La, the EPA proposed allowing the use of EPA Method 22 (Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares) if there are zero visible emissions as an alternative to EPA Method 9 or the ASTM D7520-16 method.

The EPA also proposed adding 40 CFR 60.124 and 40 CFR 60.124a (Monitoring requirements) to NSPS subparts L and La, respectively, to include some of the monitoring requirements specified in 40 CFR 63.548(a) through (i) (Monitoring requirements) of the NESHAP (40 CFR part 63, subpart X), including development of a standard operating procedures (SOP) manual for control devices used to reduce PM and opacity emissions.

After considering the comments, the EPA is finalizing the testing and monitoring provisions, as proposed. In response to public comment regarding the appropriate level of the opacity standard, the EPA revised the proposed opacity standard from 0 percent to 5 percent (see the discussion in section IV.A. of this preamble). Although EPA Method 22 is used only to determine the absence of visual emissions ( i.e., zero percent opacity), rather than to determine non-zero readings ( e.g., 5 percent opacity), the EPA is retaining the use of EPA Method 22 as an alternative method to potentially reduce the testing burden on facilities. For example, a facility could use EPA Method 22 to demonstrate compliance with the final opacity limit of 5 percent by determining no visible emissions. However, if visible emissions are detected, the facility would need to proceed to use EPA Method 9 to confirm opacity is no more than 5 percent.

Comment: One commenter contended that periodic PM testing is unnecessary and inappropriate, and would not discover any actionable information that would not be discovered through the regular performance testing for particulate lead required by NESHAP subpart X.

Response: The EPA disagrees with the commenter. The target pollutant of the periodic testing under NESHAP subpart X is lead, while the target pollutant for the NSPS is PM. The EPA concludes that it is appropriate to require periodic testing for PM to confirm affected facilities continue to comply with the PM limits. Codifying the testing requirements in the NSPS provides for periodic, direct assessments regarding facility compliance status with the PM limits in NSPS subparts L and La.

Comment: One commenter acknowledged that allowing facilities to conduct performance tests for NESHAP subpart X and NSPS subparts L and La, as applicable, through collection of a single sample will appropriately facilitate effective compliance. The commenter stated that, to assist in the clarity of implementing the proposed rule, the EPA should revise proposed 40 CFR 60.123 and 60.123a to clarify that smelters are to employ section 16.1 of EPA Method 12 or the specifications in EPA Method 29, as stated in section 1.2 of EPA Method 29, and detailed throughout EPA Method 29.

Response: The EPA added the test method sections cited by the commenter to the final rules.

Comment: One commenter noted that proposed NSPS subparts L and La (at 40 CFR 60.123(b)(2) and 60.123a(b)(2)) allow for facilities to request from the EPA Administrator an extension (up to 24 months) for conducting the periodic performance tests for facilities where the previous compliance tests measured PM emissions are 50 percent or less of the emissions limit ( e.g., for NSPS subpart L, 25 mg/dscm or less). The commenter asserted that, in practice, it is difficult for well-controlled smelters to obtain a timely decision from the EPA regarding the facility's request, which is essentially tantamount to an unjustified denial of the extension request. The commenter stated that the EPA should provide the testing extension upon receipt of the facility's request by the appropriate EPA regional office, rather than the facility having to wait for Administrator approval.

Response: The EPA disagrees with the commenter. Providing the performance testing extension based solely on the receipt of the facility's request would not be appropriate because it would not provide any opportunity for the EPA or delegated authority to verify the facility's assertion by reviewing the request and supporting documentation ( e.g., test report) before granting the testing extension. However, the EPA recognizes it is reasonable for a facility to expect to get a response as to whether the 24-month period is approved within a reasonable timeframe before their next compliance test. Therefore, the EPA has determined that it is appropriate to finalize a provision that would preserve the opportunity to review incoming requests, while encouraging the EPA or delegated authority to act within a reasonable timeframe so that facilities have adequate notice as to when the next compliance test will be required. Accordingly, the EPA is finalizing a provision that provides that the extension request will be deemed automatically approved under the following specified circumstances: (1) a facility completes a performance test that is 50 percent or lower than the applicable emissions limit, (2) the facility submits a request for the extension of 24 months well before their next required compliance test ( i.e., no more than 4 months after the subject compliance test that was 50 percent or lower than the limit), and (3) the EPA does not provide a response to such request within 6 months of receipt of such request. The EPA has determined that this provision will provide a balanced approach to the competing interests of all involved parties.

The EPA is finalizing a requirement that owners and operators of secondary lead smelters subject to the NSPS subparts L and La submit the results of the initial and periodic performance tests electronically through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The EPA did not receive any public comments regarding the proposed requirements for electronic reporting.

The EPA proposed to add the notification, recordkeeping, and reporting requirements specified in the proposed 40 CFR 60.125 and 40 CFR 60.125a (Notification, recordkeeping, and reporting requirements) to NSPS subparts L and La, respectively. The proposed requirements clarified that facilities must comply with the notification and recordkeeping requirements specified in 40 CFR 60.7 and the reporting requirements specified in 40 CFR 60.19. The proposed requirements in NSPS subparts L and La included the recordkeeping requirements from NESHAP subpart X specified in 40 CFR 63.550(b); (c)(1) through (c)(4); (c)(11) through (c)(12); (e)(4) through (e)(7); and (e)(13).

After considering the comments, the EPA is finalizing the notification, recordkeeping and reporting provisions, as proposed, with the exception of the editorial changes made to the text of 40 CFR 60.125(a) and 60.125a(a); 40 CFR 60.124(c) and 60.124a(c); and 40 CFR 60.124(f)(4) and 60.124a(f)(4), as discussed below in section IV.E.3. of this preamble.

Comment: One commenter stated that the EPA should clarify as to the proposed revisions to NSPS subpart L that certain aspects of the NSPS General Provisions 40 CFR 60.7 and 60.19 will not apply because they concern regulatory provisions that are absent from NSPS subpart L ( e.g., 40 CFR 60.7(a)(7) concerns continuous opacity monitoring systems, which appropriately are not required under proposed NSPS subpart L).

Response: The EPA revised the text of 40 CFR 60.125(a) and 60.125a(a) as set forth in the amendatory text portion of this final rule to address the clarification suggested by the commenter.

Comment: One commenter stated that the EPA should revise the proposed NSPS subparts L and La (40 CFR 60.124(c) and 60.124a(c)) to replace the phrase “PM and opacity emissions control devices” with the phrase “baghouses (fabric filters or cartridge collectors)” to improve the consistency between the underlying requirement proposed in 40 CFR 60.124(b) and 60.124a(b), and the submission provisions proposed in 40 CFR 60.124(c) and 60.124a(c).

Response: The EPA agrees with the editorial change suggested by the commenter. Therefore, the final NSPS subparts L and La (40 CFR 60.124(c) and 60.124a(c)) replace the phrase “PM and opacity emissions control devices” with the phrase “baghouses (fabric filters or cartridge collectors).”

Comment: One commenter requested that the EPA provide a mechanism by which a secondary lead smelting facility could avoid submission of a redundant SOP manual in response to the proposed requirements in 40 CFR 60.124 and 60.124a, given the similarities between those provisions and the SOP required by NESHAP subpart X (40 CFR 63.548).

Response: The EPA disagrees with the commenter that an additional mechanism is needed that would allow secondary lead smelting facilities to avoid submission of redundant SOP manuals in response to the proposed requirements in 40 CFR 60.124 and 60.124a. Proposed 40 CFR 60.124(l) and 60.124a(l) state: “If an affected source is subject to the monitoring requirements specified in 40 CFR part 63, subpart X (National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting) and those requirements are as stringent or more stringent than the monitoring requirements specified in paragraphs (a) through (j) of this section, compliance with the monitoring requirements specified in 40 CFR part 63, subpart X also demonstrates compliance with the monitoring requirements specified in paragraphs (a) through (k) of this section.” The EPA believes that this specification in NSPS subparts L and La already addresses the concern raised by the commenter.

Comment: One commenter noted that proposed NSPS subparts L and La (40 CFR 60.124(f)(4) and 60.124a(f)(4)) refer to the document “Office of Air Quality Planning and Standards (OAQPS) Fabric Filter Bag Leak Detection Guidance” (EPA-454/R-98-015; September 1997). The commenter stated that the EPA guidance document is 26 years old and may be inconsistent with current guidance provided by manufacturers of bag leak detection systems. The commenter requested that the EPA revise proposed NSPS subparts L and La (40 CFR 60.124(f)(4) and 60.124a(f)(4)) to clarify that a smelter may install and operate the bag leak detection system in a manner consistent with the manufacturer's written specifications and recommendations if there is any conflict between the manufacturer's instructions and the OAQPS guidance.

Response: The EPA agrees with the clarification suggested by the commenter. Therefore, the final text of 40 CFR 60.124(f)(4) and 60.124a(f)(4) as set forth in the amendatory text portion of this final rule.

Comment: One commenter contended that the proposed requirements in NSPS subparts L and La (40 CFR 60.124(k), 60.124a(k), 60.125(c)(10), and 60.125a(c)(10)) for facilities to establish and record parametric monitoring values for each control device used to comply with the PM and opacity emission standards are not consistent with the requirements of NESHAP subpart X (40 CFR 63.550(a)), which only requires parametric monitoring and recordkeeping for scrubbers. The commenter stated that the proposed requirements in NSPS subparts L and La (40 CFR 60.124(k) and 60.124a(k)) for secondary lead smelting facilities to establish, during the initial or periodic performance test, the value or range of values of the monitoring parameter(s) for each control device used to comply with the PM and opacity emission standards was overly vague and potentially would require the establishment of monitoring parameters for pollution control devices ( e.g., WESPs) that are employed, but are not part of BSER, or afterburners that are employed, but have little or no role in PM control. The commenter added that the proposed NSPS subparts L and La include monitoring and recordkeeping provisions that provide sufficient criteria for the proper operation of applicable control devices (the commenter provided several citations to the proposed rules). The commenter stated that the EPA should revise the proposed language to specify that a secondary lead smelting facility is not required to establish and record parametric monitoring values for PM control devices (other than scrubbers) if the facility demonstrates compliance with NSPS subparts L and/or La (40 CFR 60.124 and/or 60.124a) by complying with the monitoring provisions of NESHAP subpart X.

Response: Although the EPA strives to improve the consistency between NSPS subparts L and La and NESHAP subpart X, where possible, the EPA's decision-making regarding the requirements for the NSPS must be driven by the requirements of CAA section 111 and the regulatory provisions necessary to implement standards of performance promulgated pursuant to that authority. We have determined that parametric monitoring of control devices is necessary for demonstrating ongoing compliance with the PM and opacity emission standards between the demonstrations provided by the periodic performance tests. We also disagree with the commenter that the text in proposed NSPS subparts L and La (40 CFR 60.124(k) and 60.124a(k)) is overly vague. The rules specify establishment of monitoring parameter values “for each control device used to comply with the PM and opacity emission standards” of the NSPS. Regarding the commenter's contention that the proposed text could potentially require the establishment of monitoring parameters for control devices ( e.g., WESP) and afterburners, this is consistent with the EPA's intent. The EPA determined that BSER for PM emissions and opacity from new, modified, or reconstructed blast furnaces is an afterburner followed by efficient PM controls, which would include controls such as a WESP.

Comment: One commenter said that the phrase “and those requirements are as stringent or more stringent than the monitoring requirements specified in paragraphs (a) through (j) of this section” in proposed NSPS subparts L and La (40 CFR 60.124(l) and 60.124a(l)) introduces regulatory confusion as to whether compliance with the monitoring provisions of NESHAP subpart X also demonstrates compliance with the proposed monitoring requirements of NSPS subparts L and La. The commenter asserted that the EPA should either eliminate the phrase from the regulatory text or, at a minimum, state in the preamble to the final NSPS rulemaking that the current monitoring provisions of NESHAP subpart X are as stringent or more stringent than the monitoring requirements specified in the proposed NSPS.

Response: The EPA believes that the current monitoring provisions of NESHAP subpart X are at least as stringent as the monitoring requirements specified in the final NSPS subparts L and La. Nonetheless, the EPA continues to find it appropriate to finalize the proposed language at 40 CFR 60.124(l) and 60.124a(l) with respect to the NESHAP subpart X monitoring requirements. NESHAP undergo periodic reviews pursuant to CAA section 112, and, to the extent that NESHAP subpart X were revised during a future review, or otherwise modified, such that the monitoring requirements were no longer as stringent or more stringent than those finalized in subparts L and La, it would no longer be appropriate to permit the use of the monitoring requirements in NESHAP subpart X in lieu of those required by the NSPS.

Comment: One commenter said that proposed NSPS subparts L and La (40 CFR 60.124 and 60.124a) require that the monitoring systems comply with the applicable requirements specified in the NSPS General Provisions (40 CFR 60.13) but noted that 40 CFR 60.13(a) states that the section is only applicable “upon promulgation of performance specifications for continuous monitoring systems under appendix B to this part.” The commenter contended that, because proposed NSPS subparts L and La do not require continuous monitoring systems to demonstrate compliance with emission limits, the EPA should revise the proposed language in 40 CFR 60.124 and 60.124a to include the following text: “The owner shall comply with the applicable monitoring requirements specified in 40 CFR 60.13 upon promulgation of performance specifications in 40 CFR part 60—Appendix B for the continuous monitoring systems required in this section. The Procedures of 40 CFR part 60—Appendix F do not apply because the continuous monitoring systems required in this section are not used to demonstrate compliance with emission limits on a continuous basis.”

Response: The EPA disagrees with the commenter that additional text is needed in 40 CFR 60.124 or 60.124a. As the commenter noted, 40 CFR 60.124 and 60.124a state that the owner shall comply with the applicable monitoring requirements specified in 40 CFR 60.13. Although the proposed NSPS subparts L and La do not require facilities to use continuous opacity monitoring systems (COMS) or continuous emissions monitoring systems (CEMS) to comply with the standards, NSPS subparts L and La do not preclude facilities from using COMS or CEMS. The performance standards are required if the continuous monitoring system is used to demonstrate compliance with emission limits on a continuous basis.

The EPA proposed to incorporate the definitions shown in Table 1 of this preamble into 40 CFR 60.121 (Definitions) of existing 40 CFR part 60, subpart L and 40 CFR 60.121a (Definitions) of the proposed 40 CFR part 60, subpart La. These proposed definitions were intended to improve the clarity of the NSPS subparts and to reduce potential confusion among industry and regulatory agencies by aligning the descriptions of the affected sources that would be regulated by 40 CFR part 60, subparts L and La to be more consistent with the definitions within the NESHAP at 40 CFR part 63, subpart X, as shown in Table 1. These proposed changes did not affect the applicability of existing NSPS subpart L.

After considering the comments on the proposed definitions, the EPA is not adopting the proposed changes to the definitions for blast furnace, reverberatory furnace, and pot furnace in current NSPS subpart L. For NSPS subpart La, the EPA is maintaining in 40 CFR 60.121a (Definitions) the definitions of “blast furnace,” “lead,” “reverberatory furnace,” and “secondary lead smelter” specified in current NSPS subpart L (instead of adopting the proposed definitions in Table 1, above) and finalizing the definition of “process fugitive emissions source.” Table 2 of this preamble shows the final process definitions for NSPS subpart La.

Comment: One commenter provided several comments and recommendations regarding the proposed definitions in NSPS subparts L and La. The commenter said that the EPA should revise the proposed definition of “secondary lead smelter” to use the term “lead-bearing material” rather than “lead-bearing scrap material” and either include or cross-reference the definition of “lead bearing material” from NESHAP subpart X (40 CFR 63.542). The commenter noted that the proposed definitions in NSPS subparts L and La did not define either “lead-bearing material” or “lead-bearing scrap material.” The commenter said that the EPA should clarify that these terms in the proposed definitions of “blast furnace” and “reverberatory furnace” (40 CFR 60.121(a) and 60.121a(a)), mean the same as “lead-bearing material” as defined in NESHAP subpart X (40 CFR 63.542).

The commenter stated that the EPA should align the proposed definition of “blast furnace” in 40 CFR 60.121(d) and 60.121a(d) with the NESHAP definition for “blast furnace” used in NESHAP subpart X (40 CFR 63.542) by including the phrases “uses coke as a fuel source” and “(greater than 980 Celsius)” to eliminate potential confusion about applicability and the possibility of any gaps between the NESHAP and NSPS definitions. The commenter said that the EPA should align the proposed definition of “reverberatory furnace” in NSPS subparts L and La (40 CFR 60.121(a) and 60.121a(a)) with the NESHAP subpart X definition by excluding the last sentence of the proposed definition to eliminate potential confusion about applicability and the possibility of any gaps between the NESHAP and NSPS definitions: “Reverberatory furnaces include the following types: stationary, rotating, rocking, and tilting furnaces.”

The commenter said that the proposed definitions for “lead” in NSPS subparts L and La (40 CFR 60.121(c) and 60.121a(c)) should include the term “lead alloy,” rather than “alloy,” because “alloy” arguably could refer to certain unspecified non-lead alloys. The commenter stated that the EPA should change the term “alloy” to “lead alloy” and add the definition of “lead alloy” from NESHAP subpart X (40 CFR 63.542) to NSPS subparts L and La.

The commenter also noted that the proposed NSPS subparts L and La did not define the term “smelting” used in the proposed secondary lead smelter definition and said that the EPA should either include or cross-reference the definition of “smelting” from NESHAP subpart X (40 CFR 63.542).

The commenter asserted that the EPA should clarify that, for a refining kettle that meets the pot furnace definition, the new pot furnace includes all of the typical refining kettle components including (as applicable): footers, structural steel, kettle or pot (constructed of cast iron or steel), indirect heating system (burners, piping, monitors, combustion air system, and flue), cover, fume collection system (hood), agitator (mixer, motor, drive, and mount), furnace shell, refractory lining, lead pump, electrical components (switches, controllers, etc.), and process monitors. The commenter noted that this clarification is important because facilities regularly replace both the kettle and the refractory lining component of the pot furnace during the pot furnace's useful life and replacing the kettle or the refractory lining of a pot furnace potentially could be misinterpreted as reconstruction without appropriate clarification on this issue.

The commenter also stated that the EPA should revise the definition of “pot furnace” at proposed 40 CFR 60.121(e) and 60.121a(e) as follows to clarify that the definition does not apply to receiving kettles, holding kettles, or R&D kettles: “(e) Pot furnace means a type of refining kettle, which is an open-top vessel constructed of cast iron or steel and is indirectly heated from below and contains molten lead for the purpose of refining and alloying the lead. For avoidance of doubt, the term “pot furnace” excludes the following types of refining kettles: (i) receiving kettles and holding kettles where refining or alloying activities do not occur; and (ii) pot furnaces with a maximum capacity less than 5 tons molten metal that are operated fewer than 4000 hours per year.”

The commenter noted that the important distinction between pot furnaces used for refining and alloying, on the one hand, and refining kettles used for receiving or holding molten lead, on the other hand, is not present in the proposed rule. Instead, the commenter said that the EPA proposed a definition of pot furnaces in 40 CFR 60.120(e) and 60.120a(e) as “a type of refining kettle, which is an open-top vessel constructed of cast iron or steel and is indirectly heated from below and contains molten lead for the purpose of refining and alloying the lead.”

Response: These proposed definitions were intended to improve the clarity of the NSPS subparts and to reduce potential confusion among industry and regulatory agencies by aligning the descriptions of the affected sources that would be regulated by NSPS subparts L and La to be more consistent with the definitions within the NESHAP subpart X. However, after considering the comments received regarding the proposed process equipment definitions and because of potential future changes to the definitions in NESHAP subpart X pursuant to the EPA's upcoming review of NESHAP subpart X, which applies to new and existing sources, the EPA is not finalizing the proposed process equipment definition changes in subpart L and La. The EPA had determined that it is more appropriate to complete the NESHAP review first before finalizing any changes to the existing definitions in NSPS subparts L and La for blast furnace, lead, reverberatory furnace, and secondary lead.

As part of the NESHAP review process, the EPA will acquire new information regarding secondary lead process equipment, which could result in revisions to the existing NESHAP definitions or development of new definitions. Were the EPA to finalize the proposed definitions in NSPS subparts L and La at this time, such future revisions to the definitions in NESHAP subpart X may create new inconsistencies. In this case, finalizing the proposed definitions to NSPS subparts L and La would not increase clarity and consistency as intended. Instead, any definition changes made in NSPS subparts L and La at this time with the intent of improving the consistency between the NSPS and NESHAP definitions would be mistimed, and the EPA might need to consider further revising the NSPS definitions established in this action in the future to reflect the equipment definitions specified in the post-review NESHAP. Because the EPA has decided not to finalize the revised definitions, the EPA does not need to provide detailed responses to the comments suggesting specific revisions to those definitions.

In addition, after revisiting the process definitions that have been in NSPS subpart L since 1983, we find that no changes are needed to improve clarity as initially thought at proposal. Therefore, we are not finalizing any changes to the existing definitions in NSPS subpart L or in NSPS subpart La. Instead, we are maintaining the blast furnace, lead, reverberatory furnace, and secondary lead smelter definitions currently specified in NSPS subpart L. However, we are adding to NSPS subpart La a definition for “process fugitive emissions source” to accommodate the final PM standard for pot furnaces (see the discussion in section IV.A.2. of this preamble). Also, regarding the comments that the EPA should include the term “lead alloy,” rather than “alloy,” the current subpart L and new subpart La both state that “ Lead means elemental lead or alloys in which the predominant component is lead.” This definition is clear that the only alloys affected by the rule are alloys in which the predominant component is lead. The term “alloys in which the predominant component is lead” essentially means the same thing as “lead alloys”. Therefore, we did not make any changes to the definition of lead or add a new definition for lead alloys to subparts L or La.

With regard to the comment that the EPA should include a definition of smelting or provide a cross reference, because of potential future changes to the definitions in NESHAP subpart X (including for “smelting”) pursuant the EPA's upcoming review of NESHAP subpart X (discussed above), which applies to new and existing sources, the EPA decided not to add a new definition for smelting in subpart L or La at this time because of potential inconsistencies once the EPA completes the next NESHAP review.

Regarding the comment that EPA should revise the definition of “pot furnace”, this may have been an important clarification for the NSPS final rule if the EPA finalized the proposed pot furnace specific emissions limit of 3 mg/dscm. However, as explained in a previous response, instead of a pot furnace specific limit, the EPA is promulgating a PM limit of 4.9 mg/dscm for process fugitive emissions, which includes pot furnaces, but also includes other process fugitive emissions sources (such as refining kettles, holding kettles, alloying units). Therefore, we conclude that the specific definition clarifications requested by the commenter are no longer necessary for implementation of the NSPS and can wait until the EPA completes the next NESHAP review.

Pursuant to CAA section 111(b)(1)(B), the effective date of the final rule requirements in NSPS subpart La and amendments to NSPS subpart L will be the promulgation date, which is the date of publication of the final rule in the Federal Register . Affected sources that commence construction, reconstruction, or modification after December 1, 2022, must comply with all requirements of NSPS subpart La no later than the effective date of the final rule or upon startup, whichever is later.

The final amendments to 40 CFR part 60, subpart La:

• Reduce the PM emissions limit for blast and reverberatory furnaces from 50 to 10 mg/dscm.

• Establish new PM emissions limits for process fugitive emissions sources of 4.9 mg/dscm.

• Lower the opacity limit for blast and reverberatory furnaces from 20 percent to 5 percent.

• Lower the opacity limit for pot furnaces from 10 percent to 5 percent.

New or reconstructed blast, reverberatory, and pot furnaces will also be subject to the NESHAP (40 CFR part 63, subpart X) requirements for new sources, while modified blast, reverberatory, and pot furnaces will also be subject to the NESHAP requirements for existing sources. NESHAP subpart X regulates particulate lead emissions from process vent, process fugitive, and fugitive dust sources. The emissions capture systems and control devices that are already required by the NESHAP to comply with the lead limits for blast furnaces, reverberatory furnaces, and process fugitive emissions sources will also control PM emissions regulated by the NSPS. Therefore, the final 40 CFR part 60, subpart La will not result in actual reductions of PM emissions. However, codifying the lower PM and opacity limits in the final 40 CFR part 60, subpart La will significantly reduce the PM and opacity allowable emissions of affected sources that commence construction, reconstruction, or modification after December 1, 2022.

Indirect or secondary air emissions impacts result from the increased energy usage associated with the operation of control devices ( e.g., increased secondary emissions of criteria pollutants from electricity generating power plants). The EPA does not expect that facilities will need any additional control devices or other equipment to meet the final NSPS requirements beyond those that would already be needed to comply with the NESHAP. Therefore, the EPA does not attribute any secondary impacts to the final 40 CFR part 60, subpart La.

For 40 CFR part 60, subparts L and La, the EPA requires that facilities conduct periodic performance tests to measure PM emissions using EPA Method 5 (Determination of Particulate Matter Emissions from Stationary Sources). The NESHAP (40 CFR part 63, subpart X) also requires periodic tests for lead using EPA Method 12 (Determination of Inorganic Lead Emissions from Stationary Sources) or EPA Method 29 (Metal Emissions from Stationary Sources). Because both of the NESHAP test methods analyze the PM captured on the internal surfaces of the sampling probe and on a sampling train filter to determine the lead concentration, facilities can conduct an additional gravimetric analysis of the EPA Method 12 or EPA Method 29 probe rinse and filter to determine PM emissions, rather than performing separate tests using EPA Method 5. The EPA estimates that the additional gravimetric analysis of the EPA Method 12 or EPA Method 29 particulate filter costs approximately $300 per test per year. To estimate the total cost associated with the final periodic PM performance tests under 40 CFR part 60, subparts L and La, the EPA assumed that each respondent under the respective subparts would conduct 3 p.m. tests per year (1 for each furnace type). See section V.C. of this preamble for more details on cost estimates.

For 40 CFR part 60, subpart La, the EPA is also requiring that facilities periodically determine the opacity of blast furnace, reverberatory furnace, and process fugitive source emissions. For NSPS subpart La, the EPA is requiring that facilities conduct initial and periodic tests using EPA Method 9 or ASTM D7520-16. Alternatively, facilities can use EPA Method 22 (Visible Determination of Fugitive Emissions) to determine no visible emissions from blast furnace, reverberatory furnace, and process fugitive emissions sources. To estimate the cost of the initial and periodic opacity tests for NSPS subpart La, the EPA assumed that new facilities would be able to determine no visible emissions using EPA Method 22, rather than using EPA Method 9. The EPA assumed that new facilities would train facility personnel to implement EPA Method 22 (at a one-time cost of $426 per facility), but not incur additional capital costs associated with conducting the EPA Method 9 observations.

We estimate that 2 of the 11 existing facilities will be modified or reconstructed over the next five years such that these 2 facilities will be subject to subpart La, and the other 9 facilities will be subject to subpart L. Therefore, for 40 CFR part 60, subpart L, the total incremental cost for the periodic PM testing over the 3-year period is $16,200 three tests per year at $300 per test for 9 respondents for years 2 and 3 (facilities subject to subpart L have already conducted initial performance tests for PM emissions and opacity). For 40 CFR part 60, subpart La, the total incremental cost for PM testing over the 3-year period is $8,100 ( i.e., three tests per year at $300 per test for the two existing facilities that the EPA assumes will undergo reconstruction and one new facility) and the total incremental cost for opacity testing is $426 for EPA Method 22 training ( i.e., $426 one-time cost for the new facility). Based on a review of facility operating permits, the two existing facilities that we determined could be reconstructed over the 3-year period (thereby triggering NSPS subpart La applicability) already conduct periodic opacity tests using EPA Method 9. Therefore, the EPA did not estimate opacity testing costs for the two potential reconstructed facilities. The estimated total incremental cost for emissions testing for two reconstructed sources and one new source projected over the 3-year period is $8,526.

The EPA did not estimate cost impacts for the final monitoring requirements in 40 CFR part 60, subparts L and La because this action will allow subject facilities to comply with these subparts by complying with the applicable monitoring requirements for new sources specified in the NESHAP (40 CFR part 63, subpart X). Therefore, there is no additional monitoring burden.

The EPA conducted an economic impact analysis (EIA) and small business screening assessment for this final action, as discussed in the proposal for this action and detailed in the memorandum, Economic Impact Analysis for Final Revisions and Amendments to the New Source Performance Standards for Secondary Lead Smelters, which is available in the docket for this action. The economic impacts of this final action were estimated by comparing total annualized compliance costs to revenues at the ultimate parent company level. This is known as the cost-to-revenue or cost-to-sales test. This ratio provides a measure of the direct economic impact to ultimate parent company owners of facilities while presuming no impact on consumers.

As discussed in the proposal for this action, we estimate that the total cost for emissions testing, reporting, and recordkeeping projected over the 3-year period for the 9 sources subject to NSPS subpart L is $80,000. The average annual cost per facility is approximately $3,000. The 9 facilities subject to NSPS subpart L are owned by seven different parent companies with an annual average revenue of $4.5 billion in 2021. As discussed in section V.C. of this preamble, we assume the other 2 existing facilities will be modified or reconstructed and therefore will be subject to subpart La. The economic impact associated with this cost as an annual cost per sales, for the average parent company in the industry, is less than 0.0001 percent and is not expected to result in a significant market impact, regardless of whether it is fully passed on to the consumer or fully absorbed by the affected firms.

In addition, the cost analysis assumed that facilities subject to final 40 CFR part 60, subpart La would conduct initial and periodic tests for PM emissions and opacity, but would not need to install control devices to meet the final PM and opacity emissions limits because the new, modified, or reconstructed facility would install the same types of controls already necessary to comply with NESHAP subpart X. The EPA also assumed that facilities subject to the final NSPS subpart La would not incur monitoring costs attributed to the new NSPS.

The EPA views the testing costs to be upper-bound estimates on the potential compliance costs of the final 40 CFR part 60, subparts L and La. Even under the upper-bound cost assumptions described above, the EPA expects the potential economic impacts of this final action will be small.

As required by the Regulatory Flexibility Act (RFA), we performed an analysis to determine if any small entities might be disproportionately impacted by the final requirements. The EPA does not know with certainty which existing facilities may be reconstructed or modified in the future and subject to NSPS subpart La, and therefore cannot perform an accurate cost-to-sales analysis. However, based on an assessment of the projected growth in the secondary lead smelting industry, the EPA believes it is unlikely that any future facilities will be reconstructed or modified by a small business.

The final revisions to 40 CFR part 60, subparts L and La clarify both rules, improve the practical enforceability of the rules, and enhance compliance and enforcement. The EPA expects that implementing the final amendments to 40 CFR part 60, subparts L and La will help ensure that control systems used to reduce PM and opacity emissions from affected sources are properly operated and maintained over time.

Additionally, the final amendments to require electronic reporting of emissions test results in 40 CFR part 60, subparts L and La will ultimately reduce the burden on regulated facilities, delegated air agencies, and the EPA, and also improve access to data, minimize data reporting errors, and eliminate paper waste and redundancies.

Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms, which are specifically minority populations (people of color), low-income populations, and Indigenous peoples (59 FR 7629; February 16, 1994). Additionally, Executive Order 13985 is intended to advance racial equity and support underserved communities through Federal government actions (86 FR 7009; January 20, 2021). The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.”  2 The EPA further defines fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” In recognizing that people of color and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution. For purposes of analyzing regulatory impacts, the EPA relies upon its June 2016 Technical Guidance for Assessing Environmental Justice in Regulatory Analysis, 3 which provides recommendations that encourage analysts to conduct the highest quality analysis feasible, recognizing that data limitations, time, resource constraints, and analytical challenges will vary by media and circumstance. The Technical Guidance states that a regulatory action may involve potential EJ concerns if it could: (1) create new disproportionate impacts on minority populations, low-income populations, and/or indigenous peoples; (2) exacerbate existing disproportionate impacts on minority populations, low-income populations, and/or indigenous peoples; or (3) present opportunities to address existing disproportionate impacts on minority populations, low-income populations, and/or indigenous peoples through this action under development.

The Agency has conducted an analysis of the demographics of the populations living near existing facilities in the Secondary Lead Smelting source category. Because this action finalizes standards of performance for new, modified, and reconstructed sources that commence construction after December 1, 2022, the locations of the construction of new secondary lead smelters are not known. As discussed above, we assumed two existing facilities might be modified. However, it is not known with any certainty which of the existing secondary lead smelters might be modified or reconstructed. Therefore, the demographic analysis was conducted for the 11 existing secondary lead smelters as a proxy for the characterization of the demographics in areas where new, modified, or reconstructed source might be located in the future.

Section F. (“What analysis of environmental justice did we conduct?”) of the proposal preamble (87 FR 73708) presents the full results of the demographic analysis. The analysis included an assessment of individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the existing facilities. We then compared the data from the analysis to the national average for each of the demographic groups. The results show that, for populations within 5 km of the 11 secondary lead smelters, the percent Hispanic or Latino population is higher than the national average (38 percent versus 19 percent). The percent of “other and multiracial population” and people living in linguistic isolation within the same geographic area are higher than the national average (12 percent versus 8 percent and 8 percent versus 5 percent, respectively). The percent of the population over 25 without a high school diploma is higher than the national average (19 percent versus 12 percent), while the percent of the population living below the poverty line is similar to the national average. The results of the analysis of populations within 50 km of the 11 secondary lead smelters are similar to the 5 km analysis.

The technical report, Analysis of Demographic Factors for Populations Living Near Secondary Lead Smelting Source Category Operations, which is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481), presents the methodology and the results of the demographic analysis.

As indicated above, the locations of any new secondary lead smelting facilities that would be subject to NSPS subpart La are not known. Also, it is not known with any certainty which existing secondary lead smelters may be modified or reconstructed and subject to the NSPS subpart La. Thus, we are limited in our ability to estimate the potential EJ impacts of this rule. However, we anticipate the changes to the NSPS will generally minimize or reduce future emissions in surrounding communities of new, modified, or reconstructed facilities, including those communities with higher percentages of people of color. Furthermore, the EPA expects that the NSPS subpart La, will ensure compliance with the PM emissions and opacity limits at all times (including periods of SSM) via initial and periodic emissions testing. NSPS subpart La also codifies standards of performance reflecting improvements in PM control technologies that have occurred in the industry since promulgation of the current NSPS subpart L. Therefore, effects of emissions on populations in proximity to any future affected sources, including in communities potentially overburdened by pollution, which are often people of color, low-income, and Indigenous communities, will be minimized due to compliance with the standards of performance being finalized in this action.

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

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.

The information collection activities in this final rule have been submitted for approval to OMB under the PRA. The updated Information Collection Request (ICR) document that the EPA prepared for NSPS subpart L has been assigned EPA ICR number 1128.13, and the new ICR prepared for the final NSPS subpart La has been assigned EPA ICR number 2729.01. You can find copies of the ICRs in the docket for this rule, and they are briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

The EPA is finalizing amendments to the existing NSPS (40 CFR part 60, subpart L) that:

• Require periodic testing for PM emissions.

• Incorporate monitoring, recordkeeping, and reporting requirements that are consistent with NESHAP subpart X.

• Require electronic reporting of performance test results.

A summary of the ICR for NSPS subpart L follows:

Respondents/affected entities: Secondary lead smelting facilities.

Respondent's obligation to respond: Mandatory (40 CFR part 60, subpart L).

Estimated number of respondents: Nine existing facilities subject to 40 CFR part 60, subpart L.

Frequency of response: Annually.

Total estimated burden: The annual recordkeeping and reporting burden for facilities to comply with all the requirements in the NSPS is estimated to be 228 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: The annual recordkeeping and reporting costs for all facilities to comply with all the requirements in the NSPS is estimated to be $27,000 (per year).

The EPA is also finalizing a new subpart (40 CFR part 60, subpart La) for new, modified, or reconstructed facilities that commenced construction, reconstruction, or modification after December 1, 2022, that:

• Includes definitions for “blast furnace,” “lead,” “reverberatory furnace,” and “secondary lead smelter” that are the same as NSPS subpart L.

• Includes a definition for “process fugitive emissions source” to be consistent with the definition used in NESHAP subpart X.

• Establishes a tighter PM limit (10 mg/dscm) for blast and reverberatory furnaces.

• Establishes a new PM limit (4.9 mg/dscm) for process fugitive emissions sources.

• Establishes a tighter opacity limit (5 percent) for blast, reverberatory, and process fugitive emissions sources.

• Removes the exemptions for periods of SSM.

• Requires initial and periodic testing for PM emissions and opacity.

• Incorporates monitoring, recordkeeping, and reporting requirements that are consistent with the NESHAP (40 CFR part 63, subpart X).

• Requires electronic reporting of performance test results.

A summary of the ICR for NSPS subpart La follows:

Respondents/affected entities: Secondary lead smelting facilities.

Respondent's obligation to respond: Mandatory (40 CFR part 60, subpart La).

Estimated number of respondents: Three facilities (two reconstructed and one new source) in the next 3 years.

Frequency of response: Annually.

Total estimated burden: The annual recordkeeping and reporting burden for facilities to comply with all the requirements in the NSPS is estimated to be 127 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: The annual recordkeeping and reporting costs for all facilities to comply with all the requirements in the NSPS is estimated to be $14,000 (per year).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities (SISNOSE) under the RFA.

This action will not impose any significant requirements on small entities. Details of the analysis in support of this determination are presented in the memorandum titled, Economic Impact Analysis and Small Business Screening Assessment for Final Revisions and Amendments to the New Source Performance Standards for Secondary Lead Smelters, which is available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481).

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments, and there are no nationwide annualized costs of this final rule for affected industrial sources in the private sector.

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

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249; November 9, 2000). It will not have substantial direct effects on tribal governments, on the relationship between the Federal government and Indian Tribes or on the distribution of power and responsibilities between the Federal government and Indian Tribes, as specified in Executive Order 13175. This final rule imposes requirements on owners and operators of secondary lead smelting facilities and not tribal governments. The EPA does not know of any secondary lead smelting facilities owned or operated by Indian tribal governments. Thus, Executive Order 13175 does not apply to this action.

Executive Order 13045 directs Federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in Federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

The EPA does not believe there are disproportionate risks to children because the new NSPS subpart La lowers PM emissions and opacity from new, modified, or reconstructed secondary lead smelters compared to the current NSPS, which will benefit children's health. Additionally, the periodic PM emissions and opacity testing requirements of NSPS subparts La and L, and the updated monitoring, recordkeeping, and reporting requirements, improve compliance with emission limits, which also benefits children's health.

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

This action involves technical standards. The EPA is requiring use of EPA Method 5 (Determination of Particulate Matter emissions from Stationary Sources) to measure filterable PM and EPA Method 9 (Visual Determination of the Opacity of Emissions from Stationary Sources) to determine visible emissions from blast and reverberatory process vents and process fugitive emissions. Therefore, the EPA conducted searches for the Secondary Lead Smelting NSPS through the Enhanced National Standards Systems Network Database managed by the American National Standards Institute (ANSI). We also contacted voluntary consensus standards (VCS) organizations and accessed and searched their databases.

We conducted searches for EPA Methods 1, 1A, 2, 2A, 2B, 2C, 2D, 2F, 2G, 2H, 3, 3A, 3C, 4, 5, 9, 12, 22, and 29 of 40 CFR part 60, appendix A. During the EPA's VCS search, if the title or abstract (if provided) of the VCS described technical sampling and analytical procedures that are similar to the EPA's reference method, the EPA reviewed it as a potential equivalent method. We reviewed all potential standards to determine the practicality of the VCS for this rule. This review requires significant method validation data that meet the requirements of EPA Method 301 for accepting alternative methods or scientific, engineering, and policy equivalence to procedures in the EPA reference methods. The EPA may reconsider determinations of impracticality when additional information is available for a particular VCS. No applicable VCS were identified for EPA Methods 1, 1A, 2, 2A, 2B, 2C, 2D, 2F, 2G, 2H, 3, 3A, 3C, 4, 5, 12, 22, or 29.

In this final action, the EPA incorporates by reference the VCS ASTM D7520-16, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere approved April 1, 2016” which is an instrumental method to determine plume opacity in the outdoor ambient environment as an alternative to visual measurements made by certified smoke readers in accordance with EPA Method 9. The concept of ASTM D7520-16, also known as the Digital Camera Opacity Technique or DCOT, is a test protocol to determine the opacity of visible emissions using a digital camera. This method is based on previous method development using digital still cameras and field testing of those methods. The purpose of ASTM D7520-16 is to set a minimum level of performance for products that use DCOT to determine plume opacity in ambient environments.

The DCOT method is an acceptable alternative to EPA Method 9 with the following caveats:

• During the digital camera opacity technique (DCOT) certification procedure outlined in section 9.2 of ASTM D7520-16, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees, and mixed backgrounds (clouds and/or a sparse tree stand).

• You must also have SOP in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in section 8.1 of ASTM D7520-16.

• You must follow the recordkeeping procedures outlined in 40 CFR 63.10(b)(1) for the DCOT certification, compliance report, data sheets, and all raw unaltered JPEG files used for opacity and certification determination.

• You or the DCOT vendor must have a minimum of four independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of any one reading and the average error must not exceed 7.5 percent opacity.

• This approval does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software and operator in accordance with ASTM D7520-16 and this letter is on the facility, DCOT operator, and DCOT vendor. This method describes procedures to determine the opacity of a plume, using digital imagery and associated hardware and software, where opacity is caused by PM emitted from a stationary point source in the outdoor ambient environment. The opacity of emissions is determined by the application of a DCOT that consists of a digital still camera, analysis software, and the output function's content to obtain and interpret digital images to determine and report plume opacity.

The ASTM D7520-16 document is available from ASTM at https://www.astm.org or 1100 Barr Harbor Drive, West Conshohocken, PA 19428-2959, telephone number: (610) 832-9500, fax number: (610) 8329555; service@astm.org.

The EPA is finalizing the use of the guidance document, EPA-454/R-98-015, Office of Air Quality Planning and Standards (OAQPS Fabric Filter Bag Leak Detection Guidance, September 1997. This document provides guidance on the use of triboelectric monitors as fabric filter bag leak detectors. The document includes fabric filter and monitoring system descriptions; guidance on monitor selection, installation, setup, adjustment, and operation; and quality assurance procedures. Several types of instruments are available to monitor changes in particulate emission rates for the purpose of detecting fabric filter bag leaks or similar failures. The principles of operation of these instruments include electrical charge transfer and light scattering. The document is available at https://nepis.epa.gov/Exe/ZyPDF.cgi?Dockey=2000D5T6.PDF.

Additional information for the VCS search and determinations can be found in the docket for this final action (Docket ID No. EPA-HQ-OAR-2022-0481).

Executive Order 14096 (88 FR 25251, Apr. 26, 2023) directs federal agencies to advance the goal of environmental justice for all. This action builds upon and supplements the efforts of Executive Order 12898 (59 FR 7629, February 16, 1994) to address environmental justice.

The EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on communities with environmental justice concerns. The locations of future new, modified, and reconstructed secondary lead smelters are not known with any certainty. Therefore, we evaluated the populations living near existing secondary lead smelters as a proxy for the characteristics of the demographics in areas where a new, modified, or reconstructed source might locate in the future. The result of the analysis shows that the percent Hispanic or Latino population, “other and multiracial population” and people living in linguistic isolation within the same geographic area, over 25 without a high school diploma are higher than the national average.

The EPA believes that this action is likely to reduce existing potential disproportionate and adverse effects on communities with environmental justice concerns. We anticipate the changes to the NSPS will generally minimize or reduce future emissions in these communities that are in proximity to new, modified, or reconstructed facilities. Specifically, the EPA expects that the Standards of Performance for Secondary Lead Smelters Constructed after December 1, 2022, will ensure compliance with the PM and opacity limits at all times (including periods of SSM) via initial and periodic emissions testing and parametric monitoring of control devices. Subpart La also codifies improvements in PM control technologies that have occurred in the industry since promulgation of the current NSPS subpart L. Therefore, effects of emissions on populations in proximity to any future affected sources, including in communities with environmental justice concerns, will be minimized due to compliance with the standards of performance being finalized in this action.

The information supporting this Executive Order review is contained in a technical report, Analysis of Demographic Factors for Populations Living Near Secondary Lead Smelting Source Category Operations, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2022-0481), and in section IV.F. of the proposed rule's preamble (87 FR 73708), as well as summarized in section V.F. of this preamble.

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

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

This is a summary of the Commission's Second Report and Order ( Second Report and Order ) in WC Docket Nos. 13-97, 07-243, 20-67, and IB Docket No. 16-155, FCC 23-75, adopted on September 21, 2023, and released on September 22, 2023. The document is available for download at https://docs.fcc.gov/public/attachments/FCC-23-75A1.pdf. To request materials in accessible formats for people with disabilities ( e.g., Braille, large print, electronic files, audio format, etc.), send an email to FCC504@fcc.gov or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

This document may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. This document will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding.

The Commission sent a copy of the Second Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

Amendatory instructions are the standard terms that the Office of the Federal Register uses to give specific instructions on how to change the CFR. Due to the extensive number of technical and conforming amendments to 47 CFR 52.15(g)(3), including redesignations of existing paragraphs within the current rule, that will become effective 30 days following publication of this document, the Commission is utilizing the Office of the Federal Register's amendatory instruction “revise and republish” to codify the revisions to that paragraph. Use of this combined instruction allows the Commission to republish 47 CFR 52.15(g)(3) 30 days following publication of this document instead of using piecemeal amendments to revise the CFR. All other amendments, including subsequent amendments to 47 CFR 52.15(g)(3) that are delayed indefinitely, are made pursuant to specific amendatory instructions.

1. We adopt the Second Report and Order to further stem the tide of illegal robocalls perpetrated by interconnected VoIP providers, to protect the Nation's numbering resources from abuse by foreign bad actors, and to advance other important public policy objectives tied to the use of our Nation's limited numbering resources. To that end, we strategically update the Commission's direct access to numbering process. First, we require applicants seeking direct access to numbering resources to make robocall-related certifications to help ensure compliance with our rules targeting illegal robocalls. Second, we require applicants to disclose and keep current information about their ownership, including foreign ownership, to mitigate the risk of providing bad actors abroad with access to our numbering resources. Third, we require applicants to certify to their compliance with other Commission rules applicable to interconnected VoIP providers to bolster awareness and compliance with such rules. Fourth, we require applicants to comply with state laws and registration requirements that are applicable to businesses in each state in which numbers are requested. Fifth, we require applicants to include a signed declaration that their applications are true and accurate. Sixth, and finally, we codify the Wireline Competition Bureau's (Bureau) application review, application rejection, and authorization revocation processes.

2. Section 52.15(g)(2) of the Commission's rules governs the application process for numbering resources. It limits access to telephone numbers to entities that demonstrate they are authorized to provide service in the area for which they are requesting numbers. The North American Numbering Plan (NANP) is the basic numbering scheme for telecommunications networks located in the United States and its territories, Canada, and parts of the Caribbean. NANP telephone numbers are ten-digit numbers consisting of a three-digit area code, followed by a three-digit central office code, followed by a four-digit line number. The Commission has interpreted § 52.15(g)(2) to require evidence of either a state certificate of public convenience and necessity (CPCN) or a Commission license or authorization. Because only telecommunications carriers were able to provide this proof of authorization, in 2015, the Commission revised its numbering rules and adopted a process by which interconnected VoIP providers could satisfy this authorization requirement and thus obtain numbers directly from the Numbering Administrator. In the Second Report and Order, we refer to both the North American Numbering Plan Administrator and the Pooling Administrator as the Numbering Administrator. Although these functions are described separately in our rules, see, e.g., 47 CFR 52.13, 52.20, they are currently combined under a single Commission contract. The Commission found that permitting interconnected VoIP providers to obtain telephone numbers directly from the Numbering Administrator would improve responsiveness in the number porting process and improve the visibility and accuracy of number utilization, which would in turn enable the Commission to more effectively protect our Nation's limited numbering resources. Moreover, the Commission found that this change to its authorization process would enhance its ability to enforce rules governing interconnected VoIP providers, and help stakeholders and the Commission identify the source of routing problems and take corrective actions.

3. The Commission's rules now require interconnected VoIP providers obtaining numbering resources to comply with both the requirements applicable to telecommunications carriers seeking to obtain numbering resources and certain interconnected VoIP-specific requirements for applying for, and maintaining, a Commission authorization for direct access to numbering resources. Section 52.15(g) currently requires an interconnected VoIP applicant for direct access to numbering resources to: provide its company name, headquarters address, Operating Company Number (OCN), parent company's OCN(s), and the primary type of business in which the numbering resources will be used; provide contact information for personnel qualified to address issues relating to regulatory requirements, numbering, compliance, 911, and law enforcement; comply with applicable Commission rules related to numbering, including, among others, numbering utilization and optimization requirements (in particular, filing Numbering Resource Utilization and Forecast (NRUF) Reports); comply with guidelines and procedures adopted pursuant to numbering authority delegated to the states; and comply with industry guidelines and practices applicable to telecommunications carriers with regard to numbering; file requests for numbers with the relevant state commission(s) at least 30 days before requesting numbers from the Numbering Administrator; provide proof it is or will be capable of providing service within sixty (60) days of the numbering resources activation date in accordance with 47 CFR 52.15(g)(2), i.e., “facilities readiness”; certify that it complies with its Universal Service Fund contribution obligations, its Telecommunications Relay Service contribution obligations, its NANP and local number portability administration contribution obligations, its obligations to pay regulatory fees, and its 911 obligations; certify that it has the requisite technical, managerial, and financial capacity to provide service; include the name of its key management and technical personnel, such as the Chief Operating Officer and the Chief Technology Officer, or equivalent; and state that none of the identified personnel are being or have been investigated by the Commission or any law enforcement or regulatory agency for failure to comply with any law, rule, or order; and certify that no party to the application is subject to a denial of Federal benefits pursuant to section 5301 of the Anti-Drug Abuse Act of 1988.

4. The Commission directed and delegated authority to the Bureau to “implement and maintain the authorization process.” Bureau staff review applications for conformance with procedural rules, and if the rule requirements are satisfied, release an “Accepted-for-Filing Public Notice” seeking comment on the application. Applications are deemed granted by the Commission on the 31st day after the release of the public notice, unless the Bureau notifies the applicant that the grant will not be automatically effective. The Bureau may halt the auto-grant process if (1) an applicant fails to respond promptly to Commission inquiries, (2) an application is associated with a non-routine request for waiver of the Commission's rules, (3) timely filed comments on the application raise public interest concerns that require further Commission review, or (4) the Bureau determines that the request requires further analysis to determine whether the application serves the public interest.

5. Once an interconnected VoIP provider has Commission authorization to obtain numbering resources, it may request numbers directly from the Numbering Administrator. Interconnected VoIP providers that apply for and receive Commission authorization for direct access to numbering resources “are subject to, and acknowledge, Commission enforcement authority.” Failure to comply with the obligations set out by the Commission “could result in revocation of the Commission's authorization, the inability to obtain additional numbers pending that revocation, reclamation of unassigned numbers already obtained directly from the Numbering Administrators, or enforcement action.” The Commission delegated authority to both the Bureau and the Enforcement Bureau to order the revocation of authorization and to direct the Numbering Administrator to reclaim any of the service provider's unassigned numbers.

6. Based on lessons learned from reviewing scores of direct access applications since the 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), the Commission began to consider ways to update the interconnected VoIP provider application requirements to add important information that is useful or necessary to the Bureau's public interest review. To date, the Bureau has requested such information from applicants on a case-by-case basis where appropriate. For example, certain applications with significant foreign ownership that raise potential national security and/or law enforcement issues have been filed. Additionally, direct access applications have been challenged by commenters raising concerns about intercarrier compensation and call routing or call blocking practices.

7. In August 2021, the Commission adopted a Further Notice of Proposed Rulemaking (FNPRM), 86 FR 51081, seeking comment on how to improve the interconnected VoIP direct access application process to address the identified gaps in the direct access application process, the continued scourge of illegal robocalls, national security, and number resource exhaust. We received comments from a wide range of stakeholders, including state public utility commissions, interconnected VoIP providers, industry standards groups and trade associations, and consumer advocates.

8. The application process for interconnected VoIP providers' direct access to numbering is the first line of defense in mitigating the risk of providing scarce numbering resources to bad actors. It is thus critically important that the rules governing this process prevent, to the greatest extent possible, interconnected VoIP providers that engage in unlawful robocalling or spoofing, or otherwise threaten the national security and law enforcement interests of the United States, from accessing or retaining our Nation's numbering resources. While our direct access rules currently contemplate that the Bureau may request supplemental information as necessary to conduct a thorough public interest review, the rule changes we adopt in this document make certain previously supplemental showings a mandatory prerequisite before the Bureau accepts new applications for filing and grants such applications in the public interest. The rules we adopt in this document strike an appropriate balance between establishing necessary checks on interconnected VoIP direct access applicants and authorization holders and fostering an efficient direct access process that has, in part, facilitated the ongoing technological transition to advanced IP communications networks.

9. First, we tighten our application requirements to ensure that the Bureau receives sufficient detail from interconnected VoIP applicants to make informed, public-interest-driven decisions about their direct access applications and thereby protect the public from bad actors. These new requirements will also increase our enforcement capabilities should we find that providers are skirting our rules. Upon the effective date of these rules, we require explicit acknowledgment of compliance with all robocall regulations; implement disclosure and update requirements regarding ownership and control; require certification of compliance with other applicable Commission regulations and certain state law; and add a declaration requirement to hold applicants accountable for the truthfulness and accuracy of their direct access applications.

10. We adopt our proposal to require a direct access applicant to certify that it will use numbering resources lawfully and will not encourage, assist, or facilitate illegal robocalls, illegal spoofing, or fraud. Protecting Americans from the harmful effects of unwanted and illegal robocalls remains the Commission's top consumer protection priority. More than just a nuisance, illegal robocalls continue to expose millions of American consumers to harmful risks. The Commission has estimated that $10.5 billion is lost annually by consumers due to illegal robocalls, not accounting for the non-quantifiable losses suffered by consumers and the erosion of confidence in the Nation's telephone network. The Commission has also found that the potential benefits resulting from eliminating the wasted time and nuisances caused by illegal scam robocalls would exceed $3 billion annually. The Commission receives more complaints about such unwanted calls than about anything else—approximately 119,000 last year alone. The Commission received approximately 193,000 such complaints in 2019, 157,000 in 2020, 164,000 in 2021, and 119,000 in 2022.

11. To help curb illegal robocalls and enhance the Bureau staff's ability to protect the public interest from such calls, the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), proposed requiring applicants to certify in their direct access applications to numerous statements regarding illegal robocalls and the Robocall Mitigation Database and to disclose whether they are subject to a robocall-related action, investigation, or inquiry from various enforcement entities. We proposed requiring applicants for direct access to certify that they: (1) will use numbering resources lawfully; (2) will not encourage nor assist and facilitate illegal robocalls, illegal spoofing, or fraud; (3) will take reasonable steps to cease origination, termination, and/or transmission of illegal robocalls once discovered; (4) will cooperate with the Commission, Federal, and state law enforcement and regulatory agencies with relevant jurisdiction, and the industry-led registered consortium, regarding efforts to mitigate illegal or harmful robocalling or spoofing and tracebacks; (5) have filed in the Robocall Mitigation Database; (6) have either (A) fully implemented the STIR/SHAKEN caller ID authentication protocols and framework or (B) have implemented either STIR/SHAKEN caller ID authentication or a robocall mitigation program for all calls for which it acts as a voice service provider, and if the latter, have described in the Database the detailed steps they are taking regarding number use that can reasonably be expected to reduce the origination and transmission of illegal robocalls. We also proposed requiring direct access applicants or authorization holders to inform the Commission if they are subject to a Commission, law enforcement, or regulatory action, investigation, or inquiry due to their robocall mitigation plan being deemed insufficient or problematic, or due to suspected unlawful robocalling or spoofing, and to acknowledge this requirement in their applications. We received substantial opposition from a wide range of commenters in response to these proposals. Many commenters argued that our proposed approach would risk creating redundancies and cause confusion because interconnected VoIP providers are already subject to the Commission's comprehensive framework to combat illegal robocalls. Some commenters also argued that our proposals would not effectively reduce the origination of illegal robocalls, or would impact interconnected VoIP providers' competitiveness with other types of providers by imposing on them unique burdens. Upon consideration of the record, we adopt a more straightforward approach that avoids these concerns and instead cross-references the relevant Commission rules targeting illegal robocalls in our new certifications.

12. Robocall-related certifications. We revise § 52.15(g)(3) of the Commission's rules to require an interconnected VoIP provider seeking direct access to numbering resources to certify that: the applicant will not use the numbers obtained pursuant to an interconnected VoIP provider numbering authorization to knowingly transmit, encourage, assist, or facilitate illegal robocalls, illegal spoofing, or fraud, in violation of robocall, spoofing, and deceptive telemarketing obligations under 47 CFR 64.1200, 64.1604, and 64.6300 through 64.6308 and 16 CFR 310.3(b) [As voice service providers, interconnected VoIP providers must comply with all regulations that target illegal robocalls that are generally applicable to all voice service providers. Additionally, interconnected VoIP providers acting as terminating, originating, intermediate, and/or gateway providers must accordingly also comply with the specific regulations targeting illegal robocalls that are applicable to each type of provider. Some commenters propose additional changes to the robocalling rules that are not necessarily tied to direct access to numbers or limited to interconnected VoIP providers. We decline to adopt or address these proposals, as they are beyond the scope of this proceeding]; the applicant has fully complied with all applicable STIR/SHAKEN caller ID authentication and robocall mitigation program requirements and filed a certification in the Robocall Mitigation Database as required by 47 CFR 64.6301 through 64.6305 [Accordingly, should the Commission deem the applicant's filing insufficient and remove it from the Robocall Mitigation Database, the applicant may not validly certify to this statement. As noted above, we proposed requiring interconnected VoIP providers to certify that they will cooperate with various governmental agencies and the industry-led registered consortium regarding efforts to mitigate illegal or harmful robocalling or spoofing and tracebacks. In our recent Caller ID Authentication Sixth Report and Order, 88 FR 29035 (May 5, 2023), we expanded the scope of a similar Robocall Mitigation Database certification requirement to cover all providers. We thus decline to adopt our proposal here to avoid imposing redundant requirements]; and neither the applicant nor any of its key personnel identified in the application are or have been subject to a Commission, law enforcement, or any regulatory agency investigation for failure to comply with any law, rule, or order, including the Commission's rules applicable to unlawful robocalls or unlawful spoofing. Our rules already require interconnected VoIP direct access applicants to certify that none of the key personnel identified in their applications are or have been subject to a Commission, law enforcement, or regulatory agency investigation for failure to comply with any law, rule, or order. By adding the language regarding the Commission's rules applicable to unlawful robocalls or unlawful spoofing to the end of the provision, we do not narrow the broader scope of the certification, as VON suggests, but rather place additional emphasis on the need for applicants to disclose robocalling compliance issues to the Commission. Additionally, we note that this certification is consistent with the reporting requirements recently adopted by the Commission for all providers to certify as to whether they have been the subject of a formal Commission, law enforcement, or regulatory agency action or investigation with accompanying findings of actual or suspected wrongdoing due to the filing entity transmitting, encouraging, assisting, or otherwise facilitating illegal robocalls or spoofing. We decline at this time to adopt our proposal to expand the sphere of proceedings ( i.e., to include “actions” and “inquiries” in addition to investigations) covered by this certification, as we agree with RingCentral that the proposal was vaguely worded and therefore did not “provide[ ] sufficient notice to enable providers to comply.” Additionally, we emphasize that being subject to an investigation would not necessarily disqualify an applicant from receiving direct access authority. In the event an applicant is not able to certify that it is not subject to a Commission, law enforcement, or regulatory agency investigation, an applicant can explain in its application why the investigation should not disqualify the applicant from receiving direct access authorization. For example, an applicant could provide information rebutting a warning letter ( e.g., a cease-and-desist letter) of suspected illegal robocalling received from the Commission or Federal Trade Commission (FTC) and/or a description of the steps the applicant has taken to respond to such a letter.

13. The additional certifications we adopt in this document strike a balance between acknowledging interconnected VoIP providers' disproportionate role in the facilitation of illegal robocalls, and ensuring that our approach is minimally burdensome and competitively neutral. This approach accords with our recent decision in the Caller ID Authentication Sixth Report and Order, 88 FR 29035 (May 5, 2023), not to adopt heightened robocall mitigation standards for interconnected VoIP providers. Consistent with the record here, we do not adopt new obligations regarding STIR/SHAKEN caller ID authentication or robocall mitigation specifically for interconnected VoIP providers, but instead merely require those providers to certify that they will comply, or have complied, with certain preexisting requirements. By requiring applicants to certify compliance with preexisting rule sections, we ensure that our approach does not cause confusion, and remains accurate should we decide to revise the robocall-related obligations applicable to voice service providers in the Call Authentication Trust Anchor or other robocall-related dockets. These certifications are not redundant and serve an important proactive educational function—alerting interconnected VoIP providers at the outset of the direct access application process of important obligations, thereby helping to ensure robust compliance and foster a more trustful numbering ecosystem. As explained below, the certifications carry the weight of the Commission's requirement that an officer or responsible official of the company attests under penalty of perjury, pursuant to § 1.16 of the Commission's rules, that all statements in the application are true and accurate. These certifications will thus serve the public interest by further deterring direct access applicants from engaging in unlawful robocalling or spoofing, and by giving the Commission another enforcement mechanism to use against bad actors. Our requirement that applicants certify that they are not subject to an investigation, including a robocall-related investigation, paired with our preexisting rule that authorization holders must maintain the accuracy of their certifications, will keep us informed of such investigations as they arise. The Commission publishes an up-to-date list of robocall-related cease-and-desist letters that it has sent to voice service providers. Due to the persistence of robocalls and associated complaints nationwide, we unsurprisingly received broad support for adding robocall-specific certifications to direct access applications from governmental entities. RingCentral additionally supports our approach of strengthening our enforcement of already existing requirements.

14. Some commenters contend that these new certifications could incentivize interconnected VoIP providers to obtain numbers from the secondary market, rather than by applying for direct access. This, they posit, would be a negative outcome because direct access to numbers facilitates traceback requests and gives regulators better visibility into number utilization. While we agree with commenters regarding the benefits of direct access, we disagree that our new certifications will push interconnected VoIP providers into the secondary market. The additional certifications we adopt in this document are minimally burdensome as they do not add any new substantive obligations, and are only incremental to the existing certifications required by the Commission's rules. We are therefore confident that the incremental cost of filing such certifications will not materially impact an interconnected VoIP provider's decision regarding numbering resource acquisition. We note the other issues raised by TelSwitch are outside the scope of this proceeding.

15. Notification of investigations post-grant. In the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we proposed requiring direct access authorization holders to inform the Commission if the authorization holder is subject—either at the time of its application or after its filing or its grant—to a Commission, law enforcement, or regulatory agency action, investigation, or inquiry due to its robocall mitigation plan being deemed insufficient or problematic, or due to suspected unlawful robocalling or spoofing. We decline to adopt our proposal at this time. Because we adopt a new certification in this regard (as explained above), and because the Commission's rules already contain a requirement that an authorization holder “[m]aintain the accuracy of all . . . certifications in its application,” and “file a correction with the Commission . . . within thirty (30) days” of any changes, adopting this proposal is unnecessary. By taking this approach, we address RingCentral's concern regarding adding a potentially confusing additional layer of reporting requirements beyond what is already required by the current rule. We are satisfied that our current requirement to keep all certifications up-to-date will capture our new robocall-related certifications, and will keep us apprised of any new investigations involving interconnected VoIP direct access authorization holders.

16. We adopt rules to require the disclosure and review of foreign ownership and control of interconnected VoIP direct access applicants. The Commission has recognized that “[i]llegal robocalling often originates from sources outside the United States,” and “[t]he Commission and Congress have long acknowledged that illegal robocalls that originate abroad are a significant part of the robocall problem.” Indeed, in 2020, the North American Numbering Council (NANC), the Commission's advisory committee of outside experts on telephone numbering matters, stated that “it is a long-standing problem that international gateway traffic is a significant source of fraudulent traffic.” The Commission accordingly strives to stay abreast of foreign companies using U.S. telephone numbers. For example, it has stressed that “[e]nsuring that foreign voice service providers using U.S. telephone numbers comply with the certification requirements prior to being listed in the database is especially important in light of the prevalence of foreign-originated illegal robocalls aimed at U.S. consumers and the difficulty in eliminating such calls.” Foreign ownership of providers serving our Nation's consumers also is a matter of concern for the Commission generally, as it may pose national security and/or law enforcement risks to the United States. VoIP providers require particular scrutiny in the robocall area as well, given that “[t]he rising tide of robocalls and the emergence of VoIP go hand in hand.” In fact, “[t]oday, widely available VoIP software can allow bad actors with malicious intent to make spoofed calls with minimal technical experience and cost.” As a result, “[a]llowing [VoIP providers with foreign ownership or control] direct access to numbers and critical numbering databases raises a number of potential risks, including the impact to number conservation requirements; questions related to jurisdiction, oversight, and enforcement of numbering rules; consideration of assessment of taxes and fees upon foreign-owned entities; and potential national security and law enforcement risks with access to U.S. telecommunications network operations.” These factors make it important for the Commission to know about foreign ownership of interconnected VoIP providers seeking direct access to our Nation's finite numbering resources, especially because a number of providers with substantial foreign ownership have applied to obtain direct access to numbering resources since the 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015).

17. The current rules on direct access applications, however, do not require interconnected VoIP providers to disclose any information about their ownership or affiliation, nor do they specify a process to evaluate applications with substantial foreign ownership. The VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), therefore proposed requirements aimed at ascertaining the foreign ownership and control of interconnected VoIP applicants and tentatively concluded that applicants should disclose any 10% or greater “equity and/or voting interest, or a controlling interest.” It also proposed requiring such applicants to identify any interlocking directorates with a foreign carrier, as well as any affiliation with a foreign carrier. As discussed below, we now adopt ownership disclosure requirements for interconnected VoIP direct access applicants, and relatedly conclude that applications from such providers will be placed on a “non-streamlined” processing track if the applicant has a foreign owner whose interest exceeds the reporting threshold set forth in § 63.18(h) of the Commission's rules, which we incorporate for purposes of ownership reporting here.

18. Ownership disclosure requirements. We adopt a rule to require interconnected VoIP applicants for a Commission direct access authorization to provide all of the information, disclosures, and certifications required by § 63.18(h) and (i) of the Commission's rules. If the applicant does not have information required to be provided under § 63.18(h) and (i), the application must include a statement to that effect. This approach ensures the requirements for interconnected VoIP direct access applicants match the requirements for international section 214 applications, as well as applications for submarine cable landing licenses (which likewise cross-reference § 63.18(h)). It also ensures the requirements for interconnected VoIP direct access applicants will remain consistent with the requirements for international section 214 applicants regardless of any modifications to § 63.18(h) or (i). For example, the Commission adopted changes to § 63.18(h) in 2020. The amendments to § 63.18(h), however, are not yet effective. The Commission also has a pending rulemaking proceeding seeking comment, among other things, on whether to adopt a new ownership reporting threshold that would require disclosure of certain 5% percent or greater direct and indirect equity and/or voting interests with respect to applications for international section 214 authority and modification, assignment, transfer of control, and renewal of international section 214 authority, and on whether to apply the 5% reporting threshold to encompass all equity and voting interests, regardless of whether the interest holder is a domestic or foreign individual or entity. In that proceeding, the Commission stated, “[t]he current 10% reporting threshold may not capture all foreign interests that may present national security, law enforcement, foreign policy, and/or trade policy concerns.” If the Commission amends § 63.18(h) by adopting a 5% reporting threshold, we direct the Bureau to seek comment on whether applicants for a direct access authorization should disclose information, including the name, address, citizenship, and principal business, of any individual or entity that directly or indirectly owns 5% percent or greater equity and/or voting interests, or a controlling interest, of the applicant. Based upon the Bureau's review of the comments, we further delegate to the Bureau the authority to address any such final threshold requirement in a public notice. We find that adopting a reporting threshold consistent with that used in other Commission application processing regimes promotes certainty and transparency. This approach also ensures there is no undue burden on direct access applicants, since many companies already provide the same or similar information to the Commission in other contexts.

19. Adopting the same standards that will be used for international section 214 applications, [Note that applicants seeking assignment or transfer of control of an international section 214 authorization are also subject to the ownership-disclosure requirement in § 63.18(h) pursuant to § 63.24.] in particular, is appropriate given our focus on national security and law enforcement concerns and reducing risks of illegal robocalling facilitated by potential bad actors abroad. Requiring ownership information, from a U.S.- or foreign-owned applicant, will assist Bureau staff in their existing practice of identifying applications that require further review to determine whether the direct access applicant's ownership, control, or affiliation raises national security and/or law enforcement concerns. Indeed, “[i]t is axiomatic that the Commission needs accurate information in order to carry out its work, and this is especially true with regard to compliance with foreign ownership disclosures. In several recent cases the Commission has found that foreign ownership of telecommunications companies providing services in the United States may pose a risk to national security, law enforcement interests, or the safety of U.S. persons.” As noted above, several providers with substantial foreign ownership have applied to obtain direct access to numbering resources since adoption of the 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), making the initial review process especially important to address the risk of providing access to our numbering resources to potential bad actors abroad. This requirement also will cause applicants to conduct robust due diligence, thus increasing the reliability of their information.

20. The record largely supports instituting some form of ownership disclosure for direct access applicants. We decline to adopt a higher threshold because, as we recognized in the international section 214 context, “although a 10-percent threshold is somewhat more burdensome [than a higher threshold], that increased burden does not outweigh the potential value to the Commission of being able to review the additional information about the applicant's ownership. Leaving the threshold at 10% or greater will help us determine whether a particular application raises issues of national security, foreign policy, or law enforcement risks.” VON and Microsoft, however, argue that a foreign ownership reporting requirement “will add unnecessary time and expense to the review process without any obvious purpose or anticipated reduction in illegal robocalls.” While we recognize that an ownership disclosure requirement constitutes an additional step in the direct access application process for interconnected VoIP providers, we conclude that the public interest in receiving this information outweighs any incremental cost on applicants. Interconnected VoIP providers that seek access to telephone numbers on a permanent basis acquire both the rights and obligations associated with using that access in the public interest, and we must ensure that access does not result in illegal practices that harm consumers. As noted above, the ownership disclosures we adopt are like those required in several other Commission application processes, so requiring the same kind of disclosure here is not unduly onerous. Twilio argues that applicants for growth numbering resources should not have to disclose ownership information in those applications because they would already have been granted access to numbers. We are not revising the rules on applications for growth numbering resources in 47 CFR 52.15(g)(4). We do, however, address below the duty to update ownership disclosures when the relevant information changes. Moreover, an applicant that is a privately held entity should know its investors and maintain records of their significant direct or indirect equity and/or voting interest holders in the ordinary course of business. An applicant that is a publicly held company is also required to identify its interest holders in requisite filings with the U.S. Securities and Exchange Commission (SEC). As in other contexts requiring the same kind of ownership disclosure, the relatively minor burden of disclosing ownership information in a direct access application is outweighed by the public interest benefit of the Commission having the information when the application is filed, in time to address potential issues raised by foreign ownership before granting an applicant rights or privileges.

21. Non-streamlined pleading cycle for direct access applicants with reportable foreign ownership. As proposed in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we amend our rules to state that the Bureau will remove applications from streamlined processing whenever the applicant has reportable foreign ownership, meaning ownership or control by a foreign entity that meets or exceeds the threshold for disclosure under § 63.18(h) of the Commission's rules, as now incorporated in § 52.15(g)(3). The rule formalizes the current practice of taking applications with substantial foreign ownership off the streamlined processing cycle.

22. Allowing sufficient time for review of applications with reportable foreign ownership will help the Bureau identify and assess potential national security and law enforcement risks raised by such applications, and provide transparency to applicants regarding the timeframe for processing their applications. Twilio supported this proposal, and no commenter opposed it.

23. Referral of applications with reportable foreign ownership to Executive Branch agencies. We decline to automatically refer to the Executive Branch agencies interconnected VoIP providers' direct access applications that have reportable foreign ownership or control. There was a lack of strong record support for automatic referrals. Moreover, given the limited number of referrals to date, it is more prudent and efficient to continue the current practice under § 1.40001(a) of the rules, where the Commission, in its discretion, makes case-by-case referrals of direct access applications if it finds that “the specific circumstances of an application require the input of the Executive Branch as part of [the Commission's] public interest determination of whether an application raises national security, law enforcement, foreign policy, and/or trade policy concerns.”

24. Development of standard questions. We also decline to develop a list of “Standard Questions” for interconnected VoIP applicants with reportable foreign ownership or control. While the Commission has adopted “a standardized set of national security and law enforcement questions (Standard Questions) that certain applicants and petitioners . . . with reportable foreign ownership will be required to answer as part of the Executive Branch review process,” there was no strong record support for developing such questions for all interconnected VoIP direct access applicants with reportable foreign ownership. Given the lack of a developed record and our decision not to automatically refer applications to the Executive Branch agencies when an interconnected VoIP provider has reportable foreign ownership, we find it appropriate to rely on the current practice, under which Commission staff and the Executive Branch agencies can request additional information from applicants on a case-by-case basis.

25. Duty to update ownership information. To ensure ownership information remains up to date, we revise § 52.15(g)(3) to require interconnected VoIP providers that obtain direct access authorization under the revised rules to submit an update to the Commission and each applicable state ( i.e., each state where the provider has acquired or applied to receive numbers from the state at the time of the ownership change) within 30 days of any change to the reportable ownership information disclosed in their direct access applications, or if a provider that previously did not have reportable ownership information comes to have reportable foreign ownership information. For example, if a provider had no reportable ownership information at the time of its application but a person or entity later came to possess more than 10% of the equity in the provider, the provider would have to report the change. If a provider had reportable ownership information at the time of its application but the ownership changes ( e.g., a holder of 10% of the equity came to hold 50%), the provider would have to report than change. But if there is a change in ownership that does not reach the reportable level ( e.g., a holder of two percent of the equity came to hold six percent), no update would have to be filed. Alternatively, if the provider that obtained direct access authorization under our revised rules did not have reportable ownership percentages and information (whether on domestic or foreign owners) at the time of its original application, but subsequently has reportable information, we require it to provide the information as an update to its authorization within a 30-day timeframe. We also delegate authority to the Bureau to direct the Numbering Administrator to suspend number requests if the Bureau determines, based on updated information, that further review of the direct access authorization is necessary.

26. This requirement builds upon the current rules, which require each interconnected VoIP provider with direct access to numbering resources to maintain the accuracy of all the contact information and certifications submitted in its application, and to file a correction with the Commission and each applicable state within 30 days of any change to the contact information or certifications. Going forward, obtaining such updates regarding changes to ownership information will help us ensure that direct access authorization holders' ownership does not change post-authorization in a manner contrary to the public interest, such as introducing a potential bad actor-owner that facilitates illegal robocalling, poses a threat to the national security and law enforcement interests of the United States, or otherwise engages in conduct detrimental to the public interest. Under the current rules, bad actors could surreptitiously strengthen their influence on authorization holders by increasing their ownership after the Commission grants the initial authorization, thereby evading Commission oversight and undermining enforcement efforts if that change in ownership levels did not have to be reported. By requiring all ownership information to be updated within 30 days of a change, potential bad actors can no longer remain hidden from view. In fact, such information can be used to determine whether a change in authorization is warranted ( e.g., making the authorization be conditioned on a mitigation agreement, or even revoking the authorization).

27. The National Association of Attorneys General supports requiring interconnected VoIP authorization grantees to update their ownership information after a change. Some commenters oppose it, however, arguing that such a requirement would be onerous and unnecessary, especially with regard to information that has no bearing on the Commission's objective to prevent foreign bad actors from gaining direct access to U.S. numbers, and is not competitively neutral because non-VoIP providers would not have to provide it. Twilio also questions whether the 30-day deadline is truly necessary to advance the Commission's objectives, rather than an annual or biennial update.

28. We reject these arguments because we believe the public interest benefit of a requirement to keep all ownership data up to date within 30 days of a change outweighs the minimal burden on grantees. As stated in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), “obtaining such updates will help us to ensure that the ownership [of grantees] does not change post-authorization in a manner that evades the purpose of application review.” No commenter proposed a “materiality threshold” to determine when ownership data updates must be filed, and we therefore decline to adopt one. Absent an update requirement, applicants could skirt the more extensive review that applies to applications with reportable foreign ownership simply by delaying the investment by a foreign entity. This could even occur unintentionally as the result of an unexpected investment or buyout by a foreign entity. In either case, the update requirement helps ensure authorization holders with reportable foreign ownership receive an appropriate level of scrutiny in light of their changed ownership, so the Commission could consider, for example, whether the provider should enter a robocall mitigation agreement. We also conclude that requiring updates within 30 days, rather than annually or biennially, is a better way to ensure the Commission has current information, and that providing updated ownership information is relevant to our efforts to eliminate illegal robocalls for all the reasons stated above regarding providing foreign ownership data in applications. Finally, while non-VoIP direct access applicants are not covered by this new rule, we do not believe the burden on interconnected VoIP providers is so large as to affect competition, and in any event do not foreclose imposing this same duty on non-VoIP applicants in the future.

29. Filing procedure. We require all updated or corrected ownership information to be filed in the Electronic Comment Filing System (ECFS) through the Direct Access intake docket (Inbox 52.15) and via email to DAA@fcc.gov, unless the Bureau specifies another method. We note that the Bureau may request additional documentation as necessary.

30. State submission requirement. Interconnected VoIP providers obtaining direct access authorization under the revised rules we issue in this document also are required to submit updated or corrected ownership information to the states from which the authorization holder has acquired or requested numbers at the time of the ownership change. Such information should be submitted to states in the same manner the providers would submit a correction or update to their original applications.

31. Executive Branch agencies' review of corrected information. As proposed in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we also delegate authority to the Bureau to direct the Numbering Administrator, pursuant to its applicable procedures, to suspend all pending and future requests for numbers if the updated or corrected ownership information submitted by an authorization holder indicates a material change or discloses new information such that additional investigation is necessary to confirm that the authorization still serves the public interest. In the foreign ownership context, if updated or corrected ownership information leads the Commission to refer the authorization holder to the Executive Branch agencies, the Bureau shall also direct the Numbering Administrator to suspend all pending and future requests for numbers until such review is complete and a determination is made by the Bureau.

32. Use of numbers after submission of updated or new information. Finally, we note that authorization holders may continue to use numbers they obtained prior to submitting updated or corrected ownership information to the Bureau unless the Bureau determines that the authorization must be revoked per the formal revocation procedure we adopt below.

33. Under our current rules, interconnected VoIP providers seeking to obtain numbers must comply with various obligations that are designed to enhance public safety, prevent access stimulation and intercarrier compensation abuse, ensure that Commission broadband maps are accurate, and ensure that providers actually provide the service they describe. As we do in the robocall context above, we increase our enforcement capabilities and strengthen those rules by requiring interconnected VoIP providers to make certifications regarding their compliance with those rules in their direct access applications.

34. Public safety certification. Consistent with our proposal in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we revise § 52.15(g)(3) of the Commission's rules to require interconnected VoIP applicants for direct access authorization to certify that they comply with the Communications Assistance with Law Enforcement Act (CALEA). We also require applicants to provide evidence in their application that demonstrates their compliance with the Commission's part 9 public safety rules and CALEA. To preserve flexibility and minimize burdens, we decline to prescribe precisely what evidence should be submitted to satisfy this requirement. We note that technical specifications and call-flow diagrams “have been helpful to Commission staff in assessing direct access applicants' compliance with 911 service and CALEA requirements in some cases.” Evidence of 911 service agreements may also be helpful to the Bureau's review. We additionally delegate to Bureau or other Commission staff the right to request additional documentation from the applicant to demonstrate compliance with these public safety obligations, where necessary.

35. As with the other certifications we adopt in this document, this new certification requirement will provide the Commission with additional enforcement abilities should the Bureau find that an authorization holder does not in fact comply with our public safety rules or CALEA. Our requirement to provide evidence of compliance with these obligations merely formalizes the preexisting Bureau practice of requesting such evidence after an application's submission. By requiring this evidentiary showing at the outset, we promote efficiency by ensuring Bureau staff have the relevant documentation when they begin their application review. Additionally, because the ability to provide public safety answering points (PSAPs) with caller location and call-back numbers necessitates two-way interconnection with the public switched telephone network (PSTN), this requirement will help Bureau staff assess whether an applicant actually provides interconnected VoIP service.

36. Several parties support this measure. The Maine Public Utilities Commission suggests that we should additionally require providers to submit the 911-related documentation to state regulatory and public safety agencies. Additionally, Lumen and USTelecom argue that this documentation submission requirement would be unduly burdensome if applied retroactively to existing authorization holders. We understand these concerns and decline to make this requirement retroactive at this time. We decline to take this approach because state regulatory agencies vary widely in terms of their jurisdiction over interconnected VoIP providers. While some states treat interconnected VoIP providers like communications service providers for specified purposes, others have statutes expressly limiting or removing their jurisdiction over interconnected VoIP providers altogether. A general requirement to send such documentation to state regulatory agencies would not be tailored appropriately to ensure only those agencies that have an interest in that information would receive it. Tailoring such a requirement to apply only to those states with jurisdiction over interconnected VoIP providers is also undesirable because it would create regulatory asymmetry that is not competitively neutral. We address additional state-related issues in Part III.A.4 below.

37. Access Stimulation certification. The VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), sought comment on possible changes to our direct access authorization rules to help combat Access Stimulation and other forms of intercarrier compensation arbitrage. In April of this year, we adopted a Second Report and Order, 88 FR 35743 (June 1, 2023) ( Access Arbitrage Second Report and Order ), in the Access Arbitrage docket which closed perceived loopholes in our Access Stimulation rules that some entities, including interconnected VoIP providers, were exploiting to the detriment of interexchange carriers (IXCs) and their end-user customers. Given the revisions to our Access Stimulation rules adding new requirements for internet Protocol Enabled Service (IPES) Providers—which include interconnected VoIP providers—we adopt a new certification that cross-references those new rules to help ensure applicants for direct access to numbers are aware of, and comply with them. We thus revise § 52.15(g)(3) of the Commission's rules to require interconnected VoIP providers applying for direct access to numbers to certify that they comply with our Access Stimulation rules found in 47 CFR 51.914.

38. We adopt this requirement to help alleviate concerns that direct access authorization will be used to evade our Access Stimulation rules when the applicant is directly or indirectly related to an entity suspected of being an access stimulator. In our recent Access Arbitrage Second Report and Order, 88 FR 35743 (June 1, 2023), we noted that, “[d]espite multiple orders and investigations making clear the Commission will not tolerate access arbitrage, some providers continue to manipulate their call traffic or call flows in attempts to evade our rules. Recently, [local exchange carriers (LECs)] have inserted [IPES] Providers into call paths as part of an ongoing effort to evade our rules and to continue to engage in access stimulation. After inserting an IPES Provider into the call flow, the LEC then claims that it is not engaged in access stimulation as currently defined in our rules.” This requirement will provide an additional enforcement mechanism if it is violated, including the potential for revocation of the provider's direct access authorization. As with the other certifications we adopt in this document, we expect the threat of enforcement action related to a false certification to deter applications by those that would violate our rules, including those related to Access Stimulation.

39. Commenters in both the Direct Access and our Access Arbitrage dockets have expressed support for this type of certification requirement as a means to deter interconnected VoIP providers from engaging in schemes to avoid the Access Stimulation rules. Verizon, for example, stated that “IPES providers with direct access should acknowledge and affirmatively agree to observe the Commission's access stimulation rules. Access stimulating IPES providers would face consequences for making false certifications to the Commission.” AT&T agreed with Verizon, stating that “[s]uch a requirement will give the Commission an additional arrow in its quiver in the fight against harmful arbitrage schemes and should not place an undue administrative burden on IPES providers.” We believe that these benefits Verizon and AT&T raise outweigh the concerns from some commenters that certifications that require interconnected VoIP providers to state their compliance with existing rules are duplicative or unnecessary.

40. We decline to adopt additional requirements beyond the certification at this time, as our newly adopted Access Stimulation rules are designed to help address the issues that commenters have noted in this docket. Should we find that more action is necessary to restrict interconnected VoIP providers' engagement in Access Stimulation schemes, we reserve the ability to revisit our conclusion here. We also agree with CCA that many of the suggestions we received in the record “go well beyond the scope of the Further Notice, [and] are not specifically related to interconnected VoIP providers directly obtaining telephone numbers.”

41. FCC Form 477 and 499 filings. Under our rules, interconnected VoIP providers that have qualifying subscribers must file FCC Forms 477 and 499. Interconnected VoIP providers that have one or more revenue-generating end-user customers must file FCC Form 477, a semiannual reporting obligation that, for interconnected VoIP providers, collects data regarding (1) the number of service subscriptions sold to their own end-user customers by census tract and, for each census tract, shall provide the number of subscriptions provided under consumer service plans; and (2) the service characteristics for its subscriptions in each state. As proposed in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we revise § 52.15(g)(3) of the Commission's rules to require interconnected VoIP providers that must file FCC Forms 477 and 499 to provide evidence that they have complied with these obligations, and any successor filing obligations, when filing a direct access application. Should providers not have evidence of filing these forms, their certification should explain the reasons why. The 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), noted that during the procedural review of direct access applications, Bureau staff routinely verify that both FCC Forms 477 and 499 have been filed, if applicable. For providers that do not have eligible subscribers at the time of filing their direct access applications, we expect but do not require such providers to submit evidence of their submissions when they become obligated to do so under our rules. Our new rule formalizes this inquiry into an application requirement which, again, promotes efficiency and adds another layer of enforcement capability. We note that submission of FCC Forms 477 and 499 filing receipts would constitute prima facie evidence of compliance with these rules. The FCC Form 477 filing system will no longer be used to collect new FCC Form 477 submissions, and will remain open only for filers to make corrections to existing FCC Form 477 filings for data as of June 30, 2022 and earlier. We also note that, beginning with data as of December 31, 2022, providers, including interconnected VoIP providers, are required to submit the following data using the Broadband Data Collection (BDC) filing system: fixed and mobile broadband and voice FCC Form 477 subscription data, fixed and mobile BDC broadband availability data, BDC mobile voice availability data.

42. The 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), and current rules require an interconnected VoIP provider to acknowledge a duty to comply with state guidelines and procedures adopted under the numbering authority the Commission has delegated to the states. In the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), the Commission asked whether to revise this rule to state that interconnected VoIP providers holding a numbering authorization must comply with state numbering requirements and other applicable requirements for businesses operating in the state. Having considered the record, we now revise § 52.15(g)(3) to make clear that interconnected VoIP applicants and authorization holders that request numbering resources from the Numbering Administrator for a particular state must acknowledge that their direct access authorization is subject to compliance with both state numbering requirements and to the laws, regulations, and registration requirements applicable to them as businesses operating in that state, not merely state requirements specifically issued under Commission delegated numbering authority. Upon the effective date of these new rules, direct access applicants must expressly acknowledge in their applications that they will comply with such laws.

43. One of the original purposes of the requirement to comply with state delegated numbering authority law was to promote competitive neutrality by requiring interconnected VoIP providers with direct access to numbering resources to be subject to the same numbering requirements as carriers getting numbers for that state. Unfortunately, it appears some interconnected VoIP providers have assumed they have no duty to abide by other state requirements because § 52.15(g)(3)(i)(B) focuses solely on delegated numbering authority. That is not the Commission's intent and is inconsistent with the goal of competitive neutrality. The revision we adopt in this document addresses this unintended consequence and helps keep interconnected VoIP providers on a more equal footing with local exchange carriers (LECs) (which must comply with state general registration requirements pursuant to their certificates of public convenience and necessity and status as businesses operating in the states). It will directly help avoid confusion over the duty to comply with applicable state laws beyond delegated numbering matters. Equally important, it will discourage interconnected VoIP direct access authorization holders from requesting numbering resources for states where they do not serve end-user customers, a practice that contributes to the exhaust of numbering resources in that state. By clarifying that VoIP direct access authorization holders must also comply with other applicable state laws, such as registration requirements, the new requirement will make it more difficult for interconnected VoIP providers to evade measures that enable states to generally address other consumer-protection issues, including unlawful robocalling. For example, state commissions assert that requiring interconnected VoIP direct access authorization holders to comply with state law through their registration requirements will ensure that state authorities have the information needed to identify providers involved in unlawful robocalling.

44. Several state commissions support this requirement. They observe there has been confusion, or at least disagreement, about the extent to which interconnected VoIP providers with direct access to numbering resources must comply with general state-law duties applicable to other businesses obtaining numbers in the states, such as LECs. In Maine, for example, voice service providers must register with the Maine Public Utilities Commission's (PUC) third-party administrator for the Maine Universal Service Fund and the Maine Telecommunications Education Access Fund. The Maine PUC staff, however, has found it does not always have the information it needs to determine whether interconnected VoIP providers doing business in Maine are contributing to these funds, which it says is required by state law. Other state commissions note similar issues.

45. In light of this record evidence, we disagree with commenters who say there has been no confusion about the scope of the duty to comply with state law or that this revised rule amounts to a new delegation of numbering authority to the states. Our revised rule in this document concerns state laws, regulations and registration requirements applicable to them as businesses operating in a given state, separate from any Commission delegation of numbering authority. We are not delegating any new numbering authority to the states here. Rather, the purpose is to make plain that direct access applicants must acknowledge that their authorization is contingent on complying not only with state requirements issued under delegated numbering authority, but also with other independently applicable state obligations, such as registration requirements, that would apply to them as businesses operating in the state.

46. We also disagree with commenters who argue that requiring interconnected VoIP providers to acknowledge that their direct access authorization is subject to compliance with applicable state requirements would undermine the Commission's 2004 Vonage Order and its preemption of most state regulation of interconnected VoIP service. As explained in the Vonage Order, that decision “express[ed] no opinion” on the applicability to an interconnected VoIP provider of a state's “general laws governing entities conducting business within the state, such as laws concerning taxation; fraud; general commercial dealings; and marketing, advertising, and other business practices.” The Commission also stated in that order that “as we move forward in establishing policy and rules for . . . IP-enabled services, states will continue to play their vital role in protecting consumers from fraud, enforcing fair business practices, for example, in advertising and billing, and generally responding to consumer inquiries and complaints.” Accordingly, even after the Vonage Order, WC Docket No. 03-211, Memorandum Opinion and Order, 19 FCC Rcd 22404 (2004), the Commission has permitted states to require interconnected VoIP providers to contribute to state universal service funds and pay state fees related to 911/E911 service. VON and Microsoft raised concerns that our revised rule could mistakenly be interpreted by state commissions as expanding the permissible scope of state regulation of interconnected VoIP services. To avoid any doubt, we clarify that, as stated in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), by adopting this revised rule we do not address the statutory classification of interconnected VoIP services as telecommunications or non-telecommunications services, nor do we address, expand or alter, the scope of states' authority to regulate interconnected VoIP service, as reflected in the Vonage Order and established Commission policy. In a separate preemption argument in this record, Terra Nova Telecom claims interconnected VoIP services compete with the Commercial Mobile Radio Service (CMRS) and that Congress has preempted state market entry or rate regulation of CMRS under section 332(c)(3) of the Communications Act of 1934, as amended. Terra Nova submits, therefore, that the Commission should not allow states to impose requirements on interconnected VoIP services that they could not impose on CMRS, such as the kinds of requirements the Louisiana PSC seeks to impose on Terra Nova before issuing it telephone numbers. But Terra Nova points to no authority stating that the scope of preemption is identical for interconnected VoIP services and CMRS, and section 332(c)(3) is specific to CMRS. Terra Nova also takes issue with several requirements it alleges the Louisiana PSC seeks to impose on it as a prerequisite to giving numbers to Terra Nova (which already was granted direct access authority by this Commission). Terra Nova contends that several of these requirements amount to market-entry or public utility-style regulation of the kind preempted by the Vonage Order. We lack adequate information to resolve this specific dispute in the context of this general rulemaking.

47. We also disagree with arguments that the revised rule is too vague because it does not specify the particular state requirements that could apply to interconnected VoIP providers with direct access to numbering resources. Any such list inevitably would risk being incomplete or quickly outdated. The point of our rule revision is to have applicants acknowledge their direct access authorization is subject to compliance with applicable laws, regulations, and registration requirements for businesses operating in the state(s) where the authorization holder seeks to obtain numbers. We note, moreover, that any interconnected VoIP provider obtaining numbering resources from a state pursuant to § 52.15(g)(3)(i)(C) presumably would already be evaluating its potential duties under state law ( e.g., registration with a secretary of state or tax authorities, possible obligations under state universal service funds or regarding 911 fees) to an extent that allows it to acknowledge whether it will comply with state law. Our new application requirement therefore should not impose any added burdens on interconnected VoIP applicants beyond their normal preparation to begin dealing with a state and possibly providing service there.

48. “ Minimal contacts. ” In order to help minimize numbering exhaust, the Commission asked whether it should adopt a “minimal contacts” requirement that interconnected VoIP providers would have to meet in order to obtain numbering resources in a given state. Having considered the record, we refer this issue to the NANC, as discussed below in Part III.C. The Commission has not explicitly prohibited the use of numbering resources requested for one state to serve customers in other states, whether the entity obtaining the numbers is a LEC or an interconnected VoIP provider holding a direct access authorization. We recognize that a LEC is more likely to have contacts with the state for which it has requested numbering resources, such as physical facilities, a CPCN, and a state registration. At this time, however, we do not have sufficient record evidence to fully assess this issue, and attempting to define “minimal contacts” for interconnected VoIP providers here would risk unintentionally imposing a new requirement that numbering resources requested for a particular state be used to serve at least some customers in that state. Absent such a new requirement, which is outside the scope of this proceeding, a “minimal contacts” requirement would put the Commission into the position of having to evaluate the specific contacts of any direct access authorized interconnected VoIP provider for each particular state in which it seeks numbers, which inevitably would be a complex, provider-specific inquiry, and one for which we lack helpful Commission precedent. The California PUC commented that if “minimal contacts” means having customers in the state and operating authority by the state, it would support a “minimal contacts” requirement. Other state public utility commissions supported instituting a “minimal contacts” requirement but did not offer any further detail regarding the standard.

49. Nomadic interconnected VoIP providers. The revised state-law acknowledgment requirement we adopt applies to all interconnected VoIP providers requesting numbering resources in a particular state, even if their services are non-fixed or nomadic and not directly linked to the state corresponding to the respective area code. The fact that some interconnected VoIP providers provision non-fixed (or nomadic) services does not alter the applicability of the state-law acknowledgment requirement. RingCentral contends that state requirements other than those issued under delegated numbering authority cannot apply to them because nomadic VoIP services “are impossible to segregate into intrastate and interstate components” and therefore are subject to “exclusive federal jurisdiction.” Non-fixed or nomadic interconnected VoIP service providers request numbering resources from states and therefore place burdens on each such state's numbering resources just as their fixed-VoIP counterparts do. It would also burden state commissions to determine the precise geographic locations of non-fixed providers each time a numbering request was received. State commissions strongly supported applying the state-law acknowledgment requirement to non-fixed and nomadic interconnected VoIP providers, and we agree with such a requirement.

50. Directing the Numbering Administrator to deny applications. We delegate authority to the Bureau to direct the Numbering Administrator to deny requests for numbering resources from an interconnected VoIP provider when the Commission is notified ( e.g., by a state commission) that the provider is not complying with independently applicable state legal requirements. It is important that there be some clear consequence of not complying with applicable state laws when obtaining numbering resources from a state based on a Federal numbering authorization. Our actions here also are consistent with current practice, under which, when a state reports that a provider is not complying with state requirements, the Numbering Administrator may deny that provider's numbering requests. Although we believe that existing practices conform with § 52.15 of the Commission's rules, making the requirement explicit clarifies the process so as to leave no doubt as to these requirements.

51. We revise § 52.15(g)(3) of the Commission's rules to require an officer or authorized representative of the applicant to submit a declaration under penalty of perjury, pursuant to § 1.16 of the rules, attesting that all statements in the application and any appendices are true and accurate. We specify that false statements or certifications made to the Commission may result in rejection of an application or revocation of an authorization. Consistent with warnings included in filings for other Commission authorizations and CPNI certifications, we remind applicants that willful false statements are also punishable by fine and/or imprisonment, and/or forfeiture. Requiring a declaration under penalty of perjury will help ensure applications are accurate and that applicants are taking the application process seriously. The new declaration will also dissuade bad actors from filing false information or filing altogether out of fear of committing the crime of perjury and suffering increased punishment.

52. Our rules prohibit any applicant for any Commission authorization from making material false statements or omissions of material information in its dealings with the Commission. Our addition of a declaration under penalty of perjury is consistent with the international section 214 application process, and the authorization process for many other FCC authorizations, in which applicants include a verification executed by an officer or other authorized representative that the information included in the filing is true and accurate. This requirement is also consistent with Robocall Mitigation Database filings, which must include a declaration under penalty of perjury pursuant to § 1.16 of the Commission's rules. We further note that many direct access applicants already provide this type of declaration voluntarily.

53. Declining to expand direct access to numbers. Under our existing rules, VoIP direct access applicants must provide interconnected VoIP services rather than one-way VoIP or other types of services that make use of numbers. The Commission sought comment on whether to allow one-way VoIP or other types of service providers to have direct access to numbers. We elect not to do so at this time. The record does not support this expansion of direct access and, indeed, contains some opposition to doing so until the guardrails proposed in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), are adopted and effectively implemented. By avoiding unnecessary or premature expansion of direct access to such providers, we better protect valuable and limited numbering resources from potential bad actors, both because fewer entities will have direct access to numbers and because interconnected VoIP providers engage in commercial agreements with carriers and have obligations and checks that one-way providers may not. One-way VoIP providers have fewer regulatory obligations than traditional carriers or interconnected VoIP providers. Our action is also consistent with the rationale in the 2015 VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), for limiting direct access authorizations to interconnected VoIP providers. That order found that interconnected VoIP providers are more likely than other VoIP providers to need direct access to numbers because they are more likely to provide service used by consumers to replace “plain old telephone service” (POTS), and because outbound-only VoIP service does not require telephone numbers.

54. Facilities readiness certification. The VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), provided examples of what an applicant could submit to show “facilities readiness” as required by 47 CFR 52.15(g)(3)(i)(D). We sought comment on whether to revise § 52.15(g)(3) of the direct access rules to explicitly specify the documents that will be allowed to satisfy the “facilities readiness” requirement. Comments on the issue were divided, and, having considered the issue further, we decline to revise our rule. Rather, we conclude that the examples of technical documentation and information that applicants may submit to demonstrate facilities readiness in the VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), will continue to suffice. This approach preserves the flexibility of interconnected VoIP providers to submit information that is relevant to the unique characteristics of their networks. We also reaffirm our delegation of authority to the Bureau to request additional documentation on a case-by-case basis as necessary.

55. Know-your-customer certification. Section 64.1200(n)(3) requires voice service providers to “[t]ake affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring that its services are not used to originate illegal traffic.” The VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), sought comment on whether to require direct access applicants to certify that they “ `know their customer' through customer identity verification.” Comments on this topic were mixed. After considering the record, we decline to adopt a specific know-your-customer certification at this time. As discussed below in the section addressing our referrals to the NANC, interconnected VoIP providers often resell numbers that they have obtained through the direct access process to third-party providers. Additionally, our decision to study the issue of number resale further, our adoption of new certifications as part of interconnected VoIP providers' applications for direct access authorization, and potential future action regarding number resale and indirect access recipient certifications, may accomplish the same objectives as would adopting a know-your-customer certification. We therefore reserve for future determination whether to adopt such a certification in the direct access application context.

56. In this section, we adopt measures to facilitate greater transparency regarding the review of direct access applications, make explicit our procedures for rejecting applications, and expand the bases on which direct access authorizations may be revoked and adopt a process for such revocations.

57. As proposed, we revise § 52.15(g)(3) of the Commission's rules to formalize the process for reviewing direct access applications. We direct Bureau staff to conduct a due-diligence review of an applicant's direct access application prior to seeking comment on it. This due-diligence review shall include, but is not limited to, determining whether the applicant is the subject of a past or pending Enforcement Bureau inquiry or whether the applicant has reportable foreign ownership. This initial review process is critical to ensure illegal robocallers and other bad actors do not gain access to finite numbering resources. As noted above, we direct the Bureau to withhold placing any application submitted by an applicant with reportable foreign ownership on streamlined processing (that is, withhold issuing an “Accepted-for-Filing Public Notice”). Additionally, the Bureau retains the authority to determine, at its discretion, whether to accept an application for non-streamlined filing so that it may further analyze whether a grant is in the public interest during and after the prescribed comment period. Furthermore, if the Bureau finds that an application raises public interest concerns, it may withhold placing it on streamlined processing until those concerns are addressed through applicant supplements or otherwise, even if the application otherwise meets procedural requirements. One commenter generally supported this approach, and no commenter opposed it.

58. The action we take in this document formalizes this preexisting practice and makes explicit the Bureau's authority in the rules. Specifically, the rules shall state that the Bureau will review direct access applications to ensure that they are complete and appropriate for streamlined treatment before the Bureau issues a public notice accepting the application for filing. By taking this step, we draw on our similar procedure governing review of international section 214 applications, and promote greater transparency and predictability for applicants regarding the process and timing applicable to a potential authorization. We note that applicants must provide additional information as requested by the Bureau during and after its initial review of a direct access application. Such responses must be submitted to the Bureau using the same method for submitting original application materials, unless otherwise directed. The majority of commenters supported Commission efforts to fight illegal robocalling and fraud, and staff diligence in reviewing applications and coordination with the Enforcement Bureau is part of ensuring potential robocallers do not gain access to numbering resources.

59. We next revise § 52.15(g)(3) of the Commission's rules to authorize the Bureau to reject an application when it determines the applicant cannot satisfy the qualifications for a direct access authorization or that granting the application would not be in the public interest. We also adopt the proposal to authorize the Bureau, in its discretion, to reject applications submitted by an applicant which it has a reasonable basis to believe has engaged in behavior contrary to the public interest. As described above, we also authorize the Bureau to reject an application if it determines that the applicant made a false or misleading statement. We further conclude that the Bureau may reject applications if, for example, the Commission determines that an applicant with reportable foreign ownership presents national security, law enforcement, foreign policy, and/or trade policy risks. Next, to improve transparency, we also direct the Bureau to announce rejection decisions, the reasons for the rejection, and whether they are with or without prejudice via public notice. The record supports this action with no opposition. Similar to our action described above regarding codifying the Bureau's review process, this action codifying the Bureau's authority to reject applications makes explicit a practice that already occurs under our current rules. We believe this delegation of authority formalizing these practices leads to greater transparency and predictability.

60. We next adopt procedures concerning the grounds for revocation and/or termination of direct access to numbers authorizations. Specifically, we find that the Commission may revoke and/or terminate direct access to numbers authorizations of interconnected VoIP providers for failure to comply with the Communications Act of 1934, as amended (Act) and its implementing rules, other applicable laws and regulations, and/or where retention of those authorizations no longer serves the public interest. The Commission's Bureaus and Offices have revoked and/or terminated licenses and authorizations where warranted and within the scope of their authority. We revise § 52.15(g)(3) of the Commission's rules to specify the grounds on which we can revoke and/or terminate direct access authorizations, namely if: the authorization holder has failed to comply with the Commission's numbering rules; the authorization holder no longer meets the qualifications for a direct access authorization ( e.g., the authorization holder no longer meets the application certification requirements or the conditions applicable to authorization holders under the Commission's rules); the Commission uses the term “termination” where an authorization is terminated based on the authorization holder's failure to comply with a condition of the authorization, and has determined that the procedures applicable to termination need not mirror the procedures used for revocation of authorizations; the authorization holder, or officer or authorized representative of the authorization holder, has made a false statement or certification to the Commission; or revoking and/or terminating the authorization is in the public interest ( e.g., the Commission's assessment of the record evidence, including any filing by the Executive Branch agencies stating that retention of the authorization presents national security, law enforcement, foreign policy, and/or trade policy concerns and/or violates the terms of a mitigation agreement reached with the Executive Branch agencies).

61. We delegate authority to the Bureau and the Enforcement Bureau to determine appropriate procedures and initiate revocation and/or termination proceedings and to revoke and/or terminate an authorization, as required by due process and applicable law and in light of the relevant facts and circumstances, including providing the authorization holder with notice and opportunity to respond. In recent revocation proceedings, the Commission exercised its discretion to “resolve disputes of fact in an informal hearing proceeding on a written record,” and reasonably determined that the issues raised in those cases could be properly resolved through the presentation and exchange of full written submissions before the Commission itself.

62. We also delegate authority to the Bureau and the Enforcement Bureau to direct the Numbering Administrator to suspend the authorization holder's access to new numbering resources after either bureau determines that the authorization holder acted willfully; or public health, interest, or safety requires an immediate suspension; or after giving the authorization holder notice and an opportunity to demonstrate or achieve compliance with our rules. Once either bureau revokes and/or terminates the authorization, the interconnected VoIP provider may no longer obtain additional numbers from the Numbering Administrator. While we do not at this time require an interconnected VoIP provider to return its numbers once the Bureau has revoked its direct access authorization, we refer to the NANC how such a requirement would impact consumers, end-users, and providers, and whether such a requirement would be feasible. Relatedly, we also do not at this time restrict such providers from accessing numbering databases that may be necessary for providing service, such as routing and porting, for numbers it already has. Interconnected VoIP providers that have had their authorizations revoked may reapply for a new authorization if they can demonstrate that they have cured the grounds for the revocation and have taken measures to ensure they will not arise again. At this time, we decline to adopt number reclamation as a consequence of a revocation of direct access authorization. We refer the issue of the impact of number reclamation on consumers and end-users to the NANC. We therefore note that a revocation of direct access authorization does not obviate an interconnected VoIP provider's obligations under our rules with respect to the numbering resources it still maintains. These obligations include, e.g., filing NRUF reports, making NANP cost-support contributions, and updating the Reassigned Numbers Database.

63. As affirmed recently in our Caller ID Authentication Sixth Report and Order, 88 FR 29035 (May 5, 2023), where the Commission grants a right or privilege, it unquestionably has the right to revoke or deny that right or privilege in appropriate circumstances. In addition, holders of these and all Commission authorizations have a clear and demonstrable duty to operate in the public interest. The action we take in this document promotes transparency into our direct access authorization enforcement mechanisms by formalizing in our rules the procedure by which we will revoke such authorizations. This step will put bad actors on notice regarding the consequences they will face if they flout the rules. Our delegation of authority to the Bureaus will permit efficient processing of revocations, allowing the Commission to respond to bad actors in a timely manner.

64. The record overwhelmingly supports these proposals. One commenter, for example, states that “[i]t is important for the Commission to affirm its commitment to invoking this enforcement authority, because complaints under section 208 cannot be brought against VoIP providers, given their lack of common carrier status. Use of this enforcement authority with respect to VoIP entities will help `combat access stimulation and other intercarrier compensation abuses. . . .' ” Similarly, another commenter states “if a Direct Access grantee is clearly found to be engaged in [intercarrier compensation] arbitrage abuse, the FCC must impose real consequences for such abuses because VoIP providers and other noncommon carrier Direct Access grantees are not subject to section 208 of the Communications Act.”

65. Number use and resale generally. The VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), sought comment on whether direct access applicants should certify that the numbers they are applying for will only be used to provide interconnected VoIP services. The record we received regarding this issue was insufficient for us to determine precisely how interconnected VoIP providers are using the numbers they obtain, whether any such uses result in violations of our rules, and whether any further restrictions would have anticompetitive effects or impair neutrality with respect to technology. While the revised certifications and accompanying obligations we adopt herein should substantially aid our efforts to curtail unlawful uses of numbering resources, questions remain as to how numbers obtained by interconnected VoIP providers may continue to facilitate illegal robocalling or access stimulation, as well as how our policies affect number exhaustion in particular area codes. The NANC is entrusted with advising the Commission on numbering policy and technical issues associated with numbering “in the changing world of communications” and must ensure that the NANP administration does not unduly favor or disfavor one technology over another. In light of the limited record on this important issue of number use by interconnected VoIP providers, including number use by direct and indirect customers of such providers and further consideration of additional measures to combat illegal robocalls such as know-your-customer obligations, we therefore direct the Bureau to request that the NANC examine and report on: (1) how interconnected VoIP providers that obtain direct access to numbers are using those numbering resources today, including, for example, the extent to which they use numbers obtained in a state to serve the customers of that state, the extent to which they use numbers obtained via direct access to provide non-interconnected VoIP service, and the extent to which numbers obtained via direct access are resold to other providers; (2) those uses in terms of compliance with the Commission's robocalling, Access Stimulation and other rules, area code exhaustion, and other public interest concerns, including potential consumer benefits or competitive harms of increasing the availability of direct access to numbers or placing more limits on the use of numbers obtained via direct access; and (3) possible options for mitigating any identified adverse impacts on consumers of number disuse, misuse, and resale, and how any Commission-imposed requirements for, or limits on, number use or resale would impact consumers, providers, and competition. We additionally require that the NANC examine, in considering how to minimize the adverse impacts on consumers and/or area code exhaustion arising from interconnected VoIP providers obtaining numbers in a state where they serve few or no customers, the efficacy of Commission adoption of a “minimum contacts” requirement to obtain numbering resources in a particular state; and possible options for defining such a standard.

66. Foreign-originated calls and use of numbers obtained indirectly. Questions also remain regarding the use of U.S. NANP numbers for calls that originate abroad and terminate in the U.S. market. In the Fifth Caller ID Authentication FNPRM, 87 FR 42670 (July 18, 2022), we sought comment on whether we should restrict the use of domestic numbering resources for such calls in order to prevent illegal robocalls, and whether other countries' regulations provide a useful roadmap for our own. We also sought comment on whether we should restrict indirect access to numbers ( e.g., numbers obtained on the secondary market) by both interconnected VoIP providers and carriers generally, or only for numbers that would be used in foreign-originated calls.

67. Commenters in that proceeding agreed that some entities are increasingly using numbers obtained, particularly through indirect access, to originate illegal robocalls. TNS recently noted that “numbers may be purchased separately with one provider and linked with outbound calling minutes from a second,” which it argued “is a major source of bad actor traffic.” Indeed, the success of STIR/SHAKEN “may already be responsible for some bad actors shifting to acquiring batches of real numbers instead of spoofing.” Commenters disagreed, however, on whether and what steps should be taken to prevent such abuse, including the appropriate liability standard, and whether restrictions should apply to all providers or solely to interconnected VoIP providers. Commenters urged the Commission to proceed cautiously when considering restrictions. Notably, no party in that proceeding addressed the merits of specific foreign restrictions on numbering usage raised in the Caller ID Authentication Fifth FNPRM, 87 FR 42670 (July 18, 2022), and their applicability to the U.S. marketplace.

68. In light of the complexity of numbering arrangements, the mixed record in this and related proceedings where this issue has arisen, and limited comment on the specific number usage restrictions in place in other countries, we agree with commenters in the Call Authentication Trust Anchor docket who argue that we should proceed cautiously. We therefore direct the Bureau to request that the NANC examine and report on: the use of numbers obtained on the secondary market; numbers obtained on the secondary market would include, e.g., numbers obtained from a reseller or a carrier partner. As part of its referral, the Bureau may choose to include direction to investigate issues or proposals related to number misuse it concludes may benefit from focused NANC examination, including proposals raised by commenters in the record of this and other related proceedings.

69. Supplying numbers to customers on a trial basis. In the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we asked whether we should require direct access applicants to certify that they will not supply numbers on a trial basis to new customers ( i.e., use of numbers for free for the first 30 days, etc.), a practice that commonly leads to bad actors gaining temporary control over numbers for the purposes of including misleading caller ID information. While some commenters agreed that supplying numbering resources for trial use can facilitate illegal robocalls, they provided no data to support their assertions. Accordingly, we refer this issue to the NANC for further study. We expect that this, and our other referrals to the NANC concerning number use, will give us a fuller picture regarding the customers' use of numbering resources, and thereby aid our future consideration of whether to impose a know-your-customer certification requirement. Specifically, we direct the Bureau to request that the NANC examine and report on: the practice of direct access authorization holders supplying telephone numbers to customers on a trial basis; the use of such “trial basis” numbers to engage in illegal robocalling, spoofing, or fraud; the effect on authorization holders in the event of a Commission prohibition on providing numbers on a trial basis; and the effect of supplying telephone numbers to customers on a trial basis on numbering resource exhaust.

70. Number reclamation. In the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), we sought comment on whether we should require an interconnected VoIP provider that has had its direct access authorization revoked to return the numbers that it has already obtained directly. Some commenters expressed concern that reclaiming numbers when direct access authority is revoked could have potential negative impacts on consumers, and that we should have proper procedures in place to mitigate these impacts. In light of the paucity of data submitted in the record, and in order to ensure that number reclamation as a consequence of a revocation of direct access authorization will not have a negative impact on consumers, we direct the NANC to study the benefits, risks, and solutions regarding reclamation of numbers when a direct access authorization is revoked, and the impact to consumers and end-users. Specifically, we direct the Bureau to request that the NANC examine and report on: the potential impact on consumers, end-users, and providers of number reclamation as a consequence of direct access authorization revocation; how providers or the Commission could mitigate any identifiable negative impacts for consumers and end-users; and how to accomplish returning reclaimed numbers to providers with reinstated direct access authorization. In its analysis, the NANC should additionally describe how interconnected VoIP providers use numbering databases in providing service, and how a restriction on accessing such databases would impact consumers, end-users, and providers.

71. The rule clarifications and formalizations adopted in the Second Report and Order generally reflect a mandate from the TRACED Act. We conclude that the expected benefits will exceed the costs, which are minimal. The Commission found in the Caller ID Authentication First Report and Order, 85 FR 22029 (April 21, 2020), that widespread deployment of the STIR/SHAKEN framework will increase its effectiveness for both voice service providers and their subscribers, producing a potential annual benefit floor of $13.5 billion due to the reduction in nuisance calls and fraud. In addition, the Commission identified many non-quantifiable benefits, such as restoring confidence in incoming calls and ensuring reliable access to emergency and healthcare communications. The rules we adopt in the Second Report and Order are intended, consistent with the TRACED Act, to help unlock those benefits. As the Commission has noted, an overall reduction in illegal robocalls will greatly lower network costs by eliminating both the unwanted traffic and the labor costs of handling numerous customer complaints. The certifications and disclosures we adopt place minimal burdens on interconnected VoIP providers, and our formalization of the direct access application review process will ensure efficient use of staff time, imposing appropriately small costs on Commission staff. We therefore conclude that the rules we adopt in the Second Report and Order will impose only a minimal cost on direct access applicants while having the overall effect of materially lowering network costs and raising consumer benefits.

72. The VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021), proposed concluding that our authority for adopting the new or revised direct access to numbers application requirements for interconnected VoIP providers arises from section 251(e) of the Act and section 6(a) of the TRACED Act. No commenter opposed these proposals regarding the basis for our legal authority to adopt the requirements described in the Second Report and Order. We conclude that section 251(e) of the Act provides sufficient authority for the requirements adopted in this Report and Order and that section 6(a) of the TRACED Act provides both supplemental and independent authority for those requirements specifically related to fighting illegal robocalls.

73. Section 251(e)(1) of the Act grants the Commission “exclusive jurisdiction over those portions of the North American Numbering Plan that pertain to the United States.” Based on this grant, in the VoIP Direct Access Order, 80 FR 66454 (Oct. 29, 2015), the Commission concluded that section 251(e)(1) provided it with authority “to extend to interconnected VoIP providers both the rights and obligations associated with using telephone numbers.” The Commission also has relied on section 251(e)(1) to require interconnected and one-way VoIP providers to implement the STIR/SHAKEN caller ID authentication framework and allow customers to reach the National Suicide Prevention Lifeline by dialing 988. Consistent with the Commission's well-established reliance on section 251(e) numbering authority with respect to interconnected VoIP providers, we conclude that section 251(e)(1) allows us to further refine our processes and requirements governing direct access to numbers by interconnected VoIP providers.

74. We further conclude that section 6(a) of the TRACED Act provides us with separate, additional authority to adopt our proposals related to fighting illegal robocalls. Section 6(a)(1) gives the Commission authority “to determine how Commission policies regarding access to number resources, including number resources for toll free and non-toll free telephone numbers, could be modified, including by establishing registration and compliance obligations,” and to “take sufficient steps to know the identity of the customers of such providers [of voice services], to help reduce access to numbers by potential perpetrators of violations of section 227(b) of the Communications Act of 1934 (47 U.S.C. 227(b)).”

75. The Commission commenced the required proceeding pursuant to the TRACED Act in March 2020, and expanded on those inquiries in the VoIP Direct Access FNPRM, 86 FR 51081 (Sept. 14, 2021). Section 6(a)(2) of the TRACED Act states that “[i]f the Commission determines under paragraph (1) that modifying the policies described in that paragraph could help achieve the goal described in that paragraph, the Commission shall prescribe regulations to implement those policy modifications.” We conclude that section 6(a) of the TRACED Act, in directing us to prescribe regulations implementing policy changes to reduce access to numbers by potential perpetrators of illegal robocalls, provides an independent basis to adopt certain of the rule changes we are making to the direct access process with respect to fighting unlawful robocalls.

76. Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, we have prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the Second Report and Order on small entities.

77. Paperwork Reduction Act. This document may contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. Specifically, the rules adopted in 47 CFR 52.15(g)(3)(ii)(B) through (F), (I), (K), (L), and (N) and (g)(3)(x)(A) may require new or modified information collections. All such new or modified information collection requirements will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, we note that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), we previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. In this document, we describe several steps we have taken to minimize the information collection burdens on small entities.

78. Contact Person. For further information about this proceeding, please contact Mason Shefa, FCC Wireline Competition Bureau, Competition Policy Division, at (202) 418-2494, or mason.shefa@fcc.gov.

79. Accordingly, it is ordered that pursuant to sections 1, 3, 4, 201 through 205, 227b-1, 251, and 303(r) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 153, 154, 201 through 205, 227b-1, 251, 303(r), and section 6(a) of the TRACED Act, Public Law 116-105, 6(a)(1) through (2), 133 Stat. 3274, 3277 (2019), the Second Report and Order hereby is adopted and part 52 of the Commission's Rules, 47 CFR part 52, is amended. The Second Report and Order shall become effective 30 days after publication in the Federal Register , except for 47 CFR 52.15(g)(3)(ii)(B) through (F), (I), (K), (L), and (N) and (g)(3)(x)(A), which shall become effective upon an announcement in the Federal Register of OMB review and an effective date of those rules.

80. It is further ordered that the Commission's Office of the Secretary, Reference Information Center, shall send a copy of the Second Report and Order, including the Final Regulatory Flexibility Analysis and Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

81. it is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall send a copy of the Second Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

82. The Second Report and Order takes important steps aimed at stemming the tide of illegal robocalls perpetrated by interconnected VoIP providers and protecting the Nation's numbering resources from abuse by foreign bad actors by strategically updating the Commission's rules regarding how such providers obtain nationwide authorization for direct access to our Nation's limited numbering resources.

83. First, the Second Report and Order requires applicants to make robocall-related certifications to ensure compliance with the Commission's rules targeting illegal robocalls. Second, to mitigate the risk of providing bad actors abroad with access to our numbering resources, it requires applicants to disclose and keep current information about their ownership. Third, it requires applicants to certify to their compliance with other Commission rules applicable to interconnected VoIP providers. Fourth, it requires providers requesting numbers from a state's numbering administrator to comply with the state's laws and registration requirements that are applicable to businesses requesting numbers in that state. Fifth, it requires applicants to include a signed declaration that their applications are true and accurate. Sixth, and finally, it formalizes the Bureau's application review, application rejection, and authorization revocation processes.

84. There were no comments raised that specifically addressed the proposed rules and policies presented in the IRFA. Nonetheless, the Commission considered the potential impact of the rules proposed in the IRFA on small entities and took steps where appropriate and feasible to reduce the compliance burden for small entities in order to reduce the economic impact of the rules enacted herein on such entities.

85. Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

86. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

87. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States, which translates to 32.5 million businesses.

88. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” The Internal Revenue Service (IRS) uses a revenue benchmark of $50,000 or less to delineate its annual electronic filing requirements for small exempt organizations. Nationwide, for tax year 2020, there were approximately 447,689 small exempt organizations in the U.S. reporting revenues of $50,000 or less according to the registration and tax data for exempt organizations available from the IRS.

89. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2017 Census of Governments indicate there were 90,075 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 36,931 general purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,040 special purpose governments—independent school district with enrollment populations of less than 50,000. Accordingly, based on the 2017 U.S. Census of Governments data, we estimate that at least 48,971 entities fall into the category of “small governmental jurisdictions.”

90. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. Fixed Local Service Providers include the following types of providers: Incumbent Local Exchange Carriers (ILECs), Competitive Access Providers (CAPs) and Competitive Local Exchange Carriers (CLECs), Cable/Coax CLECs, Interconnected VoIP Providers, Non-Interconnected VoIP Providers, Shared-Tenant Service Providers, Audio Bridge Service Providers, and Other Local Service Providers. Local Resellers fall into another U.S. Census Bureau industry group and therefore data for these providers is not included in this industry.

91. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 4,590 providers that reported they were engaged in the provision of fixed local services. Of these providers, the Commission estimates that 4,146 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

92. Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include both incumbent and competitive local exchange service providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. Wired Telecommunications Carriers are also referred to as wireline carriers or fixed local service providers. Fixed Local Exchange Service Providers include the following types of providers: ILECs, CAPs and CLECs, Cable/Coax CLECs, Interconnected VoIP Providers, Non-Interconnected VoIP Providers, Shared-Tenant Service Providers, Audio Bridge Service Providers, Local Resellers, and Other Local Service Providers. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 4,590 providers that reported they were fixed local exchange service providers. Of these providers, the Commission estimates that 4,146 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

93. Incumbent Local Exchange Carriers ( Incumbent LECs ). Neither the Commission nor the SBA have developed a small business size standard specifically for incumbent local exchange carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms in this industry that operated for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 1,212 providers that reported they were incumbent local exchange service providers. Of these providers, the Commission estimates that 916 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of incumbent local exchange carriers can be considered small entities.

94. Competitive Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a size standard for small businesses specifically applicable to local exchange services. Providers of these services include several types of competitive local exchange service providers. Competitive Local Exchange Service Providers include the following types of providers: CAPs and CLECs, Cable/Coax CLECs, Interconnected VoIP Providers, Non-Interconnected VoIP Providers, Shared-Tenant Service Providers, Audio Bridge Service Providers, Local Resellers, and Other Local Service Providers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 3,378 providers that reported they were competitive local exchange service providers. Of these providers, the Commission estimates that 3,230 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

95. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a small business size standard specifically for Interexchange Carriers. Wired Telecommunications Carriers is the closest industry with an SBA small business size standard. The SBA small business size standard for Wired Telecommunications Carriers classifies firms having 1,500 or fewer employees as small. U.S. Census Bureau data for 2017 show that there were 3,054 firms that operated in this industry for the entire year. Of this number, 2,964 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 127 providers that reported they were engaged in the provision of interexchange services. Of these providers, the Commission estimates that 109 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, the Commission estimates that the majority of providers in this industry can be considered small entities.

96. Wireless Telecommunications Carriers (except Satellite ). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The SBA size standard for this industry classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that there were 2,893 firms in this industry that operated for the entire year. Of that number, 2,837 firms employed fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 594 providers that reported they were engaged in the provision of wireless services. Of these providers, the Commission estimates that 511 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

97. Local Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Local Resellers. Telecommunications Resellers is the closest industry with a SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 207 providers that reported they were engaged in the provision of local resale services. Of these providers, the Commission estimates that 202 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

98. Toll Resellers. Neither the Commission nor the SBA have developed a small business size standard specifically for Toll Resellers. Telecommunications Resellers is the closest industry with an SBA small business size standard. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. MVNOs are included in this industry. The SBA small business size standard for Telecommunications Resellers classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2017 show that 1,386 firms in this industry provided resale services for the entire year. Of that number, 1,375 firms operated with fewer than 250 employees. Additionally, based on Commission data in the 2022 Universal Service Monitoring Report, as of December 31, 2021, there were 457 providers that reported they were engaged in the provision of toll services. Of these providers, the Commission estimates that 438 providers have 1,500 or fewer employees. Consequently, using the SBA's small business size standard, most of these providers can be considered small entities.

99. All Other Telecommunications. This industry is comprised of establishments primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Providers of internet services ( e.g., dial-up ISPs) or voice over internet protocol (VoIP) services, via client-supplied telecommunications connections are also included in this industry. The SBA small business size standard for this industry classifies firms with annual receipts of $35 million or less as small. U.S. Census Bureau data for 2017 show that there were 1,079 firms in this industry that operated for the entire year. Of those firms, 1,039 had revenue of less than $25 million. Based on this data, the Commission estimates that the majority of “All Other Telecommunications” firms can be considered small.

100. In the Second Report and Order, we adopt new certifications and disclosures in our direct access application process for all interconnected VoIP provider applicants. Upon the effective date of these rules, we require explicit acknowledgment of compliance with all robocall regulations; implement disclosure and update requirements regarding ownership and control; require certification of compliance with other applicable Commission regulations and certain state law; and add a declaration requirement to hold applicants accountable for the truthfulness and accuracy of their direct access applications.

101. Specifically, we require a direct access applicant to certify that it will use numbering resources lawfully and will not knowingly encourage, assist, or facilitate illegal robocalls, illegal spoofing, or fraud. If the applicant has a foreign owner whose interest exceeds the reporting threshold set forth in § 63.18(h) of our rules, those applications will be placed on a “non-streamlined” processing track. We require applicants for a Commission direct access authorization to disclose information, including the name, address, country of citizenship, and principal business of every person or entity that directly or indirectly owns at least ten percent of the equity and/or voting interest, or a controlling interest, of the applicant, and the percentage of equity and/or voting interest owned by each of those entities to the nearest one percent, consistent with the requirements of international section 214 applicants. Also consistent with section 214, we require an applicant to certify whether it is, or is affiliated with, a foreign carrier, and cross-reference with § 63.18(i) for consistency. A chart or narrative describing the applicant's corporate structure is also required for interconnected VoIP applicants.

102. To ensure ownership information remains up to date, the Second Report and Order revises § 52.15(g)(3) to require interconnected VoIP providers that obtain direct access authorization under the revised rules to submit an update to the Commission and each applicable state within 30 days of any change to the ownership information disclosed in their direct access applications. Authorization holders are also required to submit updated or corrected ownership information to the states for which they have acquired or requested numbers at the time of the ownership change and in the same manner the providers would submit a correction or update to their original applications. We also revise § 52.15(g)(3) to require applicants to certify their compliance with the Communications Assistance with Law Enforcement Act (CALEA), and provide evidence in their applications that demonstrates their compliance with both CALEA and the Commission's part 9 public safety rules. A new certification cross-references new access arbitrage rules, thus revising § 52.15(g)(3) to require interconnected VoIP providers applying for direct access to numbers to certify that they will not use numbering resources to evade our access stimulation rules. Interconnected VoIP providers that must file FCC Forms 477 and 499 will now provide evidence that they have complied with these obligations, and any successor filing obligations, when filing a direct access application.

103. The Second Report and Order further revises § 52.15(g)(3) of our rules to require an officer or authorized employee representative of the applicant to submit a declaration under penalty of perjury, pursuant to § 1.16 of the rules, attesting that all statements in the application and any appendices are true and accurate. All updated or corrected ownership information shall be filed though existing methods such as the Electronic Comment Filing System (ECFS) through the Direct Access intake docket (Inbox 52.15) and via email to DAA@fcc.gov, unless the Bureau specifies another method. The Bureau may request additional documentation as necessary, during and after its initial review of a direct access application.

104. After reviewing the record, we received no concerns about unique burdens from small businesses that would be impacted by the new certifications adopted in the Second Report and Order. As such, the Commission does not have sufficient information on the record to determine whether small entities will be required to hire professionals to comply with its decisions or to quantify the cost of compliance for small entities. The Commission, however, anticipates the approaches it has taken to implement the requirements will have minimal or de minimis cost implications because many of these obligations are required to comply with existing Commission regulations.

105. The RFA requires an agency to provide “a description of the steps the agency has taken to minimize the significant economic impact on small entities . . . including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.”

106. The Second Report and Order considered alternatives that may reduce the impact of these rule changes on small entities. Some proposals were not adopted because the requirements already exist under other parts of the Commission's rules. New obligations regarding STIR/SHAKEN caller ID authentication or robocall mitigation specifically for interconnected VoIP providers were not adopted; instead applicants are required to certify compliance with preexisting rule sections. This reduces confusion and maintains accuracy should the Commission decide to revise the robocall-related dockets. We declined to adopt our proposal to require direct access authorization holders to certify on their applications, or inform the Commission if the authorization holder is subject to a Commission or other regulator or law enforcement investigation due to its robocall mitigation plan being deemed insufficient, or due to suspected unlawful robocalling or spoofing, because authorization holders are already required to do so under the Commission's rules.

107. There was not strong record support for certain proposals that require action of the Office of International Affairs (OIA) or the Bureau, so we declined to adopt those finding that it is more efficient to rely on current practices to address these concerns. These include automatic referral of interconnected VoIP providers' direct access applications to the Executive Branch agencies when an applicant has reportable foreign ownership, and developing a list of “Standard Questions” for interconnected VoIP applicants with reportable foreign ownership. We also declined to adopt rules to specify the documents that will be allowed to satisfy the “facilities readiness” requirement in the Commission's current rules. Comments on the issue were divided and we conclude that existing examples of technical documentation are sufficient. Further, after considering the record, we declined to adopt a know-your-customer certification proposal at this time.

108. As discussed above, the new certification requirements in the Second Report and Order are minimally burdensome, as they merely require providers to certify that they are compliant with preexisting Commission rules. Our public safety and CALEA documentation submission requirement merely formalizes existing Bureau practice of requesting such information from direct access applicants. Our new ownership disclosure requirement tracks requirements already imposed on providers in the section 214 context. For these reasons, we believe that small and other interconnected VoIP providers will not have an issue including these new certifications and disclosures in their direct access authorization applications.

109. The Commission will send a copy of the Second Report and Order, including the FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Report and Order, including the FRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 52 as follows:

I. Background

This final rule amends the NASA FAR Supplement(NFS) to update the policy concerning the NASA Ombudsman Program.

When awarding a multiple award indefinite-quantity contracts, 41 U.S.C. 4106(g) requires agencies to have a task- and delivery-order ombudsman who will be responsible for reviewing complaints from contractors and ensuring that they are afforded a fair opportunity to be considered for the award of an order, consistent with the procedures in the contract. This requirement is implemented at Federal Acquisition Regulation (FAR) 16.505(b)(8). FAR 16.504(a)(4)(v) requires the solicitation and contract for an indefinite-quantity to include the name, address, telephone number, facsimile number, and email address of the agency's task and delivery order ombudsman, if multiple awards may be made.

To implement the requirement at FAR 16.504(a)(4)(v), several agencies created a contract clause that provides contractors with the agency ombudsman's responsibilities and contact information. NFS clause 1852.215-84 Ombudsman, Alternate I, provides this information for task and delivery order contracts. As several agencies use a clause to provide this information to contractors, the Department of Defense (DOD), General Services Administration (GSA), and NASA processed a FAR case to implement a clause at the FAR level that would be available for all agencies to use.

DOD, GSA, and NASA have undertaken rulemaking to formally incorporate this change. These rulemaking changes were published in the Federal Register (84 FR 38836) on August 7, 2019, FAC 2019-04, and FAR Case 2017-020, Ombudsman for Indefinite Delivery Contracts, effective September 6, 2019.

This rule does not add any new solicitation provisions or contract clauses. This rule merely revises the policy concerning the NASA Ombudsman Program by deleting Alternate I and references to the use of Alternate I of NFS clause 1852.215-84 Ombudsman. It does not add any new burdens because the case does not add or change any requirements with which vendors must comply.

“Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because NASA is not issuing a new regulation; rather, this rule is merely deleting Alternate I to NFS clause 1852.215-84 Ombudsman since the alternate to the clause is no longer needed.

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. requirements with which vendors must comply.

The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a “major rule” may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register . This rule has been reviewed and determined by OMB not to be a “major rule” under 5 U.S.C. 804(2).

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) does not apply to this rule, because an opportunity for public comment is not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see Section II. of this preamble). Accordingly, no regulatory flexibility analysis is required, and none has been prepared.

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Accordingly, NASA amends 48 CFR parts 1815 and 1852 as follows:

Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. These regulations require annual specification of a commercial quota that is apportioned among the Coastal States from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each State is described in § 648.162, and the final 2023 allocations were published on December 21, 2022 (87 FR 78011).

The final rule implementing Amendment 1 to the Bluefish Fishery Management Plan (FMP), as published in the Federal Register on July 26, 2000 (65 FR 45844), provided a mechanism for transferring bluefish commercial quota from one State to another. Two or more States, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can request approval to transfer or combine bluefish commercial quota under § 648.162(e)(1)(i) through (iii). The Regional Administrator must approve any such transfer based on the criteria in § 648.162(e). In evaluating requests to transfer a quota or combine quotas, the Regional Administrator shall consider whether: the transfer or combinations would preclude the overall annual quota from being fully harvested; the transfer addresses an unforeseen variation or contingency in the fishery; and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). The Regional Administrator has determined these three criteria have been met for the transfers approved in this notification.

New York is transferring 25,000 pounds (lb) (11,340 kilograms (kg)) and Maryland is transferring 50,000 lb (22,680 kg) to North Carolina, through mutual agreements of the States. These transfers were requested to ensure that North Carolina would not exceed its 2023 State quota. The revised bluefish quotas for 2023 are: New York, 535,031 lb (242,686 kg); Maryland, 65,409 lb (29,669 kg); and North Carolina, 1,639,077 lb (743,473 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.