The NRC is issuing a revision in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

Proposed Revision 1 to RG 5.87, “Suspicious Activity Reports Under 10 CFR part 73,” was issued with a temporary identification of Draft Regulatory Guide, (DG)-5082 (ADAMS Accession No. ML23198A151).

This revision of the guide (Revision 1) provides additional guidance on suspicious activity reporting. These new and updated requirements are part of the NRC's final rule, titled “Enhanced Weapons, Firearms Background Checks, and Security Event Notifications” (hereafter the Enhanced Weapons rule), that was published in the Federal Register on March 14, 2023 (88 FR 15864). These provisions are found in the NRC's regulations under section 73.1215 of title 10 of the Code of Federal Regulations (10 CFR). Revision 1 to RG 5.87 provides acceptable methods that eligible applicants and licensees (collectively referred to as licensees in this RG) may use for reporting suspicious activity under NRC regulations. These provisions are found in the NRC's regulations under section 10 CFR 73.1215. Revision 1 to RG 5.87 provides guidance to applicants and licensees regarding an acceptable approach for reporting suspicious activity to local law enforcement agencies, the Federal Bureau of Investigation, the NRC, and the Federal Aviation Administration. Revision 1 to RG 5.87 also includes examples, considerations, and guidance to assist licensees in understanding their responsibilities in implementing 10 CFR 73.1215 requirements.

The NRC published a notice of availability of DG-5082 in the Federal Register on October 27, 2023 (88 FR 73769) for a 45-day public comment period. The public comment period closed on December 11, 2023. The NRC staff made changes to DG-5082 in response to public comments. NRC staff responses to public comments on DG-5082 are available in ADAMS under Accession No. ML23299A192.

In addition to the public comments received on DG-5082, the NRC received a public comment on DG-5080, “Proposed Revision 3 to Regulatory Guide 5.62, `Physical Security Event Notifications, Reports, and Records,'” regarding guidance on the topic of the term “Time of discovery.” Guidance on the term “Time of discovery” was also included in DG-5082. Accordingly, the NRC has made conforming changes to the guidance in Revision 1 to RG 5.87 regarding the term “Time of discovery” that are consistent with Revision 3 to RG 5.62 on this same term.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

Issuance of RG 5.87, Revision 1 does not constitute backfitting as defined in 10 CFR 72.62, “Backfitting”; 10 CFR 70.76, “Backfitting”; 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests” (ADAMS Accession No. ML18093B087). Also, issuance of RG 5.87, Revision 1 does not constitute forward fitting as that term is defined and described in MD 8.4; and does not affect the issue finality of any approval issued under 10 CFR part 52, “Licenses, Certificates, and Approvals for Nuclear Powerplants.”

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

Table of Contents I. Introduction A. Background B. Overview of the Proposed Rule II. Discussion of Comments and Agency Response A. Overview of Comments Received B. Unfair or Deceptive Acts or Practices C. Board Standards and Responsibilities D. Certification of Compliance E. Mission-Specific Board Standards and Responsibilities F. Determination Not To Designate Enterprise Equitable Housing Finance Planning as a Prudential Management and Operations Standard G. Determination Not To Define “Equity” H. Resource Disclosures I. Public Engagement J. Program Evaluation K. Reporting on Bank Voluntary Actions To Address Barriers to Sustainable Housing Opportunities L. Data Collection M. Authority and Consistency With Law III. Summary of Changes in the Final Rule A. Section 1293.1(d), Severability Clause B. Section 1293.12(a), Reports, Data, and Certification C. Section 1293.12(b), Certification of Compliance D. Section 1293.21, General E. Section 1293.23, Resource Disclosures, Additions, and Clarifying Edits F. Section 1293.27, Program Evaluation G. Section 1293.31, Federal Home Loan Bank Equitable Housing Finance Planning IV. Consideration of Differences Between the Banks and the Enterprises V. Regulatory Analyses A. Paperwork Reduction Act B. Regulatory Flexibility Act C. Congressional Review Act I. Introduction

Federal agency oversight of fair housing, fair lending, and other relevant laws, as well as strategic planning to address barriers faced by renters and borrowers, are important in promoting sustainable housing opportunities  1 for underserved communities. 2 The final rule addresses barriers to sustainable housing opportunities for underserved communities by codifying existing FHFA practices in regulation and adding new requirements. Collectively, the actions in the final rule will improve FHFA's fulfillment of its statutory purposes and its oversight of the regulated entities and their fulfillment of their statutory purposes.

The final rule codifies in regulation much of FHFA's existing practices and programs regarding fair housing and fair lending oversight of its regulated entities, the Equitable Housing Finance Plan program for the Enterprises, and requirements for the Enterprises to collect and report language preference, homeownership education, and housing counseling information. The final rule makes changes to the Equitable Housing Finance Plan program to promote greater accountability for the Enterprises and public transparency, adds oversight of unfair or deceptive acts or practices to FHFA's fair housing and fair lending oversight programs, requires additional certification of compliance by the regulated entities, and establishes more precise standards related to fair housing, fair lending, and principles of equitable housing for regulated entity boards of directors (boards). The final rule also establishes a requirement for the Banks to report annually on any actions they voluntarily take to address barriers to sustainable housing opportunity for underserved communities in order to provide public transparency but does not require the Banks to undertake such actions or engage in the planning process required of the Enterprises.

FHFA, the Regulated Entities, and their Public Purposes. Fannie Mae and Freddie Mac are federally chartered housing finance enterprises whose purposes include: providing stability to the secondary market for residential mortgages; providing ongoing assistance to the secondary market for residential mortgages (including activities related to mortgages for low- and moderate-income families) by increasing the liquidity of mortgage investments and improving distribution of investment capital available for residential mortgage financing; and promoting access to mortgage credit throughout the United States, including central cities, rural areas, and underserved areas, by increasing the liquidity of mortgage investments and improving the distribution of investment capital available for residential mortgage financing. 3

The Federal Home Loan Bank System (the System) provides a stable and reliable source of liquidity for its members and provides support for affordable housing and community development for the communities they serve. It was established in 1932 by the Federal Home Loan Bank Act (Bank Act), 4 and today consists of 11 regional Banks and the System's fiscal agent, the Office of Finance. Each Bank is a separate, government-chartered, member-owned corporation.

Congress established FHFA to oversee the regulated entities to ensure that the purposes of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992 (Safety and Soundness Act), as amended, the authorizing statutes, and any other applicable laws are carried out. 5 In doing so, Congress recognized that the regulated entities have important public purposes reflected in their authorizing statutes, and that they must be managed safely and soundly so that they continue to accomplish their public missions. 6

With respect to the statutory mission of the Enterprises, a number of statutory and regulatory authorities that apply to FHFA and the Enterprises speak to the need to promote sustainable housing opportunities for all homebuyers, homeowners, and tenants in the housing market. 7 FHFA's principal duties include ensuring that the Enterprises operate consistent with safety and soundness and with the public interest. 8 FHFA and the Enterprises also have statutory duties and other commitments to advance equitable solutions for borrowers and tenants in the housing market. The Enterprises' authorizing statutes, for example, provide that one of their purposes is to promote access to mortgage credit throughout the Nation (including central cities, rural areas, and underserved areas). 9 The authorizing statutes require the Enterprises, as part of their annual housing reports, to assess their underwriting standards, policies, and business practices that affect low- and moderate-income families or cause racial disparities, along with any revisions to these standards, policies, or practices that promote affordable housing or fair lending. 10

The Housing Goals and Duty to Serve requirements  11 are important components for ensuring that the Enterprises fulfill their statutory mission and charters and serve low- and moderate-income families and underserved markets. 12 The Safety and Soundness Act provides that, in meeting these requirements, the Enterprises are required to take affirmative steps to assist primary lenders to make housing credit available in areas with concentrations of low-income and minority families. 13 The Safety and Soundness Act also requires the Enterprises to transfer an amount equal to 4.2 basis points for each dollar of unpaid principal balance of new purchases to the U.S. Department of Housing and Urban Development's (HUD) administration of the Housing Trust Fund and the U.S. Department of the Treasury's administration of the Capital Magnet Fund. 14 Both funds are designed to support affordable housing initiatives by providing capital for the production or preservation of affordable housing and related economic development activities. For the 2023 year, the Enterprises transferred $301 million into the funds. 15

Several provisions of the Bank Act denote the statutory missions of the Banks, including their role in making secured long-term advances to members to support residential housing finance, specific community support requirements, establishment of community investment programs and affordable housing programs, compliance with housing goals, and the requirement that certain board directors have experience in public interest areas. 16 FHFA launched a comprehensive review of the System in August 2022. 17 Among the areas FHFA explored as part of the review were the Banks' role in promoting affordable, sustainable, equitable, and resilient housing and community investment, including rental housing, and in addressing the unique needs of tribal communities, communities of color, rural communities, and other financially vulnerable and underserved communities. FHFA issued a Report based on its comprehensive review in November 2023, “The Federal Home Loan Bank System at 100: Focusing on the Future.”  18 The Report noted the passage of the Fair Housing Act as a significant milestone in the development of the mortgage finance system and noted that compliance with fair housing and fair lending laws and equity initiatives is not currently assessed in supervisory ratings for the Banks. The Report also noted that participants in FHFA's comprehensive review of the System suggested that FHFA consider requiring the Banks to prepare an affordable housing strategy or equitable housing finance plan that would describe their planned activities and summarize actions taken in the prior year.

Under the Fair Housing Act, all Federal agencies which have regulatory or supervisory authority over financial institutions, including FHFA, are required to administer their programs and activities relating to housing and urban development in a manner that affirmatively furthers the purposes of the Fair Housing Act, which includes providing for fair housing throughout the United States. 19 FHFA has included considerations of fair housing and fair lending in rulemaking since its establishment. 20 FHFA also issued a policy statement on fair lending which describes its regulatory and oversight authorities to supervise and enforce fair lending laws with respect to its regulated entities. 21 FHFA issued orders to Fannie Mae and Freddie Mac for regular and special reports related to fair housing and fair lending. 22 FHFA issued guidance for the Enterprises on fair housing and fair lending supervisory expectations. 23 FHFA coordinates with HUD on fair lending and fair housing oversight, 24 and established a fair lending oversight data system in part to facilitate cooperation in interagency fair housing and fair lending oversight. 25 FHFA has also implemented the referral program for potential mortgage pricing disparities across mortgage lenders based on the Enterprises' data, as required by Congress in section 1128 of the Housing and Economic Recovery Act of 2008 (HERA). 26 FHFA also established the Equitable Housing Finance Plan program for the Enterprises to develop a framework for addressing barriers to sustainable housing opportunities for underserved communities through strategic planning and public participation. 27 FHFA joined other agencies in issuing the Interagency Statement on Special Purpose Credit Programs Under the Equal Credit Opportunity Act and Regulation B in 2022. 28 In 2023, FHFA established a supervisory rating system for the Enterprises that evaluates compliance with fair housing and fair lending laws and equity initiatives. 29

Barriers to Sustainable Housing Opportunities. Ongoing disparities and challenges in the housing market persist, which limit sustainable housing opportunities for underserved communities. The rest of Part A discusses some of these disparities and challenges by way of example. Both Enterprises' 2022-2024 Equitable Housing Finance Plans identify Black and Latino communities as underserved and include extensive discussions of barriers to sustainable housing opportunities. 30 The inclusion or discussion of a particular disparity, challenge, or underserved community is not an indication of FHFA's views on the needs of a community or what actions FHFA's regulated entities should take.

Challenges Accessing Sustainable Housing Opportunities. There are many underserved communities experiencing significant challenges in accessing sustainable housing opportunities. This includes, for example, families living on tribal land, in rural areas, and in rental homes. Almost half of renters are cost-burdened, paying more than 30 percent of their income on housing, compared to only 22 percent of homeowners. 31 More than 10 million households headed by someone over age 65 are cost-burdened, with the median older renter having net worth under $6,000 in 2019. 32 By 2035, the population age 80 and over is expected to double from its level in 2016. The population in rural areas is older and more likely to have lower income levels, with the median income for renters in high needs rural areas being $26,422 compared to $40,505 nationally. 33 Lower incomes can lead to greater cost burdens in rural areas, particularly for renters. For example, in Middle Appalachia, 49 percent of renters are cost-burdened. 34 Individuals with disabilities also face housing challenges. As an increasing proportion of households wish to age in place, there is often a lack of housing opportunities that provide for mobility and other physical impairments. Two percent of total housing inventory is accessible for people with mobility disabilities, while 14 percent of Americans have mobility disabilities. 35

On September 16, 2019, Airbus applied for an amendment to Type Certificate No. A28NM to include the new Model A321neo XLR airplane. These airplanes are twin-engine, transport-category airplanes with seating for 244 passengers, and a maximum take-off weight of 222,000 pounds.

Under the provisions of 14 CFR 21.101, Airbus must show that the Model A321neo XLR airplane meets the applicable provisions of the regulations listed in Type Certificate No. A28NM, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A321neo XLR airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A321neo XLR airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

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

The Airbus Model A321neo XLR airplane will incorporate the following novel or unusual design feature:

Flight-envelope protections, in icing and non-icing conditions, that use high- incidence protection and an alpha-floor function to automatically advance throttles when the airplane angle of attack (AoA) reaches a predetermined value.

The current airworthiness standards do not contain adequate safety standards for the high-incidence protection system and the alpha-floor system for the Airbus Model A321neo XLR series airplanes. This is because the FAA's current standards were designed for more traditional electronic flight control systems (EFCS), which involve less advanced envelope protections, such as stick shakers and pushers. These special conditions address the more advanced flight envelope protections, including icing and non-icing conditions, that are part of the EFCS design of the A321neo XLR airplane.

The high-incidence protection system prevents the airplane from stalling and, therefore, the stall warning system is not needed during normal flight conditions. However, during failure conditions which are not shown to be extremely improbable, the requirements of §§ 25.203 and 25.207 apply, although slightly modified by these conditions. If there are failures not shown to be extremely improbable, the flight characteristics at the angle-of-attack for C LMAX must be suitable in the traditional sense, and stall warning must be provided in a conventional manner. These special conditions address the need for modification during icing conditions and non-icing conditions.

The alpha-floor function automatically advances the throttles on the operating engines under flight circumstances of low speed if the airplane reaches a predetermined high AoA. This function is intended to provide increased climb capability.

These special conditions address this novel or unusual design feature on the Airbus Model A321neo XLR and contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

The FAA issued Notice of Special Conditions No. 25-23-03-SC for the Airbus Model A321neo XLR airplane. They were published in the Federal Register on November 3, 2023 (88 FR 75513). The FAA received comments from Airbus Commercial Aircraft (Airbus) and The Boeing Company (Boeing).

Boeing requested that the FAA add statements to sections (e)(1)(ii)(B) and (C) of the proposed special conditions regarding the demonstration of satisfactory lateral control at the aft stop and the consideration of rapid application of go-around power or thrust. Boeing requested these changes for consistency with the proposed regulatory material for § 25.202(d)(2) and (4) in the Flight Test Harmonization Working Group Phase 2 Rev A Final Report  1 (FTHWG Report). The FAA does not agree to this change. The FAA has previously published special conditions on this subject. The terms of those special conditions were consistent with the terms of these special conditions, and the FAA finds that they provide an adequate level of safety, i.e., a level equivalent to the standards that, absent these special conditions, would otherwise be applicable.

Boeing recommended the FAA add “and emergency” to the proposed special conditions regarding the alpha-floor setting not interfering with normal maneuvering because this change would be consistent with proposed regulatory material for § 25.144(a) in the FTHWG Report. The FAA declines to make this change. This special condition only addresses the alpha-floor setting in normal maneuvering. The general limiting special conditions  2 for the A321neo XLR already include requirements for normal and emergency operations of all flight envelope protection functions, which include the alpha-floor function.

Boeing requested the FAA revise the deceleration rate in icing conditions in section (e)(1)(ii)(C)( 2 ) of the proposed special conditions to 3 knots per second because this change would be consistent with the Airbus Model A350-900 Special Conditions No. 25-517-SC part I section 5.1(b)(3)(ii) and the proposed regulatory material for § 25.202(d)(4) in the FTHWG Report. The FAA does not concur with Boeing's request because this change would not be appropriate for the design of the A321neo XLR. The XLR EFCS architecture is based on a previously certified architecture for the Airbus Model A321neo ACF. The A321neo ACF used a deceleration rate in icing conditions of 2 knots per second; therefore, using the same requirement for the A321neo XLR is appropriate and provides an adequate (equivalent) level of safety.

Boeing requested the FAA revise section (e)(2)(i)(D) of the proposed special conditions related to buffeting to have the same requirement for icing and non-icing conditions, which Boeing said would also be consistent with 25-517-SC part II section 3(a)(2)(i) and the proposed regulatory material for 25.105(a)(2)(iii) in the FTHWG Report. Boeing stated that the requirement for icing conditions appears to indicate that buffet of a deterrent magnitude and severity would be acceptable for demonstration. The FAA does not concur with Boeing's request. The FAA does not intend the buffeting requirement for icing conditions to allow deterrent buffet. The wording of these special conditions is appropriate because the magnitude of the buffet can be a driver in setting the protections while still requiring the airplane be free from excessive vibration and buffet. Therefore, these special conditions provide an adequate level of safety.

Boeing requested that the FAA remove all notes under section (j) of the proposed special conditions; the notes mention a tolerance for take-off and climb-out speeds in icing. Boeing stated that the tolerance in the notes appears to expand the allowable degradation in performance prior to calculating the icing effect and that the removal of the notes would align with previously released special conditions on this topic, such as 25-517-SC, and the recommendations in the FTHWG Report. The FAA does not concur with Boeing's request. The A321neo XLR is a derivative of an airplane (A321neo ACF) initially certified with tolerances to account for ice effect on performance along the take-off path as well as at landing. In particular, it was not needed to account for icing if the ice effect on V min 1g was less than 5%/5kt. To reflect the intent of § 25.21(g) on airplanes for which § 25.21(g) is not applicable, Airbus has proposed a standard for the A321neo XLR consisting of the removal of the tolerance at landing and a reduced tolerance to 2.5%/2.5kt for take-off path. Airbus considers that the requirements of these special conditions provide an adequate level of safety based on the in-service performance of previous A321 models, and the FAA concurs.

Airbus, the applicant, requested the FAA revise the special condition that the FAA proposed would apply in lieu of § 25.121(d)(2)(ii). Airbus provided updated wording that replaced the text presented in the notice with text inspired by the FTHWG report recommendations. Airbus stated that this text is comparable in intent to the text proposed by FAA in the notice but with an improved clarity thanks to a more modern wording, anticipating the future implementation of the FTHWG recommendations. The FAA concurs with this rationale and has modified the final special condition accordingly.

Boeing commented that the formatting of the proposed special conditions related to § 25.121 could lead to confusion as to which regulations were being addressed due to missing paragraph numbers. The FAA concurs and has updated the format of the final special conditions to clarify.

As discussed above, these special conditions are applicable to the Airbus Model A321neo XLR airplane. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

Under standard practice, the effective date of final special conditions would be 30 days after the date of publication in the Federal Register . However, as the certification date for the Airbus Model A321neo XLR is imminent, the FAA finds that good cause exists to make these special conditions effective upon publication.

This action affects only certain novel or unusual design features on one model A321neo XLR airplane. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Airbus Model A321neo XLR airplane.

In the following paragraphs, “In icing conditions” means with the ice accretions, relevant for the flight phase, as defined in part 25, appendix C.

These special conditions address a novel or unusual design feature of the Airbus A321neo XLR and use terminology that does not appear in part 25. For the purpose of these special conditions, the following terms describe certain aspects of this novel or unusual design feature:

A system that operates directly and automatically on the airplane's flying controls to limit the maximum AoA that can be attained to a value below that at which an aerodynamic stall would occur.

A system that automatically increases thrust on the operating engines when AoA increases through a particular value.

The maximum angle of attack at which the airplane stabilizes with the high-incidence protection system operating and the longitudinal control held on its aft stop.

An airspeed calculated from a variety of factors, including load factor normal to the flight path at V CLmax , airplane gross weight, aerodynamic reference wing area, and dynamic pressure.

The minimum steady flight speed in the airplane configuration under consideration with the high-incidence protection system operating.

V min corrected to 1g conditions. This is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for V min .

Acceptable capability and reliability of the high-incidence protection system can be established by flight test, simulation, and analysis, as appropriate. The capability and reliability required are as follows:

(1) It must not be possible, during pilot-induced maneuvers, to encounter a stall; and handling characteristics must be acceptable, as required by section (e) of these Special Conditions.

(2) The airplane must be protected against stalling due to the effects of wind-shears and gusts at low speeds as required by section (f) of these Special Conditions.

(3) The ability of the high-incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions.

(4) The high-incidence protection system must be provided in each abnormal configuration of the high-lift devices that are likely to be used in-flight following system failures.

(5) The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.

In lieu of § 25.103, “Stall speed”, the following requirements apply:

(1) The minimum steady flight speed, V min , is the final stabilized calibrated airspeed obtained when the airplane is decelerated until the longitudinal control is on its stop in such a way that the entry rate does not exceed 1 knot per second.

(2) The minimum steady flight speed, V min , must be determined in icing and non-icing conditions with:

(i) The high-incidence protection system operating normally;

(ii) Idle thrust and alpha-floor system inhibited;

(iii) All combinations of flaps setting and landing gear position for which V min is required to be determined;

(iv) The weight used when the reference stall speed, V SR , is being used as a factor to determine compliance with a required performance standard;

(v) The most unfavorable center of gravity allowable; and

(vi) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(3) The 1g minimum steady flight speed, V min1g , is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight, while at an angle of attack not greater than that at which the minimum steady flight speed of condition 3(a), above, was determined. It must be determined in icing and non-icing conditions.

(4) The reference stall speed, V SR , is a calibrated airspeed the applicant defines. V SR may not be less than a 1g stall speed. V SR must be determined in non-icing conditions and expressed as:

(5) V Clmax is determined in non-icing conditions with:

(i) Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;

(ii) The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which V SR is being used;

(iii) The weight used when V SR is being used as a factor to determine compliance with a required performance standard;

(iv) The center of gravity position that results in the highest value of reference stall speed;

(v) The airplane trimmed for straight flight at a speed achievable by the automatic trim system, but not less than 1.13 V SR and not greater than 1.3 V SR ;

(vi) Alpha-floor system inhibited; and

(vii) The high-incidence protection system adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system.

(viii) Starting from the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed 1 knot per second.

In lieu of § 25.207, the following requirements apply:

If the design meets all conditions of section (b) of these special conditions, then the airplane need not provide stall warning during normal operation. The conditions of Part I, section 2 provide a level of safety equal to the intent of § 25.207, “Stall warning,” so the provision of an additional, unique warning device for normal operations is not required.

(i) In non-icing conditions, for any failures of the high-incidence protection system that the applicant cannot show to be extremely improbable, such that the capability of the system no longer satisfies conditions (b)(1), (2), and (3) of these Special Conditions, stall warning must be provided in accordance with § 25.207(a), (b), and (f).

(ii) In icing conditions, after a failure leading to the loss of the high-incidence protection system, a safety margin not less than 3 percent or 3 knots between stall warning and stall must be maintained.

In lieu of § 25.201, High-incidence handling demonstration in icing and non-icing conditions:

(i) Maneuvers to the limit of the longitudinal control, in the nose-up sense, must be demonstrated in straight flight and in 30-degree banked turns with:

(A) The high-incidence protection system operating normally;

(B) Initial power conditions of:

(1) Power off; and

(2) The power necessary to maintain level flight at 1.5 V SR1, where V SR1 is the reference stall speed with flaps in approach position, the landing gear retracted, and maximum landing weight;

(C) Alpha-floor system operating normally unless more severe conditions are achieved with inhibited alpha floor;

(D) Flaps, landing gear, and deceleration devices in any likely combination of position;

(E) Representative weights within the range for which certification is requested; and

(F) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(ii) The following procedures must be used to show compliance in non-icing and icing conditions:

(A) Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed 1 knot per second until the control reaches the stop.

(B) The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition, and must then be recovered through normal recovery techniques.

(C) Maneuvers with increased deceleration rates:

(1) In non-icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable.

(2) In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit up to 2 knots per second.

(D) Maneuvers with ice accretion prior to operation of the normal anti-ice system: With the ice accretion prior to operation of the normal anti-ice system, the requirement must also be met in deceleration at 1 knot per second up to full back stick maintained for at least 3 seconds before normal recovery is performed (requirement to be met with and without alpha floor operating).

In lieu of § 25.203, Characteristics in High Incidence.

In icing and non-icing conditions:

(i) Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30-degree banked turns, the airplane's characteristics must be as follows:

(A) The airplane must not exhibit abnormal nose-up pitching.

(B) The airplane must not exhibit uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at alpha limit, as the longitudinal control reaches the stop, would be acceptable.

(C) The airplane must not exhibit uncommanded lateral or directional motion, and the pilot must retain good lateral and directional control through conventional use of the controls, throughout the maneuver.

(D) Buffeting:

(1) In non-icing conditions, the airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in condition (e)(1)(i) of these Special Conditions.

(2) In icing conditions, the airplane may exhibit buffeting of a stronger magnitude and severity than in non-icing conditions, provided that the airplane is demonstrated to be free from excessive vibration and buffeting over the range of speeds adequate for normal operation.

(ii) In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized alpha limit. However, the airplane must not exhibit dangerous characteristics, nor characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.

(iii) The pilot must always be able to reduce incidence through conventional use of the controls.

(iv) The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds such as V 2 and V ref , up to alpha limit, must not be unduly damped or be significantly slower than can be achieved on conventionally controlled transport airplanes.

Maneuvers with a rate of deceleration of not more than 1 knot per second, up to the angle of attack at which V CLmax was obtained as defined in section (c) of these Special Conditions, must be demonstrated in straight flight and in 30-degree banked turns with:

(i) The high-incidence protection system deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system,

(ii) Alpha-floor system inhibited,

(iii) Engines idling,

(iv) Flaps and landing gear in any likely combination of positions, and

(v) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

During such maneuvers, the airplane must not exhibit dangerous characteristics and the pilot must always be able to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

Operation of the high-incidence protection system must not adversely affect airplane control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind shear. This must be demonstrated in non-icing conditions only, and must allow for drawing conclusion for icing conditions without further demonstration.

In icing and non-icing conditions, the alpha-floor setting must be such that the airplane can be flown at the speeds and bank angles specified in § 25.143(h). The applicant also must show that the alpha-floor setting does not interfere with normal maneuvering of the airplane. In addition, the airplane must exhibit no alpha-floor triggering unless appropriate when the airplane is flown in usual operational maneuvers and in turbulence.

In addition to the requirements in § 25.21(b), the following requirement applies:

The flying qualities will be evaluated at the most unfavorable center-of-gravity (CG) position.

(i) Speed Associated With Other Requirements

The design must meet the following modified requirements:

(1) Section 25.145(a): V min in lieu of “stall identification.”

(2) Section 25.145(b): V min in lieu of V sw .

(3) Section 25.1323(d): “From 1.23 V SR to V min ” in lieu of “1.23 V SR to stall warning speed” and “speeds below V min ” in lieu of “speeds below stall warning.”

In lieu of compliance with § 25.105(a)(2)(i), the following special conditions apply:

(a) In icing conditions, if in the configuration used in showing compliance with § 25.121(b), and with the most critical of the “Take-off Ice” accretion(s) defined in 14 CFR part 25, appendix C:

(i) The V 2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the take-off configuration.

In lieu of compliance with § 25.121(b)(2)(ii)(A), the following special conditions apply:

(a) In icing conditions, with the most critical of the take-off ice accretion(s) defined in 14 CFR part 25, appendix C, if in the configuration used to show compliance with § 25.121(b) with this take-off ice accretion:

(i) The V 2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h), for the take-off configuration.

In lieu of compliance with § 25.121(c)(2)(ii)(A) and (B), the following special conditions apply:

(b) In icing conditions, with the most critical of the final take-off ice accretion(s) defined in 14 CFR part 25, appendix C, if in the configuration used to show compliance with § 25.121(b) with the take-off ice accretion used to show compliance with § 25.111(c)(5)(i):

(i) The V FTO (final take-off speed) scheduled in non-icing conditions does not provide the maneuvering capability, specified in § 25.143(h), for the en-route configuration.

(ii) The degradation of the gradient of climb, determined in accordance with § 25.121(b), with the take-off ice accretion used in showing compliance with § 25.111(c)(5)(i), is greater than one-half of the applicable actual-to-net take-off flight path gradient reduction defined in § 25.115(b).

In lieu of compliance with 25.121(d)(2)(ii), the following special conditions apply:

(c) In icing conditions, with the most critical of the approach ice accretion(s) defined in 14 CFR part 25, appendix C, as applicable,

(i) The climb speed selected for non-icing conditions may be used if the climb speed for icing conditions, computed in accordance with § 25.121(d)(3), does not exceed that for non-icing conditions by more than the greater of 3 knots CAS or 3 percent; or,

(ii) The climb speed established with normal landing procedures, but not more than 1.4 V SR (V SR determined in non-icing conditions), may be used if in a configuration corresponding to the normal all-engines-operating procedure where the V min 1g for this configuration does not exceed 110 percent of the V min 1g for the related all-engines-operating landing configuration in icing conditions.

In lieu of compliance with 25.123(b)(2)(i), the following special conditions apply:

(a) In icing conditions with the most critical of the en-route ice accretion(s) defined in 14 CFR part 25, appendix C, if:

(i) The V FTO speed scheduled in non-icing conditions does not provide the maneuvering capability, specified in § 25.143(h), for the en-route configuration.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all De Havilland Aircraft of Canada Limited Model DHC-8-401 and -402 airplanes. The NPRM published in the Federal Register on October 27, 2023 (88 FR 73775). The NPRM was prompted by AD CF-2022-59, dated October 27, 2022, issued by Transport Canada, which is the aviation authority for Canada (referred to after this as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

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. The FAA is issuing this AD to address new or more restrictive maintenance interval limitations. Failure to adhere to the specified interval limitations may result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-2137.

The FAA received a comment from an individual who supported the NPRM without change.

The FAA received additional comments from De Havilland Aircraft of Canada Limited and Horizon Air. The following presents the comments received on the NPRM and the FAA's response to each comment.

De Havilland requested that the Costs of Compliance section of the NPRM be updated to show the correct number of affected airplanes.

The FAA agrees. The Costs of Compliance section of this AD has been updated to show 52 affected airplanes.

Horizon Air requested that the proposed AD directly mandate maintenance review board report (MRBR) tasks instead of Aircraft Maintenance Manual (AMM) tasks. Horizon noted that Transport Canada AD CF-2022-59 mandates MRBR tasks directly, and that using the AMM tasks would put an additional burden on the operator to monitor multiple sources for the same tasks. The commenter also asserted that AMM task 77-31-00-710-803, which would be required by the proposed AD, adds MRBR tasks 731100-203, 733100-201, 740000-201, 750000-201, 772100-202, and 793000-201. These tasks are not identified in Section 7-00, PSM 1-84-7—Maintenance Requirements Manual—Part 2 ALI.

The FAA does not agree because the FAA has decided to not mandate MRBRs that are part of Candidate Certification Maintenance Requirements (CCMRs), which are required by Transport Canada AD CF-2022-59. Instead of mandating the CCMR as done in the Transport Canada AD, the FAA, after coordination with Transport Canada, determined the corresponding AMM task numbers will be used. With the AMM tasks, operators must check for all engine fault codes at once, which involves reading codes from the engine fault code indicator. Although this involves more tasks, it does not add a significant number of steps. Requiring the AMM task does not pose a significant burden on the operator. This AD has not been changed with regard to this request.

Horizon Air requested that the proposed AD require only the procedure section of the AMM, with provisions for equivalent tooling and materials, rather than requiring the entire AMM maintenance task, including the job set-up, specific tools, equipment, and close-out sections. The commenter stated that mandating the entire AMM maintenance task procedure may restrict the operator's ability to perform other maintenance along with AMM tasks.

The FAA does not agree. The job set-up and close-out procedures are essential for ensuring the safety of maintenance personnel, and for ensuring the correct completion of the AMM task. This AD has not been changed with regard to this request.

Horizon Air requested clarification of whether future revisions of the AMM are allowed. Horizon noted that the proposed AD did not address whether task changes such as additions, removals, and interval adjustments could cause an operator to be out of compliance with the rule as issued.

The FAA agrees to clarify. Using the current revision of the AMMs or other revisions that incorporate the information specified in paragraph (g) of this AD is acceptable for compliance with this AD. This AD does not mandate using a specific revision of the AMM, provided that the revision used complies with the requirements of paragraph (g) of this AD.

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

The FAA estimates that this AD affects 52 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has determined that revising the 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).

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

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

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

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2023-1737 in the Federal Register (88 FR 54952; August 14, 2023), proposing to amend VOR Federal Airways V-44, V-128, and V-493, and United States RNAV Routes T-315 and T-323 due to the planned decommissioning of the VOR portion of the York, KY, VORTAC NAVAID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

VOR Federal airways are published in paragraph 6010(a) and United States Area Navigation Routes (T-routes) are published in paragraph 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending VOR Federal airways V-44, V-128, and V-493, and United States RNAV routes T-315 and T-323. The FAA is taking this action due to the planned decommissioning of the VOR portion of the York, KY, VORTAC NAVAID. The ATS route actions are described below.

V-44: Prior to this final rule, V-44 extended between the Columbia, MO, VOR/Distance Measuring Equipment (VOR/DME) and the Centralia, IL, VORTAC; and between the Falmouth, KY, VOR/DME and the Albany, NY, VORTAC. The airspace below 2,000 feet mean sea level (MSL) outside the United States was excluded. The airway segment between the Falmouth VOR/DME and the Parkersburg, WV, VORTAC is removed. As amended, the airway is changed to now extend between the Columbia VOR/DME and the Centralia VORTAC, and between the Parkersburg VORTAC and the Albany VORTAC.

V-128: Prior to this final rule, V-128 extended between the Brickyard, IN, VORTAC and the Casanova, VA, VORTAC. The airway segment between the Cincinnati, OH, VORTAC and the Charleston, WV, VORTAC is removed. As amended, the airway is changed to now extend between the Brickyard VORTAC and the Cincinnati VORTAC, and between the Charleston VORTAC and the Casanova VORTAC.

V-493: Prior to this final rule, V-493 extended between the Livingston, TN, VOR/DME and the Appleton, OH, VORTAC. The airway segment between the Lexington, KY, VOR/DME and the Appleton VORTAC is removed. As amended, the airway is changed to now extend between the Livingston VOR/DME and the Lexington VOR/DME.

T-315: Prior to this final rule, T-315 extended between the JARLO, WV, waypoint (WP) and the Burlington, VT, VORTAC. The route is extended westward from the JARLO WP to the JIMUR, KY, Fix which is located approximately 1.1 nautical miles (NM) east northeast from the Cincinnati, KY, VORTAC and will be charted when the York VOR is decommissioned. The route extension will include the CALIF, KY, Fix and the ILILE, OH, Fix which is being converted to a WP when the York VOR is decommissioned. As amended, T-315 is changed to now extend between the JIMUR, KY, Fix and the Burlington, VT, VORTAC. The full T-315 route description is listed in the amendments to part 71 as set forth below.

T-323: Prior to this final rule, T-323 extended between the MARQO, FL, WP and the DACEL, KY, WP. The route is extended northward from the DACEL WP to the Appleton, OH, VORTAC. The route extension includes the ZELID, KY, WP which is being established approximately 2.1 NM southeast from the York, KY, VORTAC and the ROHDE, OH, Fix which is being converted to a WP when the York VOR is decommissioned. As amended, T-323 is changed to now extend between the MARQO WP and the Appleton VORTAC. The full T-323 route description is listed in the amendments to part 71 as set forth below.

The NAVAID radials listed in the VOR Federal Airway descriptions in the regulatory text of this final rule are unchanged and stated in degrees True north.

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

The FAA has determined that this action of amending VOR Federal Airways V-44, V-128, and V-493, and United States RNAV Routes T-315 and T-323, due to the planned decommissioning of the VOR portion of the York, KY, VORTAC NAVAID, qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points); and paragraph 5-6.5i, which categorically excludes from further environmental impact review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority for This Rulemaking

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

The FAA published a notice of proposed rulemaking for Docket No. FAA-2023-2482 in the Federal Register (89 FR 2520; January 16, 2024), proposing to amend Class E airspace at Edward G. Pitka Sr, Airport, Galena, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

When identifying the Class E airspace extending upward from 700 feet or more above the surface of the earth, an inadvertent text was entered in line one of the text header for type of airspace. The appropriate designation of E5 was entered in the airport's legal texts in the Final Rule.

Class E2 and E5 airspace areas are published in paragraph 6002 and 6005, respectively, of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by modifying the Class E airspace area designated as a surface area and modifying the Class E airspace extending upward from 700 feet above the surface at Edward G. Pitka Sr. Airport, Galena, AK.

The Class E airspace area designated as a surface area is reduced to 4.1-mile radius around the airport. The reduction in airspace efficiently contains IFR departure operations until reaching 700 feet above the surface or the next adjacent controlled airspace.

The Class E airspace area extending upward from 700 feet above the surface is modified to contain aircraft executing IFR arrival procedures descending through 1,500 feet above the surface. The modification more appropriately contains the airport's instrument arrival approaches' final bearings and final bearing protected airspaces.

Finally, the FAA amended the airport's legal description. The airport's geographic coordinates have been updated to match the FAA's database.

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

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

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

I. Table of Abbreviations BOEM Bureau of Ocean Energy Management CFR Code of Federal Regulations DD Degrees Decimal DHS Department of Homeland Security FR Federal Register NPRM Notice of Proposed Rulemaking OCS Outer Continental Shelf OSS Offshore Substation NAD 83 North American Datum of 1983 NM Nautical Mile RWF Revolution Wind Farm § Section U.S.C. United States Code WTG Wind Turbine Generator LNM Local Notice to Mariners BNM Broadcast Notice to Mariners II. Background, Purpose, and Legal Basis

On February 2, 2024, Orsted, an offshore wind farm developer, notified the Coast Guard that they plan to begin construction of the Revolution Wind facilities in the Revolution Wind Farm (RWF) project area within federal waters on the Outer Continental Shelf (OCS), specifically in the Bureau of Ocean Energy Management (BOEM) Renewable Energy Lease Area OCS-A 0486, approximately 15 nautical miles (NM) offshore southeast of Point Judith, Rhode Island, 32 NM southeast of the Connecticut coast and 12 NM southwest of Martha's Vineyard, Massachusetts in June 2024.

After determining that establishment of safety zones was necessary to provide for the safety of life, property, and the environment during the anticipated construction of the structures, on March 21, 2024, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Safety Zone; Revolution Wind Farm Project Area, Outer Continental Shelf, Lease OCS-A 0486, Offshore Rhode Island, Atlantic Ocean” (89 FR 20150). There we explained the basis for the NPRM and invited comments on our proposed regulatory action related to the establishment of safety zones around the construction of 65 Wind Turbine Generators (WTG) and two Offshore Sub Stations (OSS) located in the RWF project area. Eighty-six comments were received during the comment period that ended April 22, 2024.

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 . The comment period for the NPRM associated with the RWF project area ended on April 22, 2024, and construction for the project has already begun. Thus, there is insufficient time to allow for 30-days before the rule becomes effective. Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to respond to the potential safety risks associated with the extremely complex and unusually hazardous construction of these OCS facilities including hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations, potential falling debris, increased vessel traffic, and stationary barges in close proximity to the facilities and each other, occurring at times within 12 NM of shore.

Based on these circumstances, the First Coast Guard District Commander has determined that establishment of 67 safety zones through rulemaking is warranted to ensure the safety of life, property, and the environment within a 500-meter radius of each of the 67 facilities during their construction.

The Coast Guard is issuing this rule under the authority provided in 14 U.S.C. 544, 43 U.S.C. 1333, and Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.3. As an implementing regulation of this authority, 33 CFR part 147 permits the establishment of safety zones for non-mineral energy resource permanent or temporary structures located on the OCS for the purpose of protecting life and property on the facilities, appurtenances and attending vessels, and on the adjacent waters within the safety zone (see 33 CFR 147.10). Accordingly, a safety zone established under 33 CFR part 147 may also include provisions to restrict, prevent, or control certain activities, including access by vessels or persons to maintain safety of life, property, and the environment.

As noted above, the Coast Guard received 86 public comments on the NPRM published March 21, 2024. Three of the 86 comments were supportive of the 67 temporary 500-meter safety zones while the remaining 83 were opposed. One commenter who supported the rulemaking, provided three recommendations. Another supporter of our proposed rule sought clarification of the rule in their comment. A third supporter of the rule requested the Coast Guard consider conducting a radar interference and additional studies. Those opposing the NPRM communicated this opposition relative to wind farm construction in general and not necessarily regarding our proposed rule and the enforcement of safety zones around this construction. Six commenters expressed specific opposition to taxpayer dollars being used for the enforcement of safety zones around the construction of private facilities and stated that the developer should be held responsible for the financial burden. Three commenters expressed their concerns with our review of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) without any further specificity on their contentions. One commenter questioned the need for safety zones for this particular offshore construction project as compared to offshore drilling platforms in the Gulf of Mexico. We provide a detailed discussion below in response to each comment.

One commenter who agreed with our proposed rule to create 67 temporary 500-meter safety zones during construction of these OCS facilities to protect life, property, and the environment, and supported the proposed rule, offered three recommendations for the Coast Guard to consider.

First, the commenter expressed their concern that a 500-meter safety zone was insufficient and recommended we extend the safety zones 500-meters by originating the measurement from the outer perimeter of attending, primary construction vessels once those vessels have achieved stationary position to conduct construction activities vice from the center point of the construction site. For clarity and consistency for mariners working in and transiting the area, we believe that enforcement of the 500-meter zone from the center point of construction as a fixed geographic position is most appropriate for this offshore construction project. Using the center point of construction to base the location of the safety zone ensures there is a balance between ensuring safety and reducing impact on vessel transit.

Second, the commenter recommended we clarify the term “local officer” as used in the definition of “designated representative” and expand the definition of “designated representative” to include an appropriate employee or contractor of Orsted to facilitate navigation around and through the safety zones and enhance effective communications when safety zones are enforced. We agree with the recommendation to clarify term “local officer” and will add the following definition in the regulatory text: the term “local officer” as used in the definition “designated representative” for this rulemaking means “any officer, agent, or employee of a unit of local government authorized by law or by a local government agency to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of criminal law.” However, the Coast Guard does not agree with the commenter's other recommendation to expand the definition of “designated representative” in our proposed rule to include employees of Orsted, or their contractors. The Coast Guard finds no compelling need to broaden the definitional reach of the term “designated representative” or the authority to permit passage through and around the enforced safety zone based on the particular details of this offshore construction project, to include, the short duration of the enforcement period (possibly lasting less than one week depending on weather and other factors), the reduced vessel traffic in areas of construction, and the types of larger vessels that are most likely to navigate in the vicinity of the safety zones (commercial shipping, fishing, larger recreational vessels, and tugs with tows). The details of this offshore construction project suggest that those currently included in the definition of “designated representative” can properly ensure enforcement and administration of the rulemaking. Moreover, maintaining designation to Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel and a Federal, State, and local officer designated by or assisting the First Coast Guard District Commander in the enforcement of the safety zones will ensure consistent application.

Finally, the commenter suggested the Coast Guard not specify the duration that a safety zone may be enforced during active construction to accommodate delays in construction due to weather and other factors. In a previous similar offshore construction project, the developer estimated a 48-hour total active construction time, which translated to an estimated 48-hour enforcement period for each phase of the project. For this offshore construction project, the developer finds the 48-hour timeframe to be unrealistic, however. We do believe that providing an estimated time frame of safety zone enforcement is important to help the mariner understand any impacts on their intend voyage and alter course as needed and agree with the commenter that delays due to weather and other factors may extend the original period of construction. Accordingly, the Coast Guard finds that an enforcement period correlated to a regularly updated date range published in the weekly Local Notice to Mariners (LNM) is the best option because it is easily interpreted, reliable, and enforceable risk mitigation. Therefore, for this project and for voyage planning purposes, mariners should understand that it is possible that the enforcement period for a safety zone cited in the LNM could last for the entirety of the week due to the uncertainty of the active construction period. If active construction at a particular facility is completed before publishing of the next weekly LNM, a Broadcast Notice to Mariners (BNM) will broadcast the suspension of safety zone enforcement. As stated in our proposed rule, the Coast Guard's intention in enforcing safety zones during active construction and suspending enforcement when there is no construction is to reduce the regulatory burden on the mariner.

One commenter supported our proposed rule to create 67 temporary 500-meter safety zones during construction of these OCS facilities to protect life, property, and the environment, but requested additional clarification to the rule. The commenter specifically asked, “how many safety zones would be active at any given time?” The Coast Guard's response is, the 67 temporary safety zones could be enforced individually or simultaneously at several locations for a period lasting up to one week as construction progresses throughout the RWF project area. The commenter also asked, “will there be a website to check the open or closed zones, which is updated regularly?” In response, the Coast Guard will make notice of each enforcement period via the LNM and issue a BNM via marine channel 16 (VHF-FM) as soon as practicable in response to an emergency or hazardous condition. The First Coast Guard District LNM can be found at: http://www.navcen.uscg.gov. The commenter also asked, “since each zone is 1/4 mile and the pilings are 1 mile apart, there's a 1/2 mile corridor between each and all, correct?” In response, this is generally correct but not exact and in some instances the distance may be considerably less than a 1/2 nm. We interpret the commenter's question to be aimed at determining if a safety zone is being enforced at adjacent facilities simultaneously what would be the available sea lane for a vessel to transit safely between the safety zones. In response to this interpretation, when enforced, there will be a 500-meter regulated area around the construction of each facility. The mariner may consider each facility to be roughly built, based on guidelines, at approximately 1 nm spacing. In addition, the mariner should account for the amount of spacing between facilities base on the vessel's direction of travel and the orientation of the facilities to each other and the vessel. The Coast Guard recommends that mariners transiting in the vicinity of the wind energy construction areas to maintain a proper watch and assess all risk factors during its voyage. Lastly, the commenter asked, “has the company provided a construction timeline for the work, perhaps by name (AE06 for example) and sector?” Additional information about the construction process of the RWF project area can be found at https://www.boem.gov/renewable-energy/state-activities/revolution-wind or at https://revolution-wind.com/resources-and-faqs/construction-updates.

One commenter agreed with our proposed rule to create 67 temporary 500-meter safety zones during construction of these OCS facilities to protect life, property, and the environment but, requested the Coast Guard consider conducting a radar interference and additional studies. The commenter also stated that the economic impacts of the RWF have not been analyzed by BOEM correctly and therefore the Coast Guard is now required to conduct the analysis.

The commenter expressed their concerns about possible radar interference and the Coast Guard's ability to operate and conduct search and rescue within RWF and requested the Coast Guard conduct additional studies and modeling analysis as a part of this rule. The Coast Guard acknowledges these concern and requests. However, the purpose of this rulemaking is to establish 67 temporary safety zones around the construction of each facility during the development of the RWF project area, which is unrelated to the commenter's concerns. Also, the First Coast Guard District has factored applicable statutes and regulations into this rule, as cited in Section III.

The same commenter also stated that the economic impacts of the RWF have not been analyzed by BOEM as part of the FEIS correctly and therefore this analysis is now required to be conducted be the Coast Guard. While this rule may affect some owners or operators of small entities, the Coast Guard believes these safety zones will have a minimal economic impact because the safety zones are temporarily enforced, allow for deviation requests, and do not significantly impact transits. Vessels will only be prohibited from the regulated zone during periods of actual construction activity. The Coast Guard anticipates the enforcement period at each location to last anywhere from 48-hours to less than one week. Vessel traffic will be able to pass safely around each safety zone using an alternate route. Use of an alternate route will likely cause minimal delay for vessels in reaching their destination depending on other traffic in the area and vessel speeds. Vessels will be permitted to request deviations from this rule to transit through a safety zone. Such requests would be considered on a case-by-case basis and may be authorized by the First Coast Guard District Commander.

Six commenters expressed specific opposition to taxpayer dollars being used for the enforcement of safety zones around the construction of private facilities and stated that the developer should be held responsible for the financial burden. The Coast Guard acknowledges these comments and concerns. Coast Guard authorities direct us to assess the potential safety risks associated with such complex and unusually hazardous construction projects, whether publicly or privately funded, and require establishment of the safety zones to ensure the safety of life, property, and the environment when such hazards exist.

Three commenters expressed their concerns with our review generally of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) which 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. Without having a more specific understanding of the commenters concerns to comment on, the Coast Guard maintains the belief that this rule would not result in any 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.

One commenter questioned the need for safety zones for this offshore construction project as compared to offshore drilling in the Gulf of Mexico. The Coast Guard acknowledges this comment but disagrees. Although there are some similarities between offshore wind facilities and offshore drilling platforms, the Coast Guard finds significant differences exist, warranting different considerations in the assessment for safety zones. The Coast Guard would also like to stress that this rule focuses on the enforcement of safety zones during the initial active construction of the facility, which will cease upon completion and installation, not the establishment of permanent safety zones. As we stated in our NPRM, the extremely complex offshore construction of these OCS facilities presents many unusually hazardous conditions including hydraulic pile driving hammer operations, heavy lift operations, overhead cutting operations, potential falling debris, increased vessel traffic, and stationary barges in close proximity to the facilities and each other. Based on these circumstances, the First Coast Guard District Commander has determined that establishment of 67 temporary safety zones through rulemaking is warranted to ensure the safety of life, property, and the environment within a 500-meter radius of each of the 67 facilities during their construction. Additionally, the Coast Guard is establishing these 67 safety zones to be temporary in nature and only effective and enforceable during periods of active construction through May 31, 2027. If the project is completed before May 31, 2027, enforcement of the safety zones will be suspended, and notice given via LNM. Any desire by the Coast Guard to create permanent safety zones would require addition notice and comment rulemaking.

After considering the comments discussed above, the Coast Guard determined that no additional changes other than adding a definition for “local officer” should be made to the regulatory text based on these comments. As written, the Coast Guard believes that the rule ensures consistency, sufficient notice, and improved safety while minimizing impact on vessel transit.

There is one change to the regulatory text of this rule from the NPRM. As discussed in comments above, we are adding a definition to the term “local officer”. The term “local officer” as used in the definition “designated representative” for this rulemaking means “any officer, agent, or employee of a unit of local government authorized by law or by a local government agency to engage in or supervise the prevention, detection, investigation, or prosecution of any violation of criminal law.”

This rule establishes 67 temporary 500-meter safety zones around the construction of 65 WTGs and two OSS on the OCS from June 1, 2024, through 11:59 p.m. on May 31, 2024.

The 67 temporary safety zones could be enforced individually or simultaneously at several locations for a period lasting up to one week as construction progresses throughout the RWF project area. The Coast Guard will make notice of each enforcement period via the LNM and issue a BNM via marine channel 16 (VHF-FM) as soon as practicable in response to an emergency or hazardous condition. The Coast Guard is publishing this rulemaking to be effective, and enforceable, through May 31, 2027, to encompass any construction delays due to weather or other unforeseen circumstances. If the project is completed before May 31, 2027, enforcement of the safety zones will be suspended, and notice given via Local Notice to Mariners.

Additional information about the construction process of the RWF project area can be found at https://www.boem.gov/renewable-energy/state-activities/revolution-wind.

The 67 temporary 500-meter safety zones around the construction of 65 WTGs and two OSS are in the RWF project area, specifically in the BOEM Renewable Energy Lease Area OCS-A 0486, approximately 15 nautical NM offshore southeast of Point Judith, Rhode Island, 32 NM southeast of the Connecticut coast and 12 NM southwest of Martha's Vineyard, Massachusetts.

The positions of each individual safety zone in this rulemaking will be referred to using a unique alpha-numeric naming convention outlined in the “Rhode Island and Massachusetts Structure Labeling Plot (West)”. 1

Aligning with authorities under 33 CFR 147.15, the safety zones will include the area within 500-meters of the center point of the positions provided in the table below expressed in Degrees (°) Minutes (′) (DM) based on North American Datum 1983 (NAD 83).

When enforced, no unauthorized vessel or person would be permitted to enter the safety zone without obtaining permission from the First Coast Guard District Commander or a designated representative. Requests for entry into the safety zone would be considered and reviewed on a case-by-case basis. Persons or vessels seeking to enter the safety zone must request authorization from the First Coast Guard District Commander or designated representative via VHF-FM channel 16 or by phone at 866-842-1560 (First Coast Guard District Command Center). If permission is granted, all persons and vessels shall comply with the instructions of the First Coast Guard District Commander or designated representative.

The regulatory text appears at the end of this document.

We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. A summary of our analyses based on these statutes and Executive Orders follows.

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 TFR has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the TFR has not been reviewed by the Office of Management and Budget (OMB).

Aligning with 33 CFR 147.15, the safety zones established would extend to a maximum distance of 500-meters around the OCS facility measured from its center point. Vessel traffic would be able to safely transit around the safety zones, which would impact a small, designated area in the Atlantic Ocean, without significant impediment to their voyage. This safety zone would provide for the safety of life, property, and the environment during the construction of each structure, in accordance with Coast Guard maritime safety missions.

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 would not have a significant economic impact on a substantial number of small entities.

This rule may affect owners or operators of vessels intending to transit or anchor in the RWF, some of which might be small entities. However, these safety zones would not have a significant economic impact on a substantial number of these entities because they are temporarily enforced, allow for deviation requests, and do not impact vessel transit significantly. Regarding the enforcement period, although these safety zones would be in effect from June 1, 2024, through May 31, 2027, vessels would only be prohibited from the regulated zone during periods of actual construction activity in correspondence to the period of enforcement. We expect the enforcement period at each location to last approximately 48-hours to one week, as construction progresses throughout the RFW project area. Additionally, vessel traffic could pass safely around each safety zone using an alternate route. Use of an alternate route likely will cause minimal delay for the vessel in reaching their destination depending on other traffic in the area and vessel speed. Vessels would also be able to request deviation from this rule to transit through a safety zone. Such requests would be considered on a case by-case basis and may be authorized by the First Coast Guard District Commander or a designated representative. For these reasons, the Coast Guard expects any impact of this rulemaking establishing a temporary safety zone around these OCS facilities to be minimal and have no significant economic impact on small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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. 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 would 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 would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 would not result in such an expenditure, we do discuss the potential 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 made a preliminary determination 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 the establishment of a safety zone around an OCS facility to protect life, property, and the marine environment. It is categorically excluded from further review under paragraph L60 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 is amending 33 CFR part 147 as follows:

In the Federal Register of May 30, 2024, in FR Doc. 2024-09266, on page 89 FR 34128, in the third column, in the headings, the regulation identifier number, “RIN 1625-AA11”, is corrected to read: “RIN 1625-AA00”. This corrects our listing of an incorrect RIN for the Safety Zone; Lower Mississippi River, Natchez, MS temporary final rule published May 30, 2024.

Background: On December 21, 2023, we published a document in the Federal Register (88 FR 88381) (December 2023 proposed waiver and extension) proposing to waive 34 CFR 75.250 and extend the project period under 34 CFR 75.261(c)(2 ) for TCPCTIP under the Carl D. Perkins Career and Technical Education Act of 2006 (Perkins V). These regulations generally limit project periods to 60 months and restrict project period extensions involving the obligation of additional Federal funds. In the December 2023 proposed waiver and extension, the Secretary also proposed to: (1) extend the project period for current TCPCTIP grantees through FY 2027, if Congress continues to appropriate funds under the existing program authority; and (2) not announce a new competition or make new awards until FY 2027.

Public Comment: In the December 2023 proposed waiver and extension, we invited comments about the potential effect the proposed waiver and extension would have on TCPCTIP and on applicants that may be eligible to apply for grant awards under any new TCPCTIP notice inviting applications, should there be one. In response to our invitation in the December 2023 proposed waiver and extension, two parties provided responsive comments.

Analysis of Comments and Changes: An analysis of the comments we received on the proposed waiver and extension follows. There are no substantive differences between the proposed waiver and extension and the final waiver and extension.

Comment: The first commenter supported the waiver and extension of the comment period for TCPCTIP, pointing out that: (1) no entities other than Navajo Technical University (NTU) and United Tribes Technical College (UTTC) meet the definition of a “tribally controlled postsecondary career and technical institution” in section 3(52) of Perkins V (20 U.S.C. 2302(52)) and the criteria in section 117 of Perkins V (20 U.S.C. 2327(d)); and (2) there is no indication that another entity has ever applied for TCPCTIP. The commenter further noted that a Native American or Alaska Native Tribe will not take the steps necessary to establish and support a TCPCTIP because it is easier for a Tribe to establish a Tribally Controlled College or University that meets the requirements to receive funding under title I of the Tribally Controlled Colleges and Universities Assistance Act of 1978 (TCCUAA; 25 U.S.C. 1801 et seq. ), which requires at least one year of operation prior to making an application with a majority of students who are Indians (TCCUAA, section 103(3); 25 U.S.C. 1804(3)), as opposed to the three years of operation prior to making an application for participation in the TCPCTIP (Perkins V, section 3(52)(E); 20 U.S.C. 2302(52)(E)).

The commenter also recommended that in the event a Tribe expresses interest in establishing a TCPCTIP that meets the requirements of the program, the Department of Education (ED) should consult with Tribes, Tribal Colleges and Universities, and the Department of the Interior's (DOI's) Bureau of Indian Education (BIE) to ensure consistency in the application process, including ensuring the completion of a satisfactory feasibility study.

In addition, for future competitions, the commenter proposed that ED should take steps to ensure that existing grantees are held harmless should a new institution be deemed fundable, specifically, urging ED to establish a “hold-harmless provision,” which would ensure that funding for existing grantees would not be reduced below the prior year's level.

Discussion: We appreciate the commenter's support for the TCPCTIP waiver and extension. We will continue to work with Tribes, Tribal Colleges and Universities, and the DOI's BIE to ensure consistency in the TCPCTIP application process so that all applicants meet the same requirements. We note, however, that neither section 3(52) of Perkins V (20 U.S.C. 2302(52)), which defines “tribally controlled postsecondary career and technical institution,” nor section 117 of Perkins V (20 U.S.C. 2327), which authorizes funding for TCPCTIP, requires an applicant to complete a feasibility study. Also, neither section 3(52) or section 117 of Perkins V (20 U.S.C. 2302 (52), 2327) includes a hold-harmless provision. Because a feasibility study and adding a hold-harmless provision are outside the scope of the proposed waiver and extension, we decline to make the suggested changes.

Changes: None.

Comment: The second commenter stated that deviation from standard grant making practice should only be considered where it is fully evident that no other organizations could apply for, and make use of, grant funds, and expressed concern that the proposed extension of the grant period would have the unintended consequence of limiting the ability of a new organization to access TCPCTIP funds. The commenter opposed the waiver and extension of the project period for the TCPCTIP through FY 2027 and proposed that a new competition should be held to provide the opportunity for new organizations to fairly compete for grant funds and that failing to hold a new competition only benefits the existing grantees.

Discussion: There are no entities besides NTU and UTTC that meet the requirements in the definition of “tribally controlled postsecondary career and technical institution” in section 3(52)(E) of Perkins V (20 U.S.C. 2302(52)(E)) and the eligibility requirements in section 117(a) (20 U.S.C. 2327(a)), which specifies that an applicant may not receive Federal assistance under title I of the Tribally Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 1801 et seq. ) or the Navajo Community College Act (Pub. L. 92-189, as amended) to be eligible to apply for a TCPCTIP grant. On September 5, 2023, the Department solicited Tribal input on the proposed waiver and extension for TCPCTIP, pursuant to Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. We asked during that consultation whether participants were aware of any other entity that is or will be eligible to apply for TCPCTIP prior to FY 2025. Participants did not identify any other entities that are or will be eligible for TCPCTIP during the consultation or its written comment period that ended October 5, 2023. The Department also did not receive any comments from entities that are or seek to be eligible to apply for TCPCTIP grant funds during the 30-day public comment period for this waiver and extension.

Moreover, as noted earlier, the definition of “tribally controlled postsecondary career and technical institution” requires an institution to have been in operation for three years (20 U.S.C. 2302(52)(E)). Should a new entity that aspires to be a “tribally controlled postsecondary career and technical institution” emerge and begin operations in the next year or later, it would not be eligible to apply to TCPTIP until FY 2028 at the earliest.

Changes: None.

S ection 117 of Perkins V authorizes the Secretary to make grants to Tribally Controlled Postsecondary Career and Technical Institutions that do not receive Federal support under title I of the Tribally Controlled Colleges and Universities Assistance Act of 1978 (25 U.S.C. 1801 et seq. ) or the Navajo Community College Act (Pub. L. 92-189, as amended) for career and technical education programs for Native American students and for the institutional support costs of the grant.

Current TCPCTIP grantees, selected based on the TCPCTIP notice inviting applications published in the Federal Register (84 FR 29854) on June 25, 2019 (NIA), operate career and technical education programs for Native American students as authorized by section 117 of Perkins V (20 U.S.C. 2327). The budget and project period for the two TCPCTIP grantees is scheduled to end with funds awarded in FY 2023.

For these projects, the Secretary waives the requirements of 34 CFR 75.250 and 75.261(c)(2) , which limit project periods to 60 months and restrict project period extensions that involve the obligation of additional Federal funds. The Secretary makes these changes because section 117(i) of Perkins V authorizes appropriations for activities under section 117 of the Act, through FY 2024 (20 U.S.C. 2327(i)). The Secretary also extends the project period for the two current TCPCTIP grantees (Perkins V, section 117(a); 20 U.S.C. 2327(a)) through FY 2027, if Congress continues to appropriate funds under the existing program authority. The waiver and extension enables the two current TCPCTIP grantees to request and continue to receive Federal funds beyond the 60-month limitation set by 34 CFR 75.250.

Moreover, with the waiver and extension, the Department will not announce a new competition or make new awards until FY 2027, if Congress continues to authorize and appropriate funds under the existing program authority. Instead, current TCPCTIP projects funded under the NIA could be continued at least through the FY 2027 budget and project period if Congress continues to appropriate funds for TCPCTIP under the existing program authority.

We believe that the waiver and extension is in the public interest, given that NTU and UTTC are the only two eligible entities for the TCPCTIP program, and those entities are the current grantees. Running another competition in which only the same very limited number of entities will be eligible to receive awards is not an effective use of Department and grantee resources. Further, allowing these grantees to continue their projects will provide continuity in the current projects and resources for the current beneficiaries of the grantees' programs.

We will base our decisions regarding annual continuation awards on the program narratives, budgets, budget narratives, and program performance reports, submitted by current grantees, and the requirements in 34 CFR 75.253. Any activities to be carried out during the year or years of continuation awards must be consistent with, or be a logical extension of, the scope, goals, and objectives of each grantee's application, as approved following the 2019 TCPCTIP competition. We will award continuation grants based on information provided to us by each grantee, indicating that it is making substantial progress performing its TCPCTIP grant activities.

The extension of the project period and waiver of 34 CFR 75.250 and 75.261(c)(2) will not exempt the current TCPCTIP grantees from the appropriation account-closing provisions of 31 U.S.C. 1552(a), nor will they extend the availability of funds previously awarded to current TCPCTIP grantees. As a result of 31 U.S.C. 1552(a), appropriations available for a limited period may be used for payment of valid obligations for only five years after the expiration of their period of availability for Federal obligation. After that time, the unexpended balance of those funds will be canceled and returned to the U.S. Treasury Department and be unavailable for restoration for any purpose ( 31 U.S.C. 1552(b) ).

Tribal Consultation: On September 5, 2023, the Department solicited Tribal input  1 on the proposed waiver and extension, pursuant to Executive Order 13175, Consultation and Coordination With Indian Tribal Governments. Tribal members participated by a video conference platform. A total of 66 Tribal members and eight Tribal leaders participated. None of the participants raised objections to the proposed waiver and extension during the consultation or its written comment period that ended October 5, 2023.

The Secretary certifies that the waiver and extension will not have a significant economic impact on a substantial number of small entities.

The only small entities affected by the waiver and extension are the two grantees selected based on the NIA currently receiving Federal funds. These are the only entities eligible to receive a grant under this program.

The Secretary certifies that the waiver and extension will not have a significant economic impact on these entities because the waiver and extension will impose minimal compliance costs to extend projects already in existence, and the activities required to support the additional years of funding will not impose additional regulatory burdens or require unnecessary Federal supervision.

The waiver and extension do not contain any information collection requirements.

The TCPCTIP is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register , in text or Adobe Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Program Authority: Perkins V, section 117; 20 U.S.C 2327.

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

On December 29, 2023, 1 the EPA proposed to approve the rule listed in Table 1 into the California SIP.

For areas designated nonattainment for one or more of the National Ambient Air Quality Standards (NAAQS), the applicable SIP must include preconstruction review and permitting requirements for new or modified major stationary sources of such nonattainment pollutant(s) under part D of title I of the Act, commonly referred to as Nonattainment New Source Review (NNSR). The rule listed in Table 1 contains the SLOCAPCD's NNSR permit program applicable to new and modified major sources located in the areas within the District that are designated nonattainment for the NAAQS. Our proposed action contains more information on the rule and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we did not receive any comments.

No comments were submitted on our proposal. We continue to find that Rule 224 satisfies the relevant requirements for a CAA NNSR program for ozone, 2 as well as the associated visibility requirements for sources subject to review under such a program in accordance with 40 CFR 51.307. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving the submitted rule.

This action incorporates the submitted rule into the California SIP. In conjunction with the EPA's SIP approval of the District's visibility program for sources subject to the NNSR program, this action also revises the scope of the visibility Federal Implementation Plan (FIP) at 40 CFR 52.281 for California so that this FIP no longer applies to sources located in the SLOCAPCD nonattainment areas that are subject to the District's visibility program.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is incorporating by reference San Luis Obispo County Air Pollution Control District Rule 224, “Federal Requirements for New and Modified Major Sources in Non-Attainment Areas,” adopted on January 26, 2022, as described in Section I of this preamble, which regulates the District's issuance of permits for stationary sources under part D of title I of the CAA. The EPA has made, and will continue to make, these materials available through https://www.regulations.gov and in hard copy at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it proposes to approve a state program;

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

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

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

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

The District did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goals of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

For the reasons stated in the preamble, the Environmental Protection Agency amends Part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

For additional information on regulatory background and the EPA's technical findings relating to the Facility RACT, the reader can refer to the Technical Support Document (TSD) that is contained in the EPA docket assigned to this Federal Register document.

A SSSIP revision was submitted to the EPA by the State of New York on May 24, 2022, for Finch Paper LLC, located at 1 Glen Street, Glens Falls, New York (the Facility), and it replaces and withdraws the SSSIP that was submitted by the State on September 16, 2008. On January 19, 2024, the EPA published a notice of proposed rulemaking that proposed to approve a SSSIP revision to addresses NO X RACT emission limits for the Facility's nine boilers. See 89 FR 3620. Specifically, the notice of proposed rulemaking addressed the following: (1) Source-specific emission limits and RACT control options for four large power boilers where the presumptive NO X limit is not technologically and economically feasible; (2) a case-by-case NO X emission limit for the wood waste boiler's biomass fuel; and (3) NO X emission limits for four recovery boilers that are not covered by other New York RACT regulations, and therefore must follow 6 NYCRR part 212 as a process operation.

The EPA is determining through this final action that the NO X RACT emission limits included in the May 24, 2022, SSSIP revision are demonstrated to be RACT for the power boilers, wood waste boiler and the recovery boilers. The boilers have the lowest emission limits with the application of control technology that are reasonably available given the technological and economic feasibility considerations. Furthermore, the NO X RACT emission limits for the boilers comply with the New York State regulations, 6 NYCRR part 227, “Stationary Combustion Installations,” subpart 227-2, “Reasonably Available Control Technology for Major Facilities of Oxides of Nitrogen,” and 6 NYCRR part 212, “Process Operations,” subpart 212-3, “Reasonably Available Control Technology for Major Facilities”, and are contained in the Facility's title V operating permit, 5-5205-00005/00059. The permit was issued by the State on December 20, 2021, modified on January 12, 2022, and expires on December 19, 2026.

The specific details for how the NO X emission limits comprise RACT for the power boilers, wood waste boiler and the recovery boilers, and the rationale for the EPA's approval action, are explained in the EPA's notice of proposed rulemaking and are not restated in this final action. For this detailed information, the reader is referred to the EPA's notice of proposed rulemaking. 89 FR 3620 (January 19, 2024).

The CAA and applicable implementing regulations neither prohibit nor require an environmental justice evaluation and so the State of New York did not evaluate environmental justice considerations as part of its SSSIP submittal. The EPA performed an environmental justice analysis for the purpose of transparency about this rulemaking to the public and the analysis is not provided for the basis of this action.

The EPA created a Community Report (Report) using its EJ Screen, Version 2.2, representing a 1-mile ring centered at the Facility. We analyze both EJ Indexes and Supplemental Indexes because they offer different perspectives on community level vulnerability based on different factors. We also use the National percentile for the Report results and not the State percentile since this SSSIP action is a Federal action. Lastly, the EPA focused on any environmental index result that is 80 percentile or greater because environmental indexes at this level are relatively high compared to the United States population. The Report shows the Facility ranked greater than 80th percentile for National Supplemental Indexes, as follows: 83rd percentile for Superfund proximity; and 81st percentile for being located near a facility regulated under the Risk Management Program (extremely hazardous substances). The Report, EJ Screen Community Report Aug 10 2023—Finch Paper, is contained in the EPA docket assigned to this Federal Register document.

The EPA received three public comments during the 60-day public comment period of the EPA's proposed approval of New York's SIP revision. All commenters are in support of the action. The specific comments may be viewed under Docket ID Number EPA-R02-OAR-2022-0714 on the https://www.regulations.gov website.

Regarding one commenter, the EPA appreciates the commenter's support of the proposed action. Regarding the commenter's point about the EJ Index, the EPA notes that EJ Screen has two indexes, the EJ Index and the Supplemental Index. Although it is correct to say that Finch Paper shows no EJ Index above 80th percentile, the EPA notes that Finch Paper shows above 80th percentile for Supplemental Indexes. The Supplemental Index includes data on low-income, linguistically isolated, high school education, unemployment, and low life expectancy. Please refer to the EJ Screen Report that is contained in the EPA docket assigned to this Federal Register document. Also, the Facility is regulated because of the RACT regulations, not because of EJ concerns. Lastly, this action addresses NO X RACT variance for the boilers—the SSSIP revision does not involve rerouting the smoke of boilers into separate smoke stacks.

Regarding another commenter, the EPA appreciates the commenter's support of the proposed action, and notes that the cap-and-trade program is beyond the scope of this action.

The EPA is approving the NO X emission limits, for purposes of satisfying RACT, as contained in the Facility's title V operating permit, 5-5205-00005/00059, as follows: (1) Condition 1-1, emission unit 3-00000, four power boilers, at 0.225 NO X lb/MMBtu during ozone season (April 15 through October 15) and at 0.275 NO X lb/MMBtu during non-ozone season (October 16 through April 14) and at 0.378 NO X lb/MMBtu when recovery boilers are not burning liquor or when the wood waste boiler is down during non-ozone season; (2) condition 47, emission unit 3-10000, No. 9 wood waste boiler, at 0.28 NO X lb/MMBtu; and (3) condition 60, emission unit 3-20000, recovery boilers, at 464 parts per million (corrected to 7% oxygen) system wide.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Finch Paper LLC NO X emission limits described in the amendments to 40 CFR part 52 as discussed in section I. of this preamble. These documents are available in the docket of this rulemaking through www.regulations.gov. Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;

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

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

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

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

The New York State Department of Environmental Conservation did not evaluate environmental justice considerations as part of its SSSIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA performed an environmental justice analysis, as is described above in the section titled, “Environmental Justice Considerations.” The analysis was done for the purpose of providing additional context and information about this rulemaking to the public, not as a basis of the action. In addition, there is no information in the record upon which this decision is based inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

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

On March 1, 2024 (89 FR 15096), EPA published a notice of proposed rulemaking (NPRM) proposing approval of revisions to the Delaware SIP. The revision will incorporate into the Delaware SIP amendments to subsections 12.3.2 and 12.4.2 of Title 7 Delaware Administrative Code 1102 (7 DE Admin Code 1102), Permits. The formal SIP revision was submitted by Delaware Department of Natural Resources and Environmental Control (DNREC) on behalf of the State of Delaware on November 10, 2022. Delaware amended 7 DE Admin Code 1102 (DE 1102) to update the public notice requirements for permits covered by the regulation to be consistent with certain provisions of the October 18, 2016 rule regulatory revisions “Revisions to Public Notice Provisions in Clean Air Act Permitting Programs,” (81 FR 71613, October 18, 2016) and the implementing regulations codified in the Code of Federal Regulations (CFR) at 40 CFR 70.7(h)(2).

Delaware's November 10, 2022 SIP submission reflects amendments made to its public notice requirements in DE 1102 that are consistent with those in the EPA October 18, 2016 rule's public notice requirements. While DE 1102 applies to some permits that are not covered by EPA's October 18, 2016 rule (such as minor sources), some of the permits covered by DE 1102 are addressed by the October 18, 2016 rule, such as major source operating permits (which are covered under DE 1130  1 ).

Specifically, Delaware's submittal consists of changes to subsections 12.3.2 and 12.4.2 of DE 1102. These subsections have been amended to require that each public notice include: (1) the name, address, and telephone number of a person (or an email or website address) of DNREC Staff from whom interested persons may obtain additional information; and (2) the time and place of any hearing that may be held, including a statement of procedures to request a hearing (unless a hearing has already been scheduled). The updated regulatory language in DE 1102 (and DE 1130) is consistent with that of EPA's October 18, 2016 rule and Federal regulations regarding public notice requirements for major source permits (81 FR 71613 and 40 CFR 70.7(h)(2)).

The rationale for EPA's action is further explained in the NPRM, and will not be restated here.

EPA received one public comment for the NPRM. That comment is not relevant to this action. EPA therefore offers no response to the comment.

EPA is approving revision to subsections 12.3.2 and 12.4.2 of 7 DE Admin Code 1102, Permits as a revision to the Delaware SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the amendments to subsections 12.3.2 and 12.4.2 of DE 1102, as discussed in sections I and II of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

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

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

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

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

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

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

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

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

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

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

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

The DNREC did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this final rule. Due to the nature of this action being taken here, where EPA is approving revisions of the State regulations to be consistent with notice and comment provisions previously established by EPA, this final rule is expected to have a neutral to positive impact on the air quality of the affected area.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 15, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action of amendments to Delaware's Requirements for Public Notice of Permits under DE 1102 may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

The Gulf reef fish fishery, which includes red snapper, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

The final rule implementing Amendment 40 to the FMP established two components within the recreational sector fishing for Gulf red snapper: the private angling component and the Federal for-hire component (80 FR 22422, April 22, 2015). Amendment 40 also allocated the red snapper recreational annual catch limit (ACL; recreational quota) between the components and established separate seasonal closures for the two components. The Federal for-hire component's red snapper annual catch target (ACT) is 9 percent below the for-hire component quota (87 FR 74014, December 2, 2022; 50 CFR 622.41(q)(2)(iii)(B)).

The red snapper for-hire component seasonal closure is projected from the component's ACT. Projecting the for-hire component's seasonal closure using the ACT reduces the likelihood of the harvest exceeding the component quota and the total recreational quota. The Federal for-hire component ACT for red snapper in the Gulf EEZ is 3,076,322 pounds (1,395,396 kilograms), round weight (50 CFR 622.41(q)(2)(iii)(B)).

The 2024 Federal Gulf red snapper for-hire fishing season has been determined to be 88 days based on NMFS' projection of the date landings are expected to reach the Federal for-hire component ACT. NMFS determined that 88 days is likely to constrain harvest to the for-hire component ACT based on catch rates from the 2023 fishing year. For details about the calculation of the projection for 2024, see https://www.fisheries.noaa.gov/southeast/sustainable-fisheries/gulf-mexico-recreational-red-snapper-management. Therefore, the 2024 recreational season for the Federal for-hire component will begin at 12:01 a.m., local time, on June 1, 2024, and close at 12:01 a.m., local time, on August 28, 2024.

On and after the effective date of the Federal for-hire component closure, the bag and possession limits for red snapper for Federal for-hire vessels are zero. When the Federal for-hire component is closed, these bag and possession limits apply in the Gulf on board a vessel for which a valid Federal for-hire permit for Gulf reef fish has been issued, without regard to where such species were harvested, i.e., in state or Federal waters. In addition, a person aboard a vessel that has been issued a charter vessel/headboat permit for Gulf reef fish any time during the fishing year may not harvest or possess red snapper in or from the Gulf EEZ when the Federal charter vessel/headboat component is closed.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is taken under 50 CFR 622.41(q)(2)(i) and (ii), which was issued pursuant to section 304(b) of the Magnuson-Stevens Act, and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment is unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule implementing the recreational red snapper quotas and ACTs, and the rule implementing the requirement to close the for-hire component when its ACT is projected to be reached have already been subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because many for-hire operations book trips for clients in advance and require as much notice as NMFS is able to provide to adjust their business plans to account for the fishing season.

Authority: 16 U.S.C. 1801 et seq.