On Monday, September 13, 2021, FCA published in the Federal Register (86 FR 50956) a final rule amending FCA regulations governing standards of conduct for System director and employees, excluding the Federal Agricultural Mortgage Corporation, located in part 612 of chapter VI, title 12 of the Code of Federal Regulations. The rulemaking included renumbering certain sections of the existing standards of conduct provisions. In issuing the final rule, corresponding updates to standards of conduct regulatory references were inadvertently omitted. This document changes those cross-references to FCA standards of conduct contained §§ 611.1153(c)(3) and 621.30 of the same chapter.

Accordingly, 12 CFR parts 611 and 621 are corrected by making the following correcting amendments:

On September 13, 2021, FCA issued a final rule adopting amendments to our regulations governing standards of conduct of System directors and employees, excluding the Federal Agricultural Mortgage Corporation. The final rule requires each System institution to have or develop a Standards of Conduct Program based on core principles which serve as the foundation for ethical conduct, including requiring each System institution to adopt a Code of Ethics and address the responsibilities of directors, employees, and Standards of Conduct Officials.

In accordance with 12 U.S.C. 2252(c)(1), the effective date of the rule may be no earlier than 30 days from the date of publication in the Federal Register during which either or both Houses of Congress are in session. The Act does not prevent FCA from identifying an effective date that provides more than the minimum required amount of time. The Standards of Conduct rule was expected to be effective on or about November 3, 2021, but the FCA Board voted on October 18, 2021 to delay the effective date to January 1, 2023. FCA believes postponing the effective date will allow System institutions the necessary time to develop and implement the required Standards of Conduct policies, as well as train directors and employees on the new requirements.

We are inviting the public to comment on the change in effective date. You may submit comments on this action within 30 days of this notice by any of the following methods:

• Email: Send us an email at reg-comm@fca.gov .

• Agency Website: http://www.fca.gov . Once you are at the website, select the “I want to . . .” field near the top of the page; select “comment on a pending regulation” from the dropdown menu; and click “Go”.

• Mail: Kevin J. Kramp, Director, Office of Regulatory Policy, Farm Credit Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090.

If FCA receives significant adverse comments on delaying the effective date for this rule, FCA will publish a notice withdrawing this notice that will indicate how the agency will proceed.

The Coast Guard is amending portable fire extinguishing equipment requirements for recreational vessels that are propelled or controlled by propulsion machinery. We are relieving owners of these recreational vessels from certain inspection, maintenance, and recordkeeping requirements of National Fire Protection Association (NFPA) 10 (2010 edition). These requirements are more suited for commercial vessels. This rule does not alter standards for commercial vessels including vessels carrying passengers for hire, or have any effect on recreational vessels that do not use propulsion machinery.

This rule also moves fire extinguishing equipment rules for recreational vessels from subpart 25.30 (Fire Extinguishing Equipment) of subchapter C (Uninspected Vessels) of title 46 of the Code of Federal Regulations (CFR) to part 175 of subchapter S (Boating Safety) of title 33, where other recreational vessel rules already exist.

The Secretary of Homeland Security is authorized by 46 U.S.C. 4302(a)(2) to prescribe regulations requiring the installation, carrying, or use of firefighting equipment and prohibiting the installation, carrying, or use of equipment that does not conform to the safety standards established under section 4302. The Secretary of Homeland Security has delegated this authority to the Coast Guard by Department of Homeland Security (DHS) Delegation No. 0170.1(II)(92)(b). The Commandant has redelegated this authority to the Assistant Commandant for Response Policy as described in 33 CFR 1.05-1(d).

The Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register (FR) on May 13, 2019, “Fire Protection for Recreational Vessels.”  1 The NPRM proposed to relieve recreational vessel owners from the inspection, maintenance, and recordkeeping requirements of NFPA 10 and to consolidate recreational boating safety requirements into 33 CFR chapter I, subchapter S. Instead of applying NFPA 10 and requiring monthly visual inspections, annual maintenance, and recordkeeping, we proposed that portable fire extinguishers on recreational vessels be maintained in “good and serviceable” condition. The NPRM solicited comments and provided a 60-day comment period that ended on July 12, 2019. Based on those comments, we have made changes in this final rule, as discussed in section IV.

On July 22, 2016, the Coast Guard published the final rule, “Harmonization Standards for Fire Protection, Detection, and Extinguishing Equipment” (the “Fire Protection rule”) in the Federal Register . 2 The Fire Protection rule revised Coast Guard fire safety requirements for uninspected vessels (46 CFR chapter I, subchapter C) to meet international and common industry standards. Among the revisions, the Coast Guard required vessel owners to comply with NFPA 10. 3 This standard requires vessel owners and operators to complete monthly visual inspections of portable fire extinguishers, 4 perform annual maintenance of portable fire extinguishers, 5 and maintain records of the inspections and maintenance. 6 The Coast Guard allowed the required monthly inspections to be carried out by the vessel owner, operator, person-in-charge, or a designated member of the crew, rather than by a certified person as required in NFPA 10. 7 The Fire Protection rule also allowed these individuals to perform annual maintenance on non-rechargeable (also known as “disposable”) extinguishers but retained the NFPA 10 requirement that rechargeable extinguishers be maintained by a certified person such as a licensed servicing agency. 8

The only exception to these inspection, recordkeeping, and maintenance requirements was for extinguishers built before 1965, in which the Coast Guard maintained their previous and separate inspection and maintenance requirements specific to those types of extinguishers. 9 The Coast Guard's changes to the inspection and maintenance requirements in the Fire Protection rule were intended to apply to all vessels, including recreational vessels, in order to align inspection and maintenance requirements with common industry practice for fire extinguisher maintenance. 10 (The NPRM for this action stated that the NFPA 10 requirements were “unintentionally” applied to recreational boaters in 2016 by the Fire Protection rule. It would have been more correct to say that 2016 rule did not recognize the full burden on recreational vessels.) They were also intended to provide a more complete set of maintenance and inspection requirements than what currently existed in Coast Guard regulations for extinguishers manufactured since 1965. 11 In the regulatory analysis accompanying the Fire Protection rule, we stated that we did not anticipate recreational vessel owners would incur any additional costs due to these provisions. 12 After the rule published, however, we realized the requirements to visually inspect and maintain non-rechargeable fire extinguishers as described in NFPA 10, and to keep records of those activities in compliance with NFPA 10, actually do impose a burden on recreational vessel owners and operators.

On October 22, 2016, the National Boating Safety Advisory Council (NBSAC) recommended that the Coast Guard remove the NFPA 10 recordkeeping requirements from recreational vessels and consolidate recreational vessel fire protection and boating safety requirements into 33 CFR chapter I, subchapter S (33 CFR parts 173-199). 13

The Coast Guard received submissions from 14 commenters in response to the NPRM. In general, most commenters supported the proposed rule, but a few expressed reservations. We summarize and address these comments below.

The NFPA is a private, not-for-profit organization. They published the NFPA 10 standard that the Coast Guard incorporated by reference into our regulations through the Fire Protection rule.

The NFPA does not support the Coast Guard removing the NFPA 10 portable fire extinguisher inspection, maintenance, and recordkeeping requirements for recreational vessels. They are concerned that if the monthly inspection requirement is removed, vessel owners will not perform necessary inspections and maintenance. They recommend that the Coast Guard keep the NFPA 10 requirements for monthly inspection and recordkeeping to ensure that portable fire extinguishers on recreational vessels are in good working order.

We disagree with the NFPA's position. The Coast Guard's alternative “good and serviceable” standard, as provided for in this rule in 33 CFR 175.310, maintains safety preparedness standards while reducing prescriptive burdens on recreational vessel owners and operators. Under this standard, logged inspections are not required, but the owner or operator must ensure all fire extinguishers are “readily accessible” and in “good and serviceable” condition. In response to the comments on the NPRM, we have expanded the regulatory text to explain what “good and serviceable” means. This final rule clarifies that “good and serviceable” means that a portable fire extinguisher on board a recreational vessel:

• Is charged, and indicates it is charged if the extinguisher has a pressure gauge reading or indicator;

• Has a pin lock that is firmly in place;

• Does not show visible signs of significant corrosion or damage; and

• Has a discharge nozzle that is clean and free of obstructions.

Thus, the “good and serviceable” standard of this rule maintains the substantive requirements of NFPA 10 without the monthly inspection and recordkeeping requirements. Prior to the Fire Protection rule, the Coast Guard had never required recreational boaters to maintain a record of inspection for any piece of safety equipment (such as personal flotation devices, visual distress signals, and so on). Because the Coast Guard is unaware of any empirical data showing fire-extinguisher failure to be a significant cause for concern on recreational vessels, and because the Coast Guard is unaware of any empirical data showing that maintaining these records has prevented fire-extinguisher failure, we do not believe that requiring boaters to maintain these records significantly increases public safety. This new standard will continue to ensure that portable fire extinguishers are in good working order and ready for immediate use without imposing unnecessary burdens on the public.

The NFPA asserts that recordkeeping requirements for portable fire extinguisher inspections are not burdensome to recreational boaters. The Coast Guard disagrees because the NFPA requirements have the boat owner perform monthly inspections even when the vessel is not in use. The NFPA requirement does not relieve the recreational boat owner from performing monthly inspections when the vessel is in non-use, storage or winter layup. This is a change from how the boating public normally uses their vessels, and results in an unwarranted burden. Removing the NFPA 10 recordkeeping requirements will generate an estimated timesaving component of approximately 12 minutes per year per fire extinguisher (1 minute per month per fire extinguisher). This estimate only includes the cost to the boater of recording the fire extinguisher's condition. It does not include the costs to the boater of traveling to the vessel when it is not in use. We did not estimate the travel costs because we do not have any data on the average travel time to their vessel when not in use. Additionally, we lack data on the number of months a vessel might be in use. See our response in section IV.B of this document for additional information on the burden estimate.

The NFPA supports moving fire extinguishing requirements from 46 CFR 25 to 33 CFR 175.

Several commenters supported removing the NFPA 10 recordkeeping requirements; however, other commenters (including the NFPA) said these recordkeeping requirements should be retained for recreational vessels because they are not a burden to these boaters. The Coast Guard disagrees with retaining the recordkeeping requirements due to the time burden associated with NFPA 10's recordkeeping requirements. We estimate that removing this requirement will reduce recordkeeping burdens by 12 minutes per year per fire extinguisher (1 minute per month per fire extinguisher), plus travel time when the vessel is not in use. One commenter asserted that the Coast Guard's estimate of 12 minutes per year was too high because some boats are not in use all 12 months of the year and a more accurate burden estimate would be 6 to 8 minutes per year. We note that the monthly inspection requirement of NFPA 10 does not provide exceptions for when a boat is not in use, and, as a result, current regulations require 12 minutes per year of recordkeeping, plus travel time when the boat is not otherwise in use. However, 12 minutes is an estimated average and we recognize that some people may spend more time and some people may spend less time to comply with these recordkeeping requirements.

This rule requires portable fire extinguishers to be unexpired and in “good and serviceable” condition. Two commenters expressed concern that the phrase “good and serviceable” is vague. The Coast Guard revised the proposed rule in response to these concerns, but notes that the phrase “good and serviceable” is already in use for portable fire extinguishers, such as in the existing provision in 46 CFR 25.30-10 for portable fire extinguishers built before 1965, and also in other sections of the CFR for both recreational vessels and commercial vessels such as in 46 CFR 25.30-10, 142.240, and 180.200. In response to these comments, we updated our regulatory text in 33 CFR 175.310(a) to elaborate further on the requirements. This final rule clarifies that “good and serviceable” means that a portable fire extinguisher:

• Is charged, and indicates it is charged if the extinguisher has a pressure gauge reading or indicator;

• Has a pin lock that is firmly in place;

• Does not show visible signs of significant corrosion or other damage; and

• Has a discharge nozzle that is clean and free of obstructions.

Three commenters expressed concern that removing the NFPA 10 inspection and recordkeeping requirements could lead to unsafe conditions. The Coast Guard is not aware of any evidence showing this change will decrease safety. Serious injury to recreational boaters (injury requiring medical care beyond first aid) resulting from portable fire extinguisher failure is rare. According to the Boating Accident Report Database, between 2008 and 2017 only three such injuries occurred, and no injuries are known to have been caused directly by equipment failure. 14 Our alternative standard, as amended in this final rule (see 33 CFR 175.310), ensures that portable fire extinguishers on recreational vessels are not expired, readily accessible, and in good working order. We used the “good and serviceable” standard elsewhere in our regulations, without a decrease to safety.

The revised rule does not set a frequency at which vessel owners or operators must inspect fire extinguishers. One commenter stated that portable fire extinguishers on recreational vessels should be inspected at least once a year, and two commenters stated they should be inspected monthly. Under the Coast Guard's revised standard, a recreational vessel is in compliance only if the portable fire extinguishers are unexpired, readily accessible, and in “good and serviceable” condition. The Coast Guard believes that this will improve flexibility while maintaining safety, especially for vessels that may not be in use all year. The Coast Guard's primary concern is ensuring the safety of the boating public while the vessel is in use.

Most commenters supported the move of regulations from 46 CFR part 25, subpart 25.30 to 33 CFR part 175, subpart E. One commenter disagreed, however, stating that title 33 of the CFR was relatively unmonitored and unmanaged compared to title 46. We disagree with the assertion that title 33 of the CFR is relatively unmonitored. The Coast Guard enforces the agency's regulations regardless of where they are in the CFR.

The Coast Guard currently requires approved Class B portable fire extinguishers to be carried on board recreational vessels. Portable fire extinguishers with a Class B rating are effective against flammable liquid fires such as gasoline, petroleum, greases, oils, oil-based paints, solvents, and alcohols. Multiple commenters stated that the Coast Guard should require either additional single-class portable fire extinguishers (such as Class A or Class C) or combination-class portable fire extinguishers (such as A-B-C) on all recreational vessels to adequately address other types of fires. Class A fires involve ordinary combustibles such as trash, wood, and paper, whereas Class C fires involve energized electrical sources such as computers, servers, motors, transformers, and appliances. The Coast Guard does not agree that portable fire extinguishers capable of extinguishing Class A and Class C fires should be required to be carried on board recreational vessels. The predominant fire hazards for recreational vessels come from fuel and fuel vapors, which are Class B hazards. 15 Moreover, approved Class B extinguishers already have additional ratings to extinguish both Class A and Class C fires. 16

Over the past 50 years, since the Federal Boat Safety Act of 1971 established the current Coast Guard fire extinguisher carriage requirements, we have found no data showing the current fire extinguisher requirements for recreational boating are insufficient. Previous Coast Guard requirements for the hand-held B-I or B-II (and the current requirements for 5-B and 20-B) approved portable fire extinguishers have shown to be an acceptable minimum standard for the recreational boater. Additionally, strict Federal recreational boat-building requirements, such as backfire flame control, ventilation, and electrical and mechanical national safety and manufacturing standards, also reduce the probability or severity of boat fires.

One commenter stated that the Coast Guard should require more portable fire extinguishers on recreational vessels. This comment is outside the scope of this rulemaking. As previously stated, there is no data showing that the current fire extinguisher requirements for recreational boating are insufficient.

One commenter expressed concern that the proposal would eliminate a standard for maintaining fixed fire extinguishing systems on recreational vessels. NFPA 10 applies only to portable fire extinguishers. The removal of NFPA 10's application to recreational vessels through this final rule will neither impose nor remove maintenance standards for fixed fire extinguishing systems.

One commenter asked the Coast Guard to clearly distinguish any differences in requirements between Coast Guard-documented recreational vessels and state-registered vessels in this rule. This rule does not contain any different requirements for state-registered vessels and Coast Guard-documented recreational vessels. Longstanding carriage requirements for portable fire extinguishers are based on specific criteria, including the type of fuel, storage of fuel (portable or fixed and installed), type of construction (open or closed), and length of vessel. This rulemaking does not make changes to those requirements.

A few commenters stated that there is a need for greater public awareness of portable fire extinguisher safety and boating safety in general. One commenter recommended awareness campaigns to highlight how to use fire suppression equipment. One commenter stated that there was inadequate public awareness of best fire safety practices in the recreational boating community. One commenter stated that Federal boating safety awareness materials could be improved, although the commenter did not provide specific examples. The Coast Guard works with non-profit boating safety organizations and our state boating partners to distribute information to the recreational boating public. 17 The Coast Guard will consider what other information campaigns could be appropriate. The Boating Safety Division in the Coast Guard's Office of Auxiliary and Boating Safety is dedicated to reducing loss of life, injuries, and property damage that occurs on U.S. waterways by improving the knowledge, skill, and abilities of recreational boaters.

The goal of this rule is to move recreational vessel fire extinguishing equipment requirements from the commercial vessel fire extinguishing equipment requirements section in title 46 of the CFR and to consolidate recreational vessel-specific requirements into one part in title 33 of the CFR, which will not contain the NFPA 10 visual inspection, annual maintenance, and recordkeeping requirements for recreational vessels. This change affects only recreational vessels with propulsion machinery and will not affect commercial vessels, including vessels carrying passengers for hire.

The Coast Guard is creating a new subpart E (Fire Protection Equipment) under part 175 (Equipment Requirements) in 33 CFR chapter I, subchapter S (Boating Safety) for fire extinguishing equipment requirements for recreational vessels. This consolidates these regulations into part 175 where other recreational vessel-specific rules are located. The fire extinguishing equipment requirements added to subpart E will be the same as in current 46 CFR subpart 25.30, but will be modified as discussed in sections V.A(2) and (3) of this document. The Coast Guard is limiting the applicability of this new subpart to recreational vessels, as defined in 33 CFR 175.3, which are propelled or controlled by propulsion machinery. The Coast Guard is also revising the applicability section in 46 CFR 25.30-1 so that the fire extinguishing equipment regulations in subpart 25.30 will not apply to recreational vessels as defined in 33 CFR 175.3. We are only changing the applicability of the fire extinguishing equipment regulations in 46 CFR part 25, subpart 25.30; we are not changing the applicability of any other requirements in 46 CFR part 25. The other requirements in 46 CFR part 25 (such as life preservers, navigation lights, and ventilation) are not being changed.

The Coast Guard is modifying the fire extinguishing equipment requirements added to 33 CFR part 175, subpart E to remove the requirement for recreational vessels to comply with NFPA 10. Instead of applying the NFPA 10 requirements, we are requiring that portable fire extinguishers be maintained in “good and serviceable” condition. Both the “good and serviceable” standard and the NFPA 10 requirements (monthly visual inspection, annual maintenance, and recordkeeping) exist to achieve the same result, namely that portable and semi-portable fire extinguishers be in working condition in the event of a fire. However, the NFPA 10 requirements are very specific and require burdensome recordkeeping. The new “good and serviceable” standard relieves owners and operators of recreational vessels of following the specifics of NFPA 10 while allowing them flexibility in how to achieve the same result. By doing so, the Coast Guard is making it easier and less costly for recreational vessel owners to maintain the fire protection equipment on their vessel.

The Coast Guard is modifying the fire extinguishing equipment requirements added to 33 CFR part 175, subpart E to clarify the regulatory language, update outdated information, and make technical amendments.

We are making the following edits and updates:

• Removing the reference to the no longer published Commandant Instruction (COMDTINST) M16714.3 (new 33 CFR 175.305);

• Changing the terms “motorboats” and “motor vessels,” as currently used in subpart 25.30, to the clearer terms “recreational vessels 65 feet and less in length” and “recreational vessels more than 65 feet in length,” respectively. This change aligns the language used in the new subpart E with the terminology already used in 33 CFR part 175, and reinforces the intent of subpart E to apply the requirements only to recreational vessels, and not all motorboats and motor vessels. It also makes the distinction between the two vessel size categories clearer, allowing readers to more easily find the fire extinguishing equipment requirements appropriate for a particular type of vessel;

• Adding new language to clarify acronyms and update cross-references to 46 CFR subpart 25.30. For example, we are replacing the “B.H.P.” acronym with “brake horsepower” and updating references to point clearly towards 46 CFR instead of chapter I; and

• Modifying the language moved from 46 CFR subpart 25.30 to refer to recreational vessels by model years, as opposed to contracting or manufacturing dates. The latter terms are applicable to commercial vessels only. This change allows the recreational boating community to more easily identify their vessel requirements and aligns with industry and market naming practices.

This rule does not change any exemptions that already apply to recreational vessels. The Coast Guard is retaining all the existing recreational fire extinguishing equipment exemptions, such as those for vessels manufactured before August 22, 2016, and the fire extinguishing equipment exemptions for vessels manufactured before November 19, 1952, as provided in 46 CFR 25.30-80 and 46 CFR 25.30-90. Where we previously allowed exemptions for vessels manufactured or contracted before August 22, 2016, we will now apply the same exemptions to recreational vessels with model years before 2017. Where regulations previously exempted vessels manufactured or contracted before November 19, 1952, we will now apply those exemptions to recreational vessels with model years before 1953. The 2016 exemption is part of the transition from old Coast Guard weight-based ratings, to Underwriter Laboratory (UL) performance-based ratings, and grandfathered existing extinguishers on boats so they do not have to replace their existing extinguishers. However, the 2016 exemption still requires new extinguishers to meet the new requirements. Changing or not allowing this exemption would result in a burden for the recreational boater community.

We are also retaining the exemption in 46 CFR 25.30-20(a) that allows recreational vessels less than 26 feet in length, propelled by outboard motors and not carrying passengers for hire, to not have to carry portable fire extinguishers if the construction of the vessel excludes the entrapment of explosive or flammable gases or vapors.

The Coast Guard made several small stylistic and clerical amendments. In 33 CFR 1.08-1(a)(8), we added a cross reference to 33 CFR part 175, subpart E, to reflect the relocation and renumbering of regulations made by this final rule. No substantive requirements result from this change. We made corrections to capitalization, changing “Figure” to “figure” and “Table” to “table” when these words appear in regulatory text. These changes appear in 33 CFR 175.320(a)(1), Note 1 to Figure 1 to 33 CFR 175.320(a), Note 2 to Figure 2 to 33 CFR 175.320(a), 33 CFR 175.320(b)(1), 33 CFR 175.320(b)(2), 33 CFR 175.320(c), and 33 CFR 175.380(a). We also made a small stylistic change to word requirements in the singular rather than the plural for greater clarity. We changed “Recreational vessels” to “A recreational vessel” and amended the sentence structure accordingly where necessary in 33 CFR 175.320(a)(1), 33 CFR 175.320(b)(1), and 33 CFR 175.390.

Based on public comments, the Coast Guard reorganized the fire extinguisher requirements in 33 CFR 175.310, clarified the phrase “good and serviceable,” and removed the requirements that extinguishers be maintained in accordance with manufacturer's instructions. In order to clarify the phrase “good and serviceable,” we added that the fire extinguisher lock pin must firmly be in place, the discharge nozzle be clean and free of obstruction, the extinguisher must not show signs of significant corrosion or damage and the portable fire extinguisher must be readily accessible. The Coast Guard has a long history of using the phrase “good and serviceable” for portable fire extinguishers, such as in the existing 46 CFR 25.30-10 for portable fire extinguishers built before 1965, and also in other sections of the CFR for both recreational vessels and commercial vessels such as 46 CFR 25.30-10, 142.240, or 180.200.

We have modified the definition for “model year” in 33 CFR 175.3 from what we proposed in the NPRM. The definition in the NPRM had the model year run from August 1st until July 31st of the following year. The revised definition has the model year run from June 1st until July 31st of the following year. This change was made to conform with the definition of “model year” found in 46 U.S.C. 4302(e)(1).

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. A regulatory analysis (RA) with details on the estimated cost savings of this rule follows.

This final rule removes requirements imposed by the 2016 Fire Protection rule. The Fire Protection rule's requirements for fire extinguishing equipment in 46 CFR subpart 25.30 of chapter I, subchapter C (Uninspected Vessels) applied the NFPA 10 monthly visual inspection, annual maintenance, and recordkeeping requirements to both recreational and commercial vessels. This final rule removes the NFPA 10 recordkeeping and monthly visual inspection requirements together with the requirement for annual maintenance from the recreational vessel community. Instead of the prescriptive monthly inspection requirement, including a recordkeeping component, the Coast Guard is promulgating this final rule, which contains performance standards to require that portable fire extinguishers be kept in a “good and serviceable” condition without any recordkeeping requirement. By doing so, the Coast Guard is making it easier for recreational vessel owners to maintain their fire protection equipment. The final rule does not change the fire extinguishing equipment requirements for commercial vessels in 46 CFR subpart 25.30 or any other recreational vessel requirements.

The Coast Guard published a proposed rule on May 13, 2019. We made some changes to the regulatory analysis because of the comments received during the comment period for the NPRM. These revisions did not affect the conclusions or estimates made by the RA. We reorganized and modified the regulatory language that appeared in the NPRM to improve clarity in this final rule. The Coast Guard is amending regulatory language in new 46 CFR 175.310(a) and (b). The Coast Guard added the language “on board and readily accessible” into section 175.310(a)(1). We introduced new language into section 175.310(a)(4) to specify the meaning of “good and serviceable.” The regulatory assessment of costs and benefits of the NPRM remains unchanged. Table 1 summarizes the changes to the regulatory text from the proposed rule to this final rule and the resulting impact on the regulatory analysis.

The Coast Guard promulgates regulations to protect the environment and human and marine life and to ensure safe boating practices. The Fire Protection rule applied the NFPA 10 monthly visual inspection, annual maintenance, and recordkeeping requirements to both recreational and commercial vessels. This created a new regulatory requirement for recreational vessels. This final rule will remove the NFPA 10 recordkeeping and monthly visual inspection requirements together with the requirement for annual maintenance from the recreational vessel community. The final rule replaces those NFPA 10 requirements with the requirement for portable fire extinguishers to be kept in “good and serviceable” condition. The final rule does not change the fire extinguishing equipment requirements for commercial vessels in 46 CFR part 25, subpart 25.30, or any other recreational vessel requirements.

Additionally, the Coast Guard will correct an incongruity in our vessel safety equipment regulations by shifting recreational vessel fire extinguishing equipment requirements from 46 CFR subpart 25.30 (Fire Extinguishing Equipment) to 33 CFR part 175 into a new subpart E (Equipment Requirements). This reorganization will not alter regulatory requirements for commercial vessels, but will separate recreational vessels from them.

The Coast Guard reviewed available data to determine if any governmental entity was complying with the requirements. Based on a thorough search of State regulations, the Coast Guard found no evidence of the States, the District of Columbia, or territories changing regulations as a result of the Fire Protection rule. 18 Therefore, the Coast Guard determined that the States, the District of Columbia, and territorial jurisdictions will not need to revise their regulations and, thereby, incur any cost. Additionally, we received no public comment during the comment period for the proposed rule disagreeing with this determination.

The Coast Guard expects that there are no costs to the regulated public from this rule because this rule replaces the required monthly inspections and recordkeeping with a performance standard that vessel owners can meet in the manner least burdensome to each owner. The primary cost savings of this rule will be from alleviating the regulatory burden placed on the recreational vessel community by the Fire Protection rule, which prescribes compliance with the NFPA 10 inspection, maintenance, and recordkeeping requirements for portable fire extinguishers; this rule replaces the current prescriptive requirements with a performance standard. Table 2 presents a summary of the impacts of this final rule.

The affected population consists of recreational vessels subject to the NFPA 10 requirements under the current 46 CFR part 25, subpart 25.30 and the 50 states, the District of Columbia, and 5 territories. The Coast Guard used recreational vessel population data from the Coast Guard Office of Auxiliary and Boating Safety's document titled, 2013 Recreational Boating Statistics, for the 2016 Fire Protection rule's RA to estimate the affected population. 19 For this rule's analysis, the Coast Guard is using the most recently published data from the 2019 Recreational Boating Statistics to identify a population of 11,052,684 registered motorized recreational vessels that will be affected by this final rule. 20

The Coast Guard received 14 comments on the NPRM. 21 We addressed comments earlier in the preamble (see section IV). Some comments dealt with economic issues or with the regulatory analysis of the rulemaking; we discuss these comments in this section.

We received few comments regarding the RA or economic issues. Commenter USCG-2018-0099-0015 wrote, “Brief, monthly inspections are not a burden. Many recreational boats are not in use for the full 12 months of the year so a monthly inspection only would take place perhaps 6 or 8 times a year.” We note that the monthly inspection requirement of NFPA 10 does not provide exceptions for when a boat is not in use; however, 12 minutes is an estimated average and we recognize that some people may spend more time and some people may spend less time on these requirements (see also our response in the Cost Savings section of the regulatory analysis of this document for additional information on the burden estimate). Commenter USCG-2018-0099-0015 also wrote, “Perhaps the requirement for recordkeeping should be excused but the multiple use of the word burden in the Federal Registers Request for Comment is not at all appropriate when it comes to the fire protection preparations for a recreational boat owner. Inspecting an important piece of marine safety gear is not a burden for a prudent boat owner/operator.” The Coast Guard uses the term of art “burden” as defined in the Paperwork Reduction Act. 22 Keeping the requirement for inspections without a requirement to record them does not yield greater safety to vessel owners or the public. The final rule establishes performance requirements to ensure the equipment is available in appropriate condition.

Commenter USCG-2018-0099-0004 wrote, “Fire extinguishers (both portable and fixed automatic for engine rooms) still need to be inspected at least annually. Without annual inspections the extinguisher could be inoperable without the vessel owners [sic] knowledge.” The Coast Guard chose not to follow this recommendation because it would create an additional burden for vessel owners. And we believe the final rule's requirement for “good and serviceable” condition would address safety concerns.

We, therefore, adopt the methodology and assumptions for the costs, cost savings and benefits from the NPRM as final. However, we have updated the analysis with a more current estimate of the affected population.

This final rule proposes 20 changes to the fire extinguishing equipment regulations in 33 CFR part 175, subpart E, and 46 CFR part 25, subpart 25.30. These changes remove the recreational vessel fire extinguishing equipment regulations from 46 CFR part 25, subpart 25.30 (Fire Extinguishing Equipment) to a new subpart E in 33 CFR part 175. This change will include the addition of a new section 175.301 to specify the applicability of subpart E to recreational vessels. It also will include new sections 175.305, 175.310, 175.315, 175.320, 175.380, and 175.390 to reflect requirements previously applied by 46 CFR subpart 25.30, but excluding those that require recreational vessel owners and operators to follow the monthly visual inspection, annual maintenance, and recordkeeping requirements of NFPA 10.

Overall, there are no costs to the regulated public due to these changes to the regulatory text. We describe the costs, cost savings, and qualitative benefits of these in table 3.

The Coast Guard considered all potential costs of this final rule. We considered the possibility that the States, District of Columbia, and territorial jurisdictions may choose to update their statutes and regulations because of this final rule if they previously had changed their regulations to satisfy NFPA 10. However, based on a thorough search of the regulatory documents of the States, District of Columbia, and territories, the Coast Guard found no evidence of these jurisdictions changing their regulations to satisfy NFPA 10. Therefore, these changes will not incur any costs.

The primary savings of this final rule stem from alleviating the regulatory burden that the Fire Protection rule placed on the recreational vessel community. We tried to capture the potential aggregate scale of this regulatory burden reduction on the affected population of recreational vessel owners, but enforcement and compliance data is nonexistent. As an alternative, we provided an individual level estimate for the cost savings to the affected population of recreational vessel owners. We can offer this estimate because individual recreational vessel owners within the affected population must currently comply with the NFPA 10 requirements imposed by the Fire Protection rule.

NFPA 10 has specific inspection requirements for both rechargeable and non-rechargeable portable fire extinguishers. Owners of vessels with non-rechargeable (disposable) fire extinguishers, commonly used in the recreational vessel community, are subject to a monthly visual inspection ensuring the portable fire extinguisher is available and still operational. They also must maintain records of their compliance by placing an initial in a logbook as confirmation of a visual inspection. Rechargeable portable fire extinguishers are not common in the 5-B size that is required for recreational boats and actively must be sought and bought from an industrial distributor.

Rechargeable portable units of this size tend to be special purpose extinguishers such as carbon dioxide or clean agent extinguishers commonly used in areas such as server rooms, not on recreational boats, and come at a significantly higher price. Non-rechargeable or disposable portable units are intended for use by the public and are the primary type of fire extinguisher on recreational vessels. They are primarily marketed to the public because of their low operating and maintenance costs, low upfront cost, reliability as well as the ease of care, and wide accessibility to be purchased at retail stores. As a result, commercial vessel owners generally purchase rechargeable portable fire extinguishers, while recreational vessel owners purchase non-rechargeable units.

This rule replaces the required NFPA 10 monthly inspections and recordkeeping with a performance standard that vessel owners can meet in the manner least burdensome to each owner. Accordingly, we expect that this change will not impose any additional costs on recreational vessel owners. We estimate the savings to recreational boaters will stem from eliminating a recordkeeping burden. We estimate the recordkeeping takes 1 minute per month to complete for an annual total of 12 minutes per fire extinguisher. 23 It does not include the costs to the boater of traveling to the vessel when it is not in use. We did not estimate the travel costs because we do not have any data on the average travel time to their vessel when not in use. Additionally, we lack data on the number of months a vessel might be in use.

Data is not available on how many recreational vessel owners have complied with the current NFPA 10 requirements since 2016 because the Coast Guard does not track that information. We also have notified the States and territories about the NBSAC Resolution 2016-96-02. As a result, we acknowledge the nonzero probability that a given vessel owner may be complying. Therefore, this final rule may reduce the regulatory burden of the recordkeeping requirement for some recreational vessel owners. We do not have enough information to estimate the aggregate scale of this reduction. However, we provide an individual level estimate for the cost savings to the affected population of recreational vessel owners legally required to comply. We estimate 12 minutes per year per portable fire extinguisher (1 minute per month) as the average individual level cost savings. 24

By moving from a prescriptive requirement to a performance standard, this rule maintains safety preparedness standards while allowing recreational vessel owners and operators to meet the safety requirements in the way best suited for each owner/operator. By shifting the recreational vessel fire extinguishing equipment requirements from 46 CFR part 25, subpart 25.30 to 33 CFR part 175, subpart E, this rule will create a clear distinction between fire extinguishing equipment regulations intended for commercial vessels and those intended for recreational vessels. Additionally, we removed references to the outdated COMDTINST M16714.3, making the regulatory text easier to read and understand.

The final rule (the preferred alternative) will move the fire extinguishing equipment requirements for recreational vessels from 46 CFR part 25, subpart 25.30 to 33 CFR part 175, new subpart E. This will create a clear distinction between fire extinguishing equipment regulations intended for commercial vessels and those intended for recreational vessels. The final rule will remove all the NFPA 10 inspection, maintenance and recordkeeping requirements for recreational vessels. This change will result in cost savings in the form of time savings to recreational vessel owners of 12 minutes per year per fire extinguisher on recreational vessels, plus travel time when the vessel is not in use. It re-organizes the regulatory text to separate recreational vessel fire protection regulations from commercial vessel regulations and to consolidate recreational vessel fire extinguishing equipment requirements into one subchapter. Lastly, the final rule follows the NBSAC recommendation.

Within the Coast Guard's development of the final rule, we considered alternatives to determine if any of them could accomplish the stated objectives. Among these alternatives were the following:

Under this alternative, recreational vessel fire protection rules would remain in 46 CFR subpart 25.30, and NFPA 10 would continue to apply to recreational vessels. The Coast Guard did not select this alternative because it maintains an unnecessary regulatory burden. It would also continue a situation that lacks regulatory clarity and creates confusion.

This alternative would create a new Coast Guard policy based on NBSAC's recommendation to end the applicability of NFPA 10 to motorized recreational vessels and outline fire extinguishing equipment standards. It would impose no new costs and would have no cost savings. The Coast Guard did not select this option because States adopt Coast Guard regulations, not Coast Guard policy recommendations. This alternative would not amend the current CFR and may cause confusion depending on the nature of implementation.

Under this alternative, the Coast Guard would have added language to 46 CFR part 25, subpart 25.30 explicitly stating that NFPA 10 does not apply to recreational vessels. However, this would remove fire equipment applicability for motorized recreational vessels owners. This change would also result in the lack of regulatory requirements for recreational vessels. It would impose no new costs. The Coast Guard did not select this option because this alternative may create a safety hazard for motorized recreational vessel owners.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule would have a significant economic impact on a substantial number of small entities. 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 final rule alleviates the regulatory burden placed on 11,052,684 recreational vessels and will move fire extinguishing equipment requirements for recreational vessels from 46 CFR part 25, subpart 25.30 to a new subpart E (Fire Protection Equipment) in 33 CFR part 175. The Coast Guard's economic analysis concluded that it expects these changes would not impose additional costs on any of the recreational vessels that comprise the affected population in this final rule because this rule replaces the required NFPA 10 monthly inspections with a performance standard that vessel owners can meet in the manner least burdensome to each owner. Additionally, this rule eliminates regulatory burdens from the NFPA 10 recordkeeping requirements, resulting in an estimated 12 minutes of time savings per recreational vessel owner per fire extinguisher, plus travel time when the vessel was not in use.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this final rule will not have a significant economic impact on a substantial number of small entities.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. 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.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This final rule will call for no new collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520. As defined in 5 CFR 1320.3(c), “collection of information” comprises reporting, recordkeeping, monitoring, posting, labeling, and other similar actions.

A rule has implications for federalism under Executive Order 13132 (Federalism) if it has a substantial direct effect on 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 final rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. The Coast Guard regulates recreational vessel safety, including firefighting equipment, under the authority contained in 46 U.S.C. 4302. Chapter 43 of 46 U.S.C. contains an express preemption provision for recreational vessel safety standards. Under 46 U.S.C. 4306, a State or political subdivision of a State may not establish, continue in effect, or enforce a law or regulation establishing a recreational vessel or associated equipment performance or other safety standard, or impose a requirement for associated equipment unless: (1) The standard is identical to a Coast Guard regulation prescribed under 46 U.S.C. 4302; (2) the Coast Guard specifically provides an exemption under 46 U.S.C. 4305; or (3) the State standard regulates marine safety articles carried or used to address a hazardous condition or circumstance unique to that State (as long as the Coast Guard does not disapprove). This final rule establishes minimum requirements, under 46 U.S.C. 4302, for fire extinguishing equipment for recreational vessels, and, therefore, the States may not issue regulations that differ from Coast Guard regulations within the categories of safety standards or equipment for recreational vessels, except in the limited circumstances identified above. Therefore, this final rule is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

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. Although this rule will not result in such expenditure, we do discuss the effects of this rule elsewhere in this preamble.

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This final rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform) to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this final rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

This final rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it will 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.

We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (for example, specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this final rule under DHS Management 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 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. 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.

This rule is categorically excluded under paragraphs L52, L54, and L57 of Table 1 in Appendix A of DHS Directive 023-01 (series). The categorical exclusion (CATEX) L52 pertains to regulations concerning vessel operation safety standards; CATEX L54 pertains to regulations that are editorial or procedural, such as those updating addresses or establishing application procedures; and CATEX 57 pertains to regulations concerning manning, documentation, admeasurements, inspection, and equipping of vessels.

This final rule will update Coast Guard regulations pertaining to fire extinguishing requirements and the associated standards used by recreational vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR parts 1 and 175 and 46 CFR part 25 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this regulation by October 24, 2021 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to ensure the safety of the participants and vessels during the Sacramento Ironman Triathlon on October 24, 2021.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector San Francisco (COTP) has determined that potential hazards associated with Sacramento Ironman Triathlon on October 24, 2021, will be a safety concern from Township 9 Park to the Sacramento River at Tower Bridge for four hours. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the special local regulation while the event is taking place.

This rule establishes a special local regulation starting in the American River from Township 9 Park to the Sacramento River at Tower Bridge. The safety zone will be in effect on October 24, 2021 from 6 a.m. to 10 a.m. The duration of the zone is intended to protect participants, and the marine environment in these navigable waters while the Sacramento Ironman Triathlon is taking place. No vessel or person will be permitted to enter the regulated area without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and the time-of-day of the special local regulation. This special local regulation would impact a small designated area of the American River and Sacramento River for a short duration and vessel traffic will be able to transit after the time of the event. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received 00 comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

When the special local regulation is in effect, vessel traffic can pass safely around the regulated area. The maritime public will be advised in advance of this special local regulation via Broadcast Notice to Mariners.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting only 4 hours that will prohibit entry within a 2 mile segment of the American River and Sacramento River. It is categorically excluded from further review under paragraph [L61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish this special local regulation by October 23, 2021. Delaying the effective date of this regulation for a comment period to run would be contrary to the public interest and impractical because it would inhibit the Coast Guard's ability to protect spectators and vessels from the potential safety hazards associated with a marine regatta.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this regulation would be contrary to the rule's objectives of protecting the safety of the public and property on the navigable waters in the vicinity of the regatta.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with the Perrysburg Regatta starting October 23, 2021, would be a safety concern for anyone navigating within the Maumee River, Toledo, OH.

This rule establishes a temporary special local regulation from 7:30 a.m. through 3:30 p.m. on October 23, 2021. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: All waters of the Maumee River, Toledo OH between 200 feet off of the left descending bank and between the following two points: The first point is drawn from position 41°39′45.9″ N, 083°30′37.9″ W (NAD 83); the second point, to the south, is drawn from position 41°38′06.4″ N, 083°31′60.0″ W (NAD 83). During the period of enforcement, no vessels may enter, transit through, or anchor within the regulated area without the permission of the COTP or an on-scene representative. The COTP or a designated on-scene representative will notify the public of the enforcement of this rule by all appropriate means, including a Broadcast Notice to Mariners.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Vessel traffic will be able to safely transit around this regulated area, which would impact a small designated area of the Maumee River for 6 hours in an area where vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This special local regulation lasts 6 hours and will limit entry within the navigable waters of the Maumee River, Toledo, OH. 200 feet off of the left descending bank and between the following two points: The first point is drawn from position 41°39′45.9″ N, 083°30′37.9″ W (NAD 83); the second point, to the south, is drawn from position 41°38′06.4″ N, 083°31′60.0″ W (NAD 83). It is categorically excluded from further review under paragraph L[61] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Following the promulgation in 2010 of a 1-hour primary SO 2 NAAQS, on August 5, 2013, EPA designated the Rhinelander area within the State of Wisconsin as nonattainment for this NAAQS, in conjunction with designating multiple areas in other states as nonattainment (78 FR 47191). Wisconsin submitted a nonattainment plan for the Rhinelander area on January 22, 2016, and supplemented it on July 18, 2016, and November 29, 2016. On March 23, 2021, EPA partially approved and partially disapproved Wisconsin's Rhinelander SO 2 plan as submitted and supplemented in 2016 (86 FR 15418). EPA approved the base-year emissions inventory and affirmed that the new source review requirements for the area had previously been met (79 FR 60064, October 6, 2014). EPA also approved the SO 2 emission limit for Ahlstrom-Munksjö's Rhinelander facility (Ahlstrom-Munksjö) (formerly Expera Specialty Solutions LLC (Expera)) as SIP-strengthening. At that time, EPA disapproved the attainment demonstration for failing to comply with EPA's stack height regulations. Additionally, EPA disapproved the plan for failing to meet the requirements for RFP toward attainment of the NAAQS, RACM/RACT, emission limitations and control measures, as necessary to attain the NAAQS, and contingency measures. On March 29, 2021, Wisconsin submitted a permit containing a more stringent emission limit for Ahlstrom-Munksjö (2.38 pounds per million British Thermal Unit (lbs/MMBTU) on a 24-hour average basis) than the previous limit (3.0 lbs/MMBTU on a 24-hour average basis), supplemental information in order to remedy the plan's deficiencies specified in EPA's March 23, 2021 rulemaking, and a request that EPA approve its revised plan for the Rhinelander area.

EPA published a notice of proposed rulemaking addressing Wisconsin's revised plan for the Rhinelander SO 2 nonattainment area on July 22, 2021 (86 FR 38643). EPA proposed to approve the sections of the tile I construction permit (Air Pollution Control Construction Permit Revision 15-DMM-128-R1) that contain the revised SO 2 limit for Ahlstrom-Munksjö and the associated requirements. Additionally, EPA proposed to replace the previously approved consent and administrative orders (AM-94-38 and AM-15-01) governing the Ahlstrom-Munksjö emission limits with these elements of Permit 15-DMM-128-R1. EPA proposed to conclude that Wisconsin has demonstrated that these requirements provide for the Rhinelander area to attain the SO 2 NAAQS. Finally, EPA proposed to conclude that Wisconsin has satisfied the other applicable requirements for nonattainment areas, including requirements for RACM/RACT, RFP, and contingency measures. The proposal supplemented a previous action in which EPA concluded that Wisconsin had met the requirement for a suitable emissions inventory.

The public comment period for this proposed rule ended on August 23, 2021. During the comment period, EPA received one supportive comment on the proposal. The comment is included in the docket for this action.

EPA is approving Wisconsin's SIP submission, which the State submitted to EPA on March 29, 2021, to supplement the prior SIP it had submitted on January 22, 2016, and supplemented on July 18, 2016, and November 29, 2016, for attaining the 2010 1-hour SO 2 NAAQS for the Rhinelander area and for meeting other nonattainment area planning requirements. This SO 2 attainment plan includes Wisconsin's attainment demonstration for the Rhinelander area. The plan also addresses requirements for RFP, RACT/RACM, and contingency measures. EPA has previously concluded that Wisconsin has addressed the requirements for emissions inventories for the Rhinelander area and nonattainment area NSR. EPA has determined that Wisconsin's Rhinelander SO 2 plan meets applicable requirements of section 172 of the CAA.

Wisconsin's Rhinelander SO 2 plan is based on the emissions limits specified in Air Pollution Control Construction Permit Revision 15-DMM-128-R1. Wisconsin seeks EPA to approve several elements of the permit, including the permit cover sheet, emissions limitations for Ahlstrom-Munksjö (Conditions A.3.a.(1)-(3)), the compliance demonstration (Conditions A.3.b.(1)-(3)), reference test methods, recordkeeping and monitoring requirements (Conditions A.3.c.(1)-(5) and A.3.c.(7)-(9)), and the effective date (Condition YYY.1.a.(1)). Wisconsin did not seek approval of limits and test methods associated with oil sulfur content. Wisconsin stated that limits on the portion of emissions from oil are unnecessary to comply with the 24-hour SO 2 emission limit and the boiler heat input limit, and attainment is ensured by limits on total emissions from boiler B26. EPA concurs with Wisconsin's rationale, and therefore EPA is approving these elements of the permit.

Additionally, EPA is replacing the previously approved consent and administrative orders (AM-94-38 and AM-15-01) governing the Ahlstrom-Munksjö emission limits  1 with the elements of Wisconsin's Air Pollution Control Construction Permit Revision 15-DMM-128-R1 specified above. This replacement will not be effective until December 31, 2021, which is the revised permit compliance date for Ahlstrom-Munksjö. Section 110(l) of the CAA states that EPA “shall not approve a revision of a plan if the revision would interfere with any applicable requirement. . . .” Since Permit 15-DMM-128-R1 contains a more stringent SO 2 limit for Ahlstrom-Munksjö (2.38 lbs/MMBTU on a 24-hour average basis) than the previous orders (3.0 lbs/MMBTU on a 24-hour average basis), and since Wisconsin has demonstrated that the limit in Permit 15-DMM-128-R1 provides for attainment without need for the limits in the prior orders, EPA concludes that Section 110(l) does not prohibit EPA from replacing the prior orders with the newer permit, and EPA is acting in accordance with this Wisconsin request.

This approval terminates the sanctions clock started under CAA section 179 resulting from EPA's partial disapproval of the prior SIP, as well as EPA's duty to promulgate a FIP for the area under CAA section 110(c) that resulted from the previous partial disapproval.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Wisconsin Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Also in this document, as described in the amendments to 40 CFR part 52 set forth below, EPA is removing provisions of the EPA-Approved Wisconsin Regulations and Statutes from the Wisconsin State Implementation Plan, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

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);

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

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

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).

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 December 21, 2021. 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:

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

On August 2, 2021, under Clean Air Act (CAA or “Act”) section 110(k)(3), the EPA proposed to approve the “Second 10-Year Carbon Monoxide Limited Maintenance Plan: Las Valley Maintenance Area, Clark County, Nevada (May 2019)” (“2019 LMP” or “Plan”) submitted by NDEP on June 18, 2019, as a revision to the Nevada SIP. 1 In so doing, we found that the 2019 LMP adequately demonstrates that the area will maintain the CO NAAQS through the end of the second ten-year period of the maintenance period. We are taking final action to approve the 2019 LMP because it meets all applicable requirements under CAA sections 110 and 175A.

Specific requirements of LMPs and the rationale for the EPA's proposed actions are discussed in the notice of proposed rulemaking and will not be restated here. Please see our August 2, 2021 proposed rule for background on this action and the rationale for approval of the 2019 LMP.

Our August 2, 2021 proposed rule provided a 30-day public comment period that closed on September 1, 2021. We received no comments on our proposed action.

The EPA is taking final action to approve the 2019 LMP as a revision to the Nevada SIP. The EPA is approving the 2019 LMP for the reasons set forth in our August 2, 2021 proposed rule and because the Plan is consistent with the requirements of the CAA.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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 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. Additional information about these statutes and Executive orders can be found at https://www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, will result from this action.

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

This action does not have tribal implications, as specified in Executive Order 13175, because this action does 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, and will not impose substantial direct costs on tribal governments or preempt tribal law. The Las Vegas Valley CO maintenance area includes areas of Indian country of the Las Vegas Tribe of Paiute Indians. In those areas of Indian country, the 2019 LMP does not apply, and therefore, this action 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).

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

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

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The EPA lacks the discretionary authority to address environmental justice in this action.

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

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 December 21, 2021. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

On October 29, 2020, the EPA proposed to approve, under CAA section 110(k)(3), and to conditionally approve, under CAA section 110(k)(4), portions of submittals from the State of California as revisions to the California SIP for the Sacramento Metro ozone nonattainment area. 1 The principal submittals are as follows: “Sacramento Regional 2008 NAAQS 8-Hour Ozone Attainment Plan and Reasonable Further Progress Plan,” (“2017 Sacramento Regional Ozone Plan”); and the Sacramento Metro portion of the California Air Resource Board's (CARB) “2018 Updates to the California State Implementation Plan” (“2018 SIP Update”). 2 In this notice, we refer to these submittals collectively as the “Sacramento Metro Area Ozone SIP” or the “Plan,” and we refer to our October 29, 2020 proposed action as the “proposed rule.”

The Sacramento Metro Area consists of Sacramento and Yolo counties and portions of El Dorado, Placer, Solano, and Sutter counties. 3 Several local air agencies have their jurisdictions within this area. Sacramento County is under the jurisdiction of the Sacramento Metropolitan Air Quality Management District (SMAQMD). Yolo County and the eastern portion of Solano County are under the jurisdiction of the Yolo-Solano AQMD (YSAQMD). The southern portion of Sutter County is under the jurisdiction of the Feather River AQMD (FRAQMD). The western portion of Placer County is under the jurisdiction of the Placer County Air Pollution Control District (PCAPCD). Last, the western portion of El Dorado County is under the jurisdiction of the El Dorado County AQMD (EDCAQMD). In this action, we refer to these five districts collectively as the “Districts.” Under California law, each air district is responsible for adopting and implementing stationary source rules, while CARB adopts and implements consumer products and mobile source rules. The Districts' and State's rules are submitted to the EPA by CARB.

In our proposed rule, we provided background information on the ozone standards, 4 area designations, related SIP revision requirements under the CAA, and the EPA's implementing regulations for the 2008 ozone standards, referred to as the 2008 Ozone SIP Requirements Rule (“2008 Ozone SRR”). To summarize, the Sacramento Metro Area is classified as Severe nonattainment for the 2008 ozone standards; consequently, the Sacramento Metro Area Ozone SIP was developed to address the CAA requirements for this Severe nonattainment area in meeting the 2008 ozone NAAQS.

In our proposed rule, we also discussed a decision issued by the D.C. Circuit Court of Appeals in South Coast Air Quality Management Dist. v. EPA (“ South Coast II ”)  5 that vacated certain portions of the EPA's 2008 Ozone SRR. The only aspect of the South Coast II decision that affects this action is the vacatur of the provision in the 2008 Ozone SRR that allowed states to use an alternative baseline year for demonstrating reasonable further progress (RFP). To address this decision, CARB, in the 2018 SIP Update, submitted an updated RFP demonstration that relied on a 2011 baseline year, as required, along with updated motor vehicle emissions budgets (MVEBs or “budgets”) associated with the new RFP milestone years. 6

Within our proposed rule, we reviewed the various SIP elements contained in the Sacramento Metro Area Ozone SIP, evaluated them for compliance with CAA statutory and regulatory requirements, and concluded that they met all applicable requirements, with the exception of the contingency measures element, for which the EPA proposed conditional approval. Below, we provide a summary review of our proposed rule, by SIP element.

• We found that CARB and the Districts met all applicable procedural requirements for public notice and hearing prior to the adoption and submittal of the components of the Sacramento Metro Area Ozone SIP, i.e., the 2017 Sacramento Regional Ozone Plan and the Sacramento Metro portion of CARB's 2018 SIP Update. 7

• We proposed to approve the base year emissions inventory element in the 2017 Sacramento Regional Ozone Plan as meeting the requirements of CAA sections 172(c)(3) and 182(a)(1) and 40 CFR 51.1115 for the 2008 ozone NAAQS. Based on our review, we proposed to find that the future year baseline projections in the 2017 Sacramento Regional Ozone Plan are properly supported by SIP-approved stationary and mobile source measures. 8

• We proposed to approve the reasonably available control measures (RACM) demonstration element in the 2017 Sacramento Regional Ozone Plan as meeting the requirements of CAA section 172(c)(1) and 40 CFR 51.1112(c) for the 2008 ozone NAAQS. Based on our review of the State and Districts' RACM analyses and the Districts' and CARB's adopted rules, we proposed to find that there are, at this time, no additional RACM that would further advance attainment of the 2008 ozone NAAQS in the Sacramento Metro Area. 9

• We proposed to approve the attainment demonstration element for the 2008 ozone NAAQS in the 2017 Sacramento Regional Ozone Plan as meeting the requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1108. In our review provided in the proposed rule, we observed that the Plan followed the modeling procedures recommended in the EPA's Modeling Guidance and showed excellent performance in simulating observed ozone concentrations in the 2012 base year. Given the extensive discussion of modeling procedures, tests, and performance analyses called for in the modeling protocol, the good model performance, and the model response to emissions changes consistent with observations, we proposed to find that the modeling is adequate for purposes of supporting the attainment demonstration. 10

• We proposed to approve the rate of progress (ROP) demonstration element in the 2017 Sacramento Regional Ozone Plan as meeting the requirements of CAA 182(b)(1) and 40 CFR 51.1110(a)(2) for the 2008 ozone NAAQS. 11 As noted in the proposed rule, in 2015, the EPA approved a 15 percent ROP plan for the Sacramento Metro Area for the 1-hour ozone NAAQS and 1997 8-hour ozone NAAQS. 12

• We proposed to approve the RFP demonstration element in Section V—SIP Elements for the Sacramento Metropolitan Area of the 2018 SIP Update (as clarified) as meeting the requirements of CAA sections 172(c)(2), 182(b)(1), and 182(c)(2)(B), and 40 CFR 51.1110(a)(2)(ii) for the 2008 ozone NAAQS. We proposed to find that CARB and the Districts used the most recent planning and activity assumptions, emissions models, and methodologies in developing the RFP baseline and milestone year emissions inventories. Also, we proposed to find that the Districts and CARB used an appropriate calculation method to demonstrate RFP. Lastly, we proposed to find that the Districts' use of oxides of nitrogen (NO X ) NAAQS substitution is warranted and appropriately implemented based on the NO X -limited conditions in the Sacramento Metro Area, and the area's greater responsiveness to NO X emissions reductions relative to VOC emissions reductions. 13

• We proposed to approve the vehicle miles traveled (VMT) emissions offset demonstration element in the 2017 Sacramento Regional Ozone Plan as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1102 for the 2008 ozone NAAQS. Based on our review of revised Sacramento Metro Area VMT emissions offset demonstration in the 2017 Sacramento Regional Ozone Plan, we proposed to find that CARB's analysis is consistent with the August 2012 Guidance and with the emissions and vehicle activity estimates found elsewhere in the 2017 Sacramento Regional Ozone Plan. Also, we proposed to find that CARB and the Sacramento Area Council of Governments (SACOG) have adopted sufficient transportation control strategies (TCSs) and transportation control measures (TCMs) to offset the growth in emissions from growth in VMT and vehicle trips in the Sacramento Metro Area for the purposes of the 2008 ozone NAAQS. 14

• We proposed to approve the MVEBs in Section V—SIP Elements for the Sacramento Metropolitan Area of the 2018 SIP Update for the RFP milestone year of 2023, and the attainment year of 2024 and find that these budgets are consistent with the RFP and attainment demonstrations for the 2008 ozone NAAQS proposed for approval and the budgets meet the other criteria in 40 CFR 93.118(e). 15 We reviewed the budgets in the Sacramento Metro Area Ozone SIP and proposed to find that they are consistent with the attainment and RFP demonstrations for which we proposed approval, are based on control measures that have already been adopted and implemented, and meet all other applicable statutory and regulatory requirements including the adequacy criteria in 40 CFR 93.1118(e)(4) and (5). 16

We also proposed to make the following findings related to other CAA requirements:

• The emissions statement element of the 2017 Sacramento Regional Ozone Plan satisfies the requirements under CAA section 182(a)(3)(B) based on our prior approvals of the Districts' emission statement rules;  17

• The enhanced vehicle inspection and maintenance program in the Sacramento Metro Area meets the requirements of CAA section 182(c)(3) and 40 CFR 51.1102 for the 2008 ozone NAAQS;  18

• The California SIP revision to opt out of the Federal Clean Fuels Fleet Program meets the requirements of CAA sections 182(c)(4)(A) and 246 and 40 CFR 51.1102 for the 2008 ozone NAAQS with respect to the Sacramento Metro Area;  19 and,

• The enhanced air quality monitoring in the Sacramento Metro Area meets the requirements of CAA section 182(c)(1) and 40 CFR 51.1102 for the 2008 ozone NAAQS. 20

Finally, under CAA section 110(k)(4), we proposed to approve conditionally the contingency measures element of the Sacramento Metro Area Ozone SIP as meeting the requirements of CAA sections 172(c)(9) and 182(c)(9) for RFP and attainment contingency measures. Our proposed approval was based on commitments by the Districts and CARB to supplement the element through submission, as a SIP revision within one year of our final conditional approval action, of new or revised rules with more stringent requirements sufficient to produce near to one year's RFP if an RFP milestone is not met, as well as continuing emission reductions from State mobile source control measures. 21

Please see our proposed rule and the docket for more information concerning the background of this final action and for a detailed discussion of the rationale for approval or conditional approval of the above-listed elements of the Sacramento Metro Area Ozone SIP.

The public comment period on the proposed rule opened on October 29, 2020, the date of its publication in the Federal Register , and closed on November 30, 2020. During this period, the EPA received one comment letter submitted by Air Law for All on behalf of the Center for Biological Diversity and the Center for Environmental Health (collectively referred to as “CBD” herein). Before we provide a detailed summary of and response to each of these comments in Section II.B, we provide a brief review of ozone chemistry and terminology as it relates to our responses to comments concerning the Plan's use of NO X substitution and the NO X -limited conditions in the Sacramento Metro Area.

As explained in the proposed rule, ground-level ozone pollution is formed from the reaction of volatile organic compounds (VOCs) and NO X in the presence of sunlight. When VOC is abundant compared to NO X , i.e., when there is a high ratio of VOCs relative to NO X (“VOC:NO X ratio”), NO X is a limiting ingredient for ozone formation, and reducing NO X emissions causes ozone to decrease. An area with these conditions may be described as “NO X -limited,” which is the terminology used in this notice. Elsewhere, “NO X -limited” is sometimes used in a stronger, relative sense to mean that NO X emissions reductions are more effective than VOC reductions at reducing ozone, and an area may be described as “NO X -limited” or “VOC-limited” as a shorthand for whether NO X or VOC emissions reductions are more effective at reducing the area's ozone design value. 22 In contrast, in a “NO X -saturated” area where NO X is abundant compared to VOC, i.e., when there is a low VOC:NO X ratio, ozone concentrations typically increase with NO X emission reductions, that is, there is a “NO X disbenefit.”  23 Between the NO X -limited and NO X -saturated ozone chemistry regimes, there is an intermediate “transitional” regime where ozone responds weakly to NO X emissions reductions. Which one of these three chemical regimes exists for an area can depend on the season, time of day, and the area's location relative to a source of NO X emissions. As one moves farther downwind from an urban center, ozone formation tends to become more NO X -limited, as the VOC:NO X ratio increases. While there are continued VOC emissions in rural areas, there are fewer new NO X emissions from combustion sources, and some NO X deposits out of the atmosphere (in the form of HNO 3 ); as a result, peak ozone hours and downwind locations are more NO X -limited than non-peak hours and upwind or central locations. 24 When an area reduces NO X emissions more than VOC emissions, the VOC:NO X ratio increases and the area can transition from NO X -saturated to NO X -limited conditions. In general, areas in the United States have become more NO X -limited over time, though NO X -saturated areas and seasons remain. 25

NO X is emitted primarily in the form of nitric oxide (NO), which becomes nitrogen dioxide (NO 2 ) as it converts or “titrates” ozone (O 3 ) to regular oxygen (O 2 ). Therefore, the initial effect of a NO X emissions increase can be to decrease ozone immediately downwind of a NO X source, such as downtown metropolitan areas or a large fossil fuel burning power plant. 26 Farther downwind from the NO X source, however, the NO X can increase ozone, via reactions with VOC. Conversely, the initial effect of a NO X emissions reduction, which is mainly a NO reduction, can be to increase ozone immediately downwind from the NO X source because there is less remaining NO to titrate ozone to oxygen. Because of this phenomenon, it may be impossible for an area to be “NO X -limited” at all locations, at least with respect to a given change in NO X emissions occurring just upwind of a given location or monitor. Titration can occur under any ozone chemistry regime whether NO X -saturation, NO X -transitional, or NO X -limited.

To summarize, under certain conditions, NO X emissions can reduce existing ozone concentrations in nearby downwind areas through titration and can interfere with the formation of ozone in NO X -saturated areas. Reducing NO X emissions can lessen these effects and lead to ozone increases. Reducing NO X by a larger amount can, however, change the ozone chemistry from NO X -saturated to NO X -limited, meaning that NO X emission reductions can again result in reduced ozone. The overall effect of NO X emissions on an area's ozone chemistry depends on the location's existing mix of ozone and VOCs, as well as the location relative to the source of NO X emissions.

Comment #1: CBD notes that CAA section 182(c)(2)(C) allows a state to substitute NO X emissions reductions for the VOC reductions otherwise required by CAA section 182(c)(2)(B) (“NO X substitution”) if it demonstrates that the combined VOC and NO X reductions “would result in a reduction in ozone concentrations at least equivalent” to the reduction in ozone concentrations achieved through VOC emissions reductions alone. CBD argues that CAA section 182(c)(2)(C)'s use of the plural “ozone concentrations” means that an equivalency demonstration at a single monitoring site would be insufficient, and therefore asserts that Congress intended the equivalence requirement to apply throughout the nonattainment area. CBD interprets statements in the proposal that the Sacramento Metro Area is NO X -limited to indicate that the EPA agrees that equivalence must be demonstrated throughout the nonattainment area and says that the EPA must confirm this understanding in a final rule.

Response to Comment #1: The EPA disagrees that CAA section 182(c)(2)(C)'s use of the term “ozone concentrations” warrants the commenter's narrow interpretation that equivalence must be specifically demonstrated throughout a nonattainment area. As an initial matter, we note that the Act commonly uses the term “concentrations” to refer generally to ambient pollution levels at one or more (but not necessarily multiple) monitors or locations. 27 Moreover, CAA section 182(c)(2)(C) grants the EPA discretion to define the conditions under which NO X reductions may be substituted for or combined with VOC reductions “in order to maximize the reduction in ozone air pollution” and does not further specify the conditions that represent an “equivalent” reduction in ozone; for instance, it does not require a specific concentration test at every monitor or at specific locations within an area. No such requirement appears in the Act's other provisions governing the RFP demonstration, which define specific percentage reductions aimed at ensuring timely attainment of the NAAQS, 28 or in the EPA's 1993 NO X Substitution Guidance, which describes a recommended procedure for states to utilize NO X substitution. 29 We interpret CAA 182(c)(2)(C) and these supporting authorities as properly reflecting Congress' intent to allow NO X reductions to be considered within an RFP demonstration so long as these reductions are at least as effective in reducing ozone consistent with the area's demonstration of timely attainment. 30

Also, we disagree with the commenter's assertion that statements from the proposed rule describing the Sacramento Metro Area as NO X -limited convey the EPA's position that NO X substitution requires a specific demonstration of equivalence throughout all portions or monitors within a nonattainment area. As described in our proposed rule and discussed further in our responses below, NO X -limited conditions likely persist throughout the Sacramento Metro Area, suggesting that NO X reductions will generally be effective in reducing ozone concentrations; with these statements, we intended no other suggestion regarding the demonstration necessary to support NO X substitution. The EPA evaluates the appropriateness of NO X substitution on a case-by-case basis, 31 considering the balance of available evidence to support the efficacy of NO X reductions in reducing ambient ozone concentrations as necessary for timely attainment, and consistent with the requirements of CAA section 182(c)(2)(C).

In some areas, NO X emissions reductions may be needed for attainment, even though it may not be possible to decrease ozone concentrations simultaneously at all locations in the short term. For example, in some NO X -limited areas, reducing NO X emissions may represent the most effective or only approach to timely attainment, but may nonetheless generate temporary ozone increases in some locations due to NO X titration or local NO X -saturated conditions. In these areas, we believe it is reasonable to implement NO X reductions in lieu of some portion of the VOC emissions reductions otherwise required for RFP as part of an area's strategy for timely NAAQS attainment and notwithstanding limited short-term increases, as an alternative to pursuing relatively ineffective VOC controls. We discuss conditions for the Sacramento Metro Area in detail below, including the relative importance and efficacy of NO X reductions for attainment.

Comment #2: CBD comments that the Plan's evidence is equivocal and insufficient to show that NO X substitution will result in equivalent reductions in ozone concentrations throughout the nonattainment area. According to the commenter, the Plan's analysis of the “weekend effect” in the years 2000-2014 shows a shift to more NO X -saturated conditions in the Western and Central subregions of the Sacramento Metro Area and more transitional conditions in the Eastern region, and this is not inconsistent with the independent study of conditions in the years 2001-2007 cited by the EPA. CBD says that this evidence is insufficient for the EPA to rationally conclude that the entire nonattainment area is currently NO X -limited, and that, at most, it can only be concluded that the Eastern region is still NO X -limited. Furthermore, CBD says that the EPA must consider changes in NO X emissions occuring by 2024, such as the replacement of natural gas power plants by less NO X -emitting sources, to determine whether the entire Sacramento Metro Area will be NO X -limited through 2024.

The commenter characterizes the Plan's evidence as qualitative, rather than quantitative. The commenter states that a qualitative analysis does not address the possibility that NO X reductions could change the characteristics of the area and argues that the definition of the word “equivalent” as used in CAA section 182(c)(2)(C) requires a quantitative analysis, such as photochemical grid modeling. The commenter notes that the Plan uses photochemical grid modeling to analyze ozone sensitivity to NO X reductions in the context of the attainment demonstration. CBD then states that this modeling analysis is insufficient to support the Plan's conclusion that the entire area is NO X -limited or to show equivalence throughout the nonattainment area because the Plan includes one isopleth diagram only for the Folsom monitoring site in the Eastern subregion. 32

According to the commenter, approving NO X substitution based on a demonstration of equivalence at only one monitor or subregion is arbitrary for two reasons, even if it does not cause other monitors to exceed the 2008 ozone NAAQS. First, it may cause, or interfere with resolving, violations of the more protective 2015 ozone NAAQS in NO X -saturated areas (which the commenter says would violate CAA section 110(l)). Second, increased ozone levels, even below the NAAQS, may still result in injury to public health and welfare.

Response to Comment #2: The EPA disagrees that the Plan's evidence is insufficient to support the use of NO X substitution under CAA section 182(c)(2)(C). As discussed in our response to Comment 1, use of NO X substitution within an RFP demonstration does not require establishing equivalent reductions in ozone concentrations throughout the nonattainment area. As discussed in detail below, the Plan shows that, overall, the area has transitioned from NO X -saturated to NO X -limited as NO X emissions have declined, and that NO X reductions are more effective than VOC reductions on a percentage basis. Consistent with these conditions, the Sacramento Metro Area has relied on, and continues to rely on, NO X reductions to demonstrate attainment. While decreases in ozone concentrations may have been delayed initially at some locations because of the location-specific and complex behavior of NO X in ozone formation, Sacramento Metro Area ozone design values have shown a general downward trend at all monitors from 1990 to the present, demonstrating that these locations have not experienced the increased ozone design values of concern to the commenter, and that the Plan demonstrates timely attainment of the NAAQS at all locations. For these reasons and as addressed below, we find that the Plan provides adequate evidence and justification for its use of NO X substitution.

As we discussed in the proposed rule and our accompanying technical support document, the State concludes that NO X reductions are more effective than VOC reductions throughout the Sacramento Metro Area. 33 The State supports this conclusion with modeling and monitoring of weekday-weekend differences in ozone formation and citations to published research papers that study these differences and the response to NO X reductions in detail, as described below. The State estimates weekday-weekend differences in ozone concentrations using the Community Multiscale Air Quality (CMAQ) photochemical model as part of the air quality model's performance evaluation for the 2012 base year, in conjunction with the attainment demonstration. As described in the Plan, in the early 2000's the western region of the Sacramento Metro Area exhibited a “weekend effect,” in which weekend ozone concentrations were higher despite having lower NO X emissions, suggesting a NO X disbenefit at that time. 34 The modeling results in the Plan show that the average daily maximum ozone concentrations at all monitoring sites are higher on weekdays, indicating that maximum ozone concentrations are lower when NO X emissions are lower, and that peak ozone formation is NO X -limited, at all monitoring sites. This is illustrated in Figure 14 from Appendix B-4 of the 2017 Sacramento Regional Ozone Plan, which shows average modeled 2012 weekday-weekend ozone concentrations above a 1:1 line, i.e., higher weekday concentrations, for all monitoring sites in each subregion in the nonattainment area (Western, Central, and Eastern).

In addition, the modeled differences in ozone concentrations are generally consistent with the monitored ambient concentrations. 35 Monitored ozone concentrations included in the Plan for each year from 2000 to 2014 generally progressed from a NO X disbenefit, i.e., higher weekend concentrations, to a NO X -limited or transitional regime, i.e., weekend concentrations lower than or about the same as weekday concentrations. 36 The Eastern subregion has shown higher concentration on weekdays than on weekends for the entire period, i.e., no “weekend effect”; this is evidence that ozone formation is NO X -limited there. By 2014, the Western and Central subregions of the Sacramento Metro Area show nearly identical weekday and weekend concentrations, suggesting these areas had shifted to a transitional regime by that time. 37 For the Western subregion, the Plan notes that the shift toward transitional conditions occurred at ozone levels under 50 parts per billion (ppb), well below the 2008 ozone NAAQS of 75 ppb, meaning that these changes are not leading to NAAQS exceedances. Indeed, monitoring sites in the Western subregion have met the 75 ppb NAAQS from 2011 to the present day. Within the Central subregion, ambient ozone data recorded for 2011-2014 show ozone levels under 70 ppb. 38

The Plan suggests that the shift to a transitional regime could be explained by natural year-to-year variability in biogenic VOC emissions and in local meteorology. 39 This is consistent with the relatively low level of biogenic VOC emissions during 2011-2014, 40 which would decrease the VOC:NO X ratio and shift the atmosphere toward a transitional ozone formation regime (though not necessarily all the way to NO X saturation). VOC emissions have also decreased steadily from 2000 to the present day, 41 and biogenic VOC emissions in the Sacramento Metro Area, while variable, are about ten times higher than those from anthropogenic sources. 42 Accordingly, the shift to smaller differences in weekday-weekend ozone concentrations seen in 2014 could be the result of natural variability in biogenic VOC emissions that causes some locations to be transitional or NO X -saturated on some days.

The Plan also suggests variability in meteorology as a factor in shifting ozone chemistry between NO X -limited and NO X -disbenefit regimes. 43 The Plan cites a research paper that examined the effect of temperature and found that “the average O 3 is higher on weekends than on weekdays only for the lowest temperature days.”  44 Natural annual variability also applies to the degree of pollutant carryover from one day to the next day; day-to-day carryover can mix weekday and weekend pollutants, making weekdays and weekends appear to be more similar. In addition, the NO X emissions reductions that have occurred from 2000 to the present day have decreased the difference between weekday and weekend NO X emissions, which would also decrease the differences in weekday and weekend ozone concentrations.

Although these plots of weekday-weekend ozone differences provide a useful indicator, they are not a definitive description of the ozone chemistry involved. The plots show only the resulting ozone concentrations, not any ozone precursors or meteorology whose interaction results in those concentrations. Furthermore, the weekday-weekend plots show just a single point for each monitor-year combination, the average over a year's summer days of daily maximum 8-hour ozone concentrations, rather than a point for each day. Ozone concentrations vary between the days of a single year, not just between years. A data point near the 1:1 line may indicate that weekday-weekend differences are small due to transitional chemistry on every individual day. Alternatively, it could indicate that positive differences balance out negative ones, due to a mix of high-ozone NO X -limited days and low-ozone NO X -saturated or transitional days. This would mean that NO X -saturated days with lower ozone concentrations and less regulatory and health significance would be masking NO X -limited days with higher ozone concentrations and greater significance. In the context of the analyses and evidence presented in the Plan, the smaller weekday-weekend differences in ozone concentrations in 2014 do not indicate a change in ozone chemistry that would suggest a control strategy failure or an unknown phenomenon. As the State explains, variability in biogenic VOC emissions and in meteorology provide an explanation for some locations being transitional or NO X -saturated on some days. We agree with the State that the weekday-weekend analyses support the conclusion that ozone formation in the Sacramento Metro Area is mainly in a NO X -limited regime, with some periods in a NO X -transitional regime, and that there is no disbenefit from NO X controls. Next, we review and present additional research evidence from the Plan that further supports our conclusion that the Sacramento Metro Area's ozone chemistry is NO X -limited.

To supplement the analysis of weekday-weekend conditions, the Plan cites several research and analysis papers examining daily and hourly concentrations of ozone, NO X , and VOC in the years prior to 2011, which support the conclusion that ozone formation in the Sacramento area is currently NO X -limited. Two related papers by Murphy et al., from 2006 and 2007, examine monitored data from 1998-2002 for the Central and Eastern subregions of the Sacramento Metro Area. 45 As described in these papers, the “weekend effect,” i.e., conditions in which ozone concentrations are higher on weekends, was observed for monitoring sites in the Sacramento Valley (corresponding to the Central subregion). 46 The researchers attributed this largely to NO X titration from mobile source emissions in urban Sacramento. 47 For the Mountain Counties of the Eastern subregion, the researchers found that weekday ozone concentrations were higher, consistent with NO X -limited conditions. 48 The researchers' analysis suggests that under conditions of high concentrations of ozone and precursors flowing in from other urban areas, NO X emission reductions of 50 percent or more would be needed to guarantee lower rates of ozone production in the Sacramento Valley portions studied, corresponding to the Central and Eastern subregions. 49 In comparison to this prospective analysis, NO X emissions in the Sacramento Metro Area have decreased by 58 percent between 2000 and 2015. Thus, the work of Murphy et. al., along with subsequent NO X emissions reductions, suggest that the full Sacramento Metro Area should currently be NO X -limited.

LaFranchi et al., 2011 examines monitored data from 2001-2007 for the Central and Eastern subregions. 50 These researchers found NO X -saturated conditions in the urban core, but mainly at lower temperatures and lower ozone concentrations, and determined that NO X emissions reductions were effective at reducing maximum ozone concentrations. 51 The researchers also found no evidence that NO X reductions have been detrimental to air quality. For example, the researchers found that the 30 percent decrease in NO X and other nitrogen photochemical products from 2001 to 2007 was “extremely effective in reducing the exceedance probability at all locations during the hottest days of the year” when increases in biogenic emissions result in more NO X -limited conditions. 52 Furthermore, the researchers note that:

Since NO X emissions examined in the Plan and today are now lower  54 than during the periods examined in these research papers, ozone formation is now expected to be within a more NO X -limited regime. As a result, current conditions are consistent with and fit the predictions in LaFranchi et al., that NO X emissions reductions decrease ozone concentrations in the Eastern subregion and more recently in the Central subregion; the possible exception being when ozone levels are already low, i.e., well below the 2008 NAAQS.

Overall, the State's evidence presented in the Plan suggests that NO X reductions are more effective than VOC reductions at decreasing ozone concentrations in the Sacramento Metro Area. For example, LaFranchi et al., observe that “the intensity of biogenic VOC emissions have made NO X emission reductions more effective than anthropogenic VOC emission reductions in the region, at least downwind of Del Paso [ i.e., within the Central and Eastern subregions].”  55 The Plan's ozone isopleth diagram for the Folsom monitor  56 also provides strong evidence that NO X emission reductions are more effective than VOC reductions. The State generated this diagram using photochemical grid modeling to simulate various combinations of NO X and VOC emissions reductions and plotting the resulting ozone concentrations for the Folsom monitor, the ambient ozone monitor with the highest ozone design value in the Sacramento Metro Area. The diagram shows a nearly horizontal slope of the isopleth lines, indicating that ozone formation in the Folsom area is much more responsive to NO X emission reductions than to VOC reductions. 57 As discussed in the proposed rule for this action, the EPA estimated from the ozone isopleth diagram in the Plan that ozone formation is about 14 times as sensitive to NO X reductions than to VOC reductions on a percentage basis, and about 24 times as sensitive on a tons-per-year basis. 58 Because the Plan demonstrates a shift to NO X -limited conditions throughout all subregions in the area through its review of relevant research and includes additional modeling evidence at the Folsom monitor to support the Plan's reliance on NO X emissions reductions to achieve attainment, we disagree with CBD that additional evidence is needed to support the use of NO X substitution under CAA section 182(c)(2)(C).

We also disagree with the commenter's assertion that our proposed approval does not consider emissions changes through 2024. The Folsom isopleth diagram that supports the Plan's comparison of pre-2015 monitored weekday-weekend data shows that NO X reductions are far more effective than VOC emissions based on 2026 emissions and including changes through and after 2024. 59 Furthermore, the changes in emissions through 2024 posited by the commenter would not alter the EPA's conclusion that NO X substitution is appropriate. Indeed, we anticipate that the replacement of NO X combustion sources with wind and solar electricity generation, as well as continuing mobile source NO X reductions through 2024 and beyond, will make the Sacramento Metro Area even more NO X -limited, thereby further strengthening the Plan's conclusions regarding the efficacy of NO X emissions reductions compared to VOC reductions.

The EPA also disagrees that an equivalence demonstration requires a quantitative analysis. Depending on the facts and circumstances of a given nonattainment area, analytical information that establishes equivalence may be quantitative or qualitative, or both. In this instance, some of the evidence relied upon could be termed qualitative, such as the shape of curves in the isopleth diagram. 60 The Plan's modeling and monitoring analyses, and the analyses used in the cited research papers, are predominantly quantitative, with qualitative aspects and some qualitative conclusions. Qualitative evidence can be just as useful as quantitative evidence. For NO X substitution to yield an equivalent ozone decrease, as required in CAA section 182(c)(2)(C), a demonstration is adequate if it shows that NO X reductions are more effective than VOC reductions—it does not need to quantify an exact amount by which these reductions are more effective.

We also disagree with CBD's suggestion that the overall geographic distribution of NO X and VOC emissions would be significantly affected by realistic and incremental changes in these emissions. Incremental changes resulting from the construction or closing of NO X point sources would not affect the preponderance of NO X emissions from mobile sources in the developed urban area, when compared to the lower NO X emissions in suburban and rural areas. These changes would also not significantly affect the reverse pattern of relatively more VOC emissions (from biogenic sources) in rural areas compared to urban areas. Such small changes in overall NO X or VOC emissions would merely affect the degree and amount by which NO X reductions are shown to be more effective than VOC reductions. Consequently, the EPA's overall conclusion that NO X substitution within the Plan meets the requirements of CAA section 182(c)(2)(C) remains unchanged.

Regarding CBD's concern that ambient ozone data from a single monitoring site is inadequate to demonstrate equivalency, we agree that this could be problematic in some circumstances but disagree that this is a problem for the Sacramento Metro Area, for two reasons. First, as discussed previously, in concluding that NO X emissions reductions are more effective than VOC reductions at reducing ozone, the State considered studies of ozone response at monitoring sites throughout the nonattainment area as part of the Plan. Second, the Plan demonstrates attainment at all monitoring sites, and its conclusion that NO X reductions are more effective than VOC for the site with the highest design value, i.e., the Folsom monitoring site, the “controlling” site for determining whether or not the NAAQS is attained in the Sacramento Metro Area, therefore ensures that NO X reductions will be effective in achieving ozone reductions that will help the nonattainment area toward attainment in all sub-regions. We anticipate that any increase in ozone concentrations that might result from NO X emission reductions would be only small, transient, and affect locations with ozone concentrations well below the NAAQS. These ozone increases would typically occur under low temperature conditions, with corresponding low ozone concentrations well below the NAAQS, not at elevated ozone concentrations that could affect public health or interfere with attainment of the 2015 ozone NAAQS. As noted above, ambient ozone data recorded in the Central subregion of the Sacramento Metro Area between 2011 and 2014 already show ozone levels under 70 ppb, the concentration that the EPA has established as the 2015 ozone NAAQS.

Concerning future air quality planning for the 2015 ozone NAAQS, the State has requested that the EPA reclassify the Sacramento Metro nonattainment area as a Serious nonattainment area, and the attainment plan for Serious areas is not yet due. The EPA has proposed to require that the State submit an attainment plan for the 2015 ozone NAAQS for the Sacramento Metro Area by August 3, 2022. 61 As proposed, this plan will be required to demonstrate, through photochemical grid modeling and other demonstrations, that all portions of the Sacramento Metro Area will attain the 2015 NAAQS by no later than August 3, 2027. Based on conditions in this area as described above and in the proposed rule and the Plan, we anticipate that NO X reductions, including those used to demonstrate attainment of the 2008 ozone NAAQS, will remain a critical piece of the State's control strategy to meet the 2015 ozone NAAQS. Accordingly, we disagree with CBD's assertion that the Plan's use of NO X substitution will interfere with attainment of the newer and more stringent ozone standards in the Sacramento Metro Area or violate CAA section 110(l).

Comment #3: CBD states that an equivalence demonstration should be as rigorous as an attainment demonstration; as such, an equivalence demonstration should be based on photochemical modeling or another equally rigorous technique. The commenter suggests that the State could compare modeled relative response factors (RRFs) for each RFP milestone year for the 3 percent per year VOC reductions to corresponding RRFs from the control strategy, or the State could use ozone isopleth diagrams together with conservative assumptions about the amount of allowable NO X substitution. The commenter acknowledges that section 182(c)(2)(C) does not explicitly prescribe the use of photochemical grid modeling or an equally rigorous method and argues that this does not mean that section 182(c)(2)(C) is worthy of a less rigorous demonstration. The commenter argues that Congress added the RFP provisions to the CAA in response to the EPA's failure to address ozone pollution under the general requirements for attainment demonstrations in subpart 1 of the CAA. The commenter states that, in any case, it would be arbitrary for the EPA to ignore the entire nonattainment area except for the isopleths at the Folsom monitor and the Eastern region weekend effect in assessing the equivalence demonstration.

Response to Comment #3: The EPA disagrees that an equivalence demonstration for purposes of CAA section 182(c)(2)(C) must be as technically rigorous as a NAAQS attainment demonstration. As the commenter notes, CAA section 182(c)(2)(C) does not require the use of photochemical grid modeling to demonstrate the relative effectiveness of NO X and VOC emissions reductions in reducing ozone concentrations, whereas CAA section 182(c)(2)(A) explicitly requires photochemical grid modeling or another equivalent analytical method as part of the attainment demonstration. Instead, Congress provided the EPA with discretion to evaluate state demonstrations supporting NO X substitution, and to define the conditions under which NO X substitution is appropriate “in order to maximize the reduction in ozone air pollution.”  62 We believe that this approach reflects an appropriate balance in the level of analysis required for demonstrating attainment by the attainment date, and for the supporting evaluation of the relative effectiveness of potential measures and reductions used to meet RFP milestones. Consequently, we disagree that a NO X equivalence demonstration for RFP purposes must reflect the same or equally rigorous analytical methods as used in the attainment demonstration. As discussed previously, a qualitative analysis may show that NO X reductions are more effective than VOC reductions and be adequate for purposes of allowing NO X substitution under section 182(c)(2)(C). As described above, we proposed to approve the RFP demonstration and its use of NO X substitution based on our analyses of the photochemical modeling results included in the attainment demonstration and the Folsom isopleth diagram, the other monitoring data from the Plan, and the research papers and analyses cited within. Collectively, these analyses and data show that NO X emissions reductions are effective at reducing ozone throughout the Sacramento Metro Area and are more effective than VOC reductions at bringing the area into attainment of the NAAQS. Accordingly, we support the Plan's use of NO X substitution.

Comment #4: CBD comments that the EPA has not demonstrated that the approval of NO X substitution complies with Executive Order 12898, which expresses the EPA's obligation to identify and address disproportionate impacts of its actions on minority populations and low-income populations, i.e., environmental justice (EJ) communities. The commenter asserts that because the EPA is not applying the NO X Substitution Guidance in evaluating the Plan's use of NO X substitution, it is exercising discretion, and should use this discretion to require the State to demonstrate equivalence at each monitoring site through photochemical modeling of the relevant scenarios. Furthermore, the commenter says that because the record does not support the EPA's conclusion that NO X substitution will result in equivalent reductions in ozone concentrations throughout the area, EJ communities may be disproportionately and adversely impacted by the EPA's action by experiencing fewer reductions in ozone than would be achieved through VOC reductions alone, or even ozone increases. The commenter suggests that the EPA could exercise discretion to disapprove the Plan on this basis, and that this disapproval could result in the EPA issuing a Federal implementation plan requiring additional emissions reductions to ensure equivalent reductions in ozone concentrations. The commenter states that it is not a sufficient response to say that approving the Plan will have no adverse impact to EJ communities because it improves the status quo by making State law federally enforceable. The commenter provides a map generated using CalEnviroScreen, showing EJ communities concentrated in the Central subregion where the commenter asserts that the Plan does not demonstrate equivalence.

Response to Comment #4: As explained in our previous responses, the EPA and the State have determined that NO X reductions are critical to the Sacramento Metro Area's attainment of the 2008 ozone NAAQS and we anticipate that any localized increase in ozone concentrations resulting from these NO X reductions would be minor, transitory, and occur well below the limits established by the NAAQS. Furthermore, we find that the Plan appropriately focuses on ozone reductions in the regions subject to the highest ozone concentrations, e.g., the eastern region and design value monitor at Folsom, where adverse health impacts are most likely to occur. In this context, we disagree that the use of NO X substitution is inappropriate even if it may generate disproportionate reductions in ozone concentrations within high ozone and NO X -limited areas.

Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations,” 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. 63 Given our conclusion that the Plan satisfies all applicable CAA requirements related to demonstrating expeditious attainment of the ozone NAAQS, including the requirements for RFP and NO X substitution, 64 we have no basis to conclude that this action will cause disproportionately high or adverse human health or environmental effects on any population, including any minority, low-income, or indigenous population. Under the CAA, the EPA is required to approve a SIP submission that satisfies the requirements of the Act and applicable Federal regulations, 65 and Executive Order 12898 does not provide an independent basis for disapproving such a SIP submission. The EPA remains committed, however, to working with CARB and the local air districts in the Sacramento Metro Area to ensure that the ozone attainment plans for this area satisfy CAA requirements for attainment and RFP and thereby protect all populations in the area, including minority, low-income, and indigenous populations, from disproportionately high or adverse air pollution impacts.

Comment #5: CBD comments that the proposed rule fails to acknowledge the EPA's NO X Substitution Guidance, and that the EPA should explicitly disavow the guidance and its justifications. The commenter says that there is no basis for this guidance and suggests that the EPA's prior use of the guidance may have caused increases in asthma, hospital and emergency room visits, and premature mortality. An appendix to the comments provides numerous comments directed at the NO X Substitution Guidance, asserting generally that this guidance contradicts CAA section 182(c)(2)(C) by recommending a procedure that fails to demonstrate any equivalence between VOC and NO X reductions, relies on incorrect policy assumptions, and gives legal justifications that are without merit.

Response to Comment #5: Our proposed approval of the Plan's use of NO X substitution is compatible with the NO X Substitution Guidance, which, while non-binding and not having the force of regulation, provides a recommended procedure for substituting NO X emission reductions for VOC reductions on a percentage basis, consistent with a state's ozone attainment plan, control strategy, modeled attainment demonstration, and RFP milestones and requirements. The NO X Substitution Guidance specifies that the EPA will review NO X substitution on a case-by-case basis and will generally approve reasonable NO X substitution proposals. 66 As noted in our proposed rule and described above, our approval of the State's reasonable use of NO X substitution is supported by local conditions and needs as documented in the modeling and analyses included in the Sacramento Metro Ozone SIP and is consistent with the requirements in CAA section 182(c)(2)(C). 67

To be clear, our action on the Plan is not intended to disavow or rescind any portion of the NO X Substitution Guidance. Comments relating solely to the NO X Substitution Guidance are outside the scope of this rulemaking action.

Comment #6: CBD argues that, because the Plan does not meet the requirements for RFP, the EPA cannot determine that the MVEBs are allowable as a portion of the total allowable emissions for demonstrating RFP. The commenter asserts that because there is no measure of total allowable emissions for RFP in the absence of an approvable plan, the EPA has no basis for approval of the MVEBs.

Response to Comment #6: For the reasons described above in our previous responses to comments, we have determined that the State's use of NO X substitution is appropriate and adequately supported within the Plan, consistent with the RFP and attainment demonstrations, and that the Plan's RFP demonstration is approvable. Consequently, we disagree with the commenter and their rationale suggesting that our approval of the MVEBs is inappropriate.

Comment #7: CBD challenges the EPA's proposed conditional approval of the contingency measures as arbitrary and capricious and contrary to law, based on CAA requirements and interpreting case law. The commenter asserts that the EPA must disapprove the contingency measures.

Response to Comment #7: As explained in the proposed rule, our proposed conditional approval of the State's RFP and attainment contingency measures was based on commitments from the State and Districts in the context of additional emissions reductions in the RFP milestone years and in the year following the attainment year. Following publication of the proposed rule, the Ninth Circuit Court of Appeals issued a decision in Association of Irritated Residents v. U.S. Environmental Protection Agency, which remanded the EPA's conditional approval of contingency measures for another California nonattainment area. 68 Based on this decision, we are not finalizing our proposed conditional approval of the Plan's contingency measures at this time. Consequently, CBD's comments on this issue are outside the scope of this final action and we are not providing specific responses to these comments.

For the reasons discussed in detail in the proposed rule and summarized herein, under CAA section 110(k)(3), the EPA is taking final action to approve as a revision to the California SIP the following portions of the Sacramento Metro Area Ozone SIP, as provided within the 2017 Sacramento Regional Ozone Plan and the Sacramento Metro portion of CARB's 2018 SIP Update:

• The base year emissions inventory element in the 2017 Sacramento Regional Ozone Plan meets the requirements of CAA sections 172(c)(3) and 182(a)(1) and 40 CFR 51.1115 for the 2008 ozone NAAQS;

• The RACM demonstration element in the 2017 Sacramento Regional Ozone Plan meets the requirements of CAA section 172(c)(1) and 40 CFR 51.1112(c) for the 2008 ozone NAAQS;

• The attainment demonstration element for the 2008 ozone NAAQS in the 2017 Sacramento Regional Ozone Plan meets the requirements of CAA section 182(c)(2)(A) and 40 CFR 51.1108;

• The ROP demonstration element in the 2017 Sacramento Regional Ozone Plan meets the requirements of CAA 182(b)(1) and 40 CFR 51.1110(a)(2) for the 2008 ozone NAAQS;

• The RFP demonstration element in Section V—SIP Elements for the Sacramento Metropolitan Area of the 2018 SIP Update (as clarified) meets the requirements of CAA sections 172(c)(2), 182(b)(1), and 182(c)(2)(B), and 40 CFR 51.1110(a)(2)(ii) for the 2008 ozone NAAQS;

• The VMT emissions offset demonstration element in the 2017 Sacramento Regional Ozone Plan meets the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1102 for the 2008 ozone NAAQS; and

• The motor vehicle emissions budgets in Section V—SIP Elements for the Sacramento Metropolitan Area of the 2018 SIP Update for the RFP milestone year of 2023, and the attainment year of 2024 are consistent with the RFP and attainment demonstrations for the 2008 ozone NAAQS, and the budgets meet the other criteria in 40 CFR 93.118(e). In approving the budgets, we are also finding them adequate for use in transportation conformity determinations, consistent with 40 CFR 93.118(f)(2).

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

On September 20, 2019, 1 the EPA proposed to approve the following rule into the California SIP. Table 1 lists the rule addressed by this final action with the dates that it was adopted by the local air agency and submitted to the EPA by the California Air Resources Board (CARB or “the State”).

The SIP previously contained a version of Rule 1325 “Federal PM 2.5 New Source Review Program,” approved into the SIP on November 30, 2018. 2 The EPA's final approval of the rule identified above in Table 1 has the effect of entirely superseding our prior approval of the same rule in the current SIP-approved program.

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 received one non-germane comment and one adverse comment. The full text of both comments is available in the docket for this rulemaking. Below, we summarize the adverse comment and our response.

Comment: The commenter stated that the definition of Volatile Organic Compounds (VOC) as referenced in Rule 1325 does not comport with the definition in 40 CFR 51.100. The definition of VOC in Rule 1325 points to the term as it is defined in SIP-approved SCAQMD Rule 102, which defines VOC as “any volatile organic compound of carbon, excluding methane, carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, ammonium carbonate, and exempt compounds.” The list of “exempt compounds” in Rule 102 has not been updated since 2004 and thus is out of compliance with the federal definition.

Response: Since the publication of our proposed action to approve Rule 1325, the SCAQMD amended Rule 102 on January 10, 2020 and the California Air Resources Board submitted the amended version of SCAQMD Rule 102 to the EPA for incorporation into the SIP on September 16, 2020. On July 9, 2021, 3 the EPA took final action to approve amended SCAQMD Rule 102 into the SIP based, in part, on our determination that the amended definition is consistent with the federal definition in 40 CFR 51.100. The EPA's approval of SCAQMD Rule 102 corrected the deficiency identified by the commenter. Accordingly, the EPA is finalizing our action on SCAQMD Rule 1325 as proposed.

As explained above, the SCAQMD and the EPA have taken all steps necessary to address the deficiency identified by the commenter. We find that SCAQMD Rule 1325 fulfills all relevant CAA requirements. As authorized in section 110(k)(3) of the Act, the EPA is fully approving Rule 1325 into the SCAQMD portion of the California SIP. The January 4, 2019 version of Rule 1325 will replace the previously approved version of the rule in the SIP.

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 finalizing the incorporation by reference of the rule listed in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available electronically 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).

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

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

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

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

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

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).

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. The 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 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 December 21, 2021. 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)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

On August 10, 2021 (86 FR 43615), the EPA proposed to approve the following rules into the California SIP.

We proposed to approve these rules because we determined that they comply with the relevant CAA requirements. Our proposed action contains more information on the rules and our evaluation.

The EPA's proposed action provided a 30-day public comment period. During this period, we received one non-germane comment.

No comments were submitted that change our assessment of the rules as described in our proposed action. The revisions to Rule 67.6.1 cure the deficiency identified in our partial disapproval of SDAPCD's 2016 reasonably available control technology (RACT) SIP  1 with respect to the requirement to establish RACT-level controls for sources covered by the “Control Techniques Guidelines for Industrial Cleaning Solvents”  2 (“CTG”), and addresses our obligation to promulgate a Federal Implementation Plan for this CTG source category associated with our partial disapproval of the District's 2016 RACT SIP. 3 Additionally, the District revised Rule 67.6.2 to increase the stringency to qualify for an exemption to the rule. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is fully approving these rules into the California SIP. The February 10, 2021 versions of Rule 67.6.1 and Rule 67.6.2 will replace the previously approved versions of these rules in the SIP.

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 finalizing the incorporation by reference of the SDAPCD rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and 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 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);

• 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; and

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

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).

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. The 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 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 December 21, 2021. 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:

Regulations governing the Atlantic bluefish fishery are found in 50 CFR 648.160 through 648.167. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through Florida. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.162, and the final 2021 allocations were published on December 16, 2020 (85 FR 81421).

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

New Jersey is transferring 30,000 lb (13,608 kg) to Rhode Island, and Maryland is transferring 30,000 lb (13,608 kg) to North Carolina through mutual agreement of the states. These transfers were requested to ensure that Rhode Island and North Carolina would not exceed their 2021 state quota. The revised bluefish quotas for 2021 are: New Jersey, 290,082 lb (131,579 kg); Rhode Island, 253,434 lb (114,955 kg); Maryland 53,084 lb (24,078 kg); and, North Carolina, 957,377 lb (434,259 kg).

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

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

The 2021 total allowable catch (TAC) of Pacific ocean perch in the Western Regulatory Area of the GOA is 1,643 metric tons (mt) as established by the final 2021 and 2022 harvest specifications for groundfish of the GOA (86 FR 10184, February 19, 2021).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2021 TAC of Pacific ocean perch in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,535 mt, and is setting aside the remaining 108 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific ocean perch in the Western Regulatory Area of the GOA.

While this closure is in effect the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

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

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of directed fishing of Pacific ocean perch in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 18, 2021.

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