This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This final rule is issued under Marketing Order No. 987, as amended (7 CFR part 987), regulating the handling of domestic dates produced or packed in Riverside County, California. Part 987, (referred to as the “Order”), is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Committee locally administers the Order and is comprised of producers and producer-handlers operating within the area of production.

The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This final rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. The Agricultural Marketing Service (AMS) has determined that this rule is unlikely to have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, California date handlers are subject to assessments. Funds to administer the Order are derived from such assessments. The assessment rate is applicable to all assessable dates for the 2020-21 crop year, and will continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act (7 U.S.C. 608(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

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

This rule increases the assessment rate from $0.15 per hundredweight, the rate that was established for the 2018-19 and subsequent crop years, to $0.20 per hundredweight of dates handled for the 2020-21 and subsequent crop years. The Committee recommended the increased assessment rate to compensate for increasing administrative expenses. The higher assessment rate will provide sufficient funds to cover most of the 2020-21 crop year anticipated expenses, with the balance coming from other income and the Committee's financial reserve.

The Committee met on June 25, 2020, and unanimously recommended increasing the assessment rate from $0.15 per hundredweight to $0.20 per hundredweight to fund necessary administrative expenses and maintain a sufficient operating reserve. The assessment rate increase will provide sufficient funds to cover most of the Committee's 2020-21 crop year budgeted expenses, with the balance coming from other revenue sources and reserve funds.

The Committee estimates the 2020-21 domestic date crop to be 32,000,000 pounds (320,000 hundredweight), which is expected to generate $64,000 in assessment income at the $0.20 per hundredweight assessment rate. The Committee anticipates other income of approximately $5,000. Total income of $69,000, combined with $6,250 from the financial reserve, will provide enough funds to cover 2020-21 crop year budgeted expenditures. Reserve funds remaining at the end of the 2020-21 crop year are expected to be $28,750.

The Committee's budget for the 2020-21 crop year is estimated to be $75,250. The Committee's expenses include $47,000 for management, $19,250 for office administration, and $9,000 for the financial audit. In comparison, the previous crop year's total budget was $74,200, and the administrative expenses were $43,000, $21,200, and $10,000, respectively.

The assessment rate recommended by the Committee was derived by considering anticipated expenses, the expected volume of dates handled, and the amount of funds available in the operating reserve. Income derived from handler assessments of $64,000 (320,000 hundredweight assessed at a rate of $0.20 per hundredweight) will be adequate to cover most of the Committee's budgeted expenses of $75,250, with the balance covered from $5,000 in other income and $6,250 from reserve funds. After expending $6,250, the ending 2020-21 crop year balance in the financial reserve is expected to be $28,750, which would be less than the average of the annual expenses of the preceding five years as mandated by § 987.72(d).

The assessment rate established by this rule will continue in effect indefinitely unless modified, suspended, or terminated by USDA upon recommendation and information submitted by the Committee or other available information.

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

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

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

There are approximately 70 date producers in the production area and 11 date handlers subject to regulation under the Order. The Small Business Administration defines small agricultural producers as those having annual receipts of less than $1,000,000, and small agricultural service firms as those whose annual receipts are less than $30,000,000. (13 CFR 121.201)

According to the National Agricultural Statistics Service (NASS), data for the most-recently completed crop year (2019) shows that the producer price for fresh market California dates was $4,130 per ton. With the estimated 16,000-ton crop, the total farm gate value for California date producers was approximately $66,080,000 (16,000 times $4,130). Therefore, the average fresh market date revenue for the 70 producers within the production area is approximately $944,000 ($66,080,000 divided by 70). Thus, assuming a normal bell-curve distribution of receipts among producers, AMS estimates the majority of producers would qualify as small businesses under the SBA definition.

Furthermore, USDA Market News reported an average terminal market price of $50.88 per 11-pound carton for the 2019-20 crop year. With approximately 32,000,000 pounds handled, the industry would have shipped an estimated 2,909,091 11-pound cartons (32,000,000 divided by 11) of packaged dates for a total value of $148,014,550 (2,909,091 times $50.88). With 11 date handlers within the production area, the average revenue per handler is estimated to be $13,455,868 for the 2019-20 crop year ($148,014,550 divided by 11). Thus, most California date handlers would be considered small businesses under the SBA definition.

This final rule increases the assessment rate collected from handlers for the 2020-21 and subsequent crop years from $0.15 to $0.20 per hundredweight of dates handled. The Committee unanimously recommended 2020-21 crop year expenditures of $75,250 and an assessment rate of $0.20 per hundredweight of dates, which is $0.05 higher than the rate currently in effect. The quantity of assessable dates for the 2020-21 crop year is estimated to be 32,000,000 pounds (320,000 hundredweight). The $0.20 per hundredweight assessment rate is expected to provide $64,000 in assessment income. Income derived from handlers' assessments, plus $5,000 of other income and $6,250 from the Committee's authorized reserve, will be adequate to cover the Committee's budgeted expenses for the 2020-21 crop year.

The total budget recommended by the Committee for the 2020-21 crop year is $75,250, compared to $74,200 for the 2019-20 crop year. The Committee recommended the higher assessment rate to fully fund ongoing program expenses without depleting its operating reserve.

The income generated from the higher assessment rate, combined with other income and a small amount from the financial reserve, will be sufficient to cover anticipated 2020-21 expenses and to maintain a financial reserve within the limit specified by the Order.

Section 987.72(d) states that the Committee may maintain an operating monetary reserve not to exceed the average of one year's expenses incurred during the most recent five preceding crop years, except that an established reserve need not be reduced to conform to any recomputed average. The Committee estimated that funds in its reserve were approximately $35,000 at the beginning of the 2020-21 crop year. It expects to utilize $6,250 of the reserve during the year, leaving a reserve of approximately $28,750 to start the 2021-22 crop year, which would be within the limit specified in the Order.

The Committee reviewed and unanimously recommended 2020-21 crop year expenditures of $75,250. The Committee considered several factors before making its recommendation, including the size of the anticipated 2020-21 crop, the Committee's estimated 2020-21 reserve carry-in, other sources of income, and its anticipated expenses. Further, the Committee considered several alternative expenditure levels and assessment rates, including not changing the assessment rate or adjusting expenses. Ultimately, the Committee recommended the $0.20 per hundredweight assessment rate to fund the program's expenses and maintain its reserve at a reasonable level.

A review of historical and preliminary information pertaining to the upcoming crop year indicates that the producer price for the 2020-21 crop year is estimated to be $201.50 per hundredweight of dates. Utilizing that price, the estimated crop size, and the $0.20 per hundredweight assessment rate, the estimated assessment revenue for the 2020-21 crop year as a percentage of total producer revenue is approximately 0.1 percent ($0.20 per hundredweight divided by $201.50 per hundredweight).

This action increases the assessment obligation imposed on handlers. While assessments impose some additional costs on handlers, the costs are minimal and uniform on all handlers. Some of the additional costs may be passed on to producers. However, these costs are offset by the benefits derived by the operation of the Order. In addition, the Committee meetings were widely publicized throughout the California date industry. All interested persons were invited to attend the meetings and encouraged to participate in Committee deliberations on all issues. The June 25, 2020 Committee meeting was a virtually held public meeting and all entities, both large and small, were able to express views on this issue. Interested persons were invited to submit comments on the proposed rule, including the regulatory and information collection impacts of this action on small businesses.

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

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

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

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

A proposed rule concerning this action was published in the Federal Register on August 26, 2021 (86 FR 47599). Copies of the proposal were provided by the Committee to members and handlers. Finally, the proposed rule was made available through the internet by USDA and the Federal Register . A 15-day comment period ending September 10, 2021, was provided to allow interested persons to respond to the proposal. No comments were received. Accordingly, no changes will be made to the rule as proposed.

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

After consideration of all relevant material presented, including the information and recommendation submitted by the Committee and other available information, it is hereby found that this rule will tend to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, 7 CFR part 987 is amended as follows:

Section 104(b)(1)(B) of the CPSIA, also known as the Danny Keysar Child Product Safety Notification Act, requires the Commission to promulgate consumer product safety standards for durable infant or toddler products. The law requires these standards to be “substantially the same as” applicable voluntary standards or more stringent than the voluntary standards if the Commission concludes that more stringent requirements would further reduce the risk of injury associated with the product.

The CPSIA also sets forth a process for updating CPSC's durable infant or toddler standards when the voluntary standard upon which the CPSC standard was based is changed. Section 104(b)(4)(B) of the CPSIA provides that if an organization revises a standard that has been adopted, in whole or in part, as a consumer product safety standard under this subsection, it shall notify the Commission. In addition, the revised voluntary standard shall be considered to be a consumer product safety standard issued by the Commission under section 9 of the Consumer Product Safety Act (CPSA) (15 U.S.C. 2058), effective 180 days after the date on which the organization notifies the Commission (or such later date specified by the Commission in the Federal Register ) unless, within 90 days after receiving that notice, the Commission notifies the organization that it has determined that the proposed revision does not improve the safety of the consumer product covered by the standard and that the Commission is retaining the existing consumer product safety standard.

On March 10, 2014, the Commission published a final rule issuing a standard for carriages and strollers that incorporated by reference the standard in effect at that time, ASTM F833-13b, with a modification to address potential hazardous openings created by adjustable grab bar/tray and foot rest configurations. 79 FR 13208. The standard was codified in the Commission's regulations at 16 CFR part 1227. There have been several revisions to the ASTM standard. On June 9, 2016, the Commission incorporated by reference ASTM F833-15, as the mandatory standard for carriages and strollers. 81 FR 37128. On August 2, 2019, the Commission incorporated by reference ASTM F833-19, as the mandatory standard for carriages and strollers. 84 FR 37763. ASTM F833-19 is the current mandatory standard incorporated by reference in 16 CFR part 1227.

On August 19, 2021, ASTM notified CPSC that it had revised the voluntary standard for carriages and strollers, approving ASTM F833-21 on June 15, 2021. 1 As discussed in this preamble, based on CPSC staff's review of ASTM F833-21, the Commission will allow the revised voluntary standard to become the mandatory standard because the revised requirements in the voluntary standard either improve the safety of carriages and strollers, or are safety neutral. Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F833-21 will become the mandatory consumer product safety standard for carriages and strollers on February 15, 2022. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates 16 CFR part 1227 to incorporate by reference the revised voluntary standard, ASTM F833-21.

The ASTM standard for carriages and strollers establishes performance requirements, test methods, and labeling requirements to address hazards to children associated with carriages and strollers including stability, brakes, restraint systems, latches and folding mechanisms, structural integrity, cords, wheel detachments, and entrapment. ASTM has revised the ASTM F833-19 voluntary standard for carriages and strollers. On June 15, 2021, ASTM approved a revised version, ASTM F833-21, which was published in August 2021. This section describes the changes in ASTM F833-21. The 2021 revision contains editorial, non-substantive changes, as well as several substantive changes to improve the requirements. We summarize the differences and the CPSC's assessment of the revisions below.

ASTM F833-19 Section 4.1 specifies that testing be conducted “on a concrete floor that shall be covered with 1/8 -in. (3-mm) thick vinyl floor covering, unless test instructs differently.” ASTM F833-21 replaces, in section 4.1, the word “shall” with “may,” allowing for testing on the originally specified surface, or on an uncovered concrete floor. This change applies to all carriages and stroller tests, except parking brake testing (Section 7.6), which is conducted on a horizontal test surface covered with 60 grit sandpaper, and wheel detachment from axle testing (Section 7.13.1), which is conducted on a table.

CPSC staff assessed the effect of the new test surface requirement and found that the allowing for testing on the originally specified surface, or on an uncovered concrete floor, did not have an impact on test results. Staff concluded that the allowance for an uncovered concrete floor test surface in addition to the current concrete floor covered with 1/8 -inch-thick vinyl floor test surface does not affect the safety of carriages and strollers, because test results should be the same on either surface. In addition, staff determined that the revised language would be consistent with other ASTM juvenile product standards. Based on staff's assessment, the Commission concludes that the new test surface requirement is neutral with respect to the safety of carriages and strollers.

ASTM F833-19 provided the impact test in Section 6.7.1 with its corresponding test method in Section 7.11, and the head entrapment requirement in Section 6.10 with its test method in 7.18. However, these sections were not included in the summary list of requirements that apply to a combination unit of a car seat on a stroller in Section 6.6.1. ASTM F833-21 now adds references to Section 6.7.1 and Section 6.10, as well as their corresponding test methods, to the list of requirements in Section 6.6.1. Section 6.7.1 applies to a “combination unit of a car seat on a carriage, stroller, or convertible carriage/stroller” and Section 6.10 applies to a “combination unit of a rear-facing car seat on a stroller or convertible carriage/stroller.” Staff's review showed that the additions to the list of requirements that apply to a combination unit of a car seat on a stroller in Section 6.6.1 is neutral with respect to safety and does not affect the safety of carriages and strollers, because there are no changes to the requirements, test methods, or category of product to which they apply. This addition simply restates the requirements with which a combination unit of a car seat on a stroller must conform. Based on staff's assessment, the Commission concludes that the addition of the references is neutral to the safety of carriages and strollers.

ASTM F833-19 section 6.1.3 specifies that “[e]ach parking brake shall be constructed so that it cannot be disengaged by the child within the unit when the child is secured in the unit in accordance with the instructional literature.” ASTM F833-21 replaces this text and adds three alternative test methods in new sections 6.3.1.1, 6.3.1.2, and 6.3.1.3, for evaluating the parking brake release mechanism for each seating position of the product as follows:

• Section 6.3.1.1: Each parking brake mechanism is outside of the access zone, which is defined as: The volume above the seat within a 21.7-inch radius from the mid-point of the junction line on the uncompressed upper surface of the seat unit and extending 21.5 inches to each side (as shown in Figure 7 of ASTM F833-21) and a 2-inch band extending inward from each side of the seat/leg rest edge and downward for 5.9 inches from the uncompressed upper surface of the seat (as shown in Figure 8 of ASTM F833-21). The space located behind the backrest is excluded from the parking brake access zone for single-occupant strollers but is included for multi-occupant product configurations if it enters another parking brake access zone.

• Section 6.3.1.2: The parking brake release mechanism consists of one single-action release mechanism that shall not be released when a force of 10 lbf (45 N) or a torque of 3 lbf-in. (0.34 Nm) is applied directly to the release mechanism in the direction tending to release it.

• Section 6.3.1.3: The parking brake release mechanism is a double-action release mechanism, which is defined in ASTM F833-21 as, “a release mechanism that requires either two consecutive actions, the first of which must be maintained while the second is carried out, or two separate and independent single-action locking mechanisms that must be activated simultaneously to fully release.”

Staff's review of ASTM F833-19, shows that existing section 6.1.3, which provides that “[e]ach parking brake shall be constructed so that it cannot be disengaged by the child within the unit” lacks specificity and fails to provide a test protocol or evaluation method. The assessment of whether a child can disengage the parking brake is currently left up to the testing laboratory's test personnel discretion, which could result in a lack of consistency and repeatability of testing between testing laboratories. Although staff is not aware of any incidents involving the child disengaging the parking brake, the potential for a child to disengage the parking brake is a foreseeable hazard. To address this hazard, ASTM F833-21 adds a test method that includes a defined access zone, a specific force and torque, and an evaluation of the mechanism that is based on similar testing used in other standards.

Staff's assessment of section 6.3.1.1 shows that this test improves the safety of the standard by defining an access zone, and accounting for products with multiple seats that may provide easier access to the parking brake mechanism. Staff's assessment of section 6.3.1.2 shows that this test improves safety by adding a force and torque requirement where there was none previously. Finally, staff's review of the section 6.3.1.3 shows that although the specific reference to a double-action release mechanism was added in this section, the definition for a double-action release mechanism has been in existence since the ASTM F833-13a version of the standard. Staff's assessment shows that the addition of this reference in this section improves safety by specifying the basis for evaluating the parking brake system. Based on staff's assessment, the Commission concludes that the addition of parking braking mechanism test methods improves the safety of carriages and strollers.

ASTM made minor formatting changes to the ASTM F833-21 including: (1) Renumbering figures to account for two new parking brake figures (Figures 7 and 8 of ASTM F833-21), (2) addition of hyphens to compound adjectives, (3) addition of units to the first value in range, and (4) revision of punctuation and spacing. The Commission finds that all the non-substantive changes made in ASTM F833-21 are neutral regarding safety for carriages and strollers because they are editorial in nature.

Based on CPSC's review of ASTM F833-21, the Commission will allow the revised standard to become the mandatory standard for carriages and strollers, without modification. This direct final rule updates 16 CFR part 1227 to incorporate by reference the revised voluntary standard, ASTM F833-21.

Section 1227.2 of the direct final rule incorporates by reference ASTM F833-21. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties, and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section B. Revisions to ASTM F833, of this preamble summarizes the major provisions of ASTM F833-21 that the Commission incorporates by reference into 16 CFR part 1227. The standard is reasonably available to interested parties. Until the direct final rule takes effect, a read-only copy of ASTM F833-21 is available for viewing on ASTM's website at: https://www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing on the ASTM website at: https://www.astm.org/READINGLIBRARY/. Interested parties can also schedule an appointment to inspect a copy of the standard at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: 301-504-7479; email: cpsc-os@cpsc.gov. Interested parties can purchase a copy of ASTM F833-21 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; phone; 610-832-9585; www.astm.org.

Section 14(a) of the Consumer Product Safety Act (CPSA; 15 U.S.C. 2051-2089) requires manufacturers of products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, to certify that the products comply with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program, or, for children's products, on tests of a sufficient number of samples by a third party conformity assessment body accredited by CPSC to test according to the applicable requirements. As noted, standards issued under section 104(b)(1)(B) of the CPSIA are “consumer product safety standards.” Thus, they are subject to the testing and certification requirements of section 14 of the CPSA.

Because carriages and strollers are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. Products subject to part 1227 also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA, 2 the phthalates prohibitions in section 108 of the CPSIA  3 and 16 CFR part 1307, the tracking label requirements in section 14(a)(5) of the CPSA, 4 and the consumer registration form requirements in section 104(d) of the CPSIA. 5

In accordance with section 14(a)(3)(B)(iv) of the CPSIA, the Commission has previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies for testing carriages and strollers (79 FR 13208 (March 10, 2014)). The NORs provided the criteria and process for our acceptance of accreditation of third party conformity assessment bodies for testing carriages and strollers to 16 CFR part 1227. The NORs are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies.” 16 CFR part 1112.

The revisions to ASTM F833-21 will not require any significant changes in the way that third party conformity assessment bodies test carriages and strollers. Therefore, the Commission considers existing CPSC-accepted testing laboratories that have demonstrated competence for testing in accordance with ASTM F833-19 will have the competence to test in accordance with the revised standard ASTM F833-21 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditations to reflect the revised standard in the normal course of renewing their accreditations.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency, “for good cause finds,” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” Id. 553(b)(B). The Commission concludes that when it updates a reference to an ASTM standard that the Commission incorporated by reference under section 104(b) of the CPSIA, notice and comment are not necessary.

Under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM revises a standard that the Commission has previously incorporated by reference under section 104(b)(1)(B) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's mandatory standard by operation of law. The Commission is allowing ASTM F833-21 to become CPSC's new mandatory standard. The purpose of this direct final rule is to update the reference in the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the update provision of section 104 of the CPSIA, ASTM F833-21 takes effect as the new CPSC standard for carriages and strollers, even if the Commission does not issue this rule. Thus, public comments would not alter substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 104(b) of the CPSIA. Under these circumstances, notice and comment are unnecessary.

In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorsed direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and that are not expected to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments.

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on February 15, 2022. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion challenging “the rule's underlying premise or approach,” or a claim that the rule “would be ineffective or unacceptable without change.” 60 FR 43108, 43111. As noted, this rule merely updates a reference in the CFR to reflect a change that occurs by statute.

If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section F. Direct Final Rule Process of this preamble, the Commission has determined that notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. CPSC also notes the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The current mandatory standard for carriages and strollers includes requirements for marking, labeling, and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). While the revised mandatory standard updates the provisions for marking, labeling, and instructional literature regarding consistency and clarity to be consistent with other ASTM voluntary standards, the revised mandatory standard does not alter these requirements substantively. The Commission took the steps required by the PRA for information collections when it adopted 16 CFR part 1227, including obtaining approval and a control number. Because the information collection is unchanged, the revision does not affect the information collection requirements or approval related to the standard.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the Federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. Section 104(b) of the CPSIA deems rules issued under that provision “consumer product safety standards.” Therefore, once a rule issued under section 104 of the CPSIA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission determines that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those actions with respect to the standard for carriages and strollers. Therefore, ASTM F833-21 automatically will take effect as the new mandatory standard for carriages and strollers on February 15, 2022, 180 days after the Commission received notice of the revision on August 19, 2021. As a direct final rule, unless the Commission receives a significant adverse comment within 30 days of this notification, the rule will become effective on February 15, 2022.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.” Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.

For the reasons stated above, the Commission amends title 16 CFR chapter II as follows:

In February 2013, the Commission amended 17 CFR parts 10 and 12 to clarify the role and authority of its Judgment Officers. 1 In this rulemaking, the Commission is adopting technical amendments to 17 CFR part 12 that more accurately describe the duties performed by the adjudicator in reparations cases and other administrative proceedings by changing the title of Judgment Officer to Administrative Judge. The technical amendments adopted in this final rule simplify and improve the language of the rules by using plain language for the adjudicator instead of the overly legalistic term “Judgment Officer,” and by incorporating gender neutral language into part 12, where applicable; thereby, making the rules easier to understand.

The amendments to the Commission's regulations in this rulemaking do not establish any new substantive or legislative rules, but rather are technical amendments to its Rules Relating to Reparations to change the position title of the Judgment Officer to Administrative Judge and to incorporate gender neutral language, where applicable. The amendments to the Commission's regulations relate solely to agency management, organization, procedure, and practice and provide technical corrections of a minor and administrative nature. Therefore, this rulemaking is excepted from the public rulemaking provisions of the Administrative Procedure Act. 2 Additionally, an agency may issue a new rule in some circumstances without publication in the Federal Register of a notice of proposed rulemaking with an opportunity for comment if the agency for “good cause” finds (and incorporates the finding and a brief statement of the reasons therefor in the rules issued) that notice and public procedure thereon are “impracticable, unnecessary, or contrary to the public interest.”  3 As noted earlier, the amendments to part 12 are technical edits to improve the language of the rules and incorporate gender neutral language. Good cause thus exists as the final rule implements changes that affect internal agency management, organization and procedure that exempts it from notice and comment rulemaking. Further, as the revisions to the Commission's regulations in this rulemaking will not cause any party to undertake efforts to comply with the regulations as revised, the Commission has determined to make this rulemaking effective upon publication in the Federal Register . 4

The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities. 5 The Commission is obligated to conduct a regulatory flexibility analysis for any rule for which the agency publishes a general notice of proposed rulemaking pursuant to section 553(b) of the Administrative Procedure Act or any other law. 6 This rulemaking is excepted from the public rulemaking provisions of the Administrative Procedure Act. Accordingly, the Commission is not required to conduct a regulatory flexibility analysis for this rulemaking.

The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995 (Paperwork Reduction Act). 7 This final rule does not contain a collection of information as defined in the Paperwork Reduction Act and, therefore, is not subject to the requirements of the Paperwork Reduction Act.

Section 15 of the Commodity Exchange Act, as amended by the Commodity Futures Modernization Act of 2000, provides that before promulgating a regulation under the Act or issuing an order, the Commission shall consider the costs and benefits of the action of the Commission. 8 These rules govern internal agency organization, procedure, and practice, and therefore the Commission finds that none of the considerations enumerated in section 15(a)(2) of the Commodity Exchange Act, as amended, are applicable to these rules.

This final rule is not a rule as defined in the Congressional Review Act. 9

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 12 as set forth below:

This final rule designates methyl alpha -phenylacetoacetate (MAPA; methyl 3-oxo-2-phenylbutanoate) and its optical isomers as a list I chemical. This action subjects handlers of MAPA to the chemical regulatory provisions of the Controlled Substances Act (CSA) and its implementing regulations. This rulemaking does not establish a threshold for domestic and international transactions of MAPA. As such, all MAPA transactions are regulated, regardless of transaction size, and are subject to control under the CSA. In addition, chemical mixtures containing MAPA are not exempt from regulatory requirements at any concentration. Therefore, all transactions of chemical mixtures containing any quantity of MAPA are regulated pursuant to the CSA.

The CSA and the Drug Enforcement Administration's (DEA) implementing regulations give the Attorney General, as delegated to the Administrator of DEA (Administrator), the authority to specify, by regulation, a chemical as a “list I chemical.”  1 This term refers to a chemical that is used in manufacturing a controlled substance in violation of subchapter I (Control and Enforcement) of the CSA and is important to the manufacture of the controlled substance. 2 The current list of all list I chemicals is available in 21 CFR 1310.02(a).

In addition, the United States is a Party to the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1988 Convention), December 20, 1988, 1582 U.N.T.S. 95. Under Article 12 of the 1988 Convention, when the United States receives notification that a chemical has been added to Table I or Table II of the 1988 Convention, the United States is required to take measures it deems appropriate to monitor the manufacture and distribution of that chemical within the United States and to prevent its diversion, including measures related to international trade.

In a letter dated May 7, 2020, the Secretary-General of the United Nations, in accordance with Article 12, paragraph 6 of the 1988 Convention, informed the United States Secretary of State that the Commission on Narcotic Drugs (CND) voted to place the chemical methyl alpha -phenylacetoacetate (MAPA), including its optical isomers, in Table I of the 1988 Convention (CND Decision 63/1) at its 63rd Session on March 4, 2020.

On March 30, 2021, DEA published a notice of proposed rulemaking (NPRM) [86 FR 16558] to designate methyl alpha -phenylacetoacetate (MAPA; methyl 3-oxo-2-phenylbutanoate) and its optical isomers as a list I chemical under the CSA. In the NPRM, the Acting Administrator found that MAPA is used in, and is important to, the manufacture of the schedule II substances phenylacetone (also known as phenyl-2-propanone, P2P, or benzyl methyl ketone), methamphetamine, and amphetamine. Clandestine laboratory operators have circumvented the schedule II controls on P2P by developing a variety of synthetic methods for producing P2P, which they then convert to methamphetamine and amphetamine.

MAPA is a close chemical relative of precursors controlled under the CSA and the 1988 Convention ( e.g., alpha -phenylacetoacetonitrile (APAAN) and alpha -phenylacetoacetamide (APAA)) and the timing of its emergence suggests it is trafficked to circumvent these precursor controls, particularly the more recent control on APAA. 3 DEA has not identified any known legitimate use for MAPA, other than in small amounts for research, development, and laboratory analytical purposes. The International Narcotics Control Board (INCB) notes that MAPA does not have any legitimate use, 4 and despite this, the INCB highlighted an increase in the frequency of seizures and amounts seized reported through Precursors Incident Communication System (PICS) since November 2018. 5 This trend continued into 2020, with 37 incidents involving MAPA reported through PICS in the first 10 months of the year, totaling almost 21.5 metric tons. 6

As noted in the NPRM, by DEA's designating MAPA as a list I chemical, the United States will fulfill its obligations under Article 12 of the 1988 Convention. The NPRM requested public comments on the proposed designation; however, DEA did not receive any comments.

For the reasons discussed in the NPRM and reiterated in the above background section, the Administrator finds that MAPA is used in the manufacture of controlled substances in violation of the CSA and is important to the manufacture of these controlled substances. Therefore, the Administrator designates MAPA and its optical isomers as a list I chemical.

Pursuant to this final rulemaking, chemical mixtures containing MAPA are subject to regulatory requirements at any concentration unless a manufacturer submits to DEA an application for exemption of a chemical mixture, DEA accepts the application for filing, and DEA exempts the chemical mixture in accordance with 21 CFR 1310.13 (Exemption of chemical mixtures by application). Since even a small amount of MAPA can potentially yield a significant amount of controlled substances, DEA believes that regulation of chemical mixtures containing any amount of MAPA is necessary to prevent its illicit extraction, isolation, and use. This rule modifies the “Table of Concentration Limits” in 21 CFR 1310.12(c) to reflect the fact that a chemical mixture containing any amount of MAPA is subject to CSA chemical control provisions, including 21 CFR parts 1309, 1310, 1313, and 1316.

DEA has implemented an application process to exempt certain chemical mixtures from the requirements of the CSA and its implementing regulations. 7 Manufacturers may submit an application for exemption for those mixtures that do not meet the criteria set forth in 21 CFR 1310.12(d) for an automatic exemption. Pursuant to 21 CFR 1310.13(a), DEA may grant an exemption of a chemical mixture, by publishing a final rule in the Federal Register , if DEA determines that: (1) The mixture is formulated in such a way that it cannot be easily used in the illicit production of a controlled substance, and (2) the listed chemical or chemicals cannot be readily recovered.

The designation of MAPA as a list I chemical subjects handlers (manufacturers, distributors, importers, and exporters) and proposed handlers to all of the regulatory controls and administrative, civil, and criminal actions applicable to the manufacture, distribution, importation, and exportation of a list I chemical. Upon the effective date of this final rulemaking, persons potentially handling MAPA, including regulated chemical mixtures containing MAPA, are required to comply with the following list I chemical regulations:

1. Registration. Any person who handles (manufactures, distributes, imports, or exports), or proposes to engage in such handling of, MAPA or a chemical mixture containing MAPA must obtain a registration pursuant to 21 U.S.C. 822, 823, 957, and 958. Regulations describing registration for list I chemical handlers are set forth in 21 CFR part 1309. DEA regulations require separate registrations for manufacturing, distributing, importing, and exporting of MAPA. 8 Further, a separate registration is required for each principal place of business at one general physical location where list I chemicals are manufactured, distributed, imported, or exported by a person. 9

DEA notes that under the CSA, “warehousemen” are not required to register and may lawfully possess list I chemicals, if the possession of those chemicals is in the usual course of business or employment. 10 Under DEA implementing regulations, the warehouse in question must receive the list I chemical from a DEA registrant and shall only distribute the list I chemical back to the DEA registrant and registered location from which it was received. 11 A warehouse that distributes list I chemicals to persons other than the registrant and registered location from which they were obtained is conducting distribution activities and is required to register as such.

Upon the effective date of this final rulemaking, any person manufacturing, distributing, importing, or exporting MAPA or a chemical mixture containing MAPA will become subject to the registration requirement under the CSA. DEA recognizes, however, that it is not possible for persons who are subject to the registration requirements to immediately complete and submit an application for registration and for DEA to immediately issue registrations for those activities. Therefore, to allow any continued legitimate commerce in MAPA, DEA is establishing in 21 CFR 1310.09 a temporary exemption from the registration requirement for persons desiring to engage in activities with MAPA, provided that DEA receives a properly completed application for registration or application for exemption of chemical mixtures on or before December 20, 2021. The temporary exemption for such persons will remain in effect until DEA takes final action on their application for registration or application for exemption of a chemical mixture.

The temporary exemption applies solely to the registration requirement; all other chemical control requirements, including recordkeeping and reporting, will become effective on the effective date of the final rule. Therefore, all transactions of MAPA and chemical mixtures containing MAPA will be regulated while an application for registration or exemption is pending. This is necessary because failing to regulate these transactions could result in increased diversion of a chemical desirable to drug traffickers.

Additionally, the temporary exemption for registration does not suspend applicable Federal criminal laws relating to MAPA, nor does it supersede State or local laws or regulations. All handlers of MAPA must comply with applicable State and local requirements in addition to the CSA regulatory controls.

2. Records and Reports. Every DEA registrant must maintain records and submit reports to DEA with respect to MAPA pursuant to 21 U.S.C. 830(a) and (b)(1) and (2) and in accordance with 21 CFR 1310.04 and 1310.05. Pursuant to 21 CFR 1310.04, a record must be made and maintained for two years after the date of a transaction involving a listed chemical, provided the transaction is a regulated transaction.

Each regulated bulk manufacturer of a listed chemical must submit to DEA manufacturing, inventory, and use data on an annual basis. 12 Existing standard industry reports containing the required information would be acceptable, provided the information is separate or readily retrievable from the report.

The CSA and its implementing regulations require that each regulated person must report to DEA any regulated transaction involving an extraordinary quantity of a listed chemical, an uncommon method of payment or delivery, or any other circumstance that the regulated person believes may indicate that the listed chemical will be used in violation of subchapter I of the CSA. In addition, regulated persons must report any proposed regulated transaction with a person whose description or other identifying characteristics DEA has previously furnished to the regulated person, any unusual or excessive loss or disappearance of a listed chemical under the control of the regulated person, and any in-transit loss in which the regulated person is the supplier. 13

3. Importation and Exportation. All importation and exportation of MAPA must be done in compliance with 21 U.S.C. 957, 958, and 971 and in accordance with 21 CFR part 1313.

4. Security. All applicants and registrants must provide effective controls against theft and diversion in accordance with 21 CFR 1309.71-1309.73.

5. Administrative Inspection. Places, including factories, warehouses, or other establishments and conveyances, where registrants or other regulated persons may lawfully hold, manufacture, distribute, or otherwise dispose of a list I chemical or where records relating to those activities are maintained, are controlled premises as defined in 21 U.S.C. 880(a) and 21 CFR 1316.02(c). The CSA allows for administrative inspections of these controlled premises as provided in 21 CFR part 1316, subpart A. 14

6. Liability. Any activity involving MAPA not authorized by, or in violation of, the CSA is unlawful, and may subject the person to administrative, civil, and/or criminal action.

DEA did not receive any comments on the NPRM proposing to designate the chemical methyl alpha -phenylacetoacetate (also known as MAPA; methyl 3-oxo-2-phenylbutanoate; methyl 2-phenylacetoacetate; α-acetyl-benzeneacetic acid, methyl ester; and CAS Number: 16648-44-5) and its optical isomers as a list I chemical under the CSA. For the reasons discussed in this rulemaking, DEA is finalizing the NPRM without any change.

This rule was developed in accordance with the principles of Executive Orders (E.O.) 12866 and 13563. E.O. 12866 directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health, and safety effects; distributive impacts; and equity). E.O. 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in E.O. 12866.

Section 3(f) of E.O. 12866 classifies a “significant regulatory action,” requiring review by the Office of Management and Budget (OMB), as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O. As set forth below in the “Costs” discussion, this final rule will not have the economic effects described in E.O. 12866, section 3(f)(1). Since this rule merely designates MAPA and its optical isomers as a list I chemical, DEA believes that this rule does not create or cause the other effects described in section 3(f)(2)-(4). OMB has determined that this rule is not a “significant regulatory action” under E.O. 12866, section 3(f).

As finalized, MAPA is subject to all of the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, importing, and exporting of list I chemicals.

MAPA is a close chemical relative of precursors controlled under the 1988 Convention ( e.g., APAAN and APAA), as discussed in the above background section. MAPA is a precursor of methamphetamine and amphetamine, and it is highly suitable for the illicit manufacture of P2P, a precursor listed in Table I of the 1988 Convention. As noted earlier, incidents of illicit manufacture and trafficking of MAPA have been reported to the INCB with an increase in the frequency of seizures and amounts seized since November 2018.

DEA has searched information in the public domain for any legitimate uses of MAPA. Other than the small amounts for research, development, and laboratory analytical purposes, DEA has not documented any industrial use for MAPA except for it being a chemical intermediate in the production of the schedule II substances P2P, methamphetamine, and amphetamine. Legal conversion of MAPA to P2P in the United States, if it takes place at all, is limited to small, gram quantities. Therefore, DEA concludes the vast majority of, if not all, MAPA is used for the manufacturing of illicit P2P, methamphetamine, and amphetamine.

DEA cannot rule out the possibility that minimal quantities of MAPA are used for the manufacturing of legitimate P2P. However, DEA did not receive any public comments to that effect in response to the NPRM.

DEA evaluated the costs and benefits of this action.

As stated above, the only use for MAPA of which DEA is aware is as a chemical intermediate for the manufacture of P2P, methamphetamine, and amphetamine. Any manufacturer, distributor, importer, or exporter of MAPA for the production of legitimate P2P, methamphetamine, and amphetamine, if they exist at all, will incur costs if they are not already registered for handling list I chemicals. The primary costs associated with this rule are the annual registration fees for manufacturers ($3,699) and for distributors, importers, and exporters ($1,850). Moreover, any manufacturer that uses MAPA for legitimate P2P, methamphetamine, and amphetamine production would already be registered with DEA and have all security and other handling processes established because of the controls already in place on P2P, methamphetamine, and amphetamine, resulting in minimal cost to those entities.

DEA has identified five domestic suppliers of MAPA, only one of which is registered with DEA to handle list I chemicals. The amount of MAPA distributed by these suppliers is unknown. It is common for chemical distributors to have items on their catalog while not actually having any material level of sales. Based on the discussion above, DEA believes any quantity of sales from these distributors for legitimate pharmaceutical purposes is minimal. As finalized, suppliers for the legitimate use of MAPA are expected to choose the least-cost option, which in many cases may lead them to stop selling the minimal quantities, if any, of MAPA, rather than incur the registration cost. Therefore, DEA estimates that the cost of foregone sales is minimal; and thus, the cost of this rule is minimal.

This analysis excludes consideration of any economic impact to those businesses that facilitate the manufacturing and distribution of MAPA for the illicit production of P2P, methamphetamine, and amphetamine.

Controlling MAPA is expected to prevent, curtail, and limit the unlawful manufacture and distribution of the controlled substances P2P, methamphetamine, and amphetamine. This action is also expected to assist in preventing the possible theft or diversion of MAPA from any legitimate firms. DEA also believes control is necessary to prevent unscrupulous chemists from synthesizing MAPA and selling it (as an unregulated material) through the internet and other channels, to individuals who may wish to acquire an unregulated chemical intermediate for the purpose of manufacturing illicit P2P, methamphetamine, and amphetamine.

In summary, DEA conducted a qualitative analysis of costs and benefits. DEA believes this action will minimize the diversion of MAPA. DEA believes the legitimate market for MAPA for the legitimate manufacturing of P2P, methamphetamine, and amphetamine is minimal. Thus, any potential cost resulting from this regulation is minimal.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This rulemaking does not have federalism implications warranting the application of E.O. 13132. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

This rule does not have tribal implications warranting the application of E.O. 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

The Administrator, in accordance with the RFA, 15 has reviewed this rule, and by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities.

As discussed above, MAPA will now become subject to all of the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, importation, and exportation of list I chemicals. MAPA is used in, and is important to, the illicit manufacture of the schedule II-controlled substances P2P, methamphetamine, and amphetamine. DEA has not identified any legitimate industrial use for MAPA, other than its role as a chemical intermediate in the production of P2P, methamphetamine, and amphetamine. Legal conversion of MAPA to P2P in the United States, if it takes place at all, is limited to small, gram quantities. Therefore, DEA believes the vast majority, if not all, of MAPA is used for the illicit manufacturing of P2P, methamphetamine, and amphetamine. The primary costs associated with this rule are the annual registration fees ($3,699 for manufacturers and $1,850 for distributors, importers, and exporters), but only if they are not already registered to handle any list I chemicals.

DEA has identified five domestic suppliers of MAPA, only one of which is registered with DEA to handle list I chemicals. Based on Small Business Administration (SBA) size standards for chemical distributors and Statistics of U.S. Business data, each of the five suppliers are small entities because their revenues are below SBA's $150 million threshold. The quantity of MAPA distributed by these suppliers is unknown. It is common for chemical distributors to have items on their catalog while not actually having any material level of sales. Legal conversion of MAPA to P2P in the United States is limited to small, gram quantities. DEA believes any quantity of sales of MAPA from these distributors for legitimate P2P manufacturing is minimal. DEA did not receive any comments to the contrary in response to the NPRM. DEA estimates that this rule will not have a significant economic impact on a substantial number of small entities.

In accordance with the UMRA, 2 U.S.C. 1501 et seq., DEA has determined and certifies that this rule will not result in any Federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year * * *.” Therefore, neither a Small Government Agency Plan nor any other action is required under the UMRA.

The action does not impose a new collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action will not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This final rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, DEA is submitting a copy of this final rule to both Houses of Congress and to the Comptroller General.

Accordingly, for the reasons set forth in the preamble, DEA amends 21 CFR part 1310 as follows:

This final rule amends 32 CFR part 310, “Protection of Privacy and Access to and Amendment of Individual Records under the Privacy Act of 1974,” to reinstate DoD's blanket routine uses. The appendix which enumerated DoD's blanket routine uses was erroneously removed when 32 CFR part 310 was revised on April 11, 2019 (84 FR 14728-14811).

A “routine use” is defined in the Privacy Act as “with respect to the disclosure of a record, the use of such record for a purpose which is compatible with the purpose for which it was collected.” See 5 U.S.C. 552a(a)(7). Routine uses are included in individual agency SORNs to allow the agency to disclose records from a particular system of records to individuals or entities in accordance with the terms of the routine use. Some agencies have established a set of routine uses that apply to a wide array of published agency SORNs, sometimes referred to as blanket routine uses. Their purpose is to provide consistent information sharing authority across the SORNs for common or non-controversial purposes. Examples of routine uses that are typically included in blanket routine uses are ones that allow agencies to share information with members of Congress inquiring on behalf of a constituent, with the Department of Justice when litigation arises, and with agency contractors for purposes outlined in the contract.

DoD had previously published a list of 14 blanket routine uses in an appendix to a prior publication of the DoD Privacy Program regulation on April 13, 2007 (72 FR 18758). In the 2019 update, all appendices to the prior regulation were removed; however, the appendix containing the DoD blanket routine uses (appendix C) should have remained because numerous DoD SORNs refer to and incorporate the blanket routine uses to support necessary information sharing. This technical amendment seeks to remedy this error by restoring the blanket routine uses as appendix A to part 310. This will provide clear public notice of the existence and ongoing use of the blanket routine uses at DoD. A list of DoD's blanket routine uses has also continued to be available on the DoD Privacy Program website since the DoD Privacy Program regulation was published in 2019.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute 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. It has been determined that this rule is not a significant regulatory action.

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

It has been determined that this rule does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that it will not significantly or uniquely affect small governments.

The Director of Administration and Management certified that this rule does not have a significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the DoD.

It has been determined that this rule does not impose information collection or record keeping requirements on the public under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

It has been determined that this rule does not have federalism implications. This rule does 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.

It has been determined that this rule does not have a substantial effect on Indian tribal governments. This rule does not impose substantial direct compliance costs on one or more Indian tribes, preempt tribal law, or effect the distribution of power and responsibilities between the Federal Government and Indian tribes.

Accordingly, 32 CFR part 310 is amended as follows:

The Coast Guard will enforce a special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade published in 33 CFR 100.702, Table 1 to § 100.702, Line 11 on December 11, 2021, from 2:30 p.m. through 11:30 p.m. This action is being taken to provide for the safety and security of certain navigable waters of the Intracoastal Waterway during this one-day event. Our regulation for marine events within the Seventh Coast Guard District, § 100.702, specifies the location of the special local regulation for the Seminole Hard Rock Winterfest Holiday Boat Parade, which includes a moving buffer zone of 50 yards around the parade as it travels along the New River and Intracoastal Waterway in Ft. Lauderdale, FL. Only event sponsor designated participants and official patrol vessels may enter the regulated area. Spectator vessels may contact the Coast Guard Patrol Commander to request permission to pass through the regulated area. If granted permission, vessels must pass directly through the regulated area at a safe speed without loitering.

In addition to this notice of enforcement in the Federal Register. the Coast Guard will inform the public through Local Notice to Mariners and marine information broadcasts at least 24 hours in advance of the enforcement of the special local regulation.

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. The Coast Guard did not receive final details for this event until October 20, 2021. It is impracticable to go through the full notice and comment rule making process because the Coast Guard must establish this safety zone by December 18, 2021 and lacks sufficient time to provide a reasonable comment period and to consider those comments before issuing the 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 action is necessary to protect personnel, vessels, and the marine environment from the potential safety hazards associated with the fireworks display near Rincon Point in the San Francisco Bay on December 18, 2021.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the Steak Restaurant Fireworks on December 18, 2021, will be a safety concern for anyone within a 100-foot radius of the fireworks vessel during loading and staging, and anyone within a 700-foot radius of the fireworks vessel starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, this temporary safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks vessel and during the fireworks display.

This rule establishes a temporary safety zone from 9 a.m. on December 18, 2021, until 12:45 a.m. on December 19, 2021, during the loading, staging, and transit of the fireworks vessel in San Francisco Bay from Pier 50 to 1,000 feet off Rincon Point, San Francisco, CA, and until 30 minutes after completion of the fireworks display. During the loading, staging, and transit of the fireworks vessel scheduled to take place between 9 a.m. and 11:15 p.m. on December 18, 2021, until 30 minutes prior to the start of the fireworks display, the safety zone will encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by connection of all points 100 feet out from the fireworks vessel. The fireworks display is scheduled to start at 11:59 p.m. December 18, 2021, and end at approximately 12:15 a.m. on December 19, 2021, 1,000 feet from Rincon Point in San Francisco, CA.

The fireworks vessel will remain at Pier 50 until the start of its transit to the display location. Movement of the vessel from Pier 50 to the display location is scheduled to take place from 10 p.m. to 11:15 p.m. on December 18, 2021, where it will remain until the conclusion of the fireworks display.

At 11:29 p.m. on December 18, 2021, 30 minutes prior to the commencement of the 15-minute fireworks display, the safety zone will increase in size and encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by all connecting points 700 feet from the circle center at approximate position 37 degrees 47′37.47″ N, 122 degrees 23′ 14.45″ W (NAD 83), or as announced via Broadcast Notice to Mariners. The safety zone will terminate at 12:45 a.m. on December 19, 2021.

This regulation is necessary to keep persons and vessels away from the immediate vicinity of the fireworks loading, staging, transit, and display site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel, or a Federal, State, or local officer designated by or assisting the Captain of the Port San Francisco (COTP) in the enforcement of the safety zone. This regulation is necessary to ensure the safety of participants, spectators, and transiting vessels.

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 limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimum impact. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone in the navigable waters around the loading, staging, transit, and display of fireworks near Pier 50 and 1,000 ft off Rincon Bay in San Francisco Bay. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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, as the Coast Guard received initial notification on October 31, 2021, of an anticipated vessel transit from Victoria, BC, to Vancouver, BC, through U.S. Waters by the ZIM KINGSTON. On or around October 21, 2021, the ZIM KINGSTON lost containers overboard and two containers subsequently caught on fire and may contain toxic flammable gas or other hazardous materials. Immediate action is needed to respond to the potential safety hazards associated with the ZIM KINGSTON's transit. It is impracticable to publish an NPRM for this temporary rule because the safety zone must be established by November 15, 2021, to protect waterway users.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to protect personnel, vessels, and the marine environment from the potential hazards associated with the vessel transit of the ZIM KINGSTON.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port (COTP) Puget Sound has determined that potential hazards associated with the transit of the ZIM KINGSTON will be a safety concern for anyone within a 500-yard radius of the vessel. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the transit.

This rule establishes a safety zone from 9:00 a.m.. November 15, 2021, through 9 a.m. November 29, 2021. The safety zone will cover all navigable waters within 500 yards of the ZIM KINGSTON. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the vessel is in transit. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the fact that the safety zone created by this rule is limited in size and duration. Vessel traffic would be able to safely transit around this safety zone. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone for navigable waters within a 500-yard radius around the ZIM KINGSTON between November 15, 2021, to November 29, 2021. The safety zone is needed to protect personnel, vessels, and the marine environment from the potential hazards associated with the vessel transit. It is categorically excluded from further review under paragraph L[60] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

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. The Coast Guard did not receive final details for this event until October 20, 2021. It is impracticable to go through the full notice and comment rule making process because the Coast Guard must establish this safety zone by December 3, 2021 and lacks sufficient time to provide a reasonable comment period and to consider those comments before issuing the 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 action is necessary to protect personnel, vessels, and the marine environment from the potential safety hazards associated with the fireworks display near Yellow Bluff the San Francisco Bay on December 3, 2021.

The Coast Guard is issuing this rule under authority 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port San Francisco has determined that potential hazards associated with the Umback Fireworks Scattering on December 3, 2021, will be a safety concern for anyone within a 100-foot radius of the fireworks vessel during loading and staging, and anyone within a 500-foot radius of the fireworks vessel starting 30 minutes before the fireworks display is scheduled to commence and ending 30 minutes after the conclusion of the fireworks display. For this reason, this temporary safety zone is needed to protect personnel, vessels, and the marine environment in the navigable waters around the fireworks vessel and during the fireworks display.

This rule establishes a temporary safety zone from 4 p.m. until 6:15 p.m. on December 3, 2021, during the loading, staging, and transit of the fireworks vessel in San Francisco Bay from Clipper Yacht Harbor to 500 yards off Yellow Bluff, Sausalito, CA, and until 30 minutes after completion of the fireworks display. During the loading, staging, and transit of the fireworks vessel scheduled to take place between 4 p.m. and 5 p.m. on December 3, 2021, until 30 minutes prior to the start of the fireworks display, the safety zone will encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by connection of all points 100 feet out from the fireworks vessel. The fireworks display is scheduled to start from 5:30 p.m. and end at approximately 5:45 p.m. on December 3, 2021, 500 yards from Yellow Bluff in Sausalito, CA.

The fireworks vessel will remain at Clipper Yacht Harbor until the start of its transit to the display location. Movement of the vessel from Clipper Yacht Harbor to the display location is scheduled to take place from 5 p.m. to 5:30 p.m. on December 3, 2021, where it will remain until the conclusion of the fireworks display.

At 5 p.m. on December 3, 2021, 30 minutes prior to the commencement of the 15-minute fireworks display, the safety zone will increase in size and encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by all connecting points 500 feet from the circle center at approximate position 50′ 12″ N 122 degrees 28′ 01″ W (NAD 83). The safety zone will terminate at 6:15 p.m. on December 3, 2021 or as announced via Broadcast Notice to Mariners.

This regulation is necessary to keep persons and vessels away from the immediate vicinity of the fireworks loading, staging, transit, and display site. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in the restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel, or a Federal, State, or local officer designated by or assisting the Captain of the Port San Francisco (COTP) in the enforcement of the safety zone. This regulation is necessary to ensure the safety of participants, spectators, and transiting vessels.

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 limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimum impact. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone in the navigable waters around the loading, staging, transit, and display of fireworks near Clipper Yacht Harbor and 500 yards off Yellow Bluff in San Francisco Bay. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

This final rule describes new prices and product features for competitive products, by class of mail, established by the Governors of the United States Postal Service®. New prices are available under Docket Number CP2022-22 on the Postal Regulatory Commission PRC website at http://www.prc.gov, and on the Postal Explorer® website at http://pe.usps.com.

The Postal Service will revise Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), to reflect changes to prices and mailing standards for the following competitive products:

• Priority Mail Express®.

• Priority Mail®.

• First-Class Package Service®.

• Parcel Select®.

• USPS Retail Ground®.

• Extra Services.

• Return Services.

• Mailer Services.

• Recipient Services.

• Other.

Competitive product prices and changes are identified by product as follows:

Overall, Priority Mail Express prices will increase 3.1 percent. Priority Mail Express will continue to offer zoned and Flat Rate Retail, Commercial Base®, and Commercial Plus® pricing.

Retail prices will increase an average of 2.9 percent. The Flat Rate Envelope price will increase to $26.95, the Legal Flat Rate Envelope will increase to $27.10, and the Padded Flat Rate Envelope will increase to $27.50.

Commercial prices (Commercial Base and Commercial Plus) will increase an average of 4.3 percent.

The Postal Service is implementing a standard under dimensional weight pricing for commercial Priority Mail Express pieces to require Shipping Services file manifests or other approved electronic documentation include the accurate dimensions (length, width, height) of all pieces that exceed 1 cubic foot. This standard will assist the Postal Service with compliance in pricing. Shipping Services file manifests or other approved electronic documentation not meeting the requirement to include accurate dimensions will be assessed a dimension noncompliance fee.

Overall, Priority Mail prices will increase 3.1 percent. Priority Mail will continue to offer zoned and Flat Rate Retail, Commercial Base, and Commercial Plus pricing.

Retail prices will increase an average of 4.5 percent. The Flat Rate Envelope price will increase to $8.95, the Legal Flat Rate Envelope will increase to $9.25, and the Padded Flat Rate Envelope will increase to $9.65. The Small Flat Rate Box price will increase to $9.45 and the Medium Flat Rate Boxes will increase to $16.10. The Large Flat Rate Box will decrease to $21.50 and the APO/FPO/DPO Large Flat Rate Box will decrease to $20.00.

Commercial prices (Commercial Base and Commercial Plus) will increase an average of 1.2 percent.

The Postal Service is implementing a standard under dimensional weight pricing for commercial Priority Mail pieces to require Shipping Services file manifests or other approved electronic documentation include the accurate dimensions (length, width, height) of all pieces that exceed 1 cubic foot. This standard will assist the Postal Service with compliance in pricing. Shipping Services file manifests or other approved electronic documentation not meeting the requirement to include accurate dimensions will be assessed a dimension noncompliance fee.

Overall, First-Class Package Service prices will increase 8.8 percent.

Overall, First-Class Package Service—Retail prices will increase 9.0 percent.

Overall, First-Class Package Service—Commercial prices will increase 8.8 percent.

The prices for Parcel Select Destination Entry will decrease an average of 11.1 percent. Parcel Select Ground prices will decrease an average of 12.1 percent. The prices for Parcel Select Lightweight® will increase an average of 7.4 percent.

The Postal Service is implementing a standard under dimensional weight pricing for Parcel Select Destination Entry and Parcel Select Ground pieces to require Shipping Services file manifests or other approved electronic documentation include the accurate dimensions (length, width, height) of all pieces that exceed 1 cubic foot. This standard will assist the Postal Service with compliance in pricing. Shipping Services file manifests or other approved electronic documentation not meeting the requirement to include accurate dimensions will be assessed a dimension noncompliance fee.

The Postal Service will implement an optional Sectional Center Facility (SCF) preparation level that will allow mailers to presort and dropship Parcel Select Destination Entry machinable parcels to an eligible destination SCF (DSCF) under Labeling List L051. The new SCF preparation level will follow the current Parcel Select Destination Entry standards for requirements, mail preparation, entry, and pricing.

The Postal will also implement an optional SCF preparation level that will allow mailers to presort and dropship Parcel Select Lightweight (PSLW) machinable parcels to an eligible DSCF under labeling List L051. The new SCF preparation will follow the current PSLW standards for requirements, mail preparation, entry, and pricing.

As a result of the new SCF preparation level for PSLW machinable parcels, the Postal Service will delete Customer Support Ruling (CSR) PS-348, Parcel Select Lightweight Machinable Parcel Optional SCF Presort and Entry.

USPS Connect Local TM is a new Parcel Select price category offering, designed to enhance access to our delivery network at the local level to deliver items the same-day or the next-day via a local Post Office to every address served by that delivery unit. Participation in the USPS Connect Local program requires agreement to program terms. Customers must contact a USPS Representative for details.

USPS Connect Local will offer three USPS-produced Flat Rate container prices (2 bags and a box), variable weight prices from 1 pound through 25 pounds that will not be subject to Dimensional (DIM) pricing, and an oversized (108 inches-130 inches) price.

USPS Click-N-Ship® will be the required payment method, providing both the shipping label and postage payment.

Certain additional mailing services such as Insurance and Signature Confirmation TM extra services and Pickup on Demand® and USPS Tracking Plus® will be available for USPS Connect Local.

USPS Connect Local will also offer Sunday delivery where available for a fee and has an automatic Sunday fee refund feature through USPS Click-N-Ship if the item is not delivered on Sunday or Sunday delivery was not attempted.

Overall, USPS Retail Ground prices will decrease an average of 7.4 percent.

The Postal Service is eliminating the restriction that states USPS Retail Ground prices in Zones 1 through 4 are only available to items that require surface transportation. USPS Retail Ground prices will now be available for all eligible mailable items in Zones 1 through 9.

Adult Signature Required and Adult Signature Restricted Delivery service prices are increasing 23.2 and 22.4 percent respectively. The price for Adult Signature Required will increase to $8.50 and Adult Signature Restricted Delivery will increase to $8.75.

Overall, Parcel Return Service prices will increase an average of 4.9 percent.

Return Sectional Center Facility (RSCF) prices will increase an average of 4.9 percent and Return Delivery Unit (RDU) prices will increase an average of 4.9 percent.

The Pickup on Demand® service fee will remain at $25.00.

Overall, USPS Premium Tracking Service TM prices will decrease 51.5 percent.

The Postal Service is expanding the domestic product offering for USPS Tracking Plus TM to include Library Mail, Media Mail®, and Bound Printed Matter. The expansion will also include First-Class Mail® (Letters and Flats) with the purchase of a trackable extra service, USPS Marketing Mail® and Nonprofit USPS Marketing Mail parcels with the purchase of USPS Tracking®, and Nonprofit USPS Marketing Mail parcels with a trackable extra service.

The Postal Service is also expanding USPS Tracking Plus service to include some International outbound products. For further information see the International Mailing Services: Mailing Services Product and Price Changes Federal Register notice.

The competitive Post Office Box TM service prices will increase an average of 18.2 percent within the updated price ranges.

Premium Forwarding Service® (PFS®) prices will increase between 4.8 and 5.3 percent depending on the specific price element. The enrollment fee paid at the retail counter for PFS-Residential will increase to $23.90 and the PFS-Residential, PFS-Commercial, and PFS-Local enrollment fee paid online will increase to $21.95 per application. The price of the weekly shipment charge for PFS-Residential and per container charge for PFS-Local will increase to $23.90.

The USPS Package Intercept® fee will increase 4.6 percent to $15.95.

Address Enhancement Service competitive product prices will increase between 10.0 and 14.3 percent.

The Postal Service is eliminating RDI-API due to low volume.

The small parcel forwarding fee, an optional service first offered in January 2019, will increase 6.1 percent to $5.25.

The Postal Service is implementing Nonstandard Fees for domestic retail and commercial Priority Mail Express and Priority Mail pieces, First-Class Package Service-Retail, USPS Retail Ground (including USPS Retail Ground LOR), and Parcel Select (Destination Entry, Ground, PSLW, USPS Connect Local) pieces that are operationally considered nonstandard. The nonstandard fees will consist of two components, length and cube. The length component will consist of two fees, one fee for a piece that measures more than 22 inches up to 30 inches, and another fee for a piece that measures more than 30 inches in length. The cube component will consist of a fee for a piece that measures more than 2 cubic feet (3,456 cubic inches). Cube dimensions for rectangular pieces are determined by measuring the length, width, and height in inches (rounding off each measurement to the nearest whole inch) and multiplying the length by the width by the height. For nonrectangular pieces, calculate as stated above and multiply the result by an adjustment factor of 0.785. If either calculation exceeds 3,456 cubic inches, the piece is subject to the cube dimension nonstandard fee.

A piece may be subject to both a length and a cube dimension nonstandard fee. The nonstandard fees do not apply to Flat Rate products, Regional Rate products or returns (USPS Returns, PRS).

In addition, commercial Priority Mail Express and Priority Mail, and Parcel Select (Destination Entry, Ground, PSLW) will require the Shipping Services file manifests or other approved electronic documentation include the accurate dimensions (length, width, height) of all pieces that exceed 22 inches.

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

CAA Clean Air Act

CDX Central Data Exchange

CEDRI Compliance and Emissions Data Reporting

CFR Code of Federal Regulations

CRA Congressional Review Act

EPA Environmental Protection Agency

ERT Electronic Reporting Tool

GACT generally available control technology

HAP hazardous air pollutants(s)

HCl hydrochloric acid

HQ hazard quotient

HQREL hazard quotient reference exposure level

ICR Information Collection Request

km kilometer

MACT maximum achievable control technology

MIR maximum individual risk

NAICS North American Industry Classification System

NESHAP national emission standards for hazardous air pollutants

NTTAA National Technology Transfer and Advancement Act

OAQPS Office of Air Quality Planning and Standards

OMB Office of Management and Budget

OSHA Occupational Safety and Health Administration

PB-HAP hazardous air pollutants known to be persistent and bio-accumulative in the environment

RATA relative accuracy test audit

REL reference exposure level

RFA Regulatory Flexibility Act

RIA Regulatory Impact Analysis

RIN Regulatory Information Number

RTR risk and technology review

SSM startup, shutdown, and malfunction

UMRA Unfunded Mandates Reform Act

TOSHI target organ-specific hazard index

tpy tons per year

UPL upper prediction limit

XML extensible markup language

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

Background information. On January 11, 2021, the EPA proposed revisions to the major source Flexible Polyurethane Foam Fabrication Operations NESHAP based on our RTR and to the NESHAP for Flexible Polyurethane Foam Production and Fabrication area sources based on our technology review. In this action, we are finalizing decisions and revisions for the rules. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in Summary of Public Comments and Responses on the Proposed Rule for the Major Source Flexible Polyurethane Foam Fabrication NESHAP and the NESHAP for Flexible Polyurethane Foam Production and Fabrication Area Sources (86 FR 1868, January 11, 2021 ), Docket ID No. EPA-HQ-OAR-2020-0572. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket.

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

The source categories that are the subject of this final action are the Flexible Polyurethane Foam Fabrication Operations major source category regulated under 40 CFR part 63, subpart MMMMM, and the Flexible Polyurethane Foam Production and Flexible Polyurethane Foam Fabrication area source categories, regulated under 40 CFR part 63, subpart OOOOOO. The North American Industry Classification System (NAICS) code for fabricators of flexible polyurethane foam is 326150, “Urethane and Other Foam Product (except Polystyrene) Manufacturing.” This list of categories and NAICS codes is not intended to be exhaustive but rather provides a guide for readers regarding the entities that this final action is likely to affect. The final standards will be directly applicable to the affected sources. Federal, state, local, and tribal government entities would not be affected by this action.

The Flexible Polyurethane Foam Fabrication Operations major source category was added to the EPA's HAP source category list in 1996. (61 FR 28197, June 4, 1996.) The NESHAP for that major source category, 40 CFR part 63, subpart MMMMM, was promulgated in 2003. (68 FR 18062, April 14, 2003.) The Flexible Polyurethane Foam Fabrication area source category was added to the EPA's HAP source category list in 1999. (64 FR 38706, July 19, 1999.) The Flexible Polyurethane Foam Production area source category was added to the EPA's HAP source category list in 2002. (67 FR 70427, November 22, 2002.) The Flexible Polyurethane Foam Production major source category, Part 63, subpart III, was included on the EPA's initial HAP source category list. (57 FR 31576, July 16, 1992.) The maximum achievable control technology (MACT) standards for subpart III were initially promulgated in 1998. (63 FR 53980, October 7, 1998.) The EPA established one area source NESHAP at 40 CFR part 63, subpart OOOOOO, that applies to the two area source categories due to the similarity of their operations and because they are often collocated. (72 FR 38864, July 16, 2007.)

The Flexible Polyurethane Foam Fabrication Operations major source category and the Flexible Polyurethane Foam Fabrication area source category include facilities engaged in cutting, gluing, and/or laminating pieces of flexible polyurethane foam. These source categories include fabrication operations that are collocated with foam production plants as well as those located offsite from foam production plants. Emissions from foam fabrication primarily result from the lamination of polyurethane foam to adhere foam to other substrates and from the use of HAP-based adhesives in the gluing process. The Flexible Polyurethane Foam Production area source category includes facilities that manufacture foam made from a polymer containing a plurality of carbamate linkages in the chain backbone (polyurethane). Polyurethane is commonly made by reacting a polyisocyanate with an organic polyhydroxyl material in the presence of water. Application of blowing agents, catalysts, surfactants, and fillers transform the polyurethane into a foam with specialized properties.

This final action addresses the major source NESHAP that applies to the Flexible Polyurethane Foam Fabrication Operations major source category and addresses the area source NESHAP that applies to the Flexible Polyurethane Foam Production area source category and the Flexible Polyurethane Foam Fabrication area source category. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: https://www.epa.gov/stationary-sources-air-pollution/flexible-polyurethane-foam-fabrication-operations-national-emission. Following publication in the Federal Register , the EPA will post the Federal Register version and key technical documents at this same website.

Additional information is available on the RTR website at https://www.epa.gov/stationary-sources-air-pollution/risk-and-technology-review-national-emissions-standards-hazardous. This information includes an overview of the RTR program and links to project websites for the RTR source categories.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by January 18, 2022. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

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

The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401 et seq. ). Section 112 of the CAA establishes a two-stage regulatory process to address emissions of hazardous air pollutants (HAP) from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including, but not limited to, those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.

For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements. For area sources, CAA section 112(d)(5) gives the EPA discretion to set standards based on generally available control technologies or management practices (GACT standards) in lieu of MACT standards.

In the second stage of the NESHAP regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, which is applicable to both MACT and GACT standards, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, which is limited to the MACT standards, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f). 1 For more information on the statutory authority for this rule, see the proposal preamble (86 FR 1868, January 11, 2021) and the memorandum, CAA Section 112 Risk and Technology Reviews: Statutory Authority and Methodology, December 14, 2017, available in the docket for this action (Document ID EPA-HQ-OAR-2020-0572-0016).

The EPA promulgated MACT standards for major source Flexible Polyurethane Foam Fabrication Operations facilities in 2003 under 40 CFR part 63, subpart MMMMM. The standards apply to major sources of HAP at existing and new flexible polyurethane foam fabrication facilities. Because of their potential to generate HAP emissions, the processing units of interest at foam fabrication facilities are loop slitters and flame lamination units. The 2003 MACT standards for Flexible Polyurethane Foam Fabrication Operations require HAP emissions reductions and control for new flame lamination units and prohibit use of HAP-based adhesives in new and existing loop slitting operations. For new flame lamination units, a 90 percent reduction in HAP emissions is required. For existing flame lamination units, the 2003 rule had no MACT emission limits. For new and existing loop slitters, the 2003 MACT standards prohibited use of any adhesive containing 5 percent or more (by weight) of total HAP. The EPA estimates that there are currently three facilities subject to subpart MMMMM.

In 2007, the EPA promulgated GACT standards for the Flexible Polyurethane Foam Production area source category and the Flexible Polyurethane Foam Fabrication area source category together under 40 CFR part 63, subpart OOOOOO. The GACT standards required that methylene chloride be significantly reduced or eliminated from slabstock foam production, molded foam release agents, equipment cleaning, rebond foam mold release agents, and foam fabrication adhesive use. Although both area source categories were listed for regulation due to emissions of the urban HAP methylene chloride, the EPA finds that methylene chloride is no longer used within either source category. The Flexible Polyurethane Foam Production area source category includes facilities that manufacture foam made from polyurethanes, which are in the class of compounds called “reaction polymers.” There are three types of polyurethane foam production facilities: Slabstock flexible polyurethane foam (slabstock foam), molded flexible polyurethane foam (molded foam), and rebond foam. Slabstock foam is produced in large continuous buns that are then cut in the desired size and shape. Molded foam is produced by “shooting” the foam mixture into a mold of the desired shape and size. Rebond foam is made from scrap foam that is converted into a material primarily used for carpet underlay. The EPA estimates that there are 32 facilities currently subject to the area source standards, of which approximately 20 are believed to be owned by small businesses.

For both the Flexible Polyurethane Foam Operations major source category and the Flexible Polyurethane Foam Fabrication area source category, operations involve cutting, bonding, and/or laminating pieces of flexible polyurethane foam together or to other substrates. Typical bonding techniques include gluing, taping, and flame lamination.

Both the Flexible Polyurethane Foam Production and Flexible Polyurethane Fabrication Operations area source categories were listed for regulation due to emissions of the urban HAP methylene chloride. At the time of the initial area source standards promulgation, methylene chloride was the only urban HAP used at foam production and foam fabrication facilities. Now, however, there are no known urban HAP used at foam production and foam fabrication facilities. In the past, slabstock foam production facilities sometimes used methylene chloride as an auxiliary blowing agent to control the density and other properties of the foam as it expanded during the pouring process. Methylene chloride was also sometimes used as an equipment cleaner, in particular for mix heads. A small number of molded and rebond foam facilities used methylene chloride in mold release agents, and some molded foam facilities used it as a mixhead cleaner. Foam fabricators used methylene chloride-based adhesives to adhere pieces of foam to one another. Flame laminators have never used methylene chloride and, as such, are not regulated by the area source standards.

On January 11, 2021, the EPA published a proposed rule in the Federal Register (86 FR 1868) for the Flexible Polyurethane Foam Fabrication Operations NESHAP for major sources, 40 CFR part 63, subpart MMMMM, and the NESHAP for Flexible Polyurethane Foam Production and Flexible Polyurethane Foam Fabrication Area Sources, 40 CFR part 63, subpart OOOOOO, that took into consideration the RTR analyses for major sources and the technology review for area sources.

For the major source Flexible Polyurethane Foam Fabrication Operations NESHAP, we proposed that the health risks due to HAP emissions from the source category are acceptable, that the NESHAP provides an ample margin of safety to protect public health and that additional standards are not necessary to prevent an adverse environmental effect. To address emissions sources that do not have an emissions limit in the existing NESHAP, we proposed a numeric limit for HCl emissions from existing flame laminators under CAA section 112(d)(2) and (3). As a result of the technology review, we proposed to lower the amount of HAP that could be contained in an adhesive for that material to be considered a HAP-based adhesive. For this change, the definition of “HAP-based adhesive” was revised from adhesive with a HAP weight of 5 percent or more to adhesive with a HAP weight of 1 percent or more. In addition, we proposed to amend the NESHAP to list specific carcinogenic HAP that must be included in the adhesive HAP content calculation, rather than including references to other rules where these HAP were previously but are no longer listed. We also proposed revisions to the SSM provisions of this NESHAP to ensure it is consistent with the court decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008). Finally, we proposed revisions to the recordkeeping and reporting requirements of the NESHAP to require the use of electronic reporting of performance test reports and semiannual reports and to require initial and periodic performance testing (every 5 years) for flame lamination units.

For the NESHAP for Flexible Polyurethane Foam Production and Flexible Polyurethane Foam Fabrication Area Sources, we proposed that no revisions to the NESHAP are necessary based on our technology review. Where subpart OOOOOO references the NESHAP for flexible polyurethane foam production major sources (40 CFR part 63, subpart III), we proposed to make conforming changes to reflect amendments made to subpart III. For additional information regarding the proposed rule, see the January 11, 2021, proposal (86 FR 1868).

This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the Flexible Polyurethane Foam Fabrication Operations major source category and the CAA technology review provisions for the Flexible Polyurethane Foam Production and Fabrication area source categories. This action amends the Flexible Polyurethane Foam Fabrication Operations major source NESHAP and the NESHAP for the Flexible Polyurethane Foam Production and Fabrication area source categories based on those determinations. This action also finalizes other changes to the Flexible Polyurethane Foam Fabrication Operations major source NESHAP, including the proposed addition of a numeric emissions limit for existing flame lamination units under the authority of CAA section 112(d)(2) and (3), revisions to the SSM requirements, addition of electronic reporting requirements, and editorial corrections. For the Flexible Polyurethane Foam Production and Fabrication area sources NESHAP, this action finalizes the proposed revisions to the rule to eliminate references to another NESHAP (Subpart III, National Emission Standards for Hazardous Air Pollutants for Flexible Polyurethane Foam Production) that has been revised and no longer contains the referenced provisions.

The EPA proposed no changes to the Flexible Polyurethane Foam Fabrication Operations major source NESHAP based on the risk review conducted pursuant to CAA section 112(f). In this action, we are finalizing our proposed determination that risks from the Flexible Polyurethane Foam Fabrication Operations major source category are acceptable, the standards provide an ample margin of safety to protect public health, and more stringent standards are not necessary to prevent an adverse environmental effect. The EPA received no new data or other information during the public comment period that causes us to change that proposed determination. Therefore, we are not making any revisions to the existing standards under CAA section 112(f), and we are readopting the existing standards. Further information regarding these decisions is provided in section IV of this preamble.

We determined that there are developments in practices, processes, and control technologies that warrant revisions to the MACT standards for the major source Flexible Polyurethane Foam Fabrication Operations source category. Therefore, to satisfy the requirements of CAA section 112(d)(6), consistent with the proposal, we are revising the MACT standards to include a revised definition of HAP-based adhesive. The analyses and rationale for these decisions are described in section IV.B of this preamble. As part of the technology review, we also identified a regulatory gap (a previously unregulated process) and are establishing a new standard to fill that gap as described in section III.C of this preamble.

During the technology review, we identified existing flame laminators as an unregulated process in the major source category. For major sources, the EPA is required to set technology-based standards for sources of HAP emissions that reflect the maximum reductions of HAP emissions achievable (after considering cost, energy requirements, and non-air health and environmental impacts). However, these standards must be no less stringent than the average emission performance of the best performing five sources for a source category with fewer than 30 sources, as is the case here. Therefore, to satisfy the requirements of CAA section 112(d)(2) and (3), consistent with the proposal, we are revising the major source Flexible Polyurethane Foam Fabrication Operations NESHAP to include a MACT standard for existing source flame laminators. The analyses and rationale for this standard are described in section IV.C of this preamble.

We are finalizing the proposed amendments to the major source Flexible Polyurethane Foam Fabrication Operations NESHAP to remove and revise provisions related to SSM. In its 2008 decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008), the court vacated portions of two provisions in the EPA's CAA section 112 regulations governing the emissions of HAP during periods of SSM. Specifically, the court vacated the SSM exemption contained in 40 CFR 63.6(f)(1) and (h)(1), holding that under section 302(k) of the CAA, emissions standards or limitations must be continuous in nature and that the SSM exemption violates the CAA's requirement that some CAA section 112 standards apply continuously. Previously, the 2003 Flexible Polyurethane Foam Fabrication Operations NESHAP included exemptions for standards during SSM. As explained in section IV.E of the January 2021 proposal preamble (86 FR 1868 at 1885, January 11, 2021), the EPA proposed that the Flexible Polyurethane Foam Fabrication Operations NESHAP would require that the standards always apply, consistent with the court decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008).

Table 7 to subpart MMMMM of 40 CFR part 63 (General Provisions applicability table) is being revised to change the specification of the requirements that apply during periods of SSM. We eliminated or revised certain recordkeeping and reporting requirements related to the eliminated SSM exemptions. The EPA also made other harmonizing changes to remove or modify inappropriate, unnecessary, or redundant language in the absence of the SSM exemptions. We proposed to remove the SSM exemptions such that the standards always apply because we determined that facilities in this source category can always meet the applicable emission standards in the NESHAP, including periods of startup and shutdown, without additional standards or work practices. We received no information to cause us to change our conclusion; therefore, the EPA is finalizing the removal of the SSM exemptions and is requiring that the standards always apply. The legal rationale and detailed changes for startup and shutdown periods that we are finalizing here are set forth in the January 11, 2021, preamble to the proposed rule. See 86 FR 1868 at 1885 and 1886.

Further, as proposed, the EPA is not including standards for malfunctions. As discussed in the proposal preamble, the EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards, although the EPA has the discretion to set standards for malfunctions where feasible. See 86 FR 1868 at 1885 and 1886.

The EPA is requiring owners or operators of flexible polyurethane foam fabrication operations major sources to submit electronic copies of certain required performance test reports, performance evaluation reports, and semiannual reports through the EPA's Central Data Exchange using the Compliance and Emissions Data Reporting Interface (CEDRI). The final rule requires that performance test results and performance evaluation results be submitted using the Electronic Reporting Tool. For semiannual reports, the final rule requires that owners or operators use the appropriate spreadsheet template to submit information to CEDRI. The final version of the templates for these reports are located on the CEDRI website. 2

The electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. For a more thorough discussion of electronic reporting, see the memorandum, Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in the docket for this action (Document ID EPA-HQ-OAR-2020-0572-0012).

The revisions to the MACT standards being promulgated in this action are effective on November 18, 2021.

Affected sources that commenced construction or reconstruction on or before January 11, 2021, must comply with all amendments, except for the electronic format for submitting compliance reports, no later than 180 days after the effective date of the final rule, or upon startup, whichever is later. Affected sources that commence construction or reconstruction after January 11, 2021, must comply with all requirements of the subpart, including the amendments being finalized, except for the electronic format for submitting compliance reports, no later than the effective date of the final rule or upon startup, whichever is later. All affected sources must comply with the electronic compliance report requirements no later than either 180 days after the effective date of the final rule or once the report template for this subpart has been available on the CEDRI website for 1 year, whichever date is later. All affected facilities must continue to meet the current requirements of 40 CFR part 63, subpart MMMMM, until the applicable compliance date of the amended rule.

This final action is not a “major rule” as defined by 5 U.S.C. 804(2), so the effective date of the final rule is the promulgation date as specified in CAA section 112(d)(10). For existing sources, we are finalizing four changes that would impact ongoing compliance requirements for 40 CFR part 63, subpart MMMMM. As discussed elsewhere in this preamble, we are adding a numeric limit for HCl emissions from existing flame laminators. We are also adding a requirement that notifications, performance test results, and compliance reports be submitted electronically. Our experience with similar industries that are required to convert reporting mechanisms to install necessary hardware and software, become familiar with the process of submitting performance test results electronically through the EPA's CEDRI, test these new electronic submission capabilities, and reliably employ electronic reporting shows that a period of a minimum of 90 days, and, more typically, 180 days, is generally necessary to accomplish these revisions. For the final SSM revisions, we recognize that there are no facilities that are currently using the SSM provisions for new flame laminators, since there have not been any new sources since the standard was promulgated. As a result, we understand that no additional time is needed for compliance with the revised SSM provisions. Prior to proposal, we consulted with the regulated industry regarding the proposed limits for existing flame laminators and the requirement to conduct performance testing to demonstrate initial compliance within 180 days of the publication of the final rule and no less than every 5 years thereafter, to better understand the likely implications of the proposed revisions. Representatives of the company that owns the two impacted facilities indicated that performance testing could be done within the 180-day time frame for compliance. For the flame lamination unit existing sources that would be subject to the newly established emission limit, we understand that the facilities are able to meet the limit without add-on controls. However, we do recognize that facilities need time to conduct performance tests and demonstrate compliance with the emission limit.

To reduce the complication that different compliance dates for individual requirements would create and the additional burden such an assortment of dates would impose, considering our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA is finalizing a period of 180 days after the regulation's effective date within which all affected sources that commenced construction or reconstruction on or before January 11, 2021, must be in compliance with the regulation's revised requirements, with the exception of the electronic reporting requirements.

For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. For all comments not discussed in this preamble, comment summaries and the EPA's responses can be found in the comment summary and response document available in the docket.

We proposed that the health risks due to emissions of HAP from the major source Flexible Polyurethane Foam Fabrication Operations source category are acceptable and that the NESHAP provides an ample margin of safety to protect public health and that no additional standards are necessary to prevent an adverse environmental effect. Table 1 of this preamble provides a summary of the results of the inhalation risk assessment for the source category. More detailed information on the risk assessment can be found in the Residual Risk Assessment for the Flexible Polyurethane Foam Fabrication Source Category in Support of the 2021 Risk and Technology Review Final Rule in the docket for this action.

The results of the inhalation risk assessment using actual emissions data, as shown in Table 1 of this preamble, indicate that no carcinogens are emitted by this category. Therefore, the cancer MIR based on actual emissions (lifetime) is zero and the total estimated annual cancer incidence (national) from these facilities based on actual emission levels is zero excess cancer cases per year. The maximum chronic noncancer target organ-specific hazard index (TOSHI) value based on actual emissions is 0.002 driven by HCl. The maximum screening acute noncancer HQREL value (off-facility site) is 0.003 driven by HCl. No persistent and bio-accumulative HAP (PB-HAP) are emitted from the Flexible Polyurethane Foam Fabrication Operations source category, therefore, a multipathway assessment was not conducted. A screening-level evaluation of the potential adverse environmental risk associated with emissions of HCl indicated that no ecological benchmarks were exceeded.

As shown in Table 1, the maximum facility-wide cancer MIR is 0.1-in-1 million, driven by 2,4/2,6-toluene diisocyanate mixture (TDI) emissions from a vertical non-category point source and a non-category fugitive point source. The total estimated cancer incidence from the whole facility is 0.00001 excess cancer cases per year, or one excess case in every 100,000 years. The maximum facility-wide TOSHI for the source category is estimated to be 0.2, mainly driven by 2,4/2,6-TDI emissions from a vertical non-category point source and a non-category fugitive point source. Considering all the health risk information and factors discussed above, the EPA proposed that the risks are acceptable.

No carcinogens are emitted by the Flexible Polyurethane Foam Fabrication Operations source category. Therefore, there are no individuals in the exposed population with lifetime cancer risks above 1-in-1 million as a result of actual or allowable emissions from this category. In addition, the maximum chronic noncancer TOSHI value based on actual and allowable emissions is well below 1 (0.002 and 0.2, respectively) and the maximum screening acute noncancer HQ value (off-facility site) is also well below 1 (0.003). Therefore, the EPA proposed that additional emissions controls for flexible polyurethane foam fabrication operations facilities are not necessary to provide an ample margin of safety to protect public health. In addition, based on our screening-level evaluation of the potential for adverse environmental effects, we concluded that more stringent standards were not necessary to prevent an adverse environmental effect. Considering all analyses, we did not propose any changes to the NESHAP based on the risk review. For more details regarding the risk review, see the proposal preamble (86 FR 1868 at 1876).

The EPA has not made any changes to either the risk assessments or our determinations regarding risk acceptability, ample margin of safety, or adverse environmental effects for the major source Flexible Polyurethane Foam Fabrication Operations source category since the proposal was published on January 11, 2021 (86 FR 1868). We are finalizing the risk review as proposed with no changes.

We received one comment in support of and one comment against the proposed residual risk review and our determination is that no revisions are warranted under CAA section 112(f)(2) for the source category. The comment in support of the determination noted that the residual risk review was reasonable and supported by the available data. The comment opposed to the determination was related to a concern that the EPA may not have included all HAP emitted from the source category, particularly from flame retardants. After review of these comments, and with no information from which to conclude that any HAP emissions are missing from the data or analyses performed, we determined that no changes are needed to the risk assessment. The comments and our specific responses can be found in the document, Summary of Public Comments and Responses on the Proposed Rule for the Major Source Flexible Polyurethane Foam Fabrication NESHAP and the NESHAP for Flexible Polyurethane Foam Production and Fabrication Area Sources, available in the docket for this rulemaking.

As noted in our proposal, the EPA sets standards under CAA section 112(f)(2) using “a two-step standard- setting approach, with an analytical first step to determine an `acceptable risk' that considers all health information, including risk estimation uncertainty, and includes a presumptive limit on MIR of approximately 1-in-10 thousand” (see 54 FR 38045, September 14, 1989). We weigh all health risk factors in our risk acceptability determination, including the cancer MIR, cancer incidence, the maximum chronic noncancer TOSHI, the maximum acute noncancer HQ, the extent of noncancer risks, the distribution of cancer and noncancer risks in the exposed population, and the risk estimation uncertainties.

In the second step of the approach, the EPA considers whether the emissions standards provide an ample margin of safety to protect public health “in consideration of all health information, including the number of persons at risk levels higher than approximately 1-in-1 million, as well as other relevant factors, including costs and economic impacts, technological feasibility, and other factors relevant to each particular decision.” Id.

For the Flexible Polyurethane Foam Fabrication Operations major source category, the risk analysis indicates that no carcinogens are emitted by the source category, and therefore, there is no cancer risk. In addition, the maximum chronic noncancer TOSHI value based on actual and allowable emissions is well below 1 and the maximum screening acute noncancer HQ value (off-facility site) is also well below 1. In addition, the screening-level evaluation of the potential for adverse environmental effects indicated that that no ecological benchmarks were exceeded.

We evaluated all comments on the risk review and determined that no changes to the review are needed. For the reasons explained in the proposal, we determined that the risks from the major source Flexible Polyurethane Foam Fabrication Operations source category are acceptable, the current standards provide an ample margin of safety to protect public health, and more stringent standards are not necessary to prevent an adverse environmental effect. Therefore, pursuant to CAA section 112(f)(2), we are finalizing our residual risk review as proposed and readopting the standards for the major source Flexible Polyurethane Foam Fabrication Operations source category.

During the technology review, one development in a practice, process, or control technology was identified for loop slitter use in the Flexible Polyurethane Foam Fabrication Operations major source category. In addition, we identified existing flame laminators as an unregulated process in the major source category, and we proposed standards for those sources under CAA section 112(d)(2) and (3), as described in section IV.C of this preamble.

At the time of the development of the NESHAP, the EPA found that the foam fabrication industry had effectively discontinued the use of adhesives containing methylene chloride, which was the primary HAP in the adhesives used, and had switched to other adhesives that did not contain methylene chloride and contained only small amounts of other HAP. As a result, for both existing and new loop slitters, the definition of HAP-based adhesive included in the 2003 rule was an adhesive containing 5 percent (by weight) or greater of HAP. As part of the technology review, we reviewed other air toxics MACT standards and noted that several other NESHAP, developed both before and after the major source Flexible Polyurethane Foam Fabrication Operations NESHAP, include a definition of non-HAP adhesive or coating (where the coating definition included adhesives) with a lower percentage of HAP content than that of the definition included in the Flexible Polyurethane Foam Fabrication Operations rule. Additionally, through review of information provided by industry, we found that the current adhesives used in loop slitting operations are less than 1-percent HAP content by total weight. Based on the current industry standards of adhesive usage containing less than 1-percent HAP and the definition for HAP-based adhesive from similar source categories regulating adhesives, we proposed to revise the definition of “HAP-based adhesive” to read: “an adhesive containing 1 percent (by weight) or more of HAP, according to EPA Method 311 (appendix A to 40 CFR part 63) or another approved alternative.”

We also proposed to amend 40 CFR 63.8802(a)(1)(i) and (a)(3)(i), which describe how to determine the mass fraction of HAP in each material used, to remove references to Occupational Safety and Health Administration (OSHA)-defined carcinogens as specified in 29 CFR 1910.1200(d)(4). The references to 29 CFR 1910.1200(d)(4) were intended to specify which compounds must be included in calculating the total HAP content of a coating material if the compounds are present at 0.1-percent or greater by mass; however, 29 CFR 1910.1200(d)(4) has been amended and no longer readily defines which compounds are carcinogens. We proposed to replace these references to OSHA-defined carcinogens and 29 CFR 1910.1200(d)(4) with a list (in a proposed new Table 8 to 40 CFR part 63, subpart MMMMM) of those HAP that must be included in calculating total HAP content of a coating material if they are present at 0.1 percent or greater by mass. We proposed to include HAP in this table if they were categorized in the EPA's Prioritized Chronic Dose-Response Values for Screening Risk Assessments (May 9, 2014), as a “human carcinogen,” “probable human carcinogen,” or “possible human carcinogen” according to The Risk Assessment Guidelines of 1986 (EPA/600/8-87/045, August 1987), 5 or as “carcinogenic to humans,” “likely to be carcinogenic to humans,” or with “suggestive evidence of carcinogenic potential” according to the Guidelines for Carcinogen Risk Assessment (EPA/630/P-03/001F, March 2005). 6 Detailed information of the technology review can be found in the memorandum titled Technology Review for the Flexible Polyurethane Foam Manufacturing Source Category, which is available in the docket for this action (Document ID EPA-HQ-OAR-2020-0572-0003).

For the Flexible Polyurethane Foam Production and Flexible Polyurethane Foam Fabrication area source categories, we found the listed urban HAP methylene chloride is no longer used within either source category. Additionally, we did not find any advances in technologies during our review of the source categories. Detailed information of the technology review can be found in the memorandum titled Technology Review for the Flexible Polyurethane Foam Production and Fabrication Area Source Categories, which is available in the docket for this action (Document ID EPA-HQ-OAR-2020-0572-0004).

The EPA has not made any changes to the technology review since the proposal was published on January 11, 2021. We are finalizing the technology review as proposed with no changes.

We received comments in support of the proposed technology reviews and the revisions we proposed to the definition of HAP-based adhesive resulting from the findings of the technology review. All commenters supported the proposed revision to the definition of HAP-based adhesive. One commenter noted that the proposed revision should not have an adverse impact on loop-slitting and that it is supported by the industry. Two commenters specifically supported this revision in its effect in limiting backsliding. After review of these comments, we determined that no changes are needed to the technology reviews or the proposed revised definition of HAP-based adhesive. The comments and our specific responses can be found in the document, Summary of Public Comments and Responses on the Proposed Rule for the Major Source Flexible Polyurethane Foam Fabrication NESHAP and the NESHAP for Flexible Polyurethane Foam Production and Fabrication Area Sources, available in the docket for this rulemaking.

We evaluated all comments on the technology reviews and determined that no changes to the reviews are needed. Commenters identified no developments in practices, processes, or control technologies advances in technologies to consider, beyond the technology-related development identified in the proposal (industry practice of using lower-HAP adhesive in loop-slitting operations). Therefore, pursuant to CAA section 112(d)(6), we are finalizing our technology reviews as proposed.

Pursuant to CAA section 112(d)(2) and (3), we proposed to establish a numeric limit in the Flexible Polyurethane Foam Fabrication Operations major source NESHAP for HCl emissions from existing flame laminators. Through the technology review, we identified these units as sources of HAP emissions that did not have MACT standards in the NESHAP. For the four existing source flame lamination units in the source category, HCl emissions data from only one of these units is available, and the proposed MACT floor was based on the HCl data for this unit. To determine the level of the MACT floor, the Upper Prediction Limit method was used to account for variability in flame laminator emissions performance, and the MACT floor was calculated at 1.45 pounds per hour of HCl. 7

The EPA also evaluated whether a beyond-the-floor emissions limit would be appropriate; specifically, we evaluated whether the incremental emissions reduction achievable with a venturi scrubber would be cost effective. The venturi scrubber was the only control technology in use at flame lamination sources that was identified by the EPA with the initial promulgation of the NESHAP, and no other developments in control technologies were identified in the review of these standards. The EPA estimated that the average incremental cost per ton of HCl emissions reduced with this technology would be approximately $26,000 and found that this would not be cost effective for the control of HCl. Therefore, we proposed that floor-level MACT controls are appropriate for existing flame laminators.

In the final rule, we have made revisions in several sections to clarify that the flame lamination emission limit applies to each flame lamination line individually. As 40 CFR 63.8784(b)(2) states that the flame lamination affected source is the collection of all flame lamination lines, these revisions will make it clear that the limit is for each flame lamination line within an affected source rather than the collection of all flame lamination lines of an affected source.

For existing flame lamination units, we have also revised the final rule to include a more appropriate method of calculating the HCl emissions rate. In the proposed rule, we proposed to require existing sources to use the same method of calculating the HCl emissions rate as that required for new and reconstructed sources. However, while that method is appropriate for determining compliance with an emissions limit that requires a certain emissions percentage reduction using a control device, it is not appropriate for the existing source emissions limit that requires emissions to be below a specified numeric value, regardless of the use of a control device. Therefore, to correct this deficiency in the final rule, we have added an HCl calculation method that is appropriate to the emissions limit format and is based on the concentration of HCl and the volumetric flow rate of the flame lamination line's outlet gas stream to the atmosphere.

Comment: Several commenters support the establishment of emission standards for HCl emissions from existing flame lamination units; however, one commenter states that the proposed limits need to be strengthened. The commenter observes that there are four existing flame lamination units and that due to data availability, the EPA used data from only one of these to set the proposed MACT floor. The commenter states the EPA should have required the other sources to provide the necessary data for analysis and that there is no indication that the one source for which the EPA has data represents the average emission limitation achieved by the best-performing sources. The commenter adds that the EPA used the upper prediction limit (UPL) approach, which moves the floor further from the average emissions limitation achieved by the best-performing sources. Due to these aspects of the proposed MACT floor, the commenter states that the EPA has not met the CAA requirements to set the limits at the maximum achievable degree.

The commenter also states that the EPA fails to meet the beyond-the-floor requirements by failing to assure the maximum achievable degree of emission limitation. According to the commenter, the EPA decided not to require additional reductions beyond the floor purely based on cost data from its analysis conducted for the proposal of the NESHAP in 2001. The commenter states that the EPA did not provide evidence to support its assumption that the cost effectiveness today would be similar to what it was in 2001 after adjusting for inflation and that the EPA provided no information to support its claim that nothing has substantially changed with the control technology of a venturi scrubber since that time. The commenter adds that the EPA did not consider the health benefits of the emissions reduction.

Response: In setting the MACT floor for these sources, we have used all data available to the Agency. As provided for by CAA section 112(d)(3)(B), this limit was set at the average emission limitation achieved by the best performing sources for which the Administrator has or could reasonably obtain emissions information. In this instance, one of the four flame lamination units in operation in the source category has been tested for HAP emissions. Therefore, this one emissions test, which represents performance of 25 percent of the flame lamination units in operation, represents the whole of the data available for these emissions sources and constitutes the basis for the MACT floor. Based on the information above, the EPA determined that the emissions information on which the MACT floor is based is representative of the source category. While it may have been possible for the EPA to require the facilities to conduct further HAP emissions testing to use in setting the MACT floor, due to several factors (including the additional time this would have added to the rulemaking process, the availability of at least one emissions test, and the expected types and levels of emissions expected from these units), the EPA determined, consistent with the Agency's discretion under the CAA, not to require additional emissions testing to be performed. Additionally, we note that while the commenter is concerned that the emissions limit set using the available data for one source may not be as stringent as the average of the best performing sources in the source category, the Administrator is required to set standards based on available data.

We disagree with the commenter that use of the UPL moves the floor further from the average emission limitation achieved by the best performing sources. To develop the proposed HCl MACT standard for existing flame lamination units, the EPA used the UPL statistical methodology, which the EPA has used in many rulemakings and which was upheld by the D.C. Circuit Court in U.S. Sugar Corp. v. EPA, 830 F.3d 579 (D.C. Cir. 2016). That is, the best performers, and their level of performance, are determined after accounting for sources' normal operating variability. The UPL represents the value below which one can expect the mean of a specified number of future observations ( e.g., 3-run average) to fall, for the specified level of confidence, based upon the results of an independent sample from the same population.

The UPL approach allows for the development of the average emissions value that the source is achieving, given that the MACT floor is derived from short-term emissions test data and such data are not representative of the range of operating conditions that the facility faces on a day-to-day basis. In statistical terms, each test produces a limited data sample, not a complete enumeration of the available data for performance of the unit over a long period of time. Therefore, the EPA needs to adjust the short-term data to account for these varying conditions to properly estimate the source's performance over time.

In calculating the UPL that we proposed as the MACT floor for existing flame lamination lines, we tested the dataset (three runs) for skewness and kurtosis to determine that the non-normal (lognormal) data distribution is the best representation of the sample set, and we used the UPL equation appropriate to that data distribution. Because the floor is based on the performance of a single unit, our evaluation of the data was limited to ensuring that the emission limit is a reasonable estimate of the performance of the unit based on our knowledge about the process and controls. The wide range in HCl emissions shown by the available data for this best-performing unit indicates that variability is significant, and we determined that the emission limit is representative of the actual performance of the unit upon which the limit is based, considering variability.

We note that after MACT standards are promulgated, we are required to review those standards periodically, and for such reviews, we typically have significant additional HAP emissions data from the intervening years of compliance with which to further assess the actual performance of the various emission sources. We anticipate that this will be the case for existing flame lamination lines.

As part of the technology review, a search for information on venturi scrubbers was undertaken and no new information on their performance or costs was found that would indicate that our previous cost analysis is not representative of current costs. No information was received during the comment period to suggest that these assumptions were incorrect.

We concluded in the residual risk assessment that risks from the source category are acceptable and that the standards provide an ample margin of safety. The addition of new MACT standards for HCl for existing sources will further reduce risks from the source category.

Comment: One commenter asserts that the EPA, in setting emission standards for uncontrolled HAP emissions for this source category, must include emission standards for 1-bromopropane (1-BP, also known as n-propyl bromide) as a “necessary” revision to satisfy its legal obligation in this rulemaking, citing Louisiana Environmental Action Network v. EPA, 955 F.3d 1088 (D.C. Cir. 2020) ( LEAN ). The commenter notes that the EPA has determined that 1-BP is an “air pollutant” that “may reasonably be anticipated to cause adverse effects to human health” and that it therefore qualifies as a HAP, and the commenter points out that the EPA, having granted 1-BP for listing as a HAP, has not yet completed that listing process.

Noting that at least one source reported using 1-BP, the commenter argues that the EPA should gather further information and ensure all sources meet emission standards for 1-BP that satisfy § 7412(d) and (f). The commenter cited a recent risk evaluation under TSCA, in which “EPA has determined that risk from emissions to the ambient air of 1-BP could be eliminated or reduced to a sufficient extent by actions taken under the CAA.” The commenter believes the EPA acted unlawfully and in an arbitrary manner by failing in this rulemaking to assess 1-BP emissions and propose emission standards for 1-BP.

Response: The EPA does not agree that the LEAN decision compels regulation of 1-BP for this sector, because that decision only goes to timing; the EPA must address any regulatory gaps (that is, any unregulated HAP emissions from the source category which the EPA is required to regulate) when it conducts a technology review for that category. For this source category, the EPA received information indicating that no major sources are using 1-BP and few to no area sources may be using 1-BP in small quantities as an equipment cleaner. At this time, there is no requirement to set standards for 1-BP as part of the review for major sources in this category during the CAA section 112(d)(6) technology review because 1-BP is not emitted by any major sources in this source category. As for the area sources, the EPA need only review the standards set for the urban HAP for which this area source category was listed under CAA section 112(c)(3), which is methylene chloride. We are not obligated to set standards for other listed HAP that are emitted from this area source category. 8 See Desert Citizens Against Pollution v. EPA, 699 F.3d 524, 525-26 (D.C. Cir. 2012).

We evaluated all comments received regarding the proposed standard for existing flame lamination units and determined that no changes to the level of the standard are needed. We conclude that the standard, which is based on the UPL and emissions data from a single unit, represents the average emission limitation achieved by the best performing sources for which the Administrator has or could reasonably obtain emissions information. A more detailed explanation for this decision may be found in responses provided earlier in this document. Through further review of the proposed rule, we determined that clarifications are needed for the final rule language to ensure it is clear the flame lamination emissions limits apply to each individual flame lamination line, and we have revised the final rule accordingly. In addition, to correct a deficiency in the proposed rule's HCl emissions calculation method for existing source flame lamination units, we have added an appropriate calculation method in the final rule.

The EPA proposed amendments to the major source Flexible Polyurethane Foam Fabrication Operations NESHAP to remove the provisions related to SSM to ensure that they are consistent with the court decision in Sierra Club v. EPA, 551 F.3d 1019 (D.C. Cir. 2008) that standards always apply. As detailed in the January 2021 proposal, we proposed to change the requirements for SSM by removing the exemption for new flame laminators from the requirements to meet the standard during SSM periods and by removing the requirement to develop and implement an SSM plan. The EPA proposed revisions to Table 7 of subpart MMMMM, The Applicability of General Provisions, to remove SSM exemptions and plan development for new flame lamination sources.

We determined that no changes were necessary to the proposed revised requirements for SSM periods. Therefore, we are finalizing the revised provisions related to SSM periods as proposed (86 FR 1868 at 1885, January 11, 2021).

We received comments in support of the proposed revisions regarding SSM periods. Generally, commenters supported the proposed removal of the exemption for periods of SSM and the elimination of the requirement to develop an SSM plan, recognizing that these changes are consistent with court decisions requiring that the CAA standards always apply. After review of these comments, we determined that no changes are needed to the proposed revisions regarding SSM periods. The comments and our specific responses can be found in the document, Summary of Public Comments and Responses on the Proposed Rule for the Major Source Flexible Polyurethane Foam Fabrication NESHAP and the NESHAP for Flexible Polyurethane Foam Production and Fabrication Area Sources, available in the docket for this rulemaking.

We evaluated all comments on the EPA's proposed amendments to remove the SSM provisions. For the reasons explained in the proposed rule, we determined that the proposed removal of the SSM exemptions is required to be consistent with the 2008 court decision that standards always apply. Therefore, we are finalizing our approach for removing the SSM exemptions as proposed.

We proposed amendments to the major source Flexible Polyurethane Foam Fabrication Operations NESHAP to require owners or operators to submit electronic copies of initial notifications, notifications of compliance status, performance test reports, performance evaluation reports, and semiannual reports through the EPA's Central Data Exchange (CDX) using CEDRI. Additionally, we proposed two broad circumstances in which electronic reporting extensions may be provided at the discretion of the Administrator. The EPA proposed these extensions to protect owners or operators from noncompliance in cases where they are unable to successfully submit a report by the reporting deadline for reasons outside of their control, including CDX and CEDRI outages and force majeure events, such as acts of nature, war, or terrorism.

We determined that no changes were necessary to the proposed requirements for owners or operators of flexible polyurethane foam fabrication operations major sources to submit initial notifications, notifications of compliance status, performance test reports, performance evaluation reports, and semiannual reports electronically using CEDRI. Therefore, we are finalizing the electronic reporting provisions as proposed (86 FR 1886, January 11, 2021).

The EPA received one comment that generally supported the proposed amendment to require electronic reporting but was opposed to the force majeure provisions due to concern that those provision would allow for unreported exceedances to go unchecked. After review and consideration of this comment, we determined that no changes are needed to the electronic reporting requirements or their force majeure provisions. This comment and our specific response can be found in the document, Summary of Public Comments and Responses on the Proposed Rule for the Major Source Flexible Polyurethane Foam Fabrication NESHAP and the NESHAP for Flexible Polyurethane Foam Production and Fabrication Area Sources, available in the docket for this rulemaking.

We are finalizing as proposed a requirement in the major source NESHAP that owners or operators of flexible polyurethane foam fabrication operations submit electronic copies of notifications, performance evaluation reports, and semiannual compliance reports using CEDRI. We also are finalizing, as proposed, provisions that allow facility owners or operators a process to request extensions for submitting electronic reports for circumstances beyond the control of the facility ( i.e., for a possible outage in the CDX or CEDRI or for a force majeure event). Such extensions are intended to be available only in extraordinary circumstances; they are limited in duration and do not relieve owners or operators of their reporting obligations. The electronic reporting amendments will increase the ease and efficiency of data submittal for owners and operators of major source flexible polyurethane foam fabrication operations and will make the data more accessible to regulators and the public.

Currently, there are three major sources operating in the United States that are subject to the major source Flexible Polyurethane Foam Fabrication Operations NESHAP. The affected sources under the NESHAP include flexible polyurethane foam fabrication plant sites that operate loop slitters and/or flame laminators. Facilities that use loop slitter adhesive processes would be required to comply with a ban on the use of adhesives containing air toxics. However, the EPA estimates that current air toxic emissions from loop slitter adhesive users are essentially zero as the result of changes in adhesive composition required by OSHA's permissible exposure limit for methylene chloride that was enacted prior to the promulgation of the original MACT standard. Additionally, the EPA estimates that current air toxic emissions from flame laminators for the entire source category are less than 3.5 tpy.

Currently, there are approximately 32 area sources subject to the Flexible Polyurethane Foam Production and Fabrication NESHAP for area sources. The area source standard only regulates methylene chloride emissions, and, similar to the major source standards, emissions of methylene chloride are essentially zero, as required by OSHA's permissible exposure limit for methylene chloride that was enacted prior to the promulgation of the original GACT standards. Based on information provided by industry, there are no emissions of methylene chloride from these sources. For detailed information, please see the memorandum titled Technology Review for Flexible Polyurethane Foam Production and Fabrication Area Sources, available in the docket for this action (Document ID EPA-HQ-OAR-2020-0572-0004).

Current estimated emissions from the Flexible Polyurethane Foam Fabrication Operations source category are approximately 3.5 tpy. We do not estimate any HAP emission reductions from the final amendment adding MACT limits for existing flame laminators nor from the final amendment revising the definition of HAP-based adhesives for loop slitters. Both revisions reflect current practices.

The final amendments to the Flexible Polyurethane Foam Fabrication Operations NESHAP for major sources are expected to have minimal cost impacts. The costs are associated with periodic emissions performance testing, recordkeeping and reporting, electronic reporting, and reviewing the proposed rule. Three major source facilities are affected by these costs, although only two of them are affected by the emissions performance testing requirement. The periodic performance test is required every 5 years, but only for major source facilities that perform flame lamination. Most of the information requirements in the final rule are unchanged from those of the proposed rule. However, after proposal of this action, the EPA revised its cost estimates to incorporate updated information about the costs associated with reporting and performance testing for sources in the flame lamination subcategory. The cost estimates are slightly higher than at proposal. The revised cost estimates reflect that a performance test is required for each flame lamination line at a facility, although the labor required for each test is estimated to be lower than at proposal. See the Economic Impact Analysis in the docket and the accompanying workbook for the updated assumptions and cost estimates (Docket ID No. EPA-HQ-OAR-2020-0572).

For the two affected facilities with flame lamination lines, the year 1 costs are estimated to be about $22,000 per facility, while the undiscounted costs related to reporting and recordkeeping in the following years are estimated at about $2,600 per facility per year except for year 6 when another emissions test is required. The undiscounted costs in year 6 are estimated to be about $17,000 per facility for the sources with flame laminators. For the major source that does not perform flame lamination and thus does not need to fulfill the testing requirement, the costs in year 1 are estimated to be about $6,000, while the undiscounted costs in the following years are estimated at about $2,600 per year.

Because the final amendments to the Flexible Polyurethane Foam Production and Fabrication Area Sources NESHAP impose no new requirements on area sources, there will be no cost impacts for area sources.

The final amendments to the Flexible Polyurethane Foam Fabrication Operations NESHAP for major sources and the Flexible Polyurethane Foam Production and Fabrication NESHAP for area sources are not expected to have market impacts. Over a 10-year timeframe from 2022 to 2031, the net present value of the estimated cost impacts is about $135,000 at a 3 percent discount rate and $121,000 at a 7 percent discount rate in 2019 dollars. The equivalent annualized value of the cost impacts is about $16,000 at a 3 percent discount rate and $17,000 at a 7 percent discount rate. Since there are no expected costs for area sources, and the estimated costs for major sources are minimal, no significant economic impacts are anticipated due to the final amendments. For more information regarding the facility-level cost estimates as well as the net present value and equivalent annualized value estimates, see the memorandum titled Economic Impact Analysis for Final Residual Risk and Technology Review of the National Emission Standards for Hazardous Air Pollutants for Flexible Polyurethane Foam Fabrication Operations, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2020-0572).

This action will result in improvements to the rule and prevent backsliding. In general, backsliding is when a source uses a process, equipment, and/or ingredients that the industry in general has moved beyond in favor of processes, equipment, and/or ingredients with fewer potential adverse environmental impacts. Specifically, the final amendments codify existing industry practices both for existing flame laminators and for new and existing sources that use adhesives with loop slitters. The final amendments also revise the standards such that they always apply. Additionally, the final amendments requiring electronic submittal of initial notifications, performance test results, and semiannual reports will increase the usefulness of the data, are in keeping with current trends of data availability, will further assist in the protection of public health and the environment, and will ultimately result in less burden on the regulated community.

Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms—specifically, minority populations, low-income populations, and indigenous peoples (59 FR 7629, February 16, 1994). Additionally, Executive Order 13985 was signed to advance racial equity and support underserved communities through federal government actions (86 FR 7009, January 20, 2021). The EPA defines environmental justice as the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies” ( https://www.epa.gov/environmentaljustice ). In recognizing that minority and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution.

Based on an analysis of exposed populations, the EPA determined that the source categories do not pose a disproportionately high adverse health impact on minority populations and/or low-income populations, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994) and referenced in Executive Order 13985 (86 FR 7009, January 20, 2021). The EPA remains committed to engaging with communities and stakeholders throughout the development of air pollution regulations.

To examine the potential for any environmental justice issues that might be associated with the major source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups of the populations living within 5 kilometers (km) and within 50 km of the facilities. In the analysis, we also evaluated the distribution of HAP-related cancer and noncancer risks from the major source Flexible Polyurethane Foam Fabrication Operations source category across different demographic groups within the populations living near facilities.

The results of the demographic analysis for the major source category indicate that the minority population (being the total population minus the white population) is slightly higher within 5 km of the three facilities than the national percentage (40 percent versus 38 percent). This difference is accounted for by the larger African American population around the facilities (17 percent versus 12 percent nationally). In addition, the percentage of the population living within 5 km of facilities in the source category is greater than the corresponding national percentage for the demographic groups, “Ages 0 to 17” and “Below the Poverty Level.” When examining the risk levels of those exposed to emissions from Flexible Polyurethane Foam Fabrication facilities, we find that no one is exposed to a cancer risk at or above 1-in-1 million or to a chronic noncancer TOSHI greater than 1. The methodology and the results of the demographic analysis are presented in a technical report, Risk and Technology Review—Analysis of Demographic Factors for Populations Living Near Flexible Polyurethane Foam Fabrication Operations Source Category, available in this docket for this action (Document ID EPA-HQ-OAR-2020-0572-0006).

The EPA determined that the environmental health or safety risks addressed by this action do not present a disproportionate risk to children. The health risk assessments for this action are contained in the document titled Residual Risk Assessment for the Flexible Polyurethane Foam Fabrication Source Category in Support of the 2021 Risk and Technology Review Final Rule available in the docket (Docket ID No. EPA-HQ-OAR-2020-0572).

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 OMB for review.

The information collection activities in rule have been submitted for approval to OMB under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2027.09. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them. The ICR is specific to information collection associated with the Flexible Polyurethane Foam Fabrication Operations source category, through amendments to 40 CFR part 63, subpart MMMMM. (The subject rulemaking imposes no new information collection associated with either the Flexible Polyurethane Foam Production area source category or the Flexible Polyurethane Foam Fabrication area source category.) We are finalizing changes to the recordkeeping and reporting requirements associated with 40 CFR part 63, subpart MMMMM, in the form of: Requiring periodic (every 5 years) performance tests at major sources that perform flame lamination; eliminating the SSM plan and reporting requirements; including reporting requirements for deviations in the semiannual (periodic) report; and including the requirement for electronic submittal of reports. In addition, the number of facilities subject to the standards has changed. The number of respondents was reduced from 20 to 3 based on consultation with industry representatives and state/local agencies.

Respondents/affected entities: The respondents to the recordkeeping and reporting requirements are owners or operators of flexible polyurethane foam fabrication operations subject to 40 CFR part 63, subpart MMMMM.

Respondent's obligation to respond: Mandatory (40 CFR part 63, subpart MMMMM).

Estimated number of respondents: 3 facilities.

Frequency of response: The frequency of responses varies depending on the burden item. Responses include one-time review of rule amendments, reports of periodic performance tests, and semiannual compliance reports.

Total estimated burden: The annual recordkeeping and reporting burden for responding facilities to comply with all requirements in the NESHAP, averaged over the 3 years of this ICR, is estimated to be 113 hours (per year). The average annual burden to the Agency over the 3 years after the amendments are final is estimated to be 51 hours (per year) for the Agency. Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: The annual recordkeeping and reporting cost for responding facilities to comply with all requirements in the NESHAP, averaged over the 3 years of this ICR, is estimated to be $21,600 (rounded, per year). The total operation and maintenance costs associated with performance test requirements, averaged over the 3 years of this ICR, is estimated to be $10,100 per year. The total average annual Agency cost over the first 3 years after the amendments are final is estimated to be $2,500.

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

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden, or otherwise has a positive economic effect on the small entities subject to the rule. As finalized, this action will impose new requirements only on major sources, and none of the major sources in the Flexible Polyurethane Foam Fabrication Operations source category are considered a small entity. Because this action imposes no new requirements on area sources, there will be no significant impact on any small entities among area sources. We have, therefore, concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.

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. No tribal facilities are known to be engaged in the industries that would be affected by this action nor are there any adverse health or environmental effects from this action. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections IV.A of this preamble.

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

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low- income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

The documentation for this decision is contained in the technical reports titled Risk and Technology Review—Analysis of Demographic Factors for Populations Living Near Flexible Polyurethane Foam Fabrication Source Category Operations and Residual Risk Assessment for the Flexible Polyurethane Foam Fabrication Source Category in Support of the 2021 Risk and Technology Review Final Rule, available in the docket for this action (Document ID EPA-HQ- OAR-2020-0572-0006).

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

For the reasons set out in the preamble, 40 CFR part 63 is amended as follows:

DoD, GSA, and NASA are correcting an erroneous weblink under the Background section of the rule.

In FR Doc. 2021-22144 appearing on pages 61017-61038 in the issue of November 4, 2021, make the following correction:

1. On page 61017, in the second column, correct the weblink “ https://section809panel.org/wp-content/uploads/2018/04/Sec809Panel_Vol1-Report_Jan18_REVISED_2018-03-14.pdf ” to read “ https://discover.dtic.mil/wp-content/uploads/809-Panel-2019/Volume1/Sec809Panel_Vol1-Report_Jan2018.pdf.”