This final rule makes technical amendments to regulations in the Code of Federal Regulations (CFR). Part 201 of Title 9 of the CFR contains regulations that effectuate the Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq. ). 9 CFR 201 is divided into several sections that are currently grouped under undesignated center headings. AMS has determined that reorganizing the part into subparts and adding designated subpart headings will make the part more readable and facilitate future amendatory actions. Further, AMS is revising headings in part 201 to conform with nomenclature guidelines established by the Office of the Federal Register. This rule falls within a category of regulatory actions that the Office of Management and Budget exempted from Executive Order 12866 review.

The notice and comment requirements in the Administrative Procedure Act (APA) (5 U.S.C. 553) apply to rules as defined in 5 U.S.C. 551 (“the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing”). This final rule is limited to reorganizing Part 201 into subparts and adding designated subpart headings. It does not create new or amend existing requirements or interpretations. Thus, AMS has determined that this final rule is not a rule subject to the notice and comment requirements of 5 U.S.C. 553. Additionally, to the extent that this final rule is subject to this section, AMS has determined that there is good cause for making this technical amendment final without prior proposal and opportunity for comment because the revisions are not substantive and will have no impact on the regulatory requirements in the affected part. AMS has determined that public comment on such administrative changes is unnecessary and that there is good cause under the APA for proceeding with a final rule.

Further, because a notice of proposed rulemaking and opportunity for public comment are not required to be given for this rule under the APA or any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) are not applicable. Accordingly, this rule is issued in final form. Although there is no formal comment period, public comments on this rule are welcome on an ongoing basis. Comments should be submitted to the address or email under the FOR FURTHER INFORMATION CONTACT caption.

For the reasons set forth in the preamble, AMS amends 9 CFR part 201 as follows:

The purpose of this regulatory action is to incorporate by reference into the NRC's regulations the latest revisions of three regulatory guides (RGs). This regulatory action is also incorporating by reference, NUREG-2228, “Weld Residual Stress Finite Element Analysis Validation: Part II—Proposed Validation Procedure,” that is associated with a condition in one of the regulatory guides. The three RGs identify new, revised, and reaffirmed code cases published by the American Society of Mechanical Engineers (ASME), which the NRC has determined are acceptable for use as voluntary alternatives to compliance with certain provisions of the ASME Boiler and Pressure Vessel Code (BPV Code) and the ASME Code for Operation and Maintenance of Nuclear Power Plants, Division 1, OM Code: Section IST (OM Code), currently incorporated by reference into the NRC's regulations.

The three RGs that the NRC is incorporating by reference are RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 39; RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 20; and RG 1.192, “Operation and Maintenance [OM] Code Case Acceptability, ASME OM Code,” Revision 4. The NRC is also incorporating by reference NUREG-2228, which provides the procedure for validating the weld residual stress analysis methodology associated with ASME Code Case N-847. This final rule allows nuclear power plant licensees and applicants for construction permits, operating licenses, combined licenses, standard design certifications, standard design approvals, and manufacturing licenses to use the code cases newly listed in these revised RGs as voluntary alternatives to engineering standards for the construction, inservice inspections, and inservice testing of nuclear power plant components. In this document, the NRC also notifies the public of the availability of RG 1.193, “ASME Code Cases Not Approved for Use,” Revision 7. This document lists code cases that the NRC has not approved for generic use and is not incorporated by reference into the NRC's regulations.

The NRC prepared a regulatory analysis to determine the expected quantitative costs and benefits of this final rule, as well as qualitative factors to be considered in the NRC's rulemaking decision. The analysis concluded that this rule results in net savings to the industry and the NRC. As shown in Table 1, the estimated total net benefits relative to the regulatory baseline range from approximately $5.86 million (7-percent net present value) to $6.67 million (3-percent net present value).

The regulatory analysis also considered the following qualitative considerations: (1) Flexibility and decreased uncertainty for licensees when making modifications or preparing to perform inservice inspection or inservice testing; (2) consistency with the provisions of the National Technology Transfer and Advancement Act of 1995, which encourages Federal regulatory agencies to consider adopting voluntary consensus standards as an alternative to de novo agency development of standards affecting an industry; (3) consistency with the NRC's policy of evaluating the latest versions of consensus standards in terms of their suitability for endorsement by regulations and regulatory guides; and (4) consistency with the NRC's goal to harmonize with international standards to improve regulatory efficiency for both the NRC and international standards groups.

The regulatory analysis concludes that this final rule should be adopted because it is justified when integrating the cost-beneficial quantitative results and the positive and supporting nonquantitative considerations in the decision. For more information, please see the final regulatory analysis as indicated in Section XVI, “Availability of Documents,” of this document.

The ASME develops and publishes the ASME BPV Code, which contains requirements for the design, construction, and inservice inspection examination of nuclear power plant components, and the ASME OM Code, 1 which contains requirements for inservice testing of nuclear power plant components. In response to BPV and OM Code user requests, the ASME develops code cases that provide voluntary alternatives to BPV and OM Code requirements under special circumstances.

The NRC approves the ASME BPV and OM Codes in § 50.55a, “Codes and standards,” of title 10 of the Code of Federal Regulations (10 CFR) through the process of incorporation by reference. As such, each provision of the ASME Codes incorporated by reference into and mandated by § 50.55a constitutes a legally-binding NRC requirement imposed by rule. As noted previously, the ASME code cases, for the most part, represent alternative approaches for complying with provisions of the ASME BPV and OM Codes. Accordingly, the NRC periodically amends § 50.55a to incorporate by reference the NRC's RGs listing approved ASME code cases that may be used as voluntary alternatives to the BPV and OM Codes. 2

This final rule is the latest in a series of rules that incorporate by reference new versions of several RGs identifying new, revised, and reaffirmed, 3 and unconditionally or conditionally acceptable ASME code cases that the NRC approves for use. In developing these RGs, the NRC reviews the ASME BPV and OM code cases, determines the acceptability of each code case, and publishes its findings in the RGs. The RGs are revised periodically as new code cases are published by the ASME. The NRC incorporates by reference the RGs listing acceptable and conditionally acceptable ASME code cases into § 50.55a. The NRC published a final rule dated March 16, 2020, that incorporated by reference into § 50.55a the most recent versions of the RGs, which are RG 1.84, “Design, Fabrication, and Materials Code Case Acceptability, ASME Section III,” Revision 38; RG 1.147, “Inservice Inspection Code Case Acceptability, ASME Section XI, Division 1,” Revision 19; and RG 1.192, “Operation and Maintenance Code Case Acceptability, ASME OM Code,” Revision 3.

This final rule incorporates by reference NUREG-2228 and the latest revisions of the NRC's RGs that list the ASME BPV and OM code cases that the NRC finds to be acceptable, or acceptable with NRC-specified conditions (“conditionally acceptable”). Regulatory Guide 1.84, Revision 39, supersedes the incorporation by reference of Revision 38; RG 1.147, Revision 20, supersedes the incorporation by reference of Revision 19; and RG 1.192, Revision 4, supersedes the incorporation by reference of Revision 3.

The ASME code cases that are the subject of this final rule are the new and revised Section III and Section XI code cases as listed in Supplements 0 through 7 to the 2015 Edition of the ASME BPV Code, Supplements 0 through 7 to the 2017 Edition of the ASME BPV Code, Supplements 0 and 1 to the 2019 Edition of the ASME BPV Code, and the OM code cases listed in the 2020 Edition of the ASME OM Code and on the ASME Codes & Standards (C&S) Connect website. 4

The latest editions and addenda of the ASME BPV and OM Codes that the NRC has approved for use are referenced in § 50.55a. The ASME also publishes code cases that provide alternatives to existing Code requirements that the ASME developed and approved. This final rule incorporates by reference the most recent revisions of RGs 1.84, 1.147, and 1.192, which allow nuclear power plant licensees, and applicants for combined licenses, standard design certifications, standard design approvals, and manufacturing licenses under the regulations that govern license certifications, to use the code cases listed in these RGs as suitable alternatives to the ASME BPV and OM Codes for the construction, inservice inspections, and inservice testing of nuclear power plant components. Because the NRC is requiring the use of NUREG-2228 within a condition on Code Case N-847, the NRC is also incorporating by reference NUREG-2228. The ASME publishes the OM Code Cases and lists the code cases in the ASME OM Code edition and on the ASME C&S Connect website. In contrast, the ASME publishes BPV code cases in a separate document and at a different time than the ASME BPV code editions. This final rule identifies the code cases by the edition of the ASME BPV Code or ASME OM Code under which they were published by the ASME.

The following general guidance applies to the use of the ASME code cases approved in the latest versions of the RGs that are incorporated by reference into § 50.55a as part of this final rule. Specifically, the use of the code cases listed in the latest versions of RGs 1.84, 1.147, and 1.192 are acceptable with the specified conditions when implementing the editions and addenda of the ASME BPV and OM Codes incorporated by reference in § 50.55a.

The approval of a code case in the NRC's RGs constitutes acceptance of its technical position for applications that are not precluded by regulatory or other requirements or by the recommendations in these RGs. The applicant or licensee is responsible for ensuring that use of the code case does not conflict with regulatory requirements or licensee commitments. The code cases listed in the RGs are acceptable for use within the limits specified in the code cases. If the RG states an NRC condition on the use of a code case, then the NRC condition supplements and does not supersede any condition(s) specified in the code case, unless otherwise stated in the NRC condition.

The ASME code cases may be revised for many reasons ( e.g., to incorporate operational examination and testing experience and to update material requirements based on research results). On occasion, an inaccuracy in an equation is discovered or an examination, as practiced, is found not to be adequate to detect a newly discovered degradation mechanism.

Therefore, when an applicant or a licensee initially implements a code case, § 50.55a requires that the applicant or the licensee implement the most recent version of that code case, as listed in the RGs incorporated by reference. Code cases superseded by revision are no longer acceptable for new applications unless otherwise indicated.

Section III of the ASME BPV Code applies to new construction ( i.e., the edition and addenda to be used in the construction of a plant are selected based on the date of the construction permit and are not changed thereafter, except voluntarily by the applicant or the licensee). Hence, if a Section III code case is implemented by an applicant or a licensee and a later version of the code case is incorporated by reference into § 50.55a and listed in the RG, the applicant or licensee may use either version of the code case (subject, however, to whatever change requirements apply to its licensing basis ( e.g., § 50.59)).

A licensee's inservice inspection and inservice testing programs must be updated every 10 years to the latest edition and addenda of the ASME BPV Code, Section XI, and the OM Code, respectively, that were incorporated by reference into § 50.55a and in effect 18 months prior to the start of the next inspection and testing interval. Licensees that were using a code case prior to the effective date of its revision may continue to use the previous version for the remainder of the 120-month inservice inspection or inservice testing interval. This relieves licensees of the burden of having to update their inservice inspection or inservice testing program each time a code case is revised by the ASME and approved for use by the NRC. Code cases apply to specific editions and addenda, and code cases may be revised if they are no longer accurate or adequate, so licensees choosing to continue using a code case during the subsequent inservice inspection or inservice testing interval must implement the latest version incorporated by reference into § 50.55a and listed in the RGs.

The ASME may annul code cases that are no longer required, are determined to be inaccurate or inadequate, or have been incorporated into the BPV or OM Codes. A code case may be revised, for example, to incorporate user experience. The older or superseded version of the code case cannot be applied by the licensee or applicant unless it was applied prior to being annulled or superseded.

The code cases discussed in Table I are new, revised, or reaffirmed code cases in which the NRC approves for use without conditions. The table identifies the regulatory guide listing the applicable code case that the NRC approves for use.

The NRC determined that certain code cases, as issued by the ASME, are generally acceptable for use, but that the alternative requirements specified in those code cases must be supplemented in order to provide an acceptable level of quality and safety. Accordingly, the NRC imposes conditions on the use of these code cases to modify, limit, or clarify their requirements. The conditions specify, for each applicable code case, the additional activities that must be performed, the limits on the activities specified in the code case, and/or the supplemental information needed to provide clarity. These ASME code cases, listed in Table II below, are included in Table 2 of RG 1.84, RG 1.147, and RG 1.192. This section provides the NRC's evaluation of the code cases and the reasons for the NRC's conditions. Notations indicate the conditions duplicated from previous versions of the RG.

Type: Revised.

Title: Additional Materials for Subsection NF, Class 1, 2, 3, and MC Supports Fabricated by Welding, Section III, Division 1.

The conditions on Code Case N-71-20 are the same as the conditions on N-71-19 that were approved by the NRC in Revision 38 of RG 1.84. When the ASME revised N-71, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions are retained in Revision 39 of RG 1.84.

Type: Revised.

Title: Fiberglass Reinforced Thermosetting Resin Pipe, Section III, Division 1.

The conditions on Code Case N-155-3 are the same as the conditions on N-155-2 that were approved by the NRC in Revision 38 of RG 1.84. When the ASME revised N-155-2, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions are retained in Revision 39 of RG 1.84.

Type: Revised.

Title: Use of Polyethylene (PE) Class 3 Plastic Pipe, Section III, Division 1.

This code case is applicable only to butt fusion joints and the content was incorporated into Mandatory Appendix XXVI in the 2015 Edition of Section III of the ASME Code. The relevant provisions of Code Case N-755-4 are the same as those in Mandatory Appendix XXVI. Therefore, the NRC is applying the same conditions to Code Case N-755-4. The NRC has determined that these conditions are necessary to ensure structural integrity of the polyethylene piping and fusion joints when the polyethylene piping is used in Class 3 safety-related applications.

Type: New.

Title: Alternative Rules for Simplified Elastic-Plastic Analysis Class 1, Section III, Division 1.

The NRC finds the code case satisfactory and technically acceptable for use only with code editions Summer 1979 and later. This code case, as written, is not acceptable for use with editions of Section III earlier than the Summer 1979 Edition, which included the term Delta T1 in NB-3600 Equation 10, because the code case is based on equations used in the Summer 1979 Edition and later editions of the Code.

Type: New.

Title: Application of the ASME NPT Stamp, Section III, Divisions 1, 2, 3, and 5.

The NRC approved this code case with a condition in a § 50.55a rulemaking issued in 2017 (82 FR 32934; July 18, 2017), and the supplement was not modified in a way that would make it possible for the NRC to remove the condition. Therefore, the condition is retained in Revision 39 of RG 1.84.

Type: New.

Title: Construction of Items Prior to the Establishment of a Section III, Division 1 Owner, Section III, Division 1.

This code case allows certificate holders to construct all items prior to the establishment of an Owner. Code Case N-883 was developed to address international stakeholders and identify the ASME as a global standard development organization. The NRC's main concern is that without the designation of an Owner, the NRC would not be able to provide regulatory oversight of the ASME certificate holder manufacturing the items, which is not consistent with appendix B to 10 CFR part 50 and the requirements in § 50.55(a) for a basic component. During discussions with the ASME staff on this code case, it was determined that the NRC would condition this code case based on regulatory oversight, as would other regulatory bodies depending on each countries' specific regulations. This is evident as this code case specifies that the “the items have been constructed by [ASME] Certificate Holders who are specifically authorized by the Regulatory Authority having jurisdiction over the Owner's facility to construct items using this Case.” The condition, “This Code Case may be used for the construction of items by a holder of a construction permit, operating license, or combined license under 10 CFR part 50 or part 52,” provides this specific regulatory authorization thereby ensuring the appropriate regulatory oversight. As a result of public comment, the NRC clarified the condition on the code case as follows: “This Code Case may only be used for the construction of items by a holder of a construction permit, operating license, or combined license under 10 CFR part 50 or 10 CFR part 52. This Code Case may not be used by a holder of a manufacturing license or standard design approval or by a design certification applicant.”

Type: New.

Title: Use of Polyethylene Pipe for Class 3, Section III, Division 1.

This code case is applicable for the use of polyethylene pipe in Section III, Class 3, Division 1 above ground applications. This code case refers to Mandatory Appendix XXVI of Section III of the ASME Code. The 2015 Edition of Appendix XXVI contains requirements for butt fusion joints for buried piping. The 2017 Edition of Appendix XXVI contains requirements for butt fusion and electrofusion joints for buried piping. Therefore, all the conditions as noted in Section III of the 2015-2017 Code Edition rule related to buried piping Mandatory Appendix XXVI apply to this code case. The same conditions as buried piping also apply to above ground application. One additional condition is needed for above ground applications related to fire protection. A condition on fire protection is needed because polyethylene material is combustible and above ground uses are more susceptible to fire hazards.

The NRC agreed with the public comments to remove conditions 1, 2, and 3 because the three conditions are the same as those for Section III, Mandatory Appendix XXVI, which was conditionally accepted by the NRC in § 50.55a. It is redundant to specify these conditions to Code Case N-886.

As a result of public comment, the NRC clarified condition 4 to state that for aboveground applications, licensees must ensure that plant fire protection program addresses any high-density polyethylene (HDPE) consistent with the requirements of 10 CFR 50.48. The licensee must identify the specific program to satisfy this objective such as the plant fire protection program. Therefore, the condition is retained in Revision 39 of RG 1.84.

The NRC agreed with the public comment to remove condition 5 because the requirement that carbon black distribution in HDPE pipe to be homogenous to prevent windows and delamination is a pipe manufacturing process issue. The staff determined that the requirements in Mandatory Appendix XXVI-2231(b) adequately address this issue. Code Case N-886 is only for design, and all materials must meet the requirements of Appendix XXVI.

Type: Revised.

Title: Evaluation Criteria for Temporary Acceptance of Flaws in Moderate Energy Class 2 or 3 Piping and Gate Valves, Section XI, Division 1.

Code Case N-513-5 contains provisions to permit temporary acceptance of flaws, in moderate energy Class 2 or 3 piping, including elbows, pipe bends, reducers, expanders, branch tees, and gate valves without performing a repair/replacement activity for a limited period. The code case contains provisions regarding the scope, flaw characterization, periodic leakage monitoring, flaw evaluation, and augmented examinations. The NRC finds that the provisions of N-513-5 are acceptable except that the augmented examination provisions in Section 5 of the code case require clarification.

When a licensee applies N-513-5 to disposition a through-wall leak or wall thinning in a piping system, Section 5 of the code case requires augmented examinations for flaws and significant flaws. The augmented examination requirements in N-513-5 are the same as in Code Case N-513-3.

In 2018, the NRC found an instance where a licensee misinterpreted the provisions in Section 5 of N-513-3 and did not perform the required augmented examinations to disposition a through-wall leak in a service water system pipe. Other licensees have similarly misinterpreted the augmented examination provisions in Section 5 of N-513-3. The NRC found that the issue stems from the definition of the terms “flaw” and “significant flaw” in Sections 5(b) and 5(c) of N-513-3, respectively. The NRC, therefore, imposes two conditions to define “flaw” and “significant flaw” as those terms are used in Section 5 of N-513-5. Licensees would be required to apply these definitions to Section 5 when using the code case.

The first condition defines a “flaw” as a non-through-wall planar or nonplanar flaw with a wall thickness less than 87.5 percent of the nominal wall thickness of the pipe or the design minimum wall thickness. The NRC notes that the pipe wall thickness at the time of the plant construction may deviate from the nominal pipe wall thickness slightly as part of manufacturing process. The generally accepted deviation is 12.5 percent of the nominal pipe wall thickness or the design minimum wall thickness.

The second condition defines “significant flaw” as any pipe location that does not satisfy the provisions of Section 3 of N-513-5 or if any detected flaw that has a depth greater than 75 percent of the pipe wall thickness. The NRC staff notes that the criterion of the 75 percent wall thickness criterion originates from the provisions of IWC/IWD-3643 of the ASME Code, Section XI, which prohibits a flaw that exceeds 75 percent of the pipe wall thickness to remain in service. Under Section 5 of N-513-5, a planar flaw that exceeds 75 percent of the pipe wall thickness may remain in service; however, the licensee must perform an augmented examination. The NRC agreed with the public comment that Condition 2 needed clarification. As a result, the NRC revised Condition No. 2 as follows: “For the purposes of section 5 of Code Case N-513-5, the term “significant flaw” means any flaw found during augmented examinations performed per Section 5 of N-513-5 that has a depth greater than 75 percent of the pipe wall thickness or that does not satisfy the applicable requirements of the flaw evaluation per Section 3 of N-513-5. If a significant flaw as defined above is present, then the licensee must perform the additional augmented examination specified in Section 5.”

Type: Revised.

Title: Underwater Welding, Section XI, Division 1.

In the rulemaking for the 2009 Addenda through 2013 Editions of the ASME Code (82 FR 32934; September 18, 2017), the NRC-specified conditions that should be applied to Section XI, Article IWA-4660 when performing underwater welding on irradiated materials. These conditions provide guidance on what level of neutron irradiation and/or helium content would require review and approval by the NRC because of the impact of neutron fluence on weldability. These conditions provide separate criteria for three generic classes of material: Ferritic material, austenitic material other than P-No. 8 ( e.g., nickel-based alloys) and austenitic P-No. 8 material ( e.g., stainless steel alloys). These conditions are currently located in § 50.55a(b)(2)(xii)(A) and (B). The conditions located in § 50.55a(b)(2)(xii)(A) and (B) are identical to the conditions that were imposed on Code Case N-516-4 that were approved by the NRC in Revision 19 of RG 1.147. When the ASME revised N-516, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions are retained in Revision 20 of RG 1.147 by stating the provisions of § 50.55a(b)(2)(xii)(A) and (B) must be met when applying this code case.

Type: Revised.

Title: Evaluation of Pipe Wall Thinning, Section XI.

Based on public comments, the NRC found that existing Condition 2(b) references Figure-3622.1(a)(1), which does not exist in Code Case N-597-3. The NRC revised Condition 2(b) in the final rule to reference Figure 3622-1 of the code case.

Type: Revised.

Title: Evaluation Criteria for Temporary Acceptance of Degradation in Moderate Energy Class 2 or 3 Vessels and Tanks, Section XI, Division 1.

The condition on Code Case N-705-1 is identical to the condition on N-705 that was approved by the NRC in Revision 19 of RG 1.147. When the ASME revised N-705, the code case was not modified in a way that would make it possible for the NRC to remove the condition. Therefore, the condition is retained in Revision 20 of RG 1.147.

Type: Revised.

Title: Nickel Alloy Reactor Coolant Inlay and Onlay for Mitigation of Pressurized Water Reactor (PWR) Full Penetration Circumferential Nickel Alloy Dissimilar Metal Welds in Class 1 Items, Section XI, Division 1.

The conditions on Code Case N-766-3 are identical to the conditions on N-766-1 that were approved by the NRC in Revision 19 of RG 1.147. When the ASME revised N-766, the code case was not modified in a way that would make it possible for the NRC to remove the conditions. Therefore, the conditions are retained in Revision 20 of RG 1.147.

Type: New.

Title: Alternative Requirements for Preparation and Submittal of Inservice Inspection Plans, Schedules, and Preservice and Inservice Inspection Summary Reports, Section XI, Division 1.

Code Case N-778 was originally listed in Table 2 of Revision 18 of RG 1.147 with two conditions. As a result of public comments, the NRC revised the second condition on Code Case N-778 to be consistent with Code Case N-892 by increasing the time period for submittal of the inservice inspection summary report to 120 days following the completion of each refueling outage.

Type: Revised.

Title: Ultrasonic Examination in Lieu of Radiography for Welds in Ferritic or Austenitic Pipe, Section XI, Division 1.

The condition on Code Case N-831-1 is identical to the condition on N-831 that was approved by the NRC in Revision 19 of RG 1.147. When ASME revised N-831, the code case was not modified in a way that would make it possible for the NRC to remove the condition. Therefore, the condition is retained in Revision 20 of RG 1.147.

Type: New.

Title: Partial Excavation and Deposition of Weld Metal for Mitigation of Class 1 Items, Section XI, Division 1.

The ASME Code Case N-847 provides guidelines for a repair/mitigation process for welds. The process, excavation and weld repair (EWR), removes susceptible material from the outside diameter of the pipe, and replaces it with more resistant weld material. This technique allows for the potential of two mitigation methods, the use of more crack-resistant material and the potential for compressive stresses on the inside surface of the repaired/mitigated weld to arrest or prevent cracking. Finally, the excavation can be done 360-degrees around the weld or only for a partial arc of the weld.

The code case would allow for application of this process to both BWR and PWR designs. However, the EWR process, as defined in this code case, has certain challenges addressing the cracking mechanisms in these operating environments and materials. In addition, the regulatory requirements or guidelines related to the code case vary depending on the design of the reactor. For PWR designs, the inservice inspection rules are provided by § 50.55a(g)(6)(ii)(F), which mandates the implementation of a version of ASME Code Case N-770-5. For BWR designs, the inservice inspection guidelines are provided by Generic Letter 88-01, “NRC Position on Intergranular Stress Corrosion Cracking (IGSCC) in BWR Austenitic Stainless Steel Piping,” or BWRVIP-75-A, “BWR Vessel and Internals Project Technical Basis for Revisions to Generic Letter 88-01 Inspection Schedules.” Therefore, the NRC is imposing six conditions to ensure the inservice inspection frequency guidelines of the code case are consistent with the previous requirements and guidance, which are based on the effectiveness of the overall design of the repair/mitigation to address the various cracking mechanisms of these operating reactor designs.

The first condition is a continuation of the condition of § 50.55a(g)(6)(ii)(F)( 16 ), which requires that a partial arc EWR, as described in Inspection Item O of ASME Code Case N-770-5, cannot be used without NRC review and approval for PWR designs. The NRC notes that the issues addressed in the final rule incorporating by reference the 2015 and 2017 Editions of the ASME BPV Code and the 2015 and 2017 Editions of the ASME OM Code remain applicable, and further apply to BWR design application of a partial arc EWR. These concerns are for the effectiveness of the repair through a weld residual stress calculation and flaw growth analysis to confirm design of the mitigation for the required inspection interval, non-destructive examination uncertainty analysis of the as-found flaw remaining in the reactor coolant pressure boundary, and the potential for further crack initiation or growth. The NRC requires, through the first condition, that approval of the use of this code case is only for the application of the 360-degree EWR.

The second condition is related to Figure 1A and Figure 1B of the code case. The NRC has experience with relief request submittals, where the details associated with the configuration of the prep area, where the defect is being removed, have shown sharp bottom edges and steep walls. This geometry can result in welding issues, which could result in unfused material, leading to stress risers, which may promote cracking. The NRC requires, through the second condition, that the intersection points at the interface between EWR metal and existing base metal must be rounded to minimize stress concentration.

The third condition is related to Section 2(d) of the code case, which discusses the flaw evaluations required for the design considerations of the EWR. In recent testing conducted for the NRC measurable stress corrosion cracking (SCC) growth was detected past the interface between the SCC-susceptible and less susceptible material. It was demonstrated that the crack can branch and propagate in a direction normal to the original direction along a SCC-susceptible path. In the Alloy 52M deposited onto Alloy 182 specimens tested, this occurred in the diluted region of the Alloy 52M material as well as the weld metal. The NRC requires, through the third condition, that flaw analysis include the potential for crack growth through the dilution zone including crack branching. As NRC-approved crack growth rates are not available for all material types ( e.g., Alloy 690 weld material), the alternative requirements for development of crack growth rates should be consistent with ASME Section XI Appendix C, “Flaw Growth Rate Due to Stress Corrosion Cracking,” C-3220(a). As a result of public comment, the NRC agrees this condition should be updated to reference Section 2(d)(1), rather than 2(d)(2) as discussed in the proposed rule (86 FR 7820, February 2, 2021), for nickel-based alloys. The NRC clarified the condition to state the evaluation in Section 2(d)(1) of the code case must include evaluation of crack growth into the Alloy 690 weld material, including the dilution zones and allowing change in flaw growth direction.

The fourth condition is related to Section 2 of the code case. The NRC is requiring the use of NUREG-2228, because it provides a proven method for validating the weld residual stress analysis methodology. Because the NRC requires the use of NUREG-2228 within this condition on the requirements in the code case, the NRC is incorporating by reference NUREG-2228 into § 50.55a(a)(3)(iv).

The fifth condition is related to the longer-term volumetric inspection frequencies of Table 1, including notes (1), (3), and (4). These notes provide the BWR design inspection frequency of various EWR types based on Generic Letter 88-01 (1988) as supplemented by Generic Letter 88-01, Supplement 1 (1992), “NRC Position on Intergranular Stress Corrosion Cracking (IGSCC) in BWR Austenitic Stainless Steel Piping,” or BWRVIP-75-A, “BWR Vessel and Internals Project Technical Basis for Revisions to Generic Letter 88-01 Inspection Schedules.” The NRC has concluded that the inspection requirements for EWRs for BWRs need to be augmented.

The first volumetric examination following application of BWR EWR-2A, EWR-1B, and EWR-2B welds is performed to verify effectiveness of the repair/mitigation before the new weld can be placed in a longer-term volumetric inspection frequency. The code case allows licensees the option of performing this examination during the first or second refueling outage after installation. However, based on the lower operating temperatures of a BWR (approximately 546 °F to 558 °F), and hence the potential slow crack growth rate of the remaining flaw left in service, the NRC has concluded that the examination should occur during the second refueling outage after the EWR application to provide adequate time for any potential measurable flaw growth to occur or in the case of an EWR-2A, for crack initiation and growth to occur.

The long-term volumetric inspections for BWRs require modification because: (a) For EWR-1A EWRs, the augmented inspection requirements are consistent with the conditions of the inspection frequencies of Code Case N-770-5. These inspection frequency requirements were previously developed by the NRC based on the capabilities of the EWR process to address stress corrosion cracking while providing significant credit for the use of hydrogen water chemistry/noble metal chemical addition controls; and (b) for EWR-1B EWRs, the design that would allow a crack to be left in service, should not be allowed to go uninspected for the remainder of plant life. Therefore, the NRC requires the long-term volumetric inspection of these welds at each 10-year inservice inspection interval. The NRC notes that this condition is consistent with the NRC condition established in § 50.55a for Inspection Item N-1 EWRs (EWR that meets stress criteria; however, a crack is present).

The sixth condition is related to Table 1, Note (1), and the option to use an unspecified alternative to determine examination frequencies and scope expansion criteria. Note (1) specifies the use of NRC Generic Letter 88-01 and includes BWRVIP-75-A as an example of an alternative. The NRC has concluded that NRC Generic Letter 88-01 (1988), as supplemented by Generic Letter 88-01, Supplement 1 (1992), or BWRVIP-75-A, are acceptable, subject to the fifth condition, to determine examination frequencies and scope expansion criteria. However, Note (1) would allow the use of other, unknown alternatives and does not provide criteria to ensure alternatives are adequate for this purpose. Therefore, to ensure that licensees use an adequate standard to determine examination frequencies and scope expansion criteria, the sixth condition requires that licensees must not use an alternative other than those specified in Note (1).

Type: New.

Title: Reactor Vessel Threads in Flange Examinations, Section XI, Division 1.

Code Case N-864 eliminates the required ASME Code, Section XI examination for the reactor vessel threads-in-flange for all inservice inspection intervals. The NRC has previously granted alternatives under § 50.55a(z) that eliminate the reactor pressure vessel threads-in-flange examinations (ASME Section XI, Examination Category B-G-1, Item No. B6.40) for up to two inservice inspection intervals through the NRC's alternative request process. For alternatives that requested elimination of the examination for a second consecutive 10-year inservice inspection interval, the NRC has been requesting additional information on activities performed to ensure that the condition of the reactor pressure vessel threads-in-flange receives some level of monitoring. These activities typically have included care and maintenance of the reactor vessel threads-in-flange (and studs) whenever the closure head is removed. The NRC has limited approval of such requests to two subsequent inservice inspection intervals because the NRC has determined that complete elimination of the examinations does not provide adequate protection against long-term degradation of the threads-in-flange. The NRC is imposing conditions on the use of Code Case N-864 that are consistent with the limits the NRC has placed on similar alternatives requests.

The first condition in Code Case N-864 requires that the reactor pressure vessel threads-in-flange examinations (ASME Section XI, Examination Category B-G-1, Item No. B6.40) must be performed in at least every third 10-year ISI interval. This condition also limits the application of Code Case N-864 at facilities that have been authorized under § 50.55a(z) to use alternatives that eliminate reactor pressure vessel threads-in-flange examinations to ensure that the required examination is performed at least every third 10-year inservice inspection interval.

The second condition in Code Case N-864 ensures that sufficient monitoring and maintenance activities are performed and documented when the code case is applied. As a result of public comments, the NRC clarified that performing and documenting the facility's maintenance procedures for removal, care, and visual inspection of the reactor head closure studs and threads in flange during each refueling outage are sufficient to satisfy the second condition.

Type: New.

Title: Evaluation Criteria for Temporary Acceptance of Flaws in Class 2 or 3 Piping, Section XI, Division 1.

Code Case N-869 contains provisions for temporary acceptance of flaws, including through-wall flaws in Class 2 or 3 piping including elbows, pipe bends, reducers, and branch tees, whose maximum operating pressure is greater than 275 psig and does not exceed 600 psig, without performing a repair/replacement activity. The code case contains provisions regarding the scope, flaw characterization, periodic leakage monitoring, flaw evaluation, and augmented examinations. The NRC finds that the code case provides reasonable assurance that structural integrity of degraded piping will be maintained until the next scheduled refueling outage. However, the NRC finds that the augmented examination provisions in Section 5 of the code case are unclear and need additional clarification.

When a licensee applies N-869 to disposition a through-wall leak or wall thinning in a piping system, Section 5 of the code case requires augmented examinations for flaws and significant flaws. The augmented examination requirements in N-869 are the same as in Code Case N-513-3.

In 2018, the NRC found an instance where a licensee misinterpreted the provisions in Section 5 of N-513-3 and did not perform the required augmented examinations to disposition a through-wall leak in a service water system pipe. Other licensees have similarly misinterpreted the augmented examination provisions in Section 5 of N-513-3. The NRC found that the issue stems from the definition of the terms “flaw” and “significant flaw” in Sections 5(b) and 5(c) of N-513-3, respectively. The NRC, therefore, imposes two conditions to define “flaw” and “significant flaw” as those terms are used in Section 5 of N-869. Licensees would be required to apply these definitions to Section 5 when using the code case.

The first condition defines a “flaw” as a non-through-wall planar or nonplanar flaw with a wall thickness less than 87.5 percent of the nominal wall thickness of the pipe or the design minimum wall thickness. The NRC notes that the pipe wall thickness at the time of the plant construction may deviate from the nominal pipe wall thickness slightly as part of manufacturing process. The generally accepted deviation is 12.5 percent of the nominal pipe wall thickness or the design minimum wall thickness.

The second condition defines “significant flaw” as any pipe location that does not satisfy the provisions of Section 3 of N-869 or if any detected flaw that has a depth greater than 75 percent of the pipe wall thickness. The NRC staff notes that the 75 percent wall thickness criterion originates from the provisions of IWC/IWD-3643 of the ASME Code, Section XI, which prohibit a flaw that exceeds 75 percent of the pipe wall thickness to remain in service. Under Section 5 of N-869, a planar flaw that exceeds 75 percent of the pipe wall thickness may remain in service; however, the licensee needs to perform an augmented examination.

Type: New.

Title: Austenitic Stainless Steel Cladding and Nickel Base Cladding Using Ambient Temperature Automatic or Machine Dry Underwater Laser Beam Welding (ULBW) Temper Bead Technique, Section XI, Division 1.

Some irradiated stainless steel reactor vessel internal components are susceptible to experiencing irradiation assisted stress corrosion cracking. Code Case N-876 provides guidelines for repair welding the irradiated stainless steel components inside the reactor vessel. Code Case N-876 provides an alternative to the cladding temper bead repair rules of Section XI, IWA-4400, which requires preheat and postweld heat treatment. This alternative establishes new rules governing ambient temperature temper bead cladding repairs using the ULBW process.

The NRC is imposing two conditions on this code case. The first condition that must be applied when performing ULBW on irradiated materials provides guidance on what level of neutron irradiation and/or helium content would require review and approval by the NRC because of the impact of neutron fluence on weldability. The second condition limits the depth of the cladding repair due to concerns with the fracture toughness of the base metal.

The technical basis for imposing conditions on the welding of irradiated materials are that neutrons can generate helium atoms within the metal lattice through transmutation of various isotopes of boron and/or nickel. At high temperatures, such as occurs during welding, these helium atoms rapidly diffuse though the metal lattice, coalescing and forming helium bubbles at the grain boundaries. In sufficient concentration, these helium bubbles can cause grain boundary cracking that occurs in the fusion zones and heat affected zones during the heat-up/cooldown cycle.

The first condition applies conditions already applicable to Code Case N-516-5 “Underwater Welding Section XI, Division 1,” that the provisions of § 50.55a(b)(2)(xii)(A) and (B) must be met. This regulation provides limits on specific levels of neutron irradiation and/or helium content, above which welding is prohibited without prior NRC review and approval. The NRC is imposing the same condition to uses of Code Case N-876.

The second condition is necessary because the code case does not require impact testing of the base metal heat affected zone (HAZ) to verify adequate fracture toughness. The code case allows the depth of the repair cavity into the ferritic base metal to be up to 1/4 ″. This would allow welding directly to the base metal; thus, it will affect the fracture toughness of the base metal in the HAZ. Therefore, the NRC is imposing a condition restricting the use of the code case to repairs where at least 1/8 ″ of cladding remains. The basis for the 1/8 ″ limit is that this amount of austenitic material between the ferritic base metal and the first weld layer has generally been considered to sufficiently limit the heat input to the base metal such that deleterious effects on the fracture toughness will not occur; therefore, impact testing of the base metal is not necessary. The NRC notes that Code Case N-803, which is approved without conditions, allows repair of ferritic base material using nonferritic weld filler material based on welding procedure qualifications performed using tensile tests, side bends, and impact tests, and could be used to perform a cladding repair in which excavation into the base metal is required.

Type: New.

Title: Alternative to QA Program Requirements of IWA-4142, Section XI, Division 1.

Code Case N-878 provides alternatives to the quality assurance requirements in IWA-4142 for procurement of Class 1, 2, or 3 non-welded fittings. This code case addresses the testing and certification of material used in the manufacture of non-welded fittings, but does not address how the licensee must ensure that the procured non-welded fittings meet the design and testing requirements of the ASME Code, Section III, NB/NC/ND-3671.7 for Class 1, 2, or 3 applications. Verification that the Section III requirements for the design and testing of these non-welded fittings have been met prior to use is essential in ensuring the structural integrity of these Class 1, 2 and 3 systems is maintained. Therefore, the NRC is imposing conditions for the licensee to verify the design and testing activities associated with qualification of non-welded fittings required by Section III, NB/NC/ND-3671.7 that are performed by the fabricator.

The first condition states for ASME Section III items, the Licensee must review the fabricator's design documentation and methods to ensure the fittings design is in compliance with the Licensee's design specifications, and ASME Section III NB/NC/ND-3671.7 requirements; and either (1) supervise and monitor the performance qualification tests of the fittings to ensure the design is in compliance with the Licensee's design specifications and ASME Section III NB/NC/ND-3671.7, or (2) the Licensee or Repair/Replacement Organization conducts qualification tests of the fittings or conducts design analyses to ensure the design is in compliance with the Licensee's design specifications and ASME Section III NB/NC/ND-3671.7. In response to public comments, the NRC clarified that for ASME Section III items, this condition applies only for those licensees that implemented ASME Code, Section III design requirements for their original construction code and/or the licensees that have upgraded their original design requirements to ASME Code, Section III.

The second condition states that the Licensees must give the Authorized Nuclear Inservice Inspector an opportunity to review the design report prior to installation.

Type: New.

Title: Alternative to Procurement Requirements of IWA-4143 for Small Nonstandard Welded Fittings, Section XI, Division 1.

Code Case N-880 provides alternatives to the material procurement requirements of IWA-4142 and IWA-4143 for small nonstandard welded fittings. This code case does not address how the licensee must ensure the procured welded fittings meet the design and testing requirements of the ASME Code, Section III, NB/NC/ND-3671.7 for Class 1, 2, or 3 applications. Verification that the Section III requirements for the design and testing of these welded fittings have been met prior to use is essential in ensuring the structural integrity of these Class 1, 2 and 3 systems is maintained. Therefore, the NRC is imposing conditions requiring the licensee to verify the design and testing activities associated with qualification of welded fittings required by Section III, NB/NC/ND-3671.7 that are performed by the fabricator.

The first condition states for ASME Section III items, the Licensee must review the fabricator's design documentation and methods to ensure the fittings design is in compliance with the Licensee's design specifications, and ASME Section III NB/NC/ND-3671.7 requirements; and either: (1) Supervise and monitor the performance qualification tests of the fittings to ensure the design is in compliance with the Licensee's design specifications and ASME Section III NB/NC/ND-3671.7, or (2) the Licensee or Repair/Replacement Organization conducts qualification tests of the fittings or conducts design analyses to ensure the design is in compliance with the Licensee's design specifications and ASME Section III NB/NC/ND-3671.7. In response to public comments, the NRC clarified that for ASME Section III items, this condition applies only for those licensees that implemented ASME Code, Section III design requirements for their original construction code and/or the licensees that have upgraded their original design requirements to ASME Code, Section III.

The second condition states that the Licensees must give the Authorized Nuclear Inservice Inspector an opportunity to review the design report prior to installation.

Type: New.

Title: Reference Stress Corrosion Crack Growth Rate Curves for Irradiated Austenitic Stainless Steel in Light-Water Reactor Environments, Section XI, Division 1.

Code Case N-889 provides a new crack growth rate (CGR) law for irradiation-assisted stress corrosion cracking. The code case is applicable to wrought austenitic stainless steels and associated weld metals, as well as cast austenitic stainless steels. The proposed CGR law requires the user to first calculate irradiated yield stress from the dose to the material. There are two yield stress models: One for Molybdenum bearing stainless steels and one for stainless steels without Molybdenum. Once irradiated yield stress has been determined, the user calculates the CGR as a function of applied crack driving force and temperature.

The staff identified three concerns with the technical basis of this code case. The first concern relates to the limited CGR data at dose levels greater than 20 displacements per atom (dpa). The proposed CGR law indicates that the irradiated yield stress (and, consequently, the CGR) increases with fluence up to a dose of 20 dpa, at which point the irradiated yield's stress ceases to increase appreciably with further dose accumulation. While the data at dose levels greater than 20 dpa does show a plateau behavior in the CGR, the staff's analyses of that data suggests that areas of high CGR were averaged over the industry calculation of CGR, which increases the uncertainty in the high dose CGRs. Therefore, due to the limited data and the associated high uncertainty at high fluence, the staff's confidence in CGRs at dose levels greater than 20 dpa is low.

The second concern is the effects of uncertainty in the irradiated yield strength value for an individual material-heat. This topic is discussed in Section 4.7 of the technical basis report for Code Case N-889. The NRC also conducted separate analyses. While the results of the NRC's findings are generally consistent with the results in Section 4.7, the interpretation of their significance is not consistent. For materials with yield strengths greater than 600 MPa ( i.e., more highly-irradiated materials), the expected CGR for a material with a yield strength in the 95th percentile is less than two times the CGR predicted by the code case, which is not a significant difference. However, for materials with yield strength values less than 250 MPa ( i.e., unirradiated or minimally irradiated materials), the expected CGR for a material in the 95th percentile can be more than five times greater than the CGR predicted by the code case. Hence, the NRC's concern is that the CGRs for individual low yield strength materials, or materials with low fluence, could be significantly underpredicted by the code case.

The final concern is related to the data used in the development of the irradiated yield stress model. The methodology for addressing cold work in this model was developed in MRP-135, Revision 1, while the model itself was developed in MRP-211, Revision 0. The database underlying the model included hundreds of yield strength measurements on initially annealed and cold-worked Types 304, 316, and 347/348 stainless steel materials. However, most of the data were for annealed Type 304 and cold-worked Type 316 stainless steels. Revision 1 of MRP-211 contained additional yield strength data, including significantly more data for cold-worked Types 304 and 347 stainless steel. The authors of the code case, as documented in Section 4.5 of the Additional Basis Report dated February 5, 2018, evaluated the code case yield stress model with some of this additional data and found agreement between the model and the additional data. However, the code case authors excluded new data for cold-worked Type 304 and 347 stainless steel materials. Therefore, the technical basis document for Code Case N-889 does not directly address whether cold-worked Type 304 and 347 (non-Molybdenum bearing) materials are adequately predicted by the irradiated yield strength model in the code case. The NRC is imposing three conditions on this code case.

The first condition states that this code case may not be applied for neutron exposures greater than 20 dpa. This condition addresses the NRC concern that there is sparse data with high uncertainty beyond 20 dpa. Given that the predicted CGR saturates at higher fluence, this condition prevents potential underprediction of the CGR in this fluence regime.

The second condition states that at dose levels below 0.75 dpa, the user must use the higher of the Code Case N-889 or the Section XI, Nonmandatory Appendix C, C-8520 CGR predictions. This condition addresses the NRC concern related to possible underprediction of CGR in Code Case N-889 for materials with calculated irradiated yield strength less than 250 MPa.

The final condition states that the irradiated yield stress model for cold-worked Molybdenum bearing materials must be used for cold-worked non-Molybdenum bearing stainless steels (including Type 204 and 247 stainless steels). This condition addresses the NRC concern that data for cold-worked non-Molybdenum bearing steels were not appropriately considered during development of Code Case N-889. The NRC performed its own evaluation of cold-worked Type 304 and 347 stainless steels in the MRP-211 database and found that the yield strength was better predicted by the code case's Molybdenum bearing model than with the code case's non-Molybdenum bearing model.

Type: New.

Title: Materials Exempted From G-2110(b) Requirements, Section XI, Division 1.

Code Case N-890 provides an alternative to Section XI, G-2110(b) which removes the requirement of, “obtaining fracture toughness data for at least three heats,” for using the static fracture toughness curve ( K lc ) curve for specific materials with a minimum specified yield strength at room temperature between 50 kilopound per square inch (ksi) and 90 ksi. Code Case N-890 would allow the toughness of four ferritic steels (SA-508 Grade 2 Class 2, SA-508 Grade 3 Class 2, SA-533 Type A Class 2 and SA-533 Type B Class 2) with specified minimum yield strength greater than 50 ksi to be characterized by Figure G-2110-1 ( i.e., the Section XI K lc curve).

The NRC identified one technical concern when reviewing the technical basis of this code case. The technical basis provided appropriate data to justify use of the K lc curve for several materials listed in the code case. However, for SA-533 Type B, Class 2 materials, the NRC observed that in the technical basis document, there is no fracture toughness data associated with the weld and heat affected zone to support exclusion of the fracture toughness testing requirements for these materials.

As such, the imposed NRC condition requires the user to comply with the provisions of Section III, NB-2300 and Section III, G-2110(b) to demonstrate the applicability of the ASME K lc curve to SA-533 Type B, Class 2 material. These provisions require the user to generate the necessary toughness data to demonstrate that the ASME K IC curve is a conservative representation of the actual material toughness.

Type: Reaffirmed.

Title: Alternative Rules for Preservice and Inservice Testing of Active Electric Motor-Operated Valve Assemblies in Light-Water Reactor Power Plants.

The conditions on Code Case OMN-1, Revision 2 [2020 Edition] are identical to the conditions on OMN-1, Revision 2 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-1, Revision 2 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Requirements for Safety Significance Categorization of Components Using Risk Insights for Inservice Testing of LWR Power Plants.

The conditions on Code Case OMN-3 [2020 Edition] are identical to the conditions on OMN-3 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-3 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Requirements for Risk Insights for Inservice Testing of Check Valves at LWR Power Plants.

The conditions on Code Case OMN-4 [2020 Edition] are identical to the conditions on OMN-4 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-4 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Use of a Pump Curve for Testing.

The conditions on Code Case OMN-9 [2020 Edition] are identical to the conditions on OMN-9 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-9 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Alternative Requirements for Inservice Testing Using Risk Insights for Pneumatically and Hydraulically Operated Valve Assemblies in Light-Water Reactor Power Plants (OM-Code 1998, Subsection ISTC).

The conditions on Code Case OMN-12 [2020 Edition] are identical to the conditions on OMN-12 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-12 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Alternative Upper Limit for the Comprehensive Pump Test.

The conditions on Code Case OMN-19 [2020 Edition] are identical to the conditions on OMN-19 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-19 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

Type: Reaffirmed.

Title: Inservice Test Frequency.

The conditions on Code Case OMN-20 [2020 Edition] are identical to the conditions on OMN-20 [2017 Edition] that were approved by the NRC in Revision 3 of RG 1.192. The OMN-20 was reaffirmed by the ASME in the 2020 Edition with no change to the code case. Therefore, the conditions are retained in Revision 4 of RG 1.192.

The ASME code cases that are currently issued by the ASME, but not approved for generic use by the NRC, are listed in RG 1.193, “ASME Code Cases not Approved for Use.” In addition to the ASME code cases that the NRC has found to be technically or programmatically unacceptable, RG 1.193 includes code cases on reactor designs for high-temperature gas-cooled reactors and liquid metal reactors, reactor designs not currently licensed by the NRC, and certain requirements in Section III, Division 2, for submerged spent fuel waste casks, that are not endorsed by the NRC. RG 1.193 complements RGs 1.84, 1.147, and 1.192. It should be noted that the NRC is not adopting any of the code cases listed in RG 1.193.

The proposed rule and draft RGs were published in the Federal Register on February 2, 2021 (86 FR 7820), for a 60-day comment period. The public comment period closed on April 5, 2021.

The NRC published the proposed rule and draft regulatory guides for public comment in the Federal Register . The NRC received 13 comment submissions. A comment submission is a communication or document submitted to the NRC by an individual or entity, with one or more individual comments addressing a subject or issue. Private citizens provided five comment submissions, nuclear industry organizations provided five comment submissions, a foreign government entity provided one comment submission, an anonymous commenter provided one comment submission, and a science advocacy group provided one comment submission.

The comment submissions generally addressed the code cases and their proposed conditions, with five comment submissions objecting to incorporation of a code case with no conditions in this rulemaking activity. The NRC received a number of comments that were outside the scope of this rulemaking, such as comments that discuss code cases annulled after the publication of the supplements being considered in this rulemaking. The latter group out of scope comments will be considered in a future rulemaking.

The public comment submittals are available from the Federal e-Rulemaking website at https://www.regulations.gov under Docket ID NRC-2017-0025. The NRC prepared a summary and analysis of public comments received on the 2020 proposed rule and draft regulatory guides, which is available as indicated in the “Availability of Documents” section of this document. Responses to the public comments, including a summary of how the final rule text or guidance changed as a result of the public comments, can be found in the public comment analysis.

For more information about the associated guidance documents, see the “Availability of Guidance” section of this document.

The following paragraphs in § 50.55a are revised:

This final rule revises the last sentence to update the contact information for the National Archives and Records Administration.

This final rule corrects a printing error by removing the line break after “telephone:”.

This final rule adds a reference to new paragraph (a)(3)(iv), which indicates that NUREG-2228 is acceptable as specified in the conditions when implementing code cases listed in certain NRC regulatory guides.

This final rule revises the reference to “NRC Regulatory Guide 1.84, Revision 38,” by removing “Revision 38” and adding in its place “Revision 39” and changes the month and year for the document's revision date.

This final rule revises the reference to “NRC Regulatory Guide 1.147, Revision 19” by removing “Revision 19” and adding in its place “Revision 20” and changes the month and year for the document's revision date.

This final rule revises the reference to “NRC Regulatory Guide 1.192, Revision 3” by removing “Revision 3” and adding in its place “Revision 4” and changes the month and year for the document's revision date.

This final rule adds new paragraph (a)(3)(iv) to reference NUREG-2228, “Weld Residual Stress Finite Element Analysis Validation: Part II—Proposed Validation Procedure,” Published July 2020 (including Errata September 22, 2021), which is referenced in RG 1.147, Revision 20.

This final rule revises the reference to table 1 in the text of the paragraph, and designates the table and revises the heading of the table to conform to Office of the Federal Register (OFR) codification requirements.

This final rule designates the table and revises the heading of the table to conform to OFR codification requirements.

This final rule designates the table and revises the heading of the table to conform to OFR codification requirements, and capitalizes the word “(Years)” in two of the three column headings.

As required by the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

The NRC has prepared a regulatory analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The NRC did not receive public comments on the draft regulatory analysis. The final regulatory analysis is available as indicated in the “Availability of Documents” section of this document.

The provisions in this final rule allow licensees and applicants to voluntarily apply NRC-approved code cases, sometimes with NRC-specified conditions. The approved code cases are listed in three RGs that are incorporated by reference into § 50.55a. An applicant's or a licensee's voluntary application of an approved code case does not constitute backfitting, because there is no imposition of a new requirement or new position.

Similarly, voluntary application of an approved code case by a 10 CFR part 52 applicant or licensee does not represent NRC imposition of a requirement or action, and therefore is not inconsistent with any issue finality provision in 10 CFR part 52. For these reasons, the NRC finds that this final rule does not involve any provisions requiring the preparation of a backfit analysis or documentation demonstrating that one or more of the issue finality criteria in 10 CFR part 52 are met.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment; therefore, an environmental impact statement is not required.

The determination of this environmental assessment is that there will be no significant effect on the quality of the human environment from this action. The NRC did not receive public comments regarding any aspect of this environmental assessment.

As voluntary alternatives to the ASME Code, NRC-approved code cases provide an equivalent level of safety. Therefore, the probability or consequences of accidents is not changed. There are also no significant, non-radiological impacts associated with this action because no changes would be made affecting non-radiological plant effluents and because no changes would be made in activities that would adversely affect the environment. The determination of this environmental assessment is that there will be no significant offsite impact to the public from this action.

This final rule amends collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The collections of information were approved by the Office of Management and Budget, approval number 3150-0011.

Because the rule will reduce the burden for existing information collections, the public burden for the information collections is expected to be decreased by 230 hours per response. This reduction includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection.

The information collection is being conducted to document the plans for and the results of inservice inspection and inservice testing programs. The records are generally historical in nature and provide data on which future activities can be based. Information will be used by the NRC to determine if ASME BPV and OM Code provisions for construction, inservice inspection, repairs, and inservice testing are being properly implemented in accordance with § 50.55a of the NRC regulations, or whether specific enforcement actions are necessary. Responses to this collection of information are mandatory under § 50.55a.

You may submit comments on any aspect of the information collections, including suggestions for reducing the burden, by the following methods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2017-0025.

• Mail comments to: FOIA, Library, and Information Collections Branch, Office of the Chief Information Officer, Mail Stop: T-6 A10M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 or to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0011) Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email: oira_submission@omb.eop.gov.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this final rule, the NRC is continuing to use the ASME BPV and OM code cases, which are ASME-approved voluntary alternatives to compliance with various provisions of the ASME BPV and OM Codes. The NRC's approval of the ASME code cases is accomplished by amending the NRC's regulations to incorporate by reference the latest revisions of the following, which are the subject of this rulemaking, into § 50.55a: RG 1.84, Revision 39; RG 1.147, Revision 20; RG 1.192, Revision 4; and NUREG-2228. The RGs list the ASME code cases that the NRC has approved for use. The ASME code cases are national consensus standards as defined in the National Technology Transfer and Advancement Act of 1995 and OMB Circular A-119. The ASME code cases constitute voluntary consensus standards, in which all interested parties (including the NRC and licensees of nuclear power plants) participate.

The NRC is incorporating by reference three NRC RGs that list new and revised ASME code cases that the NRC has approved as voluntary alternatives to certain provisions of NRC-required editions and addenda of the ASME BPV Code and the ASME OM Code. These regulatory guides are RG 1.84, Revision 39; RG 1.147, Revision 20; and RG 1.192, Revision 4. The NRC is also incorporating by reference NUREG-2228, which is referenced in RG 1.147, Revision 20. As described in this document, this report pertains to a condition on Code Case N-847.

The NRC is required by law to obtain approval for incorporation by reference from the OFR. The OFR's requirements for incorporation by reference are set forth in 1 CFR part 51. The discussion in this section complies with the requirement for final rules as set forth in 1 CFR 51.5(b)(2).

The NRC considers “interested parties” to include all potential NRC stakeholders, not only the individuals and entities regulated or otherwise subject to the NRC's regulatory oversight. These NRC stakeholders are not a homogenous group, so the considerations for determining “reasonable availability” vary by class of interested parties. The NRC identified six classes of interested parties with regard to the material to be incorporated by reference in an NRC rule:

• Individuals and small entities regulated or otherwise subject to the NRC's regulatory oversight. This class includes applicants and potential applicants for licenses and other NRC regulatory approvals, and who are subject to the material to be incorporated by reference. In this context, “small entities” has the same meaning as set out in § 2.810.

• Large entities otherwise subject to the NRC's regulatory oversight. This class includes applicants and potential applicants for licenses and other NRC regulatory approvals, and who are subject to the material to be incorporated by reference. In this context, a “large entity” is one that does not qualify as a “small entity” under § 2.810.

• Non-governmental organizations with institutional interests in the matters regulated by the NRC.

• Other Federal agencies, states, local governmental bodies (within the meaning of § 2.315(c)).

• Federally-recognized and State-recognized Indian tribes.

• Members of the general public ( i.e., individual, unaffiliated members of the public who are not regulated or otherwise subject to the NRC's regulatory oversight) who need access to the materials that the NRC proposes to incorporate by reference in order to participate in the rulemaking.

The NUREG-2228 and three RGs that the NRC is incorporating by reference in this final rule are available without cost and can be read online or downloaded online. The NUREG-2228 and three RGs can be viewed, by appointment, at the NRC Technical Library, which is located at Two White Flint North, 11545 Rockville Pike, Rockville, Maryland 20852; telephone: 301-415-7000; email: Library.Resource@nrc.gov.

Because access to NUREG-2228 and the three final regulatory guides is available in various forms at no cost, the NRC determines that NUREG-2228 and the three final regulatory guides, RG 1.84, Revision 39; RG 1.147, Revision 20; and RG 1.192, Revision 4, once approved by the OFR for incorporation by reference, are reasonably available to all interested parties.

The NRC is issuing revised guidance, RG 1.193, “ASME Code Cases Not Approved for Use,” Revision 7, for the implementation of the requirements in this final rule. The guidance is available as indicated in Section XVI, “Availability of Documents,” of this document. You may access information and comment submissions related to the guidance by searching on https://www.regulations.gov under Docket ID NRC-2017-0025.

The regulatory guide lists code cases that the NRC has not approved for generic use and will not be incorporated by reference into the NRC's regulations.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 50:

This procedure requires the Commission to adopt a supplemental notification process in matters involving foreign state respondents.

In all enforcement matters in which a foreign state, political subdivision of a foreign state, a head of state or other foreign official acting in his or her official capacity, or any agency or instrumentality of a foreign state is identified as a respondent, the Office of General Counsel (“OGC”), prior to issuing the notification letters required by 52 U.S.C. 30109(a)(1), will notify the Office of the Legal Adviser at the Department of State (“Department”) of the receipt of the complaint and of the Commission's statutory notification obligations. This procedure does not alter the Commission's statutory obligation to issue notification letters to respondents within the period required by 52 U.S.C. 30109(a)(1).

In such matters, OGC will provide a simultaneous report to the Commission concerning the notification to the Department and will promptly inform the Commission of any subsequent communications between OGC and the Department.

Within forty-five days of receiving a complaint naming a foreign state respondent, OGC will make a recommendation to the Commission as to whether consultation with the Department is appropriate to obtain its views concerning any legal or factual question presented by the matter.

This notification represents a general statement announcing the general course of action that the Commission intends to follow. This rule of agency procedure does not constitute an agency regulation requiring notice of proposed rulemaking, opportunities for public participation, prior publication, and delay in effective date under 5 U.S.C. 553 of the Administrative Procedure Act (“APA”). The provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b), which apply when notice and comment are required by the APA or another statute, are not applicable.

In recent months, there has been extremely strong demand for used automobiles. Since the start of the COVID-19 pandemic, the average list price for used automobiles has continued to climb. While there are many factors contributing to high prices, the Consumer Financial Protection Bureau is concerned that these market conditions might create incentives for risky auto repossession practices, since repossessed automobiles can command these higher prices when resold. To mitigate harms from these risks, the Bureau is issuing this bulletin to remind market participants about certain legal obligations under Federal consumer financial laws.

To secure an auto loan, lenders require borrowers to give creditors a security interest in the vehicle. If a borrower defaults, a creditor may exercise its contractual rights to repossess the secured vehicle. Servicers collect and process auto loan or lease payments from borrowers and are either creditors or act on behalf of creditors. Generally, servicers do not immediately repossess a vehicle upon default and instead attempt to contact consumers before repossession, usually by phone or mail. Servicers may give consumers in default the opportunity to avoid repossession by making additional payments or promises to pay. Servicers generally use service providers to conduct repossessions.

While some repossessions are unavoidable, the Bureau pays particular attention to servicers' repossession of automobiles. Loan holders and servicers are responsible for ensuring that their repossession-related practices, and the practices of their service providers, do not violate the law. The Bureau intends to hold loan holders and servicers accountable for UDAAPs related to the repossession of consumers' vehicles. 1

This Bulletin summarizes the current law and highlights relevant examples of conduct observed during supervisory examinations or enforcement investigations that may violate Federal consumer financial law.

Under the Dodd-Frank Act, all covered persons or service providers are prohibited from committing unfair, deceptive, or abusive acts or practices in violation of the Act. An act or practice is unfair when (i) it causes or is likely to cause substantial injury to consumers; (ii) the injury is not reasonably avoidable by consumers; and (iii) the injury is not outweighed by countervailing benefits to consumers or to competition. 2

Whether an act or practice is deceptive is informed by decades of precedent involving Section 5 of the Federal Trade Commission Act. 3

The Dodd-Frank Act prohibits two types of abusive practices. First, materially interfering with the ability of a consumer to understand a term or condition of a product or service is abusive. Second, taking unreasonable advantage of statutorily specified market imbalances is abusive. Those market imbalances include (1) a consumer's lack of understanding of the material risks, costs or conditions of a product or service, (2) a consumer's inability to protect their interests in selecting or using a product or service, or (3) a consumer's reasonable reliance on a covered person to act in their interests. 4

In its Supervisory and Enforcement work, the Bureau has found the following conduct related to repossession of automobiles to be UDAAPs. 5

Many auto servicers provide options to borrowers to avoid repossession once a loan is delinquent or in default. Failure to prevent repossession after borrowers complete one of these options, where reasonably practicable given the timing of the borrowers' action, may constitute an unfair act or practice.

For example, in a public enforcement action, the Bureau found that an entity engaged in an unfair act or practice when it wrongfully repossessed consumers' vehicles. 6 The servicer told consumers it would not repossess vehicles when they were less than 60 days past due. Additionally, the servicer maintained a policy and told consumers that it would not repossess vehicles of consumers who had entered into an agreement to extend the loan, or who had made a promise to make a payment on a specific date and that date had not passed or who successfully kept a promise to pay. Nevertheless, the servicer wrongfully repossessed vehicles from hundreds of consumers who had:

• Made and kept promises to pay that brought the account current;

• Made payments that decreased the delinquency to less than 60 days past due;

• Made promises to pay where the date had not passed; or

• Agreed to extension agreements.

Each of these actions taken by consumers should have prevented repossessions of their vehicles. The Bureau found the servicer's wrongful repossessions constituted an unfair act or practice. They caused substantial injury by depriving borrowers of the use of their vehicles, and many consumers also experienced consequences such as missed work, expenses for alternative transportation, repossession-related fees, detrimental credit reporting, and vehicle damage during the repossession process. Such injury was not reasonably avoidable, and the injury was not outweighed by countervailing benefits to the consumer or to competition.

Supervision has identified similar unfair practices in numerous examinations. 7 Supervision observed that these violations frequently occurred, after consumers acted to prevent repossession, because of one of the following errors:

• Servicers incorrectly coded consumers as delinquent;

• Servicer representatives failed to cancel repossession orders that had previously been communicated to repossession agents; or

• Repossession agents failed to confirm that the repossession order was still active prior to repossessing a vehicle.

Supervision has also identified other practices related to repossession that resulted in unfair acts or practices. For example, the Bankruptcy Code imposes an automatic stay that bars collection activity, including repossession, from the moment a consumer has filed a bankruptcy petition. Supervision found that when servicers received notice that consumers had filed bankruptcy petitions and their accounts were subject to an automatic stay, the servicers committed an unfair act or practice by repossessing vehicles subject to such automatic bankruptcy stays.

Additionally, Supervision has identified that servicers committed an unfair act or practice by wrongfully repossessing vehicles after communicating inaccurate information. For example, Supervision has found that some servicers sent consumers letters stating that loans would not be considered past due if the consumer paid the amount due by a specific date. Consumers reasonably expected the servicers not to repossess before the date listed in the letter. When the servicers repossessed the vehicles prior to that date, they committed an unfair act or practice.

Supervision has also identified that servicers committed deceptive acts or practices by failing to provide consumers with accurate information about the amount required to bring their accounts current. For example, when consumers called to determine what amount would bring their accounts current, servicing personnel erroneously represented to consumers an amount due that was less than what was actually owed. As a result of this misrepresentation consumers paid an amount insufficient to avoid delinquency and the consequences of delinquency. This later led to repossessions that would not have occurred had consumers received accurate information. This conduct was deceptive because the servicer told consumers that an amount would bring their accounts current when, in fact, that amount would not bring their account current.

The following are examples of practices that lead to repossession of consumers' vehicles that the Bureau has considered to be UDAAPs.

Payment application for auto loans is governed by the finance agreements between servicers and consumers. Supervision has found that entities engaged in a deceptive act or practice when they made representations to consumers that payments would be applied in a specific order, and then subsequently applied payments in a different order. For example, Supervision found that servicers represented on their websites that payments would be applied to interest, then principal, then past due payments, before being applied to other charges, such as late fees. Instead, the servicers applied partial payments to late fees first, in contravention of the methodology disclosed on the website. Because servicers applied payments to late fees first, some consumers were deemed more delinquent than they would have been under the disclosed payment allocation order, and these servicers repossessed some consumers' vehicles.

Under these circumstances, servicers' websites provided inaccurate information about payment allocation order. In some instances, the underlying contract provided the servicer the right to apply payments in any order, which did not immunize the company from liability for the deceptive website content. 8

Enforcement has brought claims under the CFPB's unfairness authority where unlawful fees push consumers into default and repossession.

For example, in a public enforcement action, the Bureau found that an entity engaged in an unfair act or practice by operating its force-placed insurance (FPI) program in an unfair manner, in some instances resulting in repossession. 9 The entity purchased duplicative or unnecessary FPI policies and, in some instances, maintained the policies even after consumers had obtained adequate insurance and provided adequate proof of coverage. This conduct caused the entity to charge consumers for unnecessary FPI, resulting in additional fees, and in some instances delinquency or loan default. For some consumers the additional costs of unnecessary FPI contributed to a default that resulted in the repossession of a consumer's vehicle. Charging unnecessary amounts to consumers and subjecting them to default and repossession caused or was likely to cause substantial injury. This injury was not reasonably avoidable and was not outweighed by countervailing benefits. 10

The following are examples of practices that led to illegal fees after repossession of consumers' vehicles that the Bureau has considered to be UDAAPs.

The Bureau has identified an unfair practice concerning illegal personal property fees. Borrowers often keep personal property in the repossessed vehicles. These items often are not merely incidental but can be of substantial practical importance or emotional attachment to borrowers. State law typically requires auto loan servicers and repossession companies to secure and maintain borrowers' property so that it may be returned to the borrower upon request. Some companies charge borrowers for the cost of retaining the property.

In a public enforcement action, the Bureau found that an entity engaged in an unfair act or practice by withholding consumers' personal property unless the consumers paid an upfront fee to recover the property. 11 Many of the repossession agents employed by the entity imposed fees on consumers for holding personal property in the repossessed vehicles. The agents often refused to return consumers' personal property unless and until the consumers paid the fees. The Bureau found that the servicer was responsible for its agents withholding consumers' personal property unless the consumer paid an upfront fee to recover it and thus caused substantial injury that was not reasonably avoidable and not outweighed by countervailing benefits to consumers or competition. Supervision has also identified this unfair act or practice at other servicers where the servicers withheld consumers' personal property unless they paid an upfront fee. 12

Supervision found that servicers engaged in unfair acts or practices by collecting or attempting to collect force-placed collateral protection insurance (FPI) premiums after repossession even though no actual insurance protection was provided for those periods. FPI automatically terminates on the date of repossession, and consumers should not be charged after this date. Despite this, servicers charged consumers for FPI after repossession in four different circumstances. First, servicers failed to communicate the date of repossession to the FPI service provider due to system errors. Second, servicers used an incorrect formula to calculate the FPI charges that needed to be removed due to the repossession. Third, servicers' employees entered the wrong repossession date into their system of record, resulting in improper termination dates. Fourth, servicers charged consumers—who had a vehicle repossessed and subsequently reinstated the loan—post-repossession FPI premiums, including for the days the vehicle was in the servicer's possession, despite the automatic termination of the policy on the date of repossession. These errors caused consumers substantial injury because they paid amounts they did not owe or were subject to collection attempts for amounts they did not owe. This injury was not reasonably avoidable because consumers did not control the servicers' cancellation processes. The substantial injury to consumers was not outweighed by any countervailing benefits to consumers or competition. 13

As explained in greater detail above, the Bureau has held auto lenders, loan holders, and servicers accountable if they or their agents commit UDAAPs when repossessing automobiles, including when they:

• Repossessed vehicles if consumers' loan account is current, even if there was a prior delinquency.

• Repossessed vehicles if consumers entered an agreement to extend the loan.

• Repossessed vehicles if consumers followed any instructions the company said would result in avoiding repossession.

• Repossessed vehicles from consumers who have filed for bankruptcy, and thus are protected by an automatic stay of collection activity.

• Repossessed vehicles as a result of processing payments in a different order than had been communicated to consumers.

• Repossessed vehicles after unlawful fees pushed the consumer's account into default.

• Withhold personal property found in repossessed vehicles until consumers pay an upfront fee to recover the property.

• Charged for collateral protection insurance after a vehicle is repossessed.

To prevent these unfair, deceptive, or abusive acts or practices, entities should consider doing the following:

• Review policies and procedures, including call scripts, to ensure that they provide employees with accurate information about steps consumers can take to prevent repossession.

• Review policies and procedures regarding cancellation of repossession orders to ensure that there is an appropriate process for cancelling repossessions if consumers take steps that should result in cancellation.

• Ensure prompt communications between the servicer and repossession service provider when the servicer cancels a repossession. For example, servicers may call repossession service providers to confirm cancelation or use mobile phone applications that push cancellation updates to repossession service providers' phones.

• Monitor repossession service providers for compliance with repossession cancellations.

• Incorporate monitoring of wrongful repossession in regular monitoring and audits of communications with consumers.

• Ensure that the entity has a corrective action program to address any violations identified and to reimburse consumers for the direct and indirect costs incurred as a result of unlawful repossessions when appropriate.

• Review payment allocation policies and procedures to validate that they are consistent with the payment allocation order disclosed in contracts and other consumer facing disclosures, such as websites.

• Monitor for illegal fees charged after repossession.

• Review consumer contracts to validate that any fees charged to consumers are authorized under the terms of applicable contracts.

• Review consumer complaints regarding repossession and ensure there is an appropriate channel for receiving, investigating, and properly resolving consumer complaints relating to wrongful repossession and illegal fees after repossession.

• Perform regular reviews of service providers, including repossession vendors, as to their pertinent practices. 14

• Monitor any FPI program to ensure that consumers are not charged for unnecessary FPI. This may include review of FPI cancellation rates.

The Bureau will continue to review closely the practices of entities repossessing automobiles for potential UDAAPs, including the practices described above. The Bureau will use all appropriate tools to hold entities accountable if they engage in UDAAPs in connection with these practices.

The Bulletin constitutes a general statement of policy exempt from the notice and comment rulemaking requirements of the Administrative Procedure Act (APA). It is intended to provide information regarding the Bureau's general plans to exercise its supervisory and enforcement discretion for institutions under its jurisdiction and does not impose any legal requirements on external parties, nor does it create or confer any substantive rights on external parties that could be enforceable in any administrative or civil proceeding. Because no notice of proposed rulemaking is required in issuing the Bulletin, the Regulatory Flexibility Act also does not require an initial or final regulatory flexibility analysis. The Bureau has also determined that the issuance of the Bulletin does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface to support IFR operations in Hampton, GA.

The FAA published a notice of proposed rulemaking in the Federal Register (86 FR, 69181, December 7, 2021) for Docket No. FAA-2021-1049 to amend Class E airspace extending upward from 700 feet above the surface for Hampton, GA.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

The FAA amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface at Atlanta Speedway Airport (formerly Clayton County-Tara Field), Hampton, GA, by updating the airport's name and updating the geographical coordinates to coincide with the FAA's database. In addition, this action amends the radius to 9.2 miles (formerly 6.8 miles) and eliminates excessive verbiage in the legal description.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

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

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register (86 FR 59672; October 28, 2021) for FAA-2021-0816 to modify the Class D and Class E surface airspace, establish an area that is designated as an extension to a Class D or Class E surface area, modify the Class E airspace extending upward from 700 feet above the surface, remove navigational aids (NAVAID) from the legal description of the Class E2 and Class E5 text headers, update the Class D, Class E2, and Class E5 airspace legal descriptions, and establish Class E4 airspace at Southwest Oregon Regional Airport, North Bend, OR. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication of the NPRM in the Federal Register (86 FR 59672; October 28, 2021) for FAA-2021-0816, the FAA identified a discrepancy with the assigned Airspace Docket Number. In the NPRM, the Airspace Docket Number is listed as 21-AWP-27, which is incorrect. Oregon is assigned to the FAA's Northwest Mountain Region. The correct Airspace Docket Number is 21-ANM-27. Additionally, the FAA's definition of the acronym “NOTAM” changed from “Notice to Airmen” to “Notice to Air Missions” and the legal description in the NPRM is not correct. The phrase “Notice to Air Missions” is now used in the legal descriptions for the Class D and Class E2 surface areas at Southwest Oregon Regional Airport to reflect this change.

Class D, Class E2, Class E4, and Class E5 airspace designations are published in paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order JO 7400.11F, dated August 10, 2021, and effective September 15, 2021, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designations listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order JO 7400.11F, Airspace Designations and Reporting Points, dated August 10, 2021, and effective September 15, 2021. FAA Order JO 7400.11F is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11F lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

The FAA is amending 14 CFR part 71 by modifying the Class D airspace at Southwest Oregon Regional Airport, North Bend, OR. To properly contain departing IFR aircraft flying toward or over rising terrain, the Class D will be extended to the east and southeast of the airport.

This action also modifies the Class E airspace designated as a surface area. The Class E surface area legal description will be coincident with the Class D legal description to properly contain departing IFR aircraft flying toward or over rising terrain.

Next, this action modifies the Class E airspace by establishing an area that is designated as an extension to a Class D or Class E surface area to properly contain IFR arrivals; therefore, an extension east and another southwest of the airport will be established. The extensions are designed to contain arriving IFR aircraft when descending below 1,000 feet above the surface on the ILS or LOC Runway 5 and the VOR-B procedures.

This action also modifies the Class E airspace extending upward from 700 feet above the surface. This airspace is designed to contain departing IFR aircraft until reaching 1,200 feet above the surface and arriving IFR aircraft descending below 1,500 feet above the surface. The Class E radius will be modified, and extensions to the northeast, east, southeast, south, southwest, and west of the airport will be established to contain IFR departures.

Additionally, this action removes the North Bend VORTAC and Emire LOM/NDB from the Class E2 text header and airspace description. The NAVAIDs are not required to describe the airspace area, and their removal simplifies the airspace's legal description.

This action also removes the North Bend VORTAC from the Class E5 text header and airspace description, and replaces it with the Southwest Oregon Regional Airport's Airport Reference Point coordinates. The NAVAID is not required to describe the airspace area, and its removal simplifies the airspace's legal description.

Lastly, this action makes an administrative update to replace the term “Airport/Facility Directory” in the last line of the Class D and Class E2 airspace descriptions with the term “Chart Supplement.”

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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

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

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

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

This final rule addresses the April 6, 2021, SIP revisions submitted by the Wisconsin Department of Natural Resources (WDNR). This submittal includes revisions to the definitions in Chapter NR 400, to the minor construction permit program in Chapter NR 406, and to the operating permit program in Chapter NR 407. Specifically, Wisconsin is requesting to repeal NR 406.03(1e)(a), (b), and (j), NR 406.04(1f)(c) and (Note), NR 407.02(6)(a)3.(Note), NR 407.11(1)(e) and (3)(c), and NR 407.12(1)(b)(Note) and (e); and to amend and create NR 400.02(130), (136m), (136r), and (162), NR 406.02(6), NR 406.03(1e), (1m), and (2)(b), NR 406.04(1)(a)4m., (bm), (i), (m), (zg), (1f), (1k), (1q), (2)(h), (4)(a), (b), (e)3., (h), (j), and (7), NR 406.17(3)(d), NR 407.03(1)(intro.), (a), (bm), (1m), (2)(ba), (f) and (g), NR 407.05(2) and (6), NR 407.105(3)(b), and NR 407.15(5).

On December 6, 2021, EPA published a notice of proposed rulemaking (NPRM) proposing approval of Wisconsin's April 6, 2021, submittal (86 FR 68954). The specific details of these SIP revisions and the rationale for EPA's proposed approval are discussed in the NPRM and will not be restated here. The NPRM provided a 30-day public comment period which ended on January 5, 2022.

No comments were received on the proposed rule during the public comment process.

For the reasons set forth in the proposed rulemaking, EPA is approving the requested revisions to Wisconsin's SIP as submitted on April 6, 2021. These revisions were included in the certified Board Order AM-24-12b and published in the Wisconsin Administrative Register #777 on September 28, 2020.

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

Also in this document, as described in the proposed amendments to 40 CFR part 52 set forth below, EPA is proposing to remove provisions of the EPA-Approved Wisconsin Regulations from the Wisconsin SIP, which is incorporated by reference in accordance with the requirements of 1 CFR part 51.

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

40 CFR part 52 is amended as follows:

On December 15, 2021 (86 FR 71214), EPA published a notice of proposed rulemaking (NPRM) for the Commonwealth of Virginia. In the NPRM, EPA proposed approval of Virginia's amendment to an existing regulation by adding a new section listing the localities that comprise the Northern Virginia ozone nonattainment area. This revision is needed for the Commonwealth to implement the 2015 8-hour ozone NAAQS in the Northern Virginia ozone nonattainment area. The formal SIP revision was submitted by the Commonwealth of Virginia through the Virginia Department of Environmental Quality (VADEQ) on August 28, 2020.

Virginia's August 28, 2020 SIP revision consists of an amendment to an existing regulation which adds a new section listing the localities that comprise the Northern Virginia ozone nonattainment area, which is classified as marginal for the 2015 ozone NAAQS. The amendments revise the Virginia Administrative Code (VAC), specifically 9VAC5-20-204 (Nonattainment areas) subsection A, which geographically defines the nonattainment areas by locality for the criteria pollutants indicated. The amendments are necessary for implementation of the 2015 ozone NAAQS. The added subdivision, 9VAC5-20-204 A 4, defines the Northern Virginia marginal ozone nonattainment area for the 2015 8-hour ozone standard as including the following areas: Arlington County, Fairfax County, Loudoun County, Prince William County, Alexandria City, Fairfax City, Falls Church City, Manassas City, and Manassas Park City. A reference is also added to 40 CFR 51.1303(a), which pertains to the application of classification and attainment date provisions for areas designated nonattainment for the 2015 8-hour ozone NAAQS.

Other specific requirements of VADEQ's August 28, 2020 submittal and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. No public comments were received on the NPRM.

EPA is approving, as a SIP revision, the Commonwealth of Virginia's August 28, 2020 submittal revising the subsection listing the localities that comprise the Northern Virginia ozone nonattainment area for the 2015 8-hour ozone NAAQS.

In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege law, Va. Code Sec. 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts. . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.”

Virginia's Immunity law, Va. Code Sec. 10.11199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211, or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

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

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

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

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

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

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

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

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

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

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

The SIP is not approved to apply on any Indian reservation land as defined in 18 U.S.C. 1151 or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action.

This action, amending the section listing the localities that comprise the Northern Virginia ozone nonattainment area, may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

The SUPPLEMENTARY INFORMATION section is arranged as follows:

On November 23, 2021, EPA proposed to incorporate requirements into the OCS Air Regulations at 40 CFR part 55  1 pertaining to the State of New Jersey. See 86 FR 66505. Section 328(a) of the CAA requires that for such OCS sources located within 25 miles of a State's seaward boundary, the requirements shall be the same as would be applicable if the sources were located in the corresponding onshore area (COA). Because the OCS requirements are based on onshore requirements, and onshore requirements may change, CAA section 328(a)(1) requires that the EPA update the OCS requirements as necessary to maintain consistency with onshore requirements.

To comply with this statutory mandate, the EPA must incorporate by reference into part 55 all relevant state rules in effect for onshore sources, so they can be applied to OCS sources located offshore. This limits EPA's flexibility in deciding which requirements will be incorporated into 40 CFR part 55 and prevents EPA from making substantive changes to the requirements it incorporates. As a result, EPA may be incorporating rules into 40 CFR part 55 that do not conform to all of EPA's state implementation plan (SIP) guidance or certain requirements of the CAA. Inclusion in the OCS rules does not imply that a rule meets the requirements of the CAA for SIP approval, nor does it imply that the rule will be approved by EPA for inclusion in the SIP.

40 CFR 55.12 specifies certain times at which part 55's incorporation by reference of a state's rules must be updated. One time such a “consistency update” must occur is when any OCS source applicant submits a Notice of Intent (NOI) under 40 CFR 55.4 for a new or a modified OCS source. 40 CFR 55.4(a) requires that any OCS source applicant must submit to EPA a NOI before performing any physical change or change in method of operation that results in an increase in emissions. EPA must conduct any necessary consistency update when it receives a NOI, and prior to receiving any application for a preconstruction permit from the OCS source applicant. 40 CFR 55.6(b)(2) and 55.12(f).

On September 14, 2021, the EPA received a NOI from Ocean Wind, LLC to submit an OCS air permit application for the construction and operation of a new OCS source (a wind energy project) about 15 miles offshore New Jersey.

The EPA reviewed the New Jersey Department of Environmental Protection (“NJDEP”) air rules currently in effect, to ensure that they are rationally related to the attainment or maintenance of Federal and State Ambient Air Quality Standards (AAQS) or part C of title I of the CAA, that they are not designed expressly to prevent exploration and development of the OCS, and that they are applicable to OCS sources. See 40 CFR 55.1. The EPA has also evaluated the rules to ensure they are not arbitrary and capricious. See 40 CFR 55.12(e). The EPA has excluded New Jersey's administrative or procedural rules, 2 and requirements that regulate toxics which are not related to the attainment and maintenance of Federal and State AAQS.

The EPA did not receive any comments on the November 23, 2021, proposal to update a portion of the OCS Air Regulations to incorporate requirements into 40 CFR part 55 pertaining to the State of New Jersey.

The EPA is taking final action to update the “New Jersey” section of Appendix A to 40 CFR part 55 to incorporate by reference relevant New Jersey air pollution control rules that are currently in effect. EPA is approving this action under section 328(a) of the Act, 42 U.S.C. 7627(a). Section 328(a) of the Act requires that EPA establish requirements to control air pollution from OCS sources located within 25 miles of States' seaward boundaries that are the same as onshore requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into 40 CFR part 55 as they exist onshore.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the NJDEP air rules that are applicable to OCS sources and currently in effect, and which are described in the amendments to 40 CFR part 55 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to establish requirements to control air pollution from OCS sources located within 25 miles of states' seaward boundaries that are the same as onshore air control requirements. To comply with this statutory mandate, the EPA must incorporate applicable onshore rules into part 55 as they exist onshore. 42 U.S.C. 7627(a)(1); 40 CFR 55.12. Thus, in promulgating OCS consistency updates, the EPA's role is to maintain consistency between OCS regulations and the regulations of onshore areas, provided that they meet the criteria of the Clean Air Act. Accordingly, this action simply updates the existing OCS requirements to make them consistent with requirements onshore, without the exercise of any policy discretion by the EPA.

This action is not a “significant regulatory action” under the terms of Executive Orders (E.O.) 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011) and is therefore not subject to review under the E.O.

This action does not impose any new information collection burden under PRA because this action only updates the state rules that are incorporated by reference into 40 CFR part 55, Appendix A. OMB has previously approved the information collection activities contained in the existing regulations at 40 CFR part 55 and, by extension, this update to part 55, and has assigned OMB control number 2060-0249. This action does not impose a new information burden under PRA because this action only updates the state rules that are incorporated by reference into 40 CFR part 55, Appendix A.

I certify that this action will not have a significant impact on a substantial number of small entities under the RFA. This proposed rule does not impose any requirements or create impacts on small entities. This proposed consistency update under CAA section 328 will not create any new requirements but simply proposes to update the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.

This action does not contain any unfunded mandate or significantly or uniquely affect small governments as described in UMRA, 2 U.S.C. 1531-1538. The action imposes no enforceable duty on any state, local or tribal governments.

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

This action does not have tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000), 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, nor does it impose substantial direct costs on tribal governments, nor preempt tribal law. It merely updated the State law incorporated by reference into 40 CFR part 55 to match current State requirements.

EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 and simply proposes to update the State requirements incorporated by reference into 40 CFR part 55 to match the current State requirements.

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

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

The EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health, or environmental effects, using practicable and legally permissible methods.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 2, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

For the reasons set out in the preamble, title 40 of the Code of Federal Regulations, part 55, is amended as follows.

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of 40 CFR part 180 through the Office of the Federal Register's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0292 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before May 2, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0292, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of June 1, 2021 (86 FR 29229) (FRL-10023-95), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11410) by the Spring Regulatory Sciences (6620 Cypresswood Dr., Suite 250 Spring, TX 77379) on behalf of Earth Science Laboratories, Inc., (113 SE 22nd Street, Suite 1, Bentonville, AR 72712). The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of PABS (CAS Reg. No. 10043-02-4) when used as an inert ingredient (carrier, adjuvant, buffer and as a stabilizer) in pesticide formulations applied in/on growing crops pre- and post-harvest, and in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment and utensils under 40 CFR 180.940(a). That document referenced a summary of the petition prepared by Spring Regulatory Sciences on behalf of Earth Science Laboratories, Inc., the petitioner, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Based upon review of the data supporting the petition, EPA has limited the maximum concentration of PABS to not more than 40% in pesticide formulations for non-residential use and not more than 5% in pesticide formulations for residential use under 40 CFR 180.910 and limited the maximum concentration of PABS to 250 ppm under 40 CFR 180.940(a). These limitations are based on the Agency's risk assessment which can be found at https://www.regulations.gov in document “Polyammonium Bisulfate; Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Amendment to the Tolerance Exemption When Used as an Inert Ingredient in Pesticide Formulations” in docket ID number EPA-HQ-OPP-2021-0292.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . .” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for PABS including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with PABS follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by PABS as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

Acute toxicity studies were conducted with ET-3000, a mixture containing PABS. According to these studies acute oral toxicity is low, as the lethal dose (LD 50 ) is 1,750 milligrams/kilogram (mg/kg) in rats, and the acute dermal toxicity in rats is also low, the LD 50 is greater than 5,000 mg/kg. PABS is also not toxic via acute inhalation exposure, as the lethal concentration (LC50) is greater than 2.09 mg/L in rats. PABS is, however, corrosive to rabbit skin and the results were equivocal in a dermal sensitization study in mice.

Based on the available data on surrogate chemicals, PABS is expected to cause anemia and diarrhea at doses greater than 1,000 mg/kg/day following subchronic exposure in rats. In a chronic and multigeneration toxicity study in which carcinogenicity was also evaluated, hyperplasia of the glandular stomach and occult blood in the feces were observed at 144 mg/kg/day in rats. No reproduction toxicity or fetal susceptibility was observed in this study. In another chronic/carcinogenicity toxicity study in rats, chronic nephropathy was observed at approximately 564 mg/kg/day. No evidence of carcinogenicity was observed in either study.

No mutagenicity, genotoxicity, or chromosomal aberrations were seen in a battery of mutagenicity tests with the surrogate chemicals except in the case of sodium metabisulfite. Sodium metabisulfite was negative in the Ames test and a mammalian bone marrow chromosome aberration test. However, positive results were observed in a mammalian cell chromosome aberration assay and sister chromatid exchange assays in human lymphoctyes, and a questionably positive result was observed in an in vivo mammalian cell chromosome aberration assay. The mutagenicity results are equivocal for sodium metabisulfite.

Neurotoxicity and immunotoxicity toxicity studies are not available for review. However, no evidence of neurotoxicity or immunotoxicity was seen in the available studies.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see https://www.epa.gov/pesticides/factsheets/riskassess.htm.

No acute endpoint was identified; therefore, an acute assessment is not necessary. The combined chronic toxicity/carcinogenicity study in rats was selected for chronic dietary exposure as well as all other exposure scenarios (incidental oral, dermal and inhalation). In this study, the NOAEL is 72 mg/kg/day, and the LOAEL is 144 mg/kg/day based on hyperplasia of the glandular stomachs and occult blood in the feces. This represents the lowest NOAEL in the database in the most sensitive species. The standard uncertainty factors (UFs) were applied to account for interspecies (10x) and intraspecies (10x) variations. The default value of 100% was used for the dermal and inhalation absorption factors.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to PABS, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from PABS in food as follows:

In conducting the chronic dietary exposure assessment using the Dietary Exposure Evaluation Model DEEM-FCIDTM, Version 3.16, EPA used food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for PABS. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at https://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

In the dietary exposure assessment, the Agency assumed that the residue level of the inert ingredient would be no higher than the highest tolerance for a given commodity. Implicit in this assumption is that there would be similar rates of degradation (if any) between the active and inert ingredient and that the concentration of inert ingredient in the scenarios leading to these highest levels of tolerances would be no higher than the concentration of the active ingredient.

The Agency believes the assumptions used to estimate dietary exposures lead to an extremely conservative assessment of dietary risk due to a series of compounded conservatisms. First, assuming that the level of residue for an inert ingredient is equal to the level of residue for the active ingredient will overstate exposure. The concentrations of active ingredient in agricultural products are generally at least 50 percent of the product and often can be much higher. However, due to dietary risk concerns in assessing this petition request, the Agency assumed that a product consisted of 40 percent PABS instead of 50 percent, as mentioned above. Further, pesticide products rarely have a single inert ingredient; rather, there is generally a combination of different inert ingredients used, which additionally reduces the concentration of any single inert ingredient in the pesticide product in relation to that of the active ingredient.

Second, the conservatism of this methodology is compounded by EPA's decision to assume that, for each commodity, the Agency considers the active ingredient with the highest tolerance level for that commodity as the guide to assess the total potential level of inert ingredient residues on that commodity. This assumption overstates residue values because it would be highly unlikely, given the high number of inert ingredients, that a single inert ingredient or class of ingredients would be present at the level of the active ingredient in the highest tolerance for every commodity.

Finally, a third compounding conservative assumption is EPA's assumption that all foods contain the inert ingredient at the highest tolerance level. In other words, EPA assumed 100 percent of all foods are treated with the inert ingredient at 40% in the pesticide product at the rate and manner necessary to produce the highest residue legally possible for an active ingredient. In summary, EPA chose a very conservative method for estimating what level of inert residue could be on food, then used this methodology to choose the highest possible residue that could be found on food and assumed that all food contained this residue. No consideration was given to potential degradation between harvest and consumption even though monitoring data shows that tolerance level residues are typically one to two orders of magnitude higher than actual residues in food when distributed in commerce.

Accordingly, although sufficient information to quantify actual residue levels in food is not available, the compounding of these conservative assumptions will lead to a significant exaggeration of actual exposures. EPA does not believe that this approach underestimates exposure in the absence of residue data. EPA did assume that PABS will be limited to 40% in pesticide non-residential formulations that will be applied to crops and raw agricultural commodities pre- and post-harvest.

To assess dietary exposure to PABS due to its use in antimicrobial products, the EPA calculated the daily dietary dose (DDD) and the estimated daily intake (EDI) as described in the Food and Drug Administration (FDA) model. The assessment considered: Application rates (limited to 250 ppm), residual solution or quantity of solution remaining on the treated surface without rinsing with potable water, surface area of the treated surface which comes into contact with food, pesticide migration fraction, and body weight. These assumptions are based on FDA Food Contact Surface Sanitizing Solution Dietary Exposure Assessment Model (2003).

2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for PABS, a conservative drinking water concentration value of 100 ppb based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). PABS may be used as an inert ingredient in pesticide products that are registered for specific uses that may result in residential exposure, specifically in antimicrobial formulations applied to food-contact surfaces and utensils. Adult residential exposure combines high end dermal and inhalation handler exposure from liquids/trigger sprayer/home garden with a high-end post application dermal exposure from contact with treated lawns. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). A conservative residential exposure and risk assessments was completed for pesticide products containing PABS as an inert ingredient. Due to risks of concern resulting from aggregate exposure to PABS, the petitioner requested a limitation of 5% in products for residential use. Therefore, the Agency conducted an assessment to represent conservative residential exposure by assessing PABS (outdoor scenarios) and in disinfectant-type uses (indoor scenarios) at no more than 5% in the final formulation. The Agency assessed pesticide products containing PABS using exposure scenarios used by OPP's Antimicrobials Division to represent conservative residential handler exposure. Further details of this residential exposure and risk analysis can be found at https://www.regulations.gov in the memorandum entitled: “JITF Inert Ingredients. Residential and Occupational Exposure Assessment Algorithms and Assumptions Appendix for the Human Health Risk Assessments to Support Proposed Exemption from the Requirement of a Tolerance When Used as Inert Ingredients in Pesticide Formulations,” (D364751, 5/7/09, Lloyd/LaMay in docket ID number EPA-HQ-OPP-2008-0710).

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to PABS and any other substances. PABS does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that PABS does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

The Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10X is reduced to 1X for the chronic dietary assessment for the following reasons. The toxicity database for surrogate chemicals to PABS contains a combined repeated dose toxicity study with the reproduction/developmental toxicity screening test, multi-generation reproduction toxicity and mutagenicity studies. There is no indication of immunotoxicity or neurotoxicity in the available studies on surrogate chemicals; therefore, there is no need to require an immunotoxicity or neurotoxicity study. Fetal susceptibility is not observed in the available studies. In the multi-generation reproduction toxicity study in rats, maternal and offspring toxicity, which manifested as hyperplasia of the fore and glandular stomachs, and occult blood in the feces were observed at the same dose, 144 mg/kg/day. The cRfD of 0.72 mg/kg/day is based on the effects seen in this study. No reproduction toxicity is seen in the available studies. Based on the adequacy of the toxicity database, the conservative nature of the exposure assessment and the lack of concern for prenatal and postnatal susceptibility, the Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10X is reduced to 1X.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, PABS is not expected to pose an acute risk.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to PABS from food and water will utilize 83% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

PABS is currently used as an inert ingredient in pesticide products that are registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure from food and water with short-term residential exposures to PABS.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 273 for adults. For children, the aggregate MOE is 115. Because EPA's level of concern for PABS is an MOE of 100 or below, these MOEs are not of concern.

4. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level).

PABS is currently used as an inert ingredient in pesticide products that are registered for uses that could result in intermediate-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with intermediate-term residential exposures to PABS.

Using the exposure assumptions described in this unit for intermediate-term exposures, EPA has concluded that the combined intermediate-term food, water, and residential exposures result in aggregate MOEs of 430 for adults. For children the aggregate MOE is 117. Children's residential exposure includes total exposures associated with contact with treated lawns (dermal and hand-to-mouth exposures). Because EPA's level of concern for PABS is an MOE of 100 or below, these MOEs are not of concern.

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, PABS is not expected to pose a cancer risk to humans.

6. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to PABS residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of PABS in or on any food commodities. EPA is establishing a limitation on the amount of PABS that may be used in pesticide formulations. This limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use where PABS exceeds 40% in the final pesticide formulations for non-residential use or 5% in the final pesticide formulations for indoor and outdoor residential use. EPA will also not register any pesticide formulations for antimicrobials where PABS exceeds 250 ppm.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for PABS (CAS Reg. No. 10043-02-4) when used as an inert ingredient (carrier, adjuvant, buffer, stabilizer) in pesticide formulations applied in/on growing crops pre- and post-harvest, limited to 40% in non-residential formulations and 5% in formulations for residential indoor and outdoor use; and under 40 CFR 180.940(a) in antimicrobial formulations applied to food-contact surfaces in public eating places, dairy-processing equipment, food-processing equipment and utensils, limited to 250 ppm end-use concentration in formulations.

This action establishes a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:

FEMA published a notice of proposed rulemaking (NPRM) on June 7, 2017, at 82 FR 26411, proposing revisions to its regulations on rulemaking procedures. The NPRM proposed to remove outdated provisions, update provisions that affect the public, and modify FEMA's waiver of the Administrative Procedure Act exemption for matters relating to public property, loans, grants, benefits, and contracts. FEMA received five public comments in response to the proposed rule. Two commenters, the law offices of Texas RioGrande Legal Aid, Inc. (Texas RioGrande) and the National Rural Electric Cooperative Association (NRECA), expressed concern that the proposed regulations would result in a reduction in transparency and stakeholder involvement in FEMA's rulemaking process. One comment, submitted by former research consultants to the Administrative Conference of the United States (ACUS), recommended further revisions to the petitions for rulemaking section. Two comments were unrelated to the subject matter of the rulemaking and are not the subject of further discussion below.

FEMA now finalizes the proposed regulations with some revisions made in response to the relevant comments received. FEMA describes these revisions and addresses the specific concerns of each commenter below.

The Administrative Procedure Act exempts from notice and comment rulemaking matters relating to public property, loans, grants, benefits, or contracts. 1 FEMA's regulations currently waive this exemption in keeping with a 1969 ACUS Recommendation which recommended that Congress remove this exemption from the Administrative Procedure Act and that, even in the absence of legislative action, agencies should subject these matters to notice and comment rulemaking in the interest of transparency and public participation. 2 In the NPRM, FEMA noted that one of its main functions is to administer grant programs for emergency preparedness, response, recovery, and mitigation. FEMA proposed to modify its waiver of the exemption for three separate and independent reasons: (1) It is not feasible to go through the rulemaking process for annual grant programs, which comprise the majority of FEMA grant programs; (2) the Administrative Procedure Act does not require grant program requirements (for annual grant programs or otherwise) to be in regulation; and because (3) FEMA requires flexibility to adapt quickly to legal and policy mandates. 82 FR 26413.

Texas RioGrande submitted a comment expressing concern over this proposed modification of the waiver of the Administrative Procedure Act exemption. Texas RioGrande stated that it had consistently expressed concern about lack of transparency in FEMA's administration of its Individuals and Households Program (IHP), and that it filed lawsuits on behalf of clients in south Texas who were impacted by the use of FEMA's “unpublished rules” following Hurricane Dolly in 2008 and other disasters in 2015 and 2016. The commenter noted that it had also discussed these concerns in its comments submitted on FEMA's Individuals and Households Program Unified Guidance (IHPUG). 3 The IHPUG  4 compiled FEMA policy for each type of assistance under IHP into one comprehensive document and was intended to serve as a singular policy resource for State, local, Tribal, and territorial governments, and other entities who assist disaster survivors with post-disaster recovery. The IHPUG replaced all stand-alone IHP policies and policy statements that were previously located in FEMA documents and standard operating procedures. 5

The commenter stated that “FEMA's current published materials do not provide anyone outside FEMA a fair idea of how FEMA decides who gets what disaster assistance.” The commenter stated that FEMA's current regulations and guidance are “not a recipe for fair and efficient administration of any government program” and that “[w]hether in regulations or informal guidance, FEMA should provide a full and fair picture of how it makes its disaster assistance decisions, and whether it changes its standards from disaster to disaster . . . .” The commenter stated that “FEMA already keeps hundreds of its IHP standards from being accessible to the public.” The commenter expressed concern that the proposed rule would “inhibit the transparency that policy makers and the public need.”

Finally, the commenter suggested that the public interest in participation outweighs FEMA's need for flexibility to sometimes forego notice and comment rulemaking. The commenter opined that current 44 CFR 1.4(f) and (h)  6 include a sufficient mechanism for FEMA to bypass notice and comment in order to address emergency situations.

As an initial matter, FEMA notes that the specific contents of the IHP regulations and guidance are outside the scope of this rulemaking. As the commenter recognized, FEMA already has IHP regulations at 44 CFR 206.110-206.117, and has already published the IHPUG for notice and comment and made the final IHPUG available on FEMA's website. 7 This rule, as proposed and as finalized, would not directly affect the transparency of FEMA's current IHP regulations or guidance. While the rule makes clear that FEMA can change the current rules without notice and comment, FEMA has no plans to remove the IHP regulations or to reduce the transparency of such regulations and guidance. 8

FEMA agrees with the commenter that it is important to provide fair notice of FEMA policies, but FEMA disagrees that this rule will inhibit such notice. This rule, as proposed and as finalized, has no bearing on the availability of FEMA's policies and procedures to the public. For instance, the Administrative Procedure Act and the Freedom of Information Act each contain provisions directed at the transparency of government programs. See 5 U.S.C. 552; 6 CFR part 5; see also 42 U.S.C. 5165c(c) (FEMA “shall promote public access to policies governing the implementation of the public assistance program,” i.e., disaster assistance to State, local, and Tribal governments and certain private non-profit organizations). And consistent with 2 CFR part 200, FEMA posts notices of funding opportunities on www.grants.gov. See 2 CFR 200.203. Grants.gov provides a common website for Federal agencies to post discretionary funding opportunities and for grantees to find and apply for them. It helps the grant community learn more about available opportunities, facilitates interaction with the Federal government, and simplifies the grant application process. This rule does not affect the applicability of any of these transparency measures. FEMA will continue to provide fair notice of its policies consistent with all applicable legal requirements.

Finally, with respect to public participation, FEMA agrees with the commenter that FEMA should maintain its general policy in favor of public participation. Consistent with the proposed rule, FEMA has retained the general policy in favor of public participation in this final rule. FEMA disagrees, however, that existing regulations provide sufficient flexibility, as the agency's past experience demonstrates the challenges in issuing or revising regulations in sufficient time to support some grant programs. FEMA acknowledges that even in the absence of the Administrative Procedure Act's notice and comment exemption for rules relating to grants, FEMA may be able to avail itself of other exceptions to notice and comment (such as the “good cause” exception at 5 U.S.C. 553(b)(B)) when action is urgently required. FEMA prefers to avoid relying solely on such exceptions, however, because the Administrative Procedure Act makes the grants exemption available to FEMA and because some exceptions from notice and comment requirements are narrowly construed by courts. For instance, the “good cause” exception at 5 U.S.C. 553(b)(B) might not in all cases accommodate circumstances where FEMA perceives a need to bypass notice and comment in situations of an ongoing emergency such as a global pandemic, where a court applying the “good cause” standard rigorously might question whether FEMA should have acted to address a specific problem sooner. There may also be circumstances where, by virtue of multiple concurrent disasters or emergencies, there are limited regulatory development personnel to expedite multiple rulemaking projects through the notice and comment process.

With respect to the commenter's statement that FEMA's existing regulation at 44 CFR 1.4(h) provides an exception to notice and comment requirements, that exception is limited to an emergency situation; is more narrowly focused on requirements associated with Executive Order 12866; and calls for the preparation of additional materials for which FEMA may at times be inadequately resourced. FEMA does not believe this emergency situation exception is sufficient to ensure the flexibility needed to effectively implement its grants programs.

FEMA believes the revisions made in this rule will signal the appropriate policy intention to generally favor public participation, while providing the degree of flexibility that the Administrative Procedure Act provides and that FEMA believes appropriate.

FEMA notes that the general policy is not the only applicable law or regulation relating to public participation in rulemaking. For instance, 42 U.S.C. 5165c requires notice and comment before adopting any new or modified policy that governs implementation of the Public Assistance program and could result in a significant reduction of assistance under the program. This statutory requirement ensures that one of FEMA's largest grant programs, the Public Assistance program, includes opportunities for public participation before any new or modified policy that could result in a significant reduction of assistance is implemented. FEMA will of course continue to abide by any legal or regulatory requirement relating to notice and comment rulemaking.

FEMA is therefore finalizing this aspect of the proposed rule without change. As noted above and in the proposed rule, however, FEMA does not anticipate a significant change in practice as a result of these amendments.

In the NPRM, FEMA proposed to revise its regulations regarding petitions for rulemaking to update and clarify terminology and to require that petitions be labeled “petition for rulemaking” or “rulemaking petition” to avoid situations where simple correspondence is confused with a petition.

FEMA received a comment from two former co-consultants to ACUS who assisted with the ACUS 2014 petitions for rulemaking project. This project resulted in ACUS Recommendation 2014-6, “Petitions for Rulemaking.” See 79 FR 75114, 75117 (Dec. 17, 2014). The commenters approved of the revisions FEMA proposed in the NPRM but requested that FEMA make additional changes to its petitions for rulemaking regulations in accordance with Recommendation 2014-6.

The commenters proposed that FEMA should accept electronic submissions of petitions for rulemaking. FEMA's current regulations as well as the proposed regulations only provide for a physical mailing address. The commenters quoted from ACUS Recommendation 2014-6, which recommends that agencies accept the electronic submission of petitions, via email or through regulations.gov (such as by maintaining an open docket for the submission of petitions for rulemaking) or their existing online docketing system. 9 The commenters stated that at a minimum, FEMA should provide an appropriate and permanent email address for submitting petitions.

FEMA agrees that in most contexts online communication is more efficient than physical mail but declines to adopt a binding regulation authorizing the electronic submission of petitions at this time. FEMA believes allowing electronic submission of petitions could lead to confusion or inappropriate mass submissions without the proper infrastructure and procedures. At this time, FEMA cannot reliably support efficient online petitioning and therefore has not revised its regulations to permanently authorize the electronic submission of petitions. FEMA is open to experimenting with electronic submissions in the future, however, and has revised the regulatory text to make clear that FEMA will post to its website ( www.fema.gov/about/offices/chief-counsel/rulemaking ) additional acceptable methods for submitting petitions. If FEMA decides to maintain a public docket system for petitions, it will revise the above web page to reference that docket system.

The commenters also recommended that FEMA develop a default timeline for responding to petitions or publish online individual timelines for responding to each received petition, consistent with Recommendation 2014-6, #12 and #13, and with the requirements of the Administrative Procedure Act to respond to petitions “within a reasonable time.”  10 FEMA does not agree to develop a default timeline for responding to petitions. The Administrative Procedure Act requires FEMA to respond “within a reasonable time” and what is considered to be a reasonable time will vary depending on the degree of complexity of individual petitions and surrounding circumstances. The ACUS recommendations cited do not recommend that agencies issue binding regulations for these timeframes, but rather that an agency should “adopt in its procedures” a default timeline for responding or otherwise make publicly available the timeframe by which it will respond to an individual petition. 11 Given limited agency resources, specific timelines published in regulation could bind FEMA in a way the underlying report nor the ACUS recommendation require, creating an undue burden on the agency.

The commenters recommended that FEMA create a way for petitioners and the public to learn the status of their pending petitions, consistent with ACUS Recommendation 2014-6, #7. That recommendation suggests either using online dockets or designating a single point of contact authorized to provide information about the status of petitions. The commenters further stated that FEMA should provide a permanent email address and telephone number at which interested members of the public can inquire about the status of petitions.

FEMA is interested in promoting more seamless interactions with the public in general, including this particular issue. 12 FEMA intends to experiment with an online docketing system, and does not believe it is appropriate to require such a system by regulation at this time. If FEMA establishes such a system, FEMA will include a link to the system at the web page identified above. Similarly, although FEMA declines to include in regulation the name and/or phone number of a point of contact for all rulemaking petitions, FEMA is including an email address ( fema-regulations@fema.dhs.gov ) as a point of contact to confirm whether FEMA has received or responded to a specific rulemaking petition. FEMA may publish additional information on its website at a future date.

The commenters stated that FEMA may also consider making additional changes as recommended by ACUS, including detailing how FEMA will coordinate consideration of petitions with other processes used to determine agency priorities, such as the Unified Agenda and retrospective review of existing rules. 13 As stated in § 1.8(b) of this final rule, if the FEMA Administrator finds that a petition contains adequate justification, a rulemaking proceeding will be initiated or a final rule will be issued as appropriate. Prioritization would be commensurate with the agency's regulatory priorities, as determined by the Administrator. FEMA does not believe that it is appropriate to include this internal process in regulation as such internal processes are exempt from the requirements of 5 U.S.C. 553 and should be subject to change at the Administrator's discretion.

The commenters also suggest further explaining what type of data and arguments are most useful for petitioners to provide to aid agency evaluation. 14 The current and proposed regulations request the petition to provide the substance of the rule or amendment proposed, or specify the rule sought to be repealed or amended, and set forth all data and arguments available to the petitioner in support of the action sought. FEMA believes that this level of detail is sufficient. FEMA does not want to be overly prescriptive, considering the wide variety of changes that may be requested by a petitioner, and the wide variety of potential petitioners. The current regulations allow flexibility to the petitioner by providing general guidelines rather than dictating particular data points. If FEMA finds that a particular petition requires clarification or additional support before a determination can be made, it is its current practice to indicate such to the petitioner. This is consistent with ACUS Recommendation 2014-6, #6.

The commenters recommend inviting public comment on petitions as appropriate, consistent with ACUS Recommendation 2014-6, #8 and #9. FEMA has revised § 1.8 to make clear that it will consider on a case-by-case basis whether to solicit public comment on a petition. FEMA has further revised this section to clarify that the agency can take action to accept comments, by removing text stating that “No public procedures will be held directly on the petition before its disposition.” In making the decision whether to solicit public comment on a petition, the agency will consider a variety of factors, including the nature and complexity of the petition, to determine if public comment is appropriate in advance of a decision on the petition. FEMA does not find it necessary to add a provision to the regulations regarding a specific public comment process for petitions given this change.

Finally, the commenters recommend posting additional information on FEMA's website about how to submit petitions, consistent with ACUS Recommendation 2014-6, #16. As noted, FEMA has included a provision directing readers to the FEMA website. FEMA may, in its discretion, include additional information there.

In the NPRM, FEMA proposed to remove § 1.4(d), which describes FEMA's general policy of giving the public, including small entities and consumer groups, an early and meaningful opportunity to participate in the development of rules such as through advance notices of proposed rulemaking, holding open conferences, and convening public forums or panels. The NRECA submitted a comment expressing disagreement with FEMA's proposal to remove this text. The NRECA stated that the current language creates the appropriate impression for the public and interested stakeholders looking to become involved in the process that FEMA is open to such participation.

Although FEMA is removing this section from its regulations, FEMA continues to support early and meaningful opportunity for the public to participate in the development of rules. As a matter of internal policy, FEMA sends copies of regulatory actions during the public comment period to publications likely to be read by those affected and solicits comment from interested parties by such means as direct mail. FEMA does not plan to change this policy. FEMA also has a general internal policy of publishing requests for information and advance notices of proposed rulemaking as appropriate to the rulemaking project, specifically to give the public an early and meaningful opportunity to participate in the development of a rule. FEMA generally favors this approach for rules likely to be deemed significant under Executive Order 12866. FEMA followed this policy by publishing two requests for information related to the National Flood Insurance Program  15 in advance of considering rulemaking and two advance notices of proposed rulemaking (one in 2016, one in 2017) for the public assistance program, in order to receive public input before FEMA fully developed the proposed rule. 16 See 82 FR 4064 (Jan. 12, 2017); 81 FR 3082 (Jan. 20, 2016). The removal of the text streamlines the regulations and ensures the agency retains the flexibility to utilize a range of public engagement options in advance of rulemaking where appropriate.

In the NPRM, FEMA proposed to remove § 1.4(e), which states FEMA's general policy of affording the public a 60-day comment period for notices of proposed rulemaking, unless the Administrator makes an exception and sets forth the reasons for the exception in the preamble to the notice of proposed rulemaking. The NRECA submitted a comment disagreeing with this proposed removal, stating that for the novice member of the public or interested stakeholder trying to become meaningfully involved in a process that will have impact on livelihoods and economic success or failure, there is no harm in including the length of the comment period in the regulations.

As stated in the NPRM, the 60-day comment period is recommended by Executive Order 12866. 60 days is also the time frame that FEMA generally follows. While the comment period is specifically stated in each proposed rule when published in the Federal Register and the public would generally be reviewing the proposed rule that may impact them instead of FEMA's overall regulatory scheme, FEMA is retaining the 60-day comment period requirement in this final rule. FEMA still believes there are specific situations in which a shorter or longer comment period is appropriate. Such situations may include emergency situations where public comment is important, but the agency must still act in an expeditious manner for shorter comment periods. Longer comment periods may be appropriate for more technically complex, lengthy proposed rules. Longer comment periods may also be appropriate where the rulemaking may impact areas recently struck by a disaster to allow potentially impacted individuals more time to fully review the rulemaking. FEMA will continue to provide an explanation for departing from a 60-day comment period under the final rule, but consistent with other changes in this rule, will reserve discretion to depart from this standard as FEMA determines appropriate, in its discretion.

In the NPRM, FEMA proposed to remove § 1.4(f), which echoes the provisions of the Administrative Procedure Act to exempt from notice and comment rulemaking statements of policy, interpretive rules, and rules of organization and procedure, or to bypass notice and comment for good cause. The NRECA disagreed with the proposed removal for the reasons it disagreed with the proposed removals of § 1.4(d) and (e). As stated in the NPRM and as noted in response to Texas RioGrande's comment above, these exemptions are included in the Administrative Procedure Act and FEMA does not need to restate them in its regulations in order to follow them. As these are statutory exemptions, FEMA has the authority to exempt these items from rulemaking without regulations. As such, there is no need to repeat the exemptions in FEMA's regulations.

In the NPRM, FEMA proposed to remove § 1.8 which describes FEMA's intent to publish in the Federal Register , and keep updated, a plan for periodic review of existing rules at least within 10 years from the date of publication of a final rule. The NRECA disagreed with this proposal and recommended that FEMA update section 1.8 to indicate that FEMA will continue to participate in reviews of existing rules.

FEMA proposed to remove this section from part 1 because the process for review of existing rules has changed over time and may continue to change. FEMA has actively participated in retrospective reviews of existing regulations and will continue to do so. As the requirements are continually evolving, FEMA finds that including them in its rulemaking regulations would not be appropriate, as it would continually need to update the regulations as the requirements evolve and new executive orders are issued. This does not mean that the public will not be informed or involved, however. For example, in August 2011 DHS finalized a retrospective review plan that established a retrospective review process for seeking input from the public on a three-year cycle. Pursuant to that plan, DHS published Federal Register documents on February 26, 2014  17 and October 11, 2016  18 seeking public comment on existing regulations that DHS should consider as candidates for streamlining or repeal. Moreover, on June 15, 2017, FEMA published a Federal Register document requesting public input on its regulatory reform efforts. 19 The agency also recently issued a request for information seeking input on FEMA's programs, regulations, collections of information, and policies and where the public believes the agency should consider modifying, streamlining, expanding, or repealing. 20

In addition to FEMA's commitment to retrospective review of existing regulations, FEMA is obligated by law to perform periodic review of rules that have or will have a significant economic impact upon a substantial number of small entities. See 5 U.S.C. 610. Because this requirement is included in the Regulatory Flexibility Act, FEMA is statutorily bound to follow the requirement, regardless of whether the requirement is stated in the regulation. Eliminating this provision does not eliminate FEMA's requirement to follow the statutory requirement and reduces the potential confusion any statutory change to this requirement may cause until the regulation can be updated.

In the NPRM, FEMA proposed to remove § 1.13(c), which states that copies of regulatory flexibility analyses shall be furnished to the Chief Counsel for Advocacy of the Small Business Administration. The Regulatory Flexibility Act (RFA) requires agencies to transmit a copy of the initial regulatory flexibility analysis, or if the agency is certifying the rule, a copy of the factual basis for certification, to the Chief Counsel for Advocacy of the Small Business Administration. 21 It is not necessary to include this statutory requirement in regulation. The NRECA disagreed with this removal, and recommended that FEMA retain the provision, because it informs members of the public who are trying to follow the rulemaking process and may not be aware of the ability of the Small Business Administration's Office of Advocacy to become involved. FEMA declines to incorporate the RFA's statutory requirements into regulation. As explained above, FEMA is streamlining these regulations and eliminating references to specific statutory requirements as FEMA is already required to follow those provisions. Members of the public seeking more information on the RFA process can review the statutory requirements as the Act is cited in each rulemaking where it is applicable.

FEMA also notes that the RFA requires the agency to respond to any comments received from the Small Business Administration. 22 The agency must provide the response to these comments in the final Regulatory Flexibility Analysis, which must be posted for public viewing, and a summary published in the Federal Register . 23 FEMA posts the final Regulatory Flexibility Analysis under the docket for the rule on www.regulations.gov, and a summary is also included in the preamble to the final rule. Therefore, the public has full visibility of any Small Business Administration involvement. FEMA concludes that it is not necessary to include this requirement in its regulations.

In the NPRM, FEMA proposed to remove § 1.16(d)(2), which requires FEMA to make a determination that the factual conclusions upon which a final rule is based have substantial support in the agency record, viewed as a whole, with full attention to public comments in general and the comments of persons directly affected by the rule in particular. The NRECA disagreed with this proposed removal and recommended that this requirement be maintained as a testament to FEMA's attention to the record and stakeholder input in particular.

FEMA notes that the Administrative Procedure Act requires that a final rule take into consideration the relevant matter presented during the public comment period and requires the agency to provide a statement of the basis and purposes of the final rule. 24 This is a legal requirement that the agency must meet regardless of whether the requirement appears in the agency's own regulations on rulemaking. There is robust jurisprudence that has arisen out of this particular requirement of the Administrative Procedure Act, which has resulted in very detailed and thorough statements of bases and purpose in agency rulemakings. 25 FEMA concludes that this requirement is not necessary to be in regulation, as the agency is bound by law to meet it and the agency's internal controls ensure the requirement is met.

The NRECA objected generally to the proposed removal of regulations that reflect FEMA's internal policies because “those internal processes are not available to the public and therefore reduce transparency.” The NRECA also stated its concern that reliance on internal processes means that a rulemaking process “will have a head start, gather a head of steam prior to stakeholders including the public being able to provide input, and therefore not truly open to public participation.”

As noted earlier, FEMA does not expect that this rule will have any material impact on its public outreach as part of the rulemaking process. As a matter of policy, FEMA engages in a number of processes to ensure appropriate early and meaningful public participation. FEMA also publishes its planned regulatory actions semi-annually in the Unified Agenda. With respect to transparency and public access to non-regulatory policies, FEMA notes that www.fema.gov makes many FEMA policies available to the public, and that FEMA makes other internal documents available to the public as dictated by the Freedom of Information Act and other laws on public access to agency information. See generally, e.g., 6 CFR part 5.

The following chart lists the current section and its disposition via the final rule:

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

The Office of Management and Budget (OMB) has designated this rule a “significant regulatory action” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by OMB.

This final rule revises FEMA regulations pertaining to rulemaking by removing sections that are outdated or do not affect the public and update provisions that affect the public's participation in the rulemaking process. FEMA does not believe this rule imposes additional direct costs on the public or government.

Under the Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601-612, agencies must consider the impact of their rulemakings on “small entities” (small businesses, small organizations and local governments). When the Administrative Procedure Act requires an agency to publish a notice of proposed rulemaking under 5 U.S.C. 553, the RFA requires a regulatory flexibility analysis for both the proposed rule and the final rule if the rulemaking could “have a significant economic impact on a substantial number of small entities.” The RFA also provides that in lieu of a regulatory flexibility analysis, the agency may certify in the rulemaking document that the rulemaking will not “have a significant economic impact on a substantial number of small entities” along with a statement providing the factual basis for such certification. FEMA has voluntarily published a notice of proposed rulemaking in this case, notwithstanding that this rule is a rule of agency organization, procedure, or practice exempt from notice and comment rulemaking requirements. See 5 U.S.C. 553(b)(A).

This rule revises FEMA regulations pertaining to rulemaking by removing sections that are outdated or do not affect the public and update provisions that affect the public's participation in the rulemaking process. This rule does not impose direct costs on small entities. Accordingly, and although FEMA is not required to make such certification, pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b), the Administrator of FEMA certifies that this rule does not have a significant economic impact on a substantial number of small entities.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 658, 1501-1504, 1531-1536, 1571, pertains to any notice of proposed rulemaking which implements any rule that includes 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 in any one year. If the rulemaking includes a Federal mandate, the Act requires an agency to prepare an assessment of the anticipated costs and benefits of the Federal mandate. The Act also pertains to any regulatory requirements that might significantly or uniquely affect small governments. Before establishing any such requirements, an agency must develop a plan allowing for input from the affected governments regarding the requirements.

FEMA has determined that this rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, nor by the private sector, of $100,000,000 or more in any one year as a result of a Federal mandate, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Under the Paperwork Reduction Act of 1995 (PRA), as amended, 44 U.S.C. 3501-3520, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the agency obtains approval from OMB for the collection and the collection displays a valid OMB control number. See 44 U.S.C. 3506, 3507. FEMA has determined that this rulemaking does not contain any collections of information as defined by that Act. PRA regulations exempt general solicitations of comments from the public such as rulemakings. See 5 CFR 1320.3(h)(4).

Under the Privacy Act of 1974, 5 U.S.C. 552a, an agency must determine whether implementation of a proposed regulation will result in a system of records. A “record” is any item, collection, or grouping of information about an individual that is maintained by an agency, including, but not limited to, his/her education, financial transactions, medical history, and criminal or employment history and that contains his/her name, or the identifying number, symbol, or other identifying particular assigned to the individual, such as a finger or voice print or a photograph. See 5 U.S.C. 552a(a)(4). A “system of records” is a group of records under the control of an agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. An agency cannot disclose any record which is contained in a system of records except by following specific procedures.

The E-Government Act of 2002, 44 U.S.C. 3501 note, also requires specific procedures when an agency takes action to develop or procure information technology that collects, maintains, or disseminates information that is in an identifiable form. This Act also applies when an agency initiates a new collection of information that will be collected, maintained, or disseminated using information technology if it includes any information in an identifiable form permitting the physical or online contacting of a specific individual.

This final rule does not create a new, nor impact a current, system of record. Therefore, this proposed rule does not require coverage under an existing or new Privacy Impact Assessment or System of Records Notice. Any member of the public or any non-Federal entity may submit comments on a rulemaking; all comments are posted on www.regulations.gov, and that website, as well as each FEMA rulemaking document requesting comments, includes a Privacy Notice informing the commenter that any comments will be posted for public viewing.

Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments,” 65 FR 67249, November 9, 2000, applies to agency regulations that have Tribal implications, that is, regulations that 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. Under this Executive order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials.

This rule does not have Tribal implications. Any member of the public and any non-Federal entity, including Tribes and Tribal members, may participate in Federal rulemaking as outlined in this proposed rule, and it is FEMA's policy that ex parte restrictions in rulemaking do not apply to Tribal consultations.

Executive Order 13132, “Federalism,” 64 FR 43255, August 10, 1999, sets forth principles and criteria that agencies must adhere to in formulating and implementing policies that have federalism implications, that is, regulations that 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.” Federal agencies must closely examine the statutory authority supporting any action that would limit the policymaking discretion of the States, and to the extent practicable, must consult with State and local officials before implementing any such action.

FEMA has reviewed this rule under Executive Order 13132 and has determined that 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, and therefore does not have federalism implications as defined by the Executive order. It addresses agency procedures for rulemaking that affect the public; such rulemaking is a Federal process and does not affect State rulemaking processes.

Under Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act (CRA), 5 U.S.C. 801-808, before a rule can take effect, the Federal agency promulgating the rule must submit to Congress and to the Government Accountability Office (GAO) a copy of the rule; a concise general statement relating to the rule, including whether it is a major rule; the proposed effective date of the rule; a copy of any cost-benefit analysis; descriptions of the agency's actions under the Regulatory Flexibility Act and the Unfunded Mandates Reform Act; and any other information or statements required by relevant executive orders. 5 U.S.C. 801(a)(1).

FEMA has sent this rule to the Congress and to GAO pursuant to the CRA. OMB's Office of Information and Regulatory Affairs has determined that this rule is not a “major rule” within the meaning of the CRA. 5 U.S.C. 804(2). It will not have an annual effect on the economy of $100,000,000 or more; it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

NMFS published a final rule to implement modifications to the Atlantic Large Whale Take Reduction Plan (ALWTRP or Plan) on September 17, 2021 (86 FR 51970), to meet the goals of the Marine Mammal Protection Act (MMPA) and Endangered Species Act (ESA). The final rule became effective on October 18, 2021. While the modifications were intended to revise the then existing § 229.32(a) through (c), the final rule inadvertently replaced the entirety of § 229.32 resulting in the accidental removal of paragraphs (d), (e), (f), (g), (h), and (i) from the Code of Federal Regulations. These sections apply to gillnet fisheries and Southeastern U.S. fisheries, and NMFS is correcting the error through this correcting amendment.

For further information on the September 17, 2021, Plan modifications, see the final rule (86 FR 51970, September 17, 2021). For further information on the Plan, visit the website https://www.fisheries.noaa.gov/new-england-mid-atlantic/marine-mammal-protection/atlantic-large-whale-take-reduction-plan.

The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B), as such requirement is unnecessary and contrary to the public interest. The regulations in § 229.32(d) through (i) were never intended to be removed or modified in any way through the 2021 final rule, and there was no discussion or analysis of any such action in the preambles to the proposed rule or final rule. Any delay in reinstating § 229.32(d) through (i) would result in wide scale confusion among the fishing industry and law enforcement, as well as potential harm to North Atlantic right whales, humpback whales, and fin whales. Therefore, in order to avoid the negative consequences that are expected to result from unnecessary delay in making this correction, the AA finds good cause to waive the requirement to provide prior notice and opportunity for public comment. For the same reasons, the AA finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay of effectiveness period for this correcting amendment.

Accordingly, 50 CFR part 229 is corrected by making the following correcting amendment: