On November 30, 2018, the Office of the United States Trade Representative (USTR) signed the “Protocol Replacing the North American Free Trade Agreement with the Agreement Between the United States of America, the United Mexican States, and Canada” (the Protocol) to replace the North American Free Trade Agreement (NAFTA). 1 The Agreement Between the United States of America, the United Mexican States (Mexico), and Canada (the USMCA)  2 is attached as an annex to the Protocol and was subsequently amended to reflect certain modifications and technical corrections in the “Protocol of Amendment to the Agreement Between the United States of America, the United Mexican States, and Canada” (the Amended Protocol), which USTR signed on December 10, 2019.

Pursuant to section 106 of the Bipartisan Congressional Trade Priorities and Accountability Act of 2015 (19 U.S.C. 4205) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the United States adopted the USMCA through Congress' enactment of the United States-Mexico-Canada Agreement Implementation Act (USMCA Implementation Act), Public Law 116-113, 134 Stat. 11 (19 U.S.C. Chapter 29), on January 29, 2020. Section 103(a)(1)(B) of the USMCA Implementation Act (19 U.S.C. 4513(b)(1)) provides authority for new or amended regulations to be issued as necessary or appropriate to implement the USMCA.

Mexico, Canada, and the United States certified their preparedness to implement the USMCA on December 12, 2019, March 13, 2020, and April 24, 2020, respectively. Pursuant to paragraph 2 of the Protocol, the USMCA was to take effect on the first day of the third month after the last signatory party provides written notification of the completion of the domestic implementation of the USMCA through the enactment of implementing legislation. As a result, the USMCA entered into force on July 1, 2020.

On its entry into force date, the USMCA superseded NAFTA and its related provisions. See Protocol, paragraph 1. NAFTA entered into force on January 1, 1994. Pursuant to section 1103 of the Omnibus Trade and Competitiveness Act of 1988 (19 U.S.C. 2903) and section 151 of the Trade Act of 1974 (19 U.S.C. 2191), the United States adopted NAFTA through the enactment of the North American Free Trade Agreement Implementation Act (NAFTA Implementation Act), Public Law. 103-182, 107 Stat. 2057 (19 U.S.C. 3301 et seq. ), on December 8, 1993. Section 601 of the USMCA Implementation Act repealed the NAFTA Implementation Act, as of the date that the USMCA entered into force. See 19 U.S.C. 3301.

On December 30, 1993, the legacy Immigration and Naturalization Service (INS)  3 published an interim rule in the Federal Register (58 FR 69205) to implement the provisions of NAFTA by amending its regulations to establish procedures for the temporary entry of Canadian and Mexican citizen business persons into the United States. On January 9, 1998, the final rule was published in the Federal Register (63 FR 1331).

Chapter 16 of the USMCA sets forth the provisions for the temporary entry of Canadian and Mexican business persons. As stated in its Statement of Administrative Action, the USMCA maintains the same treatment as provided under NAFTA for the temporary entry of business visitors, traders and investors, intra-corporate transferees, and professionals. 4 Further, Section 503 of the USMCA Implementation Act, Public Law 116-113, 134 Stat. 11, makes conforming changes to the NAFTA-specific provisions of the Immigration and Nationality Act, 8 U.S.C. 1101 et seq., in order to provide the same treatment to Canada and Mexico with respect to temporary entry as was provided under NAFTA. The USMCA does not modify or expand access to visas issued or visa classifications authorized under the INA.

This document makes conforming amendments to title 8 of the Code of Federal Regulations (CFR) in order to reflect statutory changes made in section 503 of the USMCA Implementation Act. As the immigration-related provisions of the USMCA are substantially similar to those contained within NAFTA, substantive amendments to the regulations are not required. References to NAFTA's immigration-related provisions are currently found in 8 CFR 103.7(d)(11), 212.1(l), 214.1(a)(2), 214.2(b)(4), 214.2(e)(22)(i), 214.2(l)(17), 214.6, and 274a.12(b)(19). Specific changes to 8 CFR are as follows:

In 8 CFR 103.7(d)(11), 212.1(l), 214.1(a)(2), 214.2(e)(22)(i), 214.2(l)(17), and 274a.12(b)(19), references to NAFTA are replaced with the corresponding references to the USMCA.

Similarly, in 8 CFR 214.2(b)(4), references to NAFTA, including references to its appendices and annexes, are replaced with the corresponding references to the USMCA. The word “existing” is removed from the first sentence in the introductory paragraph of § 214.2(b)(4), along with the entire second sentence of the introductory paragraph of § 214.2(b)(4), which referenced “existing requirements.” These sentences in the introductory paragraph of § 214.2(b)(4) are being amended because NAFTA Appendix 1603.A.3 (Existing Immigration Measures) and the definition of “existing” in NAFTA Annex 1608 do not appear in USMCA Chapter 16. The third sentence in the introductory paragraph of § 214.2(b)(4) is being removed because it is redundant with 8 CFR 214.2(b)(4)(ii). Additionally, “existing” is removed from § 214.2(b)(4)(ii) to conform with the introductory paragraph and the USMCA. Other amendments include minor wording, punctuation, and stylistic changes to bring the regulations in line with the text of the USMCA, as well as corrections of typographical errors. Additionally, under NAFTA, occupations in the fields of commercial transactions, public relations and advertising, tourism, tour bus operation, and translation were all grouped together under the heading entitled, “General Service”. The USMCA moved those occupations and changed them into separate categories. To reflect this organizational change in the regulations, paragraphs (b)(4)(i)(G)( 2 ) though ( 7 ) are removed from under the “General Service” heading and are set out in paragraphs (b)(4)(i)(H) through (L). Lastly, language is added to clarify the cross-reference in paragraph (b)(4)(ii).

In 8 CFR 214.6, references to NAFTA, including references to its appendices and annexes, are replaced with the corresponding references to the USMCA. Other changes include minor wording, punctuation, formatting, and stylistic changes to bring the regulations in line with the text of the USMCA, as well to correct typographical errors.

Under section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553), agencies generally are required to publish a notice of proposed rulemaking in the Federal Register that solicits public comment on the proposed regulatory amendments, consider public comments in deciding on the content of the final amendments, and publish the final amendments at least 30 days prior to their effective date. This rule is exempt from APA rulemaking requirements pursuant to 5 U.S.C. 553(a)(1) as a foreign affairs function of the United States because it is amending U.S. domestic regulations to conform to the immigration-related provisions of the USMCA, which is an international agreement negotiated between the United States, Mexico, and Canada.

CBP also has determined that there is good cause pursuant to 5 U.S.C. 553(b)(B) to publish this rule without prior public notice and comment procedures. This rule simply makes conforming amendments to existing DHS regulations to reflect the statutory changes made by section 503 of the USMCA Implementation Act, Public Law 116-113, 134 Stat. 11. Specifically, this rule replaces references to NAFTA with the USMCA, along with other minor, non-substantive stylistic changes. Chapter 16 of the USMCA provides the same treatment to Canada and Mexico regarding temporary entry that NAFTA provided. As a result, prior public notice and comment procedures for this rule are impracticable, unnecessary, and contrary to the public interest.

For the same reasons, a delayed effective date is not required under 5 U.S.C. 553(d)(3). The USMCA entered into force on July 1, 2020. A delayed effective date would be impractical, unnecessary, and contrary to the public interest.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (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.

Rules involving the foreign affairs function of the United States are exempt from the requirements of Executive Orders 12866 and 13563. Because this rule involves a foreign affairs function of the United States by implementing a specific trilateral agreement negotiated between the United States, Mexico, and Canada, the rule is not subject to the provisions of Executive Orders 12866 and 13563.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a proposed rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency is required to publish a general notice of proposed rulemaking for a rule. Because this document is not subject to the notice and public procedure requirements of 5 U.S.C. 553, it is not subject to the provisions of the Regulatory Flexibility Act.

As there is no new collection of information required in this document, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.

For the reasons stated above in the preamble, DHS amends parts 103, 212, 214, and 274a of title 8 of the Code of Federal Regulations (8 CFR parts 103, 212, 214, and 274a) as set forth below:

I. Background

EXIM has revised its regulations under the FOIA, 5 U.S.C. 552. The revisions incorporate changes in law under the FOIA Improvement Act of 2016, developments in case law, and changes in Federal and EXIM policies. While incorporating these changes, EXIM has also sought to simplify and clarify its regulations. The final rule replaces EXIM's current FOIA regulations in their entirety (12 CFR 404.1 through 404.11).

The numbered paragraphs immediately below provide an overview of the changes to the regulations. At the conclusion of this preamble, the new regulations are set forth in their entirety.

1. Amended: Authority.

The authority citation for part 404 is amended to include additional cites to EXIM's statutory charter (12 U.S.C. 635(a)(1)) and the rulemaking provisions of the Administrative Procedures Act (5 U.S.C. 553). Citations to executive orders imposing administrative requirements on EXIM are removed. The amended general authority is 12 U.S.C. 635(a)(1); 5 U.S.C. 552, 5 U.S.C. 552(a), 5 U.S.C. 553.

2. Redesignation of §§ 404.12 through 404.23.

3. Redesignation of §§ 404.24 through 404.36.

4. Amended: § 404.1, General provisions.

This section is amended to clarify the purpose and scope of the FOIA regulations and to remove the current paragraph (b) setting forth EXIM policy. EXIM policy complies with the FOIA and related guidance, as set forth in the remainder of the regulations, and the current (un-amended) paragraph (b) is either duplicative or could cause confusion.

Current paragraphs (d) and (e) describe EXIM's proactive disclosures and provide EXIM's internet address and mailing address. This information is amended and moved to §§ 404.2, Proactive disclosures, and 404.3, Request requirements.

5. Removed: Current § 404.2, Definitions.

This section is eliminated, with most of the definitions relocated to the sections in which the defined terms are used. The majority of the relocated definitions pertain to current § 404.16, Schedule of fees. The definitions of “Confidential business information” and “Submitter” are relocated to the section currently labelled “Confidential business information.” The regulations change the phrase “confidential business information” to “confidential commercial information” for greater consistency with the statutory language, related case law, and applicable guidance. “Working days” was relocated to the section addressing time for processing, previously at § 404.5.

Several other definitions are eliminated as unnecessary due to their being common usage, duplicative of information contained elsewhere, or otherwise sufficiently clear in meaning from the context in which they were used. These terms are eliminated for purposes of brevity and clarity. This includes the definitions of “appeal,” “final determination,” “initial determination,” “person,” “redaction,” “request,” and “requester.”

The current definition of “trade secrets” is eliminated as legally incorrect.

6. Amended: § 404.2, Proactive disclosures.

This section is renumbered from current § 404.3 to § 404.2 and renamed “Proactive disclosures.” The current wording describes procedures for accessing a physical reading room at EXIM's headquarters, while the revision includes the online reading room now required by the FOIA. The amended section also states that EXIM's FOIA Liaison is available to help requesters locate information online. In addition, the amended section newly describes the data that EXIM posts at data.exim.gov on EXIM's transactions.

7. Amended: § 404.3, Request requirements.

This section is renumbered from current § 404.4 to § 404.3. This section encourages potential requesters to review the information publicly available on the EXIM website before submitting a request. EXIM believes it is in requesters' best interest to review the significant amount of information available online before submitting a request.

This section also states the electronic means for submitting a request, including by email to foia@exim.gov, through the online portal at www.exim.gov/about/foia or in the alternative, to the national request portal at https://www/foia.gov. The current requirement that requesters sign their request was eliminated as inconsistent with the FOIA and EXIM's past practice of accepting unsigned electronic submissions. Requesters would instead need to provide contact information.

The current statement that a general request to pay applicable fees is deemed a request to pay up to $50.00 was eliminated. This statement is viewed as potentially inconsistent with the Office of Management and Budget's (OMB's) FOIA Fee Guidelines, which requires agencies to notify requesters of fees exceeding $25.00.

This section also clarifies and updates the language that sets forth the process for obtaining records by the requester (or a third party), and the need for a request to provide an adequate description of the records. The section also provides for FOIA Public Liaison assistance in reformulating a request.

8. Added: § 404.5, Responsibility for responding to requests.

This newly added section provides the Freedom of Information and Privacy Office the authority to respond to requests, establish a “cut off” date for searches at the time the search is conducted, address classified information, and describe EXIM's procedures for working with other agencies in the processing of requests—including through consultations, referrals, and other types of coordination.

9. Amended: § 404.6, Time for processing.

This section is renumbered from current § 404.5 to § 404.6. It newly incorporates the statutory definition of “unusual circumstances” and “working days.” This section also provides for multitrack processing, with the following tracks: expedited, simple, and complex. This section also seeks to clarify the current language and add additional detail to the expedited processing provisions.

10. Amended: § 404.7, Release of records.

This section is renumbered from current § 404.6 to § 404.7 and renamed. It includes the foreseeable harm requirement for discretionary exemptions, added by the FOIA Improvement Act of 2016.

The current paragraph (a), addressing the “creation of records,” was eliminated as both inconsistent with the FOIA and unnecessary. Even though this subsection is eliminated, EXIM would retain the authority to create appropriate records.

As indicated in this section, the current paragraph (d) addressing the “cut off” date for searches is amended and relocated to § 404.5.

11. Amended: § 404.8, Responses to requests.

Section 404.8, Initial determination, is renamed for purposes of clarity and greater consistency with other agency FOIA regulations. The section also newly provides for communication with requesters by email and EXIM's online portal, newly provides for the acknowledgement of requests, and more fully describe EXIM obligations when there is either a full grant of the requested records or an adverse determination of some kind. This section also newly addresses FOIA exclusions under 5 U.S.C. 552(c).

As required by the FOIA Improvement Act of 2016, this section requires EXIM to notify requesters of the services provided by the Office of Government Information Services (OGIS).

12. Amended: § 404.9, Confidential commercial information.

This section is renumbered from current § 404.7, Confidential business information, to § 404.9 and renamed. The title “confidential business information” is changed to “confidential commercial information” to better match the wording of the requirements in Exemption 4, case law, related guidance, and other agency FOIA regulations. The protections and procedures remain the same and are in accordance with Executive Order 12600, but the amendments here seek to provide additional detail and clarity for requesters based on the legal standards applicable under Exemption 4.

13. Amended: § 404.10, Schedule of fees.

This section is renumbered from current § 404.9 to § 404.10. As referenced above, this section newly incorporates amended versions of the definitions that are currently located in a general definitions section at § 404.2. The amended language also updates and provides additional detail on EXIM's fee practices, consistent with OMB's Fee Guidelines.

The rate for clerical search and review time are increased from $16.00/hour to $33.00/hour. The rate for professional search and review time are increased from $32.00/hour to $57.00/hour. This reflects increased labor rates since the regulations were last updated in 1999.

Notice of anticipated fees are generally provided when the estimated fees exceed $25.00, unless a requester has already agreed to pay more or has received a waiver. This is lowered from the current $50.00 to match OMB's Fee Guidelines.

14. Amended: § 404.11, Fee waivers or reductions.

This section is renumbered from current § 404.10 to § 404.11. As with the prior two sections addressed above, this section is expanded to provide additional guidance and clarity for requesters. The substantive standards for seeking fee waivers are governed by the FOIA and related case law, however, and would remain unchanged. Current paragraph (e), Employee Requests, are removed because the FOIA is generally not needed for employees or applicants to obtain information related to a complaint of discrimination. Discrimination complaints are governed by procedures established by the Equal Employment Opportunity Commission and, regardless, EXIM would retain the authority to grant discretionary fee waivers and reductions.

15. Amended: § 404.12, Administrative appeals.

This section is renumbered from current § 404.11 to § 404.12. The changes are provided for the electronic submission of appeals and to notify appellants of the ability to seek assistance from OGIS.

16. Amended: § 404.13, Preservation of records.

This newly added section provides for the preservation of all correspondence associated with a request, as well as all requested records, under appropriate records schedules. It also prohibits the destruction or modification of records while they are subject to a pending request, administrative appeal, or lawsuit.

17. Amended: Subparts B and C.

Cross references in subparts B and C are updated to reflect section redesignations in the subparts.

When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” which will “describe the impact of the proposed rule on small entities.” (5 U.S.C. 603(a)). Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities.

The changes to EXIM's FOIA regulations are predominantly procedural in nature and many incorporate already binding law and policy. While the changes also increase the rates that EXIM uses to charge certain FOIA requesters the direct costs of responding to a request, this updated fee schedule reflects current EXIM costs and EXIM remains only able to charge its direct costs of searching for, reviewing, and duplicating the records processed for requesters. There are a number of possible exceptions and waivers that reduce the number of requesters and small entities that may be affected by the fee changes and, even when charged, these fees are typically small. When needed, EXIM is able to work with requesters to modify their request to reduce the chargeable fees while still obtaining the core information they seek.

As a result, the changes are unlikely to have an economic impact on requesters regardless of their size and resources. Accordingly, EXIM hereby certifies that these amendments to the FOIA regulations would not have a significant economic impact on a substantial number of small entities.

This final rule is not a “significant regulatory action” for purposes of Executive Order 12866.

This final rule is not a regulatory action under Section 2 of Executive Order 13771 because it is not significant under Executive Order 12866 and does not constitute a significant guidance document.

This regulation does not contain a “collection of information” as defined by the Paperwork Reduction Act, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, EXIM amends 12 CFR part 404 as follows:

The Fair Credit Reporting Act (FCRA)—which was enacted in 1970 and has since been amended several times—was intended by Congress to “ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy.” Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 52 (2007). The FCRA “imposes a host of requirements concerning the creation and use of consumer reports.” Spokeo, Inc. v. Robins, 578 U.S. 330, 335 (2016). Among other things, the statute sets forth the permissible uses of consumer reports, establishes limits for information included in consumer reports, and creates a process for consumers to dispute information in their credit files.

In the Consumer Financial Protection Act of 2010, Congress granted the Consumer Financial Protection Bureau general rulemaking authority over the FCRA (except for certain provisions that are administered by other Federal agencies). 1 The Bureau also has authority to enforce the FCRA, along with other Federal regulators. 2

States also play an important role in the regulation of consumer reporting. The FCRA itself grants States the authority to enforce the statute. 3 Additionally, in the wake of Congress's enactment of the FCRA, many States passed their own versions of the statute. States have continued to enact legislation regulating the conduct of consumer reporting agencies, furnishers, and users of consumer reports. In some cases, State legislation provides protections to consumers that go above and beyond the requirements of the FCRA.

These State statutes exist alongside the FCRA, which says that—subject to certain exceptions—it “does not annul, alter, affect, or exempt any person subject to [the FCRA] from complying with the laws of any State with respect to the collection, distribution, or use of any information on consumers, or for the prevention or mitigation of identity theft, except to the extent that those laws are inconsistent with any provision of this subchapter, and then only to the extent of the inconsistency.”  4 In other words, State laws that are not “inconsistent” with the FCRA—including State laws that are more protective of consumers than the FCRA—are generally not preempted.

The FCRA also expressly preempts certain categories of State laws. As relevant here, 15 U.S.C. 1681t(b) says that “[n]o requirement or prohibition may be imposed under the laws of any State with respect to any subject matter regulated under” certain sections or subsections of the FCRA:

• subsection (c) or (e) of section 1681b, relating to the prescreening of consumer reports;

• section 1681i, relating to the time by which a consumer reporting agency must take any action, including the provision of notification to a consumer or other person, in any procedure related to the disputed accuracy of information in a consumer's file, [with an exception for laws in effect on September 30, 1996];

• subsections (a) and (b) of section 1681m, relating to the duties of a person who takes any adverse action with respect to a consumer;

• section 1681m(d), relating to the duties of persons who use a consumer report of a consumer in connection with any credit or insurance transaction that is not initiated by the consumer and that consists of a firm offer of credit or insurance;

• section 1681c, relating to information contained in consumer reports, [with an exception for laws in effect on September 30, 1996];

• section 1681s-2, relating to the responsibilities of persons who furnish information to consumer reporting agencies [with exceptions for certain enumerated State laws]

• section 1681g(e), relating to information available to victims under section 1681g(e);

• section 1681s-3, relating to the exchange and use of information to make a solicitation for marketing purposes;

• section 1681m(h), relating to the duties of users of consumer reports to provide notice with respect to terms in certain credit transactions;

• subsections (i) and (j) of section 1681c-1 relating to security freezes; or

• subsection (k) of section 1681c-1, relating to credit monitoring for active duty military consumers.

Similarly, 15 U.S.C. 1681t(b)(5) says that “[n]o requirement or prohibition may be imposed under the laws of any State with respect to the conduct required by the specific provisions of” certain sections or subsections of the FCRA:

• section 1681c(g);

• section 1681c-1;

• section 1681c-2;

• section 1681g(a)(1)(A);

• section 1681j(a);

• subsections (e), (f), and (g) of section 1681m;

• section 1681s(f);

• section 1681s-2(a)(6); or

• section 1681w.

This interpretive rule clarifies the preemptive scope of 15 U.S.C. 1681t(b), with a particular focus on 15 U.S.C. 1681t(b)(1) and (5), which have been the subject of recent legal challenges to State laws. 5 As 15 U.S.C. 1681t(b)(1) says, that provision preempts only those State laws “with respect to any subject matter regulated under” certain sections or subsections of the FCRA. Similarly, 15 U.S.C. 1681t(b)(5) preempts only those States law “with respect to the conduct required by the specific provisions of” certain sections or subsections of the FCRA. The term “with respect to” indicates that Congress intended these provisions to have a narrow sweep. As the Supreme Court has held in a similar context, “with respect to” means to “concern.” In other words, section 1681t(b)(1) does not preempt State laws unless they concern a subject matter regulated under the enumerated portions of the FCRA. Similarly, section 1681t(b)(5) does not preempt State laws unless they concern conduct required by the enumerated portions of the FCRA.

The Supremacy Clause of the United States Constitution says that “the Laws of the United States” shall be “the supreme Law of the Land . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. When a Federal statute includes a preemption clause—as the FCRA does—“[t]he purpose of Congress is the ultimate touchstone” in interpreting such a clause. Altria Grp., Inc. v. Good, 555 U.S. 70, 76 (2008). “Congressional intent, of course, primarily is discerned from the language of the pre-emption statute and the `statutory framework' surrounding it.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 486 (1996). Thus, any preemption analysis must “focus on the plain wording of the clause.” Puerto Rico v. Franklin California Tax-Free Tr., 579 U.S. 115, 125 (2016).

Focusing on the plain text of sections 1681t(b)(1) and 1681t(b)(5), it is apparent that both provisions have a narrow and targeted scope.

Section 1681t(b)(1) has eleven subsections, each of which follows the same syntax. Each subsection preempts State laws “with respect to any subject matter regulated under” an enumerated part of the FCRA ( e.g., section 1681c). Following the enumerated section of the FCRA comes a parenthetical phrase beginning with “relating to” that describes or further narrows the section that has just been enumerated. For instance, section 1681(b)(1)(E) generally preempts State laws “with respect to any subject matter regulated under section 1681c of this title, relating to information contained in consumer reports.” Preemption under section 1681t(b)(1) thus depends on the meaning of both the “with respect to” and “relating to” clauses.

Foremost, State laws are not preempted unless they are “with respect to any subject matter regulated under” the enumerated sections of the FCRA. In the case of section 1681t(b)(1)(E), State laws would not be preempted unless they are “with respect to any subject matter regulated under section 1681c.”

In addition, a State law is preempted under section 1681t(b)(1) only if it also falls within the description in the “relating to” parenthetical. In some cases, the “relating to” parenthetical merely reiterates the enumerated section. For instance, 15 U.S.C. 1681t(b)(1)(C) preempts State laws “with respect to any subject matter regulated under subsections (a) and (b) of section 1681m of this title, relating to the duties of a person who takes any adverse action with respect to a consumer.” Both subsections (a) and (b) of section 1681m lay out certain duties of a person who takes an adverse action with respect to a consumer. Thus, both the “with respect to” clause and the “relating to” clause of section 1681t(b)(1)(C) have the same scope.

But in other cases, the “relating to” clause serves as a further limitation on the “with respect to” clause. For example (and as noted above), section 1681t(b)(1)(E) preempts State laws “with respect to any subject matter regulated under section 1681c of this title, relating to information contained in consumer reports.” Although section 1681c primarily contains limitations on information that can be included in consumer reports, it also includes other miscellaneous provisions. See, e.g., 15 U.S.C. 1681c(g) (requirement for truncating credit card and debit card numbers in receipts provided to cardholder). Thus, the plain text of section 1681t(b)(1)(E) indicates that only those State laws “with respect to” section 1681c that also “relate to” information contained in consumer reports are preempted.

It has been argued by some that the preemptive scope of section 1681t(b)(1) is defined only by the “relating to” clause. For example, in Consumer Data Indus. Ass'n v. Frey, 26 F.4th 1 (1st Cir. 2022), the plaintiffs argued that section 1681t(b)(1)(E) preempts any State laws “relating to information contained in consumer reports,” regardless of whether the law is “with respect to any subject matter regulated under” section 1681c. As courts have correctly held, that “is not the most natural reading of the statute's syntax and structure.” Frey, 26 F.4th at 6. That interpretation would render the “with respect to” clause surplusage. A statute, however, “ought to be construed in a way that `no clause, sentence, or word shall be superfluous, void, or insignificant.” Duncan v. Walker, 533 U.S. 167, 174 (2001). Moreover, Congress knows how to broadly preempt State laws that are “related to” fields or topics. For instance, the Employee Retirement Income Security Act “supersede[s] any and all State laws insofar as they may now or hereafter relate to any employee benefit plan.” 29 U.S.C. 1144(a). Congress could have used similar syntax in the FCRA—but it did not. Instead, Congress made clear that a State law is not preempted by section 1681t(b)(1) unless it falls within the “with respect to” clause.

Whether a particular State law is “with respect to any subject matter regulated under” the enumerated sections of the FCRA will depend on the facts and circumstances. But it bears noting that the phrase “with respect to any subject matter regulated under” is an important limiting factor. As the Supreme Court has noted in a case involving a statute that—like the FCRA—included a preemption provision with both “related to” and “with respect to” phrases, the “with respect to” phrase served to “massively limit[ ] the scope of preemption.” Dan's City Used Cars, Inc. v. Pelkey, 569 U.S. 251, 261 (2013). The “with respect to” phrase “necessarily reaches a subset of laws narrower than those that merely relate to information contained in consumer reports.” Frey, 26 F.4th at 8. It narrows the universe of preemption only to those laws that “concern” the subject matter regulated under the enumerated FCRA sections. Dan's City Used Cars, 569 U.S. at 261; see also, e.g., Frey, 26 F.4th at 7 (section 1681t(b)(1)(E) “preempt[s] those claims that concern subject matter regulated under section 1681c”); Galper v. JP Morgan Chase Bank, N.A., 802 F.3d 437, 446 (2d Cir. 2015) (section 1681t(b)(1)(F) “preempts only those claims that concern a furnisher's responsibilities). Thus, if a State law does not “concern” the subject matters regulated under the FCRA sections specified in section 1681t(b)(1), it is not preempted by that clause.

It bears emphasis that section 1681t(b)(1) does not preempt all State laws relating to the content or information contained in consumer reports. Indeed, the legislative history of this provision confirms that it was intended to provide only “limited” preemption on “procedural” issues. 6

For example, section 1681t(b)(1)(E) preempts State laws “with respect to any subject matter regulated under” section 1681c “relating to information contained in consumer reports.” In turn, section 1681c states requirements relating to four topics relating to information contained in consumer reports: (1) obsolescence, i.e., how long certain specific types of information may continue to appear on a consumer report;  7 (2) certain information about medical information furnishers;  8 (3) certain information relating to veterans' medical debt;  9 and (4) certain information that must be included in a consumer report ( e.g., the fact that the consumer has disputed information provided by a furnisher to the consumer reporting agency issuing the report). 10

The legislative history of the FCRA preemption provision confirms that only subject matter at this level of specificity is subject to preemption. The legislative history expressly references “obsolescence periods” as an example of a subject matter governed by preemption—not the broader subject matter of the content of a consumer report more generally. 11 Hence, FCRA 1681t(b)(1)(E) does not preempt State laws about subject matter regarding the content of or information on consumer reports beyond these topics. 12

For instance, although how long the specific types of information listed in section 1681c may continue to appear on a consumer report is a subject matter regulated under section 1681c, what or when items generally may be initially included on a consumer report is not a subject matter regulated under section 1681c. Indeed, section 1681c(a)(7) provides requirements about when veterans' medical debt, specifically, may be included on a consumer report by a nationwide consumer reporting agency, but nothing in section 15 U.S.C. 1681c addresses what or when information of other types may initially be included on reports. 13 (For example, section 1681c(a)(5) regulates how long “adverse item[s] of information, other than records of convictions of crimes” may appear on consumer reports, but not whether or when adverse items may initially appear on a consumer report.) Similarly, only 1681c(a)(6) and (8), relating specifically to information about medical information furnishers and veterans' medical debt, contain restrictions on the content of a consumer report; the other provisions restrictions relate only to how long information may appear. section 1681c therefore does not provide any general restrictions on the content of a consumer report. Accordingly, State laws relating to what or when items generally may be initially included on a consumer report—or what or when certain types of information may initially be included on a consumer report—would generally not be preempted by section 1681t(b)(1)(E).

States therefore retain substantial flexibility to pass laws involving consumer reporting to reflect emerging problems affecting their local economies and citizens. For instance, medical debt that shows up in a consumer report can be factored into a consumer's credit score, though whether and how these debts affect their scores varies depending on the score model. 14 Research by the CFPB has found that medical collections are less predictive of future consumer credit performance than nonmedical collections. 15 Additionally, paid medical collections are less predictive of future performance than unpaid medical collections. Individuals with more medical than non-medical collections and individuals with more paid than unpaid medical collections had delinquency rates that were comparable to those of individuals with credit scores of 10 points higher and 20 points higher, respectively. In other words, these individuals were less likely to be delinquent than other individuals with the same credit score. Nonetheless, some widely used models still weight medical and nonmedical collections equally. 16 This means that consumers with medical debt may be negatively affected if creditors use older scoring models that may overweight medical debt. To address these concerns and others, States may pass laws addressing the furnishing and reporting of medical debt.

If a State law were to forbid a consumer reporting agency from including medical debt in a consumer report for a certain period of time after the debt was incurred, such a law would generally not be preempted. Section 1681c does not regulate the subject matter of when medical debt (or debt generally) may be first included in a consumer report. As noted above, section 1681t(b)(1) does not preempt all State laws relating to the content or information contained in consumer reports; rather, 1681t(b)(1) preempts only State laws concerning the subject matter regulated under the specified FCRA sections. Hence, as described above, 1681t(b)(1)(E) preempts State laws only with respect to the four specific topics regulated under section 1681c. Section 1681c(a)(7) provides requirements regarding veterans' medical debt, but section 1681c does not regulate the subject matter of medical debt information more generally. Further, although medical debt information may be “adverse information” regulated under 1681c((a)(5), as explained above, that provision regulates only the subject of how long such information may appear on a consumer report, not the content of the information or when such information may initially appear.

Likewise, if a State law prohibited a furnisher from furnishing information about medical debt for a certain period of time after the debt was incurred, such a law would not be preempted by section 1681t(b)(1)(F), which voids only State laws “with respect to any subject matter regulated under section 1681s-2 of this title, relating to the responsibilities of persons who furnish information to consumer reporting agencies.” Section 1681s-2 sets forth several requirements for furnishers in order to assure the accuracy of information provided to consumer reporting agencies. For instance, “[a] person shall not furnish any information relating to a consumer to any consumer reporting agency if the person knows or has reasonable cause to believe that the information is inaccurate.”  17 However, section 1681s-2 says nothing about when a furnisher may or must begin furnishing information about a consumer's account. Consistent with the discussion above about section 1681, the subject matter of section 1681s-2 that is subject to preemption is limited to these topics that are actually addressed in the section. Accordingly, when a furnisher may or must begin furnishing information about a consumer's account is not a “subject matter regulated under section 1681s-2.” Thus, a State law governing when a furnisher may begin furnishing on a consumer's account (including medical debt) would not be preempted by section 1681t(b)(1)(F).

Additionally, for example, the CFPB has noted that rental information in consumer reports plays a critical role in consumers' access to rental housing, credit, and other opportunities. 18 The CFPB has received consumer complaints about receiving collection notices from landlords or debt collectors for rent-related charges and fees they viewed as questionable. 19 These charges may then appear on their consumer reports. Complaints to the CFPB also indicate that tenant screening companies may report inaccurate or misleading criminal and civil information, which led to consumers being denied for housing applications, 20 and the Federal Trade Commission has found that certain tenant screening companies have failed to follow reasonable procedures to ensure the accuracy of their reports about potential tenants. 21 CFPB examiners have also found that the oversight of public records providers by one or more consumer reporting agencies was weak and required corrective action. 22 Further, research suggests that a significant number of eviction records “contain ambiguous information on how the case was resolved or falsely represent a tenant's eviction history.”  23 There is little or no empirical research showing that tenant screening report content is reliably predictive of future tenant behavior. For example, the CFPB has expressed concern regarding how reliably predictive pandemic era rental data is on a consumer's future performance. 24 To address these concerns and others, States may pass laws addressing the furnishing and reporting of rental information.

A State law prohibiting a consumer reporting agency from including information (or certain types of information) about a consumer's eviction, rental arrears, or arrests on a consumer report would generally not be preempted under section 1681t(b)(1). As noted above, section 1681t(b)(1)(E) preempts State laws only “with respect to any subject matter regulated under” section 1681c “relating to information contained in consumer reports.” Again, nothing in section 1681c regulates the content of eviction information, rental arrears, or arrest records or when such information may initially appear on a consumer report. Although such information may be information about “[c]ivil suits, civil judgments, and records of arrest” regulated under section 1681c((a)(2) or “adverse information” regulated under section 1681c((a)(5), as explained above, those provisions regulate only the subject of how long such information may appear on a consumer report, not the content of the information. Section 1681t(b)(1) preempts only State laws concerning the subject matter regulated under the specified FCRA sections, and whether or when information such as eviction information, rental arrears, or arrest records appears on a consumer report is not such a subject matter.

Similarly, Congressional purpose in 15 U.S.C. 1681t(b)(5) is evident from its plain text. It has nine subsections, and each follows the same syntax: State laws are preempted to the extent they are “with respect to the conduct required by the specific provisions of [an enumerated FCRA provision].” For example, 15 U.S.C. 1681t(b)(5)(E) preempts State laws “with respect to the conduct required by the specific provisions of section 1681j(a),” which sets forth requirements for nationwide consumer reporting agencies and nationwide specialty consumer reporting agencies to provide free annual credit reports to consumers. A State law on this topic—for example, a State law requiring consumer reporting agencies to provide semi-annual credit reports to consumers—would likely be “with respect to the conduct required” by this provision. On the other hand, if a State law does not concern “the conduct required by” the enumerated section—the annual disclosure requirement, in the case of section 1681j(a)—then it is not preempted. For example, section 1681j(a) provides no requirements regarding the language in which disclosures of information are provided. Accordingly, if a State law required that a consumer reporting agency provide information required by the FCRA at the consumer's requests in languages other than English, such a law would generally not be preempted by section 1681t(b)(5)(E).

This is an interpretive rule issued under the Bureau's authority to interpret the Dodd-Frank Wall Street Reform and Consumer Protection Act (CFPA), including under section 1022(b)(1) of the CFPA, which authorizes guidance as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of Federal consumer financial laws, such as the CFPA. 25

As an interpretive rule, this rule is exempt from the notice-and-comment rulemaking requirements of the Administrative Procedure Act. 26 Because no notice of proposed rulemaking is required, the Regulatory Flexibility Act does not require an initial or final regulatory flexibility analysis. 27 The Bureau has also determined that this interpretive rule 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. 28

Pursuant to the Congressional Review Act, 29 the Bureau will submit a report containing this interpretive rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the United States prior to the rule's published effective date. The Office of Information and Regulatory Affairs has designated this interpretive rule as not a “major rule” as defined by 5 U.S.C. 804(2).

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2021-0170, dated July 19, 2021 (EASA AD 2021-0170), to correct an unsafe condition for all Airbus Helicopters (AH), formerly Eurocopter, Eurocopter France, Aerospatiale, Sud Aviation, Model AS 365 N2, AS 365 N3, EC 155 B, EC 155 B1 and SA 365 N1 helicopters.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus Helicopters Model AS-365N2, AS 365 N3, EC 155B, EC155B1, and SA-365N1 helicopters. The NPRM published in the Federal Register on April 11, 2022 (87 FR 21052). The NPRM was prompted by a large amount of critical scale particles found on the TGB chip detector magnetic plug during an unscheduled check of a Model AS 365 N2 helicopter. The NPRM proposed to require repetitive inspections of the TGB chip detector for particles, analyzing any particles collected, performing a double bearing washing, repetitive replacements of certain part-numbered double bearings, and corrective actions if necessary, as specified in EASA AD 2021-0170.

The FAA is issuing this AD to prevent bearing degradation and subsequent failure. The unsafe condition, if not addressed, could result in loss of yaw control of the helicopter. See EASA AD 2021-0170 for additional background information.

The FAA received a comment from an anonymous commenter. The commenter did not request any changes to the NPRM or to the determination of costs.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters. This AD is adopted as proposed in the NPRM.

EASA AD 2021-0170 requires analyzing any particles collected during close monitoring or during any required inspections, repetitive inspections of the TGB chip detector for particles, performing a double bearing washing, and corrective actions. Corrective actions include removing an affected TGB and repairing or replacing that TGB, sending affected parts and certain information to the manufacturer, replacing a TGB chip detector or TGB electrical magnetic plug, and replacing an affected O-ring and double bearing. EASA AD 2021-0170 also requires performing a double bearing washing or performing a metallurgical analysis based on inspection results.

EASA AD 2021-0170 also requires for any double bearing part number (P/N) 704A33-651-245 or 704A33-651-246, installed on any TGB P/N 365A33-6005-09, before exceeding 610 flight hours (FH) since first installation, or within 110 FH after October 28, 2019 (the effective date of EASA AD 2019-0267-E, dated October 25, 2019), whichever occurs later, and thereafter at intervals not to exceed 500 FH, replacing the affected double bearing with a serviceable one. EASA AD 2021-0170 allows double bearing part number P/N 704A33-651-245 or 704A33-651-246 to be installed, provided it has never been installed on a helicopter and it is inspected as required by EASA AD 2021-0170. Finally, EASA AD 2021-0170 allows TGB P/N 365A33-6005-09 to be installed, provided it has a serviceable double bearing installed that is inspected as required by EASA AD 2021-0170.

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

The FAA reviewed Airbus Helicopters Emergency Alert Service Bulletin (EASB) No. 01.00.24 for non FAA-type certificated military Model AS565MA, MB, MBe, SA, SB, and UB helicopters; EASB No. 01.00.71 for Model AS365N1, N2, and N3 helicopters, and non FAA-type certificated military Model AS365F, Fi, K, and K2 helicopters; EASB No. 01.31 for non FAA-type certificated military Model SA366GA helicopters; and EASB No. 04A016 for Model EC155B and B1 helicopters, each Revision 3 and dated June 14, 2021 (co-published as one document).

This service information specifies procedures to inspect the TGB chip detector for particles, analyze and define the particles by performing a metallurgical analysis, perform a washing of the double bearing, replace the double bearing, and send certain information and affected parts to the manufacturer.

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

Service information referenced in EASA AD 2021-0170 specifies sending compliance forms, and certain parts to the manufacturer; this AD does not. Service information referenced in EASA AD 2021-0170 specifies contacting Airbus Helicopters for approved repairs or corrective actions if certain discrepancies are found, whereas this AD requires accomplishing repairs or corrective actions using a method approved by the Manager, General Aviation and Rotorcraft Section, International Validation Branch, FAA; or EASA; or Airbus Helicopters' EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

The FAA estimates that this AD affects 53 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Analyzing any particles collected during close monitoring takes about 1 work-hour for an estimated cost of $85 per inspection and up to $4,505 for the U.S. fleet.

Replacing a double bearing takes about 16 work-hours and parts cost about $1,620 for an estimated cost of $2,980 per replacement and $157,940 for the U.S. fleet.

Inspecting the TGB chip detector for particles takes about 1 work-hour for an estimated cost of $85 per inspection and $4,505 for the U.S. fleet.

Performing a double bearing washing takes about 8 work-hours for an estimated cost of $680 per helicopter.

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

Analyzing collected particles takes about 1 work-hour for an estimated cost of $85 per helicopter.

Replacing a double bearing takes about 16 work-hours and parts cost about $1,620 for an estimated cost of $2,980 per bearing.

Replacing a TGB chip detector or TGB electrical magnetic plug takes about 1 work-hour and parts cost about $900 for an estimated cost of $985 per part replacement.

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

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

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

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

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

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

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

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

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

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

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

Issued on June 16, 2022.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2022-0101-E, dated June 2, 2022 (referred to after this as “the MCAI”), to address an unsafe condition on certain serial-numbered Stemme AG Model Stemme S12 powered sailplanes (gliders). The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0809.

The FAA reviewed Stemme Procedural Instruction P320-912060, Revision 00, dated May 20, 2022. This service information specifies procedures for inspecting the LH and RH outer wing spars for correct positioning of the GFRP reinforcement blocks, including sealing the inspection holes. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA also reviewed Stemme Service Bulletin P062-980060, Revision 00, dated May 20, 2022. This service information specifies inspecting the LH and RH outer wing spars for correct positioning of the GFRP reinforcement blocks by following Stemme Procedural Instruction P320-912060, Revision 00, dated May 20, 2022. This service information also prohibits operation and informing Stemme AG if incorrect positioning is found.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this AD because it has determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this AD and the MCAI.”

The MCAI specifies contacting Stemme for approved corrective action instructions, and this AD requires using a repair method approved by the FAA, EASA, or Stemme AG's Design Organization Approval.

The FAA considers this AD to be an interim action. The design approval holder is currently developing a modification that will address the unsafe condition identified in this AD. Once this modification is developed, approved, and available, the FAA might consider additional rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because loss of structural integrity between the inner and outer wing sections could cause a sudden rupture of the affected wing and consequent loss of glider control. Therefore, the inspection and any necessary repair must be accomplished before further flight. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-0809 and Project Identifier MCAI-2022-00711-G” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to https://www.regulations.gov, including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Jim Rutherford, Aviation Safety Engineer, General Aviation & Rotorcraft Section, International Validation Branch, FAA, 901 Locust, Room 301, Kansas City, MO 64106. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 21 gliders of U.S. registry.

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

The FAA estimates the following costs to replace reinforcement blocks on both sides, if required based on the results of the inspection. The FAA has no way of determining the number of gliders that might need this action:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0859 in the Federal Register (86 FR 58814; October 25, 2021), establishing United States Area Navigation (RNAV) route T-390 in the vicinity of St. Paul Island, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11F.

Subsequent to the publication of the NPRM for Docket No. FAA-2021-0859 in the Federal Register (86 FR 58814; October 25, 2021), establishing United States Area Navigation (RNAV) route T-390 in the vicinity of St. Paul Island, AK, the FAA determined it was necessary to and rename the ZEKTI waypoint (WP) to the DUMZU WP to comply with FAA administrative guidance for FIX-name reservations. Additionally, the FAA determined it was necessary to relocate the WANKI and ZEKTI (now DUMZU) waypoints to address instrument flight procedure concerns related to two points ( i.e. FIX, navigational aid, waypoints) being located too close to one another. As a result, the latitude/long geographic coordinates for the WANKI and DUMZU waypoints are changed from what was proposed in the NPRM. This change moves the waypoints by approximately 600-feet from the location as proposed in the NPRM. This rule incorporates these changes.

This document proposes to amend 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.

This action amends 14 CFR part 71 by establishing RNAV route T-390 in the vicinity of St. Paul Island, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The route is described below.

T-390: This action establishes T-390 from the WANKI, AK, WP to the DUMZU, AK, WP located adjacent to the Iliamna, AK, (ILI) Non-Directional Beacon (NDB).

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

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA determined that this airspace action of establishing RNAV route T-390 in the vicinity of St. Paul Island, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0865 in the Federal Register (86 FR 59670; October 28, 2021), establishing United States Area Navigation (RNAV) route T-417 in the vicinity of Tok Junction, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document will be published subsequently in FAA Order JO 7400.11F.

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.

This action amends 14 CFR part 71 by establishing RNAV route T-417 in the vicinity of Tok Junction, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The route is described below.

T-417: This action establishes T-417 extending between the CEBUN, AK, waypoint (WP) located to the southwest of Northway, AK and the EGAXE, AK, FIX located to the west of Tok Junction Airport (PFTO).

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

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA determined that this airspace action of establishing RNAV route T-417 in the vicinity of Tok Junction, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0848 in the Federal Register (86 FR 58609; October 22, 2021), establishing United States Area Navigation (RNAV) route T-372 in the vicinity of Gulkana, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document will be published subsequently in FAA Order JO 7400.11F.

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.

This action amends 14 CFR part 71 by establishing RNAV route T-372 in the vicinity of Gulkana, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The route is described below.

T-372: This action establishes T-372 from the Big Lake, AK, (BGQ) VHF Omnidirectional Range and Tactical Air Navigational System (VORTAC) to the OLARU, AK, FIX, on the Canadian border south east of the Northway, AK, (ORT) VORTAC.

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

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA determined that this airspace action of establishing RNAV route T-372 in the vicinity of Gulkana, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

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

The FAA published a notice of proposed rulemaking for Docket No. FAA-2022-0108 in the Federal Register (87 FR 10995; February 28, 2022), revoking Colored Federal airway B-5 in the vicinity of Point Hope, AK due to the pending decommissioning of the Point Hope, AK, (PHO) NDB. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

The Area Navigation (RNAV) T-route, T-366, will overlay the existing B-5 airway and have the same lower minimum enroute altitude. T-366 will be established and charted with a publication date coinciding with the B-5 revocation of September 8, 2022.

Colored Federal airways are published in paragraph 6009(d) 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 Colored Federal airway listed in this document will be removed subsequently from FAA Order JO 7400.11.

Subsequent to the notice of proposed rulemaking for Docket No. FAA-2022-0108 in the Federal Register (87 FR 10995; February 28, 2022), revoking Colored Federal airway B-5 in the vicinity of Point Hope, AK, an FAA study revealed that aircraft have not been able to fly B-5 because the Point Hope, AK, (PHO) NDB has not been operational for several years. Further, a radar traffic study of the Colored Federal airway B-5 annual usage verified that no non-Global Positioning System (GPS) equipped aircraft have used B-5. The airway is essentially abandoned. Additionally, the operator of the Point Hope NDB, has no intention of restoring the NDB site since it is already approved for decommissioning. Based on this information, this action revokes the Colored Federal airway B-5 in its entirety.

This 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.

This action amends 14 CFR part 71 by revoking Colored Federal airway B-5. B-5 currently navigates between the Cape Lisburne, AK, (LUR) NDB and the Point Hope, AK, (PHO) Non-directional Beacon (NDB). This action revokes the Colored Federal airway B-5 in its entirety.

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

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA determined that this airspace action of revoking Colored Federal airway Blue-5 (B-5) in the vicinity of Point Hope, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitudes, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground based navigation.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2021-0813 in the Federal Register (86 FR 55754; October 7, 2021), amending United States Area Navigation (RNAV) route T-275 in the vicinity of Bethel, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. There were no comments received.

United States Area Navigation Routes are published in paragraph 6011 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 RNAV route listed in this document would be published subsequently in FAA Order JO 7400.11.

Subsequent to the publication of the NPRM for Docket No. FAA-2021-0813 in the Federal Register (86 FR 55754; October 7, 2021), amending United States Area Navigation (RNAV) route T-275 in the vicinity of Bethel, AK, the FAA determined it was necessary to relocate the ZIKNI waypoint (WP) to address instrument flight procedure concerns related to two points ( i.e., fix, navigational aid, WPs) being located too close to one another. As a result, the latitude/longitude geographic coordinates for the WP are changed from what was proposed in the NPRM. This change moves the WP by approximately 600-feet from the location as proposed in the NPRM. The regulatory text in this action incorporates this change.

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.

This action amends 14 CFR part 71 by amending RNAV route T-275 in the vicinity of Bethel, AK in support of a large and comprehensive T-route modernization project for the state of Alaska.

The route changes are described below.

T-275: T-275 extends from the Bethel, AK, (BET) VHF Omnidirectional Range Tactical Air Navigation (VORTAC) and the Unalakleet, AK, (UNK) VOR Distance Measuring Equipment (VOR/DME). This action extends the route south from the Bethel, AK, (BET) VORTAC to provide alternate navigation for Colored Federal airway B-7. An additional turn point is added between the Bethel, AK, (BET) VORTAC and the Unalakleet, AK, (UNK) VOR/DME taking the airway slightly to the west to allow for better route connectivity with other proposed and current T-routes. The resulting T-route extends between the ZIKNI, AK, WP and the Unalakleet, AK, (UNK) VOR/DME.

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

The FAA 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA determined that this airspace action of amending RNAV route T-275 in the vicinity of Bethel, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The Commission's regulation at 16 CFR part 1241, titled “Safety Standard for Crib Mattresses,” provides a URL to access the voluntary standard incorporated by reference into CPSC's mandatory standard. That voluntary standard, ASTM F2933-21, Standard Consumer Safety Specification for Crib Mattresses (approved on June 15, 2021) (ASTM F2933-21), will be available for viewing free of charge on the ASTM website once the rule becomes effective on August 15, 2022. 87 FR 8640 (Feb. 15, 2022). Section 1241.2(a) of the Safety Standard for Crib Mattresses states: “Once incorporated by reference, you may review a read-only copy of ASTM F2933-21 at http://www.astm.org/READINGROOM/. ” 87 FR 8674. This URL is incorrect, and the public should be directed instead to: https://www.astm.org/READINGLIBRARY/. Accordingly, the Commission issues this final rule to update 16 CFR 1241.2(a) with the correct URL citation for the ASTM reading library containing voluntary standards incorporated by reference into regulations. This document does not make any substantive changes to the final rule.

In FR Doc. 2022-02414 appearing on page 8640 in the Federal Register of Tuesday, February 15, 2022, the following correction is made:

We are making a technical amendment to correct § 270.0-2. Specifically, this document amends Instruction 12.b. published in the Adopting Release to correct a sentence reference.

In document FR doc. 2022-13936, which was published in the Federal Register on June 30, 2022, at 87 FR 38943, the following correction is made:

The Coast Guard will enforce safety zone located in 33 CFR 165.845 for the Four Seasons Hotel Fireworks Display event. The regulations will be enforced from 8:30 p.m. through 10 p.m. on July 21, 2022. This action is being taken to provide for the safety of life on navigable waterways during this event, which will be located between MM 94.5 and MM 95.5 AHP, LMR, LA. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Captain of the Port or designated representative.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via Marine Safety Information Bulletins (MSIBs), Local Notice to Mariners (LNMs), and/or Broadcast Notice to Mariners (BNMs).

Under Clean Air Act (CAA or Act) section 110(a)(2)(D)(i)(I), also called the good neighbor provision, states are required to address the interstate transport of air pollution. Specifically, the good neighbor provision requires that each state's implementation plan contain adequate provisions to prohibit air pollutant emissions from within the state that will significantly contribute to nonattainment of the national ambient air quality standards (NAAQS), or that will interfere with maintenance of the NAAQS, in any other state.

On October 27, 1998 (63 FR 57356), EPA finalized the “Finding of Significant Contribution and Rulemaking for Certain States in the Ozone Transport Assessment Group Region for Purposes of Reducing Regional Transport of Ozone” (NO X SIP Call). The NO X SIP Call required eastern states, including Alabama, to submit SIPs that prohibit excessive emissions of ozone season NO X by implementing statewide emissions budgets. 1 The NO X SIP Call addressed the good neighbor provision for the 1979 ozone NAAQS and was designed to mitigate the impact of transported NO X emissions, one of the precursors of ozone. 2 EPA developed the NO X Budget Trading Program, an allowance trading program that states could adopt to meet their obligations under the NO X SIP Call. This trading program allowed the following sources to participate in a regional cap and trade program: generally, electricity generating units (EGUs) with capacity greater than 25 megawatts (MW); and large industrial non-EGUs, such as boilers and combustion turbines, with a rated heat input greater than 250 million British thermal units per hour (MMBtu/hr). The NO X SIP Call also identified potential reductions from cement kilns and stationary internal combustion engines.

To comply with the NO X SIP Call requirements, in 2001, ADEM submitted a revision to add new rule sections to the SIP-approved version of Alabama Administrative Code Chapter 335-3-1, General Provisions, and Chapter 335-3-8, Control of Nitrogen Oxides Emissions. EPA approved the revision as compliant with Phase I of the NO X SIP Call in 2001. See 66 FR 36919 (July 16, 2001). The approved revision required EGUs and large non-EGUs in the State to participate in the NO X Budget Trading Program beginning in 2004. In 2005, Alabama submitted, and EPA approved, a SIP revision to address additional emissions reductions required for the NO X SIP Call under Phase II. See 70 FR 76694 (December 28, 2005).

In 2005, EPA published the Clean Air Interstate Rule (CAIR), which required several eastern states, including Alabama, to submit SIPs that prohibited emissions consistent with revised ozone season NO X budgets (as well as annual budgets for NO X and sulfur dioxide). See 70 FR 25162 (May 12, 2005); see also 71 FR 25328 (April 28, 2006). CAIR addressed the good neighbor provision for the 1997 ozone NAAQS and 1997 fine particulate matter (PM 2.5 ) NAAQS and was designed to mitigate the impact of transported NO X emissions with respect to ozone and PM 2.5. CAIR established several trading programs that EPA implemented through Federal implementation plans (FIPs) for EGUs greater than 25 MW in each affected state, but not large non-EGUs; states could submit SIPs to replace the FIPs that achieved the required emission reductions from EGUs and/or other types of sources. 3 When the CAIR trading program for ozone season NO X was implemented beginning in 2009, EPA discontinued administration of the NO X Budget Trading Program; however, the requirements of the NO X SIP Call continued to apply.

On October 1, 2007 (72 FR 55659), EPA approved revisions to Alabama's SIP that incorporated requirements for CAIR. Consistent with CAIR's requirements, EPA approved a SIP revision in which Alabama regulations: (1) sunset its NO X Budget Trading Program requirements, and (2) incorporated CAIR annual and ozone season NO X state trading programs. See 72 FR 55659. Participation of EGUs in the CAIR ozone season NO X trading program addressed the State's obligation under the NO X SIP Call for those units, and Alabama also chose to require non-EGUs subject to the NO X SIP Call to participate in the same CAIR trading program. In this manner, Alabama's CAIR rules incorporated into the SIP addressed the State's obligations under the NO X SIP Call with respect to both EGUs and non-EGUs.

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008, but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR. See North Carolina v. EPA, 531 F.3d 896, modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The ruling allowed CAIR to remain in effect temporarily until a replacement rule consistent with the court's opinion was developed. While EPA worked on developing a replacement rule, the CAIR program continued to be implemented with the NO X annual and ozone season trading programs beginning in 2009 and the SO 2 annual trading program beginning in 2010.

Following the D.C. Circuit's remand of CAIR, EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR and address good neighbor obligations for the 1997 ozone NAAQS, the 1997 PM 2.5 NAAQS, and the 2006 PM 2.5 NAAQS. See 76 FR 48208 (August 8, 2011). Through FIPs, CSAPR required EGUs in eastern states, including Alabama, to meet annual and ozone season NO X emission budgets and annual SO 2 emission budgets implemented through new trading programs. Implementation of CSAPR began on January 1, 2015. 4 CSAPR also contained provisions that would sunset CAIR-related obligations on a schedule coordinated with the implementation of the CSAPR compliance requirements. Participation by a state's EGUs in the CSAPR trading program for ozone season NO X generally addressed the state's obligation under the NO X SIP Call for EGUs. CSAPR did not initially contain provisions allowing states to incorporate large non-EGUs into that trading program to meet the requirements of the NO X SIP Call for non-EGUs. EPA also stopped administering CAIR trading programs with respect to emissions occurring after December 31, 2014. 5

To comply with CSAPR, Alabama adopted SO 2 and NO X CSAPR trading program rules, including budgets, in ADEM Administrative Code Chapters 335-3-5 and 335-3-8. On August 31, 2016, EPA approved Alabama's CSAPR annual SO 2 and annual NO X trading program rules into the SIP. 6 See 81 FR 59869. Because EPA stopped administering the CAIR trading programs after 2014, the approved CAIR rules in Alabama's SIP have not been implemented for several years. Furthermore, ADEM repealed all CAIR and CAIR-related regulations from Alabama Administrative Code Chapters 335-3-1, 335-3-5, and 335-3-8 on December 9, 2011. 7 Even though the CAIR programs were not being implemented in Alabama, ozone season NO X emissions have remained well below the NO X SIP Call budget levels.

After litigation that reached the Supreme Court, the D.C. Circuit generally upheld CSAPR but remanded several state budgets to EPA for reconsideration. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118, 129-30 (D.C. Cir. 2015). EPA addressed the remanded ozone season NO X budgets in the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update), which also partially addressed eastern states' good neighbor obligations for the 2008 ozone NAAQS. See 81 FR 74504 (October 26, 2016). The air quality modeling for the CSAPR Update demonstrated that Alabama contributes significantly to nonattainment and/or interferes with maintenance of the 2008 ozone NAAQS in other states. The CSAPR Update reestablished an option for most states to meet their ongoing obligations for non-EGUs under the NO X SIP Call by including the units in the CSAPR Update trading program.

The CSAPR Update trading program replaced the original CSAPR trading program for ozone season NO X for most covered states. On October 6, 2017, EPA approved Alabama's CSAPR Update ozone season NO X trading program rules for EGUs into Alabama's SIP. 8 See 82 FR 46674. 9 Alabama's EGUs participate in the CSAPR Update trading program, generally also addressing the state's obligations under the NO X SIP Call for EGUs. However, Alabama elected not to include its large non-EGUs in the CSAPR Update ozone season trading program. Because Alabama's large non-EGUs no longer participate in any CSAPR or CSAPR Update trading program for ozone season NO X emissions, the NO X SIP Call regulations at 40 CFR 51.121(r)(2), as well as anti-backsliding provisions at 40 CFR 51.905(f) and 40 CFR 51.1105(e), require these non-EGUs to maintain compliance with NO X SIP Call requirements in some other way.

Under 40 CFR 51.121(f)(2) of the NO X SIP Call regulations, where a state's implementation plan contains control measures for EGUs and large non-EGU boilers and combustion turbines, the SIP must contain enforceable limits on the ozone season NO X mass emissions from these sources. In addition, under 40 CFR 51.121(i)(4) of the NO X SIP Call regulations as originally promulgated, the SIP also had to require these sources to monitor emissions according to the provisions of 40 CFR part 75, which generally entails the use of continuous emission monitoring systems (CEMS). Alabama triggered these requirements by including control measures in its SIP for these types of sources, and the requirements have remained in effect despite the discontinuation of the NO X Budget Trading Program after the 2008 ozone season.

On March 8, 2019, EPA revised some of the regulations that were originally promulgated in 1998 to implement the NO X SIP Call. 10 The revision gave states covered by the NO X SIP Call greater flexibility concerning the form of the NO X emissions monitoring requirements that the states must include in their SIPs for certain emissions sources. The revision amended 40 CFR 51.121(i)(4) to make part 75 monitoring, recordkeeping, and reporting optional, such that SIPs may establish alternative monitoring requirements for NO X SIP Call budget units that meet the general requirements of 40 CFR 51.121(f)(1) and (i)(1). Under the updated provision, a state's implementation plan still needs to include some form of emissions monitoring requirements for these types of sources, consistent with the NO X SIP Call's general enforceability and monitoring requirements at 40 CFR 51.121(f)(1) and (i)(1), respectively, but states are no longer required to satisfy these general NO X SIP Call requirements specifically through the adoption of 40 CFR part 75 monitoring requirements.

Through a letter to EPA, dated February 27, 2020, ADEM provided a SIP revision to incorporate changes to Alabama's Administrative Code, Chapter 335-3-8, to include Rule 335-3-8-.71, NO X Budget Program, and Rule 335-3-8-.72, NO X Budget Program Monitoring and Reporting, to maintain the State's compliance with the Federal NO X SIP Call regulations at 40 CFR 51.121 and 51.122, and to provide alternative monitoring options for certain large non-EGUs. Subsequently, on September 15, 2020, ADEM sent a letter requesting that EPA conditionally approve Rule 335-3-8-.72 and committing to provide a SIP revision to EPA by July 7, 2022, to address a deficiency related to misplacement of stack testing requirements within Rule 335-3-8-.72(1). 11 Based on the State's commitment to submit a SIP revision addressing the identified deficiency, EPA conditionally approved the February 27, 2020, submission on July 7, 2021. See 86 FR 35610. 12

In accordance with EPA's conditional approval and ADEM's commitment, the State submitted a SIP revision on October 18, 2021. 13 The submission corrects the deficiency in Rule 335-3-8-.72(1) and requests EPA to convert the previous conditional approval into a full approval. As proposed through a notice of proposed rulemaking (NPRM) published on May 16, 2022, EPA is approving the October 18, 2021, revision to the Alabama SIP and converting the conditional approval to a full approval of ADEM's Rule 335-3-8-.72. For a comprehensive discussion of EPA's analysis and rationale for approving the State's submittal, please refer to EPA's May 16, 2022, NPRM. See 87 FR 29707 (May 16, 2022). Comments on the May 16, 2022, NPRM were due on or before June 15, 2022. EPA received one comment on that proposal, and it supports EPA's proposed action.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as discussed in Section I of this preamble, EPA is finalizing the incorporation by reference of Alabama's Administrative Code Rule 335-3-8-.72, NO X Budget Program Monitoring and Reporting, which establishes emission monitoring requirements for units subject to the NO X SIP call, state effective December 13, 2021. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, the revised materials as stated above, have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation. 14

EPA is taking final action to approve Alabama's October 18, 2021, submission, which revises Alabama Rule 335-3-8-.72, NO X Budget Program Monitoring and Reporting, to correct the stack testing requirement by moving it from 335-3-8-.72(1)(c) to 335-3-8-.72(1)(d) and correct language in 335-3-8-.72(d) to refer to NO X mass emissions. In addition, EPA is taking final action to convert the July 7, 2021, conditional approval of Alabama Rule 335-3-8-.72 to a full approval.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 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. 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 (Public Law 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 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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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 September 9, 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).

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

Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

On December 7, 2021, the EPA proposed to approve Washington's October 14, 2021, SIP revision for YRCAA's jurisdiction as meeting Clean Air Act (CAA) requirements (86 FR 69200). The public comment period for the proposed action ended on January 6, 2022.

The EPA received three comments on the proposal. We have summarized and responded to the comments below. The full text of the submitted comments may be found in the docket for this action.

Comment—Emission data, as defined by the EPA, and other data used in preparation of plans must be publicly available.

Summary —A commenter requested confirmation that “emission data” is not entitled to confidential treatment under YRCAA Regulation 1, section 1.06 Records. Specifically, subsection 1.06(D) treats as confidential records “any information, other than ambient air quality data or emission data” that is certified by an owner or operator as meeting certain requirements, subject to review by the agency. The commenter noted that Regulation 1 does not contain a definition of “emission data” and requested that YRCAA confirm that it will apply section 1.06 consistent with the EPA's definition of “emissions data” in 40 CFR 2.301(a)(2). The commenter also states that Regulation 1 cannot exempt information that is “used in the preparation of each plan or plan revision,” citing to 40 CFR 51.116. The commenter gave as an example of such information the identification of a manufacturing process that is used to estimate emissions from the facility for purposes of an attainment plan, and notes that this is an example of emission data, which is not entitled to confidential treatment.

Response —In response to the comment, the EPA has evaluated the commenter's concern about the meaning of the term “emissions data” in subsection 1.06(D) and verified that the YRCCA uses this term consistent with CAA requirements. YRCAA has submitted a letter confirming that the agency interprets the term “emission data” consistent with the EPA's definition of “emissions data” in 40 CFR 2.301(a)(2). YRCAA's letter notes that this interpretation is consistent with the language in YRCAA Regulation 1, section 1.06 stating that the application of this provision is “to provide access to any information available under Federal or state law concerning the business of the agency.” Although inclusion of a specific definition of “emissions data” in section 1.06 could be helpful, the EPA is relying on YRCAA's confirmation of the meaning of this term as part of the basis for this action. A copy of YRCAA's letter is included in the docket for this action.

The EPA agrees that it is important to have clarity about the meaning of the term “emissions data” in SIPs. As a specific example of potential ambiguity about what is emissions data, the commenter states: “One example could be identification of a manufacturing process that is used to estimate emissions from the facility for purposes of an attainment plan. Even if the facility claims the identification of the manufacturing process is confidential, it is used in preparation of the plan and must be disclosed to the public.” The commenter then correctly notes that in this hypothetical scenario, if identification of the manufacturing process is in fact necessary information in order to estimate the emissions from the source, then this information is “emissions data” under the EPA's definition in 40 CFR 2.301(a)(2). The EPA agrees that any information that meets the definition of “emissions data” in 40 CFR 2.301(a)(2) must be available to the public and may not be treated as confidential information.

It is unclear whether the commenter's statement that “Regulation 1 cannot exempt information that is `used in the preparation of each plan or plan revision'” is limited to “emission data” used in the preparation of a plan or plan revision, or whether the commenter is making a broader statement that no information whatsoever used in preparation of a state implementation plan or plan revision may be treated as confidential and withheld from the public. To the extent the commenter is broadly asserting that no information used in preparation of a state implementation plan or plan revision may be treated as confidential, the EPA disagrees with that position.

Section 114(d) of the CAA addresses the extent to which certain information obtained by the EPA under the CAA, including information used for the purpose of developing or assisting in the development of any implementation plan under section 110 of the CAA, is entitled to confidential treatment. There is nothing in 40 CFR part 2, subpart B or part 51, however, to suggest that the EPA intended to require states to make available to the public information used in the preparation of an implementation plan or plan revision that would be entitled to confidential treatment under section 114(d) of the CAA. As noted by the commenter, however, any such claims may not extend to “emission data,” as defined in 40 CFR 2.301(a)(2), which YRCAA has confirmed is the case under YRCAA Regulation 1, section 1.06. We therefore are finalizing our proposal to approve section 1.06 into the SIP to replace WAC 173-400-175 Public Information within YRCAA's jurisdiction.

Comment—The EPA must fully disclose the legal effects of its approval of section 4.03 “Voluntary Limits on Emissions”.

Summary —Section 4.03 Voluntary Limits on Emissions of YRCAA Regulation 1, states in subsection (A), “Upon request by the owner or operator of a new or existing source or stationary source, the agency shall issue a regulatory order that limits the potential to emit any air contaminant or contaminants to a level agreed to by the owner or operator and the agency.” A commenter noted that the EPA had not stated in its proposed approval whether regulatory orders issued pursuant to section 4.03 can be enforced by the EPA under CAA section 113 or by citizens under CAA section 304. The commenter goes on to explain why it believes regulatory orders issued under YRCAA Region I, section 4.03 are enforceable by the EPA and citizens under the CAA.

Response —YRCAA Regulation 1, section 4.03 is a nearly verbatim adaptation of the state regulation WAC 173-400-091 Voluntary Limits on Emissions, which the EPA last approved on October 3, 2014 (79 FR 59653). 1 In 40 CFR 52.2495 Voluntary limits on potential to emit, the EPA explicitly stated that the terms and conditions of regulatory orders covering regulated new source review pollutants issued pursuant to WAC 173-400-091 shall be applicable requirements of the federally-approved Washington SIP for the purposes of CAA section 113 and shall be enforceable by the EPA and by any person in the same manner as other requirements of the SIP. We interpret 40 CFR 52.2495 to apply to any local clean air agency corollary regulation approved in lieu of WAC 173-400-091, as well as the Energy Facilities Site Evaluation Council's adoption by reference of WAC 173-400-091. We are revising 40 CFR 52.2495 with this clarification to remove any ambiguity on this issue. With this clarification, we are finalizing our proposal to approve section 4.03 into the SIP to replace WAC 173-400-091 Voluntary Limits on Emissions.

Comment—A commenter questions whether the EPA should approve a SIP for a clean air agency when the commenter asserts there are ongoing complaints about the agency's legitimacy .

Summary —A commenter identifies what it considers to be numerous concerns with YRCAA agency leadership and program implementation and enforcement. The concerns include that the proposed SIP revision was not signed by all YRCAA board members, a board member rarely attends YRCAA board meetings, and that permitting decisions are made by staff and not board members. The letter also summarizes a recent request made by the commenter to the Yakima County Commissioners to dissolve the YRCAA. The commenter summarized concerns raised in their dissolution request, including allegations that YRCAA does not address significant air pollution in a part of its jurisdiction that is an environmental justice community, that YRCAA has refused to acknowledge environmental justice, that YRCAA refused to investigate complaints regarding odor and dust when the source is animal agriculture, that YRCAA does not measure levels of ammonia, hydrogen sulfide, methane, oxygen, or other pollutants when citizens complain that they cannot breathe due to air pollution in their homes, that YRCAA ignores Washington laws regulating confined animal feeding operations and that YRCAA does not regulate dairies in Yakima County.

Response— The commenter questions whether the EPA should approve a SIP for YRCAA because the commenter contends there are ongoing concerns about the legitimacy of the YRCAA and states that it has requested Yakima County to dissolve YRCAA. In response to those concerns, we note that YRCAA is established as a local air authority under Revised Code of Washington (RCW) 70A.15.1500 to 70A.15.2040 of the Washington Clean Air Act. The Washington Clean Air Act contains a mechanism for the state to investigate and address concerns with local air agency performance. Specifically, under RCW 70A.15.3100, the Department of Ecology “may, on its own motion, conduct a hearing held in accordance with chapters 42.30 and 34.05 RCW, to determine whether or not the air pollution prevention and control program of such authority is being carried out in good faith and is as effective as possible. If at such hearing the department finds that such authority is not carrying out its air pollution control or prevention program in good faith, is not doing all that is possible and reasonable to control and/or prevent air pollution within the geographical area over which it has jurisdiction, or is not carrying out the provisions of this chapter, it shall set forth in a report or order to the appropriate authority: (1) Its recommendations as to how air pollution prevention and/or control might be more effectively accomplished; and (2) guidelines which will assist the authority in carrying out the recommendations of the department.” In letters dated August 31, 2016 and April 8, 2019, included in the docket for this action, Ecology responded to past requests for formal review of YRCAA under RCW 70A.15.3100 (previously codified at RCW 70.94.405) from the commenter based on similar concerns raised by the commenter about the legitimacy of YRCAA. For the reasons set forth in the response letters, Ecology did not initiate a formal review of YRCAA under RCW 70A.15.3100.

With respect to the specific proposed rulemaking update, the Washington Department of Ecology is the Governor's designee for SIP revisions. In March 2021, YRCAA submitted the revised rules to Ecology and requested Ecology submit them to the EPA for review and approval into the SIP. Ecology held two public comment periods from April 8, 2021 to May 20, 2021 and July 30, 2021 to August 6, 2021, with supplemental documentation. During the state public comment periods, the commenter, and other associated commenters, raised concerns similar to those raised during the EPA's public comment period in this action. On October 4, 2021, Ecology's Director, Laura Watson, as the Governor's designee, reviewed the results of the public review process and made the determination to adopt the SIP revision and submit it to the EPA for review and approval. Ecology's response to comments is included in the SIP revision and was reviewed by the EPA prior to our proposed approval. As Ecology notes in its responses, if Ecology does not submit the current YRCAA regulations to the EPA for review and approval, the YRCAA rules that were in place in 1989 would continue to be the rules that the EPA and the public can enforce in Federal court, and would not correspond to the rules YRCAA currently implements, creating uncertainty for the public, regulated community and regulatory agencies. We agree with that assessment.

With respect to the EPA's review of the more specific comments raised by this commenter during the public comment period in this action, many of the concerns, such as the regulation of odor and toxic air pollutants regulated under Chapter 173-460 WAC, are outside the scope of this action. The EPA's authority to approve SIP submissions extends to provisions related to attainment and maintenance of the National Ambient Air Quality Standards through regulation of criteria pollutants and their precursors and carrying out other specific requirements of section 110 and Parts C and D of the CAA. To the extent that the commenter raises concerns regarding YRCAA's regulation of precursors to criteria pollutants, such as ammonia and volatile organic compounds, none of the comments address a specific deficiency in a regulation that the EPA proposed to approve in this action. In this regard, we note that Yakima County is not designated nonattainment for any criteria pollutants and this SIP revision was not submitted to address any outstanding CAA Part D nonattainment requirements.

With respect to the assertion that YRCAA ignores specified Washington laws with respect to confined animal feeding operations, the commenter does not explain the basis for its concerns with any specificity. Several of the provisions cited by the commenter are clearly outside the scope of this action: RCW 70.15.2270 (addressing fees under Washington's title V operating permit program) and WAC 173-460 (toxic air pollutants). RCW 70A.15.1005 (declaration of public policies and purpose), and RCW 70A.15.3150, (penalties) are broad, authorizing legislation, and the commenter does not explain how YRCAA is ignoring these statutes and how such an allegation relates to the EPA's authority to approve the revisions and updates to the Washington SIP. RCW 70A.15.3050 (emission control requirements) provides that local air authorities in Washington must generally have requirements for the control of emissions that are no less stringent than those adopted by the Washington Department of Ecology. The commenter does not explain with any specificity, however, how the YRCAA regulations that the EPA proposed to approve in this action are less stringent than Ecology's regulations. In this regard, the EPA notes that it has proposed to approve subsection 3.08(B) Dust from Cattle Feeding Operations, which adds additional requirements to supplement the state requirements in WAC 173-400-040(9) Fugitive Dust. Because no equivalent requirements for dust control plans at cattle feeding operations exist in state or Federal regulations, subsection 3.08(B) Dust from Cattle Feeding Operations is SIP-strengthening. The commenter also cites to WAC 173-400-100, Washington's registration requirements. This regulation, however, is not in the SIP. See 79 FR 39351 (July 10, 2014) at page 39354.

In summary, the commenter raises broad concerns about YRCAA program implementation and enforcement of air pollution control requirements but does not raise specific Regulation 1 provisions for the EPA to address or specify any action the EPA should take differently with regards to the submitted regulations.

The EPA is approving general air quality regulations for the YRCAA jurisdiction. These regulations impose new source review permitting requirements, source registration requirements, source testing procedures, public participation requirements, control measures for certain source categories such as dust control requirements, and other general provisions as necessary to implement the requirements above, such as definitions and procedures. Specifically, the EPA is approving and incorporating by reference into the Washington SIP at 40 CFR 52.2470(c)— Table 10—Additional Regulations Approved for the Yakima Regional Clean Air Agency (YRCAA) Jurisdiction, the following YRCAA Regulation 1 sections effective November 11, 2020:

• 1.01, 1.02, 1.03, 1.04, 1.06, 1.07, 2.04, 3.01, 3.08, 4.01, 4.03, Appendix A, and Appendix B.

The EPA is also approving and incorporating by reference the following Chapter 173-400 WAC sections (state effective as of the date shown below) that YRCAA and Ecology submitted to apply within YRCAA's jurisdiction:

• 173-400-020 (12/29/2012), 173-400-025 (9/16/2018), 173-400-030 (9/16/2018), 173-400-036 (12/29/2012), 173-400-040 (9/16/2018), 173-400-050 (9/16/2018), 173-400-060 (11/25/2018), 173-400-105 (11/25/2018), 173-400-110 (12/29/2012), 173-400-111 (07/01/2016), 173-400-112 (12/29/2012), 173-400-113 (12/29/2012), 173-400-117 (12/29/2012), 173-400-118 (12/29/2012), 173-400-131 (4/1/2011), 173-400-136 (4/1/2011), 173-400-151 (2/10/2005), 173-400-171 (9/16/2018), 173-400-200 (2/10/2005), 173-400-560 (12/29/2012), 173-400-800 (4/1/2011), 173-400-810 (07/01/2016), 173-400-820 (12/29/2012), 173-400-830 (07/01/2016), 173-400-840 (07/01/2016), 173-400-850 (07/01/2016), and 173-400-860 (4/1/2011).

Please see the amendatory text for more detailed information about the provisions submitted and approved in this action, including local agency corollaries which replace certain Chapter 173-400 WAC provisions and exclusions to our approval.

In addition to the regulations approved and incorporated by reference described in section III.A. of this preamble, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are generally not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities. Therefore, we are approving the following updates to YRCAA's general provisions for inclusion in 40 CFR 52.2470(e), Table 1—Approved but Not Incorporated by Reference Regulations: YRCAA Regulation 1, sections 1.05, 2.01, 2.02, 2.05, 5.01, 5.02, and 5.03.

YRCAA and Ecology's October 14, 2021, submittal included a request to remove several obsolete provisions from the SIP and to remove other provisions that are not required SIP elements under CAA section 110. As discussed in the proposal for this action, we are removing former section 1.03 which was replaced by Appendix A; former section 2.03 which was replaced by the provisions of section 1.07; former section 2.04 which was replaced by the provisions of section 1.06; former section 5.10 which was repealed effective May 1, 2000; former section 5.12 which was replaced by section 3.08 and WAC 173-400-040; former sections 13.01, 13.02, and 13.03 which were replaced by the provisions of section 2.02; former section 12.01 which was replaced by section 2.03 and is not a required SIP element; and former sections 3.11, 4.02, 4.03, 5.06, 5.07, 5.08, and 5.11, for which YRCAA is now relying on Chapter 173-400 WAC. We are also removing from 40 CFR 52.2470(c) the former sections 2.02, 2.05, 3.01, 3.02, 3.03, 3.04, 8.01, 8.02, 8.03, 8.04, and 8.05, related to local agency enforcement and other general authority, now consolidated in sections 1.05, 2.01, 2.02, 2.05, 5.01, 5.02, and 5.03 approved in 40 CFR 52.2470(e), Table 1—Approved But Not Incorporated By Reference Regulations. We are removing from the SIP Chapter 173-400 WAC provisions approved by the EPA on June 2, 1995 (60 FR 28726) that we are replacing with the local agency corollaries. These provisions are WAC 173-400-010 (replaced by section 1.03), 173-400-091 (replaced by section 4.03), and 173-400-100 (replaced by section 4.01).

This revision to the SIP applies specifically to the YRCAA jurisdiction incorporated into the SIP at 40 CFR 52.2470(c), Table 10. As discussed in our proposal, local air agency jurisdiction in Washington is generally defined on a geographic basis; however, there are exceptions. By statute, YRCAA does not have authority for sources under the jurisdiction of the Energy Facilities Site Evaluation Council (EFSEC). See Revised Code of Washington Chapter 80.50. Under the applicability provisions of WAC 173-405-012, 173-410-012, and 173-415-012, YRCAA also does not have jurisdiction for kraft pulp mills, sulfite pulping mills, and primary aluminum plants. For these sources, Ecology retains statewide, direct jurisdiction. Ecology and EFSEC also retain statewide, direct jurisdiction for issuing Prevention of Significant Deterioration (PSD) permits. Therefore, the EPA is not approving into 40 CFR 52.2470(c), Table 10 those provisions of Chapter 173-400 WAC related to the PSD program. Specifically, these provisions are WAC 173-400-116 and WAC 173-400-700 through 173-400-750, which the EPA has already approved as applying state-wide under 40 CFR 52.2470(c), Tables 2 and 3.

Jurisdiction to implement the visibility permitting program contained in WAC 173-400-117 varies depending on the situation. Ecology and EFSEC retain authority to implement WAC 173-400-117 as it relates to PSD permits. However, for facilities subject to major nonattainment new source review (NSR) under the applicability provisions of WAC 173-400-800, we are approving YRCAA's implementation of those parts of WAC 173-400-117 as they relate to major nonattainment NSR permits. 2 Therefore, we are modifying the visibility protection Federal Implementation Plan contained in 40 CFR 52.2498 to reflect the approval of WAC 173-400-117 as it applies to implementation of the major nonattainment NSR program in YRCAA's jurisdiction.

Lastly, this SIP revision is not approved to apply on any Indian reservation land within Yakima County and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of certain provisions as described in section III.A. and removing provisions from the SIP as described in section III.C. of this preamble. The EPA has made, and will continue to make, materials incorporated by reference generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this final 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 final action:

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

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

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

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

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

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

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

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

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

This SIP revision is not approved to apply on any Indian reservation land within Yakima County and is also not approved to apply in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). Consistent with EPA policy, the EPA provided an opportunity to request consultation to the Confederated Tribes and Bands of the Yakama Nation in a letter dated April 5, 2021.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 9, 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)).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

I. Background

On January 28, 2022 (87 FR 4528), EPA published a notice of proposed rulemaking (NPRM) for the State of Delaware which proposed to approve a revision to Title 7 of Delaware's Administrative Code (7 DE Admin. Code) 1108—Sulfur Dioxide Emissions from Fuel Burning Equipment into the Delaware SIP. The revision will reduce the amount of sulfur in fuel oils used in fuel burning units. 1 The revised regulation also establishes the date of compliance and adds necessary record keeping and recording provisions to ensure compliance with the regulation. Additionally, the revision removes start up, shut down and malfunction provisions that were previously included in the Delaware SIP. The formal SIP revision was submitted by Delaware on July 10, 2013, and amended on August 19, 2016, by a supplemental letter from Delaware Department of Natural Resources and Environmental Control (DNREC) withdrawing a portion of Section 3.0 of 7 DE Admin. Code 1108. The letter is available in the docket for this rulemaking and online at www.regulations.gov.

The SIP revision incorporates amendments to 7 DE Admin. Code 1108—Sulfur Dioxide Emissions from Fuel Burning Equipment which sets the allowable content of sulfur in fuel oils combusted in Delaware. The amendments reduce the SIP approved maximum allowable sulfur content limit for distillate fuels to 15 ppm, and for residential fuel to 0.5% by weight. For any other fuel, the sulfur content would remain 1.0% by weight.

In addition, the amendments to 7 DE Admin. Code 1108 respond to a SIP call issued by EPA for this provision as part of a national action to address startup, shutdown and malfunction (SSM) SIP provisions which are contrary to the CAA and existing EPA guidance. 2 The SIP submission from Delaware, that is the subject of this action, contains a revised version of 7 DE Admin. Code 1108 to delete the language identified in the 2015 SSM SIP call, formerly at Section 1.2, which allowed for impermissible exemptions from the low sulfur fuel oil provisions.

This SIP revision to implement low sulfur fuel oil provisions is expected to reduce regional haze and visibility impairment in Delaware. Additionally, decreased emissions of sulfur dioxide (SO 2 ) will contribute to the attainment, maintenance, or both, of the SO 2 and fine particulate matter (PM 2.5 ) national ambient air quality standards (NAAQS) in Delaware and the surrounding areas. Other specific requirements of the SIP revision and the rationale for EPA's proposed action are explained in the NPRM and will not be restated here. Relevant support documents for this action are available online at https://www.regulations.gov, Docket number EPA-R03-OAR-2014-0204.

EPA received four comments in total, two of which were supportive and can be found in the docket. The remaining two comments EPA received were generally supportive but raised issues beyond the scope of this rulemaking. One comment supported this action generally but suggested additional sulfur reductions should be encouraged by phasing out fossil fuels and investing “in infrastructure that supports the use of electric cars.” Another comment approved of this action to the extent that it approved Delaware's revision to correct one of the SSM exemptions identified in the SSM SIP Call, but admonished EPA for not yet taking action to address the other six SSM provisions in Delaware's SIP that were identified in the SSM SIP Call. EPA acknowledges both comments and the feedback provided. However, the concerns expressed by both commenters are beyond the scope of this rulemaking action, and no response by EPA to those comments is required.

EPA is approving, as a SIP revision, the State of Delaware's July 10, 2013, submittal reducing the amount of sulfur in fuel oils and removing SSM provisions from this portion of the Delaware SIP. EPA has determined that such approval corrects a deficiency identified in the June 12, 2015, SIP call issued to Delaware. EPA is approving the revision to the Delaware SIP in accordance with the requirements of the CAA.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of Delaware's Sulfur Dioxide Emissions from Fuel Burning Equipment requirements as described in 7 DE Admin. Code 1108, not including the last sentence of section 3.0, which Delaware withdrew from this SIP revision. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 3

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

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

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

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

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

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

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

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

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

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

In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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 September 9, 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 regarding fuel oil sulfur limits for combustion and sale in the State of Delaware 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: