Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the Federal Register on February 15, 2022 (87 FR 8436). The NPRM was prompted by a report that during a C-check, corrosion was found in the vertical fin tension bolt hole located in the aluminum crown frames at Section 48. In the NPRM, the FAA proposed to require inspecting certain vertical fin tension bolt holes; reviewing the bolt sealant application installation procedure in the existing maintenance or inspection program, as applicable; checking maintenance records to determine the replacement status of vertical fin tension bolts; and doing applicable on-condition actions. The FAA is issuing this AD to address undetected corrosion, which could lead to the structure falling below residual strength requirements and the loss of the vertical fin, and result in loss of control of the airplane.

The FAA received comments from Air Line Pilots Association, International (ALPA) and Boeing who supported the NPRM without change.

The FAA received additional comments from one commenter, United Airlines (UAL). The following presents the comments received on the NPRM and the FAA's response to each comment.

UAL requested that the FAA revise the exception requirement for a repair. UAL stated that paragraph (h)(2) of the proposed AD specifies that repairs require an operator to contact Boeing for repair instructions and to do the repair using a method approved in accordance with the procedures specified in paragraph (i) of the proposed AD. UAL commented that in paragraph E.2. “Work Instructions” of Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021, it requires, for Condition 2, Action 1 and Condition 7.2, Action 1, to contact Boeing for repair instructions if “any corrosion or any finish degradation found.” UAL commented that per Note 11 of paragraph E.1. “General Information” of Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021, finish degradation is defined as “deterioration, delamination, excessive wear, or erosion of surface, substrates, or coating.” UAL stated that since primer is considered a protective coating, any degradation of primer at the bolt hole would require repair instructions approved by an alternative method of compliance (AMOC); however, Tasks 2, 4, 6, and 8 of Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021, already contain primer instructions if there is degradation, which specifies to, “Apply two coats of BMS 10-11, Type 1 primer if bolt hole in the aluminum frame has protective finish degradation.” UAL commented that, therefore, it should not be necessary to contact Boeing and obtain an AMOC for a repair approval if only primer degradation is found in the bolt hole. UAL also noted that it expects some primer degradation to occur based on the action of removing the bolts for the inspection ( i.e., chafing between bolt shank and adjacent hole).

UAL stated that since the instructions for primer degradation and application are already specified in Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021, it would like clarification that primer degradation and application does not fall within the category of “finish degradation” and does not require an AMOC for a repair approval. UAL stated that its request meets an acceptable level of safety since primer coatings would be restored if required, preventing the safety concern of bolt hole corrosion.

The FAA agrees with the commenter's request. The FAA agrees that Task 2, 4, 6, and 8 in Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021, contain primer application instructions if there is finish degradation; therefore, a request for an AMOC repair approval as specified in paragraph (i) of this AD is not required. Primer is the only bolt hole finish in the aluminum frame, therefore “primer degradation” is the only “finish degradation” that would be found in the inspected area. The FAA has revised paragraph (h)(2) of this AD to specify that if only finish degradation (no corrosion) is found, this AD requires applying two coats of BMS 10-11, Type 1 primer as specified in Tasks 2, 4, 6, and 8 of the Accomplishment Instructions of Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin B787-81205-SB550010-00 RB, Issue 001, dated May 24, 2021. This service information specifies, depending on airplane configuration, procedures for a detailed inspection of the vertical fin tension bolt holes (16 locations) in the aluminum crown frames, composite deck, and root fittings for corrosion and finish degradation; a review of the existing maintenance or inspection program, as applicable, related to the vertical fin tension bolt installation procedure to determine if the sealant application is correct; a review of the maintenance records to determine if a vertical fin tension bolt has been replaced and to determine the sealant application procedure that was used; and applicable on-condition actions. On-condition actions include applying sealant and installing new vertical fin tension bolts and barrel nuts; revising the existing maintenance or inspection program, as applicable, to include the minimum requirement for the correct vertical fin tension bolt sealant application procedure; a detailed inspection for corrosion and finish degradation of only the affected vertical fin tension bolt holes in the aluminum crown frame, composite deck, and root fittings; and repair.

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 estimates that this AD affects 116 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary detailed inspection of the affected holes that would be required based on the results of the actions in this AD. The agency has no way of determining the number of aircraft that might need these on-condition actions:

The FAA has determined that revising the existing maintenance or inspection program, if required, takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, the FAA estimates the average total cost per operator to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has received no definitive data on which to base the cost estimates for the repair specified in this AD.

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Cameron Stratus double burner assembly part number (P/N) CB8720 and P/N CB8721 installed on hot air balloons. The NPRM published in the Federal Register on May 5, 2022 (87 FR 26699). The NPRM was based on MCAI from the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2021-0042, dated January 29, 2021 (referred to after this as “the MCAI”), to address the unsafe condition on all hot air balloons. The MCAI states:

You may examine the MCAI in the AD docket at https://www.regulations.gov under Docket No. FAA-2022-0469.

In the NPRM, the FAA proposed to require repetitively inspecting certain Stratus double burner hangers and replacing certain other Stratus double burners. The FAA also proposed to prohibit installing certain parts. The FAA is issuing this AD to prevent burners from separating from the balloon. The unsafe condition, if not addressed, could result in an uncontrolled cold descent and hard landing of the balloon.

The FAA received no comments on the NPRM or on the determination of the costs.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data 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 products. This AD is adopted as proposed in the NPRM.

The FAA reviewed Cameron Balloons Service Bulletin 28, Revision 3, dated February 3, 2021. The service information specifies identifying the Stratus double burner hanger, inspecting it in accordance with Cameron Balloons SB28: Accomplishment Instructions, Stratus Double Burner; Mounting Hanger Inspection, CBL/TN/DCB/3191, Issue B, dated February 4, 2020 (CBL/TN/DCB/3191 Issue B), and replacing it if there are any cracks.

The FAA also reviewed CBL/TN/DCB/3191 Issue B, which contains procedures for identifying and inspecting affected Stratus double burner hangers.

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 the ADDRESSES section.

The MCAI requires reporting information to Cameron Balloons, and this AD does not.

The FAA estimates that this AD affects 220 burner assemblies that have been produced worldwide. The FAA has no way of knowing how many of these burner assemblies are installed on hot air balloons of U.S. Registry. Therefore, for the purposes of this AD, the FAA is basing the fleet cost estimate on the maximum number of 220 burner assemblies.

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

The FAA estimates the following costs to replace a cracked burner hanger or a burner that has a doubler plate. The FAA has no way of determining the number of hot air balloons that would 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 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:

Background

The Civil Aviation Authority (CAA), which is the aviation authority for the United Kingdom, has issued CAA AD G-2021-0008, dated September 8, 2021 (also referred to as the Mandatory Continuing Airworthiness Information, or the MCAI), to correct an unsafe condition for all BAE Systems (Operations) Limited Model BAe 146 series airplanes and Model Avro 146-RJ series airplanes. You may examine the MCAI in the AD docket on the internet at https://www.regulations.gov by searching for and locating Docket No. FAA-2022-0508.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2015-07-05, Amendment 39-18133 (80 FR 19871, April 14, 2015) (AD 2015-07-05). AD 2015-07-05 applied to all BAE Systems (Operations) Limited Model BAe 146 series airplanes and Model Avro 146-RJ series airplanes. The NPRM published in the Federal Register on May 6, 2022 (87 FR 27037). The NPRM was prompted by a report of a pressurization problem on an airplane during climb-out; a subsequent investigation showed a crack in the fuselage skin; and that repetitive LFEC inspections in the rear fuselage aft skin lap joints and in the fuselage skin panels are necessary. Certain compliance times must also be revised. The NPRM proposed to continue the actions required in AD 2015-07-05, at certain revised compliance times, and also require repetitive LFEC inspections for any cracking, corrosion, and other defects in the aft skin lap joints of the rear fuselage and in the fuselage skin panels, and repair if necessary. The FAA is issuing this AD to address cracking, corrosion, and other defects on the rear fuselage aft skin joints and frames and in the fuselage panels, which could affect the structural integrity of the airplane. See the MCAI for additional background information.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

BAE Systems (Operations) Limited has issued Inspection Service Bulletin 53-239, Revision 5, including Appendix 2, Revision 5, and Appendix 3, Revision 1, all dated March 2, 2017. This service information describes procedures for repetitive external eddy current and LFEC inspections on the aft skin lap joints of the rear fuselage and in the fuselage skin panels, for any cracking, corrosion, and other defects ( e.g., surface damage and spot displacement); and repair if necessary.

This AD also requires BAE Systems (Operations) Limited Inspection Service Bulletin 53-239, including Appendix 2, Revision 3, dated May 7, 2014, which the Director of the Federal Register approved for incorporation by reference as of May 19, 2015 (80 FR 19871, April 14, 2015).

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 the ADDRESSES section.

The FAA estimates that this AD affects 20 airplanes of U.S. registry.

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

The FAA has received no definitive data on which to base the cost estimates for the repairs specified in this AD.

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.

The FAA determined that 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:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Alexander Schleicher GmbH & Co. Segelflugzeugbau Model ASW-15 gliders. The NPRM published in the Federal Register on March 23, 2022 (87 FR 16433). The NPRM was prompted by MCAI from the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union. EASA issued AD 2021-0187, dated August 9, 2021 (referred to after this as “the MCAI”), to address an unsafe condition on all Alexander Schleicher GmbH & Co. Segelflugzeugbau Model ASW 15 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-2022-0288.

In the NPRM, the FAA proposed to require repetitively inspecting the wing root ribs for cracks, looseness, and damage and replacing any root rib with a crack, a loose rib or lift pin bushing, or any damage. The FAA is issuing this AD to detect and correct damaged root ribs. The unsafe condition, if not addressed, could result in reduced structural integrity of the wing assembly, which could lead to loss of control of the glider.

The FAA received one comment from an individual. The following presents the comment received on the NPRM and the FAA's response to the comment.

An individual requested the FAA revise the proposed applicability from “all serial numbers” to “serial numbers 15001 up to 15183,” as stated in the Alexander Schleicher TN. The commenter stated that serial numbers 15184 and subsequent should not be subject to the proposed AD as the wing rib design changed at serial number 15184. The commenter further stated that if the FAA does not change the proposed applicability, owners of gliders with redesigned wing ribs would be required to do needless inspections.

The FAA does not agree that the requested change is necessary. Type Certificate Data Sheet No. G22EU identifies Model ASW-15 gliders as those with serial numbers 15001 through 15183 and Model ASW-15B gliders as those with serial numbers 15184 and subsequent. Therefore, this AD applies to Model ASW-15 gliders, all serial numbers, certificated in any category, which includes only serial numbers 15001 through 15183 inclusive.

The FAA did not change this AD based on this comment.

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 reviewed the relevant data, considered the comment received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. This AD is adopted as proposed in the NPRM.

The FAA reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Technical Note No. 29, dated June 28, 2021. This service information specifies inspecting the root ribs at the wings.

The FAA also reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Repair instruction exchange of wing root ribs according to TN 29, dated June 28, 2021. This service information specifies procedures for replacing the root ribs.

In addition, the FAA reviewed Alexander Schleicher GmbH & Co. Segelflugzeugbau ASW 15 Maintenance Instruction G, Issue 1, dated June 28, 2021. This service information specifies procedures for inspecting the root ribs at the wings for damage.

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 the ADDRESSES section.

The FAA estimates that this AD affects 20 gliders of U.S. registry.

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

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

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:

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, (is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The Coast Guard was not provided the final details for this event until June 8, 2022, and therefore, insufficient time exists to execute the full NPRM process. Waiting for a full comment period to run would inhibit the Coast Guard's ability to keep the public safe from the hazards associated with a nighttime maritime fireworks display and the ability to minimize the impact to vessel traffic on the navigable waterway.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register for the same reasons discussed in the preceding paragraph.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Northern New England (COTP) has determined that potential hazards associated with firework display starting July 21, 2022, will be a safety concern for anyone within a 200-yard radius or the launch location. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a temporary safety zone on the navigable waters of the Boothbay Harbor in the vicinity of McFarland Island, Boothbay, ME, during a fireworks display from a barge. The event is scheduled to take place between 9 p.m. and 11 p.m. on July 21, 2022, unless the event is delayed because of weather conditions in which case it may take place between 9 p.m. and 11 p.m. on July 22, 2022. The safety zone will extend 200 yards around the barge, which will be anchored in approximate position latitude 43°50′46.91″ N, longitude 069°37′30.73″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the firework display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size and location of the safety zone. The safety zone will only be of limited duration and will allow vessels to transit in waters directly adjacent to this safety zone, minimizing any adverse impact. Additionally, maritime advisories will be posted in the Local Notice to Mariners and will be broadcast throughout the duration of the enforcement period.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 2 hours that will prohibit entry within 200 yards of a fireworks barge in Boothbay Harbor in the vicinity of McFarland Island in Boothbay Harbor, Maine. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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

The background for this action is discussed in detail in our August 30, 2021, proposal (86 FR 48363). In that document we proposed to approve a request from the Oklahoma Department of Environmental Quality (ODEQ) to update its existing NESHAP regulations for receiving delegation and approval of its program for the implementation and enforcement of certain National Emission Standards for Hazardous Air Pollutants (NESHAP) for all sources (both part 70 and non-part 70 sources), as provided for under previously approved delegation mechanisms. We received one citizen public comment and one anonymous public comment on the proposed rulemaking action. The comments are posted to the docket (EPA-R06-OAR-2020-0086). These two comments are considered positive and within the scope of this specific rulemaking action. We thank the two commenters for their input and acknowledge their participation in the process. Since these comments are not adverse to the specific action which EPA proposed, the EPA will not be responding further to these comments or making any changes to our proposed rulemaking.

The EPA is providing notice that it is taking final action to approve ODEQ's request updating the delegation of certain NESHAP. With this delegation, ODEQ has the primary responsibility to implement and enforce the delegated standards. See sections VI and VII, below, for a discussion of which standards are being delegated and which are not being delegated.

Section 112(l) of the Clean Air Act (CAA) and 40 CFR part 63, subpart E, authorize the EPA to delegate authority for the implementation and enforcement of emission standards for hazardous air pollutants to a State or local agency that satisfies the statutory and regulatory requirements in subpart E. The hazardous air pollutant standards are codified at 40 CFR parts 61 and 63.

Section 112(l)(5) of the CAA requires the EPA to disapprove any program submitted by a State for the delegation of NESHAP standards if the EPA determines that:

(A) the authorities contained in the program are not adequate to assure compliance by the sources within the State with respect to each applicable standard, regulation, or requirement established under section 112;

(B) adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious; or

(D) the program is otherwise not in compliance with the guidance issued by the EPA under section 112(l)(2) or is not likely to satisfy, in whole or in part, the objectives of the CAA.

In carrying out its responsibilities under section 112(l), the EPA promulgated regulations at 40 CFR part 63, subpart E setting forth criteria for the approval of submitted programs. For example, in order to obtain approval of a program to implement and enforce Federal section 112 rules as promulgated without changes (straight delegation) for part 70 sources, a State must demonstrate that it meets the criteria of 40 CFR 63.91(d). 40 CFR 63.91(d)(3) provides that interim or final Title V program approval will satisfy the criteria of 40 CFR 63.91(d). 1 The NESHAP delegation for Oklahoma, as it applies to both part 70 and non-part 70 sources, was most recently approved on October 22, 2018 (83 FR 53183).

As to the NESHAP standards in 40 CFR parts 61 and 63, as part of its Title V submission ODEQ stated that it intended to use the mechanism of incorporation by reference to adopt unchanged Federal section 112 into its regulations. This commitment applied to both existing and future standards as they applied to part 70 sources. The EPA's final interim approval of Oklahoma's Title V operating permits program delegated the authority to implement certain NESHAP, effective March 6, 1996 (61 FR 4220, February 5, 1996). On December 5, 2001, the EPA promulgated full approval of the State's operating permits program, effective November 30, 2001 (66 FR 63170). These interim and full Title V program approvals satisfy the up-front approval criteria of 40 CFR 63.91(d). Under 40 CFR 63.91(d)(2), once a State has satisfied up-front approval criteria, it needs only to reference the previous demonstration and reaffirm that it still meets the criteria for any subsequent submittals for delegation of the section 112 standards. ODEQ has affirmed that it still meets the up-front approval criteria. With respect to non-part 70 sources, the EPA has previously approved delegation of NESHAP authorities to ODEQ after finding adequate authorities to implement and enforce the NESHAP for such sources. See 66 FR 1584 (January 9, 2001).

By letter dated December 23, 2019, ODEQ requested the EPA to update its existing NESHAP delegation. With certain exceptions noted in section VII of this document, Oklahoma's request included NESHAP in 40 CFR part 61 and 40 CFR part 63. ODEQ's request included newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as amended between September 1, 2016, and June 30, 2018, as adopted by the State.

More recently, by letter dated March 23, 2021, the EPA received a request from ODEQ to update its existing NESHAP delegation. With certain exceptions noted in section VII of this document, ODEQ's request includes certain NESHAP in 40 CFR parts 61 and 63. ODEQ's request included newly incorporated NESHAP promulgated by the EPA and amendments to existing standards currently delegated, as amended between June 30, 2018, and June 30, 2019, as adopted by the State.

All authorities not affirmatively and expressly delegated by this action are not delegated. These include the following part 61 authorities listed below:

• 40 CFR part 61, subpart B (National Emission Standards for Radon Emissions from Underground Uranium Mines);

• 40 CFR part 61, subpart H (National Emission Standards for Emissions of Radionuclides Other Than Radon From Department of Energy Facilities);

• 40 CFR part 61, subpart I (National Emission Standards for Radionuclide Emissions from Federal Facilities Other Than Nuclear Regulatory Commission Licensees and Not Covered by Subpart H);

• 40 CFR part 61, subpart K (National Emission Standards for Radionuclide Emissions from Elemental Phosphorus Plants);

• 40 CFR part 61, subpart Q (National Emission Standards for Radon Emissions from Department of Energy facilities);

• 40 CFR part 61, subpart R (National Emission Standards for Radon Emissions from Phosphogypsum Stacks);

• 40 CFR part 61, subpart T (National Emission Standards for Radon Emissions from the Disposal of Uranium Mill Tailings); and

• 40 CFR part 61, subpart W (National Emission Standards for Radon Emissions from Operating Mill Tailings).

In addition, the EPA regulations provide that we cannot delegate to a State any of the Category II Subpart A authorities set forth in 40 CFR 63.91(g)(2). These include the following provisions: § 63.6(g), Approval of Alternative Non-Opacity Standards; § 63.6(h)(9), Approval of Alternative Opacity Standards; § 63.7(e)(2)(ii) and (f), Approval of Major Alternatives to Test Methods; § 63.8(f), Approval of Major Alternatives to Monitoring; and § 63.10(f), Approval of Major Alternatives to Recordkeeping and Reporting. Also, some part 61 and part 63 standards have certain provisions that cannot be delegated to the States. Furthermore, no authorities are delegated that require rulemaking in the Federal Register to implement, or where Federal overview is the only way to ensure national consistency in the application of the standards or requirements of CAA section 112. Finally, this action does not delegate any authority under section 112(r), the accidental release program.

All inquiries and requests concerning implementation and enforcement of the excluded standards in the State of Oklahoma should be directed to the EPA Region 6 Office.

The EPA is making a determination that the NESHAP program submitted by Oklahoma meets the applicable requirements of CAA section 112(l)(5) and 40 CFR part 63, subpart E.

In approving the NESHAP delegation, ODEQ will obtain concurrence from the EPA on any matter involving the interpretation of section 112 of the CAA or 40 CFR parts 61 and 63 to the extent that implementation or enforcement of these provisions have not been covered by prior EPA determinations or guidance.

We retain the right, as provided by CAA section 112(l)(7) and 40 CFR 63.90(d)(2), to enforce any applicable emission standard or requirement under section 112. In addition, the EPA may enforce any federally approved State rule, requirement, or program under 40 CFR 63.90(e) and 63.91(c)(1)(i). The EPA also has the authority to make certain decisions under the General Provisions (subpart A) of parts 61 and 63. We are delegating to the ODEQ some of these authorities, and retaining others, as explained in sections VI and VII above. In addition, the EPA may review and disapprove State determinations and subsequently require corrections. See 40 CFR 63.91(g)(1)(ii). The EPA also has the authority to review ODEQ's implementation and enforcement of approved rules or programs and to withdraw approval if we find inadequate implementation or enforcement. See 40 CFR 63.96.

Furthermore, we retain any authority in an individual emission standard that may not be delegated according to provisions of the standard. Also, listed in footnote 2 of the part 63 delegation table at the end of this rule are the authorities that cannot be delegated to any State or local agency which we therefore retain.

Finally, we retain the authorities stated in the original delegation agreement. See “Provisions for the Implementation and Enforcement of NSPS and NESHAP in Oklahoma,” effective March 25, 1982, a copy of which is included in the docket for this action. A table of currently delegated NESHAP standards and the final updated NESHAP delegation may be found in the Technical Support Document (TSD) included in the docket for this action. The table also shows the authorities that cannot be delegated to any state or local agency.

ODEQ must provide any additional compliance related information to EPA, Region 6, Office of Enforcement and Compliance Assurance within 45 days of a request under 40 CFR 63.96(a). In receiving delegation for specific General Provisions authorities, ODEQ must submit to EPA Region 6 on a semi-annual basis, copies of determinations issued under these authorities. See 40 CFR 63.91(g)(1)(ii). For part 63 standards, these determinations include: § 63.1, Applicability Determinations; § 63.6(e), Operation and Maintenance Requirements—Responsibility for Determining Compliance; § 63.6(f), Compliance with Non-Opacity Standards—Responsibility for Determining Compliance; § 63.6(h), Compliance with Opacity and Visible Emissions Standards—Responsibility for Determining Compliance; § 63.7(c)(2)(i) and (d), Approval of Site-Specific Test Plans; § 63.7(e)(2)(i), Approval of Minor Alternatives to Test Methods; § 63.7(e)(2)(ii) and (f), Approval of Intermediate Alternatives to Test Methods; § 63.7(e)(iii), Approval of Shorter Sampling Times and Volumes When Necessitated by Process Variables or Other Factors; § 63.7(e)(2)(iv), (h)(2) and (3), Waiver of Performance Testing; § 63.8(c)(1) and (e)(1), Approval of Site-Specific Performance Evaluation (Monitoring) Test Plans; § 63.8(f), Approval of Minor Alternatives to Monitoring; § 63.8(f), Approval of Intermediate Alternatives to Monitoring; §§ 63.9 and 63.10, Approval of Adjustments to Time Periods for Submitting Reports; § 63.10(f), Approval of Minor Alternatives to Recordkeeping and Reporting; and § 63.7(a)(4), Extension of Performance Test Deadline.

The EPA oversees ODEQ's decisions to ensure the delegated authorities are being adequately implemented and enforced. We will integrate oversight of the delegated authorities into the existing mechanisms and resources for oversight currently in place. If, during oversight, we determine that ODEQ made decisions that decreased the stringency of the delegated standards, then ODEQ shall be required to take corrective actions and the source(s) affected by the decisions will be notified, as required by 40 CFR 63.91(g)(1)(ii) and (b). Our oversight authorities allow us to initiate withdrawal of our approval of the program or delegated rule if the corrective actions taken are insufficient. See 51 FR 20648 (June 6, 1986).

For the delegated NESHAP standards and authorities covered by this action, sources would submit all of the information required pursuant to the general provisions and the relevant subpart(s) of the delegated NESHAP (40 CFR parts 61 and 63) directly to the ODEQ at the following address: State of Oklahoma, Department of Environmental Quality, Air Quality Division, P.O. Box 1677, Oklahoma City, Oklahoma 73101-1677. The ODEQ is the primary point of contact with respect to delegated NESHAP. Sources do not need to send a copy to the EPA. The EPA Region 6 waives the requirement that notifications and reports for delegated standards be submitted to the EPA in addition to ODEQ in accordance with 40 CFR 63.9(a)(4)(ii) and 63.10(a)(4)(ii). 2 For those standards and authorities not delegated as discussed above, sources must continue to submit all appropriate information to the EPA.

As stated in previous NESHAP delegation actions, the EPA has approved Oklahoma's mechanism of incorporation by reference of NESHAP standards into ODEQ regulations, as they apply to both part 70 and non-part 70 sources. See, e.g., 61 FR 4224 (February 5, 1996) and 66 FR 1584 (January 9, 2001). Consistent with the EPA regulations and guidance, 3 ODEQ may request future updates to Oklahoma's NESHAP delegation by submitting a letter to the EPA that appropriately identifies the specific NESHAP which have been incorporated by reference into state regulations, reaffirms that it still meets up-front approval delegation criteria for part 70 sources, and demonstrates that ODEQ maintains adequate authorities and resources to implement and enforce the delegated NESHAP requirements for all sources. We will respond in writing to the request stating that the request for delegation is either granted or denied. A Federal Register action will be published to inform the public and affected sources of the updated delegation, indicate where source notifications and reports should be sent, and amend the relevant portions of the Code of Federal Regulations identifying which NESHAP standards have been delegated to the ODEQ.

As stated in the proposed action, following the U.S. Supreme Court decision in McGirt v. Oklahoma, 140 S. Ct. 2452 (2020), the Governor of the State of Oklahoma requested approval under Section 10211(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act of 2005: A Legacy for Users, Pubic Law 109-59, 119 Stat. 1144, 1937 (August 10, 2005) (“SAFETEA”), to administer in certain areas of Indian country (as defined at 18 U.S.C. 1151) the State's environmental regulatory programs that were previously approved by the EPA outside of Indian country. 4 The State's request excluded certain areas of Indian country further described below.

On October 1, 2020, the EPA approved Oklahoma's SAFETEA request to administer all of the State's EPA-approved environmental regulatory programs, including the delegated portions of the NESHAP program, in the requested areas of Indian country. 5 As requested by Oklahoma, the EPA's approval under SAFETEA does not include Indian country lands, including rights-of-way running through the same, that: (1) qualify as Indian allotments, the Indian titles to which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held in trust by the United States on behalf of an individual Indian or Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired that fee title to such land, or an area that included such land, in accordance with a treaty with the United States to which such Tribe was a party, and (b) never allotted the land to a member or citizen of the Tribe (collectively “excluded Indian country lands”).

The EPA's approval under SAFETEA expressly provided that to the extent the EPA's prior approvals of Oklahoma's environmental programs excluded Indian country, any such exclusions are superseded for the geographic areas of Indian country covered by the EPA's approval of Oklahoma's SAFETEA request. 6 The approval also provided that future revisions or amendments to Oklahoma's approved environmental regulatory programs would extend to the covered areas of Indian country (without any further need for additional requests under SAFETEA).

As explained above, the EPA is approving an update to the Oklahoma NESHAP delegation. Consistent with the EPA's October 1, 2020 SAFETEA approval, Oklahoma's delegation of the NESHAP program will apply to all areas of Indian country within the State of Oklahoma, other than the excluded Indian country lands. 7

The EPA is taking final action to approve an update to the Oklahoma NESHAP delegation that would provide ODEQ with the authority to implement and enforce certain newly incorporated NESHAP promulgated by the EPA, and amendments to existing standards currently delegated, as they existed though June 30, 2019. This final delegation to ODEQ extends to sources and activities located in certain areas of Indian country, as explained in section XIV above.

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”  8 The EPA is providing additional analysis of environmental justice associated with this action for the purpose of providing information to the public, not as a basis of our final action.

The EPA reviewed demographic data, which provides an assessment of individual demographic groups of the populations living within Oklahoma. 9 The EPA then compared the data to the national average for each of the demographic groups. 10 The results of the demographic analysis indicate that, for populations within Oklahoma, the percent people of color (persons who reported their race as a category other than White alone (not Hispanic or Latino)) is less than the national average (35 percent versus 40 percent). Within people of color, the percent of the population that is Black or African American alone is lower than the national average (7.8 percent versus 13.4 percent) and the percent of the population that is American Indian/Alaska Native is significantly higher than the national average (9.4 percent versus 1.3 percent). The percent of the population that is two or more races is higher than the national averages (6.3 percent versus 2.8 percent). The percent of people living below the poverty level in Oklahoma is higher than the national average (14.3 percent versus 11.4 percent). The percent of people over 25 with a high school diploma in Oklahoma is similar to the national average (88.6 percent versus 88.5 percent), while the percent with a bachelor's degree or higher is below the national average (26.1 percent versus 32.9 percent). These populations and others residing in Oklahoma may be vulnerable and subject to disproportionate impacts within the meaning of the executive order described above.

The authorities contained in the Oklahoma air program to implement and enforce Federal section 112 rules as promulgated, without changes for both part 70 and non-part 70 sources, are adequate to assure compliance by sources within the State with respect to each applicable standard, regulation, or requirement established under section 112. This final action approves the requests from the state to update its NESHAP delegation under section 112 of the CAA. Final approval of the updated NESHAP delegation is necessary for the State of Oklahoma to implement federal requirements that ensure control strategies and permitting that will achieve emissions reductions and contribute to reduced environmental and health impacts on those residing, working, attending school, or otherwise present in vulnerable communities in Oklahoma. This final rule is not anticipated to have disproportionately high or adverse human health or environmental effects on communities with environmental justice concerns because it should not result in or contribute to emissions increases in Oklahoma.

Under the CAA, the Administrator has the authority to approve section 112(l) submissions that comply with the provisions of the Act and applicable Federal regulations. In reviewing section 112(l) submissions, the EPA's role is to approve state choices, provided that they meet the criteria and objectives of the CAA and of the EPA's implementing regulations. Accordingly, this final action merely approves the State's request 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 final action will apply to certain areas of Indian country as discussed above in section XIV, and therefore has tribal implications as specified in E.O. 13175 (65 FR 67249, November 9, 2000). However, this action will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. This action will not impose substantial direct compliance costs on federally recognized tribal governments because no actions will be required of tribal governments. This action will also not preempt tribal law as no Oklahoma tribe implements a regulatory program under the CAA, and thus does not have applicable or related tribal laws. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes (May 4, 2011), on July 16, 2021, the EPA offered consultation to all 38 tribal governments whose lands are located within the exterior boundaries of the State of Oklahoma. One tribe requested consultation which was initiated on December 21, 2021, and concluded on July 6, 2022.

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

Under section 307(b)(1) of the Clean Air act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 19, 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, 40 CFR parts 61 and 63 are amended as follows:

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

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0296 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before September 19, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0296, by one of the following methods:

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

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

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of June 24, 2020 (85 FR 37807) (FRL-10010-82), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11018) by Verto Solutions on behalf of The Clorox Company, 4900 Johnson Dr., Pleasanton, CA 94588. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of acetaldehyde ethyl cis- 3-hexenyl acetal (CAS Reg. No. 28069-74-1), (tri-)acetin (CAS Reg. No. 102-76-1), acetophenone (CAS Reg. No. 98-86-2), allyl alpha-ionone (CAS Reg. No. 79-78-7), benzaldehyde (CAS Reg. No. 100-52-7), benzyl alcohol (CAS Reg. No. 100-51-6), benzyl butyrate (CAS Reg. No. 103-37-7), benzyl isobutyrate (CAS Reg. No. 103-28-6), benzyl propionate (CAS Reg. No. 122-63-4), carvacrol (CAS Reg. No. 499-75-2), cinnamaldehyde (CAS Reg. No. 104-55-2), cinnamyl alcohol (CAS Reg. No. 104-54-1), cuminaldehyde (CAS Reg. No. 122-03-2), diethyl malonate (CAS Reg. No. 105-53-3), 1,1-diethoxy-3,7- dimethylocta-2,6-diene (CAS Reg. No. 7492-66-2), dihydro-beta-ionone (CAS Reg. No. 17283-81-7), dihydrocarvyl acetate (CAS Reg. No. 20777-49-5), ethyl acetoacetate (CAS Reg. No. 141-97-9), ethyl benzoate (CAS Reg. No. 93-89-0), ethylene brassylate (CAS Reg. No. 105-95-3), ethyl salicylate (CAS Reg. No. 118-61-6), 4-formy-l-2- methoxyphenyl 2- methylpropanoate; vanillin isobutyrate (CAS Reg. No. 20665-85-4), hydroxycitronellal (CAS Reg. No. 107-75-5), hydroxycitronellol (CAS Reg. No. 107-74-4), 4-(p-hydroxyphenyl)-2- butanone (CAS Reg. No. 5471-51-2), p-methoxybenzaldehyde (CAS Reg. No. 123-11-5), 2-methoxy-4- propylphenol (CAS Reg. No. 2785-87-7), 4′-methylacetophenone (CAS Reg. No. 122-00-9), alpha-methylbenzyl acetate (CAS Reg. No. 93-92-5), alpha-methylbenzyl alcohol (CAS Reg. No. 98-85-1), methyl benzoate (CAS Reg. No. 93-58-3), alpha- methylcinnamaldehyde (CAS Reg. No. 101-39-3), methyl cinnamate (CAS Reg. No. 103-26-4), 5-methyl-2-hepten-4- one (CAS Reg. No. 81925-81-7), alpha-iso-methylionone (CAS Reg. No. 127-51-5), methyl salicylate (CAS Reg. No. 119-36-8), cis-6-nonenal (CAS Reg. No. 2277-19-2), cis-6-nonen-1-ol (CAS Reg. No. 35854-86-5), octanal dimethyl acetal (CAS Reg. No. 10022-28-3), phenethyl acetate (CAS Reg. No. 103-45-7), phenethyl alcohol (CAS Reg. No. 60-12-8), phenethyl isobutyrate (CAS Reg. No. 103-48-0), phenethyl phenylacetate (CAS Reg. No. 102-20-5), phenylacetaldehyde dimethyl acetal (CAS Reg. No. 101-48-4), 3-phenyl-1-propanol (CAS Reg. No. 122-97-4), 1-(2,6,6-trimethylcyclohexa-1,3- dienyl)-2-buten-1-one (CAS Reg. No. 23696-85-7), delta-1-(2,6,6-trimethyl- 3-cyclohexen-1-yl)-2- buten-1-one (CAS Reg. No. 57378-68-4), triethyl citrate (CAS Reg. No. 77-93-0), thiogeraniol (CAS Reg. No. 39067-80-6), thymol (CAS Reg. No. 89-83-8), vanillin (CAS Reg. No. 121-33-5), veratraldehyde (CAS Reg. No. 120-14-9) when used as an inert ingredient fragrance component in pesticide formulations applied to food contact surfaces in public eating places, dairy processing equipment, and food processing equipment with end-use concentrations not to exceed 100 ppm. That document referenced a summary of the petition prepared by Verto Solutions on behalf of The Clorox Company, the petitioner, which is available in the docket, https://www.regulations.gov/docket/EPA-HQ-OPP-2020-0296. There were no comments received in response to the notice of filing.

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

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

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

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

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received for the various fragrance components are discussed in this unit.

The Agency assessed these fragrance components via the Threshold of Toxicological Concern (TTC) approach as outlined by the European Food Safety Authority (EFSA) in their 2019 guidance document on the use of TTC in food safety assessment. Information regarding the database of studies and chemicals used to derive TTCs are reviewed therein. The TTC approach has been used by the Joint Expert Committee on Food Additives of the U.N.'s Food and Agriculture Organization and the World Health Organization, the former Scientific Committee on Food of the European Commission, the European Medicines Agency, and EFSA.

Information from JECFA reports as well as predictive toxicology using the OECD QSAR Toolbox was used to confirm that the fragrances listed in Unit II have low carcinogenic potential and are thus good candidates for the application of the TTC method. Although 13 chemicals had carcinogenicity alerts, JECFA concluded and EPA concurs that all fragrances listed in unit II have low carcinogenic potential, based on in vitro and/or in vivo genotoxicity studies available. Therefore, the TTC method can be applied to these fragrances.

TTCs are derived from a conservative and rigorous approach developed by Munro and Kroes to establish generic threshold values for human exposure at which a very low probability of adverse effects is likely. By comparing a range of compounds by Cramer Class (classes I, II, and III) and NOEL (no-observed-effect-level), fifth percentile NOELs were established for each Cramer Class as “Human Exposure Thresholds”. These values were 3, 0.91 and 0.15 mg/kg/day for classes I, II, and III, respectively.

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

The human exposure threshold value for threshold ( i.e., non-cancer) risks is based upon Cramer structural class. In the case of the fragrance components listed above, all the substances included are in the Cramer Class I category, which is defined as chemicals of simple structure and efficient modes of metabolism, suggesting low oral toxicity.

Therefore, the NOEL of 3 mg/kg/day is selected as the point of departure for all exposure scenarios assessed (chronic dietary, incidental oral, dermal and inhalation exposures).

1. Dietary exposure from food and feed uses. Dietary exposure (food and drinking water) may occur from the existing (non-food) and proposed uses of fragrance components listed in unit II ( e.g., eating foods treated with pesticide formulations containing these fragrances, and drinking water exposures). In evaluating dietary exposure to each of the fragrance components listed in Unit II, EPA considered exposure under the proposed tolerance exemptions at a concentration not to exceed 100 ppm for each of the fragrance components listed in Unit II. as well as any other sources of dietary exposure. EPA assessed dietary exposures from various fragrance components in food as follows:

The dietary assessment for food contact sanitizer solutions calculated the Daily Dietary Dose (DDD) and the Estimated Daily Intake (EDI). The assessment considered: Application rates, residual solution or quantity of solution remaining on the treated surface without rinsing with potable water, surface area of the treated surface which comes into contact with food, pesticide migration fraction, and body weight. These assumptions are based on Food and Drug Administration (FDA) guidelines.

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

3. Residential exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). The fragrance components listed in Unit II may be used as inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. The Agency conducted a conservative assessment of potential residential exposure by assessing various fragrance components in disinfectant-type uses (indoor scenarios). The Agency's assessment of adult residential exposure combines high-end dermal and inhalation handler exposure from indoor hard surface, wiping and aerosol spray. The Agency's assessment of children's residential exposure includes total post-application exposures associated with total exposures associated with contact with treated indoor surfaces (dermal and hand-to-mouth exposures).

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

EPA has not made a common mechanism of toxicity finding as to these fragrance chemicals listed in unit II and any other substances, and these fragrance chemicals do not appear to produce toxic metabolites produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that these fragrance chemicals listed in unit II have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

FFDCA Section 408(b)(2)(C) provides that EPA shall retain an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. The FQPA SF has been reduced to 1X in this risk assessment because clear NOELs and LOELs were established in the studies analyzed by Munro et al 1996 (which included developmental and reproductive toxicity studies), maternal and developmental-specific 5th percentile NOAELs calculated by van Ravenzwaay et al 2011 indicate low potential for offspring susceptibility, and the conservative assumptions made in the exposure assessment are unlikely to underestimate risk.

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

1. Acute aggregate risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effects resulting from a single oral exposure were identified and no acute dietary endpoint were selected for any of the fragrance components. Therefore, the fragrance components listed in Unit II are not expected to pose an acute risk.

2. Short-term aggregate risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). For residential handler short-term exposure scenarios, MOEs ranged from 140 to 2,500, while residential post-application exposure scenarios MOEs ranged from 380 to 7,400. These MOEs are greater than the LOC of 100 and therefore are not of concern. The short-term aggregate MOE is 109 for adults and 135 for children, which are greater than the LOC of 100 and therefore are not of concern.

3. Intermediate-term risk. Intermediate-term aggregate exposure takes into account intermediate-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). An intermediate-term adverse effect was identified; however, the fragrance components listed in Unit II are not currently used as an inert ingredient in pesticide products that are registered for any use patterns that would result in intermediate-term residential exposure. Intermediate-term risk is assessed based on intermediate-term residential exposure plus chronic dietary exposure. Because there is no intermediate-term residential exposure and chronic dietary exposure has already been assessed under the appropriately protective cPAD (which is at least as protective as the POD used to assess intermediate-term risk), no further assessment of intermediate-term risk is necessary, and EPA relies on the chronic dietary risk assessment for evaluating intermediate-term risk for various fragrance components.

4. Chronic aggregate risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to the fragrance components listed in Unit II from food and water will utilize 19% of the chronic PAD (cPAD) for the U.S. population and 48% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Chronic residential exposure to residues of benoxacor is not expected. Therefore, the chronic aggregate risk is equal to the chronic dietary exposure for children 1 to 2 years old (48% of the PAD).

5. Aggregate cancer risk for U.S. population. There is low concern for genotoxicity/carcinogenicity in humans for the fragrance components listed in Unit II of this document. Therefore, the assessment under the TTC value for non-cancer risks is protective for all risks, including carcinogenicity.

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

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for fragrances listed in unit II of this document in or on any food commodities. EPA is establishing a limitation on the amount of the fragrances listed in unit II that may be used in antimicrobial pesticide formulations. This limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 100ppm of fragrances listed in unit II in the final pesticide formulation.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nation Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

The Codex has not established a MRL for the fragrance components listed in Unit II.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.940(a) for acetaldehyde ethyl cis- 3-hexenyl acetal (CAS Reg. No. 28069-74-1), (tri-)acetin (CAS Reg. No. 102-76-1), acetophenone (CAS Reg. No. 98-86-2), allyl alpha-ionone (CAS Reg. No. 79-78-7), benzaldehyde (CAS Reg. No. 100-52-7), benzyl alcohol (CAS Reg. No. 100-51-6), benzyl butyrate (CAS Reg. No. 103-37-7), benzyl isobutyrate (CAS Reg. No. 103-28-6), benzyl propionate (CAS Reg. No. 122-63-4), carvacrol (CAS Reg. No. 499-75-2), cinnamic aldehyde (cinnamaldehyde) (CAS Reg. No. 104-55-2), cinnamic alcohol (cinnamyl alcohol) (CAS Reg. No. 104-54-1), cuminaldehyde (CAS Reg. No. 122-03-2), diethyl malonate (CAS Reg. No. 105-53-3), 1,1-diethoxy-3,7- dimethylocta-2,6-diene (CAS Reg. No. 7492-66-2), dihydro-beta-ionone (CAS Reg. No. 17283-81-7), dihydrocarvyl acetate (CAS Reg. No. 20777-49-5), butanoic acid, 3-oxo-, ethyl ester (ethyl acetoacetate) (CAS Reg. No. 141-97-9), benzoic acid, ethyl ester (ethyl benzoate) (CAS Reg. No. 93-89-0), ethylene brassylate (CAS Reg. No. 105-95-3), ethyl salicylate (CAS Reg. No. 118-61-6), propanoic acid, 2-methyl-, 4-formyl-2-methoxyphenyl ester (4-formy-l-2- methoxyphenyl 2- methylpropanoate; vanillin isobutyrate) (CAS Reg. No. 20665-85-4), hydroxycitronellal (CAS Reg. No. 107-75-5), hydroxycitronellol (CAS Reg. No. 107-74-4), 4-(p-hydroxyphenyl)-2- butanone (CAS Reg. No. 5471-51-2), benzaldehyde, 4-methoxy- (p-methoxybenzaldehyde) (CAS Reg. No. 123-11-5), 2-methoxy-4- propylphenol (CAS Reg. No. 2785-87-7), 4′-methylacetophenone (CAS Reg. No. 122-00-9), benzenemethanol, alpha-methyl-, 1-acetate (alpha-methylbenzyl acetate) (CAS Reg. No. 93-92-5), alpha-methylbenzyl alcohol (CAS Reg. No. 98-85-1), methyl benzoate (CAS Reg. No. 93-58-3), alpha- methylcinnamaldehyde (CAS Reg. No. 101-39-3), methyl cinnamate (CAS Reg. No. 103-26-4), 2-hepten-4-one, 5-methyl- (5-methyl-2-hepten-4- one) (CAS Reg. No. 81925-81-7), 3-buten-2-one, 3-methyl-4-(2,6,6-trimethyl-2-cyclohexen-1-yl)- (alpha-iso-methylionone) (CAS Reg. No. 127-51-5), methyl salicylate (CAS Reg. No. 119-36-8), 6-nonenal, (6Z)- (cis-6-nonenal) (CAS Reg. No. 2277-19-2), cis-6-nonen-1-ol (CAS Reg. No. 35854-86-5), octanal dimethyl acetal (CAS Reg. No. 10022-28-3), phenethyl acetate (CAS Reg. No. 103-45-7), phenyl ethyl alcohol (phenethyl alcohol) (CAS Reg. No. 60-12-8), phenethyl isobutyrate (CAS Reg. No. 103-48-0), phenethyl phenylacetate (CAS Reg. No. 102-20-5), phenylacetaldehyde dimethyl acetal (CAS Reg. No. 101-48-4), 3-phenyl-1-propanol (CAS Reg. No. 122-97-4), 2-buten-1-one, 1-(2,6,6-trimethyl-1,3-cyclohexadien-1-yl)- (1-(2,6,6-trimethylcyclohexa-1,3- dienyl)-2-buten-1-one (CAS Reg. No. 23696-85-7), delta-1-(2,6,6-trimethyl- 3-cyclohexen-1-yl)-2- buten-1-one (CAS Reg. No. 57378-68-4), triethyl citrate (CAS Reg. No. 77-93-0), thiogeraniol (CAS Reg. No. 39067-80-6), thymol (8CA) (thymol) (CAS Reg. No. 89-83-8), vanillin (CAS Reg. No. 121-33-5), veratraldehyde (CAS Reg. No. 120-14-9) when used as an inert ingredient (fragrance components) in pesticide formulations applied to food contact surfaces in public eating places, dairy processing equipment, and food processing equipment and utensils with end-use concentration not to exceed 100 ppm.

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

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

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

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

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

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

The JWOD Act leverages the purchasing power of the Federal Government to create employment opportunities through the AbilityOne Program for individuals who are blind or have significant disabilities. The Program is administered by the 15-member, presidentially appointed Commission that, as an independent Federal agency, maintains a Procurement List of products and services that Federal agencies must purchase from participating NPAs who employ individuals who are blind or have significant disabilities. See 41 U.S.C. 8503 and 8504. Central nonprofit agencies (CNAs) are responsible for distributing orders to Commission-approved NPAs to provide products and services to Federal agencies. See CFR 51-2.4(a)(3) & 51-3.4. NPAs must meet initial qualification requirements and maintain those qualifications throughout their participation in the AbilityOne Program. See 41 CFR 51-4.2 and 51-4.3.

The Commission has five roles stated in the JWOD Act. First, the Commission decides on the addition or removal of products and services on the Procurement List. See 41 U.S.C 8503(a). Second, the Commission sets the fair market price that the Federal Government will pay for the products or services. See 41 U.S.C. 8503(b). Third, the Commission designates nonprofit agencies to be the CNAs, who are responsible for “facilitating the distribution of orders” for products or services among participating NPAs. See 41 U.S.C. 8503(c). Fourth, the Commission promulgates regulations “on other matters as necessary” to carry out the JWOD Act. See 41 U.S.C. 8503(d)(1). Fifth, the Commission engages in a “continuing study and evaluation of its activities” to ensure effective administration of the JWOD Act. See 41 U.S.C. 8503(e).

To date, pursuant to the JWOD Act, the Commission has designated National Industries for the Blind (NIB) and SourceAmerica as the CNAs responsible for distributing orders to participating NPAs. See 41 CFR 51-1.3 (definition of CNA); see also 41 CFR 51-3.2 (describing duties of a CNA). The CNAs provide information as needed by the Commission and otherwise assist the Commission in implementing the Commission's regulations. NPAs associated with NIB primarily employ blind and visually impaired individuals; NPAs associated with SourceAmerica primarily employ individuals with significant disabilities, including intellectual and developmental disabilities (IDD). As of April 2022, NIB represented 58 NPAs participating in the AbilityOne Program, and SourceAmerica represented 391 NPAs.

In making its determination on whether to add a product or service to the Procurement List, the Commission assesses four suitability criteria. See 41 CFR 51-2.4. First, the Commission considers whether there is the potential for the NPA to employ enough individuals who are blind or have significant disabilities as needed to carry out the contract. Second, the Commission determines that the NPA meets all the qualification requirements set forth in 41 CFR part 51-4. Third, the Commission assesses the capability of the NPA to provide the product or service, including the required labor operations, Government quality standards, and delivery schedules. Finally, if there is a current contractor providing the product or service the Commission determines the level of impact on that contractor.

On October 12, 2021, the Commission issued a notice of proposed rulemaking (NPRM) in the Federal Register . The proposed rule required an NPA seeking initial qualification for the Program to provide certification that it would not pay subminimum or sub-prevailing wages (where applicable) by using wage certificates authorized under section 14(c) of the Fair Labor Standards Act of 1938 (FLSA) to employees on any new contract or subcontract awarded under the Program, or any renewal or extension of such contract. See 29 U.S.C. 214(c). The NPRM required the same certification on an annual basis for NPAs to maintain their qualification under the Program.

The NPRM invited comments through November 12, 2021. See 86 FR 56679 (Oct. 12, 2021). After requests, the Commission extended the comment period through December 12, 2021. See 86 FR 62768 (Nov. 12, 2021). The NPRM requested comments and supporting data on several specific questions. The Commission asked whether the rule should apply to new contracts, extensions and renewals of existing contracts once they expire, and the exercise of contract options. The Commission asked how much time, if any, would be necessary for NPAs to come into compliance with the rule. Finally, the Commission asked what impact, if any, the rule would have on the receipt by AbilityOne employees of Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and attendant Government benefits such as Medicare and Medicaid.

The Commission received 183 total comments to the NPRM. Of this total, nearly 60 comments were from disability rights and advocacy organizations, seven comments were from the two CNAs (SourceAmerica and NIB) and five NPAs; more than 100 comments were from private individuals (commenters who did not assert or self-identify organizational membership); one comment was from a labor organization, one from a Fortune 500 company, and one from a Member of Congress.

The Commission carefully considered and analyzed each comment but did not address technical and other minor changes requested by commenters.

The final rule applies the certification requirement to the exercise of options on existing contracts, as well as to new contracts and extensions and renewals of contracts. The final rule is effective 90 days after publication in the Federal Register . However, an NPA may apply for an extension for up to 12-months in order to come into compliance if it can provide evidence for why it cannot make the wage adjustments by the effective date (due to budgetary limitations, because doing so will necessarily harm employees, or for other good cause) and if it provides a corrective action plan describing the steps it intends to take to achieve compliance within the approved extension period.

Of the 183 comments received, the overwhelming majority of both individual and organizational commenters supported the utility and appropriateness of the rule. Numerous organizational commenters supported the rule as a means of ensuring access to economic independence and self-sufficiency for individuals with disabilities. Individuals with disabilities similarly claimed their right to earn equal wages for equal work and to be able to afford life's necessities, including housing. Several commenters noted that evolutions in disability rights law, modernizations and advancements in the business marketplace and available community supports rendered section 14(c) certificates no longer necessary or acceptable.

Only five commenters opposed the rule in its entirety. These commenters predicted that increasing wages for individuals with disabilities would result in the loss of government assistance and attendant benefits, resulting in significant adverse impacts on individuals with disabilities. One NPA stated that the impact on employees with disabilities would be devastating, especially for those working on product contracts. Two commenters stated that the justification for 14(c) certificates remained as valid now as it had been in 1938, given the inability of some individuals with disabilities to work as productively as individuals without disabilities doing the same job.

Ending the payment of subminimum or sub-prevailing wages in the AbilityOne Program is designed to help break cycles of poverty and dependence and assist in moving individuals with disabilities to careers of meaningful employment, increased economic independence, greater dignity, enhanced self-worth, self-determination, and self-sufficiency. Ending wage disparities between employees based solely on disability places the economic power of individuals with disabilities on par with their work colleagues who do not have disabilities and paying the same wage to individuals with disabilities and those without conveys a message of equality and a commitment to inclusion.

Changes in societal expectations of people with disabilities, together with the availability of reasonable accommodations and employment supports, have significantly changed the employment landscape for individuals with disabilities. The assumptions that existed in 1938 regarding the inability of individuals with disabilities to work as productively as individuals without disabilities doing the same job are not supported by existing data.

As discussed in greater detail below, there are Federal and state programs that can mitigate the adverse effects that increased wages may have on an employee's receipt of government benefits. Moreover, the Commission believes that any possible adverse effects in this area are outweighed by the benefits of the rule.

The Commission has made no change to this section of the rule.

The Commission requested comment on whether the rule should apply to new contracts, extensions, and renewals of contracts and/or the exercise of options on contracts. Twenty-two commenters, primarily from disability advocacy organizations and NPAs, supported application of the rule to new contracts, extensions and renewals of contracts, and the exercise of options. These commenters noted that AbilityOne Program contracts tend to be long term contracts with a base year and an additional four to nine option years. If option years were not included, an NPA could avoid applying the proposed rule for an additional five to ten years after the effective date. Additionally, some commenters stated that since more states are prohibiting the payment of 14(c) wages by requiring adherence to state minimum wage laws, there was no reason to delay application until a contract was ready for renewal or extension. A major corporation and two large AbilityOne NPAs commented that ending section 14(c) wages should apply universally, including options, and a labor union commented that not including options would introduce new inequities in the Program given the likelihood that contracts contain multiple option years.

The two CNAs did not directly comment on the rule's application to new contracts, extensions, or options, but both CNAs supported the rule. However, SourceAmerica noted that “it is critical that the final regulatory change include language that clarifies that at the time when a contract is up for renewal, the NPA will need to certify that they will not pay subminimum wages for that specific contract.” This final rule does, in fact, clarify that NPAs must certify it will not use a 14(c) certificate after the effective date on any AbilityOne existing contract at the point of renewing a contract renewal, executing an extension, or exercising an option.

Once again, five commenters opposed the rule, but, of those, two commenters stated that, if implemented, the rule should only apply to either new contracts or contract renewals, and the remainder did not address the issue.

The purpose of the rule is to ensure that individuals with disabilities are paid equally for the work they perform as are individuals without disabilities performing the same or similar work. Applying the rule to extensions and renewals of contracts, as well as to options, avoids a piecemeal application of the rule. Given the variety and timing of contracts currently being performed, and their respective expiration or renewal dates, there is a possibility NPAs with more than one contract could potentially pay the Federal or higher state minimum wage, or prevailing wage, on new contracts, but a lower wage on existing contracts that were renewed or extended. Differences in contract timing could improperly incentivize NPAs to selectively assign employees to those AbilityOne contracts that are not yet subject to the rule. 1 In addition, by including contract options, the Commission is more closely aligned with the Department of Labor (DOL) rule, implementing Executive Order 14026. 2 That rule generally requires Federal contractors to pay employees workers performing on or in connection with covered Federal contracts at least the Executive order minimum wage (currently $15.00 per hour); that rule applies to new contracts entered into on or after January 30, 2022, and also covers existing contracts that are renewed or extended (pursuant to an exercised option or otherwise) on or after January 30, 2022, on Federal contracts, including options. The DOL rule generally covers employees working on AbilityOne service contracts.

The Commission has retained application of the rule to new contracts and to extensions and renewals. The Commission has changed the rule to apply its requirement to the exercise of options on contracts.

The proposed rule did not include an effective date. The Commission requested comment on how much time, if any, would be necessary for NPAs to comply with the new wage requirement.

One commenter stated that the rule should be effective immediately, another stated the rule should be effective 90 days following publication, and two commenters felt the rule should be effective six months following publication. Two NPAs with experience eliminating the use of section 14(c) certificates noted that a two- or three-year phase in period might be appropriate.

The primary reason provided for immediate coverage, as well as for short implementation time periods, was that NPAs had been given sufficient notice and lead time on eliminating the use of subminimum wages under section 14(c) certificates, in light of a statement made by the Commission in 2019 that NPAs should not be using 14(c) certificates on AbilityOne contracts. These commenters stated that the transition process away from subminimum wages should therefore be well underway at all NPAs.

A coalition of more than 100 national disability organizations recommended the Commission adopt the timeline recommendation set forth in the report issued by the National Council on Disability (NCD) in 2012. In that report, NCD recommended that individuals with disabilities in a certificate setting for ten years or less be transitioned within two years, those in the setting from ten to 20 years be transitioned in four years, and those in a certificate setting longer than 20 years be transitioned within six years. 3 The recommendations of the NCD report applied to the elimination of all 14(c) certificates. The commenters did not specifically explain why the same timeline should apply to the smaller number of affected individuals in the AbilityOne Program.

One commenter observed that NPAs employing individuals with disabilities are as different as their respective employees. This commenter suggested an individualized approach, recommending that the Commission establish different timelines based on factors such as an NPA's size, number and types of contracts and number of employees, geography and access to transportation, and an NPA's ability to recruit new employees.

Twenty commenters, including many organizational commenters, recommended a one-year implementation period, others recommended a two-year implementation period, and nearly ten commenters recommended a two to three-year implementation period, with a possible one-time extension. The rationale for implementation periods of one to three years was that NPAs would need significant time to adapt to the new wage requirement, including restructuring contracts and budgets. The rationale also included a need for NPAs to acquire or add services such as benefits counseling for their employees to ensure that any adverse impact on receipt of benefits by their employees would be mitigated.

In 2019, the Commission sent a letter to SourceAmerica stating that the use of 14(c) certificates on AbilityOne contracts was inappropriate and that the time had come to pay all AbilityOne employees the Federal minimum wage or the state minimum wage if higher. The Commission charged SourceAmerica with developing a strategic plan for assisting affiliated NPAs with transitioning from the use of 14(c) certificates. The letter stated as its goal that all AbilityOne NPAs would be paying the Federal minimum wage or the state minimum wage if higher within three years (February 2022) and the prevailing wage within six years (February 2025). 4

In response to the Commission's letter, SourceAmerica initiated a “14(c) Transition Program.” The program provided interested NPAs with financial and technical assistance in eliminating their use of 14(c) certificates. Since October 2019, SourceAmerica has provided consultation services to 86 NPAs, enrolled 35 NPAs in at least one program support, and awarded NPAs more than $600,000 in transition support grants. 5

According to SourceAmerica, the program has been quite successful. The number of employees paid under 14(c) certificates by its affiliated NPAs has declined from 9,654 employees in mid-2018 to 2,900 employees as of the first quarter of fiscal year (FY) 2022. Of this number, 1,750 employees were working on services contracts subject to Executive Order 14026, which took effect in January 2022. Employees working on such contracts are required to be paid at least the Executive order minimum wage of (currently $15.00 per hour,), but under a section 14(c) certificate can be paid less than the prevailing wage. Data self-reported to SourceAmerica by associated NPAs shows approximately 770 employees being paid at least the Federal minimum wage but less than the prevailing wage.

The remaining approximately 1,200 employees work primarily on product contracts and are clustered within approximately 24 NPAs. Data collected by the Commission indicates that the average wage paid such employees is $5.11 per hour.

As noted above, SourceAmerica has invested significant resources toward transitioning its associated NPAs from using 14(c) certificates since 2019, and it has pledged to continue to do so after this rule has been formally implemented. Given the fact that NPAs have been on notice since 2019 of the Commission's position on phasing out use of 14(c) certificates, and the availability of CNA support to do so, the Commission believes that a 90-day implementation period is sufficient time to allow the remaining NPAs to effectuate the necessary change. For this reason, the Commission also does not adopt the lengthy implementation dates set force in the NCD report that applies to use of 14(c) certificates nationwide.

The Commission recognizes that some NPAs have not taken advantage of SourceAmerica's transition program or are still in the process of transitioning from use of 14(c) certificates. For that reason, the Commission will accept applications from NPAs for an extension of up to 12 additional months to come into compliance with the rule. The Commission will use its existing authority under 41 CFR 51-4.5 to grant such extensions. The NPA must provide evidence for why it cannot make the wage adjustments by the effective date (due to budgetary limitations, because doing so will necessarily harm employees, or for other good cause) and must have a corrective action plan in place that the NPA will follow to come into compliance with the rule. Requests for an extension must be submitted no later than 30 days prior to the effective date of the rule. If an extension is granted, the Commission will not award any new Procurement List additions to that NPA during the extension period, absent exigent circumstances, and a written request from the Federal customer.

The Commission includes an effective date of 90 days after the publication date of the final rule, with the possibility of a one-time extension of up to 12 months.

The Commission sought comment on what impact, if any, the proposed rule would have on the receipt of social security benefits, such as Supplemental Security Income (SSI) or Social Security Disability Insurance (SSDI) and attendant government health insurance, such as Medicare and Medicaid, by employees with disabilities, and requested recommendations on how to address any adverse impacts that were identified.

Several commenters, including a Member of Congress, stated that increased wages for individuals with disabilities could adversely impact the receipt of government income and health care by individuals with disabilities. However, the comments did not discuss Federal or state programs employees could utilize to mitigate a reduction or loss of benefits due to increased earnings. The commenters also did not describe any efforts to ensure their employees had access to benefits counseling or training to raise awareness about their eligibility for additional or alternative benefits. Finally, the commenters did not include data substantiating the adverse impact they predicted.

Many organizational commenters acknowledged the reduction or loss of government benefits was a concern for some employees once their wages increased. However, these organizations, as well as NPAs that successfully transitioned their employees from 14(c) certificates, highlighted the various government programs designed to assist employees with disabilities who are concerned that increased wages may adversely impact their benefits. These include assistance through a Medicaid Buy-In option in many states, the Ticket to Work program under the Social Security Act, and establishment of Achieving a Better Life Experience Act (ABLE) accounts (which are tax-favored accounts enabling individuals with disabilities to save money for disability-related expenses including education, housing, transportation, employment training and support, assistive technology and personal support services, health care prevention and wellness services, and financial management). A number of commenters also stated there was evidence that NPAs could pay above the minimum wage, and also provide healthcare and other important benefits for their employees, so that employees would not need to rely on government health care.

Several commenters stated that an essential component of mitigating any adverse impact on continued receipt of government benefits was for employees to have access to professional benefits counseling. Some commenters recommended that the Commission require NPAs to offer such services as a qualification for participation in the Program; other commenters recommended that the CNAs be required to provide such services to the NPAs; and some commenters called for NPAs to educate their employees that a benefits reduction was not an inevitable outcome of a wage increase.

Ultimately, these commenters stated that any potential loss of benefits was not a legitimate reason to scale back or not implement the proposed rule. They argued that the overall benefit the proposed rule would provide for AbilityOne NPA employees with disabilities on AbilityOne contracts outweighed the benefit reduction risk that some employees might face. These commenters also observed that reductions or loss of benefits was not a problem specific to the AbilityOne Program, but rather a broader issue about how the nation's system to assist individuals with disabilities can limit full employment. One NPA that noted this point stated that the focus should be on advocating for legislative efforts aimed at benefits reform.

The Commission has been concerned from the outset that the elimination of subminimum and sub-prevailing wages could harm individuals with disabilities who rely on government income and health benefits. As the comments indicate, however, there is a wide range of Federal and state government programs designed to mitigate the impact and fear of benefits reduction. The Commission has also determined that the potential loss of government benefits for some employees is not a sufficient basis to abandon a rule that will provide significant financial benefits to a large number of individuals.

It is beyond the scope of this rule for the Commission to mandate that all NPAs have professional benefits counselors on staff or for the CNAs to provide such resources. However, SourceAmerica's “14(c) Transition Program” has already provided such resources to participating NPAs and can continue to do so for additional NPAs. The AbilityOne Commission will also develop a list of resources that NPAs can access and will make that list available on its website. Finally, the Commission observes that concerns regarding benefit reductions because of increased wages is a larger issue that requires engagement beyond the AbilityOne Program. The Commission will share the relevant comments with the Department of Health and Human Services, the Social Security Administration, and other agencies with cognizance over these topics.

The Commission has made no change to this section of the rule.

One NPA stated that its budget could not absorb the increased salary expenses that the rule would require. This commenter stated they would need to reduce working hours for their employees with disabilities or, in some cases, terminate their employment. The commenter did not provide specific data to substantiate the anticipated adverse impact on employment or hours worked by employees with disabilities.

Two NPAs shared their success in transitioning away from section 14(c) certificates without dramatic adverse impacts on their employees in terms of working hours or jobs. Each of these NPAs described how they were able to pay their workers fair wages and benefits within their existing contracts.

The Commission recognizes that NPAs vary in size and budget and will thus experience different budget constraints in increasing wages. The allowance of a request for an extension of up to 12 months is designed to provide NPAs a more individualized approach to plan for change in a way that benefits its workforce without causing an adverse impact on the delivery of products and services to Federal customers.

The Commission has made no change to this section of the rule.

Several commenters asked the Commission to expand the rule and prohibit NPAs, as a matter of Program qualification, from using 14(c) certificates at all, whether their employees were working on an AbilityOne contract or not. The commenters observed that since the 75 percent direct labor hour ratio requirement extended to the entire NPA, and not simply to its AbilityOne contracts, the prohibition on use of section 14(c) certificates should similarly apply to the entire NPA.

Several commenters applauded the rule as significant progress in advancing the rights of individuals with disabilities. However, they noted that more needed to be done to achieve competitive, integrated employment for people who are blind or have significant disabilities. Commenters offered a range of ideas for how the Commission could achieve such changes in the Program, including requirements for NPAs to help their employees move to employment outside of AbilityOne jobs.

The Commission appreciates the argument that to be qualified to participate in the AbilityOne program, NPAs should be precluded from using 14(c) certificates anywhere in their workforce. However, such a requirement would be a significant change from the proposed rule and the Commission believes it should provide an opportunity for separate notice and comment if it decides such a requirement is appropriate.

This rule is a foundational step for ensuring that all AbilityOne NPA employees with disabilities on AbilityOne contracts receive competitive wages for the work they perform. The Commission also agrees that additional steps must be taken to modernize the AbilityOne Program, but those changes are beyond the scope of this rule.

The Commission has made no change to this section of the rule.

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives. E.O. 13563 directs agencies to propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs; tailor the regulation to impose the least burden on society, consistent with achieving the regulatory objectives; and in choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and promoting flexibility. E.O. 13563 further recognizes that some benefits are difficult to quantify and provided that, where appropriate and permitted by law, agencies may consider and discuss qualitative values that are difficult or impossible to quantify, including equity, human dignity, fairness, and distributive impacts. The Office of Information and Regulatory Affairs in the Office of Management and Budget has determined that this is a significant regulatory action and, therefore, was subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.

The Commission believes the costs of requiring all new NPAs seeking initial qualification to participate in the Program, and participating NPAs wishing to maintain Program qualification, to certify they will not pay subminimum or sub-prevailing wages under a 14(c) certificate on AbilityOne contracts are not substantial and are outweighed by the benefits of the rule.

No NIB-associated NPA uses 14(c) certificates to pay its employees on AbilityOne contracts. Those NPAs will not be affected by this rule.

SourceAmerica-associated NPAs performing services contracts are generally subject to Executive Order 14026 and its implementing DOL regulation. Under that regulation, the covered NPAs must pay at least the Executive order minimum wage (currently $15.00 per hour and will be subject to inflationary increases in future years) for work on or in connection with covered Federal contracts. This rule will therefore not have an impact on those NPAs covered by Executive Order 14026 and DOL's implementing rule, except where the prevailing wage is higher than the Executive order minimum wage (currently $15.00 per hour).

The NPAs who will be affected by this rule are those who hold product contracts with the Federal Government and use 14(c) certificates to pay their employees below the federal or state minimum wage. Given the concerted efforts by NPAs, supported by SourceAmerica, to reduce their use of 14(c) certificates, 120 of the 449 participating NPAs still use such certificates on some AbilityOne contracts. Those workers are clustered within 24 of the 120 NPAs. In terms of absolute numbers, this translates into approximately 1,200 employees, or approximately 3% of the AbilityOne workforce.

Based on first quarter (Q1) FY 2022 data collected by AbilityOne, there are also approximately 550-750 employees working on services contracts who earn at least the Federal minimum wage but less than the prevailing wage. To the extent that the prevailing wage is higher than the Executive order minimum wage (currently $15.00 per hour), this rule will result in increased wages for those employees. Those commenters who stated they could not absorb the increased costs did not provide the Commission with any specific budget numbers for such increases or details on why they could not manage those costs.

The Commission recognizes that increased wages may trigger benefit reductions for some individuals with disabilities depending on their individual circumstances. However, as described in this SUPPLEMENTARY INFORMATION , there are various Federal and state programs designed to mitigate this risk.

With regard to benefits of the rule, paying individuals with disabilities the same hourly wage as individuals without disabilities performing same or similar work provides both tangible and intangible benefits. Individuals with disabilities earning subminimum or sub-prevailing wages will now earn the Federal minimum wage, state minimum wage or prevailing wage. The tangible benefits to these individuals are identical to any worker experiencing a wage increase, including increased personal wealth and economic independence, and an increased ability to improve aspects of daily life requiring a higher level of financial resources.

The intangible benefits are harder to quantify, but these benefits accrue to individuals with disabilities as well as our larger society. Paying individuals with disabilities wages equal to the legal wage requirements for individuals without disabilities performing same or similar work sends a clear message of equity and fairness that work should be valued equally. Removing subminimum or sub-prevailing wages helps further a culture of inclusion and enhances the dignity and life experiences of individuals with disabilities. Opportunities to earn higher wages leads to increased levels of self-sufficiency and less dependence on services or government assistance.

This final rule was reviewed under the Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., which requires preparation of an initial regulatory flexibility analysis for any rule that must be proposed for public comment and is likely to have a significant economic impact on a substantial number of small entities. The RFA also requires preparation of a final regulatory flexibility analysis, or a certification by the head of the agency that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities and a factual statement supporting the certification.

The rule only imposes a burden on NPAs still paying subminimum or sub-prevailing wages under section 14(c) certificates. When the NPRM was published, the Commission stated that SourceAmerica's available data revealed 142 associated NPAs were utilizing section 14(c) certificates. Following publication, SourceAmerica provided updated data from first quarter FY 2022 showing 120 NPAs still paying either subminimum or sub-prevailing wages to just over 2,900 individuals with disabilities, which is slightly higher than ten percent of the total SourceAmerica AbilityOne work force of approximately 28,000 employees.

Of this number, 1,750 employees were working on services contracts that would be governed by the provisions of the DOL rule implementing E.O. 14026, which took effect January 2022. Employees working on or in connection with such contracts would therefore be paid at least the new Executive order minimum wage (currently $15.00 per hour) for work on or in connection with covered contracts as required by the rule. However, if such employees are being paid pursuant to a section 14(c) certificate, they can still be paid less than the prevailing wage. Data self-reported to SourceAmerica by associated NPAs shows approximately 550-750 employees being paid at least the Executive order minimum wage but less than the prevailing wage. After the effective date of this rule, those employees will be required to be paid the prevailing wage.

The remaining approximately 1,200 employees work primarily on product contracts and are clustered within a handful of NPAs (approximately 24) relative to the overall number of just under 450 participating NPAs. After the effective date of this rule, these employees will be paid at least the Federal minimum wage or the higher state minimum wage.

Accordingly, the Commission certifies this rule will not have a significant economic impact on a substantial number of small entities, and, therefore, no final regulatory flexibility analysis has been prepared.

The final rule requires the Commission to collect information within its Annual Representations and Certifications regarding the certification not to pay subminimum wages under 14(c) certificates to employees. The Commission collects similar information (overall wages) but does not currently or specifically collect a certification not to pay subminimum or sub-prevailing wages under section 14(c) certificates to employees.

A more complete discussion of the need for this final rule is located throughout the Supplementary Information. In summary, the Commission has determined that payment of subminimum or sub-prevailing wages under 14(c) certificates to individuals with disabilities working in the AbilityOne Program is not consistent with modern disability policy. Paying individuals with disabilities less than individuals without disabilities performing same or similar work continues wage disparity in the Program.

For the reasons set forth above, the Commission is adding a new requirement for NPAs to initially qualify and maintain qualification in the Program. Pursuant to this rule, NPAs must certify that after the effective date, on all new AbilityOne contracts awarded, after the effective date, on options exercised on existing contracts, and on contract extensions or renewals, the NPA will not pay individuals with disabilities subminimum or sub-prevailing wages under a 14(c) certificate. The Commission will collect information regarding compliance with this new requirement through documentation submitted for initial qualification, and on the Annual Representations and Certifications form.

The final rule does not include any Federal mandate that may result in increased expenditures by State, local, and tribal governments, taken together, of $100 million or more, or in increased expenditures by the private sector of $100 million or more.

For the reasons set forth in the SUPPLEMENTARY INFORMATION , the Commission amends 41 CFR part 51-4 as follows:

Atlantic highly migratory species (HMS) fisheries, including BFT fisheries, are managed under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971 et seq. ) and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; 16 U.S.C. 1801 et seq. ). The 2006 Consolidated Atlantic HMS Fishery Management Plan (FMP) and its amendments are implemented by regulations at 50 CFR part 635. Section 635.27 divides the U.S. BFT quota recommended by the International Commission for the Conservation of Atlantic Tunas (ICCAT) and as implemented by the United States among the various domestic fishing categories, per the allocations established in the 2006 Consolidated HMS FMP and its amendments. NMFS is required under the Magnuson-Stevens Act to provide U.S. fishing vessels with a reasonable opportunity to harvest quotas under relevant international fishery agreements such as the ICCAT Convention, which is implemented domestically pursuant to ATCA.

NMFS published a final rule implementing the 2021 ICCAT recommendation regarding western Atlantic BFT management which resulted in an increase to the baseline U.S. BFT quota ( i.e., from 1,247.86 mt to 1,316.14 mt) and sub-quotas for 2022 (87 FR 33049, June 1, 2022). The current baseline quotas for the Harpoon and Reserve categories are 48.7 mt and 31.2 mt, respectively. To date for 2022, NMFS has published two actions that have adjusted the Reserve category quota, including the allowable carryover of underharvest from 2021 to 2022 (86 FR 8717, February 9, 2022; 87 FR 33049, June 1, 2022). The current adjusted Reserve category quota is 306.7 mt. The 2022 Harpoon category fishery opened June 1, and is open through November 15, 2022, or until the Harpoon category quota is reached, whichever comes first.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering the determination criteria provided under § 635.27(a)(8). NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. These criteria include, but are not limited to, the following:

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by Harpoon category fishermen and provided by BFT dealers continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the Harpoon category would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the Harpoon category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)). To date, preliminary landings data indicate that the Harpoon category has landed 33.8 mt. Without a quota transfer at this time, NMFS would likely need to close the Harpoon category fishery and participants would have to stop BFT fishing activities with while commercial-sized BFT remain available in the areas where Harpoon category permitted vessels operate. Transferring 30 mt of BFT quota from the Reserve category would result in a total of 78.7 mt (48.7 mt + 30 mt = 78.7 mt) being available for the Harpoon category for the 2022 Harpoon category fishing season.

Regarding the projected ability of the vessels fishing under the Harpoon category to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered Harpoon category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. NMFS anticipates that the Harpoon category could harvest the transferred 30 mt prior to the end of the Harpoon category season, subject to weather conditions and BFT availability. NMFS may transfer unused Harpoon category quota to other quota categories, inseason, based on consideration of the determination criteria, as NMFS did for late 2021. Thus, this quota transfer would allow fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest the available U.S. BFT quota.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2021 landings and dead discards. In the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS recently took such an action to carryover the allowable 127.3 mt of underharvest from 2021 to 2022 (87 FR 33049). NMFS will need to account for 2022 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that.

NMFS also considered the effects of the adjustment on the BFT stock and the effects of the transfer on accomplishing the objectives of the FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations, (established in Recommendation 21-07), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available Harpoon category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest available BFT quota allocations (related to § 635.27(a)(8)(x)).

Given these considerations, NMFS is transferring 30 mt of the available 306.7 mt of Reserve category quota to the Harpoon category. Therefore, NMFS adjusts the Harpoon category quota to 78.7 mt for the 2022 Harpoon category fishing season ( i.e., through November 15, 2022, or until the Harpoon category quota is reached, whichever comes first), and adjusts the Reserve category quota to 276.7 mt (306.7 mt−30 mt = 276.7 mt).

NMFS will continue to monitor the BFT fishery closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustments, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, Harpoon category vessel owners are required to report their own catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing hmspermits.noaa.gov or by using the HMS Catch Reporting app, or calling (888) 872-8862 (Monday through Friday from 8 a.m. until 4:30 p.m.).

Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available quota is not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act and regulations at 50 CFR part 635 and is exempt from review under Executive Order 12866.

The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:

The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Affording prior notice and opportunity for public comment to implement the quota transfer for the remainder of 2022 is also contrary to the public interest as such a delay would likely result in closure of the Harpoon fishery when the baseline quota is met and the need to re-open the fishery, with attendant administrative costs and costs to the fishery. The delay would preclude the fishery from harvesting BFT that are available on the fishing grounds and that might otherwise become unavailable during a delay. This action does not raise conservation and management concerns. Transferring quota from the Reserve category to the Harpoon category does not affect the overall U.S. BFT quota, and available data show the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria. For the same reasons discussed above, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment.