This direct final rule adds the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) to the list of territories from which small businesses are eligible for preferential treatment under two government programs: the surplus property program and the SBA mentor-protégé program for government contracting. These changes are required by NDAA FY21, Public Law 116-283.

Section 866 of NDAA FY21 defined a “covered territory business” as a small business concern that has its principal office located in one of the following: (1) the U.S. Virgin Islands; (2) American Samoa; (3) Guam; or (4) the CNMI.

Under the law, a covered territory business receives priority for surplus property transfers for four years after the enactment of NDAA FY21, which occurred on January 1, 2021. This direct final rule extends the changes that SBA made in a prior rulemaking about the surplus property program (Use of Federal Surplus Property for Veteran-Owned Small Businesses, and Small Businesses in Disaster Areas and Puerto Rico, 85 FR 69120, effective December 2, 2020). SBA is amending part 129 of its regulations to add a covered territory business to the eligibility list for the surplus property program, through January 1, 2025. SBA is treating covered territory businesses similarly to businesses located in Puerto Rico: a covered territory business would have its principal place of business located in its respective covered territory. For example, in order for a small business to be considered located in Guam, the small business should have a physical location in Guam.

Additionally, section 866 created two new incentives for SBA's small business mentor-protégé program for mentor-protégé pairs in which the protégé is a covered territory business. First, the mentor would receive positive consideration in its past-performance evaluations. Second, if the mentor incurs costs training the protégé, the mentor is able to apply those costs as subcontracting expenses and count them toward subcontracting goals contained in the mentor's subcontracting plans. These incentives already exist for mentors with protégés that are Puerto Rico businesses.

SBA adds a definition for “covered territory business.” A covered territory business is a small business with its principal office located in the U.S. Virgin Islands, American Samoa, Guam, or the CNMI.

SBA adds a covered territory business to paragraph (b)(3)(ii) so that a mentor-protégé relationship with a covered territory business does not count toward the mentor's limit on the number of protégés. Generally, a mentor is only allowed three protégés at a time. A protégé does not count, however, if the protégé has its principal office located in Puerto Rico or qualifies as a covered territory business.

SBA adds a covered territory business to paragraph (d)(6), which currently lists the special incentives for mentors with a protégé that is located in Puerto Rico. Such a mentor is able to receive positive consideration for the mentor's past performance evaluation and applying costs of training the protégé to the subcontracting goals in its subcontracting plan.

This direct final rule revises the title of part 129 to incorporate the term “covered territory businesses” to align the title with the amendments being made to the part via this rule.

This direct final rule changes the title of subpart C, which currently covers Puerto Rico businesses, to incorporate covered territory businesses into the list of small businesses eligible to receive Federal surplus property.

The direct final rule adds the definition of a covered territory business. Additionally, the direct final rule revises the definition of covered period to specify that, for a covered territory business, the covered period ends on January 1, 2025.

A covered territory business will be able to obtain surplus property from its territory's State Agency for Surplus Property, in accordance with the same regulations that currently apply to Puerto Rico businesses.

The Office of Management and Budget (OMB) has determined that this direct final rule is a not a significant regulatory action for the purposes of Executive Order 12866.

This direct final rule meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

For the purposes of Executive Order 13132, Federalism, SBA has determined that this direct final rule will not have substantial, direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purpose of Executive Order 13132, SBA has determined that this direct final rule has no federalism implications warranting preparation of a federalism assessment.

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

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 also requires that regulations be based on the open exchange of information and perspectives among state and local officials, affected stakeholders in the private sector, and the public as a whole. SBA has developed this rule in a manner consistent with these requirements. While developing this rule, SBA responded to specific inquiries from government officials and the public regarding the implementation of the statutory required changes.

Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801-808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. SBA 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. A major rule under the CRA cannot take effect until 60 days after it is published in the Federal Register . OMB's Office of Information and Regulatory Affairs has determined that this rule is not a “major rule” as defined by 5 U.S.C. 804(2).

SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C., Chapter 35.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their actions on small entities, small nonprofit enterprises, and small local governments. Pursuant to the RFA, when an agency issues a rulemaking, the agency must prepare a regulatory flexibility analysis which describes the impact of the rule on small entities. However, section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis if the rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The RFA defines “small entity” to include “small businesses,” “small organization,” and “small governmental jurisdictions.”

This Direct Final Rule adds the U.S. Virgin Islands, American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands (CNMI) to the list of territories from which small businesses are eligible for preferential treatment under two government programs: the surplus property program and the SBA mentor-protégé program for government contracting. This rule relates to small business concerns but would not affect “small organizations” or “small governmental jurisdictions” because the programs affected generally apply only to “business concerns” as defined by SBA regulations; in other words, to small businesses organized for profit. “Small organizations” or “small governmental jurisdictions” are non-profits or governmental entities and do not generally qualify as “business concerns” within the meaning of SBA's regulations.

SBA identified 219 small business vendors across the covered territories for FY2021 that had sold to the Federal government and therefore would benefit from the changes to SBA's mentor-protégé program. Based on the number of small business vendors across the covered territories affected, SBA believes that the rule will not have an impact on a substantial number of entities nor a significant economic impact.

Accordingly, the Administrator of the SBA hereby certifies that this rule will not have a significant economic impact on a substantial number of small entities. SBA invites comments from members of the public who believe there will be a significant impact on any small entities, including small businesses.

In general, SBA publishes a rule for public comment before issuing a final rule, in accordance with the Administrative Procedure Act. 5 U.S.C. 553. The Administrative Procedure Act provides an exception to this standard rulemaking process, however, where an agency finds good cause to adopt a rule without prior public participation. 5 U.S.C. 553(b)(3)(B). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest.

SBA is publishing this rule as a direct final rule because public participation is unnecessary. SBA views this as a non-controversial administrative action because it merely implements a change required by the Small Business Act, as amended by section 866 of NDAA FY21. This rule will be effective on the date shown in the DATES section unless SBA receives significant adverse comment on or before the deadline for comments. Significant adverse comments are comments that provide strong justifications why the rule should not be adopted or for changing the rule. SBA does not expect to receive any significant adverse comments because the rule simply mirrors the statutory language contained in section 866 of NDAA FY21, with no extraneous interpretation or other expanded text.

If SBA receives significant adverse comment, SBA will publish a notice in the Federal Register withdrawing this rule before the effective date. If SBA receives no significant adverse comments, the rule will be effective 60 days after publication without further notice.

For the reasons stated in the preamble, SBA amends 13 CFR parts 125 and 129 as follows:

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

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 33080; June 1, 2022) for Docket No. FAA-2022-0693 to amend the Class D and Class E airspace at Victoria, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to 14 CFR 71:

Amends the Class D airspace to within a 4.6-mile (decreased from a 4.7-mile) radius of Victoria Regional Airport, Victoria, TX; updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database; and replaces the outdated terms of “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”;

Amends the Class E surface area to within a 4.6-mile radius (decreased from a 4.7-mile) radius of Victoria Regional Airport; adds missing part-time language to the airspace legal description; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database;

And amends the Class E airspace extending upward from 700 feet above the surface at Victoria Regional Airport by amending the northwest extension to 2.4 (increased from 1.9) miles each side of the 307° (previously 312°) bearing from the Victoria VOR/DME (previously the airport) extending from the 7.1-mile radius to 11.3 (decreased from 12.8) miles northwest of the airport; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

This action is the result of an airspace review conducted as part a biennial airspace review.

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

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

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

Section 104(b)(1) of the CPSIA requires the Commission to assess the effectiveness of voluntary standards for durable infant or toddler products and to adopt mandatory standards for these products. 15 U.S.C. 2056a(b)(1). A mandatory standard must be “substantially the same as” the corresponding voluntary standard, or it may be “more stringent than” the voluntary standard, if the Commission determines that more stringent requirements would further reduce the risk of injury associated with the product. Id.

Section 104(b)(4)(B) of the CPSIA specifies a process for updating the Commission's rules when a voluntary standards organization revises a standard that the Commission previously incorporated by reference under section 104(b)(1). First, the voluntary standards organization must notify the Commission of the revision. Once the Commission receives this notification, the Commission may reject or accept the revised standard. The Commission may reject the revised standard by notifying the voluntary standards organization, within 90 days of receiving notice of the revision, that it has determined that the revised standard does not improve the safety of the consumer product and that it is retaining the existing standard. If the Commission does not take this action to reject the revised standard, the revised voluntary standard will be considered a consumer product safety standard issued under section 9 of the Consumer Product Safety Act (15 U.S.C. 2058), effective 180 days after the Commission received notification of the revision or on a later date specified by the Commission in the Federal Register . 15 U.S.C. 2056a(b)(4)(B).

Under section 104(b)(1) of the CPSIA, the Commission adopted a mandatory rule for sling carriers, codified in 16 CFR part 1228. The rule incorporated by reference ASTM F2907-15, Standard Consumer Safety Specification for Sling Carriers, with an additional requirement for warning label attachment. 82 FR 8671 (Jan. 30, 2017). The Commission's warning label addition required “Warning labels that are attached to the fabric with seams shall remain in contact with the fabric around the entire perimeter of the label, when the sling is in all manufacturer recommended use positions.” At the time the Commission published the final rule, ASTM F2907-15 was the current version of the voluntary standard.

On January 8, 2020, ASTM notified the Commission that it had updated the sling carrier standard with revised requirements for test methods, labeling, and instructional literature in ASTM F2907-19. The Commission concluded those revisions improved the safety of sling carriers. As such, in accordance with the procedures set out in section 104(b)(4)(B) of the CPSIA, the revised standard became the new mandatory standard for sling carriers. The Commission accordingly published a direct final rule to update 16 CFR part 1228, incorporating by reference ASTM F2907-19, while retaining the additional requirement for warning label attachment. 85 FR 21766 (April 20, 2020).

In November 2021, ASTM approved another revision to the voluntary standard for sling carriers, ASTM F2907-21. However, ASTM delayed notification to the CPSC until a revised version of the standard was published in April 2022, ASTM F2907-22. On May 23, 2022, ASTM notified the Commission of the revised voluntary standard for sling carriers, as approved on April 1, 2022. This revised version includes revisions made to the voluntary standard in 2021 (ASTM F2907-21) and 2022 (ASTM F2907-22). However, the revisions do not include the additional requirement for warning label attachment, as required under 16 CFR part 1228.

As discussed in section B. Revisions to ASTM F2907, based on CPSC staff's review of ASTM F2907-22, 1 the Commission will allow the revised voluntary standard to become the mandatory standard, while retaining the warning label attachment requirement. 2 Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F2907-22 will become the mandatory consumer product safety standard for sling carriers on November 19, 2022. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates 16 CFR part 1228 to incorporate by reference the revised voluntary standard, ASTM F2907-22, with the additional requirement for warning label attachment.

The ASTM standard for sling carriers includes performance requirements, test methods, and requirements for marking, labeling, and instructional literature, to address hazards to children associated with sling carriers. ASTM F2907-22 contains substantive revisions as well as editorial, non-substantive revisions that were made to the voluntary standard in 2021 (ASTM F2907-21) which were subsequently adopted in the updated 2022 version of the standard with one change to Figure 6 (ASTM F2907-22). This section describes the changes in ASTM F2907-22 (including the changes initially made in ASTM-F2907-21), as compared to ASTM F2907-19, which is the current mandatory standard under 16 CFR part 1228 and includes an assessment of those changes.

ASTM F2907-21 included several non-substantive changes, such as renumbering of sections, spacing, and formatting. ASTM also made minor language revisions and made various edits to bring the standard into alignment with current Ad Hoc Wording Task Group (Ad Hoc TG) recommendations. 3 These changes do not materially affect the safety of sling carriers. One section, 5.9 Scissoring, Shearing, and Pinching, has been edited to provide for reference to the manufacturer's recommended “use position(s)” instead of “carrying position,” and it also changes the language in the description of a scissoring, shearing, or pinching hazard from “shall not be permissible” to “exists.” These changes explain when a scissoring shearing or pinching hazard exists. Section 5.9 still retains existing language from 16 CFR part 1228, to require products to “be designed and constructed so as to prevent injury to the occupant from any scissoring, shearing, or pinching when members or components rotate about a common axis or fastening point, slide, pivot, fold, or otherwise move relative to one another.” Thus, the edits are neutral, non-substantive edits with respect to safety because they do not change or otherwise diminish any existing performance requirements for scissoring, shearing, and pinching.

Other non-substantive changes were made to sections 8.2 and 8.3. ASTM 2907-21 adds section 8.2, which states that the marking and labeling on the product shall be permanent. This section is consistent with section 8.1, which states that each product and its retail package shall be permanently marked. Accordingly, this change is neutral with respect to safety.

In section 8.3, ASTM 2907-21 makes grammatical edits to the current standard changing “any upholstery label” to “any upholstery labeling” and “outlined in 8.1” to “of this section.” Because these changes do not change the meaning of this section, the edits are neutral with respect to safety.

ASTM F2907-21 included several substantive changes.

The current standard provides in the Introduction section that the voluntary standard is intended to address incidents associated with “occupant retention.” The Introduction section in ASTM F2907-21 has been revised to specifically state that the voluntary standard addresses “fall and suffocation hazards.” In addition, the Introduction replaces language in the current standard that states that the standard “does not apply to products that are blatantly misused, nor does it apply to products used by consumers in a careless manner that violate normal practice or disregard the instructions or warnings provided with the product, or both.” The Introduction section in ASTM F2907-21 now states that the standard is intended to cover “normal use and reasonably foreseeable misuse or abuse of the product.” These changes harmonize the Introduction with the recommended language approved by the Ad Hoc TG, whose purpose is to develop recommended consistent language for ASTM juvenile product standards. This is a neutral change, because the revisions restate the purpose, consistent with Ad Hoc TG recommended language, but do not impact the existing performance requirements for sling carriers.

Section 8.1.1. In the current standard, this section requires products and packaging to be marked with the name, principal place of business (city, state, and mailing address, including zip code), and telephone number and website, if applicable, of either the manufacturer, importer, distributor, or seller. ASTM F2907-21 requires: “The name, place of business (city, state, and mailing address, including zip code), and telephone number of the manufacturer, distributor, or seller. Specifically, the new section has removed “website, if applicable, of either the manufacturer, importer, distributor, or seller” and replaced it with “telephone number of the manufacturer, distributor, seller.” This change is neutral with respect to safety because it harmonizes the language with the recommended language approved by the Ad Hoc TG, and thus promotes consistent messaging for consumers. Furthermore, consumers who have internet access should be able to find the manufacturer's website with ease, with the information required to be provided.

Section 8.1.2. In the current standard, section 8.1.2. requires products to be marked with a “Model number, stock number, catalog, item number, or other symbol that identifies the specific sling carrier.” ASTM F2907-21 has replaced that section to require “A code mark or other means that identifies the date (month and year as a minimum) of manufacture.” This requirement was intended to provide consistency with Ad Hoc TG recommendations, and other juvenile products, which do not contain this requirement. While the revised section 8.1.2 no longer requires detailed product-identifying information, sling carriers must still meet the requirements for consumer registration of durable infant or toddler products under 16 CFR part 1130. Specifically, under 16 CFR 1130.4(a), manufacturers are required to permanently mark their products with the manufacturer name and contact information (U.S. address and telephone number, toll free if available), model name and number, and date of manufacturer. Because the combined requirements of sections 8.1.1, 8.1.2, and 16 CFR part 1130 provide comprehensive marking identification information for sling carriers, this change is neutral with respect to safety.

Section 8.1.3. In the current standard, each product and its retail package must indicate the minimum and maximum recommended child's weight for each support area of the carrier. This section is not revised, but it is referenced in new section 8.1.4.

Section 8.1.4. ASTM 2907-21 adds this section to exempt product packaging from the marking and labeling requirements in sections 8.1.1-8.1.3 if the product itself contains all required marking and labeling and if the required on-product markings and labels are visible in their entirety through the retail package. If no retail packaging is used for the product, then the information provided on the product itself will be used for determining compliance. This section specifies that cartons and other materials used exclusively for shipping are not considered retail packaging. This change is neutral with respect to safety because all the markings and labeling under section 8.1.1-8.1.3 will still be required to be visible to the consumer either on the product packaging or on products that are visible through the packaging.

Section 8.4. ASTM F2907-21 adds the section Warning Design for Product. This section harmonizes language in the current standard with the Ad Hoc TG recommendations. This section now specifies that warnings shall be in English at minimum, states that any additional markings or labels shall not contradict or confuse the required information and shall not mislead the consumer, and sets formatting requirements for warnings (font size, text alignment, safety alert symbol, bullet points for cautionary statements, etc.). Consistent with Ad Hoc TG recommendations, the standard uses ANSI Z535.4-2011 as reference for its warning formatting requirements. These changes are an improvement to safety, as they provide a consistent format for manufacturers to follow, and with which consumers will be more familiar.

Section 8.5. In the current standard, manufacturers are required to list a recommended minimum and maximum weight for infants placed in the product. ASTM F2907-21 revises the warning statements to address sling carriers designed for use with two occupants. While single-occupant sling carriers still use the same warning statement in the current standard (Section 8.5.3 and 8.5.3.1), for sling carriers designed for use with two occupants, ASTM F2907-21 adds a requirement for manufacturers to list the recommended minimum infant weight, recommended maximum infant weight, and maximum combined occupant weight ( i.e., weight of both occupants) (Section 8.5.3 and 8.5.3.2). These changes are an improvement to safety, as the current standard allows for two-occupant carriers but does not require manufacturers to specify the maximum combined occupant weight.

Sections 9.1, 9.3, and 9.4 contain revisions to the current standard that are intended to harmonize with the Ad Hoc TG recommended language. The standard now specifies that warnings shall be in English at minimum, states that any additional markings or labels shall not contradict or confuse the required information and shall not mislead the consumer, and it sets formatting requirements for warnings such as font size, text alignment, safety alert symbol, and bullet points for cautionary statements. These revisions are consistent with the changes made to Section 8.4 to accept Ad Hoc language recommendations, and references ANSI Z535.4-2011 for its warning formatting requirements. These changes provide a consistent format and baseline of requirements for manufacturers to follow. In addition, consumers' understanding of the instructions will improve as they become familiar with the consistent presentation of the text across the range of durable nursery products. These changes therefore improve safety.

Figure 6. ASTM 2907-21 added an example warning referred to as Figure 6. This warning label contains the formatting and statements required by the standard, as well as a pictogram showing proper and improper infant positioning. However, the pictogram shown on this warning was inconsistent with an example positioning pictogram shown in Figure 5 of the current standard. Subsequently, Figure 6 was revised in ASTM F2907-22, to remove the inconsistency.

ASTM F2907-22 incorporates all the revisions from ASTM F2907-21, with one substantive revision. Figure 6 in ASTM F2907-21 contained a pictogram example warning that differed from the example positioning pictogram shown in the same standard's Figure 5. Specifically, the pictogram shown in Figure 6 contained two strikethrough symbols through the incorrect positioning examples. Figure 5 does not contain these strikethrough symbols but was otherwise identical. To correct this inconsistency, the strikethroughs have been removed from Figure 6 in ASTM F2907-22. Although the strikethroughs can be beneficial to some consumers (particularly those who cannot read or speak English), the use of the strikethrough can obscure the image depicted in the pictogram. Overall, the addition of Figure 6 is an improvement to safety as compared to the existing mandatory standard based on ASTM F2907-19, because the standard includes an example warning with the proper formatting and content that manufacturers can reference, yet manufacturers are not required to use the specific pictogram examples shown in Figures 5 and 6 if a pictogram comparing proper and improper infant positioning for one or two occupants, depending on the design of the product, is included adjacent to the warning text.

The current mandatory standard includes an additional requirement for label attachment. Specifically, 16 CFR 1228.2(b) requires that “Warning labels that are attached to the fabric with seams shall remain in contact with the fabric around the entire perimeter of the label, when the sling is in all manufacturer recommended use positions.” The Commission added this warning requirement when it promulgated the safety standard for sling carriers, incorporating by reference ASTM F2907-15, and the Commission maintained it when CPSC incorporated by reference the updated version of the standard in ASTM F2907-19. The Commission added this requirement to address concerns that consumers would accidentally or intentionally remove, damage, or otherwise alter “free-hanging” labels that are attached to a product at only one end of the label. The Commission determined that the additional label attachment requirement would improve safety because removing or altering these labels would eliminate the potential safety benefit of the label. ASTM F2907-22 does not include this additional requirement. However, this requirement remains appropriate. Accordingly, the Commission is retaining this additional requirement in 16 CFR 1228.2(b).

Section 1228.2 of the direct final rule incorporates by reference ASTM F2907-22. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties, and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section B. Revisions to ASTM F2907 of this preamble summarizes the major provisions of ASTM F2907-22 that the Commission incorporates by reference into 16 CFR part 1228. The standard itself is reasonably available to interested parties. Until the direct final rule takes effect, a read-only copy of ASTM F2907-22 is available for viewing, at no cost, on ASTM's website at: https://www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing, at no cost, on the ASTM website at: https://www.astm.org/READINGLIBRARY/. Interested parties can also schedule an appointment to inspect a copy of the standard at CPSC's Division of the Secretariat, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: (301) 504-7479; email: cpsc-os@cpsc.gov. Interested parties can purchase a copy of ASTM F2907-22 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; telephone: (610) 832-9585; www.astm.org.

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

Because sling carriers are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. Products subject to part 1228 also must comply with all other applicable CPSC requirements, such as the lead content requirements in section 101 of the CPSIA, 4 the tracking label requirements in section 14(a)(5) of the CPSA, 5 and the consumer registration form requirements in section 104(d) of the CPSIA. 6 ASTM F2907-22 makes no changes that would impact any of these existing requirements.

In accordance with section 14(a)(3)(B)(vi) of the CPSA, the Commission previously published a notice of requirements (NOR) for accreditation of third party conformity assessment bodies for testing sling carriers. 82 FR 8671 (Jan. 30, 2017). The NOR provided the criteria and process for CPSC to accept accreditation of third party conformity assessment bodies for testing sling carriers to 16 CFR part 1228. The NORs for all mandatory standards for durable infant or toddler products are listed in the Commission's rule, “Requirements Pertaining to Third Party Conformity Assessment Bodies,” codified in 16 CFR part 1112. Id.

ASTM F2907-22 did not change the testing requirements, testing equipment, or testing protocols for sling carriers. Accordingly, the revisions do not change the way that third party conformity assessment bodies test these products for compliance with the safety standard for sling carriers. Testing laboratories that have demonstrated competence for testing in accordance with ASTM F2907-19 therefore are competent to test in accordance with the revised standard ASTM F2907-22. Laboratories will begin testing to the new standard when ASTM F2907-22 goes into effect, and the existing accreditations that the Commission has accepted for testing to this standard will cover testing to the revised standard. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F2907-19 to be capable of testing to ASTM F2907-22 as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies are expected to update the scope of the testing laboratories' accreditations to reflect the revised standard in the normal course of renewing their accreditations.

On June 3, 2022, the Commission provided notice in the Federal Register of the revision to the standard and requested comment on whether the revision improves the safety of sling carriers covered by the standard. 87 FR 33755. No comments were submitted. Now, the Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency “for good cause finds” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” Id. 553(b)(B). The Commission concludes that when it updates a reference to an ASTM standard that the Commission incorporated by reference under section 104(b) of the CPSIA, further notice and comment are not necessary.

Specifically, under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM notifies CPSC that it has revised a standard that the Commission has previously incorporated by reference under section 104(b)(1)(B) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's standard by operation of law. The Commission is allowing ASTM F2907-22 to become CPSC's new standard because its provisions improve product safety. The purpose of this direct final rule is to update the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the terms of the CPSIA, ASTM F2907-22 takes effect as the new CPSC standard for sling carriers, even if the Commission does not issue this rule. Thus, public comments would not alter substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 104(b) of the CPSIA. Under these circumstances, further notice and comment are unnecessary.

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

Unless CPSC receives a significant adverse comment within 30 days of this notification, the rule will become effective on November 19, 2022. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion challenging “the rule's underlying premise or approach,” or a claim that the rule “would be ineffective or unacceptable without a change.” 60 FR 43108, 43111 (Aug. 18, 1995). As noted, this rule merely updates a reference in the CFR to reflect a change that occurs by statute, and public comments should address this specific action.

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

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

The current mandatory standard for sling carriers includes requirements for marking, labeling, and instructional literature that constitute a “collection of information,” as defined in the Paperwork Reduction Act (PRA; 44 U.S.C. 3501-3521). While the revised mandatory standard adds marking, labeling, and instructional literature language for sling carriers, the new requirements would not add to the burden hours because the products already require marking, labeling, and instructional literature. The new requirements merely require revisions to the labeling language in addition to that already required by the standard. Therefore, the new requirements are not measurably more burdensome than the existing requirements. The Commission took the steps required by the PRA for information collections when it promulgated 16 CFR part 1228, and the marking, labeling, and instructional literature for sling carriers are currently approved under OMB Control Number 3041-0159. Because the information collection burden is unchanged, the revision does not affect the information collection requirements or approval related to the standard.

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

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

Under the procedure set forth in section 104(b)(4)(B) of the CPSIA, when a voluntary standards organization revises a standard that the Commission adopted as a mandatory standard, the revision becomes the CPSC standard within 180 days of notification to the Commission, unless the Commission timely notifies the standards organization that it has determined that the revision does not improve the safety of the product, or the Commission sets a later date in the Federal Register . 15 U.S.C. 2056a(b)(4)(B). The Commission is taking neither of those actions with respect to the standard for sling carriers. Therefore, ASTM F2907-22 will take effect as the new mandatory standard for sling carriers on November 19, 2022, 180 days after May 23, 2022, when the Commission received notice of the revision.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs determines whether a rule qualifies as a “major rule.”

Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.

For the reasons discussed in the preamble, the Commission amends 16 CFR chapter II as follows:

On July 29, 2022, U.S. Customs and Border Protection (CBP) published a Final Rule in the Federal Register (87 FR 45642) that streamlines the vessel repair entry process by extending the timeframe for vessel operators to provide completed vessel repair entries and to apply for relief from assessment of duties associated with vessel repairs occurring abroad. The rule now extends the timeframe from 90 days to 150 days and eliminates the need for filing extension requests. The Final Rule inadvertently deleted the list of evidence required in Applications for Relief from the assessment of vessel repair duties in the subparagraphs to 19 CFR 4.14(i)(1). CBP is correcting that error to restore subparagraphs (i) through (vi) in 19 CFR 4.14(i)(1).

For the reasons set forth in the preamble, 19 CFR part 4 is amended 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 it is impracticable and contrary to the public interest to publish an NPRM because we must take immediate action to establish this safety zone by August 19, 2022, to respond to potential safety hazards associated with the implosion. Potential safety hazards include the resulting dust cloud reducing visibility within the navigable channel. Event planners did not notify the Coast Guard of the event until August 5, 2022.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the implosion of the Charles P. Crane Generating Station facility.

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, Maryland-National Capital Region (COTP) has determined that potential hazards associated with the implosion of the Charles P. Crane Generating Station facility will be a safety concern for anyone within 1,250 feet of the implosion site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone before, during, and after the scheduled event.

This rule establishes a safety zone from 6:30 a.m. on August 19, 2022, through 10 a.m. on August 22, 2022. The safety zone will be enforced from 6:30 a.m. to 10 a.m. on August 19, 2022, or, if necessary due to inclement weather on August 19, 2022, from 6:30 a.m. to 10 a.m. on August 22, 2022. The safety zone will cover all navigable waters of the Seneca Creek encompassed by a line connecting the following points: beginning at the shoreline 1,250 feet west of the power plant at position latitude 39°19′25.52″ N, longitude 076°22′11.47″ W, thence south to latitude 39°19′17.57″ N, longitude 076°22′10.50″ W, thence south to latitude 39°19′12.19″ N, longitude 076°22′08.17″ W, thence east to latitude 39°19′10.98″ N, longitude 076°21′55.43″ W, thence east to latitude 39°19′13.15″ N, longitude 076°21′41.16″ W, thence north to latitude 39°19′22.16″ N, longitude 076°21′39.37″ W, thence north to latitude 39°19′32.23″ N, longitude 076°21′39.24″ W, thence northwest to latitude 39°19′35.89″ N, longitude 076°21′42.62″ W, and southwest to and terminating at the beginning point. The size of the zone and duration of the rule are intended to protect personnel, vessels, and the marine environment in these navigable waters before, during, and after the scheduled facility implosion. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The COTP will notify the public that the safety zone will be enforced by all appropriate means to the affected segments of the public, as practicable, in accordance with 33 CFR 165.7(a). Such means of notification may also include, but are not limited to, Broadcast Notice to Mariners.

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

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

This regulatory action determination is based on the size, location, duration, time-of-day and day-of-week of the safety zone. We anticipate that there will be no vessels that are unable to conduct business. This waterway is used primarily by recreational boaters. This safety zone will impact a small designated area of Seneca Creek for 3.5 total enforcement hours during morning hours when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will be enforced for 3.5 total enforcement hours that will prohibit entry within a portion of the Anacostia River. 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:

Purpose of this Regulatory Action: Exposure of children and youth to community violence, whether as victims, justice-involved youth, or witnesses, is associated with long-term physical, psychological, and emotional harms. Community violence, which is defined in this document, is a significant public health, public safety, and community infrastructure concern nationwide, and is a leading cause of death, injury, and intergenerational trauma for people in the United States. School programs facilitated by counselors, mental health providers, and community leaders for students who have been exposed to or are at high risk of involvement in community violence have been shown to help students develop the social and emotional skills needed to navigate difficult circumstances inside and outside of school, so that they are able to problem solve, de-escalate conflict, and reengage in school. These final priorities, requirements, and definition are aligned with capacity-building approaches to addressing the harmful effects of community violence.

Summary of the Major Provisions of this Regulatory Action: Through this regulatory action, we establish three priorities, program and application requirements, and an associated definition.

Costs and Benefits: The final priorities, requirements, and definition will impose minimal costs on entities that receive assistance through the Department's discretionary grant programs. Application submission and participation in a discretionary grant program are voluntary. The Secretary believes that the costs imposed on applicants by the final priorities are limited to paperwork burden related to preparing an application for a discretionary grant program that uses one or more of the final priorities in its competition. Because the costs of carrying out activities will be paid for with program funds, the costs of implementation will not be a burden for any eligible applicants, including small entities. We believe that the benefits of this regulatory action outweigh any associated costs because it will result in the submission of a greater number of high-quality discretionary grant applications and supporting activities that reflect the administration's education priorities.

Purpose of Program: The Project Prevent grant program provides grants to LEAs to increase their capacity to implement community- and school-based strategies to help prevent community violence and mitigate the impacts of exposure to community violence. Project Prevent grant funds allow LEAs to increase their capacity to identify, assess, and serve students exposed to community violence, helping LEAs to (1) offer affected students mental health services; (2) support conflict management programs; and (3) implement other community- and school-based strategies to help prevent community violence and to mitigate the impacts of exposure to community violence.

Program Authority: 20 U.S.C. 7281.

We published a notice of proposed priorities, requirements, and definition (NPP) in the Federal Register on January 28, 2022 (87 FR 4522). The priorities included in the NPP were: Proposed Priority 1—Addressing the Impacts of Community Violence; Proposed Priority 2—Established Partnership with a Local Community-Based Organization; and Proposed Priority 3—Supporting Children and Youth from Low-Income Backgrounds. The NPP contained background information and our reasons for proposing the priorities, requirements, and definition. There is no difference between the proposed and final Priority 1. As discussed in the Analysis of Comments and Changes section, we made a substantive change to Priorities 2 and 3 and both substantive and editorial changes to the application requirements and definition.

Public Comment: In response to our invitation in the NPP, 33 parties submitted comments, which, in total, addressed all three of the proposed priorities, as well as the requirements and definition. Three comments were not relevant to the proposed priorities, requirements, or definition and are not included in the discussions below. We group major issues according to subject. Generally, we do not address technical and other minor changes, or suggested changes that the law does not authorize us to make under the applicable statutory authority.

Many commenters expressed general support for all of the proposed priorities.

Analysis of Comments and Changes: An analysis of the comments and of any changes in the priorities, requirements, and definition since publication of the NPP follows.

Comment: One commenter suggested that the Department provide targeted outreach to LEAs that have less awareness about Project Prevent and less capacity to complete the grant application.

Discussion: The Department appreciates this comment. To garner a diverse pool of applicants, the Department routinely assists potential applicants by offering technical assistance and pre-application workshops, and, as needed, responding to frequently asked questions. This information is made available on the program web page referenced in the Notice Inviting Applications and included in the Department's outreach. General resources about applying for a Department of Education grant are available on the Department's website at https://www2.ed.gov/fund/grants-apply.html?src=ft. Program-specific information, including pre-application materials, are available for Project Prevent at https://oese.ed.gov/offices/office-of-formula-grants/safe-supportive-schools/project-prevent-grant-program/.

Changes: None.

Comment: In addition to the existing priorities, one commenter suggested creating new priorities. Specifically, the commenter suggested priorities for eliminating police in schools and establishing alternatives for school safety.

Discussion: The Department fully acknowledges the concerns underlying this comment. The Department believes applicants are in the best position to determine whether and how to address the impacts of community violence by developing partnerships with law enforcement that are effective, inclusive, and free from bias.

Changes: None.

Comment: One commenter recommended adding a program requirement that holds LEAs accountable if they fail to, among other things, provide services that improve coordination of intervention programs, provide high-quality training, develop and implement transformative justice approaches, protect the privacy of individuals, adopt policies to prevent the perpetuation of discrimination, and involve a broad group of community stakeholders. The commenter recommended increased oversight, withholding of funds, or denial of continuation awards if LEAs failed to meet these goals.

Discussion: All grantees are bound by applicable law regarding privacy and non-discrimination. In addition, the Department agrees that accountability for grant implementation is essential. We believe that the Department's existing procedures and administrative requirements adequately address these concerns. For example, grantees are held accountable to goals and objectives in their approved applications. In addition to routine monitoring by a Federal project officer throughout the award period, grantees must submit annual reports to the Department that provide details on implementation, budget, and evaluation of the program. Through continuous monitoring and review of submitted reports and documentation, the Department determines if a grantee has made substantial progress toward meeting its goals and objectives. Determination of substantial progress determines whether an LEA will receive a continuation award.

Changes: None.

Comment: Some commenters stated that mental health services offered to students should explicitly prioritize students' access to developing social, self-regulation, and problem-solving skills.

Discussion: The Department appreciates the suggestion that mental health services offered to students should prioritize skills needed to regulate emotions and problem solve. We believe the proposed application requirements already allow for this skill development. Specifically, application requirement (d)(1)(i) requires applicants to propose strategies and interventions that enhance student knowledge and interpersonal and emotional skills regarding positive behavior such as communication and problem-solving; empathy; and conflict management, de-escalation, and mediation.

Changes: None.

Comment: Two commenters suggested that mental health awareness education should be included in the language of the notice. Several commenters stated that mental health services for students and families should be included and emphasized in Priority 1. One commenter suggested making mental health services available privately, outside of school.

Discussion: The Department agrees that mental health services are integral to helping students and communities address the impacts of community violence. The Department also agrees that students should be screened for mental health needs, and that services should be administered in a manner that is equitable and inclusive, including culturally and linguistically competent, and does not cause further harm. In light of existing provisions that already give applicants the flexibility to address the commenters' concerns, the Department does not believe that further specificity regarding specific skills or specific targeted groups is necessary. For example, although paying for private mental health services is not an allowable expense under this program, this program allows grantees to engage in activities to raise awareness about the positive impacts of mental health education, and mental health services for students that are integrated into a school's overall program, including appropriate screening for these services, are allowable and encouraged.

Changes: The Department has also added language to application requirements (c)(2), (c)(5), (d)(1), and (e)(3)(i) and (ii) that emphasizes the importance of cultural and linguistic competence in activities, programs, and practices.

Comment: One commenter suggested including reference to minority, rural, and recent refugee populations in Priority 1 given their increased vulnerability to mental health issues. Another commenter recommended project activities that are culturally tailored to address mental health issues.

Discussion: The Department agrees that certain populations are particularly vulnerable to community violence and its impacts, and that activities and interventions must be available in a manner that is equitable and inclusive and responsive to the cultural and linguistic diversity of the student population.

Changes: The Department has added language to application requirement (d)(1)(i), stating that interventions and activities must be available to all students in a school in a manner that is equitable and inclusive. The Department has also added language to application requirements (c)(2), (c)(5), (d)(1), and (e)(3)(i) and (ii) that emphasizes the importance of cultural and linguistic competence in activities, programs, and practices.

Comment: Two commenters suggested that applicants commit to dedicated restorative practices, and one commenter suggested applicants commit to social emotional learning programming.

Discussion: The Department agrees that restorative practices as well as social emotional learning programming can be components of an effective program to mitigate community practices. Because both restorative practices and social emotional learning are allowable activities under this program, the Department does not believe any changes are necessary.

Changes: None.

Comment: One commenter recommended requiring that CBOs demonstrate a history of school and community engagement. The commenter further recommended requiring a detailed plan that describes how the CBO will communicate and collaborate with schools on programming and how it will engage authentically with the target community. Additionally, the commenter suggested adding key engagement strategies or shared values between the LEA applicant and CBO that all applicants should address as part of program implementation. One commenter recommended that the Department take into consideration the barriers that exist in obtaining memoranda of agreement/memoranda of understanding (MOAs/MOUs) in certain communities. One commenter suggested requiring that MOAs/MOUs be made available and accessible to the public. One commenter suggested evaluations of partner organizations to ensure they are suited for the work they will be doing.

Discussion: The Department agrees that an effective LEA/CBO partnership requires a detailed plan to engage the target community. The Department does not agree that changes to the requirements are needed, because the program's application requirements already require applicants to describe how they intend to work collaboratively with CBOs to achieve shared project goals and objectives. Applications are peer-reviewed and scored based on how well they address application requirements. Moreover, LEAs have the discretion to choose their CBO partners based on LEA needs and the approved application, and thus are in best position to determine what historical level of school and community engagement is appropriate in the LEA/CBO relationship.

While the Department understands that barriers to obtaining MOAs/MOUs sometimes exist, we believe the benefit of having MOAs/MOUs outweighs these barriers. We will make every attempt, when conducting grant competitions, to offer a longer application window so that applicants have time to secure partnerships that will yield the highest results. Finally, we encourage grantees to make their MOAs/MOUs available and accessible to the public. We believe this should be discretionary, rather than mandatory, because the program application already requires applicants to describe LEA and CBO roles and responsibilities with respect to the goals and objectives of the approved application.

Changes: None.

Comment: One commenter recommended stating specifically that nonprofit organizations can be considered local CBOs for purposes of this program.

Discussion: The Department appreciates this comment and agrees it would be helpful to clarify that local CBOs include nonprofit organizations. The Department will use the definition of “community-based organization” from section 8101(5) of the Elementary and Secondary Education Act (ESEA), as amended.

Changes: The Department has incorporated the ESEA definition of “community-based organization” into Priority 2.

Comments: Three commenters remarked on the potential impact of Priority 3. Specifically, these commenters suggested modifying Priority 3 to use poverty data at the school level instead of Small Area Income and Poverty Estimates (SAIPE) data, which is at the LEA level. According to the commenters, setting the low-income classification at the school level instead of the LEA level may allow for more targeted grant funding.

Discussion: We thank the commenters for this suggestion. Although SAIPE data is not available at the school level and we are unable to identify another source of data that we think is uniform across LEAs, we agree that averaging poverty rates across an LEA might exclude LEAs with high poverty rates in individual schools.

Changes: We have added a new level to Priority 3, to include proposed projects in which at least 20 percent of the students enrolled in the LEA that will be served by the proposed project are from families with an income below the poverty line. This new level is intended to reduce the effects of any masking that might be caused by averaging poverty rates across the LEA.

Discussion: One commenter recommended expanding the definition of eligible applicants to include CBOs or nonprofit organizations in partnership with LEAs, noting that there is only one eligible applicant in Hawaii and Puerto Rico due to the structure of their educational system. The commenter believes these entities are unfairly disadvantaged from receiving Federal competitive grants.

Discussion: The Department appreciates the commenter's suggestion but does not agree to expand eligible applicants to include CBOs. Given the central role that schools play in their communities and the activities we envision for Project Prevent grantees, we believe LEAs are best positioned to be the eligible applicants for this program. An LEA has direct, daily contact with students and is uniquely positioned, through Federal and State laws, to impact student services.

Changes: None.

Comment: Several commenters suggested that this program should explicitly outline how applicant proposals will address implicit biases in referring students for services.

Discussion: The Department agrees that referring and screening students for mental health services should be carried out in a manner that is equitable and inclusive, including culturally and linguistically competent and identity-safe, and does not cause further harm. We have added language to the application requirements to address this comment.

Changes: The Department has added language to application requirement (c)(3), requiring applicants to describe how they will screen students in a manner that minimizes bias and stereotypes.

Comment: One commenter stated that, in finalizing the application requirements, specifically the “project activities,” the Department should include specific references to LGBTQ+ students, BIPOC students, and students with disabilities.

Discussion: The Department recognizes that equity in education should provide all students, from all backgrounds, with the resources and supports they need to succeed and thrive in our society. The Department has implemented the two changes described below to address the commenter's concerns.

Changes: Application requirement (d)(1)(i) has been revised to require that interventions and activities are available to all students in a school, in a manner that is equitable and inclusive, including culturally and linguistically competent. Additionally, language has been added to application requirements (c)(2), (c)(5), (d)(1), and (e)(3)(i) and (ii) that emphasizes the importance of activities, programs, and practices that are “culturally and linguistically competent” and that these services should be supported by increasing the diversity of staff, including hiring staff from underrepresented backgrounds.

Comment: One commenter recommended requiring applicants to demonstrate a racial equity framework such that people with lived experiences or those who historically have been excluded become the center of program development, policy, and research.

Discussion: The Department agrees that an equitable and unbiased education should be provided to all students, with the resources and supports they need to succeed and thrive in our society. The Department continues to work to ensure that every student feels supported in the classroom and in all educational environments. In several places, the application requires that project activities serve, and are inclusive of, all students. Additionally, selection criteria for this program will be designed to ensure equal access and treatment for eligible project participants who are members of groups that have been underrepresented based on race, color, national origin, gender, sexual orientation, age, or disability. The Department agrees that further general emphasis on equity and inclusion would be helpful and modified the application requirements to reiterate that project activities must be available and administered to all students in a manner that is equitable and inclusive, and culturally and linguistically competent.

Changes: The Department has revised (c)(2), (d)(1), and (d)(1)(i) of the application requirements to clarify that programs and practices must include interventions and activities that are available to all students in a manner that is equitable and inclusive.

Comment: Several commenters emphasized that project activities should be evidence- or research-based.

Discussion: The Department agrees that programs, practices, and treatment for mental health services should be rooted in evidence and believes the language in the final priorities can be strengthened by adding references to “evidence-based” in section (c) of the application requirements.

Changes: The Department has added “evidence-based” to application requirements (c)(2) and (c)(5).

Comments: One commenter suggested that the Department provide a template for an LEA/CBO agreement.

Discussion: We appreciate the recommendation to include a template for the MOA/MOU between LEAs and CBOs but decline to provide this type of document in the NFP. The NPP states that the MOA/MOU must clearly define the roles, responsibilities, and resources that each entity will bring to the partnership. Resources and technical assistance regarding what an MOA/MOU should contain will be provided to applicants in the Notice Inviting Applications, and the Department will provide technical assistance webinars for potential applicants. Therefore, it is not necessary to add a template for an MOA/MOU to the application requirements.

Changes: None.

Comment: One commenter suggested that there be a formal mechanism for community feedback during the selection of community partners and throughout the duration of the project. For example, the commenter suggested using qualitative data, such as a survey of families and community members, to understand the impacts of community violence and violence mitigation efforts.

Discussion: The Department appreciates this suggestion and agrees that ongoing community feedback is integral to the success of the project and facilitates successful stakeholder buy-in. The Department has modified the application requirements to require applicants to describe how they will utilize a formal mechanism for community feedback at various stages of the project.

Changes: The Department has added application requirement (b)(4), stating that applicants must describe how they will utilize a formal mechanism for community feedback during the selection process and throughout the duration of program activities.

Comments: Three commenters noted the positive impact that mentoring and peer-to-peer activities can have on reducing the harmful impacts of community violence. One commenter suggested explicitly including after-school programming and summer activities as project activities.

Discussion: The Department appreciates the project activity recommendations. We agree that mentoring, peer-to-peer activities, after-school programming, and summer activities can create positive outcomes for students impacted by community violence. Effective and engaging summer and after-school programming especially are critical to the reduction of youth involvement in community violence. Because these types of activities already are allowable under Project Prevent and applicants may propose them in their proposed grant applications, we are not making any changes in response to these comments.

Changes: None.

Comments: Two commenters suggested that greenspaces and the physical infrastructure of a community play a pivotal role in mitigating community violence.

Discussion: The Department acknowledges data showing that properly designed and maintained outdoor greenspaces and physical infrastructures have the potential to mitigate violent crime (Mardelle Shepley, 2019). Activities related to minor remodeling of greenspaces and physical infrastructures, excluding construction, are allowable activities under this program, and applicants may integrate them into their proposed grant applications. For this reason, we are not making any changes in response to these comments.

Changes: None.

Comments: One commenter suggested including measures to mitigate public sector divestment in communities plagued by violence.

Discussion: The Department recognizes the recommendation on how to further mitigate community violence. While there are a number of ways to address community violence and its impacts, we believe direct services and training are more consistent with the statutory authority for Project Prevent in 20 U.S.C. 7281(a)(1)(B), which is to provide funds for “activities to improve students' safety and well-being.”

Changes: None.

Comment: One commenter suggested prohibiting the use of corporal punishment and restraint and seclusion in project activities.

Discussion: The Department finds the use of corporal punishment to be harmful, ineffective, and often disproportionately applied to students of color and students with disabilities, and has long called on States to eliminate the practice. 1 As of 2022, the practice is illegal in 31 States and the District of Columbia. 2 While the Department does not have authority over State or local school discipline policies, research does not support corporal punishment, seclusion, or restraint as evidence-based practices for reducing trauma and mitigating violence. Research further shows that these ineffective practices can have lasting negative impacts on students. 3 Therefore, we do not believe these methods are permissible within the range of evidence-based practices and programs described in section (e) of the application.

Changes: None.

Comments: Nine commenters urged the Department to reconsider including references to law enforcement in the application requirements. These commenters noted that collaboration with law enforcement is harmful when there is a major distrust of law enforcement, especially among students of color and marginalized groups.

Discussion: The Department understands the concern raised by commenters and agrees that inclusion of law enforcement partners may not be suitable for all proposed projects. While there are projects where collaboration with law enforcement can be effective in reducing community violence, there may also be projects that choose not to partner with law enforcement based on their needs and project objectives, and as referenced by commenters, other factors and considerations. These are decisions that are best made at the community level based on formal community feedback and by applicants. Partnerships and collaboration with law enforcement are allowable, but not required, activities under Project Prevent. The Department believes applicants are in the best position to determine whether and how a partnership with law enforcement could address the impacts of community violence in ways that develop trusting relationships and that are effective, inclusive, and free from bias, and accordingly removed the reference to law enforcement from one of the two application requirements where it was proposed, and where it remains, the activity is allowable but not required.

Changes: The Department removed the reference to law enforcement from application requirement (a)(2). Collaboration with law enforcement remains an allowable, but not required activity, in the project activity section.

Comments: One commenter suggested that law enforcement partnership be explicitly referenced in Priorities 1 and 2.

Discussion: Partnerships and collaborations with law enforcement are allowable but not required activities under Project Prevent. The Department believes the applicant is best suited to determine whether collaboration with law enforcement is appropriate, and how to utilize such a partnership to address the impacts of community violence in ways that develop trusting relationships that are effective, inclusive, and free from bias.

Changes: None.

Comments: Four commenters encouraged language that prioritizes collaboration with appropriately trained supportive services to address students' and communities' needs. Two commenters suggested that support personnel for grant activities include occupational therapists.

Discussion: Application requirements allow for the hiring and inclusion of appropriate school and support personnel to implement program activities. Applicants may propose to hire and include school and support personnel who are appropriate to their proposed grant applications. In response to the commenters' recommendations, and to ensure applicant discretion is clear, we modified the application requirements to give applicants more flexibility to choose which school and support personnel best meet their students' and communities' needs, and to take diversity and inclusion into account in planning activities and hiring staff.

Changes: We modified application requirement (c)(2) to give applicants more flexibility to choose which school and support personnel best meet their students' and communities' needs, and to take diversity and inclusion into account in planning activities and hiring staff.

Comments: Two commenters recommended requiring diversity and inclusion in the hiring and retention of culturally competent social workers, counselors, psychologists, and mental health professionals. Two additional commenters advocated for assurances concerning racial equity in hiring personnel.

Discussion: The Department agrees that any efforts to diversify project personnel can have a significant impact on the success of program activities and build relationships with students served by the program. Application requirement (c)(2) has been revised in two ways, to confirm both that applicants have the flexibility to hire appropriate school support personnel, and that staff hiring must be diverse.

Changes: The Department has added language in application requirement (c)(2) to affirm that applicants have the flexibility to improve the range, availability, and quality of culturally and linguistically competent, inclusive, and evidence-based school-based mental health services by increasing the diversity of staff positions ( e.g., school and clinical psychologists, school counselors, school social workers, or occupational therapists) or other appropriate school support personnel, and by hiring diverse staff.

Comments: The Department received a number of comments on the proposed definition of “community violence.” Three commenters suggested that the proposed definition of community violence include interpersonal, familial, and self-harm acts of violence. One commenter suggested that the definition of community violence include intentional acts committed in public areas. One commenter believes the Department's definition of community violence is insufficient and suggested, instead, the World Health Organization's definition. One commenter suggested revising the definition of community violence to expressly include group-based, bias-related, and sexual violence. One commenter questioned the Department's authority to define community violence at all.

Discussion: We appreciate the recommendations regarding the definition of community violence. To more closely align our work with that of other Federal agencies, the Department acknowledges that this definition would be improved by clarifying that the definition covers intentional acts of violence committed in public areas. Self-inflicted acts of harm are not interpersonal, so they do not match a more widely understood definition of community violence. While familial violence is interpersonal and can be associated with community-level violence, familial violence alone does not amount to community violence.

Changes: The Department has modified the definition of community violence to be “exposure to intentional acts of interpersonal violence ( e.g., firearm injuries, assaults, and homicides) committed in public areas by individuals outside the context of a familial or romantic relationship.”

Priority 1—Addressing the Impacts of Community Violence.

Projects that implement community- and school-based strategies to help prevent community violence and mitigate the impacts of children and youth's exposure to community violence in collaboration with local CBOs ( e.g., local civic or community service organizations, local faith-based organizations, or local foundations or nonprofit organizations) and include community and family engagement in the implementation of the strategies.

Priority 2—Established Partnership with a Local Community-Based Organization.

An application that includes at least one MOA or MOU signed by the authorized representative of a local community-based organization (as defined in section 8101(5) of the ESEA) that agrees to partner with the applicant on the proposed project and provide resources or administer services that are likely to substantially contribute to positive outcomes for the proposed project. The MOA or MOU must clearly delineate the roles and responsibilities of each entity.

Priority 3—Supporting Children and Youth from Low-Income Backgrounds.

In its application, an applicant must demonstrate, based on SAIPE data from the U.S. Census Bureau or, for an LEA for which SAIPE data are not available, the same State-derived equivalent of SAIPE data that the State uses to make allocations under part A of title I of the ESEA, one or more of the following:

(a) At least 20 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(b) At least 25 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(c) At least 30 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(d) At least 35 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(e) At least 40 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

(f) At least 45 percent of the students enrolled in the LEA to be served by the proposed project are from families with an income below the poverty line.

Types of Priorities:

When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the Federal Register . The effect of each type of priority follows:

Absolute priority: Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).

Competitive preference priority: Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).

Invitational priority: Under an invitational priority we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).

The following are one program requirement and several application requirements for this program. We may apply one or more of these requirements in any year in which the program is in effect.

Program Requirement:

Eligible Applicants: Eligible applicants for this program are LEAs, as defined in 20 U.S.C. 7801(30).

Application Requirements:

(a) Severity and magnitude of the problem; identification of schools to be served by the proposed project. Applicants must—

(1) Identify the schools proposed to be served by project activities;

(2) Collaborate and coordinate with CBOs to describe the community violence that affects students in those schools utilizing data such as incidents of community violence, gun crime, and other violent crime, rates of child abuse and neglect, and other school and community crime and safety data, including on a per capita basis (such as homicides per 100,000 persons); prevalence of risk factors associated with violence-related injuries and deaths; findings from student mental health screenings or assessments, school climate surveys, and student engagement surveys; demographic data provided by U.S. Census surveys; and other relevant data and information; and

(3) Provide a comparison of the school and community data cited to similar data at the State or local level, if available.

(b) Collaboration and coordination with community-based organizations. Applicants must—

(1) Describe how they intend to work collaboratively with CBOs to achieve project goals and objectives;

(2) Provide evidence of collaboration and coordination through letters of support, MOAs, or MOUs from at least one CBO;

(3) Describe how they will use grant program funds to supplement, rather than supplant, existing or new efforts to reduce community violence and mitigate the direct and indirect effects of community violence on students; and

(4) Describe how they utilized a formal mechanism ( e.g., surveys of families and community members) to obtain community feedback during the process of identifying CBOs with which to partner or collaborate, and the formal mechanism that will be utilized throughout the duration of the project to gather feedback on the impact of project activities.

(c) Project activities. Applicants must propose to conduct three or more of the following:

(1) Appropriately tailored professional development opportunities for LEA and school mental health staff ( e.g., counselors, psychologists, and social workers); other specialized instructional support personnel; and other school staff, as appropriate, on how to screen for and respond to violence-related trauma and implement appropriate school-based interventions to help prevent community violence and mitigate the impacts of children's and youth's exposure to community violence.

(2) Activities designed to improve the range, availability, and quality of culturally and linguistically competent, inclusive, and evidence-based school-based mental health services by increasing the number and diversity of staff positions ( e.g., school and clinical psychologists, school counselors, school social workers, or occupational therapists) or other appropriate school support personnel, and by hiring staff who are diverse and reflective of the community, with expertise or training in violence prevention, trauma-informed care, and healing-centered strategies, and who are qualified to respond to the mental and behavioral health needs of students who have experienced trauma as a result of exposure to community violence. 4

(3) Training for school staff ( e.g., teachers, administrators, specialized instructional support personnel, and support staff), community partners, youth, and families on the effects of exposure to community violence, the importance of screening students, how to screen students exposed to community violence in a manner that minimizes and eliminates bias and stereotypes, and how to provide interventions.

(4) Developing or improving processes to better target services to students who are exposed to community violence and to assess such students who may be experiencing mental, social, emotional, or behavioral challenges as a result of this exposure.

(5) Enhancing linkages between LEA mental health services and community mental health systems to help ensure affected students receive referrals to treatment that is culturally and linguistically competent and evidence-based, as appropriate.

(6) Undertaking activities in collaboration and coordination with law enforcement to address community violence affecting students, to support victims' rights, and to promote public safety.

(d) Evidence-based, culturally and linguistically competent, and developmentally appropriate programs and practices. Applicants must—

(1) Describe the continuum of evidence-based, culturally and linguistically competent, and developmentally appropriate (as defined in 34 CFR 77.1(c)) programs and practices that will be implemented at the school and community levels and how these programs and practices will be organized to provide differentiated support based on student need in an equitable and inclusive manner, free from bias, to help break the cycle of community violence. These programs and practices must include all of the following:

(i) Interventions and activities that are available to all students in a school, in a manner that is equitable and inclusive, with the goal of preventing negative or violent behavior (such as harassment, bullying, fighting, gang participation, sexual assault, and substance use) and enhancing student knowledge and interpersonal and emotional skills regarding positive behavior (such as communication and problem-solving, empathy, and conflict management, de-escalation, and mediation).

(ii) Interventions and activities related to positive coping techniques, anger management, conflict management, de-escalation, mediation, promotion of positive behavior, and development of protective factors.

(iii) Interventions and services, such as mentorship programming, that target individual students who are at a higher risk for committing or being a victim of violence.

(2) Describe the research and evidence supporting the proposed programs and practices and the expected effects on the target population.

(e) Framework for planning, implementation, and sustainability. Applicants must—

(1) Describe how the proposed project is integrated and aligned with the mission and vision of the LEA, including a description of the relationship of the project to the LEA's existing school safety or related plan;

(2) Describe the anticipated challenges to success of the project and how they will be addressed, such as sustaining project implementation beyond the availability of grant funds and mitigating turnover at the LEA leadership, school leadership, and staff levels; and

(3) Include a timeline of activities for—

(i) Planning that includes conducting a needs assessment that is comprehensive and examines areas for improvement, both within the school and the community, related to learning conditions that create a safe and healthy environment for students; creating a logic model (as defined in 34 CFR 77.1); completing resource mapping; selecting evidence-based, culturally and linguistically competent, and developmentally appropriate programs; developing evaluation plans; and engaging community and school partners, families, and other stakeholders;

(ii) Implementation that includes training on and execution of evidence-based, culturally and linguistically competent, and developmentally appropriate programs; continuing engagement with stakeholders; communicating and collaborating strategically with community partners; and evaluating program implementation; and

(iii) Sustainability that includes further developing and expanding on the project's successes beyond the end of the grant, at the school and community levels, in alignment with other related efforts.

(f) Planning period. Projects funded under this program may use up to 12 months during the first year of the project period for program planning. Applicants that propose a planning period must provide sufficient justification for why this program planning time is necessary, provide the intended outcomes of program planning in Year 1, and include a description of the proposed strategies and activities to be supported.

The Department establishes a definition of “community violence” for use in this program. We may apply it in any year in which this program is in effect.

Community violence is intentional acts of interpersonal violence ( e.g., firearm injuries, assaults, and homicides) committed in public areas by individuals outside the context of a familial or romantic relationship.

This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

Note: This notice does not solicit applications. In any year in which we choose to use these priorities, requirements, and definition, we invite applications through a notice in the Federal Register .

Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

We have also reviewed this regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only on a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing the final priorities, requirements, and definition only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on an analysis of anticipated costs and benefits, we believe that the priorities, requirements, and definition are consistent with the principles in Executive Order 13563.

We also have determined that this final regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with the Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this final regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

The Department believes that this final regulatory action would not impose significant costs on eligible entities, whose participation in our programs is voluntary, and costs can generally be covered with grant funds. As a result, the priorities, requirements, and definition would not impose any particular burden except when an entity voluntarily elects to apply for a grant. The priorities, requirements, and definition would help ensure that the Project Prevent grants program selects high-quality applicants to implement activities that meet the goals of the program. We believe these benefits would outweigh any associated costs.

The Secretary certifies that this final regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.

The small entities that this final regulatory action would affect are LEAs. Of the impacts we estimate accruing to grantees or eligible entities, all are voluntary. Therefore, we do not believe that the final priorities, requirements, and definition would significantly impact small entities beyond the potential for increasing the likelihood of their applying for, and receiving, competitive grants from the Department.

The final priorities, requirements, and definition do not contain any information collection requirements.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive Order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance. This document provides early notification of our specific plans and actions for this program.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site, you can view this document, as well as all other documents of the Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF, you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

On March 17, 2022, EPA published a notice of proposed rulemaking (NPRM). 87 FR 15161. In the NPRM, EPA proposed approval of case-by-case RACT determinations for sources at eight facilities, as EPA found that the RACT controls for these sources met the CAA RACT requirements for the 1997 and/or 2008 8-hour ozone NAAQS. The case-by-case RACT determinations for sources at these facilities were initially included in PADEP's May 7, 2020 SIP submission and supplemented by submissions on February 9, 2021, July 20, 2021, and January 28, 2022. One facility is located in Allegheny County and was submitted by PADEP on behalf of the Allegheny County Health Department (ACHD), the government agency responsible for air permitting in that county.

As more fully explained in the NPRM, under certain circumstances, states are required to submit SIP revisions to address RACT requirements for both major sources of NO X and VOC and any source covered by control technique guidelines (CTG), for each ozone NAAQS. Which NO X and VOC sources in Pennsylvania are considered “major,” and are therefore subject to RACT, is dependent on the location of each source within the Commonwealth. Sources located in nonattainment areas would be subject to the “major source” definitions established under the CAA based on the area's current classification(s). In Pennsylvania, sources located in any ozone nonattainment areas outside of moderate or above are subject to source thresholds of 50 tons per year (tpy) because of the Ozone Transport Region (OTR) requirements in CAA section 184(b)(2).

On May 16, 2016, PADEP submitted a SIP revision addressing RACT for both the 1997 and 2008 8-hour ozone NAAQS in Pennsylvania. PADEP's May 16, 2016 SIP revision intended to address certain outstanding non-CTG VOC RACT, VOC CTG RACT, and major source VOC and NO X RACT requirements for both standards. The SIP revision requested approval of Pennsylvania's 25 Pennsylvania Code 129.96-100, Additional RACT Requirements for Major Sources of NO X and VOCs (the “presumptive” RACT II rule). Prior to the adoption of the RACT II rule, Pennsylvania relied on the NO X and VOC control measures in 25 Pa. Code 129.92-95, Stationary Sources of NO X and VOCs, (the RACT I rule) to meet RACT for non-CTG major VOC sources and major NO X sources. The requirements of the RACT I rule remain as previously approved in Pennsylvania's SIP and continue to be implemented as RACT. 1 On September 26, 2017, PADEP submitted a supplemental SIP revision including a letter, dated September 22, 2017, which committed to address various deficiencies identified by EPA in PADEP's original May 16, 2016 “presumptive” RACT II rule SIP revision.

On May 9, 2019, EPA conditionally approved the RACT II rule based on the commitments PADEP made in its September 22, 2017 letter. 2 84 FR 20274. In EPA's final conditional approval, EPA established conditions requiring PADEP submit, for EPA's approval, SIP revisions to address any facility-wide or system-wide NO X emissions averaging plans approved under 25 Pa. Code 129.98 and any case-by-case RACT determinations under 25 Pa. Code 129.99. PADEP committed to submitting these additional SIP revisions within 12 months of EPA's final conditional approval ( i.e., by May 9, 2020). Through multiple submissions between 2017 and 2020, PADEP submitted to EPA for approval the various SIP submissions to implement its RACT II case-by-case determinations and alternative NO X emissions limits. This rule takes final action on SIP revisions for sources at six facilities, based on EPA's review. 3

The SIP revisions in this action for ATI Flat Rolled products Holdings, LLC, the facility located in Allegheny County, only establish 2008 8-hour ozone NAAQS RACT requirements. Applicable RACT requirements under the CAA for sources located in Allegheny County for the 1997 8-hour ozone NAAQS were previously satisfied. See 78 FR 34584 (June 10, 2013).

To satisfy a requirement from EPA's May 9, 2019 conditional approval, PADEP submitted to EPA SIP revisions addressing alternative NO X emissions limits and/or case-by-case RACT requirements for major sources in Pennsylvania subject to 25 Pa. Code 129.98 or 129.99. Among the submitted SIP revisions were case-by-case RACT determinations for sources in Allegheny County, which PADEP submitted on behalf of ACHD. PADEP's submission included SIP revisions pertaining to case-by-case RACT determinations for the existing emissions units at each of the major sources of NO X and/or VOC that required a case-by-case RACT determination.

In the case-by-case RACT determinations submitted by PADEP, and PADEP on behalf of ACHD, an evaluation was completed to determine if previously SIP-approved, case-by-case RACT emissions limits or operational controls (herein referred to as RACT I and contained in RACT I permits) were more stringent than the RACT II presumptive or case-by-case requirements new to the SIP. If more stringent, the RACT I requirements would continue to apply to the applicable source. If case-by-case RACT II requirements that are new to the SIP are more stringent than the RACT I requirements, then the RACT II requirements would supersede the prior RACT I requirements. 4

Here, EPA is approving SIP revisions pertaining to case-by-case RACT requirements for sources at six NO X and/or VOC emitting facilities in Pennsylvania, as summarized in Table 1 in this document. As indicated in the NPRM, EPA views each facility as a separable SIP revision.

The case-by-case RACT determinations submitted by PADEP, and PADEP on behalf of ACHD, consist of an evaluation of all reasonably available controls at the time of evaluation for each affected emissions unit, resulting in a determination of what specific emissions limit or control measures satisfy RACT for that particular unit. The adoption of new, additional, or revised emissions limits or control measures to existing SIP-approved RACT I requirements were specified as requirements in new or revised federally enforceable permits (hereafter RACT II permits) issued by PADEP or ACHD to the source. These RACT II permits have been submitted as part of the Pennsylvania RACT SIP revisions for EPA's approval in the Pennsylvania SIP under 40 CFR 52.2020(d)(1). The RACT II permits being approved in this action are listed in the last column of Table 1 of this preamble, along with the permit effective date, and are part of the docket for this rule, which is available online at www.regulations.gov, Docket No. EPA-R03-OAR-2022-0165. 5 For certain sources at major NO X and VOC emitting facilities, EPA is incorporating by reference in the Pennsylvania SIP the source-specific emissions limits and control measures and/or alternative NO X emissions limits in the RACT II permits, and is determining that these provisions satisfy the RACT requirement under the 1997 and/or 2008 8-hour ozone NAAQS.

This CbC RACT SIP revision incorporates determinations by PADEP and ACHD of source-specific RACT II controls for individual emission units at major sources of NO X and/or VOC in Pennsylvania, where those units are not covered by or cannot meet Pennsylvania's presumptive RACT regulation. After thorough review and evaluation of the information submitted to EPA by PADEP, in its SIP revision submittals for sources at six major NO X and/or VOC emitting facilities in Pennsylvania, EPA found that: (1) PADEP's and ACHD's case-by-case RACT determinations and conclusions establish limits and/or controls on individual sources that are reasonable and appropriately considered technically and economically feasible controls; and (2) PADEP's and ACHD's determinations are consistent with the CAA, EPA regulations, and applicable EPA guidance.

In the NPRM, EPA proposed to find that all the proposed revisions to previously SIP-approved RACT I requirements would result in equivalent or additional reductions of NO X and/or VOC emissions. Consistent with section 110(l) of the CAA the proposed revisions will not result in additional NO X emissions and thus should not interfere with any applicable requirement concerning attainment.

Below is a summary of information that was set forth in the NPRM, associated technical support document (TSD), and supporting documents in the record regarding the source-specific RACT II NO X determinations for the four facilities with major NO X sources and how those particular requirements are at least as stringent as the RACT I requirements. Additional material regarding this source determination is available in the NPRM, associated TSD, and other support documents in the record, and are not set forth herein.

EPA proposed to approve PADEP's RACT II CbC NO X determination for twenty-seven sources at this facility. For all twenty-seven sources, PADEP determined that CbC RACT II NO X requirements would be continuing use of good operating and maintenance practices. This RACT II requirement now being incorporated into the SIP is as stringent as the RACT I SIP requirement because the RACT I SIP also required good operating and maintenance practices. PADEP also will continue to require the same throughput restrictions as follows: 267 million cubic feet of natural gas each year (mmcf/yr) for the EMS boiler, 1.55 million tons of steel processed per year for the “D” electric furnace, and 3,942 mmcf/yr of natural gas for fifteen soaking pits. These throughput restrictions being incorporated into the SIP as RACT are as stringent because they are the same as the RACT I restrictions incorporated into the current SIP.

For two NAB furnaces and eight BHT furnaces, EPA is approving more stringent RACT II requirements now being incorporated into the SIP that will supersede the RACT I requirements in the SIP. PADEP established throughput restrictions for the 145' NAB furnace and the 200' NAB furnace of 481.8 and 510 mmcf/yr of natural gas respectively, which together are more stringent than the prior SIP RACT I collective limit of 1331.52 mmcf/yr for the two NAB furnaces together. For the eight BHT furnaces, PADEP established a throughput restriction of 2495.7 mmcf/yr of natural gas, which is less than the prior RACT I SIP collective limit of 2688.88 mmcf/yr for nine BHT furnaces, and is therefore more stringent. Finally, PADEP established a monthly limit of 34.1 tons per month NO X that is new to the SIP for the “D” electric furnace. 6 This short-term emission limit now being incorporated into the SIP is more stringent because EPA never approved a prior short-term emission limit in the SIP before for this source. Through its establishment of as stringent and more stringent RACT, and related testing, monitoring, and recordkeeping requirements, Pennsylvania has demonstrated that the status quo in NO X emissions has been maintained if not improved. As such, EPA's approval of Pennsylvania's SIP revision is consistent with CAA section 110(l).

EPA proposed to approve PADEP's CbC RACT II NO X determination for three sources at this facility. 7 For two of the three sources, Westinghouse turbines, PADEP determined that the RACT CbC NO X is good combustion practices, defined as following manufacturer's procedures, routine maintenance, a preventative maintenance schedule, and inspection as well as an operating hours limit of 8,000 hr/yr, fuel throughput limit of 491.3 MMScf/year, and a NO X emissions rate of 116 ppmvd (parts per million volume, dry) corrected to 15% oxygen. For the remaining source, a General Electric turbine, PADEP determined that RACT CbC NO X consists of good combustion practices, defined as following manufacturer procedures, routine maintenance, a preventative maintenance schedule, inspection as well as an operating hours limit of 8,000 hr/yr, and a NO X emission rate of 120 ppmvd corrected to 15% oxygen. Because EPA had not previously approved any RACT for this source into the SIP, these RACT requirements now being incorporated into the SIP are more stringent than the current SIP. Through its establishment of more stringent RACT for these sources, and related testing monitoring and recordkeeping requirements, Pennsylvania has demonstrated that the status quo in NO X emissions has been maintained, if not improved. As such, EPA's approval of Pennsylvania's SIP revision is consistent with section 110(l).

EPA proposed to approve ACHD's CbC RACT II NO X determination for five sources at this facility. A number of NO X sources under RACT I are now shut down. For two sources currently still in use, consisting of two electric arc furnaces, ACHD determined that the RACT II CbC NO X is the continued requirement for good work practices, such as minimizing intake of outside air and the opening of the slag. For the Argon-Oxygen Decarburization Vessel source, ACHD determined that the RACT II CbC NO X is to continue the requirement to implement good operating practices and the requirement to comply with manufacturer's specifications. These RACT II requirements for these three sources are as stringent as the current SIP because the RACT I requirements in the SIP also consisted of good operating practices for these sources and have been retained. For the two remaining sources, No. 1 and No. 2 A&P lines HNO 3 /HF pickling operations, ACHD determined the RACT II CbC NO X is to continue good operating and maintenance practices as well as several requirements new to the SIP: direct emissions to the wet scrubber (while tracking and maintaining specific operating parameters related thereto), meet emission limits of 15.5 lbs NO X /hr and 11.07 lbs NO X /hr, and annual production limits of 262,800 tons of steel and 148,920 tons of steel. 8 The good operating and maintenance practice requirement being incorporated into the SIP for these sources is as stringent because the current RACT I SIP for these sources also required good operating practices. The requirement to direct emissions to the wet scrubber as well as the numerical emission and production limits now being incorporated are new to the SIP for these two sources and do not supersede any prior RACT requirements in the current SIP, and thus are more stringent. Through its establishment of as or more stringent RACT, and related monitoring, testing, and recordkeeping requirements, Pennsylvania has demonstrated that the status quo in NO X emissions has been maintained, if not improved. As such EPA's approval of Pennsylvania's SIP revision is adequately justified under section 110(l).

EPA proposed to approve PADEP's CbC RACT II NO X determinations for two sources at this facility, spray dryers No. 1 and No. 3. PADEP determined that the RACT II CbC NO X for both sources is use of good combustion practices and minimizing excess air. These RACT requirements now being incorporated into the SIP are more stringent because EPA has never approved RACT requirements into the SIP before for the spray dryers. The existing RACT I conditions in the SIP are unrelated to these two CbC NO X sources and remain as RACT requirements. INDSPEC ceased manufacturing in September 2017, and the NO X and VOC sources subject to PADEP's RACT II determination have all permanently shut down. 9 Through imposition of these more stringent operating practices for these now permanently shut down sources, Pennsylvania has demonstrated that the status quo in NO X emissions has been maintained, if not improved. As such, EPA's approval of Pennsylvania's SIP revision is consistent with section 110(l).

Other specific requirements of the 1997 and 2008 8-hour ozone NAAQS case-by-case RACT determinations and alternative NO X emissions limits and the rationale for EPA's proposed action are explained thoroughly in the NPRM, and its associated technical support document (TSD), and will not be restated here.

EPA received three sets of comments on the March 17, 2022 NPRM. 87 FR 15161. A summary of the comments and EPA's responses are discussed in this section. A copy of the comments can be found in the docket for this rule action.

Comment 1: This comment from ACHD identifies that the permits for ATI Flat Rolled Products Holdings, LLC in the notice of proposed rulemaking should be identified as No. 0059-I009a (December 3, 2020) and No. 0059-I008d (April 21, 2021).

Response 1: The permits included in the submission to EPA are No. 0059-I009a (December 3, 2020) and No. 0059-I008d (April 21, 2021) as indicated by the commenter. References to these permits in this rule have been updated.

Comment 2: The comment from Cleveland-Cliffs Monessen Coke LLC requests that EPA not take final action on the revisions pertaining to ArcelorMittal Monessen LLC Monessen Coke Plant as certain RACT requirements are involved in the appeal of the facility's permit before the Pennsylvania Environmental Hearing Board. The comment requests EPA delay action until the appeal is adjudicated or resolved, and any modifications to the permit are finalized. The comment indicates there is a settlement agreement in principle with PADEP to prepare and issue a modification of the permit.

Response 2: EPA is not taking final action on the ArcelorMittal Monessen LLC Monessen Coke Plant RACT determination at this time and will act on this SIP revision in a later rulemaking. EPA will respond to the comment at that time.

Comment 3: A comment from the Center for Biological Diversity (CBD) claims that EPA cannot approve the proposed Pennsylvania RACT II CbC determinations under the 2008 8-hour ozone NAAQS because the CAA section 110(l) analysis is inadequate. In particular, the comment focuses on the proposed NO X limitations and whether they will cause or contribute to violations of the 2010 1-hour NO X NAAQS. (The 2010 1-hour NAAQS is for oxides of nitrogen, as measured by nitrogen dioxide (NO 2 ).)

Response 3: As described in the proposed rulemaking, Pennsylvania was required through implementation of the 1997 and 2008 8-hour ozone NAAQS to determine RACT II requirements for major NO X and VOC emitting sources within the Commonwealth. PADEP had previously established CbC. 10   11 As part of the EPA's conditional approval, PADEP was required to complete source-specific RACT II determinations for subject NO X or VOC sources that could not meet the presumptive requirements or for which a presumptive limit did not exist. For subject sources located in Allegheny County, ACHD makes such determinations. As required by Pennsylvania's RACT II regulations, PADEP and ACHD then conducted, for sources seeking a CbC determination, an analysis examining what air pollution controls were available for those individual sources to determine the lowest emissions limit that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility. 12

Through its source-specific RACT II determinations, PADEP and ACHD through PADEP have established NO X and VOC limits and requirements for various sources that either reaffirm existing emissions limits or make the limits more stringent. PADEP, on behalf of itself and ACHD, submitted those determinations to EPA as bundled packages of individual SIP revisions. EPA is now approving the RACT II CbC SIP revisions for individual NO X and VOC sources at six facilities throughout Pennsylvania (including one in Allegheny County). For the reasons explained below, EPA concludes that the arguments presented by the comment do not prohibit approval of these SIP revisions.

CAA section 110(l) prohibits EPA from approving a SIP revision if the revision would “interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of this chapter.” 42 U.S.C. 7410(l). While EPA interprets section 110(l) as applying to all NAAQS that are in effect, including those for which a relevant SIP submission may not have been made, the level of rigor needed for any CAA section 110(l) demonstration will vary depending on the nature and circumstances of the revision. For example, an in-depth section 110(l) analysis is more appropriate where there is a reasonable expectation that an existing SIP standard is being weakened or that there will be a net emissions increase because of approval of the SIP revision under consideration. However, here, the Pennsylvania CbC RACT II SIP revisions are either retaining an existing standard or establishing a more stringent one. For these reasons, EPA did not include a detailed section 110(l) analysis at the proposal stage. Since the comment raised the issue, EPA is responding in this final action by explaining why its approval is consistent with section 110(l).

In circumstances where an existing SIP standard is being weakened or a net emissions increase is expected, there are two generally recognized paths for satisfying CAA section 110(l). First, a state may demonstrate through an air quality analysis, including modeling, that the revision will not interfere with the attainment of the NAAQS, reasonable further progress, or any other applicable requirement. This is the approach the comment claims is required for the Pennsylvania CbC RACT II SIP revisions. Second, a state may substitute equivalent or greater emissions reductions to compensate for any change to a plan to ensure actual emissions to the air are not increased and thus preserve status quo air quality. In the context of substitution, courts have upheld the concept that substitute measures resulting in a net zero increase in emissions, i.e. status quo emissions, is sufficient to demonstrate noninterference. Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986 (6th Cir. 2006); Indiana v. EPA, 796 F. 3d 803 (7th Cir. 2015).

In a more analogous case to the situation presented here, EPA's interpretation of section 110(l) was upheld in WildEarth Guardians v. EPA, 759 F.3d 1064 (9th Cir. 2014). There, the court rejected a challenge to an EPA action approving a regional haze plan and concluded that WildEarth Guardians had identified “nothing in [the] SIP that weakens or removes any pollution controls. And even if the SIP merely maintained the status quo, that would not interfere with the attainment or maintenance of the NAAQS.”  13 For that reason, the court concluded that the petitioner in WildEarth Guardians failed to show that EPA's approval of the SIP contravened section 110(l). The court's holding demonstrates that a SIP approval that does not weaken or remove pollution controls would not violate section 110(l). Thus, a showing that the approved SIP measures preserve status quo emissions is generally sufficient to demonstrate noninterference.

Here, contrary to the comment's characterization, PADEP and ACHD are not relaxing standards or eliminating a program; rather, PADEP and ACHD are reevaluating the technical and economic feasibility of air pollution controls for subject air pollution sources as required by implementation of the 2008 8-hour NAAQS. Based on that review, PADEP and ACHD, as explained in detail in Section II of this preamble, have made determinations that either retain or make more stringent existing NO X emissions limits. Under these circumstances, PADEP's or ACHD's demonstration to meet the requirements of section 110(l) for its source-specific RACT II determinations is not one of modeling or identifying equivalent emissions reductions to compensate for or offset an emissions increase because the revisions are not resulting in emissions increases, but rather to establish that its new source-specific NO X RACT determinations are preserving the status quo emissions or achieving additional reductions beyond the status quo. As described in the preamble above, as well as the NPRM, associated TSD, and supporting record documents, EPA has approved for each of the facilities with CbC NO X RACT II determinations requirements that are at least as stringent as the prior CbC NO X RACT determinations.

Comment 4: CBD asserts that EPA's section 110(l) analysis must determine whether NO X emissions from VOC RACT control devices that use combustion will cause or contribute to a violation of the 2010 1-hour NO X NAAQS.

Response 4: No VOC combustion control devices are approved as part of the VOC CbC RACT II determinations for any of these six facilities, therefore consideration of whether NO X emissions from VOC RACT control devices will cause or contribute to a violation of the NAAQS as measured by NO 2 is not relevant to our final action in this rule. Furthermore, no areas in Pennsylvania are designated as non-attainment areas for the 2010 1-hour NO X NAAQS under 40 CFR 81.339.

Comment 5: CBD states that the SIP submission is “incomplete” because it does not contain a “demonstration that the national ambient air quality standards, prevention of significant deterioration increments, reasonable further progress demonstration, and visibility, as applicable, are protected if the plan is approved and implemented,” per 40 CFR part 51, appendix V (Appendix V), 2.2(d), and therefore “does not contain `the information necessary to enable the Administrator to determine whether the plan submission complies with the provisions of [the Clean Air Act],' as required by Section 110(k)(1)(A) of the Act.” This comment further asserts that because Pennsylvania has not submitted the demonstration referenced above, EPA cannot now supplement the record with the supposedly missing information as part of this final rule. Lastly, the comment states that because in the commenter's experience it is “not possible for public commenters to carry out a complete analysis” the comment asserts is missing, that “the state and EPA . . . bear the responsibility of carrying out a full and complete assessment of whether the rule will interfere with the NAAQS.”

Response 5: This comment fundamentally misunderstands the purpose of Appendix V, CAA 110(k)(1)(A) and the concept of “completeness.” Under CAA section 110(k)(1), with a single exception known as parallel processing, which is not relevant in this action, a SIP submission must either be determined to be “complete” by EPA or become complete by operation of law before EPA can formally propose action on the submission. Appendix V was promulgated consistent with CAA 110(k)(1)(A), that directed EPA “to promulgate minimum criteria that any plan submission must meet before the Administrator is required to act on such submission under this subsection.” Thus, Appendix V provides EPA the criteria that it uses to affirmatively determine completeness of a SIP submission, which then allows EPA to move forward with formal action on the submission. However, a SIP submission that does not meet the Appendix V completeness criteria may become complete by operation of law pursuant to CAA 110(k)(1)(B) if EPA does not affirmatively determine that the SIP submission is complete by “the date 6 months after receipt of the submission” from the state. The submissions at issue in this rule became complete by operation of law in October 2020 for ArcelorMittal Plate LLC Coatesville, Boyertown Foundry Company, Texas Eastern Transmission LP Lilly Station, and ATI Flat Rolled Products Holdings, LLC, and in August 2021 for INDSPEC Chemical Corporation Petrolia and Grove US LLC Shady Grove Plant, six months after Pennsylvania made the submissions because EPA did not make an affirmative determination of completeness. 14 It is unclear from the comment precisely what the commenter believes are the repercussions of the alleged incompleteness; to the extent it implies that the alleged incompleteness is a barrier to EPA's proposed or final rule in this action, that belief is incorrect, because these submissions are deemed complete by operation of law. To the extent the comment implies that Appendix V and CAA 110(k)(1)(A) impose substantive approval criteria to require a “demonstration that the national ambient air quality standards, prevention of significant deterioration increments, reasonable further progress demonstration, and visibility, as applicable, are protected if the plan is approved and implemented” in this approval, EPA's responses to Comments 3 and 6, that the record supporting EPA's approval of PADEP's and ACHD's source-specific RACT II SIP revisions is sufficient, and therefore EPA does not need to supplement the record. As such, the comment's reference to EPA's inability to supplement the record, and to Ober v. U.S. EPA, 84 F.3d 304, 312 (9th Cir. 1996), is inapplicable to this action. Similarly, because EPA has determined that the existing record supports this action, the comment's discussion of the relative burden of providing any analysis beyond that already in the record is not relevant to our final action in this rule.

Comment 6: CBD's final comment relates to the results from air dispersion modeling of NO X emissions from the JBS Swift Beef Company (JBS) facility in Colorado that they claim shows the potential impact of NO X emissions on 1-hour NO X NAAQS violations. The comment states that EPA or Pennsylvania must undertake a modeling analysis to determine if the proposed CbC RACT II determinations will cause or contribute to 2010 1-hour NO X NAAQS violations. CBD asserts that EPA and Pennsylvania have the responsibility for conducting the modeling to affirmatively demonstrate that the SIP revision does not interfere with the NAAQS. Relatedly, this comment indicates that EPA must repropose this action and allow for comment on any such modeling information or other information utilized in the demonstration that the NAAQS will be protected.

Response 6: With this rule action, EPA is only approving revisions that add specific NO X and VOC source-specific RACT II determinations to the Pennsylvania SIP. In the subject RACT II source-specific determinations, PADEP and ACHD have made an adequate showing that its source-specific determinations for individual sources at the six facilities at issue will preserve the status quo in NO X emissions. As described in the TSD and related documents, which are included in the docket for this rule, PADEP and ACHD evaluated both the technical and economic feasibility of various control equipment for these sources and used that evaluation to determine the RACT II requirements. PADEP and ACHD also considered the prior RACT I requirements to determine whether the RACT II requirements were as stringent as the previously established standards. In circumstances where the RACT I requirements were more stringent, they were retained and remain effective. EPA determined that PADEP and ACHD adequately justified their RACT II CbC NO X determinations and alternative NO X emissions limits. EPA also concluded, under section 110(l), that the status quo in NO X emissions had been maintained, if not improved, and that there is no need to conduct the modeling suggested by the comment. The record supporting EPA's approval of PADEP's and ACHD's source-specific RACT II SIP revisions is sufficient, there is no need to supplement the record, and the comment's reference to EPA's inability to supplement the record is inapplicable to this action.

The comment also included an air dispersion modeling analysis of NO X emissions from the JBS facility in Colorado to highlight an alleged potential of NO X emissions to cause or contribute to violations of the 2010 1-hour NO X NAAQS. The NAAQS for nitrogen oxides is a 1-hour standard at a level of 100 ppb based on the 3-year average of 98th percentile of the yearly distribution of 1-hour daily maximum NO 2 concentrations. In 2012, EPA designated areas within Pennsylvania as attainment/unclassifiable for the 2010 standard. 15 The modeling analysis provided by the comment indicated that NO X emissions from the JBS facility in Colorado could have significant NO 2 impacts—the maximum NO 2 concentration would occur within a 1-kilometer radius of the facility.

This modeling data analysis from Colorado does not trigger a need for EPA, Pennsylvania, or ACHD to conduct modeling on the impact of NO X emissions from each individual source at issue in this rule in order for EPA to approve these SIP revisions. First, as discussed previously, modeling is not the sole method available to satisfy section 110(l) requirements. Second, the differences in the meteorology, terrain, and facility configurations between the JBS facility and the Pennsylvania RACT II sources are too significant to rely on the JBS facility modeling results to serve as surrogate modeling indicating that the Pennsylvania RACT II sources have the potential to cause exceedances of the 2010 1-hour NO X NAAQS in Pennsylvania. The comment does not provide any comparison or information to show why the JBS facility modeling results would inform our analysis of the specific RACT II sources in Pennsylvania at issue in this rule. Furthermore, the comment has not presented any specific information suggesting the RACT II CbC NO X determinations or alternative NO X emissions limits for these specific sources could somehow lead to violations of the 2010 1-hour NO X NAAQS. Without a more specific allegation from the comment about the sources in question, the comment's allegations are too speculative in nature to prevent EPA from approving PADEP's and ACHD's RACT II CbC NO X determinations or alternative NO X emissions limits for sources at the subject facilities.

EPA is approving case-by-case RACT determinations and/or alternative NO X emissions limits for sources at six facilities in Pennsylvania, as required to meet obligations pursuant to the 1997 and/or 2008 8-hour ozone NAAQS, as revisions to the Pennsylvania SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of source-specific RACT II permits listed in table 1 of this preamble. These permits establish and require reasonably available control technology (RACT) for certain sources at four major volatile organic compound (VOC) and nitrogen oxide (NO X ) emitting facilities and two major volatile organic compound (VOC) emitting facilities. Entries for two facilities with requirements incorporated by reference previously under the RACT I rule are also revised to add new citations. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 16

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

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

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

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

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

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

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

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

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

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

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 804, however, exempts from section 801 the following types of rules: Rules of particular applicability; rules relating to agency management or personnel; and rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. 5 U.S.C. 804(3). Because this is a rule of particular applicability, EPA is not required to submit a rule report regarding this action under section 801.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit October 18, 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 approving Pennsylvania's NO X and VOC RACT requirements for six facilities for the 1997 and 2008 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

Section 301, in conjunction with sections 101 and 111(c)(1) of the Clean Air Act as amended November 15, 1990, authorizes EPA to delegate authority to implement and enforce the standards set out in 40 CFR part 60, New Source Performance Standards (NSPS).

The EPA first delegated the authority for implementation and enforcement of the NSPS program to the State of South Carolina on October 19, 1976. See 42 FR 4188. The EPA later approved SCDHEC's request to use the “adopt-by-reference” delegation mechanism for implementation and enforcement of the NSPS program in South Carolina on March 27, 2001. See 66 FR 16606.

On September 23, 2021, the EPA received a letter from SCDHEC “requesting to receive automatic delegation as the delegation mechanism for 40 CFR part 60, Standards of Performance for New Stationary Sources (NSPS).” SCDHEC's letter further explained that this updated delegation method would “replace South Carolina's current NSPS delegation mechanism of adopt-by-reference.”

After a thorough review of the request, the Regional Administrator has determined that the laws, rules, and regulations for the State agency provide an adequate and effective procedure for implementation and enforcement of the NSPS. The EPA, therefore, hereby notifies the public that it has approved the automatic delegation mechanism for delegation of the NSPS source categories. This approval became effective on January 17, 2022. A copy of the EPA's letter approving SCDHEC's request, with enclosures, is available at Docket ID No. EPA-R04-OAR-2022-0408 at https://www.regulations.gov.

You may be potentially affected by this action if you are a federal, state, territory, or tribal agency who administers a certification program for pesticides applicators. You many also be potentially affected by this action if you are: a registrant of RUP products; a person who applies RUPs, including those under the direct supervision of a certified applicator; a person who relies upon the availability of RUPs; someone who hires a certified applicator to apply an RUP; a pesticide safety educator; or other person who provides pesticide safety training for pesticide applicator certification or recertification. 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:

• Agricultural Establishments (Crop Production) (NAICS code 111);

• Nursery and Tree Production (NAICS code 111421);

• Agricultural Pest Control and Pesticide Handling on Farms (NAICS code 115112);

• Crop Advisors (NAICS codes 115112, 541690, 541712);

• Agricultural (Animal) Pest Control (Livestock Spraying) (NAICS code 115210);

• Forestry Pest Control (NAICS code 115310);

• Wood Preservation Pest Control (NAICS code 321114);

• Pesticide Registrants (NAICS code 325320);

• Pesticide Dealers (NAICS codes 424690, 424910, 444220);

• Industrial, Institutional, Structural & Health Related Pest Control (NAICS code 561710);

• Ornamental & Turf, Rights-of-Way Pest Control (NAICS code 561730);

• Environmental Protection Program Administrators (NAICS code 924110); and

• Governmental Pest Control Programs (NAICS code 926140).

If you have any questions regarding the applicability of this action to a particular entity, consult the technical person listed under FOR FURTHER INFORMATION CONTACT .

This action is issued under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136-136y, particularly sections 136a(d), 136i, and 136w.

This action extends the expiration date for existing certification plans at 40 CFR 171.5(c) from November 4, 2022, to November 4, 2023. No other changes to the certification standards and requirements specified in 40 CFR part 171 are being made in this rulemaking.

Without the deadline extension, federal, state, territory, and tribal certification programs will expire if their revised certification plans are not approved by the recently modified regulatory deadline of November 4, 2022 (Ref. 1). Applicators formerly certified under such expired plans will no longer be allowed to use RUPs. While all initial draft plans have been reviewed and returned to the federal, state, territory, and tribal agencies (certifying authorities) for further revision, the recent extension of eight months (which extended the original deadline of March 4, 2022, to November 4, 2022) is not sufficient time for all certifying authorities to respond to EPA comments and to complete the approval process. Additional time is needed for EPA to work closely with the certifying authorities whose plans are still pending approval to assure that their proposed certification plan modifications will meet current federal standards.

As of July 8, 2022, EPA has approved 7 out of 68 revised certification plans and estimates that approximately half of the plans should be approved before November 2022. Although significant progress has been and continues to be made in the development of revised plans and EPA's subsequent reviews and approvals, COVID-19 resource constraints early in the review process had impacted the time certifying authorities have had to respond to EPA's comments and the Agency's ability to work with certifying authorities to assure that EPA can approve their plans by the regulatory deadline, thereby causing delays in reviews, revisions, and approvals. EPA has assessed the progress and pace of final revisions and approvals and expects the average certification plan approval process to be completed approximately a year after certifying authorities have received feedback from EPA, though this could vary depending upon individual circumstances as indicated in the responses to the public comments in Unit III. Given these assessments, EPA anticipates that at least 30 out of 68 plans might not be approved by the November 2022 deadline due in part to receiving feedback from EPA later than previously expected or due to complex issues that still need to be addressed. The plans most at risk of missing the November 2022 interim final rule (IFR) deadline account for approximately 39% of commercial applicators and 51% of private applicators, or about 45% of all currently certified applicators in the U.S. To avoid disruptions to a significant portion of the country, further collaboration is still needed between EPA and the remaining certifying authorities to finalize and approve all plans. EPA has been and will continue working expeditiously toward approving and supporting the implementation of plans that meet the current federal standards and has been providing periodic notifications to the public in the Federal Register and on EPA's website when those approvals have occurred. EPA intends to maintain this level of transparency as it works toward finalizing the remaining plans and aims to complete this process as quickly as possible. The public may access the most current information about the Agency's progress at https://www.epa.gov/pesticide-worker-safety/certification-standards-pesticide-applicators (Ref. 2).

EPA finds that an additional one-year extension of the deadline is needed to assure that applicators certified under a plan that would otherwise expire will continue to be authorized to use RUPs without interruption and to provide the remaining certifying authorities with plans pending approval with adequate time to provide responses to EPA comments on their plans. The extension will also provide additional time for EPA to work more closely with the certifying authorities to address any remaining feedback and ensure their plans meet the updated federal standards at 40 CFR part 171. EPA believes that the additional year will provide enough time to complete rolling approval of all certification plans, while also providing enough time to assess the individual-based needs of the remaining state, territory, tribal and federal plans up to the new regulatory deadline.

Incremental impacts of the extension to the regulatory deadline are generally positive, because the extension provides certifying authorities and EPA with more time to ensure that all modified plans meeting the minimum federal requirements are in place, while failure to extend the regulatory deadline would likely have significant adverse impacts on the certifying authorities, the economy, public health, and the environment where plans may expire without the extension (see discussion in Unit II.B.).

The 2017 Certification of Pesticide Applicators Rule (2017 CPA Rule) (Ref. 3) established the standards for certifying RUP applicators and also set a deadline with specific consequences if a certification plan were to expire. Therefore, EPA relies on information from the 2017 CPA Rule to assess the incremental economic impacts of this proposed rule to extend the recently modified deadline of November 4, 2022 (Ref. 1), to November 4, 2023. The impacts of the extension are that the implementation costs borne by the certifying authorities will be expended over an additional period of time and some of the costs to commercial and private applicators may be delayed. Some of the benefits of the rule ( e.g., reduction in acute illnesses from pesticide poisoning) are postponed as the implementation of some plans may be delayed while EPA works with the remaining certifying authorities toward approval of their revised certification plans.

1. Cost to certifying authorities. The 2017 CPA Rule provided a compliance period for certifying authorities to develop, obtain approval, and implement any new procedures, regulations, or statutes to meet the new federal standards. The 2017 CPA Rule further provided that existing plans could remain in effect until March 4, 2022, which was recently extended to November 4, 2022 (Ref. 1), only to the extent specified in EPA's approval of a modified certification plan; EPA did not explicitly set a date for full implementation of the new programs. Generally, certifying authorities can begin implementing revisions to their programs when they are approved by EPA; however, depending on individual state, territory, or tribal procedural requirements and existing programmatic infrastructure, portions of revised certification programs may be and, in some cases, already are being implemented in support of the 2017 CPA Rule requirements. All certifying authorities submitted their draft revised certification plans to EPA by the March 2020 submission deadline established in the 2017 CPA Rule. Shortly after the March 2020 deadline, the COVID-19 public health emergency disrupted the expected schedule of the EPA's review and approval of the draft plans. EPA and certifying authorities had to temporarily divert their resources to address pandemic-related issues, resulting in delays of revised plan reviews, approvals, and implementation than was originally anticipated. All draft plans have since undergone a detailed review at EPA and have been returned back to the certifying authorities for responses, with some having been approved by EPA. Thus, only part of the cost to certifying authorities estimated in the 2017 CPA Rule has presently been incurred and some of the cost will be expended during the additional extension period for those plans awaiting approval by EPA. Therefore, this rule is not expected to significantly change the costs to certifying authorities estimated in the 2017 Economic Analysis (EA) (Ref. 4).

2. Cost to certified applicators. The other sectors affected by the 2017 CPA Rule ( e.g., commercial and private applicators) do not incur any costs until revised certification plans take effect. Once the revised plans take effect, the 2017 EA estimated that commercial applicators and private applicators would incur annualized costs of $16.2 million and $8.6 million, respectively, to meet the new certification standards. EPA expects that around half of the plans might not be approved by November 2022, so some of these costs could be delayed as the remaining plans are approved and implemented over a longer period of time. Not all costs to certified applicators will be delayed, as a number of plans have or will soon be approved by EPA. Moreover, some certifying authorities have already begun work toward implementing their plans or will be able to start implementing changes conforming to the 2017 CPA Rule before their plan's approval.

3. Potentially delayed benefits of the 2017 CPA Rule. The delay in the approval of revised certification plans may also delay some benefits that would have otherwise accrued if certification plans were approved and implemented by the deadline established in the 2017 CPA Rule, as assessed in the 2017 EA. In 2017, EPA estimated that implementing the new federal certification requirements would reduce acute illness caused by exposure to RUPs, based on an analysis of pesticide incidents assuming that about 20% of poisonings are reported (a plausible estimate based on the available literature used for the 2017 EA regarding occupational injuries or chemical poisoning incidents). Incidents may result in harms to applicators, persons in the vicinity, and the environment. Reported incidents analyzed in the 2017 EA most commonly cited exposure to the applicator or farmworkers in adjacent areas. Based on avoided medical costs and lost wages, the annualized benefits of the rule were estimated to be between $51.1 and $94.4 million. In addition, EPA expected that improved training would also reduce chronic illness among applicators from repeated RUP exposure and would benefit the public from better protections from RUP exposure when occupying treated buildings or outdoor spaces, consuming treated food products, and reducing the impact on non-target plants and animals. To the extent that this rule delays implementation of the 2017 CPA Rule, it will delay accrual of some of those benefits, but only partially as a number of plans have been approved and are currently being implemented.

Not all the benefits of certification plan revisions will be delayed for a period of time up to November 4, 2023, however, since some programs have been approved and begun implementation or will be able to start implementing changes sooner than the new expiration date due as they approach approval. Certifying authorities can begin implementing their revisions to their programs as soon as they are approved by EPA, and many have begun that work. Since the most recent extension, EPA plan approvals have begun, with 7 certification plans having been approved as of July 8, 2022, and more will continue to be approved on a rolling basis. In some jurisdictions, portions of the 2017 CPA Rule revised certification requirements, such as imposing minimum age requirements and updating manuals and exam administration procedures, are already being implemented, resulting in a number of the benefits of the 2017 CPA Rule already being realized in advance of full plan approvals. Additionally, some certifying authorities were forced to make changes to their existing certification programs to accommodate COVID-19 protocols, all of which were required to meet or exceed the new requirements and standards established in the 2017 CPA Rule. While the new extension will run until November 2023, EPA anticipates approving plans on a rolling basis to conclude its approval process as soon as possible.

The impact of plans expiring absent EPA's approval of modified plans has far-reaching implications across many business sectors, including but not limited to the agricultural sector, importation and exportation business, and structural pest control ( e.g., termite control), and could potentially impact all communities and populations throughout the U.S. in various ways as discussed in Unit I.E.4. In addition to the potential delay of benefits that would result from this extension, EPA and certifying authorities have already invested significant resources in the preparation and review of plan modification that would fully implement the 2017 CPA Rule. It is EPA's considered judgement that the sunk cost of these investments, taken together with the significant costs of not extending the deadline for the remaining plans to be completed as discussed in Unit I.E.4., outweigh the delayed benefits in those jurisdictions. EPA has approved 7 certification plans to as of July 8, 2022, with more to follow shortly after, and EPA continues to work expeditiously with certifying authorities to review and approve the remaining plans on a rolling basis. EPA's ongoing collaboration with the certifying authorities has and will continue to result in modified plans that are protective of the environment and human health, including the health of certified pesticide applicators and those under their direct supervision, and will ensure that certified applicators are trained to prevent bystander and worker exposures as contemplated in the 2017 CPA Rule.

4. Costs of not extending the deadline. If the existing regulatory deadline is not extended further, it is likely that EPA will be unable to approve some of the state, territory, tribal, and federal agency certification plans that may still need additional work and/or coordination beyond the recently revised November 2022 deadline, resulting in expiration of these plans. EPA would have to take responsibility for administering certification programs for a portion of the country where plans had expired. A gap in coverage would likely exist between when these certification plans expire and when EPA could fully implement EPA-administered certification programs, resulting in RUPs being unavailable for use in those places during the 2023 growing season and potentially through the end of 2023 or longer. It is also unlikely that EPA's certification programs would offer the same availability and convenience as those offered by state, territorial, and tribal certifying authorities, so some applicators could face higher costs ( e.g., due to time commitment changes, new travel expenses to attend trainings, frequency of access, etc.) or be unable to obtain certification to apply RUPs. Once the EPA-administered certification plans are in place, they may, in some cases be less protective than state plans would be, as many state plans include requirements that are more protective than the EPA minimum requirements. The benefits of these more protective state requirements will be lost if the deadline is not extended and EPA takes over parts of the country's certification programs.

Furthermore, the expiration of certification plans could lead to confusion and potential enforcement issues when certifications that were formerly valid suddenly expire. It is also unlikely that EPA's certification programs could offer the depth of specialization found in many State, territorial and tribal certifying programs, which may be tailored to the particular pest control and human health needs commonly found in these localities. Thus, applicators certified under EPA programs would only be assessed for competency at the minimum federal standards and may not receive the specialized training that state, territorial, and tribal certifying authorities often provide. In addition, many states require professional applicators to be trained and licensed to apply general use pesticides and it is unclear to what extent states would be able to support those programs if they were to lose authority to certify RUP applicators because in some cases, both programs are intertwined.

Additionally, EPA would be compelled to expend time and resources in establishing the infrastructure to administer these certification programs, which would further delay coordination with certifying authorities whose plans were either approved and would be in the process of being implemented or are awaiting approval. This is likely to cause significant disruption for agricultural, commercial, and governmental users of RUPs, and could have consequences for pest control in a broad variety of areas, including but not limited to the control of public health pests ( e.g., mosquito control programs), pests that impact agriculture and livestock operations, structural pests ( e.g., termite control), pests that threaten state and national forests, and pests in containerized cargo. Applicators who use RUPs and are licensed under affected programs would likely lose work and income as a result.

On December 20, 2021, EPA issued an IFR that extended the original expiration date from March 4, 2022, to November 4, 2022 (Ref. 1). Unit II. of the IFR's preamble provides a summary of the 2017 CPA Rule and related background, as well as a robust discussion of the various circumstances that prompted the extension and the rationale the Agency cited for issuing the IFR.

On February 7, 2022, EPA proposed to extend the November 4, 2022 deadline up to but not longer than November 4, 2024 (Ref. 5). EPA proposed this additional extension because the Agency recognized that some certifying authorities and EPA would potentially need more time to collaborate on and address issues raised during review of the plans, and the Agency did not have enough information to adequately assess how much additional time would be needed to complete this process at the time the proposal was published. EPA expressly requested public comment on the need for and appropriate length of a longer extension. EPA has taken these public comments, which are addressed further in Unit III., into consideration in concert with the overall status of the plan approval process to date.

An additional extension of the expiration date for existing certification plans is needed to ensure that any remaining federal, state, territory, and tribal agencies waiting on certification plan approval have sufficient time to revise their certification plans in response to EPA's feedback on their draft certification plans. Absent an extension of this deadline, it is likely that a number of State, territory, and tribal agency certification programs will terminate, causing severe disruption for agricultural, commercial, and governmental users of RUPs. Failure to extend the regulatory deadline, and the resulting expiration of many certification programs, would significantly limit access to certification, thereby limiting access to RUPs that are necessary for various industries that rely upon pest control.

If EPA does not act to extend the regulatory deadline, many existing certification plans that remain in effect pending EPA's review of submitted certification plan modifications would expire on November 4, 2022, in which case FIFRA (7 U.S.C. 136i(a)) requires that EPA provide RUP applicator certification programs in states (including territories) where a state certification plan is not approved. If EPA had to take on the burden of administering certification programs for much of the country, it would draw resources away from concluding the Agency's approval process for the remaining plans and the Agency's ability to support certifying authorities with implementation of the certification plans that are approved before the November 2022 deadline. In addition, it would take significant time and resources to set up the infrastructure for such federal certification programs and to train, test, and certify applicators, which would likely result in RUP use being curtailed in affected states. It is unlikely that EPA would be able to establish these federal certification programs before the start of the 2023 growing season, which would have potentially devastating impacts on the agricultural sector in the parts of the country without approved plans. Moreover, once EPA-administered state certification programs were established, it is unlikely that they would operate at the same capacity as existing state programs, but rather, would provide fewer and less localized opportunities for applicators to satisfy certification requirements. As a result, significant impacts are expected on the pest control industry in jurisdictions without an approved plan, as existing certifications will no longer be valid and will need to be replaced with federal certifications, likely creating economic and public health ramifications in a wide range of sectors such as agricultural commodity production, public health pest control, and industrial, institutional, and structural pest control. RUP access in this scenario would be minimal for most, if not all, of the 2023 growing season, and significant disruptions could extend even further. This action would ensure that any remaining work can be completed with minimal impacts.

Two 30-day public comment periods were held in relation to extending the expiration date of existing plans. The first comment period closed on January 20, 2022, which were in response to the IFR extending the original expiration date for existing plans from March 4, 2022, to November 4, 2022 (Ref. 1). The second public comment period closed on March 9, 2022, which addressed the NPRM to further extend the expiration date up to but not longer than an additional two years, from November 4, 2022, to November 4, 2024 (Ref. 5). Between the two public comment periods, EPA received 22 submissions to the docket, comprising of 20 different commenters. Commenters included members of the public, state pesticide regulatory agencies and associations, an industry stakeholder, and farmworker advocacy organizations. A summary of and EPA's responses to the comments both in support of and in opposition to the proposed two-year extension are addressed in Units III.A. and B., respectively.

a. Summary of comments. EPA received 12 general comments from members of the public, 11 of which provided comments that expressed overall support of EPA's proposal to extend the deadline up to two years, while one other provided comments not specific to this action. The comments submitted acknowledged the challenges faced by many during the COVID-19 public health emergency, and the impacts it has had on both certifying authorities and EPA's ability to review, respond, and approve certification plans. Some of these commenters stated that extensive and thorough review is needed to ensure public safety and to minimize any risks, and that these reviews should not be rushed through the process. Some of the commenters also referenced EPA's assessment in the NPRM on the potential impacts across the various sectors of the pest control industry, agriculture, and the public overall should existing plans expire without an approved plan in place, and that two years to complete these reviews should be enough time to complete reviews while avoiding disruptions throughout the country.

b. EPA response. EPA appreciates the commenters' general support of the proposed rule to extend the deadline for amended certification plans to be approved by the Agency. EPA agrees with the commenters that additional time is needed to ensure that all certification plans are thoroughly reviewed and meet or exceed the updated federal standards for the certification of RUP applicators. While EPA initially proposed an extension of up to but not longer than two years, in light of other comments received in response to the NPRM and the progress the Agency has made on approving plans to date, EPA has determined that an extension of one additional year, to November 4, 2023, should be sufficient time to conclude its approval process for all certification plans submitted to the Agency.

2. Support for an Extension of Two years From State Lead Agencies (SLAs) and Industry Stakeholders

a. Summary of comments. EPA received one comment from an industry stakeholder, four comments from SLAs, and two comments from the Association of American Pesticide Control Officials (AAPCO). In general, these commenters expressed support for an extension of two years to November 4, 2024. Their support for a two-year extension revolved around the need to maintain continuity for pesticide applicators and expressed general concerns on both the economic and environmental aspects of plans expiring if all are not approved by the revised expiration date established in the IFR. More specific comments and EPA's responses are provided in the following sections.

i. The IFR extension to November 4, 2022, is insufficient. AAPCO and the three SLAs who submitted comments to EPA all expressed support for EPA's IFR extending the deadline to November 4, 2022, given the pressures that COVID-19 had on completing EPA reviews and approvals and the limited amount of time the certifying authorities had to respond to EPA's feedback leading up to the original deadline of March 4, 2022. However, all expressed concern that the additional eight months provided in the IFR would not be enough time for all certifying authorities to review and respond to EPA's input and for EPA to approve them before the existing plans are set to expire.

The commenters noted that slightly more than half of the plans submitted to EPA at the time of the IFR publication had been returned to the certifying authorities, and that the remaining would likely not be returned to the certifying authorities until February 2022 according to the IFR assessments. In their submitted comments, AAPCO reported that in a survey conducted of its membership that concluded on February 25, 2022, some detailed reviews took EPA 17 to 22 or more months to return since the certifying authorities first submitted their plans to EPA, with four certifying authorities indicating they had not yet received their detailed review comments prior to the conclusion of their survey. As of February 25, 2022, approximately six certifying authorities indicated they had returned their revisions for approval, and that no certifying authority had yet received approval from EPA. Based on the time it has taken to complete the detailed review of the plans and to revise plans in response to EPA's reviews, the commenters felt that the additional eight months in the IFR did not seem adequate for EPA to complete the final reviews and approval processes for all of the revised plans. The commenters acknowledged that extensive review is necessary to ensure revised plans meet the requirements of the 2017 CPA Rule, and that the level of detail and the length of time until completion of EPA's review and approval ensures that revised plans meet the federal requirements and provide the necessary protections to pesticides applicators, those under their supervision, and bystanders. The commenters also recognized the impacts COVID-19 had on EPA's ability to complete the review and approvals by the original deadline and believe the impacts will potentially impacting conclusion of reviews leading up to the revised IFR deadline.

Given that EPA needed more time to complete its reviews, the SLA commenters requested that EPA acknowledge the impacts of COVID-19 on their programs and resources and to provide the same time allowances the Agency took to review the plans so that certifying authorities can appropriately respond to the extensive comments and ultimately implement the final approved plans. Specifically, commenters cited the challenges certifying authorities have faced attempting to overhaul their certification plans, such as the complexities and administrative hurdles it faces such as on-going state-level legislative factors, and these particular challenges must be considered in the review and approval process. The commenters did not believe that all certifying authorities, especially those who did not receive EPA input until February 2022, could complete these tasks by the November 2022 deadline, and that the certifying authorities that received their plans later should be given an equitable amount of time to respond to comments.

ii. Requests for a two-year extension to November 4, 2024. AAPCO, the SLAs, and the industry stakeholder all recommended that EPA extend the deadline for two years to November 4, 2024. Citing the delays that were discussed in comments in Unit III.A.2.b., commenters stated that while they are committed to implementing the changes under the 2017 CPA Rule, it is conceivable that an additional round of review to verify that any remaining issues have been addressed by the certifying authority could push the plan approval process beyond the IFR expiration date of November 4, 2022. Given the complexity of issues across the states, differences in legislative schedules and bills and administrative requirements that impacts state licensing programs, the commenters felt that these additional considerations warrant a further extension of two years to avoid potential negative impacts to farmers, ranchers, foresters, structural pest control professionals, and other industries and the public.

b. EPA response. EPA agrees with the commenters that additional time is needed to ensure that all certification plans are thoroughly reviewed and meet or exceed the updated federal standards for the certification of RUP applicators. EPA also agrees with the commenters that certifying authorities who received their plans late should be given adequate time to review and respond to EPA's comments and acknowledges that there continues to be a need for EPA and some of the certifying authorities to collaborate on completing their plans. EPA agrees with the commenters that an additional extension ensures continual protection of pesticide applicators, provides EPA and certifying authorities the time needed to continue to work together to realize approval of plans and ultimately successful implementation of the 2017 CPA Rule, and avoids unintended economic and environmental risks associated with lapsed certification plans in any jurisdiction without an approved certification program in place.

While EPA initially proposed an extension of up to but not longer than two years, in light of other comments received in response to the NPRM and the progress the Agency has made on approving plans to date, EPA has determined that an extension of one additional year, to November 4, 2023, should be sufficient time to conclude its approval process for all certification plans submitted to the Agency. Based on the timelines from EPA's most recently approved plans and ongoing collaboration with the certifying authorities, EPA estimates that most revisions by the certifying authorities, and EPA's second pass review and collaboration with the certifying authorities to complete the approval process, will take on average a year after having been returned to the certifying authority. The certifying authorities most at risk of not having their plans approved are those who had received their plans late, as indicated in the comments submitted by AAPCO. Additionally, several other plans with more complex issues or administrative requirements are expected to take longer to approve than average and will likely also miss the November 2022 deadline. As noted in one of the state agency's comments, EPA recognizes that there may be unforeseen circumstances or additional complexities within each state, tribe, or territory's internal legislative or administrative processes that may result in the final revision and approval process taking additional time beyond EPA's average estimates. While EPA expects to approve around half of the plans before November 2022, the Agency has identified at least 30 out of 68 plans that are the most at risk of missing the IFR deadline of November 4, 2022. The Agency is confident, however, that all plan approvals can be concluded before the new deadline of November 4, 2023.

EPA received three comments in opposition to the extension from two groups, which included a group of farmworker advocacy organizations who provided joint comments on both the IFR and NPRM, and a group of former regulators who provided comments on the NPRM. In summary, both commenters opposed the proposal to extend the existing deadline for an additional two years up to November 4, 2024, though each had different perspectives on appropriate approaches and length of potential extensions, which are addressed in the following sections.

a. Summary of comments. The farmworker advocacy commenters state that at the time EPA adopted the 2017 CPA Rule, the previously existing rule had not been meaningfully updated in approximately 40 years and were under-protective, and that the 2017 CPA Rule imposed stricter certification and training standards that were necessary to meet the FIFRA mandate to ensure that RUPs do not cause unreasonable adverse effects to applicators, workers, the public, or the environment. The commenters state that until all plans are updated and approved by EPA as consistent with 2017 CPA Rule, applicators, workers, their families, communities, and others will remain at heightened risk of harm from RUPs.

Among the changes made in the 2017 CPA Rule, the farmworker advocacy groups cited requirements that were particularly important to their organizations, members, and constituents, including: Increasing the minimum age of 18 to be certified as commercial or private applicator as well as performing work as a non-certified applicator under their direct supervision; The creation of new categories for those performing aerial pest control, soil fumigation, and non-soil fumigation to increase training content to avert drift during spray applications; and, The addition of training requirements for non-certified applicators who work under the direct supervision of a certified applicator to ensure they have frequent and adequate training of pesticides and pesticide use. The farmworker advocacy commenters felt that so long as certifying authorities implementing certification programs exclude some of the requirements in the 2017 CPA Rule, high rates of preventable acute and chronic illness will persist among RUP applicators and the broader public. The commenters also referenced PCUN v. Pruitt (Ref. 6) in which EPA lost a previous attempt at extending the 2017 CPA Rule's effective date. The commenters relied on the opinion for this case, which stated that if implementation of the 2017 CPA Rule were to be delayed, individuals will continue to be exposed to these dangers and will not benefit from the more stringent regulations provided by the revised regulations, as additional support for why an additional extension to the existing plans should not be finalized.

Commenters who opposed the additional two-year extension did not believe that EPA adequately explained why a two-year extension (from November 4, 2022, up to November 4, 2024) was necessary, and that it is difficult to understand the justification of extending the deadline to what amounts to a nearly three-year extension beyond the original deadline of March 4, 2022. Commenters urged that it would be helpful to have details on the status of EPA's review of all 68 submissions, and when the Agency estimates its reviews and approvals to completed, in order to understand the need for an additional extension to the deadline.

In the comments submitted jointly by farmworker advocacy organizations, the commenters expressed disappointment by the IFR extension and were not persuaded that there was a need for any extension of the deadline beyond November 4, 2022. The commenters stated that under the 2017 CPA Rule, the Agency had two full years since the March 2020 deadline for receiving states, territories, and tribes' draft updated certification plans to review those plans, work with the submitters as needed to revise them, and then approve compliant plans before the old, non-compliant plans expired. They also argue that while EPA points to COVID-19 to justify its IFR extension, the dangers farmworkers, agricultural workers, and non-certified applicators face from COVID-19 underscore why the new standards and training should go into effect without further delay, noting that agricultural workers are at greater risk from COVID-19 than the general public for a variety of reasons, including that they have had less access to vaccines, are often unable to miss work when they are sick, have limited ability to social distance, and often lack access to a supply of adequate masks. Moreover, they state that a disproportionate number of agricultural workers suffer from health problems, such as obesity and high blood pressure, which predispose them to a more serious course of COVID if they become infected. As a result, they argue that agricultural workers' exposures to certain pesticides can result in inflammation and other health effects that make them even more susceptible to getting COVID-19, and more likely to have serious effects if they do. The commenters expressed a concern that delayed implementation of the 2017 CPA Rule will increase agricultural workers' exposure to RUPs, thereby compromising their health and further jeopardizing their ability to avoid COVID-19 infection or recover quickly. The commenters also suggest that even if COVID-19 could justify an extension, the eight-month extension adopted in the IFR should be sufficient to make up for the lost time in the initial months of responding to the pandemic.

The farmworker advocacy groups go on to state that based on EPA's assessment and representation of the progress it has made in the NPRM, citing that all plans would be returned to the certifying authorities in February 2022, and that it appeared to be on track to meet the November 2022 deadline, that an additional two-year extension was unnecessary. The commenters stated that they understood that once the plans were returned to the certifying authorities, EPA's work would not be done because those certifying authorities will need to respond to EPA's comments and make revisions so that their certification plans are approvable, and that EPA will need to be a collaborator in this process, and then approve the plans once compliant. However, the commenters stated that if EPA treats this work as a priority, then they believe the extension EPA has already given itself in the IFR should be sufficient time to complete this process, especially given the significant progress that the Agency has already claimed had been made in the development of revised plans and EPA's subsequent reviews.

b. EPA response. EPA agrees with the commenters about the importance of the 2017 CPA Rule and the beneficial impacts that updated certification plans will provide to applicators, workers, the public, and the environment, and the Agency is prioritizing its efforts to ensure that its reviews and any subsequent revisions are thorough before approving the plans. These revisions were intended to reduce occupational pesticide exposure and the incidence of related illness among certified applicators, noncertified applicators working under their direct supervision, and agricultural workers, and to ensure that when used according to their labeling, RUPs do not cause unreasonable adverse effects to applicators, workers, the public, or the environment. Discussions with state regulatory partners and key stakeholders over many years, together with EPA's review of incident data, led EPA to make these important changes, and implementing these changes is a top priority for the Agency.

While EPA found that the 2017 CPA Rule changes were necessary to reduce occupational and bystander exposures and stands by the administrative record for that rule, the Agency finds that it is also necessary to take into account the economic, social, and environmental costs and benefits of the use of any pesticide. Though the impacts of potentially delayed benefits are an important consideration on any length of time EPA extends the expiration date of existing plans, this rulemaking must also take into consideration the potential economic, social, and human health impacts associated with the potential for any of the state, tribal, or territory programs to expire, and the potential impact that may have on business and industries to those who rely on their pest control services, including the general public. The Agency has discussed these concerns and issues more comprehensively in Unit I.E.

EPA notes that when it issued the NPRM, the Agency did not have enough information to assess the costs and impacts of any extension nor how much time would be needed to complete all reviews, and therefore, the Agency used a qualitative assessment with broad assumptions that all certifying authorities would need additional time beyond November 2022. However, the Agency stated that it intended to conclude all of its detailed reviews by February 2022 and to begin approving plans shortly after once they were returned to the certifying authorities. EPA also committed in the proposal to work expeditiously toward concluding this process to limit the potential impacts of delayed implementation, with the first plans being approved in March 2022. As of July 8, 2022, EPA has approved 7 plans and continues to make considerable progress toward approving plans that certifying authorities can begin to implement or work toward implementation immediately. EPA expects to approve approximately half of the certification plans by November 2022.

Based on the pace that EPA has established in working with certifying authorities on final plan revisions and ultimately approving certification plans since the promulgation of the IFR extension date, EPA estimates that a certification plan approval can take approximately a year or more after the certifying authority has received EPA's feedback and responded to those comments accordingly. This is largely dependent on when comments were returned to the certifying authority, the quantity and complexity of the feedback EPA provided to the certifying authority, and whether there are any other legislative or administrative processes and considerations within the jurisdiction that must be addressed before resubmission to EPA for approval. The certifying authorities who received EPA comments after October 2021 and those with more complex issues and administrative requirements are the most at risk of missing the IFR deadline of November 2022.

Because a substantial number of certifying authorities require additional time to complete this process, EPA still finds that a regulatory deadline extension is needed, though EPA has reconsidered the length of time it originally proposed. Based on the concerns expressed by farmworker advocacy organizations regarding delayed benefits and the countervailing concerns expressed by the certifying authorities about their ability to respond to EPA comments and to conclude the plan approval process before the IFR deadline, EPA believes that a one-year extension instead of the proposed two-year extension should provide adequate time to complete the plans that are expected to remain in the review and approval process after November 2022. EPA also discusses this decision in Unit III.B.3. regarding presented options to the Agency as an alternative to the proposal. EPA remains committed to concluding these reviews as soon as possible and keeping the Agency's website updated on its progress as they happen. Based on its progress, EPA anticipates remaining plans will be approved before the new extension date of November 4, 2023.

To maintain transparency in the progress of the certification plan approvals, EPA has established and maintains information on the current status of certification plan approvals on its website (Ref. 2). The status table on this web page is updated frequently with information as plans are returned back to the certifying authority for additional revision, whether revisions were resubmitted to the Agency, and when the Agency has approved plans. Additionally, EPA intends to formally provide batch Federal Register notices on a quarterly basis identifying the certification plans that have been approved and started the implementation phase.

a. Summary of comment. The farmworker advocacy commenters are concerned that EPA violated NEPA (42 U.S.C. 4321 et seq. ) by failing to consider the significant environmental and health impacts of, and alternatives to the Proposed Rule. They argue that extending the existing plans' expiration date by another two years constitutes a major federal action that has foreseeable environmental and public health consequences and thus required the Agency to comply with NEPA. They argue that the proposed rule is a major federal action that does not qualify for a categorical exclusion from NEPA compliance and will have a significantly adverse effect on the environment and public health. They argue that EPA's failure to consider, let alone disclose, these impacts and to take the needed hard look at “the direct, indirect, or cumulative” impacts of its proposed action is in direct violation of NEPA's purpose to ensure both the agency and public are aware of the potentially adverse effects of the agency action.

Moreover, the commenters argue that the two-year delay in implementing the 2017 CPA Rule constitutes official policy in that it will substantially alter EPA's initial action to ensure that the much-needed 2017 CPA Rule is implemented in a timely manner to provide needed protections for the use of the most dangerous pesticides. They state that EPA's own regulations acknowledges that RUPs cause unreasonable adverse effects on the environment even when applied in accordance with the currently prescribed uses, and that EPA found adoption of the 2017 CPA Rule necessary to ensure that RUPs do not cause unreasonable adverse effects to applicators, workers, the public, or the environment. The commenter also cites the previous Administration's attempt to delay the 2017 CPA Rule several times, which was stopped in court (Ref. 6). The commenters state that EPA cannot now propose such a lengthy delay absent considering the on-the-ground, adverse impacts to the environment and human health from allowing RUPs to be applied absent the protections guaranteed by the 2017 CPA Rule.

For these reasons, the commenter argues that EPA needed to take the requisite hard look at the foreseeable impacts of delaying this rule another two full years, and likewise to consider a reasonable range of alternatives. The commenter states that EPA did not even reference NEPA, let alone explain how, if at all, the two-year delay of the protections guaranteed by the 2017 CPA Rule, does not require NEPA analysis. Numerous cases, however, have held that when proposed regulations have foreseeable environmental consequences, the agency must complete the NEPA process by preparing an Environmental Assessment or EIS.

The commenter states that EPA needs to satisfy the dual requirements of NEPA to inform agency decision-makers of the environmental effects of proposed major federal actions and to ensure that relevant information is made available to the public. Delaying the 2017 CPA Rule's implementation by two years with no analysis of impacts or alternatives violates NEPA.

b. EPA response. While EPA thanks the commenter for their feedback, years of jurisprudence demonstrates that EPA actions under FIFRA are not subject to NEPA requirements under the NEPA Functional Equivalence Exemption. The Functional Equivalence Exemption first arose in Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973) (“ Portland Cement” ) which involved the promulgation of new source performance standards under section 111 of the Clean Air Act (CAA). Plaintiffs challenged the Agency's decision to promulgate the standards without preparing an environmental impact statement (EIS).

The Portland Cement court considered several arguments for why NEPA should not apply in this case and decided against granting EPA a broad exemption from NEPA compliance. Id. at 385. In holding that CAA section 111, properly construed, was functionally equivalent to a NEPA environmental impact statement, the court considered these factors: (1) CAA section 111 required that the Administrator accompany a proposed standard with a statement of reasons; (2) Said statement set forth the environmental considerations, pro and con which have been taken into account as required by the CAA; (3) The proposed rule provided notice and an opportunity for public comment; and (4) There was an opportunity for judicial review. Id. at 384-386. The court acknowledged that the rulemaking process provided a “workable balance” between some of the advantages and disadvantages of full application of NEPA. Id. at 386. The court was clear when it stated that “NEPA must be accorded full vitality as to non-environmental agencies.” Id. at 387.

The NEPA Functional Equivalence Test was first applied to a FIFRA action in Envtl. Defense Fund, Inc. v. EPA, 489 F.2d 1247 (D.C. Cir. 1973). In this case, several parties petitioned the Court for review of EPA's FIFRA order cancelling almost all registrations for use of DDT, in part on the ground that the order did not comply with NEPA requirements. On the NEPA claim, the court concluded that “where an agency is engaged primarily in an examination of environmental questions, where substantive and procedural standards ensure full and adequate consideration of environmental issues, then formal compliance with NEPA is not necessary, but functional compliance is sufficient.” EDF at 1257.

The court found that the rationale developed in Portland Cement applied in this case and that “an exemption from the strict letter of the NEPA requirements” was appropriate. EDF at 1256. The court considered that FIFRA requires that pesticides be deregistered if they will be injurious to man and his environment and that this standard placed “great emphasis on the quality of man's environment.” Id. Further, the court found that FIFRA's procedural standards provided the opportunity for thorough consideration of the environmental issues and provided for judicial review. Id. In this case, EPA held hearings, solicited public comment and considered a wide scope of environmental aspects. Id. The court found that the functional equivalent of a NEPA investigation was provided because “all of the five core NEPA issues were carefully considered: the environmental impact of the action, possible adverse environmental effects, possible alternatives, the relationship between long-and short-term uses and goals, and any irreversible commitments of resources—all received attention during the hearings and decision-making process.” Id.

In State of Wyo. v. Hathaway, 525 F.2d 66 (10th Cir. 1975) (“Hathaway”), another FIFRA case involving suspending the registration of certain pesticides without preparation of an EIS, the Tenth Circuit Court of Appeals based the NEPA exemption on broader grounds than those in Portland Cement. “At the time that NEPA was passed the EPA had not been organized. Furthermore, the substance of NEPA is such as to itself exempt EPA from the requirement of filing an impact statement. Its object is to develop in the other departments of the government a consciousness of environmental consequences. The impact statement is merely an implement devised by Congress to require government agencies to think about and weigh environmental factors before acting. Considered in this light, an organization like EPA whose regulatory activities are necessarily concerned with environmental consequences need not stop in the middle of its proceedings in order to issue a separate and distinct impact statement just to be issuing it. To so require would decrease environmental protection activity rather than increase it. If EPA fails to give ample environmental consideration to its orders, its failure in this regard can be corrected when the order is judicially reviewed.” Hathaway at 71-72.

Finally, in Merrell v. Thomas, 807 F.2d 776 (9th Cir. 1986) (“Merrell”), the only legal issue was whether EPA was required to comply with NEPA before it registered seven herbicides under FIFRA. The Ninth Circuit affirmed the district court decision that EPA did not need to comply with NEPA. Merrell at 776. It came to that conclusion after examining FIFRA's registration procedure, its registration standard, and the applicable review procedures. Id. The Ninth Circuit focused its analysis on the differences, rather than the similarities, of FIFRA and NEPA in reaching its decision.

The Ninth Circuit looked at the fact that EPA did not revise its regulations to require NEPA compliance and that Congress amended FIFRA several times in the 1970s and 1980s by adding environmental provisions and limited public participation procedures rather than mandating that EPA comply with NEPA. Id. at 778-780. The Ninth Circuit recognized that the FIFRA amendments reflected a compromise between environmentalists, farmers and manufacturers and that “(t)o apply NEPA to FIFRA's registration process would sabotage the delicate machinery that Congress designed to register new pesticides.” Id. at 779.

Here, it is clear the NEPA Functional Equivalence Doctrine exempts EPA's extension of the deadline for the expiration of current certification and training plans from NEPA compliance. Applying the Functional Equivalence Test factors: (1) The authority for the current extension of the deadline comes from FIFRA sections 6(d), 11 and 25, each of which set certain standards and procedural requirements for promulgation of actions; (2) Both the proposed and current final rule extending the deadline have taken into account environmental considerations, such as a reduction in incidents causing harm to the environment, costs and benefits, and alternative options; (3) The proposal accompanying this final rule provided an opportunity for public notice and comment and both the proposal and this final rule involve consultation with USDA as well as SAP; and finally (4) Upon finalization of this rule, there will be opportunity for judicial review. Moreover, the Hathaway and Merrell cases further demonstrate that EPA's extension of the deadline for expiration of current plans should not be subject to NEPA requirements.

In Merrell, the Ninth Circuit recognized Congress amended FIFRA several times in the 1970s and 1980s by adding environmental provisions and limited public participation procedures rather than mandating that EPA comply with NEPA, further demonstrating Congressional intent that EPA need not comply with NEPA in FIFRA registration actions. FIFRA section 25, which mandates the authority of the Administrator and sets requirements for rulemaking under FIFRA, was also amended several times since the establishment of NEPA, most recently in 1996. The fact that Congress chose not to amend Section 25 of FIFRA to include compliance with NEPA further illustrates Congress's intent that EPA need not comply with NEPA in promulgating regulations under FIFRA. Finally, in Hathaway, the Tenth Circuit found that the substance of NEPA is such as to itself exempt EPA from the requirement of filing an impact statement and that an organization like EPA whose regulatory activities are necessarily concerned with environmental consequences need not stop in the middle of its proceedings in order to issue a separate and distinct impact statement just to be issuing it. For these reasons, EPA's current rule extending the expiration deadline of current certification and training plans is exempt from compliance with NEPA.

a. Summary of comment. The comments from former regulators stated that it was unwise and unnecessary to extend the existing certification plans for all certifying entities for two additional years. In their view, they felt that nearly six years should ordinarily be more than sufficient to complete the revision and approval process, but they recognized the extraordinary pressures that the COVID-19 pandemic has caused and understood that some further time might be needed for some certifying entities to finish their work. However, the commenter was not convinced that two years was necessary to complete this work, particularly considering EPA's assessment in the NPRM that a substantial number of plans were expected to be approved by November 4, 2022. A major concern expressed was related to whether such an extension would reduce the sense of urgency to complete revisions and approvals if extended up to two years, as well whether it would reduce a sense of urgency to implement those changes. Instead of a two-year extension, the commenter offered several alternatives to consider.

i. Conditional extensions: The commenter recommended that EPA issue a final rule that gives itself the authority to grant legitimately needed extensions on a case-by-case basis. Under such authority, the Agency could carefully examine the status of its review of each certifying entity's submission and extend the expiration date of the entity's existing certification plan only for as long as necessary to allow submission and approval of a revised plan that meets the new requirements of EPA's 2017 CPA Rule amendments to 40 CFR part 171.

In the comment, they noted that neither the 2017 CPA Rule, the 2021 IFR, nor the 2022 NPRM contained any provision setting a deadline for implementation of new elements of the revised plans, and that according to EPA, a revised plan must set out the entity's proposed implementation schedule. The commenter understood that, once EPA approves a revised plan, a certifying entity will be bound by the implementation schedule in its newly approved certification plan to put the required changes into practice, and that, as those changes are made, they will supersede the existing certification plan.

The commenter recommended that any final extension rule should require a certifying authority to implement new elements of its certification plan as soon as possible, and in many cases that would be before EPA approves the full plan. Once the Agency has determined that a particular part of an entity's revised plan is acceptable, the commenter felt that there was no reason why the entity could not begin immediately to make it operational. The commenter also recommended that EPA require the entity to begin implementation of an element as soon as it is accepted by the agency. For example, the commenter believed that in most, if not all states, a certifying entity could quickly start to enhance the security around the administration of certification exams. Entities can also require photo-identification from test takers, and they can take other steps to minimize cheating. The quicker new elements become effective, the sooner the expected benefits of the 2017 CPA Rule will be realized.

ii. Incentivize certifying entities to complete the CPA plan approval process. Under the current and proposed rules, certifying entities do not have strong incentives to complete the certification plan approval process. The commenter suggested that the prospect that EPA will not approve a plan and will instead administer a federally run certification plan clearly provides some incentive, and that certifying entities and the users of RUPs would probably prefer not to have to deal with an EPA program. The commenter felt that the EPA program would almost certainly be less convenient in many ways, but, if EPA is willing to extend existing certification plans as long as the approval process continues, certifying entities may feel little worry about the threat of an EPA takeover of their CPA programs.

The commenter also stated that EPA could issue a final rule that gives certifying entities more compelling reasons to try to secure EPA approval of their plans as quickly as possible. For example, the commenter suggested that EPA's final rule could give itself authority to withhold or reduce FIFRA programmatic and enforcement grants from an entity if, in the agency's view, the entity is not making reasonable progress toward completion of the certification plan approval process. The commenter suggested that EPA could also consider other ways it could incentivize entities to move expeditiously to finish the approval process.

iii. Promulgate a rule that directly implements requirements of the 2017 CPA Rule. The commenter states that the 2017 CPA Rule establishes a series of very important requirements that a certifying entity must meet if it wishes to administer a certification plan, and that many of these requirements would directly affect the users of RUPs who wish to become certified. For example, EPA's 2017 CPA Rule prohibits an entity from issuing an applicator certification to anyone younger than 18 years old and requires that the entity prohibit anyone younger than 18 from using a RUP under the direct supervision of a certified applicator. In addition, the 2017 CPA Rule prohibits the application of a RUP by an uncertified individual under the direct supervision of a certified applicator unless the individual has received certain basic training. The 2017 CPA Rule also requires an entity to establish a renewal period of no longer than five years for applicator certifications. These requirements, as the commenter notes, are not self-executing. To apply to RUP users within its jurisdiction, a certifying authority must codify the requirements in statutes or regulations.

To ensure that CPA protections become realized, the commenter recommended an option that EPA promulgate a rule that makes them binding on RUP users, without depending on the actions of a certifying authority. The commenter suggested that EPA could use its authority under FIFRA section 3(d)(1)(C)(ii) to issue rules establishing additional “other regulatory restrictions” on pesticides classified for use only by certified applicators. The commenter stated that such a rule, at a minimum, should prohibit the use of a RUP product by any person who is younger than 18 and prohibit use by an uncertified individual who has not received the basic training specified in the 2017 CPA Rule. The commenter also suggested that EPA could consider a rule which provides that no applicator certification shall be valid for longer than five years; in effect, such a provision would mandate the periodic renewal of applicator certifications.

iv. Blanket extension of up to one-year. The commenter recognized that EPA may determine that recommendations in Unit III.B.3.a.i. through iii. should not be implemented in the final rule because the recommendations could arguably be deemed to not be a “logical outgrowth” of the NPRM. If the Agency were to make such a determination, the commenter encouraged the Agency to consider incorporating these recommendations into any future rulemaking that might address further extension of existing certification plans while EPA reviews continue. For example, if the Agency decides to grant a shorter, across-the-board extension than it had proposed, they acknowledge that there may still be a legitimate need for some additional case-by-case extensions. If EPA were to decide to conduct another rulemaking to grant such extensions, the commenter felt the recommendations that were not accepted could be addressed then.

Instead, the commenter suggested that if EPA decides not to finalize a rule to allow case-by-case extension decisions, then the Agency should only extend the deadline for existing certification plans as long as needed to review and approve a majority of certification plans. The commenter recommended that the extension issued by this rulemaking should be no longer than a year ( i.e., to no later than November 4, 2023). The shorter duration of the extension, they felt, would create a greater sense of urgency for certifying entities to complete their work to prepare acceptable plans.

The commenter's primary reason for limiting an extension to one year is to create a sense of urgency for completing the process and to allow EPA, only if necessary, to formulate and promulgate a second rule, which would take a more thoughtful and nuanced approach than the current rulemaking to granting additional extensions. The commenter suggested that if it appears that, at the end of any extension issued pursuant to this rulemaking, there are likely to be entities that still legitimately need additional time to complete the review and approval process, the commenter stated EPA could promulgate another rule granting additional extensions. But, rather than an automatic, across-the- board extension for everyone, the commenter recommended that such additional rules should provide the Agency with discretion to grant an entity an additional extension only for as long as it appears reasonably necessary. Thus, the commenter recommended that additional extensions should be granted on a case-by-case basis to entities, understanding that the length of time may vary from entity to entity. The commenter felt that not only could the duration of these extensions be tailored to each certifying authority's situation; but also, the approval of an extension could require, while the review continues, the certifying authority to implement all accepted plan elements as quickly as possible (rather than wait for all outstanding issues to be resolved). Moreover, the commenter felt that such a rule could give EPA the option to reduce the FIFRA enforcement and FIFRA programmatic grants awarded to an entity until EPA approves the entity's plan.

b. EPA response. EPA appreciates the commenter's feedback and recommendations for additional options other than EPA's proposal of extending the deadline up to but not longer than two years, to November 2024. At the time the NPRM published, EPA did not have enough information to determine an appropriate length of time for an additional extension, and as a result, proposed up to but not longer than two years. EPA's intent for the proposal was primarily to solicit information on an appropriate extension length while signaling EPA's desire to not go beyond two years in any extension it would consider. Due to the progress that has been made by EPA in concluding its reviews and approving revised certification plans and the feedback provided in public comments, EPA agrees with the commenter that it is now unnecessary to extend the deadline up to November 2024, though the Agency has determined that an extension is still needed. As of July 8, 2022, EPA has approved 7 certification plans and estimates that approximately half of all certification plans will be approved prior to November 4, 2022 (see Ref. 2 for current status information). While considerable progress has been made in the approval process, EPA estimates that approximately 30 certification plans are the most at risk of not meeting the deadline of November 4, 2022. Considering all of the options presented in the recommendations to EPA and the substantial number of plan approvals that remain, the Agency has determined that the best approach moving forward is to extend the deadline one year to November 4, 2023.

EPA believes that based on the current status of plan approvals and feedback received from stakeholders, the best option for moving for is an additional one-year extension, rather than the alternative options suggested by the commenters, including conditional approvals, incentivization, or direct implementation. However, since EPA expects to complete its approvals for approximately half of the plans by November 2022, EPA agrees that the proposed maximum extension of two years is no longer necessary. Based on the pace that EPA has established in working with certifying authorities on final plan revisions and ultimately approving certification plans since the promulgation of the IFR extension date, EPA estimates that a certification plan approval can take approximately a year after the certifying authority has received EPA's feedback and revised their plan accordingly. The Agency is confident that it can approve all remaining plans before November 4, 2023. However, the Agency notes that if the additional one-year extension turns out not to be sufficient to approve all remaining plans, the Agency may, at a later date, consider additional rulemaking and other options like conditional approval of plans. EPA emphasizes its confidence that all plans will be approved by November 2023 and that the Agency is not considering alternative options at this time.

Based on the public comments and EPA's assessment of the certification plan approval process to date, EPA is extending the deadline provided in 40 CFR 171.5(c) for amended certification plans to be approved without interruption of the existing certification plans for one year, from November 4, 2022, to November 4, 2023. This additional time is necessary to assure that the remaining certifying authorities who received their plans late in the process have enough time to present approvable certification plans, and for EPA to continue working closely with those state, territory, and tribal agencies on necessary modifications, and ultimately approve their certification plans. EPA anticipates that the remaining certification plans pending approval will be completed within six to nine months after November 2022, but the Agency has opted to extend the deadline by one full year in the event that unforeseen circumstances or any internal legislative or administrative issues need additional time to be resolved. EPA has been and will continue to issue notices of certification plan approvals periodically to the public in batched notices in the Federal Register and on EPA's website (Ref. 2) as they are approved.

Since approximately half of the certification plans are anticipated to be approved by November 2022, the Agency does not expect at this time to propose or issue an additional blanket extension of this expiration deadline for existing plans beyond November 4, 2023. The extension in this final rule should provide the necessary time for all remaining certifying authorities to respond to EPA comments and for EPA to review and approve those changes. In the unlikely event that a certification plan is at risk of not meeting the new deadline, EPA does plan to further assess all potential options, including those presented in Unit III.B.3., to determine the best approach moving forward.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Under FIFRA section 25, EPA has submitted a draft of the final rule to the Secretary of the Department of Agriculture (USDA), the FIFRA Scientific Advisory Panel (SAP), and the appropriate Congressional Committees. Since there were no science issues warranting review, the FIFRA SAP waived review of the final rule on July 25, 2022. USDA completed its review without comment on August 5, 2022.

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

This action is not a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011).

This action does not impose any new information collection activities or burden subject to OMB review and approval under the PRA, 44 U.S.C. 3501 et seq. Burden is defined in 5 CFR 1320.3(b). OMB has previously approved the information collection activities contained in the existing regulations and associated burden under OMB Control Numbers 2070-0029 (EPA ICR No. 0155) and 2070-0196 (EPA ICR No. 2499). An agency may not conduct or sponsor, and a person is not required to respond to a collection of information that requires OMB approval under PRA, unless it has been approved by OMB and displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in title 40 of the CFR, after appearing in the Federal Register , are listed in 40 CFR part 9, and included on the related collection instrument or form, if applicable.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern is any significant adverse economic impact on small entities, and the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities, because the rule relieves regulatory burden. The change to the expiration date in this rule will reduce potential impacts on all entities subject to the CPA regulations if their certifying authorities' plans were not approved in time, so there are no significant impacts to any small entities by issuing this rule. EPA has therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.

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

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not impose substantial direct compliance costs on tribal governments. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045, because it does not concern an environmental health risk or safety risk.

This is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy and has not otherwise been designated by the Administrator of the Office of Information and Regulatory Affairs as a significant energy action.

This action does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

In accordance with Executive Order 12898 (59 FR 7629, February 16, 1994), EPA finds that this action will not result in disproportionately high and adverse human health, environmental, climate-related, or other cumulative impacts on disadvantaged communities, as well as the accompanying economic challenges of such impacts during this administrative action to extend the expiration date. This extension will provide EPA and any remaining certifying authorities pending their plan approvals an opportunity to finalize the revised certification plans, ensuring that the increased protections identified in the 2017 CPA Rule are realized for all affected populations. EPA has been and will continue to work expeditiously with certification authorities to review and approve plans. This engagement will ensure the modified plans are appropriately protective of certified pesticide applicators and those under their direct supervision and will ensure that certified applicators are trained to prevent bystander and worker exposures.

This action is subject to the CRA, and 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).

Therefore, for the reasons set forth in the preamble, EPA amends 40 CFR part 171 as follows:

On August 31, 2021, we published in the Federal Register (86 FR 48649) a proposal to amend title 50 of the Code of Federal Regulations (CFR) at part 20. The proposal provided a background and overview of the migratory bird hunting regulations process and addressed the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.101 through 20.107, 20.109, and 20.110 of subpart K. Major steps in the 2022-23 regulatory cycle relating to open public meetings and Federal Register notifications were illustrated in the diagram at the end of the August 31, 2021, proposed rule. For this regulatory cycle, we combined the elements described in that diagram as “Supplemental Proposals” with the one described as “Proposed Season Frameworks.”

We provided the meeting dates and locations for the Service Regulations Committee (SRC) ( https://www.fws.gov/event/us-fish-and-wildlife-service-migratory-bird-regulations-committee-meeting ) and Flyway Council meetings ( https://www.fws.gov/partner/migratory-bird-program-administrative-flyways ) on Flyway calendars posted on our website. On September 28-29, 2021, we held open meetings with the Flyway Council Consultants, at which the participants reviewed information on the current status of migratory game birds and developed recommendations for the 2022-23 regulations for these species. The August 31, 2021, proposed rule provided detailed information on the proposed 2022-23 regulatory schedule and announced the September SRC meeting.

On February 2, 2022, we published in the Federal Register (87 FR 5946) the proposed frameworks for the 2022-23 season migratory bird hunting regulations. On July 15, 2022, we published in the Federal Register (87 FR 42598) the final frameworks for migratory game bird hunting regulations, from which State wildlife conservation agency officials selected seasons, hours, areas, and limits for hunting migratory birds during the 2022-23 season.

The final rule described here is the final in the series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations for the 2022-23 season and deals specifically with amending subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and limits for migratory game bird species. This final rule is the culmination of the annual rulemaking process allowing migratory game bird hunting, which started with the August 31, 2021, proposed rule. As discussed elsewhere in this document, we supplemented that proposal on February 2, 2022, and published final season frameworks on July 15, 2022, that provided the season selection criteria from which the States selected these seasons. This final rule sets the migratory game bird hunting seasons based on that input from the States. We previously addressed all comments in the July 15, 2022, Federal Register (87 FR 42598).

The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA (42 U.S.C. 4321 et seq. ) compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the Federal Register on May 31, 2013 (78 FR 32686), and our record of decision on July 26, 2013 (78 FR 45376). We also address NEPA compliance for waterfowl hunting frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2022-23,” with its corresponding March 2022 finding of no significant impact. The programmatic document, as well as the separate environmental assessment, are available on our website at https://www.fws.gov/birds/index.php or at https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), provides that the Secretary shall insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat. Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks (87 FR 42598, July 15, 2022) reflect any such modifications. The biological opinion is available from https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

E.O. 12866 provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has reviewed this rule and has determined that this rule is significant because it will have an annual effect of $100 million or more on the economy.

E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.

An economic analysis was prepared for the 2022-23 season. This analysis was based on data from the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent year for which data are available (see discussion under Regulatory Flexibility Act, below). This analysis estimated consumer surplus for three alternatives for duck hunting (estimates for other species are not quantified due to lack of data). The alternatives are (1) issue restrictive regulations allowing fewer days than those issued during the 2021-22 season, (2) issue moderate regulations allowing more days than those in alternative 1, and (3) issue liberal regulations similar to the regulations in the 2021-22 season. For the 2022-23 season, we chose Alternative 3, with an estimated consumer surplus across all flyways of $329 million. We also chose alternative 3 for the 2009-10 through 2021-22 seasons. The 2022-23 analysis is part of the record for this rule and is available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). We analyzed the economic impacts of the annual hunting regulations on small business entities. This analysis is updated annually. The primary source of information about hunter expenditures for migratory game bird hunting is the National Survey, which is generally conducted at 5-year intervals. The 2022 analysis is based on the 2016 National Survey and the U.S. Department of Commerce's County Business Patterns, from which it is estimated that migratory bird hunters will spend approximately $2.2 billion at small businesses in 2022. The analysis is available from https://www.regulations.gov at Docket No. FWS-HQ-MB-2021-0057.

This final rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. For the reasons outlined above, this rule will have an annual effect on the economy of $100 million or more. However, because this rule establishes regulations for hunting seasons, we do not plan to defer the effective date under the exemption contained in 5 U.S.C. 808(1).

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has previously approved the information collection requirements associated with migratory bird surveys and the procedures for establishing annual migratory bird hunting seasons under the following OMB control numbers:

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 02/29/2024).

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 04/30/2023). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 10/31/2024).

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1502 et seq., that this rulemaking will not impose a cost of $100 million or more in any given year on local or State government or private entities. Therefore, this rule is not a “significant regulatory action” under the Unfunded Mandates Reform Act.

The Department, in promulgating this rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

In accordance with E.O. 12630, this rule, authorized by the Migratory Bird Treaty Act, does not have significant takings implications and does not affect any constitutionally protected property rights. This rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this rule will allow hunters to exercise otherwise unavailable privileges and, therefore, reduce restrictions on the use of private and public property.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. While this rule is a significant regulatory action under E.O. 12866, it is not expected to adversely affect energy supplies, distribution, or use. Therefore, this action is not a significant energy action and no statement of energy effects is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes and have determined that there are no effects on Indian trust resources. We solicited proposals for special migratory bird hunting regulations for certain Tribes on Federal Indian reservations, off-reservation trust lands, and ceded lands for the 2022-23 migratory bird hunting season in the August 31, 2021, proposed rule (86 FR 48649). The resulting proposals were contained in a separate proposed rule published on June 14, 2022 (87 FR 35942). By virtue of these actions, we have consulted with Tribes affected by this rule.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the Migratory Bird Treaty Act. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. Any State or Tribe may be more restrictive than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. These rules do not have a substantial direct effect on fiscal capacity, change the roles or responsibilities of Federal or State governments, or intrude on State policy or administration. Therefore, in accordance with E.O. 13132, these regulations do not have significant federalism effects and do not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

The August 31, 2021, proposed rulemaking (86 FR 48649) opened the public comment period for 2022-23 migratory game bird hunting regulations. We previously addressed all comments in a July 15, 2022, Federal Register publication (87 FR 42598).

The rulemaking process for migratory game bird hunting, by its nature, operates under a time constraint as seasons must be established each year or hunting seasons remain closed. However, we intend that the public be provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act (5 U.S.C. subchapter II) requirements. Thus, when the preliminary proposed rulemaking was published, we established what we concluded were the longest periods possible for public comment and the most opportunities for public involvement. We also provided notification of our participation in multiple Flyway Council meetings, opportunities for additional public review and comment on all Flyway Council proposals for regulatory change, and opportunities for additional public review during the SRC meeting. Therefore, we conclude that sufficient public notice and opportunity for involvement have been given to affected persons.

Further, States need sufficient time to communicate these season selections to their affected publics, and to establish and publicize the necessary regulations and procedures to implement these seasons. Thus, we find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and, therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-711), these regulations will take effect less than 30 days after publication. Accordingly, with each conservation agency having had an opportunity to participate in selecting the hunting seasons desired for its State or Territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

On August 4, 2022, Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, approved this action for publication. On August 12, 2022, Shannon Estenoz authorized the undersigned to sign this document electronically and submit it to the Office of the Federal Register for publication as an official document of the Department of the Interior.

For the reasons set out in the preamble, title 50, chapter I, subchapter B, part 20, subpart K of the Code of Federal Regulations is amended as follows: