The Agricultural Bioterrorism Protection Act of 2002, as amended (the Act, 7 U.S.C. 8401) provides for the regulation of certain biological agents and toxins that have the potential to pose a severe threat to animal and plant health, or to animal and plant products. The Animal and Plant Health Inspection Service (APHIS) has the primary responsibility for implementing the provisions of the Act within the U.S. Department of Agriculture. The Act also provides authority for APHIS to jointly regulate with the U.S. Department of Health & Human Services' Centers for Disease Control and Prevention (CDC) biological agents and toxins that have the potential to pose a serve threat to both public health and safety and animal health or animal products.

The regulations in 9 CFR part 121 (referred to below as the regulations) implement the provisions of the Act by setting forth the requirements for possession, use, and transfer of Veterinary Services select agents and toxins. In § 121.4 of the regulations, paragraph (e) sets forth a process by which an attenuated strain of a select agent or toxin modified to be less potent or toxic may be excluded from the requirements of the select agent and toxin regulations in part 121 based upon a determination by APHIS' Administrator that the attenuated strain or modified toxin does not pose a severe threat to public health and safety, animal health, or animal products. Under § 121.4(e)(2), if an excluded attenuated strain is subjected to any manipulation that restores or enhances its virulence, resulting in a select agent that poses a severe threat to animal health or animal products, the resulting select agent will be subject to the requirements of the regulations in part 121.

Venezuelan equine encephalitis virus (VEEV) is a member of the genus Alphavirus in the family Togaviridae, and is a small, enveloped virus with a genome consisting of a single strand of positive-sense RNA. VEEV is a mosquito-borne virus that causes encephalitis or encephalomyelitis in all equine species and humans. Because it can affect both animals and humans, VEEV is listed as an overlap select agent in § 121.4(b) of the regulations and therefore is subject to regulation by both APHIS and CDC. On February 7, 2003, VEEV strain TC-83 was excluded from the regulations because mice vaccinated subcutaneously with VEEV strain TC-83 rapidly developed immunity to subcutaneous or airborne challenge with virulent VEEV. 1 Based on these findings, APHIS, in collaboration with CDC, determined that the attenuated strain did not have the potential to pose a severe threat to animal health or animal products.

However, based on a recent review by subject matter experts, APHIS has determined that a modification to the excluded, attenuated VEEV vaccine strain TC-83 has been shown to increase its virulence and pathogenicity. An adenine (A) at position 3 in TC-83 has been shown to contribute to the attenuation of VEEV. In TC-83(A3G), the A has been changed to a guanine (G), which is found in all wild-type isolates of VEEV. The reversion of this nucleotide mutation to the wild-type nucleotide resulted in increased lethality in mice when compared to mice inoculated with the vaccine strain TC-83. Additional data determined that the pathogenic effects of TC-83(A3G) are more pronounced in young mice.

As a result, the modification of the excluded, attenuated VEEV vaccine strain TC-83 to create VEEV strain TC-83(A3G) restores the virus's virulence and has the potential to pose severe threat to animal health or animal products. Therefore, VEEV strain TC-83(A3G) is subject to the regulations in part 121.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1056; Project Identifier MCAI-2022-00895-P” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent Michael Schwetz, Aviation Safety Engineer, Boston ACO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2022-0134, dated July 6, 2022 (referred to after this as “the MCAI”), to address an unsafe condition for certain MTV-5, MTV-9, MTV-12, MTV-14, MTV-15, MTV-16, MTV-18, and MTV-27 variable pitch propellers, all models, having a serial number (S/N) identified in MT-Propeller Entwicklung GmbH Alert Service Bulletin (ASB) No. 30, Revision 7, dated June 23, 2022 (MT-Propeller ASB No. 30, Rev. 7); and MTV-5, MTV-9, MTV-11, MTV-12, MTV-14, MTV-15, MTV-16, MTV-17, MTV-18, MTV-20, and MTV-27 variable pitch propellers, any model, on which a propeller blade is installed, having an S/N identified in MT-Propeller ASB No. 30, Rev. 7. The MCAI states that in 2014, it was discovered that a batch of non-conforming propeller blade lag screws were manufactured with an improper surface finish, which results in reduced fatigue strength for these lag screws. Further investigation revealed that the non-conforming propeller blade lag screws were installed on the blades of propellers manufactured during the period of November 2013 to October 2014 and on certain propellers and propeller blades that were overhauled or repaired by MT-Propeller or an MT-Propeller approved Service Center during the same period. MT-Propeller published Service Bulletin No. 30, Original Issue, dated November 4, 2014, identifying the S/Ns of the affected propellers and propeller blades and specifying the replacement of the propeller blade lag screws with serviceable propeller blade lag screws. MT-Propeller later published MT-Propeller Entwicklung GmbH ASB No. 30, Revision 7, updating the S/Ns of the affected propellers and propeller blades. This condition, if not corrected, could lead to in-flight blade detachment, resulting in damage to the airplane and reduced control of the airplane. The FAA is issuing this AD to address the unsafe condition.

You may examine the MCAI in the AD docket at www.regulations.gov under Docket No. FAA-2022-1056.

The FAA reviewed MT-Propeller Entwicklung GmbH ASB No. 30, Revision 7, dated June 23, 2022. This ASB identifies the S/Ns of the affected propellers and propeller blades and specifies replacement of the propeller blade lag screw. This ASB is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

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

This AD requires the removal from service of any installed propeller blade lag screw with part number (P/N) A-983-C-85 and the replacement with a part eligible for installation.

The MCAI applies to certain MT-Propeller Entwicklung GmbH MTV-5, MTV-9, MTV-11, MTV-12, MTV-14, MTV-15, MTV-16, MTV-17, MTV-18, MTV-20, and MTV-27 variable pitch propellers, which are identified on the FAA type certificates as MTV-5-1-( ), MTV-9-( ), MTV-11-( ), MTV-12-( ), MTV-14-B, MTV-14-D, MTV-15-( ), MTV-16-( ), MTV-17-( ), MTV-18-( ), MTV-20-( ), and MTV-27-( ) propellers, respectively.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the improper surface finish on a propeller blade lag screw results in reduced fatigue strength of the propeller blade lag screw. Reduced fatigue strength could lead to in-flight blade detachment, damage to the airplane, and reduced control of the airplane, which is an immediate safety of flight problem. For turboprop engines, the propeller blade lag screw must be replaced within 120 days from the effective date of this AD or before exceeding 50 flight hours (FHs) from the effective date of this AD, whichever occurs first. For piston engines, the propeller blade lag screw must be replaced within 60 days from the effective date of this AD or before exceeding 25 FHs from the effective date of this AD, whichever occurs first. The compliance time for the required actions is shorter than the time necessary to allow for public comment and for the FAA to publish a final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

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

The FAA estimates that this AD affects 275 propellers installed on airplanes of U.S. registry.

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

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain CFM LEAP-1A23, LEAP-1A24, LEAP-1A24E1, LEAP-1A26, LEAP-1A26CJ, LEAP-1A26E1, LEAP-1A29, LEAP-1A29CJ, LEAP-1A30, LEAP-1A32, LEAP-1A33, LEAP-1A33B2, and LEAP-1A35A (LEAP-1A) model turbofan engines. The NPRM published in the Federal Register on March 21, 2022 (87 FR 15896). The NPRM was prompted by reports of two single-engine IFSDs on airplanes powered by LEAP-1A model turbofan engines, operating extensively in the Middle East and North Africa (MENA) region. A post-flight BSI of the HPT module revealed that the engine failures were due to cracks in the HPT rotor stage 1 blades. After investigation, the manufacturer determined that engines operating in the MENA region are susceptible to accelerated HPT rotor stage 1 blade deterioration and airfoil distress due to the build-up of dust. In the NPRM, the FAA proposed to require initial and repetitive BSIs of the HPT rotor stage 1 blades and HPT stator stage 1 nozzle set and, depending on the results of the inspections, additional BSIs at reduced intervals or replacement of the HPT rotor stage 1 blades or HPT stator stage 1 nozzle set. In the NPRM, the FAA proposed to require a BSI of the HPT rotor stage 1 blades and HPT stator stage 1 nozzle set installed on the sister engine of the same airplane if certain criteria are met. In the NPRM, the FAA also proposed to require sending the inspection results to CFM if any unserviceable finding is found. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from three commenters. The commenters were Air Line Pilots Association, International (ALPA), CFM, and an individual commenter. The following presents the comments received on the NPRM and the FAA's response to each comment.

ALPA expressed support for the AD as written.

An individual commenter stated that using a specific ground operation taxi system could provide an alternate means of compliance for this AD. The commenter reasoned that limiting engine operation during ground operations would increase the interval between inspections from 150 cycles to 450 cycles and from 300 cycles to 900 cycles. The commenter also stated that use of this ground operation taxi system would reduce costs on operators, result in fuel burn reduction, and reduce carbon emissions.

The FAA did not change this AD as a result of this comment. The compliance timing for the actions required by this AD are based on the accumulated number of takeoffs and flight cycles, not on engine operating hours. In addition, it has not been demonstrated that variation in operation of the engine on the ground and during taxi has any impact on the unsafe condition addressed by this AD.

CFM commented that revised service information, CFM Service Bulletin (SB) LEAP-1A-72-00-0461-01A-930A-D, Issue 003-00, dated July 13, 2022, has been published. CFM identified that this revised service information removes references to the HPT stator stage 1 nozzle set, adds an inspection credit for the engines for which the conditional inspection of the sister engine installed on the same airplane is applicable, updates the BSI guidance for the HPT stator stage 1 blades, and removes the requirement to share all videos and images with CFM.

In response to this comment, the FAA revised this AD to reference CFM SB LEAP-1A-72-00-0461-01A-930A-D, Issue 003-00, dated July 13, 2022. The FAA also removed all references to the HPT stator stage 1 nozzle set and associated SB paragraph references as proposed in the NPRM. The FAA has also added paragraph (i), Credit for Previous Actions, to this AD to provide credit for the initial BSI required by paragraph (g)(1)(i) or (2)(i) of this AD if the initial BSI was performed before the effective date of this AD using CFM SB LEAP-1A-72-00-0461-01A-930A-D, Issue 002-00, dated December 21, 2021.

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

The FAA reviewed CFM SB LEAP-1A-72-00-0461-01A-930A-D, Issue 003-00, dated July 13, 2022. This service information specifies procedures for performing a BSI of the HPT rotor stage 1 blades for LEAP-1A model turbofan engines operating in the MENA region, performing all applicable corrective actions, and reporting any unserviceable HPT rotor stage 1 blade findings to CFM.

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

The FAA considers this AD to be an interim action. The inspection reports that are required by this final rule will enable the manufacturer to obtain better insight into the nature, cause, and extent of the cracking, and eventually to develop final action to address the unsafe condition. Once final action has been identified, the FAA might consider additional rulemaking.

The FAA estimates that this AD affects 0 engines installed on airplanes of U.S. registry.

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

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

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8, 787-9, and 787-10 airplanes. The NPRM published in the Federal Register on April 14, 2022 (87 FR 22158). The NPRM was prompted by a report from Boeing that RRD discovered a design issue in the engine fuel feed system, which could result in fuel flow restrictions to both engines when ice that has accumulated in the airplane fuel feed system suddenly releases into the engines. In the NPRM, the FAA proposed to require revising the existing AFM to update the limitations on minimum fuel temperatures. The FAA is issuing this AD to address possible fuel flow restrictions to both engines, which could result in loss of dual engine thrust control and reduced controllability of the airplane.

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

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

The FAA considers this AD interim action. Boeing is currently working with RRD to develop updated electronic engine control (EEC) software, which will change the engine oil temperature amber line indicated in the engine indication and crew alerting system (EICAS). This change will ensure that, before takeoff, the engine oil temperature would be warm enough to operate the engine with cold fuel. The updated EEC software combined with the action required by this AD will address the unsafe condition identified in this AD. Once this software is developed, approved, and available, the FAA might consider additional rulemaking.

The FAA estimates that this AD affects 14 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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 removes the Class E airspace extending upward from 700 feet above the surface at Northwoods Airport, Watersmeet, MI, due to the cancellation of the instrument procedures at this airport, and the airspace is no longer being required.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 37252; June 22, 2022) for Docket No. FAA-2022-0766 to remove the Class E airspace at Watersmeet, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

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

This amendment to 14 CFR 71 removes the Class E airspace extending upward from 700 feet above the surface at Northwoods Airport, Watersmeet, MI.

This action is the result of the instrument procedures at this airport being cancelled and the decommissioning of the Watersmeet NDB, the airspace no longer being required.

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.

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

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 the 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, then 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 frame child carriers, codified in 16 CFR part 1230. The rule incorporated by reference ASTM F2549-14a, Standard Consumer Safety Specification for Frame Child Carriers, with no modifications. 80 FR 11121 (Mar. 2, 2015). At the time the Commission published the final rule, ASTM F2549-14a was the current version of the voluntary standard. Until now, the voluntary standard has not been revised since promulgation of the final rule.

On June 6, 2022, ASTM notified CPSC that it has revised the voluntary standard for frame child carriers, by approving ASTM F2549-22 on April 1, 2022. On June 16, 2022, the Commission published a notice of availability in the Federal Register regarding the revised voluntary standard and sought comments on the effect of the revisions on the safety of the standard for frame child carriers. 87 FR 36311 (Jun. 16, 2022). We did not receive any comments.

As discussed in section B. Revisions to ASTM F2549, based on CPSC staff's review of ASTM F2549-22, 1 the Commission will allow the revised voluntary standard to become the mandatory standard because it improves the safety of frame child carriers. 2 Accordingly, by operation of law under section 104(b)(4)(B) of the CPSIA, ASTM F2549-22 will become the mandatory consumer product safety standard for frame child carriers on December 3, 2022. 15 U.S.C. 2056a(b)(4)(B). This direct final rule updates 16 CFR part 1230 to incorporate by reference the revised voluntary standard, ASTM F2549-22.

The ASTM standard for frame child carriers includes performance requirements, test methods, and requirements for warning labels and instructional literature, to address hazards to children associated with frame child carriers. ASTM F2549-22 contains substantive revisions, as well as editorial, non-substantive revisions. These revisions consist of revising the load condition in the Dynamic Strength Test and Stability Test, increasing the applied torque in the Torque Test, replacing the test torso, harmonizing the warning label with the standard's scope, adding additional flammability requirements for fabric components of the product, and applying several minor language revisions. The Commission concludes that these changes collectively improve the safety of frame child carriers, and none of the changes has a material adverse effect on safety. Below is a detailed discussion of the substantive and non-substantive changes made to ASTM F2549-14a.

ASTM F2549-22 made the following substantive changes to ASTM F2549-14a:

1. In section 5.12, the revised standard adds flammability requirements for fabric components of the frame carrier, in addition to the existing flammability requirements for solid components of the frame carrier (as determined by 16 CFR 1500.3(c)(6)(vi)). The new requirements for fabric components of the frame carrier specify: “There shall be no Class 2 or 3 fabrics used in the construction of a frame child carrier when the fabrics are evaluated against the requirements of 16 CFR 1610.” Accordingly, the new requirements only permit the use of Class 1 fabrics, which have a lower flammability that is acceptable for use in clothing.

The regulation at 16 CFR part 1610 is an ignition test that measures the time it takes for a fabric sample to ignite when a flame is applied. Class 2 and Class 3 fabrics ignite in less time than Class 1 fabrics; therefore, they are more flammable. The revised standard only permits the use of Class 1 fabrics, which exhibit the longest time to ignite (and therefore, are the least flammable fabric class) and are rated for use in clothing. This change improves the safety of frame child carriers because it ensures that fabric components of the frame carrier meet the most stringent flammability requirements for fabrics.

2. The revised standard adds a requirement in section 5.12.3 under 5.12 Flammability of Frame Child Carriers that states, “Non-toy accessories that are sold with and intended to be attached to the product shall also meet the requirement of 5.12.” This change improves the safety of frame child carriers because it ensures that non-toy accessories, such as sunshades, hoods, and bibs meet the most stringent flammability requirements for solids and fabrics.

3. Figure 5 in the revised standard specifies a drawing of a rigid torso with dimensions, which replaces a generic photo of a typical torso that is used for training. The rigid test torso with dimensions aligns with the test torso specified in other standards for child carrier products (ASTM F2907-19—Standard Consumer Safety Specification for Sling Carriers, the EN 13209-1 Child care articles. Child carriers. Safety requirements and test methods Framed back carrier, and EN 13209-2 Child use and care articles—Baby carriers—Safety requirements and test methods—Part 2: Soft carrier). The new test torso is referenced in sections 7.2 Dynamic Strength Test and 7.3 Static Load Test.

The dynamic and static performance tests require attachment of the frame carrier to a test torso. However, the test results are determined by the magnitude and location of the force applied to the product in the static load and dynamic strength test, and the results are not affected by minor changes to the structure to which the product is attached. Therefore, the change to the test torso does not impact safety.

4. In the 2022 version of the standard, ASTM revised multiple elements pertaining to dynamic strength, which improve safety. In section 6.2 Dynamic Strength, the revised standard adds to the dynamic strength requirements an evaluation of the system that attaches the frame carrier to the user's torso, in addition to the existing evaluation of the system that retains the child occupant in the frame carrier.

The frame carrier's attachment system includes any straps or hardware that secure the frame carrier to the caregiver. The revised Dynamic Strength performance requirement now ensures that the frame carrier's attachment straps and buckles will not slip more than 1 inch after 90 cycles of up/down movement of the fully loaded frame carrier. This additional test improves the safety of frame child carriers because it ensures that all straps related to the proper retention and orientation of the occupant (including both those within the product and those between the product and the caregiver) will not loosen to the point that the child occupant can fall from the product.

In section 7.2 Dynamic Strength Test, sections 7.2.1 through 7.2.6 of the standard were revised. These changes consist of a new test torso and evaluating the attachment system as described above, adding weights to the external pockets, and modification of the test sequence.

Section 7.2.3 now states, “Pockets, pouches, and other carrying receptacles of the product shall be loaded with weight(s) up to the manufacturer's maximum recommended weight(s), in such a way that will create the most onerous test condition. The most onerous test condition may include no weight(s) or lower than maximum weight(s) in some receptacles.” Section 6.2 Dynamic Strength clarifies that “Seams of pockets, pouches, and other carrying receptacles are exempt from [the requirement prohibiting damage after the performance test]” because failure of these areas will not affect the retention and safety of the child occupant.

The revised standard modifies section 7.2.5 under 7.2 Dynamic Strength Test to provide for readjustment or re-tightening of all adjustable components, such as straps in the occupant retention system and attachments to the test torso after completion of a 90-cycle vibration test (which follows a 10-cycle test) and before the carrier is subjected to a 49,900-cycle vibration test. The test procedure in ASTM F2549-14a did not have the readjustment step before the 49,900-cycle vibration test.

As noted, the application of this test to attachment straps improves safety. With respect to the occupant retention straps, which were subjected to the Dynamic Strength Test under the 2014 standard, the change of readjusting straps after the 90-cycle test results in a potentially less stringent test. This is unlikely to affect the outcome of the test, however, because the test total of 50,000 cycles should fail any substandard strap, fastener, or frame component, regardless of the change. Because a looser adjustment strap for occupant retention is unlikely to affect the outcome of the test after 50,000 cycles of testing, and because the revised test conditions of an increased test load and evaluation of the attachment system are more stringent, the revision to 7.2 Dynamic Strength Test is an improvement in safety.

5. Section 7.1.1 Leg Openings Test —The following non-mandatory note was removed: “If the manufacturer does not provide instructions for seat height, adjust the seat so that it results in CAMI's chin resting right above the edge of the frame carrier.” This non-mandatory note was removed to avoid confusion potentially leading to the carrier not being tested under the most onerous condition.

In some product designs, the leg opening becomes larger as the seat is lowered. Therefore, lowering the seat in these designs can create the most onerous position for the Leg Openings Test. However, because this is an explanatory note, and not mandatory, and because there is no change in the requirements to test the product in the most onerous condition, there is no impact on safety.

6. The revised standard modifies sections 7.4.3 and 7.4.4 under 7.4 Stability Test to increase the test load from “at least 40 lb (18.1 kg)” to “40 lb (18.1 kg) or equal to the manufacturer's maximum recommended weight for the occupant, if greater.”

This change improves the safety of frame child carriers because it increases the test weight used in the stability test for some frame child carriers. Increasing the test weight increases the center of gravity height used in the stability test. As the center of gravity increases, the tested product is more likely to tip over and fail. Therefore, the change makes the stability test more stringent.

7. The revised standard modifies section 7.10.3 Torque Test in section 7.10 Removal of Protective Components Test to increase the applied torque from 2 lbf-in to 4 lbf-in. The torque is applied clockwise to any component that is graspable in a child's hand or teeth or if there is at least .04 inch gap between the component and its adjacent component.

This change improves the safety of frame child carriers. It increases the torque applied to components that may come loose when grasped by a child, which reduces the likelihood of a part coming loose and becoming accessible to the child.

8. The revised standard creates a new section 8.5 Warning Statements in section 8, Marking and Labeling, with the following guidelines:

○ Adds an explicit description of the fall hazard related to a child slipping through the leg opening of the frame carrier.

○ Increases recommended maximum child weight range from “40 lbs (or the maximum child weight recommended by the manufacturer, if less)” to “50 lbs (22.7 kg) (or the maximum weight recommended by the manufacturer, if less).” This change aligns the warning label with the scope of ASTM F2549, which states that a “frame carrier is intended for use with a child that is able to sit upright unassisted and weighs between 16 lb and 50 lb (7.3 kg and 22.7 kg).”

○ Adds a clarification that the maximum overall weight recommendation for the product includes the cargo in pockets/pouches in addition to the weight of the child occupant. The maximum overall weight statement shall immediately follow recommended occupant weight statement.

○ Adds a new Figure of an exemplar warning label that illustrates the guidelines specified in section 8.5.

These changes to the warnings and instructions improve the safety of frame child carriers because they harmonize the maximum weight stated in the warning label with the maximum weight stated in the standard's scope, and they clarify the fall hazard in the warning label. The scope of the 2009 version of the standard (ASTM F2549-09) included products that could carry children up to 40 pounds. When the standard was updated to include products that could carry children up to 50 pounds, in F2549-13, this warning label was not updated to reflect the change, and that issue persisted in the F259-14a version that is incorporated by reference in the Commission's rule. The 2022 version of ASTM F2549 remedies this, aligning the warning label with the updated 50-pound limit from 2013. In addition, this change adds a required warning label informing consumers of the product's maximum allowed weight (child + cargo), and thus, it is an improvement in safety.

The substantive changes made in ASTM F2549-22 are an improvement to the safety of frame child carriers. These changes introduce more stringent requirements or more stringent test conditions for flammability, leg hole openings, dynamic strength tests (to evaluate product durability and strap slippage), static stability tests, and torque test to evaluate graspable parts. Therefore, the Commission concludes that these changes improve the safety of frame child carriers.

ASTM F2549-22 makes several non-substantive changes to the standard as follows:

1. Section 5.5 Scissoring, Shearing, and Pinching, contains an Ad Hoc revision  3 that make the following changes ( italicized text is added text and [bracketed text] is deleted text) “Scissoring, shearing, or pinching that may cause injury [shall not be permissible ] exists when the edges of [any] the rigid parts admit a prove greater than 0.210 in. ([5.3] 5.33 mm) and less than 0.375 in. ([9.50] 9.53 mm) in diameter at any accessible point throughout the range of motion of such parts.” This portion of section 5.5 is not a performance requirement but rather explains how to identify a scissoring, shearing, or pinching hazard. Therefore, changing “shall not be permissible” to “exists” does not remove or change any general requirements, which are found in section 5. Additionally, the preceding text of section 5.5 still states that products “shall 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.” This preceding text ensures that all frame child carriers are evaluated for the scissoring, shearing, and pinching hazards. Therefore, this is a non-substantive change.

2. The section 5.8 Locking and Latching performance requirement is modified to exempt the frame child carrier's kickstand. Section 5.8 references section 7.8 Locking Device Test, where the locking device shall not unlock when a 10 lbf force is gradually applied in the direction tending to unlock it.

Kickstands are separately required to meet section 5.9 Unintentional folding performance requirement, which references section 7.9 Unintentional Folding Test. In the Unintentional Folding Test, the frame child carrier's seat is loaded with a 16-pound weight (or, if greater, the manufacturer's minimum recommended child weight), and the kickstand shall not fold when a 10 lbf force is gradually applied in the direction tending to fold it.

The Unintentional Folding Test referenced in the Unintentional Folding performance requirement is equivalent to the Locking Device Test referenced in the Locking and Latching performance requirement and better simulates the hazard loading condition of a frame child carrier's kickstand unintentionally folding. Therefore, this modification does not affect safety.

3. The revised standard adds a requirement to section 6.2 Dynamic Strength, which provides that the frame carrier “shall show no damage that will impair its function,” in addition to the existing requirement that the frame carrier “shall not create a hazardous condition, such as frame or fasteners breaking or disengaging or seams separating” after the dynamic strength tests have been completed. Improper function of the frame carrier is a potentially hazardous condition if it affects retention of the child occupant. Adding impaired functioning as an example of a hazardous condition does not impact safety because it does not change the primary requirement that prohibits the creation of a hazardous condition in the frame carrier after 50,000 cycles of testing.

4. The 2022 revision clarifies section 7.2.3 of the Dynamic Strength Test by changing “alternating vertical movement at amplitude of 4.7 inches and a frequency of 2 cycles/second (Hz)” to “alternating vertical sinusoidal movement through 4.75 inches at a frequency of 2 Hz.”

Originally, section 7.2.3 was intended to describe the vertical reciprocating movement of a frame carrier that moved up and down by 4.7 inches. Typically test labs, including CPSC, use a slider-crank linkage mechanism that converts the rotational motion from a motor shaft to a vertical reciprocating motion. The reciprocating vertical motion of the frame carrier follows the path of a sine wave.

The revision to the Dynamic Strength Test adds a better description of the vertical motion. Sinusoidal movement through 4.75 inches describes the vertical movement of the frame carrier in the shape of a sine curve as it raises and lowers by 4.75 inches. The revised wording better describes the vertical movement of the frame carrier during the existing test. Therefore, this is a non-substantive change.

5. Section 8.4. Warning Design for Product incorporates the ASTM Ad Hoc recommendations for the design and layout of warnings.

The Commission finds that all of the non-substantive changes made in ASTM F2549-22 regarding safety for frame child carriers do not impact safety because they are editorial in nature or modify a non-mandatory note that merely provides explanatory material.

Section 1230.2 of the direct final rule incorporates by reference ASTM F2549-22. 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 F2549 of this preamble summarizes the major provisions of ASTM F2549-22 that the Commission incorporates by reference into 16 CFR part 1230. The standard is reasonably available to interested parties. Until the direct final rule takes effect, a read-only copy of ASTM F2549-22 is available for viewing, at no cost, on ASTM's website at: 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: www.astm.org/READINGLIBRARY/. Interested parties can also schedule an appointment to inspect a copy of the standard at CPSC's Office of the Secretary, 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 F2549-22 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 frame child carriers are children's products, a CPSC-accepted third party conformity assessment body must test samples of the products. Products subject to part 1230 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 F2549-22 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 frame child carriers. 80 FR 11113 at 11121 (Mar. 2, 2015). The NOR provided the criteria and process for CPSC to accept accreditation of third party conformity assessment bodies for testing frame child carriers to 16 CFR part 1230. 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.

Fourteen of the seventeen testing laboratories that are currently CPSC-accepted to conduct testing for frame child carriers are also CPSC-accepted to conduct testing for sling carriers, which already requires them to possess the revised test torso that is newly required for testing to ASTM F2549-22. The three other laboratories should be able to acquire the new test torso (if they don't already have it) before the effective date for the mandatory standard. Laboratories likewise should have no difficulty creating or modifying equipment for the Dynamic Strength Test' s revised loading requirements and updating their procedures to align with the revised standard. Therefore, none of the changes to the standard would impede a CPSC-accepted laboratory from being able to conduct testing to the revised standard. CPSC-accepted testing laboratories that have ASTM F2549-14a in their scope of accreditation are competent to conduct testing to ASTM F2549-22. Therefore, the Commission considers the existing CPSC-accepted laboratories for testing to ASTM F2549-14a to be capable of testing to ASTM F2549-22, as well. Accordingly, the existing NOR for this standard will remain in place, and CPSC-accepted third party conformity assessment bodies, in the normal course of renewing their accreditations, are expected to update the scope of the testing laboratories' accreditations to reflect the revised standard. Thus, laboratories will begin testing to the new standard when ASTM F2549-22 goes into effect, and the existing accreditations that the Commission has accepted for testing to this standard will cover testing to the revised standard.

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

Specifically, under the process set out in section 104(b)(4)(B) of the CPSIA, when ASTM revises a standard that the Commission has previously incorporated by reference under section 104(b)(1)(B) of the CPSIA, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not improve the safety of the product. Thus, unless the Commission makes such a determination, the ASTM revision, by operation of law, becomes CPSC's standard. The Commission is allowing ASTM F2549-22 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 F2549-22 takes effect as the new CPSC standard for frame child 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, 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 December 3, 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 to prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section F. Direct Final Rule Process of this preamble, the Commission has determined that notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. CPSC also notes the limited nature of this document, which merely updates the incorporation by reference to reflect the mandatory CPSC standard that takes effect under section 104 of the CPSIA.

The current mandatory standard for frame child 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). Although the revised mandatory standard revises existing marking and labeling, and instructional literature language for frame child carriers, the revisions would not add to the burden hours because the products already require marking, labeling, and instructional literature. The new requirements merely require new words or wording changes to language already required by the standard for frame child carriers. Therefore, the new requirements are not more burdensome than the existing requirements.

The Commission took the steps required by the PRA for information collections when it promulgated 16 CFR part 1230, and the marking, labeling, and instructional literature for frame child carriers is 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.

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 180 days after 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 frame child carriers. Therefore, ASTM F2549-22 will take effect as the new mandatory standard for frame child carriers on December 3, 2022, 180 days after June 6, 2022, when the Commission received notice of the revision.

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.

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.

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:

The Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2015 (division K of Pub. L. 113-235, approved December 16, 2014) (2015 Appropriations Act) provided that “the Secretary shall collect fees from borrowers, notwithstanding subsection (m) of such section 108, to result in a credit subsidy cost of zero for guaranteeing . . .” Section 108 loans. Section 108(m) of the Housing and Community Development Act of 1974 states that “No fee or charge may be imposed by the Secretary or any other Federal agency on or with respect to a guarantee made by the Secretary under this section after February 5, 1988.” Identical language was continued or included in the Department's continuing resolutions and appropriations acts authorizing HUD to issue Section 108 loan guarantees during Fiscal Years (FYs) 2016, 2017, 2018, 2019, 2020, 2021, and 2022. The Fiscal Year (FY) 2023 HUD appropriations bill under consideration  1 also has identical language suspending the prohibition against charging fees for loans issued with Section 108 guarantees after February 5, 1988 and requiring that the Secretary collect fees from borrowers to result in a credit subsidy cost of zero for the Section 108 Program.

On November 3, 2015, HUD published a final rule (80 FR 67626) that amended the Section 108 Program regulations at 24 CFR part 570 to establish additional procedures, including procedures for announcing the amount of the fee each fiscal year when HUD is required to offset the credit subsidy costs to the Federal Government to guarantee Section 108 loans. For FYs 2016, 2017, 2018, 2019, 2020, 2021, and 2022 HUD published notifications to set the fees. 2

If authorized by statute, this document sets the fee for Section 108 loan disbursements under loan guarantee commitments awarded for FY 2023 at 0.94 percent of the principal amount of the loan. HUD will collect this fee from borrowers of loans guaranteed under the Section 108 Program to offset the credit subsidy costs of the guaranteed loans pursuant to commitments awarded in FY 2023 if the FY 2023 HUD appropriations bill under consideration is enacted, or if HUD is otherwise required or authorized by statute to collect fees from borrowers to offset the credit subsidy costs of the guaranteed loans, notwithstanding subsection (m) of section 108 of the Housing and Community Development Act of 1974 (42 U.S.C. 5308(m)). For this fee announcement, HUD is not changing the underlying assumptions or creating new considerations for borrowers. The calculation of the FY 2023 fee uses a similar calculation model as the FY 2016, FY 2017, FY 2018, FY 2019, FY 2020, FY 2021, and FY 2022 fee notifications, but incorporates updated information regarding the composition of the Section 108 portfolio and the timing of the estimated future cash flows for defaults and recoveries. The calculation of the fee is also affected by the discount rates required to be used by HUD when calculating the present value of the future cash flows as part of the Federal budget process.

As described in 24 CFR 570.712(b), HUD's credit subsidy calculation is based on the amount required to reduce the credit subsidy cost to the Federal Government associated with making a Section 108 loan guarantee to the amount established by applicable appropriation acts. As a result, HUD's credit subsidy cost calculations incorporated assumptions based on: (1) data on default frequency for municipal debt where such debt is comparable to loans in the Section 108 loan portfolio; (2) data on recovery rates on collateral security for comparable municipal debt; (3) the expected composition of the Section 108 portfolio by end users of the guaranteed loan funds ( e.g., third-party borrowers and public entities); and (4) other factors that HUD determined were relevant to this calculation ( e.g., assumptions as to loan disbursement and repayment patterns).

Taking these factors into consideration, HUD determined that the fee for disbursements made under loan guarantee commitments awarded in FY 2023 will be 0.94 percent, which will be applied only at the time of loan disbursements. Note that future notifications may provide for a combination of upfront and periodic fees for loan guarantee commitments awarded in future fiscal years but, if so, HUD will provide the public an opportunity to comment if appropriate under 24 CFR 570.712(b)(2).

The expected cost of a Section 108 loan guarantee is difficult to estimate using historical program data because there have been no defaults in the history of the program that required HUD to invoke its full faith and credit guarantee or use the credit subsidy reserved each year for future losses. 3 This is due to a variety of factors, including the availability of Community Development Block Grant (CDBG) funds as security for HUD's guarantee as provided in 24 CFR 570.705(b). As authorized by Section 108 of the Housing and Community Development Act of 1974, as amended (42 U.S.C. 5308), borrowers may make payments on Section 108 loans using CDBG grant funds. Borrowers may also make Section 108 loan payments from other anticipated sources but continue to have CDBG funds available should they encounter shortfalls in the anticipated repayment source. Despite the program's history of no defaults, Federal credit budgeting principles require that the availability of CDBG funds to repay the guaranteed loans cannot be assumed in the development of the credit subsidy cost estimate (see 80 FR 67629, November 3, 2015). Thus, the estimate must incorporate the risk that alternative sources are used to repay the guaranteed loan in lieu of CDBG funds, and that those sources may be insufficient. Based on the rate that CDBG funds are used annually for repayment of loan guarantees, HUD's calculation of the credit subsidy cost must acknowledge the possibility of future defaults if those CDBG funds were not available. The fee of 0.94 percent of the principal amount of the loan will offset the expected cost to the Federal Government due to default, financing costs, and other relevant factors. To arrive at this measure, HUD analyzed data on comparable municipal debt over an extended period. The estimated rate is based on the default and recovery rates for general purpose municipal debt and industrial development bonds. The cumulative default rates on industrial development bonds were higher than the default rates on general purpose municipal debt during the period from which the data were taken. These two subsectors of municipal debt were chosen because their purposes and loan terms most closely resemble those of Section 108 guaranteed loans.

In this regard, Section 108 guaranteed loans can be broken down into two categories: (1) loans that finance public infrastructure and activities to support subsidized housing (other than financing new construction) and (2) other development projects ( e.g., retail, commercial, industrial). The 0.94 percent fee was derived by weighting the default and recovery data for general purpose municipal debt and the data for industrial development bonds according to the expected composition of the Section 108 portfolio by corresponding project type. Based on the dollar amount of Section 108 loan guarantee commitments awarded from FY 2017 through FY 2021, HUD expects that 70 percent of the Section 108 portfolio will be similar to general purpose municipal debt and 30 percent of the portfolio will be similar to industrial development bonds. In setting the fee at 0.94 percent of the principal amount of the guaranteed loan, HUD expects that the amount generated will fully offset the cost to the Federal Government associated with making guarantee commitments awarded in FY 2023. Note that the FY 2023 fee represents a 1.06 percent decrease from the FY 2022 fee of 2.00 percent.

This document establishes a statutorily required fiscal requirement in the form of a fee based on rate and cost determinations that does not constitute a development decision that affects the physical condition of specific project areas or building sites. Accordingly, under 24 CFR 50.19(c)(6), this document is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. The Coast Guard was not provided the final details for this event sufficient time to execute the full NPRM process. Any delay encountered in this regulation's effective date by publishing a NPRM would be contrary to public interest since immediate action is needed to facilitate the safety of the persons and vessels involved in the fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to public interest because immediate action is needed to ensure the safety of people and vessels during the Barnstable Fireworks display on September 3, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Sector Southeastern New England (COTP) has determined that potential hazards associated with the Barnstable Fireworks display on September 3, 2022 will be a safety concern for anyone within a 350-yard radius of the fireworks barge in the vicinity of Lewis Bay, Hyannis, MA. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the Barnstable Fireworks display is occurring.

This rule establishes a safety zone from 8 p.m. through 11 p.m. on September 3, 2022. The safety zone will cover all navigable waters within a 350-yard radius of the fireworks barge in the vicinity of Lewis Bay, Hyannis, MA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the Barnstable Fireworks display is occurring. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 3 hours that will prohibit entry within a 350-yard radius of the fireworks barge in the vicinity of Lewis Bay, Hyannis, MA. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish the safety zone by September 2, 2022 and lack sufficient time to request public comments and respond to these comments before the safety zone must be established.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the Charleston Live on the Levee Fireworks Display taking place on the Kanawha River between mile marker 58 and mile marker 59.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with Charleston Live on the Levee Fireworks Display starting September 2, 2022, will be a safety concern for anyone on the Kanawha River from mile marker 58 to mile marker 59. This rule is needed to protect personnel, vessels, and the marine environment from potential hazards associated with a fireworks display.

This rule establishes a safety zone from 9:00 p.m. through 10:00 p.m. on September 2, 2022. The safety zone will cover all navigable waters between mile markers 58 and 59 on the Kanawha River. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created by a fireworks display.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Marine Safety Unit Huntington at 304-733-0198. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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, and duration of the safety zone. This safety zone impacts a 1-mile stretch of the Kanawha River for a limited duration of less than 2 hours. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit 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 lasting from 9 p.m. through 10 p.m. on September 2, 2022, that will limit access of the Kanawha River from mile marker 58 to mile marker 59. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because we must establish the safety zone by September 2, 2022 and lack sufficient time to request public comments and respond to these comments before the safety zone must be established.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to respond to the potential safety hazards associated with the Catlettsburg Labor Day Fireworks Display taking place on the Ohio River between mile marker 317.5 and mile marker 318.5.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Ohio Valley (COTP) has determined that potential hazards associated with Catlettsburg Labor Day Fireworks Display starting September 2, 2022, will be a safety concern for anyone on the Ohio River from mile marker 317.5 to mile marker 318.5. This rule is needed to protect personnel, vessels, and the marine environment from potential hazards associated with a fireworks display.

This rule establishes a safety zone from 8:15 p.m. through 9:15 p.m. on September 2, 2022. The safety zone will cover all navigable waters between mile markers 317.5 and 318.5 on the Ohio River. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created by a fireworks display.

No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Marine Safety Unit Huntington at 304-733-0198. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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, and duration of the safety zone. This safety zone impacts a 1-mile stretch of the Ohio River for a limited duration of less than 2 hours. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue Broadcast Notices to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to transit 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 lasting from 8:15 p.m. through 9:15 p.m. on September 2, 2022, that will limit access of the Ohio River from mile marker 317.5 to mile marker 318.5. 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:

On April 20, 2022, True West LLC with Visit Hood River notified the Coast Guard that the Roy Webster Cross Channel Swim, an annually recurring marine event, will be occurring at Cascade Locks to Stevenson. The event consists of a cross-channel swim from 7:30 to 10:30 a.m. on September 5, 2022. In response, on August 3, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Swim, Columbia River, Cascade Locks, OR (87 FR 47661). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this swim event. During the comment period that ended August 19, 2022, we received no comments.

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 protect persons and vessels from the safety hazards associated with the planned swim event on September 5, 2022.

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 Columbia River (COTP) has determined that potential hazards associated with the swim event will be a concern for those in and on the waterway during the event. The purpose of this rule is to ensure safety of participants in the safety zone before, during, and after the scheduled event.

As noted above, we received no comments on our NPRM published August 3, 2022. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 7 to 11 a.m. on September 5, 2022. The safety zone covers all navigable waters of the Columbia River between RM 149 and RM 150 near Cascade Locks, Oregon. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 7:30 to 10:30 a.m. swim. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. The safety zone created by this proposed rule is designed to minimize its impact on navigable waters. This proposed rule would prohibit entry into certain navigable waters of the Columbia River and is not anticipated to exceed four hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions, vessels may still transit through the safety zone when permitted by the COTP. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. 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 affects 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 does 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 safety zone lasting 4 hours that would prohibit entry between RM 149 to RM 150 on the Columbia River. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive sufficient notice of this event to undergo notice and comment and this safety zone must be established by September 17, 2022 in order to protect the public from the dangers associated with a fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because action is needed to ensure that the potential safety hazards associated with the fireworks display are effectively mitigated.

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 Sault Sainte Marie (COTP) has determined that potential hazards associated with a fireworks display on September 17, 2022 will be a safety concern for anyone within a 600-foot radius of the navigable waters surrounding the fireworks launch site. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

This rule establishes a safety zone from 8 p.m. through 11 p.m. on September 17, 2022. The safety zone will cover all navigable waters within 600 feet of a fireworks display in Round Island Channel near Mackinac Island, MI. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the bridge is being repaired. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Round Island Channel. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 3 hours that will prohibit entry within a 600-foot radius of a fireworks display in Round Island Channel. It is categorically excluded from further review under paragraph L[60(a)] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard will enforce the safety zone listed in 33 CFR 165.941, Table 1 (44) for the End of Season Fireworks in Lakeside, OH. All waters of Lake Erie within a 200-yard radius of the fireworks launch site located on the Lakeside Association Dock at position 41°32.52′ N, 082°45.03′ W.

Under the provisions of 33 CFR 165.23, entry into, transiting, or anchoring within these safety zones during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zones may request permission from the Captain of the Port Detroit or his designated representative. Requests must be made in advance and approved by the Captain of Port Detroit before transits will be authorized. Approvals will be granted on a case-by-case basis. The Captain of the Port Detroit may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF-FM or by calling (313) 568-9564. The Coast Guard will give notice to the public via Local Notice to Mariners and VHF radio broadcasts that the regulation is in effect.

This notice of enforcement is issued under authority of 33 CFR 165.941 Table 1 and 5 U.S.C. 552(a). If the Captain of the Port Detroit determines that any of these safety zones need not be enforced for the full duration stated in this notice, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone by September 1, 2022 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with a fireworks display on September 1, 2022, will be a safety concern for anyone in the navigable waters of Gulf of Mexico within a 1,000-foot radius of a fireworks barge launching fireworks in South Padre Island, Texas. The purpose of this rule is to ensure safety of vessels and persons on these navigable waters in the safety zone during the fireworks show.

This rule establishes a temporary safety zone from 9:00 p.m. through 10:00 p.m. on September 1, 2022. The fireworks barge will launch fireworks in position 26°5′11.86″ N, 097°9′17.23″ W. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Local Notices to Mariners, Safety Marine Information Broadcasts, and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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, and duration of the safety zone. This safety zone covers a 1,000-foot radius of a fireworks barge in South Padre Island, Texas. The temporary safety zone will be enforced for a short period of only one hour on September 1, 2022. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the zone.

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

While some owners or operators of vessels intending to transit the temporary 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 contact 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. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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 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 establishment of a temporary safety zone for navigable waters of Gulf of Mexico within an 1,000-foot radius of a fireworks barge launching fireworks in position 26°5′11.86″ N, 097°9′17.23″ W, in South Padre Island, Texas. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by a fireworks display. It is categorically excluded from further review under paragraph L60(a) 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 where indicated under ADDRESSES .

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

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

Throughout this document, wherever “we”, “us” or “our” are used, we mean the EPA. Information is organized as follows:

Each State has a SIP containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS). The SIP is extensive, containing such elements as air pollution control regulations, emission inventories, monitoring networks, attainment demonstrations, and enforcement mechanisms.

On November 23, 2016 (81 FR 85038), the EPA revised the format for materials submitted by the State of Arizona that are approved by the EPA as part of the Arizona SIP and incorporated by reference (IBR) into the Code of Federal Regulations. In revising the format, we changed how we identify the contents of the applicable Arizona SIP from a paragraph format to a table format. The change can be seen by comparing the table format in the “identification of plan” section set forth at 40 CFR 52.120(c), (d) and (e) with the paragraph format in the original “identification of plan” section set forth at 40 CFR 52.152.

In the November 23, 2016 final rule, we made the following errors that we are correcting through this action:

• Inadvertent omission of an entry for Maricopa County Air Quality Department (MCAQD) Rule 34 (“Organic Solvents—Volatile Organic Compounds (VOC)”), which the EPA approved at 47 FR 19326 (May 5, 1982). Certain paragraphs of MCAQD Rule 34 have been superseded by EPA approval of more recent VOC rules for Maricopa County or have been rescinded, but paragraphs F, G, H, I, J and K of Rule 34 remain in the applicable SIP. 1 We are adding the appropriate entry to the table of approved rules for Maricopa County.

• Inadvertent errors in the entries for Pima County Department of Environmental Quality (PCDEQ) Rules 7A (“Emission Limitation, Fuel Burning Equipment—Sulfur Dioxide”) and 7B (“Emission Limitation, Fuel Burning Equipment—Nitrogen Oxides”), which the EPA approved at 42 FR 36998 (July 19, 1977). With respect to Rule 7A, we indicated correctly that paragraphs 2 through 5 had been disapproved, but inadvertently failed to identify paragraph 6 of Rule 7A as part of the applicable SIP. With respect to Rule 7B, the entry erroneously identified only paragraph 1 as part of the SIP, but the approval applies to paragraphs 1 through 4. In this action, we are amending the entries accordingly and are also correcting the title of the rules to match the rule titles as submitted.

• Lastly, in the entry for Arizona Revised Statutes (ARS) section 9-500.27 (excluding paragraphs D and E), we inadvertently added an equals (=) sign after the section number and accompanying parenthetical phrase, and we are correcting the typographical error in this action.

Section 110(k)(6) of the Clean Air Act (CAA or “Act”), as amended in 1990, provides that, whenever the EPA determines that the EPA's action approving, disapproving, or promulgating any plan or plan revision (or part thereof), area designation, redesignation, classification or reclassification was in error, the EPA may in the same manner as the approval, disapproval, or promulgation revise such action as appropriate without requiring any further submission from the state. Such determination and the basis thereof must be provided to the state and the public. We interpret this provision to authorize the EPA to make corrections to a promulgated regulation when it is shown to our satisfaction (or we discover) that (1) we clearly erred by failing to consider or by inappropriately considering information made available to the EPA at the time of the promulgation, or the information made available at the time of promulgation is subsequently demonstrated to have been clearly inadequate, and (2) other information persuasively supports a change in the regulation. See 57 FR 56762, at 56763 (November 30, 1992) (correcting designations, boundaries, and classifications of ozone, carbon monoxide, particulate matter and lead areas).

In this action, pursuant to CAA section 110(k)(6), we are correcting the November 23, 2016 final rule revising the format of the Arizona SIP in part 52 to include a MCAQD rule that we inadvertently omitted and to fix certain other errors we made in that rulemaking. We do not think anyone will object to this approval, so we are finalizing it without proposing it in advance. However, in the Proposed Rules section of this issue of the Federal Register , we are simultaneously proposing the same error corrections. If we receive adverse comments by October 3, 2022, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect and we will address the comments in a subsequent final action based on the proposal. If we do not receive timely adverse comments, the direct final approval will be effective without further notice on October 31, 2022. This will incorporate these rules into the federally enforceable SIP.

Please note that if the EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, the EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the MCAQD and PCDEQ rules described in section I of the preamble and set forth below in the amendments to 40 CFR part 52. Therefore, these materials have been approved by the EPA for inclusion in the State Implementation Plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2 The EPA has made, and will continue to make, these documents available electronically through www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely corrects errors in a previous rulemaking 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 Clean Air Act; and

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 8, 2016. 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. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the Proposed Rules section of this issue of the Federal Register , rather than file an immediate petition for judicial review of this direct final rule, so that the EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons discussed in the preamble, the Environmental Protection Agency amends Part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

VEEV is a member of the genus Alphavirus in the family Togaviridae, and is a small, enveloped virus with a genome consisting of a single strand of positive-sense RNA. VEEV is a mosquito-borne virus that causes encephalitis or encephalomyelitis in all equine species and humans.

The select agent regulations (42 CFR part 73) established a process by which an attenuated strain of a select biological agent or toxin that does not pose a severe threat to public health and safety may be excluded from the requirements of the select agent regulations. On February 7, 2003, VEEV strain TC-83 was excluded from select agent regulations because mice vaccinated subcutaneously with the VEEV strain TC-83 rapidly developed immunity to subcutaneous or airborne challenge with virulent VEEV ( https://www.selectagents.gov/sat/exclusions/overlap.htm ). As such, CDC determined that the attenuated strain did not have the potential to pose a severe threat to public health and safety.

As set forth under 42 CFR 73.4(e)(2), if an excluded attenuated strain is subjected to any manipulation that restores or enhances its virulence, the resulting select agent will be subject to the requirements of the regulations. Based on review by subject matter experts, CDC has determined that a modification to the excluded attenuated VEEV vaccine strain TC-83 has been shown to increase its virulence and pathogenicity. An adenine (A) at position 3 in TC-83 has been shown to contribute to the attenuation of VEEV. In TC-83(A3G), the A has been changed to a guanine (G), which is found in all wild-type isolates of VEEV. The reversion of this nucleotide mutation to the wildtype nucleotide resulted in increased lethality in mice when compared to mice inoculated with the vaccine strain TC-83. Additional data determined that the pathogenic effects of TC-83(A3G) are more pronounced in young mice. As such, the modification of the excluded, attenuated VEEV vaccine strain TC-83 to create VEEV strain TC-83(A3G) restores the virus's virulence and therefore, VEEV strain TC-83(A3G) is subject to 42 CFR part 73.

FMCSA organizes this final rule as follows:

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/docket/FMCSA-2022-0001/document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations at U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

Under the UCR Statute, the UCR Plan and the 41 States participating in the UCR Agreement collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement are administered by a 15-member board of directors: 14 appointed from the participating States and the industry, plus the Deputy Administrator of FMCSA. Revenues collected are allocated to the participating States and the UCR Plan.

In accordance with 49 U.S.C. 14504a(d)(7) and (f)(1)(E)(ii), fee adjustments must be requested by the UCR Plan when annual revenues exceed the maximum allowed. Also, if there are excess funds after payments to the States and for administrative costs, they are retained in the UCR Plan's depository, and fees in subsequent fee years must be reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct provisions each contribute to the fee adjustment in this final rule, which reduces the annual registration fees established pursuant to the UCR Agreement for the 2023 registration year and subsequent years.

To determine the fee reduction recommendation for the 2023 registration year, the UCR Plan Board has estimated future period collections using an average of the collections of the past 3 closed years. It also considered that there has been no change to the authorized administrative allowance since 2020 and recommended a modest increase in the allowance.

The changes in this final rule will reduce the fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier or other covered entity may realize a reduced burden, fees are considered by the Office of Management and Budget (OMB) Circular A-4, Regulatory Analysis, as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. Therefore, transfers are not considered in the monetization of societal costs and benefits of rulemakings.

This rule adjusts the annual registration fees required by the UCR Agreement established by 49 U.S.C. 14504a. The fee adjustments are authorized by 49 U.S.C. 14504a because the total revenues collected for previous registration years exceed the maximum annual revenue entitlements of $107.78 million distributed to the 41 participating States plus the amount established for the administrative costs associated with the UCR Plan and Agreement. The UCR Plan Board submitted the requested adjustments in accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), which provides for the UCR Plan Board to request an adjustment by the Secretary of Transportation (the Secretary) when the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any excess funds from previous registration years held by the UCR Plan in its depository, after distribution to the States and for payment of administrative costs, shall be retained “and the fees charged . . . shall be reduced by the Secretary accordingly.” (49 U.S.C. 14504a(h)(4)).

The UCR Plan Board must also obtain DOT approval to revise the total revenue to be collected, in accordance with 49 U.S.C. 14504a(d)(7). This rule grants the UCR Plan Board's requested increase in total revenues to be collected to address anticipated increased costs of administering the UCR Agreement. No changes in the revenue allocations to the participating States were recommended by the UCR Plan Board or authorized by this rule.

The Secretary also has broad rulemaking authority in 49 U.S.C. 13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C. subtitle IV, part B. Authority to administer these statutory provisions has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and (7).

The Administrative Procedure Act (APA) allows agencies to make rules effective immediately with good cause, instead of requiring publication 30 days prior to the effective date. 5 U.S.C. 553(d)(3). FMCSA finds there is good cause for this rule to be effective upon publication so that the UCR Plan and the participating States may begin collection of fees on and after October 1, 2022, for the registration year that will begin on January 1, 2023. The immediate commencement of fee collection will avoid delay in distributing the statutory entitlement revenues to the participating States.

On January 24, 2022, FMCSA published in the Federal Register at 87 FR 3489 an NPRM titled “Fees for the Unified Carrier Registration Plan and Agreement” (Docket No. FMCSA-2022-0001). The NPRM proposed that the UCR Plan and the 41 States participating in the UCR Agreement establish and collect fees from motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. The UCR Plan and Agreement are administered by a 15-member board of directors: 14 appointed from the participating States and the industry, plus the Deputy Administrator of FMCSA (49 U.S.C. 14504a(d)(1)(B)(i)-(iv)). Revenues collected are allocated to the participating States and the UCR Plan. (49 U.S.C. 14504a(d)(7), (g), and (h)).

In accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), fee adjustments may be requested by the UCR Plan when annual revenues exceed the maximum allowed. Also, if there are excess funds after payments to the States and for administrative costs, they are retained in the UCR Plan's depository, and subsequent fees must be reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct statutory provisions both support the fee reduction adjustment that was proposed in the NPRM. The NPRM proposed a reduction in the annual registration fees pursuant to a recommendation of the UCR Plan Board for the 2023 registration year and all subsequent years until a change in fees is authorized pursuant to a new rulemaking by the Agency.

In its August 2021 Recommendation to FMCSA (the “August 2021 Fee Recommendation”), the UCR Plan Board estimated future period collections using an average of the collections of the past 3 closed years. 1 It also acknowledged that the UCR Plan held excess fees from prior fee years that were available to further reduce fees. In preparing its fee recommendation, the UCR Plan Board also considered that there has been no change to the authorized administrative cost allowance since 2020 and recommended a modest increase in the allowance. The UCR Plan Board recommended that FMCSA reduce the fees for all fee brackets by approximately 27 percent, and FMCSA's NPRM proposed the fees as recommended by the UCR Plan Board.

FMCSA solicited comments concerning the NPRM for 30 days ending February 23, 2022. By that date, seven comments were received. This included the UCR Plan Board of Directors (UCR Plan Board), Owner-Operator Independent Drivers Association (OOIDA) (OOIDA's First Comment), the Truckers Auditor, a company, two individuals, and an anonymous commenter. Both individuals, the company, anonymous commenter, and Truckers Auditor all commented in favor of reducing the fees and in favor of the proposal in general.

During the public comment period, on February 22, 2022, the UCR Plan Board submitted a comment to the docket with a new recommendation for the fees (the UCR Comment or February 2022 Updated Fee Recommendation), updating the August 2021 Fee Recommendation. 2 In the UCR Comment, the UCR Plan Board recommended a further fee reduction based upon updated actual collections and estimated fees. The February 2022 Updated Fee Recommendation proposed fee reductions of approximately 31 percent below the current fees.

After receiving and reviewing the issues raised in the comments submitted in response to the NPRM, on March 22, 2022, FMCSA transmitted a request for information (RFI) to the UCR Plan. 3 On May 9, 2022, the UCR Plan Board submitted to FMCSA a response (Information Response or IR) to the RFI. 4 On May 23, 2022, OOIDA, a commenter responding to the NPRM, requested an opportunity to comment on the IR. In a Federal Register notice published June 14, 2022 (87 FR 35940), FMCSA reopened the comment period for 14 days “for the limited purpose of allowing comments on the UCR Plan's [Information Response].” In response to this notice, OOIDA and a few other commenters submitted additional comments on or about June 28, 2022. 5 On July 11, 2022, the UCR Plan, relying on 49 CFR 389.23, submitted an additional comment responding to OOIDA's June 28 comment (“Second Comment”). 6 FMCSA has considered this additional information and comments in accordance with 49 CFR 5.5(a)(1).

Comment: OOIDA contended that the proposal would violate the UCR statute and offered several arguments. 7 OOIDA stated that the proposal does not apply the “full $42 million revenue excess” to lowering fees. OOIDA also believed that any excess funds from 2021 should have been allocated to 2022 fees, not to 2023 fees. OOIDA also stated that the 2020 fees could not be imposed in 2023 (and also should not be imposed in 2022).

Response: OOIDA's argument that the statute requires that 2021 excess funds should have been reflected in an adjustment in the fees for 2022 is discussed in more detail below. The short answer to this point is that reflecting such excess funds in the current adjustment for 2023 is warranted by the Fee Change Recommendation Policy adopted by the UCR Plan Board at its August 13, 2020, meeting and revised at a meeting on June 8, 2021. The Policy is in the docket (Tab K to the Information Response submitted to FMCSA by the UCR Plan Board on May 9, 2022). FMCSA finds that this policy is consistent with a reasonable interpretation of the relevant statutory provisions, namely 49 U.S.C. 14504a(d)(7), (f)(1) and (h)(4). FMCSA has no authority to address OOIDA's assertion that the fees should not be imposed in 2022 because, by statute, FMCSA proposes and makes UCR fee adjustments following a recommendation of the UCR Plan Board, and no fee adjustment recommendation was submitted for the 2022 registration year.

Comment: OOIDA commented that the rulemaking did not comply with the APA because the UCR Plan Board did not explain in the fee recommendation how the proposed fees were calculated or why it complied with the law. OOIDA further commented that there was insufficient data or analysis in the rulemaking docket for the public to review, understand, and comment on the recommended fees, and therefore the rulemaking proceeding did not comply with the APA. Finally, OOIDA commented that the UCR Plan Board did not explain how the proposed fees were devised or that the fees would reduce current fees by $22 million in excess revenues.

Response: The Agency published an NPRM and shared with the public all information received from the UCR Plan Board. The notice-and-comment rulemaking process was completed in full compliance with the APA. As a preliminary matter, the statute governing the UCR Plan and associated fees, found at 49 U.S.C. 14504a, sets forth parameters for the UCR Plan Board to make fee recommendations, but it does not require the UCR Plan Board to explain in every fee recommendation to the Secretary and FMCSA how the recommendation complies with the statute. The UCR Plan submitted the fee recommendation in accordance with the statute.

The UCR Plan's August 2021 Fee Recommendation and the Agency's subsequent NPRM provided enough information for OOIDA to provide meaningful comment, including raising questions about the calculations. The August 2021 Fee Recommendation was in the rulemaking docket and included the existing fees and the proposed fees which reflected a reduction of approximately 27 percent for all fee brackets. It provided an explanation as to how the Fee Recommendation was developed by the Plan, including that the fee reduction was expected to result in an under-collection of fees, with the effect, essentially, of refunding excess collections in real time to UCR registrants. The UCR Plan Board also explained in the August 2021 Fee Proposal that it had changed the methodology for projecting future collections in light of the overcollections in several registration years. The APA requires an NPRM to include “either the terms or substance of the proposed rule or a description of the subjects and issues involved” (5 U.S.C. 553(b)(3)). The NPRM complied with both requirements, and OOIDA was able to examine and comment on the issues involved in great detail.

The Agency also notes that an OOIDA employee is a member of the UCR Plan Board and is thus a participant in the organization making the recommendation. If OOIDA believes there are procedural or substantive errors in the UCR Plan Board submission, OOIDA, as a sitting member on the Board, should have raised those deficiencies (and most of the substantive issues discussed below) directly with the UCR Plan Board. The Agency finds no deficiency with the information submitted or with the notice provided in the NPRM.

Comment: OOIDA also claimed that the current fees in effect are higher than allowed under the statute, because the fees were authorized for registration year 2020, and subsequent years have resulted in excess revenues collected in the 2020 and 2021 registration years with no reduction in 2021 and 2022 fees. OOIDA thus contends that FMCSA must “immediately suspend” the UCR fees. OOIDA also suggests that the UCR Plan should apply all excess revenue collected from prior years to reducing the fee scale for registration year 2023 or to refund amounts already paid for registration year 2022 to fee payers.

Response: By statute, the Secretary sets the registration fees based on a recommendation from the UCR Plan Board and only after providing opportunity for notice and public comment. (49 U.S.C. 14504a(d)(7)(B), 14504a(f)(1)(B)). Accordingly, FMCSA believes that any change in fees, including suspension of fees, would require notice and comment rulemaking pursuant to the APA, with an NPRM that includes such action within its scope. The fees currently in effect, which have been applied to registration years 2020, 2021, and 2022, were properly adopted in a final rule for registration year 2020 and all succeeding years until a new fee is adopted. Fees for the United Carrier Registration Plan and Agreement, 85 FR 8192 (Feb. 13, 2020). No other fee has been recommended by the UCR Plan Board or authorized by the Secretary since the fee for the 2020 registration year, and subsequent years, was adopted.

The UCR statute does not authorize direct refunding of fees after the fees have been established in a final rule but does explicitly provide for reduction of future fees based on excess collections in prior years. (49 U.S.C. 14504a(h)(4)). The statute does not provide any authority for suspension or reduction of current fees, certainly not without a rulemaking based on a recommendation from the UCR Plan Board. The UCR Plan Board now requests a fee reduction, which is the subject of this rulemaking. As addressed more fully elsewhere in this final rule, collection periods for each registration year span three calendar years, and excess or shortfalls in fees cannot be known, and thus cannot be applied, for potential fee changes in the next calendar year. Instead, excess (or shortfalls in) fees are applied to adjustments in fees for subsequent fee years. This creates a single calendar year gap between fee adjustments, with odd year collections available for adjusting (increasing or decreasing) future odd year fees and even year collections affecting possible adjustments to future even year fees. This is spelled out in the UCR Plan's Fee Change Recommendation Policy, which the UCR Plan Board adopted at the August 31, 2020, Board meeting, and revised at the June 8, 2021, Board meeting. 8 FMCSA notes again that OOIDA is a voting member of the UCR Plan Board and was present at the UCR Plan Board meetings when the Fee Change Recommendation Policy was adopted and revised.

Comment: OOIDA also contended that the current and proposed fee structure for the UCR Plan and Agreement is not “progressive.” OOIDA pointed out, through an elaborate mathematical exercise, that a carrier with a vehicle fleet size at the lower end of a fee bracket will pay less per vehicle than a carrier at the upper end of the next lower bracket. OOIDA relied on a definition of “progressive” that requires the tax rate to increase when one's income increases. 9

OOIDA also stated that the fees were not fairly allocated, and that expected noncompliance by some who should pay led to higher fees for those who do pay. OOIDA suggested that this could be avoided through better State enforcement, which it thought FMCSA and the UCR Plan Board could compel.

OOIDA also requested that FMCSA adopt a fee structure it deemed “constitutional” that proportionately divided revenue collections by everyone required to pay, and also only collecting sufficient funds to cover entitlement distributions and administrative costs (without any reserves).

Response: The starting point for any analysis of this issue is the statute, which contains several requirements for the fee structure. The fees are based either on the number of commercial motor vehicles (CMVs) operated by motor carriers, motor private carriers and freight forwarders or, for brokers and leasing companies, on the smallest fee charged. There must be not less than four and not more than six fee brackets. Brackets must be based on the size of the fleet of CMVs owned and operated. The fees are recommended to the Secretary by the UCR Plan Board. The fee scale shall be progressive in the amount of the fee. 49 U.S.C. 14504a(f)(1)(A)-(D).

The structure of the fees for the UCR Plan and Agreement was developed by the Plan and carefully considered and approved by FMCSA in a 2007 final rule. Fees for the Unified Carrier Registration Plan and Agreement, 72 FR 48585 (Aug. 24, 2007). That final rule explained the need to reflect all the statutory requirements in the fees and fee structure, even if in some situations the result appeared to be inequitable. For example, it was recognized that the fee structure must ensure that the fee scale is progressive across the brackets, such that the individual carrier fee increases as the size of the carrier increases. The fact that a registrant at the top of one bracket may pay less per vehicle than a registrant at the bottom of the next higher bracket is structurally embedded in the statute. The statute requires that the “fee scale shall be progressive in the amount of the fee” (49 U.S.C. 14504a(f)(1)(D)), across at least four and not more than six fee brackets, where the brackets are based on fleet size, (49 U.S.C. 14504a(f)(1)(C)). The fee scale is clearly “progressive” in this sense, because the fee scale increases with each bracket containing a larger number of CMVs for the motor carrier entities included. Moreover, the statute also requires that the fees be applied uniformly to entities in each bracket “based on the size of the fleet.” (49 U.S.C. 14504a(f)(1)(C)). For particular entities, the fee may or may not be progressive as compared to a carrier in another bracket that is close in size, or that has almost the same number of CMVs in its fleet, but that is an expected result of the fee scale under the UCR statute. (72 FR at 48586).

Another appropriate consideration in determining whether the fees are progressive is whether the structure shifts the burden of paying the fees to those entities most likely to be able to pay. The fees are also progressive in this sense because all the motor carriers and other smaller entities, such as freight forwarders, brokers and leasing companies, in the lower brackets provide a smaller proportion of the total revenues than the larger motor carriers in the higher fee brackets. As shown in the following table, for the 2021 registration year motor carriers with 0-2 vehicles in their fleet, and brokers, freight forwarders and leasing companies paying fees in the same bracket were 73.02 percent of the total number of registrants but provided only 23.07 percent of the revenues collected for the UCR Plan. Entities in bracket 2 (3-5 vehicles in their fleets) were 13.63 percent of the total number of registrants and provided 12.84 percent of the revenues. On the other hand, in the 2021 registration year, motor carriers with large fleet sizes that placed them in the last two brackets provided a proportionally much larger share of the revenues. In bracket 5 (101-1000 vehicles in their fleets), the number of registrants was 0.52 percent of the total number of registrations, and these entities provided 19.51 percent of the revenues. Motor carriers in bracket 6 (1001 or more vehicles) were only 0.03 percent of the total registrants and provided 9.90 percent of the total revenues. Very similar distributions of registered entities and fee revenues are shown in the table for registration year 2020 and for 2022, to date.

As shown in the discussion and analysis above, the fee structure satisfies the statutory requirement that it be progressive. The fees increase as the carriers' fleet sizes increase, and the fee amounts place a proportionally larger burden on those carriers with larger fleets that are more likely to be able to pay the fees. 10

Comment: OOIDA contends that the fee adjustment is contrary to the statute (specifically 49 U.S.C. 14504a(f)(1)(E)(ii)) because, under the adopted procedures, excess funds are used to adjust the fees in alternating calendar years (with a one calendar year gap). For example, under the UCR Plan Board's policy, excess funds collected for 2021 registrations are used to adjust the fees in 2023 and fees collected for 2022 registrations will be used to adjust fees for 2024. OOIDA states that the statute requires excess fee collections be used to reduce the fee charged in the next calendar year.

Response: The statute is ambiguous because of its use of the term “next fee year” in section 14504a(h)(4). In FMCSA's view, the statute allows an interpretation of the required timing for using excess funds to adjust the UCR Agreement fees. The UCR Plan's procedures, adopted by the UCR Plan Board, properly establish a 2-calendar year cycle for each “fee year.” As OOIDA points out, 11 the UCR statute provides that excess funds must be used to reduce the fees charged in the next “fee year.” 49 U.S.C. 14504a(h)(4). The term “fee year” is used only in that one instance and is undefined by the statute. Again, without definition, the statute uses the term “calendar year” in two instances: once for the limited purpose of defining commercial motor vehicle during calendar years 2008 and 2009, 49 U.S.C. 14504a(a)(1)(A)(i), and the second, for setting forth the allocation of fee payments under the new UCR Agreement structure, 49 U.S.C. 14504a(g)(2). In five instances, the statute refers to “registration year” to explain the counting of the number of CMVs for registration purposes, (49 U.S.C. 14504a(f)(2), (3)), and setting the allocation of fee payments under the new UCR Agreement structure, (49 U.S.C. 14504a(g)(1), (3)). Once more, the statute does not define “registration year.” The use of various terms throughout the statute suggests nuance between the three, and that the terms are not unambiguously the same.

The implemented “fee year” timeline is explained by the UCR Plan Board in both its Information Response  12 and the UCR Plan's Fee Recommendation Policy, 13 which was adopted by the UCR Plan Board on August 13, 2020, and revised on June 8, 2021. The Agency again notes that an OOIDA representative is a member of the UCR Plan Board and was present at the Board meetings when the Fee Recommendation Policy was adopted and revised. While phrased differently in different places, in practice, the registration year aligns with the calendar year for that registration. However, the “administrative period” during which fees are collected (in other words, the “fee year”) spans more than two calendar years. The “fee year” begins on October 1 of the year prior to the “registration year,” continues through the calendar year that is the “registration year,” concluding on December 31 of the year after the “registration year.” This timeline provides a 3-month pre-registration window before the date on which the fees are due (which is January 1 of the “registration year”), as well as an audit and dispute resolution period in the calendar year following the registration year. Moreover, this timeline ensures sufficient fee collection data to reasonably and accurately determine whether fee reductions or increases are necessary. 14 The timeline also provides a steady and consistent framework for the UCR Plan Board to calculate and submit a fee adjustment recommendation supported by accurate data to the Secretary, and for FMCSA to conduct the statutorily required notice-and-comment rulemaking and then publish a final rule setting the new fees sufficiently in advance of the start of the applicable fee year. 15 In OOIDA's Second Comment (which is addressed at length below), it continues to miss the distinction between calendar year and fee year even while citing the UCR Plan's clear explanation of the timeline, and practical reasons of time and data collection that led to the distinction. 16

Further, in its Second Comment, OOIDA resumed questioning the validity of the “fee year” structure adopted by the UCR Plan Board. 17 OOIDA again argued that the fee schedule does not comply with the statute and quoted at length from the IR wherein the UCR Plan Board explained the need for “sufficient data” on the actual revenues collected to be able to make a reasonable projection of the excess revenues for the registration year at the end of the fee year. 18 OOIDA then argued that the record held no data on when in a calendar year sufficient registration data would be available to determine future fees with reasonable accuracy. 19 While OOIDA raises an interesting idea, that perhaps sufficient data to make excess revenue projections is available earlier in the year, which in turn might enable a faster timeline for fee setting, OOIDA undermines its own argument by pointing out there is no data on that very point. 20 Although OOIDA states that it was “not proposing that the UCR Plan adopt any specific procedures that might best comply with the statute,” it speculates that “one can easily envision collection and accounting standards that would better serve the statute's requirements.”  21 As a member of the UCR Plan Board, OOIDA's comment rings hollow. Members of the UCR Plan Board are responsible for implementing the UCR Agreement in accordance with the statute. There are challenges to developing, implementing, and administering any program; that does not excuse members of the Board from speaking up when possible problems are identified and then working to develop, offer, and implement solutions.

FMCSA concludes that the UCR Plan's alternating calendar-year fee adjustment schedule, which OOIDA contests, does comply with a reasonable interpretation of all the statutory requirements. The requirement to adjust fees in the next “fee year” in section 14504a(h)(4) must be read together with the provisions of sections 14504a(d)(7) and 14504a(f)(1)(E)(ii). Those paragraphs provide the UCR Plan and the Agency the opportunity, and, indeed the obligation, to adopt and implement a statutory interpretation that reflects the unique circumstances of the administration of the UCR Agreement.

Comment: OOIDA claims that the UCR Plan is “not authorized” by either the statute or the UCR Handbook to establish financial reserve accounts and allocate funds to such accounts. It claims that the UCR Plan needs specific authorization to establish and maintain such reserve accounts. As a corollary to this contention, OOIDA claims that the funds allocated by the UCR Plan to the reserve accounts over the past several years should be considered excess funds and instead be applied to adjust the fees.

Response: The statute provides that the UCR Plan is the organization of State, Federal, and industry representatives responsible for developing, implementing, and administering the unified carrier registration agreement. 49 U.S.C. 14504a(a)(9). It also includes specific authority to provide for the administration of the UCR Agreement (established by 49 U.S.C. 14504(a)(8), (9)) by adopting rules and regulations. 49 U.S.C. 14504a(d)(2)(B). In addition, the UCR Plan Board is authorized to include in the structure of the fees charged to motor carriers, freight forwarders, brokers, and leasing companies an amount to pay the costs of administering the UCR Agreement. (49 U.S.C. 14504a(d)(7)(A)(i)). Accordingly, within the scope of the UCR Plan's statutory responsibility to administer the UCR Agreement is the need to adopt and apply appropriate policies and procedures to manage the funds collected by the UCR Plan that are then distributed both to the participating States and to the UCR Plan to be applied to the administrative costs of carrying out the UCR Agreement. However, a quirk of the statute states that revenues collected may not be used to pay administrative costs until all the participating States have received all their revenue entitlements. 49 U.S.C. 14504a(h)(3)(B). As a practical matter, during a registration year, no funds collected can be used for current operations of the UCR Plan in administering the UCR Agreement until all the distributions have been made from the depository to the States that have not achieved their revenue entitlements. As a result of complying with this statutory requirement, at the beginning of each year's operations, the Plan is not receiving any funds budgeted for the administration of the UCR Agreement and cannot carry out its statutory obligations unless funds are available and held elsewhere.

In order to administer the Agreement and to address this situation, at a meeting of the Board of Directors on December 14, 2017, the UCR Plan adopted a financial reserve policy, effective on January 1, 2018, to sustain financial operations in the unanticipated event of significant unbudgeted increases in operating expenses and/or losses in operating revenues. 22 The financial reserve policy was adopted without objection or negative vote from any member of the Board, including all industry members and the representative from OOIDA. With regard to administrative costs, the policy provides for: (1) a liquidity reserve to address the lack of operating cash flow from fee collections during the registration period while all revenues are retained by or distributed to the participating States; (2) a reserve to address a shortfall in fee collections such that the participating States do not receive their revenue entitlements in full and the UCR Plan does not receive any funds for its administrative costs; and (3) a special or capital projects reserve to support future large capital projects. 23 The liquidity reserve is limited to the current year's operating budget for administrative costs. The reserve for any shortfall in revenues is limited to the operating budget for the next two years. Funding for the capital projects reserve requires a majority vote at a meeting of the UCR Plan Board and is limited to one-half of any year's operating budget.

The funds held in the reserve accounts by the UCR Plan are set out in the table below. The data are derived from the UCR Plan's statements of financial position provided in the IR at Tabs A, B, and C.

These reserve funds are a portion of unrestricted net assets of the UCR Plan that are available for use in emergencies to sustain financial operations in the unanticipated event of significant unbudgeted increases in operating expenses and/or losses in operating revenues. FMCSA finds that this is a prudent and reasonable use of the funds available to the UCR Plan to prepare for and meet potential future events. This is especially appropriate considering that due to planned repeated reductions in fees, there is an increasing possibility that in upcoming years there may be a shortfall in the fee revenues. (February 2022 Updated Fee Recommendation at 2.)

Ensuring the availability of reserve funds to meet possible contingencies is an appropriate action for the UCR Plan Board to take in implementing the statute. As FMCSA found in the 2010 final rule that its responsibilities under 49 U.S.C. 14504a in setting fees for the UCR Plan and Agreement are guided by the primacy the statute places on the need both to set and to adjust the fees so that they “provide the revenues to which the States are entitled.” The statute links the requirement that the fees be adjusted “within a reasonable range” to the provision of sufficient revenues to meet the entitlements of the participating States (49 U.S.C. 14504a(f)(1)(E); see also 49 U.S.C. 14504a(d)(7)(A)(ii)). (Fees for United Carrier Registration Plan and Agreement, 75 FR 21993 (Apr. 27, 2010) at 21995.)

Because the allocation of funds to reserve accounts by the UCR Plan Board is proper, these funds are not available for adjustment of the fees in accordance with the statute. The statute provides that the UCR Plan Board and FMCSA shall consider whether the revenues generated in the previous fee year and any surplus or shortage from that or prior years enable the participating States to achieve in future registration years the revenue levels set by the UCR Plan Board. (49 U.S.C. 14504a(d)(7)(A)(ii)). As the Plan explained in the Information Response (at 4, note 2):

The funds allocated to the reserve accounts, as part of the administrative costs of administering the UCR Agreement, are not available for reducing the fees, as the UCR Plan correctly states. (49 U.S.C. 14504a(h)(3)(B)). The reserved funds are not “excess funds” within the meaning of section 14504a(h)(4). OOIDA's assertion that the funds in the reserve accounts are excess funds to be used to reduce the fees is therefore without merit.

Comment: OOIDA also challenged the lawfulness of the proposed fees for the 2023 registration year because, it argued, the UCR Plan Board has authorized excessive administrative expenses, has improperly expended money engaging in enforcement activities, and has unfairly focused on enforcement on motor carriers. As examples of unlawful administrative expenses, OOIDA cited the use of outside contractors to aid in carrying out the UCR Agreement, to support in-person meetings of the UCR Plan Board, and for other expenses. In support of the claim that the UCR Plan Board has improperly expended funds on enforcement efforts, OOIDA asserted that the UCR Plan Board's authority is limited to administering funds collected and distributed to states under the UCR statute. OOIDA further asserted that the Board has no authority to write rules, conduct enforcement related activities, or spend UCR fee revenues to improve enforcement. OOIDA also contended that only the States may engage in any enforcement efforts, and that such effort is allowed by the UCR statute, but not required. OOIDA asserted that to comply with the UCR statute, FMCSA must review the appropriateness of UCR administrative expenses before approving updated UCR Agreement fees.

Response: FMCSA agrees with OOIDA that the Agency can consider the appropriateness of the costs incurred by the UCR Plan Board. Section 14504a(d)(7)(A)(i) explicitly states that the UCR Plan Board and the Secretary must consider the administrative costs of the UCR Plan and UCR Agreement in setting the fee level. However, the Agency has no evidence that any of the costs identified by OOIDA are improper or fall outside the bounds authorized by the UCR statute.

Preliminarily, OOIDA's comment misunderstands or misstates the authorities granted and reserved in the UCR statute. The statute provides that the UCR Plan is responsible for developing, implementing, and administering the UCR Agreement. (49 U.S.C. 14504a(a)(9)). The UCR Agreement is the agreement developed by the UCR Plan for governing the collection and distribution of fees paid, registration, and financial responsibility information by regulated entities. (49 U.S.C. 14504a(a)(8)). Reading its requirements together, the UCR statute establishes a framework that presumes compliance via the payment of fees and efforts at ensuring compliance. (49 U.S.C. 14504a(f)(4)). Contrary to OOIDA's assertion that the UCR Plan Board's authority to issue rules and regulations is expressly limited by the statute, the provision OOIDA cited instead directs items for which the UCR Plan must issue rules and regulations. (49 U.S.C. 14504a(d)(2)). The statute says the UCR Plan Board “shall” issue rules and regulations to govern the UCR Agreement and that those rules and regulations “shall” include the items that follow. (49 U.S.C. 14504a(d)(2)). The rules and regulations the UCR Plan Board must issue include providing for the administration, in other words, the functioning, carrying out, or operation, of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)). This explicitly includes procedures for amending the UCR Agreement and obtaining clarification of any provision of the UCR Agreement but does not preclude or prohibit other rules or regulations that “provide for the administration” of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)).

The additional enforcement provisions in section 14504a(i) relate to specific legal mechanisms and proceedings by other governmental entities to enforce the UCR Agreement but have no impact on efforts by the UCR Plan and the UCR Plan Board to ensure, or improve, compliance with the UCR Agreement, which is required by statute. Indeed, ensuring and improving compliance fall squarely within the purpose of the UCR Agreement and the responsibilities of the UCR Plan Board. Moreover, contrary to the assertion that section 14504a(i)(4) reserves enforcement solely to the participating States, section 14504a(i) begins by explicitly providing for civil lawsuits to be brought by the Attorney General of the United States to compel compliance. The provision OOIDA cites regarding State enforcement authority simply makes clear that State enforcement jurisdiction is not precluded by such Federal jurisdiction and the UCR statute. This provision does not preclude the UCR Plan from assisting the participating 41 States in improving compliance with the requirements of the UCR statute and the UCR Agreement.

FMCSA agrees that much of the enforcement programing by the States has been focused on motor carriers. However, that does not inherently make it unfair. Motor carriers make up the vast majority of potential fee-payors in the UCR Agreement. It is not unreasonable that the UCR Plan and UCR Plan Board would first target compliance efforts at the largest group. As evidence of alleged unfair enforcement efforts directed at motor carriers OOIDA pointed to a report to the UCR Plan Board about the efforts to increase State UCR enforcement. 24 To gain a fuller picture, in the RFI questions the Agency requested information about all enforcement initiative proposals received by the UCR Plan or UCR Plan Board since the start of 2020. 25 In response, the UCR Plan provided details on four enforcement proposals: (1) adding an Auditor/Enforcement Manager position, proposed by the UCR Plan Board Audit Chairperson; (2) mailing postcards to unregistered motor carriers, proposed by the UCR Plan Executive Director; (3) engaging a contractor to conduct three pilot programs targeting unregistered- and new-entrant motor carriers domiciled in non-participating States and roadside violations audits, proposed by the UCR Plan Executive Director and the outside contractor; and (4) developing, hosting, and maintaining a centralized International Registration Plan (IRP) fee calculator, proposed by the UCR Plan Executive Director. 26 The first three proposals were discussed at UCR Plan Board meetings and adopted. The fourth proposal was discussed at a UCR Plan Board meeting, and approval was given to engage in discussions with the IRP (which rejected the idea). 27 The UCR Plan noted in its response that the only mechanism for receiving suggestions and proposals is through the diverse UCR Plan Board membership and the UCR Plan itself. 28 The UCR Plan has no employees and is staffed by contractors engaged by the UCR Plan Board under its statutory authority.

In response, OOIDA complained that the UCR Plan had not provided a complete response and proceeded to list five items that were all non-responsive to FMCSA's original RFI question, which sought information on proposals or suggestions submitted to the UCR Plan. 29 In the one item close to on-point, OOIDA raised concerns that the UCR Plan and UCR Plan Board were consistently not doing enough to enforce UCR fee compliance by brokers, freight forwarders, and leasing companies, and OOIDA even provided exhibits of emails and meeting minutes as evidence that its concerns were being deliberately ignored. 30 Contrary to OOIDA's assertion of being ignored, however, the email chain shows other UCR Plan Board members and FMCSA working together to answer questions and attempt to identify the root of the problem of non-compliance by these non-motor carrier entities. 31 A significant number of new brokers have entered the industry in the last few years. But brokers do not operate CMVs and are therefore not subject to roadside inspections that would disclose whether they have paid UCR fees. The most recent data from FMCSA and the UCR Plan shows that there are 24.615 active brokers registered at FMCSA, compared to the 22,508 mentioned in OOIDA's First Comment. FMCSA appreciates the difficulties that the UCR Plan has experienced in obtaining compliance by the significant number of brokers that have entered the industry recently. In any event, the impact of non-compliance by brokers is minimal. Even if all of the 15,538 non-compliant active brokers paid the established fees in either 2022 or during the upcoming 2023 registration year, the revenue contributed would be less than 1 percent. 32 The UCR Plan Board has approved several initiatives presented by its contractors to assist the States in improving compliance by the large number of new brokers, and FMCSA expects that these efforts to improve compliance by brokers with be successful.

However, while OOIDA notes that enforcement towards brokers, freight forwarders, and leasing companies would “require some creativity, careful thought, and actual effort, since enforcement of these entities cannot be carried out via roadside inspections,” the record provides no evidence that OOIDA has offered any proposals or suggestions for pilots or programs that could provide a solution. OOIDA concludes the section complaining about the pilots and initiatives undertaken by the UCR Plan Board and assails the Plan's Executive Director for improperly engaging in enforcement efforts. FMCSA notes that not all pilot programs will be successful but are tests, to try something new and see if it works. Upon the available record, the efforts of the UCR Plan's Executive Director might more accurately be viewed as those of an engaged organizational leader researching and developing potential solutions and presenting solution proposals to the Board of Directors, which oversees the UCR Plan's work and has the authority to remove him should he fail to adequately achieve the Board's goals.

The Agency notes that OOIDA objects that insufficient enforcement efforts are targeted at brokers, freight forwarders, and leasing companies, yet OOIDA (unlike other industry members of the UCR Plan Board) did not support initiatives intended to improve compliance among this group. 33 Further, based on the information provided by both OOIDA and the UCR Plan, OOIDA has not offered specific solutions, pilot programs, or projects to address the issue that all parties seem to agree is a problem. 34 FMCSA does not see any improper expenditures of funds for enforcement activities in any of the materials submitted, nor any contravention of the UCR statute on such matters. The Agency also observes that OOIDA inconsistently objects to the UCR Plan's use of administrative funds to support efforts by the participating States to enforce compliance with registration requirements while simultaneously complaining about the alleged lack of such compliance.

Elsewhere OOIDA expressed concern that fees are too high because of insufficient compliance and enforcement, but the association also objected to the Plan's efforts to improve UCR Agreement compliance through education and training by UCR contractors. OODIA cannot have it both ways. The UCR statute explicitly authorizes the UCR Plan Board to “contract with any person or any agency of a State to perform administrative functions required under the unified carrier registration agreement.” (49 U.S.C. 14504a(d)(6)). The programs administered by all of the UCR contractors, including the operator of the online national registration system, have been implemented on behalf of, and at the direction of, the UCR Plan Board, and will result in greater fee-paying compliance generally. As more revenues are collected due to increased compliance, future UCR fees will be further reduced. Indeed, the 2010 final rule set targets for compliance by the States in order to justify the increased fees adopted. (75 FR 21993 at 22003).

It is also important to recognize that 100 percent compliance is not feasible for motor carriers and other entities such as brokers and freight forwarders, as FMCSA recognized in the 2010 final rule. The fee structure and fee levels were established in that final rule based on a compliance rate of 86.42 percent. (75 FR at 21997) The UCR Plan's support of the enforcement efforts by the States is an important element for ensuring compliance with the registration and fee payment requirements set out in the statute.

Finally, OOIDA asserted in its comment that certain UCR Plan Board spending is inappropriate. Specifically, OOIDA objects to UCR Plan Board members' travel to Board meetings in different locations and other efforts to increase awareness in the industry (such as hats and shirts bearing the UCR logo) and the States (particularly the 10 non-participating jurisdictions) about the Plan and the registration requirements imposed by the statute. The UCR statute specifies that the UCR Plan Board must meet at least once per year, and additional meetings may be called by the Board's Chairperson, a majority of the directors, or the Secretary. (49 U.S.C. 14504a(d)(4)). The UCR statute further explicitly requires that all directors on the UCR Plan Board be reimbursed for those travel expenses. (49 U.S.C. 14504a(d)(3)(B)). OOIDA submitted a copy of the UCR Plan Board's proposed meeting schedule for 2022 seemingly to show the misuse of UCR Agreement money. 35 However, the planned schedule showed three planned Board meetings by teleconference and five at locations around the country. Similarly, subcommittee meetings were planned throughout 2022, with eleven scheduled via teleconference and seven in-person around the country (two of which were in conjunction with full UCR Plan Board meetings in the same location). The Agency is mindful that open public meetings held at different locations around the country provide an opportunity to increase awareness of the UCR Plan and its activities, and to enhance State enforcement with on-site training. These are common practices for national groups with geographically disbursed membership, and OOIDA has provided no data to support a decision that these expenditures are improper, excessive, or beyond the authority explicitly granted in the UCR statute. Indeed, the statute expressly provides that, even though board members do not receive any compensation from the U.S. government, board members and subcommittee members are reimbursed for travel expenses. (49 U.S.C. 14504a(d)(3)). This clearly indicates that in-person meetings at convenient locations are contemplated by the statute for all board members, including the OOIDA representative.

In OOIDA's Second Comment it explicitly challenged, for the first time, the proposed $250,000 UCR Plan budget increase contained in both the UCR Plan Board's August 2021 Fee Recommendation and February 2022 Updated Fee Recommendation, and it challenged the UCR Plan Board's description of “cost escalations of various vendors” as “questionable.”  36 In calling this budget increase request into question OOIDA noted that the UCR Plan has not fully used its authorized budget in recent years. However, the Agency cannot ignore the recent inflation occurring in the U.S. and global economy. 37 The reason provided for the requested increase is anticipated increased costs. Particularly given the high inflation rates earlier this year, nothing in the record credibly calls into question the UCR Plan Board's request for additional funds due to anticipated increased costs in the next registration year. Moreover, the most recent allowance of administrative costs of $4,000,000 is a significant reduction from the $5,000,000 allowance initially approved in 2007. See Fees for Unified Carrier Registration Plan and Agreement, 72 FR 48585, 48587 (Aug 24, 2007) (adopting proposal from NPRM, 72 FR 29472, 29474 (May 29, 2007)). In setting the UCR fees, the Secretary is required by statute to consider the costs associated with administering the UCR Plan and UCR Agreement and upon this record has determined that the proposed UCR Plan budget increase of $250,000, or 6.25 percent, is appropriate and lawful.

FMCSA has reviewed the appropriateness of the expenses authorized by the UCR Plan Board and questioned by OOIDA, as well as the requested increase in funds for the upcoming registration year. Upon this review, the Agency finds no evidence that the expenditures and requested budget increase exceed the authority established in the UCR statute.

Finally, the Agency must address OOIDA's contentions regarding contractors working for the UCR Plan Board and the UCR Plan's Executive Director. The statute explicitly allows the UCR Plan Board, upon which a representative of OOIDA sits, to enter into contracts with any person or State agency to carry out administrative functions under the UCR Agreement, so long as the UCR Plan Board retains its decision or policy-making responsibilities. (49 U.S.C. 14504a(d)(6)). OOIDA inaccurately accused the UCR Plan Executive Director of improperly answering the Agency's RFI questions on behalf of the UCR Plan Board. The UCR Plan submitted an additional comment on July 11, 2022, that fully explained the Executive Director's role in submitting the Information Response requested by FMCSA:

As a member of the UCR Plan Board, OOIDA has the opportunity to engage in the oversight of the UCR Plan and the development, implementation, and administration of the UCR Agreement. However, OOIDA expressed concern that “volunteer Board members do not have sufficient time to provide detailed oversight” of the various contractors. 38 FMCSA is unable to address these concerns, as the UCR statute establishes the structure wherein an unpaid Board of Directors implements and oversees the UCR Agreement and UCR Plan. (49 U.S.C. 14504a(a)(8)-(9), (d)(3), (d)(7)). However, FMCSA urges all members of the UCR Plan Board to become knowledgeable about their individual and collective duties as members of the UCR Plan Board and to personally assess, periodically, whether they have the time and ability to fulfill those obligations.

Comment: OOIDA commented about what it contends are FMCSA's past incorrect actions or inactions. OOIDA stated that FMCSA should have taken action to adjust the fees for 2021 and 2022.

Response: These concerns, insofar as they might involve the fees that were in effect in 2021 and 2022 (as maintained in effect by 49 CFR 367.60) are beyond the scope of this proceeding, which involves a recommended fee adjustment for 2023.

As discussed above, on March 22, 2022, FMCSA sent an RFI to the UCR Plan. On May 9, 2022, the UCR Plan provided an IR with the additional responsive information to FMCSA, 39 which was posted to the public docket. Thereafter OOIDA requested an extension of the comment period, 40 and on June 14, 2022, FMCSA announced the reopening of the public comment period in a Federal Register notice  41 (87 FR 35941) with comments due June 28, 2022. FMCSA reopened the NPRM comment period for the limited purpose of allowing comments on the UCR Plan's IR (87 FR 35940, June 14, 2022).

By the close of the reopened comment period on June 28, 2022, more than 100 comments were received, including OOIDA's Second Comment, and comments from the Western States Trucking Association. The UCR Plan Board submitted a late comment on July 11, responding to OOIDA's Second Comment, which FMCSA has considered, along with other submissions made after the comment period, in accordance with 49 CFR 5.5(a)(1). To the extent that comments OOIDA made in its Second Comment were directly relevant to the preceding discussion, those comments have already been addressed and will not be repeated here. The remaining issues in OOIDA's Second Comment are addressed below.

Several of these comments contained similar language, and one included the full appeal an organization made to its members, which contained the language that was repeatedly submitted by other commenters. There were several identical comments submitted that were not germane to this rule, as they discussed or criticized the UCR Plan as a program and go far beyond the scope of the proposal at hand. Many, if not all such comments, were addressed to matters that would require a statutory change.

OOIDA's Second Comment is far-ranging in scope, and the Agency has determined it would be useful to address the issues and concerns raised. Despite the objections voiced in OOIDA's Second Comment, the UCR Plan Board has complied with the law in providing the 2023 fee reduction recommendation. Further, many of the issues OOIDA raised in its Second Comment were out of scope for this comment period and, also, are not within FMCSA's authority to address under the UCR statute. In recurring objections to the UCR Plan Board's proposed downward fee adjustment of nearly 31 percent, OOIDA's comment conveys significant criticisms of the UCR statute and OOIDA's displeasure with both the UCR Plan's business accounting practices, and the duties and time commitment involved with Board membership. Some of OOIDA's comments also indicate that it may not fully understand the legal obligations of volunteer members of a Board of Directors to collectively manage and conduct oversight of an organization. The Agency now addresses the issues raised in OOIDA's Second Comment.

Comment: OOIDA complained that UCR Plan Executive Director did not address the legal arguments OOIDA made in its First Comment.

Response: Again, this comment is out of scope. However, in this instance, the Agency has determined that a response is appropriate. OOIDA fails to recognize that FMCSA did not ask the UCR Plan to provide that information in the RFI questions. FMCSA only sought UCR Plan data and information that was factual and administrative in nature that would further enhance the administrative record for this rulemaking. Substantively, as discussed above regarding OOIDA's First Comment, the UCR Plan Board has adopted schedules and procedures that comply with the framework established by the UCR statute.

Comment: OOIDA asserted that the UCR Fee adjustment is the government's only real oversight authority over the UCR Plan, without which, “the administration of the UCR Plan is left entirely to its contractors.”

Response: Again, this comment is out of scope. However, in this instance, the Agency has determined that a response is appropriate. It appears, through this comment, that OOIDA does not fully understand the role of the UCR Plan nor acknowledge or accept the authority and responsibility of the UCR Plan Board, upon which OOIDA holds a seat. By statute the UCR Plan Board may contract with individuals to carry out the work of the UCR Plan and underlying UCR Agreement, including administrative tasks. It is the statutory responsibility of the UCR Plan Board to conduct oversight of the UCR Plan and its contractors.

Comment: OOIDA took issue with the Agency's 14-day re-opening of the comment period and noted the statutory timeline for FMCSA to publish the Fee Adjustment Final Rule is 90 days from receipt of the UCR Plan Board's recommendation.

Response: Again, this comment is out of scope. However, it raises procedural issues, and, in this instance, the Agency has determined that a response is appropriate. FMCSA is aware of the statutory provision setting the deadline to issue fee adjustments following receipt of a UCR Plan Board recommendation. See 49 U.S.C. 14504a(d)(7). That provision requires notice and comment rulemaking and directs that fees be set within 90 days of receiving the Board's recommendation. See 49 U.S.C. 14504a(d)(7)(B). FMCSA also recognizes that the UCR fee collection schedule, adopted and implemented by the UCR Plan Board and UCR Plan, is best administered if FMCSA's fee adjustment rulemaking is finalized sufficiently in advance of the opening of a new UCR fee collection window, or “fee year,” which opens October 1 of each year.

FMCSA acknowledges that it was slow to initiate this rulemaking. FMCSA did not anticipate that, unlike previous UCR fee reduction rulemakings, this nearly 31 percent fee reduction would be contested and controversial. FMCSA is committed, whenever possible, to ensuring that UCR fees are finalized and published sufficiently in advance of the opening of the registration fee collection window to provide certainty to registrants, the UCR Plan Board, and the participating States that have statutory rights to UCR revenues.

Comment: OOIDA reasserted its contention that the UCR Plan Board's adoption of policies establishing reserve funds exceeds the authority granted in the UCR statute. Further, OOIDA reasserted that the alternating year schedule for a UCR “fee year” violates the UCR statute.

Response: Again, this comment is out of scope. However, in the interest of thoroughness, the Agency has determined that in this instance a response is appropriate. The Agency responds that both issues were previously raised in OOIDA's First Comment and substantively addressed by FMCSA above.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Questions 1 and 2, OOIDA reasserted the claim from its First Comment that the UCR Plan was improperly holding excess funds in violation of the UCR statute.

Response: OOIDA's discussion of these UCR Plan responses restates arguments previously raised and does not provide new information. The comments do not enhance the Agency's understanding of the issue at hand. The issues raised regarding accounting, availability of funds for an adjustment in a specific fee year, and the legality of a reserve fund policy are all addressed above in response to OOIDA's First Comment, and nothing in OOIDA's Second Comment alters that analysis.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Question 3, OOIDA contests for the first time the UCR Plan Board's proposed budget increase of $250,000.00 for the UCR Plan. OOIDA also reiterates arguments it previously raised, and FMCSA has addressed, that contest the Board's authority to establish a “fee year” based on alternating calendar years.

Response: OOIDA's objection to the requested UCR Plan budget increase is untimely. Nonetheless, FMCSA has addressed the argument substantively in the discussion above of OOIDA's First Comment regarding the “Lawfulness and Oversight of UCR Plan and UCR Plan Board Expenses.” Similarly, in Response to OOIDA's First Comment, FMCSA has already addressed the UCR Plan Board's authority to establish the alternating calendar year schedule for establishing “fee years” under the statute.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Question 4, OOIDA argued that the UCR Plan response did not follow FMCSA's directions to use plain language that could be understood by a non-technical audience.

Response: OOIDA's comment is non-substantive, but for the sake of completeness, FMCSA will address it. The issues being discussed are technical in nature and require some technical language. However, to aid readers without technical training, FMCSA sought to obtain through RFI number four data, with a corresponding “narrative explanation,” to more clearly lay out what the UCR Plan Board was requesting and how the numbers and data supported that request. The Agency directed the UCR to avoid “shorthand, abbreviations, or acronyms,” as these queues may not be readily understood by those not active on the UCR Plan Board or employed in math-related fields. The UCR response satisfied the request to further explain the data in the Fee Calculations spreadsheet.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Question 5, OOIDA reiterated its contention that the UCR Plan Board cannot implement a “fee year” schedule that differs from a “calendar year.”

Response: This comment is redundant with arguments made in OOIDA's First Comment. Accordingly, the Agency has substantively addressed it above in the response under the heading “Timing of Fee Adjustments and the Meaning of “Fee Year.”

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Questions 6 and 7, OOIDA noted that the UCR Plan had already collected fees for the 2022 registration year that surpassed the revenue needed to fulfill the UCR Agreement's statutory obligations, and that the UCR Plan had provided the requested information.

Response: In the sixth and seventh RFI questions, which sought revenues and registrants broken down by UCR Fee brackets, FMCSA sought to gather data to examine the claim in OOIDA's First Comment that the fees are not adequately “progressive” as required by statute. OOIDA did not recognize the Agency's effort on this point, as evidenced by OOIDA's (incorrect) assertion that the Agency did not seek information on this topic in the RFI. See OOIDA's Second Comment, pg. 22.

To the extent these comments relate to the argument in OOIDA's First Comment, that the fees are not progressive as required by statute, the Agency has addressed the issue substantively above.

Regarding OOIDA's assertion that the fees collected for the 2022 registration year have already exceeded the UCR's statutory obligations, as discussed above, the UCR statute explicitly contemplates the possibility of overcollection of UCR fees and subsequent adjustments of fees in the next “fee year,” which has lawfully been established as the second, or alternating, calendar year.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Question 8, OOIDA contended that the data provided by the UCR Plan demonstrated the consistent under-enforcement of UCR fees against brokers, freight forwarders, and leasing companies, and resulted in “indefensibly higher” fees for motor carriers. The UCR Plan's IR response showed total freight forwarder and broker registrations for 2020 as 22,638, and for 2021 as 29,476. OOIDA next referred to its First Comment to say that there were 22,508 freight forwarders and brokers registered with the Agency in calendar year 2020 (based on the date of emails in OOIDA's Ex. L). OOIDA again complained that enforcement efforts are unfairly focused on motor carriers.

Response: According to the numbers provided, the UCR Plan collected fees from more than 100% of FMCSA's registered brokers and freight forwarders for calendar year 2020. This is clearly an issue that deserves further attention from all parties. However, the data and information provided does not support OOIDA's claim of egregious under-compliance and under-enforcement of UCR fee payment by freight forwarders and brokers. FMCSA also notes that adding the numbers OOIDA cited ( see OOIDA's First Comments, Ex. L) regarding freight forwarder and broker registrations produces a total of 22,587 registered entities, not 22,508 as OOIDA asserted.

OOIDA's repeated complaint that enforcement efforts unfairly target motor carriers is addressed above in response to its First Comment.

Comment: In response to the UCR Plan's IR answers addressing FMCSA's RFI Question 9, OOIDA asserted that the UCR Plan response was incomplete. OOIDA then provided a listing and discussion of items that it presumably believed were responsive to the question asked.

Response: OOIDA's comment responding to the UCR Plan's response to the ninth RFI question was largely non-responsive but is otherwise addressed above in the section entitled “Lawfulness and Oversight of UCR Plan and UCR Plan Board Expenses.” In short, OOIDA complains that the UCR Plan unfairly focuses enforcement on motor carriers. Yet the available record does not show any meaningful efforts by OOIDA to use its position on the UCR Plan Board to suggest and advocate for pilots or programs to improve enforcement targeting non-MC registrants.

Comment: OOIDA also raised, for the first time, the idea that the UCR Plan Board may not consider any matter unless it has first been considered by the Industry Advisory Subcommittee (IAS) and the IAS has provided a recommendation to the Board. OOIDA contended that any action by the UCR Plan Board that was not first considered by the IAS was contrary to law and thus invalid. OOIDA contends that the IAS had lapsed after the prior Chairperson stepped down, that the UCR fee adjustment recommendations had thus not been considered by the IAS, and therefore any fee adjustment would be unlawful. In support, OOIDA cited 49 U.S.C. 14504a(d)(5)(A), which states that the UCR Plan Board must appoint an IAS and that the IAS “shall consider any matter before the board and make recommendations to the board.” 49 U.S.C. 14504a(d)(5)(A). OOIDA further complained that every other UCR Plan Board subcommittee is statutorily required to have at least one member representing the motor carrier industry, 49 U.S.C. 14504a(d)(5)(D), but that in practice, this is not followed and, specifically, no motor carrier representative sat on the Audit Subcommittee during development of the 2023 fee proposal.

Response: OOIDA's comment is out of scope for the second comment period. However, it raises issues of procedure and statutory authority, and, in this instance, the Agency has determined it is appropriate to address. OOIDA claimed for the first time that the industry advisory subcommittee authorized by 49 U.S.C. 14504a(d)(5)(A) has not considered the current fee adjustment. The statute, however, contains no express language prohibiting the UCR Plan Board from considering matters that have not first been considered by the IAS, and FMCSA does not infer congressional intent to create such a prohibition. The Plan Board is the principal governing body for implementation of the URC Agreement. The IAS is, by definition and statute, its subcommittee. Therefore a more logical inference of congressional intent, consistent with the ordinary functioning of subcommittees, is that through section 14504a(d)(5)(A) Congress intended to restrict the universe of matters the subcommittee could consider to just those matters that come before the Plan Board. If the committee decides not to consider such a matter, or is unable to do so, the UCR Plan Board nevertheless may consider and act on the matter. During such consideration by the UCR Plan Board, the five industry members, including a member from OOIDA, have an opportunity to consider the matter and express the industry's views. Regarding composition of the other subcommittees and any absence of a motor carrier representative, the OOIDA representative and other members could have raised any issue about the activities of the IAS or other subcommittees during any board meeting.

The statute explicitly directs the Chairperson to appoint an IAS. The statute also states that the chair of each subcommittee must be a director on the UCR Plan Board and that for the IAS, membership is reserved exclusively to representatives of entities that are required to pay the UCR fees. 49 U.S.C. 14504a(d)(5)(C), (D). For the IAS then, the chairperson must be one of the five directors representing the fee-paying industry. This point was also highlighted in an exchange OOIDA provided in its Second Comment, that when OOIDA asked why the IAS had lapsed the response was that “it hadn't” but that the IAS's role had diminished since the former IAS chair retired—this was viewed as acceptable since everyone on the IAS was also already a member of the UCR Plan Board. It followed, then, that the IAS work was simply occurring within the larger Board meetings. OOIDA finds this answer unsatisfactory, and so does the Agency. However, there is scant evidence in the record that any member of the UCR Plan Board or professional contractors identified this issue for some time. However, the failure of the IAS to be formally appointed, meet, consider matters before the UCR Plan Board and provide recommendations does not render all actions of the UCR Plan Board unlawful, as OOIDA suggested. The instructions that the IAS consider any matter before the UCR Plan Board is a directive to the IAS, spelling out its obligations to those who would hold a seat on that subcommittee. The alternative reading that OOIDA advocates would have the absurd result that the IAS could prevent the UCR Plan Board from taking action on any matter simply by declining to consider it. The statute does not state that the UCR Plan Board has an obligation to receive a recommendation from the IAS before acting. FMCSA does agree, however, that the IAS should be formally reconstituted and understands that this process has begun with the May 19, 2022, initial organization meeting.

FMCSA also agrees with OOIDA regarding the concern that the motor carrier industry is not consistently represented on all subcommittees. Consistent compliance with this statutory requirement would provide additional oversight on the UCR Plan activities. FMCSA believes it is appropriate for OOIDA and all other industry representatives on the Board to use their positions to ensure that such participation happens, whether by UCR directors representing the motor carrier industry or non-directors, as allowed by statute. (49 U.S.C. 14504a(d)(5)(C)). Again though, a mere opportunity for improved motor carrier representation on UCR subcommittees does not render actions of the Plan Board, including these proposed fee adjustments, unlawful or invalid.

The proposed fees in the NPRM are modified based upon the UCR Plan Board's updated recommendation submitted in its February 2022 Fee Recommendation. Instead of a fee reduction for the 2023 registration year of approximately 27 percent for all fee brackets, as proposed in the NPRM, this final rule adopts an even greater fee reduction of approximately 31 percent for all fee brackets. See the section-by-section discussion below for additional detail.

Motor carriers and other entities involved in interstate and foreign transportation in the United States that do not have a principal office in the United States are nonetheless subject to the fees for the UCR Plan. They are required to designate a participating State as a base State and pay the appropriate fees to that State (49 U.S.C. 14504a(a)(2)(B)(ii) and (f)(4)).

The recommendation from the UCR Plan, as indicated above, is an adjustment from $4,000,000 to $4,250,000 for administrative costs, resulting in a total revenue target of $112,027,060. The adjustment is based on an analysis approved by the board of directors that indicated that legal expenses for the administration of the UCR Agreement will be higher on an ongoing basis. Therefore, in accordance with 49 U.S.C. 14504a(d)(7) and (g)(4), FMCSA approves the following table of State revenue entitlements, administrative costs, and the total revenue target under the UCR Agreement, as proposed in the NPRM. These State revenue entitlements, the administrative costs, and the total revenue target will remain in effect for 2023 and subsequent years unless and until approval of a revision occurs.

In this rule, FMCSA removes 49 CFR 367.20, 367.30, 367.40, and 367.50. These sections established fees applicable for registration years from 2007 to and including 2019. The UCR Plan is no longer collecting fees for those registration years, and these sections are removed to avoid confusion or uncertainty about the applicable fees.

FMCSA redesignates 49 CFR 367.60 as 49 CFR 367.20 and revises the provisions of that section (which were adopted in the 2020 final rule) so that the fees apply to registration years 2020, 2021, and 2022 only. A new 49 CFR 367.30 establishes new reduced fees applicable beginning in registration year 2023, based on the revised recommendation submitted by the UCR Plan Board in its February 2022 Updated Fee Recommendation, which it submitted as a comment to the public docket for the NPRM. These fees will remain in effect for subsequent registration years after 2023 unless revised by a future rulemaking. The fees in this section are lower than proposed in the NPRM in recognition of the updated recommendation submitted by the UCR Plan Board in its February 2022 Updated Fee Recommendation.

FMCSA has considered the impact of this final rule under E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, and DOT's regulatory policies and procedures. The Office of Information and Regulatory Affairs within OMB determined that this final rule is not a significant regulatory action under section 3(f) of E.O. 12866, as supplemented by E.O. 13563, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. Accordingly, OMB has not reviewed it under these Orders.

The changes in this rule reduce the registration fees paid by motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies to the UCR Plan and the participating States. While each motor carrier will realize a reduced burden, fees are considered by OMB CircularA-4, Regulatory Analysis as transfer payments, not costs. Transfer payments are payments from one group to another that do not affect total resources available to society. By definition, transfers are not considered in the monetization of societal costs and benefits of rulemakings.

This rule reduces annual registration fees for the UCR Plan and Agreement. The entities affected by this rule are the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies, and the fee reduction for these entities is the rule's primary impact. Because the State UCR revenue entitlements remain unchanged by this rule, the participating States are not economically impacted. The recommended reduction from the current 2020 registration year fees (approved by the Board on August 12, 2021) and modified in February 2022, is just under 31 percent, or about $18 in the lowest bracket and $17,688 in the highest bracket, per entity, depending on the number of vehicles owned or operated.

This rule is not a major rule as defined under the Congressional Review Act (5 U.S.C. 801-808).”  42

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 43 requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term small entities comprises small businesses and 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 (5 U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses.

This rule directly affects the participating States, motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies. Under the standards of the RFA, as amended by the SBREFA, the participating States are not small entities. States are not considered small entities because they do not meet the definition of a small entity in section 601 of the RFA. Specifically, States are not considered small governmental jurisdictions under section 601(5) of the RFA, both because State government is not included among the various levels of government listed in section 601(5), and because, even if this were the case, no State or the District of Columbia has a population of less than 50,000, which is the criterion by which a governmental jurisdiction is considered small under section 601(5) of the RFA.

The Small Business Administration's (SBA) size standard for a small entity (13 CFR 121.201) differs by industry code. The entities affected by this rule fall into many different industry codes. In order to determine if this rule impacts a significant number of small entities, FMCSA examined the 2017 Economic Census data  44 for two different industries, truck transportation (Subsector 484) and transit and ground transportation (Subsector 485).

According to the 2017 Economic Census, approximately 99.4 percent of truck transportation firms, and approximately 99.2 percent of transit and ground transportation firms, had annual revenue less than the SBA's revenue thresholds of $30 million and $16.5 million, respectively, to be defined as a small entity. Therefore, FMCSA has determined that this rule impacts a substantial number of small entities. However, FMCSA has determined that this rule will not have a significant impact on the affected entities. The effect of this rule is to reduce the annual registration fee motor carriers, motor private carriers of property, brokers, freight forwarders, and leasing companies are currently required to pay. The reduction will range from $18 to $17,688 per entity, depending on the number of vehicles owned and/or operated by the affected entities.

Consequently, I certify that this action will not have a significant economic impact on a substantial number of small entities.

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, 45 FMCSA wants to assist small entities in understanding this final rule so they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the final rule will affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

Small businesses may send comments on the actions of Federal employees who enforce or otherwise determine compliance with Federal regulations to the Small Business Administration's Small Business and Agriculture Regulatory Enforcement Ombudsman (Office of the National Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-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 FMCSA, call 1-888-REG- FAIR (1-888-734-3247). DOT has a policy regarding the rights of small entities to regulatory enforcement fairness and an explicit policy against retaliation for exercising these rights.

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 $170 million (which is the value equivalent of $100 million in 1995, adjusted for inflation to 2020 levels) or more in any 1 year. Although this rule would not result in such an expenditure, the Agency discusses the effects of this rule elsewhere in this preamble.

This rule contains no new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under section 1(a) of E.O. 13132 if it has “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.”

FMCSA has determined that this rule would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation. Therefore, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism Impact Statement.

The Consolidated Appropriations Act, 2005, requires the Agency to assess the privacy impact of a regulation that will affect the privacy of individuals. This final rule would not require the collection of personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency that receives records contained in a system of records from a Federal agency for use in a matching program.

The E-Government Act of 2002, requires Federal agencies to conduct a Privacy Impact Assessment (PIA) for new or substantially changed technology that collects, maintains, or disseminates information in an identifiable form. No new or substantially changed technology would collect, maintain, or disseminate information as a result of this rule. Accordingly, FMCSA has not conducted a PIA.

This rule does not have Tribal implications under E.O. 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.

FMCSA analyzed this rule pursuant to the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq. ) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1 (69 FR 9680), Appendix 2, paragraph 6.h. The Categorical Exclusion (CE) in paragraph 6.h. covers regulations and actions taken pursuant to regulation implementing procedures to collect fees that will be charged for motor carrier registrations. The requirements in this rule are covered by this CE and do not have any effect on the quality of the environment.

The recreational fishery for Gulf of Maine (GOM) cod and GOM haddock is managed under the Northeast Multispecies Fishery Management Plan (FMP). The multispecies fishing year starts on May 1 and runs through April 30 of the following calendar year. The FMP sets sub-annual catch limits (sub-ACL) for the recreational fishery each fishing year for both stocks. These sub-ACLs are a fixed proportion of the overall catch limit for each stock. The FMP also includes proactive recreational accountability measures (AMs) to prevent the recreational sub-ACLs from being exceeded and reactive AMs to correct the cause or mitigate the effects of an overage if one occurs.

The proactive AM provision in the FMP provides a process for the Regional Administrator, in consultation with the New England Fishery Management Council, to adjust recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. The provisions governing this action can be found in the FMP's implementing regulations at 50 CFR 648.89(f)(3).

The 2022 recreational sub-ACL set by Framework Adjustment 63 (87 FR 42375; July 15, 2022) for GOM cod is 192 mt, and the 2022 recreational sub-ACL for GOM haddock is 3,634 mt, as set by Framework Adjustment 59 (85 FR 45794; July 30, 2020).

Using the GOM cod and GOM haddock 2022 sub-ACLs and a peer-reviewed bioeconomic model developed by NMFS's Northeast Fisheries Science Center that predicts fishing behavior under different management measures, we estimated 2022 recreational GOM cod and haddock removals under several combinations of minimum sizes, slot limits, possession limits, and closed seasons. The bioeconomic model considers measures for the two stocks in conjunction because cod are commonly caught while recreational participants are targeting haddock, linking the catch and effort for each stock to the other. The bioeconomic model results suggest that measures for both GOM cod and haddock can be slightly liberalized without the 2022 recreational fishery's sub-ACLs being exceeded. With any given model, there exists some level of uncertainty in the accuracy of model predictions. While a number of parameters and unpredicted events may impact the differences between model predictions and real-world catch, in recent years the bioeconomic model has performed well in terms of model-predicted versus actual catch estimates, which suggests the model is a good tool for assessing the potential impacts of regulatory changes. As in past years, we used preliminary data for the most recent fishing year from the Marine Recreational Information Program (MRIP) to calibrate the model. Incorporation of new waves, or data updates, may result in changes in model estimates. MRIP data can be uncertain and highly variable from year to year.

For each of the sets of management measures, 100 simulations of the bioeconomic model were conducted, and the number of simulations which yielded recreational mortality estimates under the sub-ACL was used as an estimate of the probability that the simulated set of measures will not result in an overage of the sub-ACL. All sets of measures analyzed resulted in model-estimated removals under the sub-ACL greater than 50 percent of the time. The results of the bioeconomic model simulations were shared with the Council and its Recreational Advisory Panel and Groundfish Committee for review.

At its February 2022 meeting, the Council recommended a set of measures that would increase the minimum size for GOM cod from 21 inches (53.3 cm) to 22 inches (55.9 cm) and include no maximum size. The Council discussed options for GOM cod slot limits that would match those for Georges Bank cod included in Framework Adjustment 63 (87 FR 42375; July 15, 2022). However, the Council did not recommend a maximum size for GOM cod because model simulations suggested it was not necessary to adequately constrain catch. The minimum size requirements apply to all private recreational anglers and for-hire vessels not fishing under a groundfish day-at-sea or sector operations plan. The Council also recommended synchronizing the open season for GOM cod for both for-hire and private recreational modes, with a spring open season from April 1-14, and a fall open season from September 1-October 7. The Council recommended increasing the GOM haddock possession limit from 15 fish to 20 to increase opportunities to harvest haddock. The bag limit for GOM cod during open season would remain 1 fish per angler. Based on model simulations, these measures are expected to result in catch of cod and haddock that would not exceed the sub-ACL for either stock (Table 1). On August 2, 2022, we published a rule (87 FR 47177) that proposed changes to the recreational regulations for GOM cod and GOM haddock for fishing year 2022, consistent with the recommendations of the Council.

We are implementing the Council's recommended recreational measures for the remainder of fishing year 2022. These measures are expected to adequately constrain total catch to prevent an overage of both the GOM cod and GOM haddock recreational sub-ACL's, while increasing recreational fishing opportunities and harvest of the GOM haddock stock by the recreational and for-hire fleets. Synchronizing the open seasons for GOM cod is also prudent, because the longer for-hire season under status quo measures was previously established to offset the impacts of 2020 social distancing restrictions on for-hire businesses, which are no longer in place. Synchronized measures should also improve regulatory compliance by minimizing confusion among the angling public.

We received three comments on the proposed rule, from three members of the public. All three commenters opposed increasing the GOM haddock bag limit from 15 fish to 20 fish, and supported either keeping the 15-fish bag limit or reducing the bag limit to 10 fish.

Comment 1: Three individuals opposed increasing the recreational bag limit for GOM haddock from 15 fish to 20 fish. All three supported either retaining the 15-fish bag limit, or reducing the limit to 10 fish, and commented that a more conservative approach would result in a healthier haddock stock and improved recreational fishing opportunities.

Response: Sub-ACLs are designed to prevent overfishing while allowing catch at levels that over the long-term help achieve optimum yield. In recent years, the recreational and for-hire fleets have harvested far fewer GOM haddock than the available sub-ACL for the recreational fishery, in part because of regulations restricting GOM haddock harvest opportunities with the goal of indirectly reducing recreational mortality of GOM cod, as predicted in the bioeconomic model. The bioeconomic model attempts to describe the impact that directed haddock fishing has on cod mortality in the Gulf of Maine, as the two stocks are often found together.

For fishing year 2022, the bioeconomic model simulation results suggest that the 20-fish GOM haddock limit combined with the modified GOM cod measures will not result in exceeding the recreational GOM haddock or GOM cod sub-ACLs. The changes resulting from increasing the GOM haddock limit from 15 fish to 20 fish are expected to be small as few anglers catch the 15-fish bag limit. However, increasing the limit to 20 fish provides additional harvest opportunity while still appropriately constraining GOM cod catch. The model simulation results suggest that a reduction in the GOM haddock limit to 10 fish would unnecessarily limit harvest of GOM haddock by recreational anglers. Additionally, the model predictions for GOM cod and GOM haddock mortality in fishing year 2022 were based on these measures being implemented for the entire 2022 fishing year. Although unintentional, the implementation of the measures late in the fishing year is expected to limit additional recreational harvest of GOM haddock. Therefore, increasing the GOM haddock limit should allow greater utilization of the recreational sub-ACL for GOM haddock without jeopardizing GOM cod or GOM haddock.

This rule implements regulations outlined in the proposed rule, and there are no changes from the proposed measures in this final rule.

The Assistant Administrator for Fisheries, NOAA (AA), has determined that this final rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

The Assistant Administrator for Fisheries finds that there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the date of effectiveness for this action. This final rule must be implemented as soon as possible to allow recreational and for-hire anglers greater benefits from measures in the rule, avoid potentially adverse economic impacts, and preserve the intended outcomes of the measures for the fishery.

A delay in implementation of this rule would have negative economic effects for regulated entities in both the short term and the long term, and would prevent the recreational fishery from realizing the full intended benefits of the proposed measures. For-hire operators have already booked trips with prospective anglers based on the expectation that these measures would be implemented and take effect prior to September 1, 2022, which is the beginning of the recreational open season for GOM cod. If the measures in this rule have not taken effect prior to September 1, 2022, anglers may cancel reservations or try to reschedule trips for other dates; some operators may have to reimburse clients for trips already booked, reserved, or paid for. This could also hurt the business relationships between for-hire operators and their clients, leading to longer term economic impacts for operators.

In addition, providing for the 30-day delay in the date of implementation for this final rule is unnecessary because this final rule contains no new measures ( e.g., it does not require new equipment) for which regulated entities would otherwise need time to prepare for or to revise their current practices. Furthermore, anglers and for-hire operators who are subject to this action expect timely implementation to avoid adverse economic impacts. This final rule is straightforward and includes changes to recreational measures that were discussed during a series of public meetings. This final rule contains yearly measures that are familiar to and anticipated by fishery participants. A 30-day delay in the date of implementation for the measures in this action would undermine the economic benefits of the expanded GOM cod recreational season; would delay the benefits of the expanded GOM haddock limit, especially for for-hire vessels; and could lead to considerable confusion among the recreational community about the effective date of these measures, resulting in unintentional non-compliance with recreational regulations. For these reasons, a 30-day delay in the date of effectiveness for this final rule is unnecessary, impracticable and contrary to the public interest.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification, which was published in the proposed rule, has not changed and is not repeated here. No comments were received regarding this certification. As a result, a final regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

For the reasons set out in the preamble, 50 CFR part 648 is amended as follows: