EPCA  1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. (42 U.S.C. 6291-6317) Title III, Part B  2 of EPCA established the Energy Conservation Program for Consumer Products Other Than Automobiles, which sets forth a variety of provisions designed to improve energy efficiency for certain consumer products, referred to generally as “covered products.”  3 In addition to specifying a list of consumer products that are covered products, EPCA contains provisions that enable the Secretary of Energy to classify additional types of consumer products as covered products. For a given consumer product to be classified as a covered product, the Secretary must determine that: classifying the product as a covered product is necessary or appropriate to carry out the purposes of EPCA; and the average annual per-household energy use by products of such type is likely to exceed 100 kilowatt-hours (“kWh”) (or its British thermal unit (“Btu”) equivalent) per year. (42 U.S.C. 6292(b)(1))  4

When considering covering additional consumer product types, DOE must first determine whether these criteria from 42 U.S.C. 6292(b)(1) are met. Once a determination is made, the Secretary may prescribe test procedures to measure the energy efficiency or energy use of such product. (42 U.S.C. 6293(a)) Furthermore, once a product is determined to be a covered product, the Secretary may establish standards for such product, subject to the provisions in 42 U.S.C. 6295(o) and (p), provided that DOE determines that the additional criteria at 42 U.S.C. 6295(l) have been met. Specifically, 42 U.S.C. 6295(l) requires the Secretary to determine that: the average household energy use of the products has exceeded 150 kWh per household for a 12-month period; the aggregate 12-month energy use of the products has exceeded 4200 gigawatt-hours; substantial improvement in energy efficiency of products of such type is technologically feasible; and application of a labeling rule under 42 U.S.C. 6294 is unlikely to be sufficient to induce manufacturers to produce, and consumers and other persons to purchase, covered products of such type (or class) that achieve the maximum energy efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(l)(1))

DOE has not previously conducted a rulemaking for portable electric spas. On February 16, 2022, DOE published in the Federal Register a notice of proposed determination of coverage (“NOPD”), in which it determined tentatively that portable electric spas satisfy the provisions of 42 U.S.C. 6292(b)(1) (“February 2022 NOPD”). 87 FR 8745.

DOE received comments in response to the February 2022 NOPD from the interested parties listed in Table II.1.

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 5

In response to the February 2022 NOPD, DOE received certain comments pertaining to the scope of coverage and energy use that are relevant for the statutory requirements of coverage for portable electric spas. DOE discusses these comments in the following sections. DOE also received certain comments in response to the February 2022 NOPD pertaining to potential test procedure or standards rulemakings. 6 DOE will discuss these comments in subsequent rulemakings, should DOE pursue such rulemakings.

After considering the public comments on the February 2022 NOPD, DOE is issuing this final determination of coverage for portable electric spas. DOE is not prescribing test procedures or energy conservation standards as part of this determination.

Portable electric spas are factory-built hot tubs or spas that are intended for the immersion of people in heated, temperature-controlled water that is circulated in a closed system. DOE's analysis and consideration of comments received in response to the February 2022 NOPD indicate that portable electric spas meet the statutory requirements under 42 U.S.C. 6292(b)(1), and therefore DOE is issuing this final determination that portable electric spas are a covered product.

DOE will consider test procedure and energy conservation standards rulemakings for portable electric spas in the future. DOE will determine if portable electric spas satisfy the provisions of 42 U.S.C. 6295(l)(1) during the course of the energy conservation standards rulemaking, should DOE pursue such rulemaking.

While DOE received comments on specific topics in response to the February 2022 NOPD, as discussed in sections III.A and III.B of this document, commenters also provided general feedback on the proposed determination of coverage for portable electric spas.

PHTA/IHTA supported DOE's proposed determination that portable electric spas are a covered consumer product and that such coverage is necessary and appropriate to carry out the purposes of EPCA. PHTA/IHTA asserted that portable electric spas meet the EPCA thresholds and that a final determination of coverage is warranted and appropriate. PHTA/IHTA encouraged DOE to proceed with both test procedure and standards rulemakings. (PHTA/IHTA, No. 3 at p. 2)

The CEC agreed that portable electric spas meet the necessary requirements for coverage under EPCA and supported the proposed determination to include portable electric spas as a federally covered product. (CEC, No. 4 at pp. 1, 5) The CA IOUs supported also the inclusion of portable electric spas as a covered product. (CA IOUs, No. 5 at p. 1) Similarly, NYSERDA, and ASAP at al. supported DOE's preliminary determination that portable electric spas qualify as covered products under EPCA. (NYSERDA, No. 6 at pp. 1-2; ASAP et al., No. 7 at p. 1)

In this final determination, DOE is classifying portable electric spas as a covered product.

As stated previously in this document, portable electric spas are factory-built hot tubs or spas that are intended for the immersion of people in heated, temperature-controlled water that is circulated in a closed system. A wide range of portable electric spa products are available on the market, including standard spas, exercise spas, combination spas, and inflatable spas.

In the February 2022 NOPD, DOE examined existing classifications of portable electric spas to inform its proposed definition. PHTA publishes a standard method of test, certified by American National Standards Institute (“ANSI”), for measuring the performance of portable electric spas, titled ANSI/Association of Pool and Spa Professionals (“APSP”)/International Code Council (“ICC”) 14 2019, American National Standard for Portable Electric Spa Energy Efficiency (“ANSI/APSP/ICC-14 2019” or “APSP- 14”). 7 Section 3 of ANSI/APSP/ICC-14 2019 defines “Portable Electric Spa” as “a factory built electric spa or hot tub, supplied with equipment for heating and circulating water at the time of sale or sold separately for subsequent attachment” and includes additional definitions for “spa” and various categories of portable electric spa. The CEC regulations define “portable electric spa” and most of the spa categories consistently with ANSI/APSP/ICC-14 2019, 8 though the CEC does not define the term “spa”.

For the purpose of the analysis described in the February 2022 NOPD, DOE evaluated portable electric spas as factory-built electric spas or hot tubs, supplied with equipment for heating and circulating water at the time of sale or sold separately for subsequent attachment. DOE proposed to adopt this definition, consistent with the term as defined by ANSI/APSP/ICC-14 2019 and the CEC, to inform stakeholders while DOE continued its analysis. 87 FR 8745, 8747. DOE noted that this proposed definition would exclude units that are site-assembled, such as spas that are permanently installed in the ground or attached to a pool, and spas sold with methods of water heating other than electricity, such as propane or natural gas spa heaters or wood-fired hot tubs. Id. DOE requested comment on the proposed definition and scope of coverage of portable electric spas. Id.

In response to the February 2022 NOPD, PHTA/IHTA expressed support for the proposed definition and scope but noted that it is important to clarify that portable electric spas are not permanently installed in the ground or attached to a pool. PHTA/IHTA suggested that DOE consider defining other types of “spa” products and indicating that they are excluded from coverage. For this purpose, PHTA/IHTA stated that DOE should consider utilizing definitions commonly used by industry and state and local governments that can be found in widely adopted ANSI standards and codes, such as the International Swimming Pool & Spa Code co-developed by the ICC and PHTA. PHTA/IHTA also encouraged DOE to utilize the APSP-14 definition for inflatable spa. (PHTA/IHTA, No. 3 at pp. 3-4)

The CEC stated that, because California, along with other states, has adopted APSP-14 in its entirety, the CEC encouraged DOE to consider matching the scope, definitions, test procedure, and label design specified in APSP-14 to maintain consistency among states and spa manufacturers. (CEC No. 4, at p. 5) The CA IOUs supported the proposed definition adopting APSP-14 nomenclature and the distinction between self-contained  9 versus non-self-contained units, as well as the proposed scope. (CA IOUs, No. 5 at p. 3) ASAP et al. also supported the proposed scope of coverage, which they understand would include standard spas, exercise spas, combination spas, and inflatable spas as defined in ANSI/APSP/ICC-14-2019. (ASAP et al., No. 7 at p. 1)

The purpose of the proposed definition, which DOE is adopting in this final determination, is to identify the scope of the covered product ( i.e., portable electric spas). In identifying whether a product is a consumer product for consideration as a covered product, DOE evaluates whether such product is of a type which in operation consumes, or is designed to consume, energy; and, to any significant extent, is distributed in commerce for personal use or consumption by individuals; without regard to whether such article of such type is in fact distributed in commerce for personal use or consumption by an individual. (42 U.S.C. 6291(1))

The portable electric spa definition DOE is adopting in this final determination establishes the coverage of “portable electric spas” for the purpose of Part A of EPCA. The scope of coverage is separate from a determination of the applicability of test procedures or energy conservation standards, should DOE establish test procedures and energy conservation standards. The scope of any test procedure or energy conservation standards would be considered in these respective rulemakings to the extent DOE pursues such rulemakings. As such, in this final determination, DOE is classifying “portable electric spas” as a covered product and the definition establishes the scope of coverage for that purpose.

In summary, based on the preceding discussion, DOE is defining “portable electric spa” in 10 CFR 430.2 as a factory-built electric spa or hot tub, supplied with equipment for heating and circulating water at the time of sale or sold separately for subsequent attachment. This definition is consistent with the term as defined by ANSI/APSP/ICC-14 2019 and the CEC. DOE notes that this definition—by using the term “factory-built”—excludes units that are site-assembled, such as portable electric spas that are permanently installed in the ground or attached to a pool, and spas sold with methods of water heating other than electricity, such as propane or natural gas spa heaters or wood-fired hot tubs.

The following sections describe DOE's evaluation of whether portable electric spas fulfill the criteria for being added as a covered product pursuant to 42 U.S.C. 6292(b)(1). As stated, DOE may classify a consumer product as a covered product if:

(1) Classifying products of such type as covered products is necessary or appropriate to carry out the purposes of EPCA; and

(2) The average annual per-household energy use by products of such type is likely to exceed 100 kWh (or its Btu equivalent) per year. (42 U.S.C. 6292(b)(1))

DOE has determined that coverage of portable electric spas is both necessary and appropriate to carry out the purposes of EPCA, which include:

(1) To conserve energy supplies through energy conservation programs, and, where necessary, the regulation of certain energy uses; and

(2) To provide for improved energy efficiency of motor vehicles, major appliances, and certain other consumer products. (42 U.S.C. 6201(4) and (5))

In the February 2022 NOPD, DOE cited data from the DOE Energy Information Administration's Residential Energy Consumption Survey (“RECS”), which indicated an installed base of 8.4 million spas in the U.S. in 2015. 10 87 FR 8745, 8747. DOE also obtained data from PKData and based on that data, DOE estimated that in 2019, the existing stock of residential hot tubs (as separate from the stock of spas in residential pools) was approximately 5.5 million, with approximately 95 percent of these being electric spas. 11 Id. Based on these same data, DOE also estimated that approximately 230,000 electric spas were shipped in 2019. Id. DOE requested data and information regarding current annual shipments of portable electric spas and the installed base of portable electric spas, specifying the scope of products included in any such estimates ( e.g., standard, exercise, combination, inflatable, etc. ). Id.

PHTA/IHTA agreed with the existing data from RECS and PKData and stated that industry also relies on those data sources. (PHTA/IHTA, No. 3 at p. 4)

In the February 2022 NOPD, DOE noted that the CEC published a final staff report analyzing efficiency standards and marking for spas, 12 which indicated that technologies exist, and are already available in the market, to reduce the energy consumption of portable electric spas. DOE requested comment on the availability of technologies for improving energy efficiency of portable electric spas. 87 FR 8745, 8747.

PHTA/IHTA commented that the industry has been working on these technologies and improving them since 2008 and the technologies employed under the 2019 edition of ANSI/APSP/ICC-14 represent what is currently available and feasible. (PHTA/IHTA, No. 3 at p. 6) The CEC estimated potential technology options in the existing and future portable electric spa market. (CEC No. 4, at p. 5) And ASAP et al. noted that heat pump technology offers the potential to substantially reduce portable electric spa energy use. (ASAP et al., No. 7 at p. 2)

Commenters also agreed generally that coverage of portable electric spas is necessary or appropriate to carry out the purposes of EPCA. PHTA/IHTA stated that classifying portable electric spas as a covered product is necessary and appropriate to carry out the purposes of EPCA. (PHTA/IHTA, No. 3 at pp. 1, 6) NYSERDA agreed with DOE's proposed determination that coverage is appropriate to carry out the purposes of EPCA. (NYSERDA, No. 6 at p. 2)

DOE has determined that the coverage of portable electric spas is both necessary and appropriate to carry out the purposes of EPCA. As indicated by the shipments data, annual sales of portable electric spas are significant within the consumer products market. Portable electric spas consume energy generated from limited energy supplies and regulating their energy efficiency would likely help conserve these limited energy supplies. And as indicated by commenters and the CEC staff report, technologies exist for improving energy efficiency of portable electric spas.

As a coverage determination is a prerequisite to establishing standards for these products, classifying portable electric spas as a covered product is necessary and appropriate to carry out EPCA's purposes to: conserve energy supplies through energy conservation programs, and provide for improved energy efficiency of major appliances and certain other consumer products. (42 U.S.C. 6201(4) and (5))

In the February 2022 NOPD, DOE estimated the average household energy use for portable electric spas, in households that use the product, using power consumption data reported in the CEC database (“MAEDbS”). 13 87 FR 8745, 8747. MAEDbS is the only publicly available source that provides energy consumption data for portable electric spas of which DOE is aware. MAEDbS certification requires that standby power is measured according to ANSI/APSP/ICC-14 2019. For each model, MAEDbS lists the standby  14 power in watts (“W”), along with other relevant capacity and performance metrics. For portable electric spas measured according to the test procedure in ANSI/APSP/ICC-14 2019, standby operation is the predominant mode of spa operation and includes power use to maintain the set temperature and to circulate and filter the water. The CEC estimated that standby operation represents 75 percent of the energy consumed by a portable electric spa, with the remainder being startup mode, when the spa is heating up to its operating temperature, and active mode, 15 when the spa's water jets are operating. 16 Id. at 87 FR 8748. The CEC reported a duty cycle between 5,040 hours per year for inflatable spas (which are intended for seasonal use) and 8,760 hours per year for standard, exercise, and combination spas, during the process of updating the standards for California in 2018. 17 Id.

Using average power consumption for a standard spa of 194 W (the lowest average of the categories in MAEDbS) and 8,760 hours per year of use, DOE estimated an average standby energy consumption of 1,699 kWh per year for portable electric spas in the February 2022 NOPD. Id. DOE noted that use of the minimum standby power found in MAEDbS (40 W) and the estimated 5,040 hours per year of use for inflatable spas exceeds 200 kWh per year energy use. In addition, the rest of the country may have shipments of portable electric spas that exceed California's and other states' maximum power consumption standards. Id. at 87 FR 8749.

In a presentation sent to DOE in December 2021, 18 PHTA/IHTA, CA IOUs, and ASAP also provided an estimate of average energy use based on RECS. They estimated that portable electric spas consume 5.755 billion kWh/year in the U.S. and that 3.673 million households in the U.S. operate portable electric spas regularly. These estimates result in average energy consumption of 1,567 kWh per year per household, which is similar to DOE's estimate of 1,699 kWh per year.

For these reasons, although there may be variation due to climate or spa size that might impact annual per-household energy use as compared to DOE's estimate of 1,699 kWh/year (either higher or lower), in the February 2022 NOPD, DOE tentatively determined that the average annual per-household energy use for portable electric spas is very likely to exceed 100 kWh per year, satisfying the provisions of 42 U.S.C. 6292(b)(1). Id. DOE requested data and information on: (1) the national representativeness of the spa volume bins in Table IV.I of the February 2022 NOPD; (2) the range of standby power consumption of spas in non-regulated markets; (3) the standby power consumption at the different volumes for all types of portable electric spas; and (4) the active power consumption at the different volumes for all types of portable electric spas. Id.

In response to the February 2022 NOPD, DOE received comments regarding the average household energy use of portable electric spas. PHTA/IHTA stated that Table IV.I in the February 2022 NOPD (which presented reported power consumption by spa category and volume) is an accurate assessment of what is in the CEC database but noted the products in the CEC database represent standby power. PHTA/IHTA did not have specific data and information on the range of standby power consumption of spas in non-regulated markets or active power consumption at different volumes for all types of portable electric spas. But PHTA/IHTA agreed that it is extremely likely that the average annual per-household energy use by portable electric spas exceeds 100 kWh per year. (PHTA/IHTA, No. 3 at pp. 5-6)

ASAP et al. stated that DOE's estimate of average standby power consumption is likely a conservative estimate of energy use since it does not include power consumed in startup mode or active mode, and it also does not account for models sold in non-regulated markets that may not meet the CEC standards. (ASAP et al., No. 7 at p. 1) The CA IOUs noted that the analysis conducted by PHTA, CA IOUs, and ASAP, 19 which indicated an average unit energy consumption of portable electric spas of 1,567 kWh/year, significantly exceeds the EPCA threshold of 100 kWh/year required to designate a product as a covered product. (CA IOUs, No. 5 at p. 1) NYSERDA also agreed that the average annual household energy consumption is well above 100 kWh. (NYSERDA, No. 6 at p. 2)

As supported by the analysis presented in the February 2022 NOPD and the preceding comments, DOE makes a final determination that the average annual per-household energy use for portable electric spas is likely to exceed 100 kWh/year, satisfying the provisions of 42 U.S.C. 6292(b)(1).

Based on the foregoing discussion, DOE concludes that including portable electric spas, as defined in this final determination, as covered products is necessary and appropriate to carry out the purposes of EPCA, and the average annual per-household energy use by products of such type is likely to exceed 100 kWh/yr. Based on the information discussed in section III of this document, DOE is classifying portable electric spas as a covered product.

This final determination does not establish test procedures or energy conservation standards for portable electric spas. DOE will address test procedures and energy conservation standards through its normal rulemaking process, should DOE pursue such rulemakings.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this final regulatory action is consistent with these principles.

Section 6(a) of E.O. 12866 also requires agencies to submit “significant regulatory actions” to OIRA for review. OIRA has determined that this regulatory action does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not submitted to OIRA for review under E.O. 12866.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis (“IRFA”) for any rule that by law must be proposed for public comment and a final regulatory flexibility analysis (“FRFA”) for any such rule that an agency adopts as a final rule, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by E.O. 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (Aug. 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process. 68 FR 7990. DOE has made its procedures and policies available on the Office of the General Counsel's website ( www.energy.gov/gc/office-general-counsel ).

DOE reviewed this determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. This determination sets no standards; it only positively determines that future standards may be warranted and should be explored in any future energy conservation standards and test procedure rulemakings. Economic impacts on small entities would be considered in the context of such rulemakings. On the basis of the foregoing, DOE certifies that the coverage determination would have no significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared a FRFA for this determination. DOE has transmitted this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This determination, which concludes that portable electric spas meet the criteria for a covered product for which the Secretary may prescribe an energy conservation standard pursuant to 42 U.S.C. 6295(o) and (p), imposes no new information or record-keeping requirements. Accordingly, the OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

Pursuant to the National Environmental Policy Act of 1969 (“NEPA”), DOE has analyzed this final determination in accordance with NEPA and DOE's NEPA implementing regulations (10 CFR part 1021). DOE analyzed this regulation in accordance with the National Environmental Policy Act (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE has determined that this rule qualifies for categorical exclusion under 10 CFR part 1021, subpart D, appendix A6. This rulemaking qualifies for categorical exclusion A6 because it is a strictly procedural rulemaking and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

E.O. 13132, “Federalism,” 64 FR 43255 (Aug. 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this determination and concludes that it would 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. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the product that is the subject of this determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6297) Therefore, no further action is required by E.O. 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of E.O. 12988, “Civil Justice Reform,” imposes on Federal agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity, (2) write regulations to minimize litigation, (3) provide a clear legal standard for affected conduct rather than a general standard, and (4) promote simplification and burden reduction. 61 FR 4729 (Feb. 7, 1996). Regarding the review required by section 3(a), section 3(b) of E.O. 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) clearly specifies the preemptive effect, if any, (2) clearly specifies any effect on existing Federal law or regulation, (3) provides a clear legal standard for affected conduct while promoting simplification and burden reduction, (4) specifies the retroactive effect, if any, (5) adequately defines key terms, and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of E.O. 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this determination meets the relevant standards of E.O. 12988.

Title II of the Unfunded Mandates Reform Act of 1995 (“UMRA”) requires each Federal agency to assess the effects of Federal regulatory actions on State, local, and Tribal governments, and the private sector. Public Law 104-4, sec. 201 (codified at 2 U.S.C. 1531). For a regulatory action likely to result in a rule that may cause the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year (adjusted annually for inflation), section 202 of UMRA requires a Federal agency to publish a written statement that estimates the resulting costs, benefits, and other effects on the national economy. (2 U.S.C. 1532(a), (b)) The UMRA requires a Federal agency to develop an effective process to permit timely input by elected officers of State, local, and Tribal governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity for timely input to potentially affected small governments before establishing any requirement that might significantly or uniquely affect them. On March 18, 1997, DOE published a statement of policy on its process for intergovernmental consultation under UMRA. 62 FR 12820. DOE's policy statement is also available at www.energy.gov/sites/prod/files/gcprod/documents/umra_97.pdf.

DOE examined this determination according to UMRA and its statement of policy and determined that the determination does not contain a Federal intergovernmental mandate, nor is it expected to require expenditures of $100 million or more in any one year by State, local, and Tribal governments, in the aggregate, or by the private sector. As a result, the analytical requirements of UMRA do not apply.

Section 654 of the Treasury and General Government Appropriations Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any rule that may affect family well-being. This determination would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment.

Pursuant to E.O. 12630, “Governmental Actions and Interference with Constitutionally Protected Property Rights,” 53 FR 8859 (Mar. 15, 1988), DOE has determined that this determination would not result in any takings that might require compensation under the Fifth Amendment to the U.S. Constitution.

Section 515 of the Treasury and General Government Appropriation Act, 2001 (44 U.S.C. 3516, note) provides for Federal agencies to review most disseminations of information to the public under information quality guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). Pursuant to OMB Memorandum M-19-15, Improving Implementation of the Information Quality Act (April 24, 2019), DOE published updated guidelines which are available at www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf. DOE has reviewed this determination under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

E.O. 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001), requires Federal agencies to prepare and submit to OIRA a Statement of Energy Effects for any significant energy action. A “significant energy action” is defined as any action by an agency that promulgates or is expected to lead to promulgation of a final rule, and that (1) is a significant regulatory action under E.O. 12866, or any successor Executive order; and (2) is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (3) is designated by the Administrator of OIRA as a significant energy action. For any significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use.

This determination, which does not amend or establish energy conservation standards for portable electric spas, is not a significant regulatory action under E. O. 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Accordingly, DOE has not prepared a Statement of Energy Effects.

On December 16, 2004, OMB, in consultation with the Office of Science and Technology Policy (“OSTP”), issued its Final Information Quality Bulletin for Peer Review (“the Bulletin”). 70 FR 2664 (Jan. 14, 2005). The Bulletin establishes that certain scientific information shall be peer reviewed by qualified specialists before it is disseminated by the Federal Government, including influential scientific information related to agency regulatory actions. The purpose of the bulletin is to enhance the quality and credibility of the Government's scientific information. Under the Bulletin, the energy conservation standards rulemaking analyses are “influential scientific information,” which the Bulletin defines as “scientific information the agency reasonably can determine will have, or does have, a clear and substantial impact on important public policies or private sector decisions.” Id. at 70 FR 2667.

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a Peer Review report pertaining to the energy conservation standards rulemaking analyses. 20 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences to review DOE's analytical methodologies to ascertain whether modifications are needed to improve the Department's analyses. DOE is in the process of evaluating the resulting report. 21

As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of this final determination prior to its effective date. The report will state that it has been determined that the final determination is not a “major rule” as defined by 5 U.S.C. 804(2).

The Secretary of Energy has approved publication of this final determination.

This document of the Department of Energy was signed on August 26, 2022, by Dr. Geraldine L. Richmond, Undersecretary of Science and Innovation, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE amends part 430 of chapter II of title 10, Code of Federal Regulations as set forth below:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GE CT7-8A model turboshaft engines. The NPRM published in the Federal Register on June 21, 2022 (87 FR 36781). The NPRM was prompted by the manufacturer revising the ALS of the existing EMM to incorporate reduced life limits for certain stage 1 turbine aft cooling plates, stage 2 turbine forward cooling plates, turbine interstage seals, and stage 4 turbine disks (life-limited parts) installed on CT7-8A model turboshaft engines. Additionally, the manufacturer published service information that introduced the reduced life limits. The life limits were reduced by the manufacturer as the result of an analysis of the life management models for these parts. In the NPRM, the FAA proposed to require revising the ALS of the applicable GE CT7-8 EMM and the operator's existing approved maintenance or inspection program, as applicable, to incorporate reduced life limits for certain life-limited parts. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received one comment, from Air Line Pilots Association, International (ALPA). ALPA supported the NPRM without change.

The FAA reviewed the relevant data, considered the comment received, and determined that air safety requires adopting the AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed GE CT7-8 Service Bulletin 72-0062, Revision 01, dated December 22, 2021. This service information provides the reduced life limits for certain life-limited parts.

The FAA estimates that this AD affects 126 engines installed on helicopters 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 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-2022-1067; Project Identifier MCAI-2022-01042-T” 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 regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Tom Rodriguez, Aerospace Engineer, Large Aircraft Section, FAA, International Validation Branch, 2200 South 216th St., Des Moines, WA 98198; telephone 206-231-3226; email Tom.Rodriguez@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2022-0161-E, dated August 4, 2022 (EASA Emergency AD 2022-0161-E) (also referred to as the MCAI), to correct an unsafe condition for all Dassault Aviation Model FALCON 7X airplanes.

This AD was prompted by a report of a failed extension of inboard slats during the landing phase, which was not indicated to the flightcrew by the crew alerting system. The actual retracted inboard slats position, however, was correctly depicted by the flight control system synoptic. The FAA is issuing this AD to address failed extension of inboard slats without flightcrew indication, which could lead to reduced lift margin during approach and landing, and result in reduced control of the airplane. See the MCAI for additional background information.

EASA Emergency AD 2022-0161-E specifies revised procedures for the existing AFM for failed extension of inboard slats and flightcrew indication during landing. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI 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 accomplishing the actions specified in EASA Emergency AD 2022-0161-E, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD.

EASA Emergency AD 2022-0161-E requires operators to “inform all flight crews” of revisions to the AFM, and thereafter to “operate the aeroplane accordingly.” However, this AD does not specifically require those actions, as those actions are already required by FAA regulations. FAA regulations require operators furnish to pilots any changes to the AFM (for example, 14 CFR 121.137), and to ensure the pilots are familiar with the AFM (for example, 14 CFR 91.505). As with any other flightcrew training requirement, training on the updated AFM content is tracked by the operators and recorded in each pilot's training record, which is available for the FAA to review. FAA regulations also require pilots to follow the procedures in the existing AFM including all updates. 14 CFR 91.9 requires that any person operating a civil aircraft must comply with the operating limitations specified in the AFM. Therefore, including a requirement in this AD to operate the airplane according to the revised AFM would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA Emergency AD 2022-0161-E is incorporated by reference in this AD. This AD requires compliance with EASA Emergency AD 2022-0161-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA Emergency AD 2022-0161-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA Emergency AD 2022-0161-E. Service information required by EASA AD 2022-0161-E for compliance will be available at regulations.gov by searching for and locating Docket No. FAA-2022-1067 after this AD is published.

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 forgoing notice and comment prior to adoption of this rule because of a report of a failed extension of inboard slats during the landing phase, which was not indicated to the flightcrew by the crew alerting system, and could lead to reduced lift margin during approach and landing, and possibly result in reduced control of the airplane. Additionally, this AD correlates with EASA Emergency AD 2022-0161-E, and addresses the unsafe condition by revising, within 10 flight cycles after the effective date of this AD, the procedures for failed extension of inboard slats and flightcrew indication during landing. 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 forgo notice and comment.

The requirements of the 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 notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 142 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 AD 2022-05-13, Amendment 39-21965 (87 FR 14155, March 14, 2022) (AD 2022-05-13), for certain serial-numbered Honda Model HA-420 airplanes, with a certain windshield assembly installed. AD 2022-05-13 required incorporating temporary revisions into the AFM and the QRH that modify procedures for windshield heat operation until the affected windshield assemblies are replaced. AD 2022-05-13 resulted from a report of in-flight smoke and fire that initiated from the windshield heat power wire braid. The FAA issued AD 2022-05-13 to prevent arcing of the windshield heat power wire braid, which could ignite the wire sheathing and sealant and the windshield acrylic, resulting in possible smoke and fire in the cockpit.

Since the FAA issued AD 2022-05-13, typographical errors were found in the document numbers of the AFMs and QRHs in the “Related Service Information under 1 CFR part 51” section of the preamble and paragraphs (g)(1)(i) through (iv) and paragraphs (l)(2)(i) through (iv) of the regulatory information. Errors were also found in the document citation for Honda Aircraft Company Alert Service Bulletin SB-420-56-002, Revision B, dated April 19, 2021 (Honda SB-420-56-002, Revision B), in certain references in the preamble. This AD retains all actions required by AD 2022-05-13 and corrects the typographical errors in the identified document citations. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA is issuing this AD because the agency determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

The FAA reviewed the following temporary revisions. These temporary revisions provide modified procedures for windshield heat operation to reduce exposure to potential windshield heat for the applicable serial numbers specified on the documents.

• Honda Aircraft Company Temporary Revision TR 04A-1, dated 2020, for Airplane Flight Manual HJ1-29000-003-001 Rev E.

• Honda Aircraft Company Temporary Revision TR 04A-1, dated 2020, for Airplane Flight Manual HJ1-29001-003-001 Rev C.

• HondaJet Temporary Revision TR 04A-1, dated 2020, for Quick Reference Handbook HJ1-29000-007-001 Rev E.

• HondaJet Temporary Revision TR 04A-1, dated 2020, for Quick Reference Handbook HJ1-29001-007-001 Rev C.

This AD also requires the following service information, which the Director of the Federal Register approved for incorporation by reference as of April 18, 2022 (87 FR 14155, March 14, 2022).

• Honda SB-420-56-002, Revision B.

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 section.

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

Honda issued temporary revisions to the AFM, QRH, and electronic checklist (ECL) prior to issuing Honda SB-420-56-002, Revision B, which specifies replacement of the windshield assemblies. Honda SB-420-56-002, Revision B, does not specify incorporating the temporary revisions to the AFM, QRH, and ECL but addresses removal if the temporary revisions were incorporated. This AD does not require incorporating or removing the temporary revisions to the ECL because the ECL is not part of the approved type design of the airplane. All pertinent requirements would be addressed through the AFM.

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.

Since this action retains all of the requirements of AD 2022-05-13 and only corrects obvious errors in document citations, it is unlikely that the FAA will receive any adverse comments or useful information about this AD from U.S. operators. Accordingly, notice and opportunity for prior public comment are unnecessary 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.

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-2022-1057 and Project Identifier AD-2022-00526-A” 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 regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Bryan Long, Aviation Safety Engineer, Atlanta ACO Branch, FAA, 1701 Columbia Avenue, College Park, GA 30337. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because 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 156 airplanes of U.S. registry. There are 475 affected windshield assemblies worldwide, and the FAA has no way of knowing the number of affected windshield assemblies installed on U.S. airplanes. The estimated cost on U.S. operators reflects the maximum possible cost based on the 156 airplanes of U.S. registry. This new AD only retains the actions required by AD 2022-05-13 and, therefore, adds no new costs to affected operators.

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's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends airspace in Baltimore, MD, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 32103, May 27, 2022) for Docket No. FAA-2022-0545 to amend Class D airspace, Class E Surface airspace, and Class E Airspace Designated as an Extension to Class D airspace at Baltimore, MD.

Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received via email from Commander (CDR) Bradford Wallace, Navy Representative, Eastern Service Area, FAA (AJV-E23). CDR Wallace was concerned that the editorial change replacing the Baltimore VORTAC with the term Point of Origin in the Notice of Proposed Rulemaking (NPRM) made it sound like neither navigational aids (NAVAIDS) still exist. Emails were sent to CDR Wallace explaining that the FAA is progressing to a `Point of Origin' where NAVAIDS currently are used to describe airspace, and the FAA feels this action will help in the future as ground based navigational aids do become decommissioned.

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

The FAA amends 14 CFR part 71 by amending Class D airspace, Class E Surface airspace, and Class E Airspace Designated as an Extension to Class D airspace at Martin State Airport, Baltimore, MD. This action replaces the Baltimore VORTAC with the term Point of Origin. Also, this action removes unnecessary verbiage from the descriptor header. In addition, this action makes an editorial change replacing the term Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D and E airspace and makes the editorial change replacing the term Notice to Airmen with the term Notice to Air Missions.

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it removes Class E airspace extending upward from 700 feet above the surface at Brownsville General Hospital Heliport, Brownsville, PA, due to the closing of the heliport.

The FAA published a notice of proposed rulemaking in the Federal Register (87 FR 32374, May 31, 2022) for Docket No. FAA-2022-0661 to remove Class E airspace extending upward from 700 feet above the surface at Brownsville General Hospital Heliport, Brownsville, PA.

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 routes, and reporting points.

The FAA is amending 14 CFR part 71 by removing Class E airspace extending upward from 700 feet above the surface at Brownsville General Hospital Heliport, Brownsville, PA, as the heliport has closed. Therefore, the airspace is no longer necessary. This action enhances the safety and management of controlled airspace within the national airspace system.

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

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

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures an 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 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

The Commission is amending the rules listed in the table below.

The Commission's whistleblower rules, which are codified at 17 CFR 240.21F-1 through 17 CFR 240.21F-18, provide the operative definitions, requirements, standards, and processes implementing the SEC's whistleblower program. The amendments being adopted make several changes to those rules.

First, the Commission is amending 17 CFR 240.21F-3(b)(3) or Rule 21F-3(b)(3) (hereinafter “the Multiple-Recovery Rule”) to revise the definition of “related action.” A whistleblower may be eligible for an award from the SEC for certain non-SEC actions that meet the definition of a related action under our rules. The Multiple-Recovery Rule currently provides that when both the SEC's award program and another award program might apply to a non-SEC action, that action will be deemed a related action for purposes of an award from the Commission only if the SEC's whistleblower program has the “more direct or relevant connection” to the action. The amended Multiple-Recovery Rule provides additional circumstances in which a non-SEC action may qualify as a related action without regard to whether the Commission's program has the more direct or relevant connection to the action. Specifically, under the amended Multiple-Recovery Rule, a non-SEC action may qualify as a related action:

• When the non-SEC award program has an award range or fixed-dollar award cap that could yield an award that is meaningfully lower than what could be awarded under the Commission's whistleblower program;

• When the decision to grant an award under the non-SEC program is discretionary, even when any specified award criteria and eligibility requirements have been satisfied; and

• When the maximum award the Commission could potentially pay on the non-SEC action does not exceed $5 million (“$5-million provision”).

Second, the Commission is amending Rule 21F-6, which concerns the Commission's discretion to apply award factors and set award amounts. A new paragraph 21F-6(d) provides that the Commission may exercise its authority to consider the dollar amount of a potential award when making an award determination only for the purpose of increasing, not decreasing, the award amount.

The Commission is also adopting conforming amendments to Rules 21F-10 and 21F-11, as well as technical revisions to Rules 21F-4(c) and 21F-8 that correct errors in the rule text.

Under Exchange Act Section 21F, a whistleblower who obtains an award based on a Commission covered action also may be eligible for an award based on monetary sanctions that are collected in a related action. Exchange Act Section 21F(a)(5) and Exchange Act Rule 21F-3(b)(1) provide that a non-SEC judicial or administrative action must meet certain conditions to potentially qualify as a related action. First, the action must be brought by the United States Department of Justice (“DOJ”), an appropriate regulatory authority (as defined in Exchange Act Rule 21F-4(g)), a self-regulatory organization (as defined in Exchange Act Rule 21F-4(h)), or a state attorney general in a criminal case. Second, the same original information that the whistleblower gave to the Commission must also have led to the successful enforcement of the non-SEC action.

The Multiple-Recovery Rule imposes additional requirements for a non-SEC action to qualify as a related action where both the SEC's whistleblower program and at least one other, separate whistleblower program could potentially apply to the action. Rule 21F-3(b)(3) authorizes the Commission to pay an award on such an action only if the Commission determines that the SEC's whistleblower program has the more direct or relevant connection to the non-SEC action based on: (i) the relative extent to which the misconduct involved in the non-SEC action implicates the policy considerations underlying the Federal securities laws (such as investor protection) rather than other law-enforcement or regulatory interests; (ii) the degree to which the monetary sanctions imposed in the non-SEC action are attributable to conduct that also underlies the Federal-securities-law violations that were the subject of the SEC's covered action; and (iii) whether the non-SEC action involves state-law claims, as well as the extent to which the state may have a whistleblower award program that applies to that type of law-enforcement action. 1

The Commission proposed to revise the Multiple-Recovery Rule to identify a limited number of additional circumstances under which a non-SEC action constitutes a related action for award purposes. The principal proposed revision was referred to as the “Comparability Approach,” and was intended to help ensure that the Multiple-Recovery Rule would not reduce whistleblowers' incentive to come forward, or place an undue burden on whistleblowers as a result of having come forward. 2

The proposing release explained that the Comparability Approach would allow the Commission to treats a non-SEC action as a related action if the maximum potential monetary award from the alternative award program would be “meaningfully lower” than the maximum potential award from the Commission's program ( i.e., 30 percent “in total, of what has been collected of the monetary sanctions imposed”). The meaningfully lower standard could be triggered either because the other program involves a different award range or imposes a fixed-dollar award cap. The proposed Comparability Approach would also authorize the Commission (without regard to which program has the more direct or relevant connection) to treat a non-SEC action as a related action if the decision whether to issue an award under the other program is entirely discretionary.

To incorporate these aspects of the Comparability Approach into the Multiple-Recovery Rule, the Commission proposed to amend the opening sentence of Rule 21F-3(b)(3) to provide that the Multiple-Recovery Rule would not apply unless the other whistleblower program qualifies as a “comparable whistleblower program.” A comparable whistleblower program would be defined, in turn, as an award program that: (i) does not have an award range or fixed-dollar award cap that would restrict the maximum potential award to an amount that is meaningfully lower than the maximum or minimum potential award to all eligible claimants (in dollar terms) that the Commission could make on the particular action; or (ii) does not afford the entity administering the other program with discretion to deny an award even if the established eligibility requirements and award criteria have been satisfied.

The Commission further proposed that, under the Comparability Approach, the Multiple-Recovery Rule would be amended so that the Commission would deem a matter eligible for related-action status (without regard to which program has the more direct or relevant connection to the action) if the maximum award the Commission could under any circumstances be required to pay to all whistleblowers in connection with the non-SEC action would not exceed $5 million. As the Commission explained, this would occur when 30 percent of the monetary sanctions imposed in the non-SEC action would be a sum that is $5 million or less. 3

Although the Comparability Approach was the principal proposal offered for public comment, the Commission identified three other possible alternatives: the “Whistleblower's Choice Option,” the “Offset Approach,” and the “Topping-Off Approach.” Under both the Whistleblower's Choice Option and the Offset Approach, current Rule 21F-3(b)(3) would be repealed in its entirety. The Whistleblower's Choice Option would allow a whistleblower, after having received award determinations from the Commission and the entity administering the other program, to decide which award to accept (but the Commission would condition any payment from its program on the whistleblower first making an irrevocable waiver of any claim to an award from the other program). Under the Offset Approach, the Commission could make an award on a non-SEC action notwithstanding the potential that another program might make and pay an award on that same action, but the Commission would offset its payment by any amount another program pays on the same action. Under the Topping-Off Approach, the current framework of the Multiple-Recovery Rule would be retained but the Commission would have the discretion to increase the award amount on the Commission's own covered action (up to a total award of 30 percent of the monetary sanctions imposed) if the Commission concluded that the other program's award for the non-SEC action was inadequate.

Virtually all of the commenters supported modifying the Multiple-Recovery Rule to encompass additional circumstances in which non-SEC actions qualify as related actions, with some offering a view on which of the four proposed alternatives would be the best option. 4

The commenters generally favored either the Comparability Approach or the Whistleblower's Choice Option, 5 though two commenters supported the Offset Approach, one commenter expressed a preference for the Topping-Off Approach, and several other commenters offered their own proposed approaches. 6

In accordance with the Privacy Act of 1974, DoD is establishing a new Department-wide system of records titled “DoD Historical Records,” DoD-0014. The purpose of this system of records is to collect, preserve, and present the history of the Department of Defense, in order to support Agency leadership and inform the American public. To further this mission, the Department is authorized to gather individuals' information to prepare and publish historical reports, provide historically relevant information for advisory panels and commissions, organize historical presentations and prepare historical studies. The DoD Historical Records system of records contains information on DoD civilian employees, uniformed service members, contractors, and other DoD-affiliated individuals. This system of records contains data derived from government records (Federal, state, and local), information collected directly from individuals, international government and non-government organizations, and publicly available information.

The Privacy Act permits Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including the provisions providing individuals with a right to request access to and amendment of their own records and accountings of disclosures of such records. If an agency intends to exempt a particular system of records, it must first go through the rulemaking process to provide public notification and an opportunity to comment on the exemption. The Office of the Secretary is amending 32 CFR part 310 to add a new Privacy Act exemption rule for this system of records. The DoD is claiming an exemption for this system of records because some of its records may contain classified national security information, and providing notification, access, amendment, and disclosure of accounting of those records to an individual, as well as certain recordkeeping requirements, may cause damage to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an exemption for systems of records that contain information properly classified pursuant to Executive order. DoD is claiming an exemption from several provisions of the Privacy Act, including various access, amendment, disclosure of accounting, and certain recordkeeping and notification requirements, to prevent disclosure of any information properly classified pursuant to Executive order, as implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.

This rule is being published as a direct final rule as the Department does not expect to receive any significant adverse comments. If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published. If no such comments are received, this direct final rule will become effective ten days after the comment period expires.

For purposes of this rulemaking, a significant adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. In determining whether a significant adverse comment necessitates withdrawal of this direct final rule, the Department will consider whether the comment raises an issue that would have warranted a substantive response had it been submitted in response to a standard notification of a proposed rule. A comment recommending an addition to the rule will not be considered significant and adverse unless the comment explains how this direct final rule would be ineffective without the addition.

This direct final rule adds to the DoD's Privacy Act exemptions for Department-wide systems of records found in 32 CFR 310.13. Records in this system of records are only exempt from the Privacy Act to the extent the purposes underlying the exemption pertain to the record.

A notice of a new system of records for DoD-0014 is also published in this issue of the Federal Register .

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. It has been determined that this rule is not a significant regulatory action under these Executive orders.

The Congressional Review Act, 5 U.S.C. 801 et seq., 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. DoD will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule may take effect no earlier than 60 calendar days after Congress receives the rule report or the rule is published in the Federal Register , whichever is later. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

The Assistant to the Secretary of Defense for Privacy, Civil Liberties, and Transparency has certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule is concerned only with the administration of Privacy Act systems of records within the DoD. Therefore, the Regulatory Flexibility Act, as amended, does not require DoD to prepare a regulatory flexibility analysis.

The Paperwork Reduction Act (PRA) was enacted to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions; Federal contractors; State, local and tribal governments; and other persons resulting from the collection of information by or for the Federal Government. The Act requires agencies obtain approval from the Office of Management and Budget before using identical questions to collect information from ten or more persons. This rule does not impose reporting or recordkeeping requirements on the public.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule whose mandates may result in the expenditure by State, local and tribal governments in the aggregate, or by the private sector, in any one year of $100 million in 1995 dollars, updated annually for inflation. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. This rule will not have a substantial effect on State and local governments.

Executive Order 13175 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct compliance costs on one or more Indian tribes, preempts tribal law, or effects the distribution of power and responsibilities between the Federal Government and Indian tribes. This rule will not have a substantial effect on Indian tribal governments.

Accordingly, 32 CFR part 310 is amended as follows:

On August 16, 2022, the Coast Guard issued a rulemaking that created a temporary safety zone. The safety zone was effective August 16, 2022 to August 18, 2022. A copy of the rulemaking that ended on August 18, 2022 is available in the docket USCG-2022-0600. On August 18, 2022, the Coast Guard issued a temporary final rule establishing a temporary safety zone in effect through August 29, 2022 (87 FR 51909). However, additional time is needed to maintain safe navigation around response equipment and responders while additional damage assessments and salvage operations occur, and, as a result, the Coast Guard is establishing through temporary regulations a safety zone that will be in effect through September 12, 2022. 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 immediate action is needed to respond to the safety hazards associated with the emergency response measures in product recovery of a sunken vessel. It is impracticable to publish an NPRM and hold a reasonable comment period for this rulemaking due to the emergent nature of the ongoing response and recovery operations.

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 immediate action is needed to respond to the safety hazards associated with the emergency response and salvage operations.

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 Puget Sound (COTP) has determined that potential hazards associated with the emergency response and recovery operations will be a safety concern for anyone within a 1000-yard radius of Sunset Point, San Juan Island, WA. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the emergency response is ongoing and during the recovery of the sunken vessel.

This rule extends the effective dates of the established temporary safety zone (87 FR 51909). The extended temporary safety zone will be enforced from August 29, 2022 at 10 p.m. through September 12, 2022 at 10 p.m. The safety zone will cover all navigable waters within 1000-yard radius of Sunset Point, San Juan Island, WA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the emergency response of the sunken vessel are ongoing. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The safety zone may be suspended early at the discretion of COTP Sector Puget Sound.

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. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of Sunset Point on San Juan Island for a total of 14 days and operations may be suspended early at the discretion of the COTP Sector Puget Sound. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 14 days that will prohibit entry within 1000 yards of Sunset Point while vessels, equipment, and personnel are being used in the emergency response and removal of a sunken vessel. It is categorically excluded from further review under paragraph L60[d] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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 it is impracticable and contrary to the public interest. The Coast Guard did not receive necessary information from the event sponsor for this year's event until shortly before the event was supposed to be held. The Coast Guard has an existing safety zone for this recurring marine event at 33 CFR 165.786, Table to § 165.786, Item No. 9.1; however, the existing regulation only covers the event when it is scheduled on the third Saturday of September. The primary justification for this action is that the Coast Guard received final details of the event shortly before it was supposed to occur. Therefore, the Coast Guard lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. It would be impracticable and contrary to the public interest to delay promulgating this rule, as it is necessary to protect the safety of participants, spectators, the public, and vessels transiting in the area.

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 the event is taking place on September 10, 2022, and immediate action is needed to respond to the potential safety hazards associated with this event.

The Coast Guard is issuing this rule under the authority in 46 U.S.C. 70034. The Captain of the Port Key West (COTP) has determined that potential hazards associated with this open water swim event will be a safety concern for persons and vessels in the safety zone. This rule is needed to ensure the safety of the event participants, the general public, vessels and the marine environment in the navigable waters within the safety zone during the Swim for Alligator Lighthouse open water swim event.

This rule establishes a safety zone on September 10, 2022 for a period of 8.5 hours, from 7:30 a.m. to 4:00 p.m. The safety zone will cover all waters of the Atlantic Ocean, between Amara Cay, and Alligator Lighthouse, beginning at a point Latitude 24°54.82′ N, longitude 080°38.03′ W, thence to latitude 24°54.36′ N, longitude 080°37.72′ W, thence to latitude 24°51.07′ N, longitude 080°37.14′ W, thence to latitude 24°54.36′ N, longitude 080°37.72′ W, thence to point of origin at latitude 24°54.82′ N, longitude 080°38.03′ W. The event course begins and ends at Amara Cay Resort in Islamorada, Florida, and extends through Hawks Channel, with a turnaround at Alligator Lighthouse. Approximately 500 swimmers with kayak escorts and ten safety vessels are anticipated to participate in the event. The size and duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the open water swim. Persons and non-participant vessels are prohibited from entering, transiting through, anchoring in, or remaining within the safety zone without obtaining permission from the COTP Key West or a designated representative. If authorization to enter, transit through, anchor in, or remain within the safety zone is granted by the COTP Key West or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP Key West or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, or by on-scene designated representatives.

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 available exceptions to the enforcement of the safety zone. The regulated area will impact small designated areas of the Atlantic Ocean between Islamorada, Florida, and the Alligator Lighthouse for only 9 hours and thus is limited in time and scope. Furthermore, the rule will allow vessels to seek permission to enter the zone. Non-participant persons and vessels may enter, transit through, anchor in, or remain within the regulated area during the enforcement periods if authorized by the COTP or a designated representative. Vessels not able to enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP or a designated representative may operate in the surrounding areas during the 9 hour enforcement period. The Coast Guard will issue a Local Notice to Mariners and a Broadcast Notice to Mariners, allowing mariners to make alternative plans or 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 only 9 hours that will prohibit entry into the area being used by swimmers and safety craft for the Alligator Lighthouse swim. 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:

Section 553(d) of the Administrative Procedure Act (APA), 5 U.S.C. chapter 5, generally provides that rules may not take effect until 30 days after they are published in the Federal Register . EPA is issuing this final rule under section 307(d) of the Clean Air Act (CAA or “the Act”), which states, “The provisions of section 553 through 557 . . . of Title 5 shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, section 553(d) of the APA does not apply to this rule. EPA is nevertheless acting consistently with the policies underlying APA section 553(d) in making this final rule effective upon publication. The purpose of this APA provision is to “give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”  1 However, when an agency grants or recognizes an exemption or relieves a restriction, affected parties do not need a reasonable time to adjust because the effect is not adverse. Thus, APA section 553(d) allows an effective date less than 30 days after publication for any rule that “grants or recognizes an exemption or relieves a restriction.”  2 An accelerated effective date may also be appropriate for good cause pursuant to APA section 553(d)(3) where an agency can “balance the necessity for immediate implementation against principles of fundamental fairness which require that all affected persons be afforded a reasonable amount of time to prepare for the effective date of its ruling.”  3

EPA has determined that the regulatory amendments to 40 CFR part 80, subpart M, are effective upon publication in the Federal Register because they relieve a restriction by providing small refineries with an alternative schedule for retiring RINs toward their 2020 renewable volume obligations (RVOs), thereby providing small refineries with additional time to demonstrate compliance. There is additionally good cause for implementation of these provisions upon publication because it will ensure that the provisions are effective prior to the 2020 RFS compliance deadline (December 1, 2022), which is the point at which small refineries intending to utilize the alternative RIN retirement schedule provided in this action will need to notify EPA. Any delay in effectiveness could cause uncertainty regarding its availability.

Entities potentially affected by this final rule are those involved with the production, distribution, and sale of transportation fuels, including gasoline, diesel, and renewable fuels such as ethanol, biodiesel, renewable diesel, and biogas. Potentially affected categories include:

This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by this action. Other types of entities not listed in the table could also be affected. To determine whether your entity would be affected by this action, you should carefully examine the applicability criteria in 40 CFR part 80. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

The RFS program sets annual, nationally applicable volume targets for renewable fuel. EPA translates those volume targets into compliance obligations that obligated parties must meet each year. EPA has designated refiners and importers of gasoline and diesel fuel used as transportation fuel to be those obligated parties. 4 Small refineries, a subset of refiners, are defined by the Act as “refiner[ies] for which the average aggregate daily crude oil throughput for a calendar year . . . does not exceed 75,000 barrels.”  5 At the start of the RFS program, Congress initially granted all eligible small refineries a temporary exemption from the obligations of the RFS program until 2011. 6 Under EPA's regulations, small refineries that were producing either “gasoline” under RFS1  7 or “transportation fuel” under RFS2  8 were required to notify EPA that they qualified for the temporary exemption by submitting verification letters stating their average crude oil throughput rate during the applicable qualification period. 9 The CAA provides that a small refinery may at any time petition EPA for an extension of the exemption from the obligations of the RFS program for the reason of disproportionate economic hardship (DEH). 10 In evaluating such petitions, the EPA Administrator, in consultation with the Secretary of Energy, will consider the findings of a Department of Energy (DOE) study and other economic factors. 11

On December 7, 2021, EPA proposed to deny 65 pending SRE petitions for the 2016-2021 compliance years  12 and took public comment via a Federal Register notification. 13 That proposal included proposed changes to EPA's interpretation of the SRE provisions in the CAA that were informed by the holdings of the U.S. Court of Appeals for the Tenth Circuit in Renewable Fuels Association et al. v. EPA ( RFA )  14 and EPA's long-held findings regarding RFS compliance costs being passed through ultimately to wholesale purchasers (generally referred to as RIN cost passthrough). Consistent with that proposal, on April 7, 2022, EPA announced the April 2022 SRE Denial, 15 which denied 36 previously-decided SRE petitions for the 2018 compliance year that had been remanded to EPA for reconsideration by the U.S. Court of Appeals for the D.C. Circuit. 16 Then, on June 3, 2022, EPA announced the June 2022 SRE Denial, 17 which denied 69 SRE petitions for the 2016-2021 compliance years that were still pending. 18 On that same day, EPA also announced and sought comment on this alternative RIN retirement schedule.

We understand that some small refineries that recently had their 2019 and 2020 SRE petitions denied may not be prepared to comply with their renewable volume obligations (RVOs or “RFS obligations”) for the 2020 compliance year by the applicable compliance deadlines, likely because they received SREs in recent years and assumed they would continue. Additionally, the 2019, 2020, and 2021 compliance deadlines have been compressed  19 and some small refineries have stated that they have been unable to acquire the RINs they need to comply with their RFS obligations. 20 For these reasons, EPA believes it is appropriate to allow all small refineries—including those that carried forward a 2019 RIN deficit into the 2020 compliance year pursuant to 40 CFR 80.1427(b)—to elect to use the alternative RIN retirement schedule described in Section III to meet their 2020 RFS obligations. This will give small refineries additional time and open a broader range of RIN vintages to acquire and retire the RINs needed to demonstrate compliance for the 2020 compliance year.

Several commenters supported EPA's proposed alternative RIN retirement schedule. However, other commenters stated that the alternative RIN retirement schedule for small refineries is unnecessary, that a small refinery's decision to postpone its RIN purchases is not an adequate reason for providing this additional flexibility, and that EPA should explicitly limit the alternative RIN retirement schedule to only the 2020 compliance year. These commenters asserted that small refineries were put on notice regarding the uncertainty of their 2019 and 2020 SRE petitions by the RFA opinion, then notified again in December 2021 when EPA proposed to deny 65 pending SRE petitions. Thus, the commenters argued, small refineries had ample awareness of EPA's SRE petition evaluation criteria such that they should have had no reasonable expectation of receiving exemptions, given the high burden of demonstrating that EPA's RIN cost passthrough findings do not apply to them. Furthermore, they argued, small refineries had ample opportunity to begin planning and preparing for RFS compliance and should not again postpone their compliance planning and preparation. These commenters also asserted that EPA already provided significant support to small refineries by retroactively lowering the 2020 volumes, extending the 2019, 2020, 2021, and 2022 compliance deadlines, and issuing the April 2022 and June 2022 Compliance Actions (hereinafter the “Compliance Actions”), 21 thereby negating the need for the alternative RIN retirement schedule.

We generally agree that compliance should not be indefinitely postponed for any obligated party—including small refineries—and that small refineries should plan for compliance and not delay their RIN purchases. However, this is not EPA's sole justification for this action. Instead, we aim to avoid having small refineries fall into noncompliance due to their expectation that EPA would continue to grant SREs, largely because such noncompliance would exacerbate existing uncertainty in the RIN market. The goal of the alternative RIN retirement schedule is not to provide small refineries with a means of avoiding compliance with their RFS obligations, but rather to support small refineries in their transition into positions where they will be able to comply with their RVOs on an ongoing basis. This will also ensure the use of renewable fuels in the U.S. as required by the RFS program and help provide certainty in the RFS program and fuels markets given the unique circumstances as a result of our June 2022 actions. While we agree that small refineries were given some notice regarding the importance of RIN cost passthrough in our evaluation of SRE petitions by the RFA opinion and the likelihood that it would affect their ability to continue receiving annual SREs, that awareness does not resolve the consequences of the challenges facing small refineries, including the current limitations on RIN availability and the resulting impact on the RFS program and the fuels markets in general. Additionally, we did not propose, nor are we finalizing, an extension of the alternative RIN retirement schedule beyond the 2020 compliance year.

For the reasons provided herein, we are providing an alternative RIN retirement schedule to small refineries for the 2020 compliance year to facilitate their transition into full compliance with the RFS program. This alternative RIN retirement schedule will decrease the number of RINs that small refineries must acquire in the near term, extend the time period over which small refineries can plan and implement their RIN transactions, and allow the use of RINs generated in future compliance years, thereby reducing the immediate financial impacts on small refineries, and in so doing the impacts on the RIN market and the RFS program as a whole within the broader fuels market.

Some commenters asserted that the alternative RIN retirement schedule would harm the RFS program and lead to increased uncertainty in the RIN market. The commenters stated that the market would not know how small refineries would choose to comply—whether by the 2020 compliance deadline or using the alternative RIN retirement schedule—and that this would undermine reliability and predictability in the RIN market. We disagree with these assertions. The alternative RIN retirement schedule aims to bring small refineries into a routine of complying with their RVOs, thereby restoring predictability and reliability in the RIN market while moderating the immediate impacts on the RFS program and fuels markets. While the alternative RIN retirement schedule may result in some limited uncertainty in the RIN market, we believe it is outweighed by the benefit of increasing the likelihood that small refineries will be able to comply with their 2020 obligations and that any such uncertainty can be reduced by providing greater transparency on the utilization of the alternative RIN retirement schedule. Therefore, we intend to post information and aggregated data related to the alternative RIN retirement schedule on the RFS SRE website. 22 Such information may include the number of small refineries that opt-in to the alternative RIN retirement schedule, the refinery names and facility locations, 23 and the total portion of the 2020 RVO that small refineries are complying with using the alternative RIN retirement schedule. We believe that posting this information will provide necessary transparency as to the size and scope of the impact of the alternative RIN retirement schedule.

We are allowing any refinery that meets the definition of “small refinery”  24 for the 2020 compliance year to use this alternative RIN retirement schedule, regardless of whether it submitted an SRE petition for 2020 or recently received an SRE denial. Almost all small refineries submitted an SRE petition for 2020 that was denied in the June 2022 SRE Denial. We further believe that the alternative RIN retirement schedule should be provided to all small refineries because the previous uncertainty surrounding the availability of SREs potentially affected all small refineries, which “may at any time petition” for an SRE. 25

Several commenters highlighted that the proposed regulations were inconsistent with EPA's stated intent in the preamble of the proposed rule to allow all small refineries to use the proposed alternative RIN retirement schedule. The proposed regulations, they noted, stated that a small refinery must meet the requirements of 40 CFR 80.1441(e)(2)(iii) in order to avail itself of the alternative RIN retirement schedule. The commenters stated that there is a distinction between meeting the requirements of the definition of “small refinery” in 40 CFR 80.1401 and qualifying for an SRE under 40 CFR 80.1441(e)(2)(iii). 26 We agree and have clarified the final regulations to reflect that a small refinery must meet the definition of “small refinery” in 40 CFR 80.1401 in the applicable compliance year ( i.e., 2020) in order to elect to use the alternative RIN retirement schedule.

We did not receive any comments objecting to limiting the alternative RIN retirement schedule for 2020 to only small refineries and, therefore, are finalizing it as proposed. However, one commenter stated that EPA's prior action to retroactively reduce the 2020 standards to preserve the carryover RIN bank and ensure that sufficient RINs were available for 2020 compliance made the proposed alternative RIN retirement schedule unnecessary. We disagree with this assertion and believe that it is appropriate to provide this alternative RIN retirement schedule for small refineries for their 2020 RFS obligations because it responds to their unique circumstances at this time. Some small refineries have stated that they have not been acquiring RINs ratably while producing transportation fuels that incur an RFS obligation in anticipation of EPA granting their SRE petitions as it had in past years, a result that did not manifest. 27 Currently, the available RINs  28 small refineries need for compliance with their 2020 RVOs are being held in large part by other obligated parties that likely intend to use these RINs for compliance with their own RFS obligations, and those parties may not be willing to sell them. 29 While the revisions to the 2020 standards made it possible for them to be met by the market as a whole, those revisions did not take targeted action to assist individual compliance by small refineries. For these reasons, many small refineries may not be prepared to comply with their 2020 RVOs by the 2020 compliance deadline. Therefore, we are providing small refineries with more time to acquire RINs and allow the use of a broader range of RIN vintages through the alternative RIN retirement schedule, which we believe will help resolve some of the obstacles small refineries may currently be facing.

The alternative RIN retirement schedule is an extended period over which small refineries must acquire and retire RINs to demonstrate compliance with their 2020 RFS obligations. The alternative RIN retirement schedule includes five quarterly RIN retirement deadlines that extend into the 2024 calendar year, thereby allowing small refineries to potentially use 2021, 2022, 2023, and 2024 RINs to satisfy a portion of their 2020 RVOs. We are providing this schedule to allow over 18 months between the June 2022 SRE Denial and the final 2020 RVO quarterly RIN retirement deadline of February 1, 2024, for small refineries to satisfy, in full, their 2020 RVOs. Table III.1 provides the alternative RIN retirement schedule and expected RIN vintages that can be used for each quarterly RIN retirement deadline, along with annual compliance reporting deadlines:

We are establishing these specific RIN retirement deadlines so that they will not overlap with other RFS compliance reporting deadlines. This approach will allow EPA staff to implement and oversee the RIN retirements more effectively and mitigate the potential for confusion on the part of participating small refineries that will have overlapping compliance reporting requirements. We are setting specific dates for these deadlines—as opposed to tying them to the effective date of this or another RFS-related action—to provide greater certainty regarding the RIN retirement deadlines under the alternative RIN retirement schedule.

We are establishing the five quarterly RIN retirement deadlines because this will allow small refineries additional time to acquire RINs, as well as provide small refineries with access to additional newer RIN vintages, as any valid RIN at the time of retirement can be used to demonstrate compliance. In this way, the alternative RIN retirement schedule strikes a balance between easing the compliance burden for small refineries while not indefinitely postponing their compliance demonstrations, thereby also supporting the integrity of the RFS program and ensuring the use of renewable fuels in the U.S. The extended RIN retirement schedule and expanded RIN vintage eligibility will help individual small refineries fully comply, and in so doing will strengthen the entire RFS program following the recent delays in issuing SRE petition decisions for 2019 and 2020 and in establishing the RFS standards for 2021 and 2022 (and revised standards for 2020).

Several commenters stated that acquiring and retiring RINs for the 2020 compliance year over five quarterly installments would still impose too high of a compliance burden that small refineries could not bear. These commenters advocated for EPA to allow all small refineries to use the same approach to demonstrating compliance with their 2019 and 2020 RFS obligations that EPA provided to the 31 small refineries for their 2016-2018 RFS obligations in the Compliance Actions. These commenters asserted that the RIN market fundamentally disadvantages small refineries that comply by purchasing RINs, and that the extended time to purchase RINs would not remedy this situation.

We disagree that using the approach suggested by commenters is appropriate for the 2019 and 2020 compliance years. First, the unique confluence of circumstances that justified the Compliance Actions for the 31 small refineries' 2016-2018 RFS obligations does not exist for the small refineries that have unmet 2019 and 2020 RFS obligations. 30 In particular, EPA had not previously granted SREs for 2019 and 2020, which it then subsequently revoked, nor do we find that compliance is not feasible for small refineries for 2019 and 2020. Second, we fundamentally disagree that a small refinery is disadvantaged by needing to purchase RINs instead of being able to blend renewable fuels into their petroleum-based transportation fuels to separate RINs, as explained in the June 2022 SRE Denial. Indeed, extending the unusual remedy provided in the Compliance Actions to the 2019 and 2020 RVOs would be wholly inappropriate, as it would be contrary to the purpose of transitioning small refineries into a compliance posture and ignore the unique circumstances that warranted such an extreme compliance demonstration for the 2016-2018 RVOs, thereby exacerbating uncertainty in the RIN market. Nevertheless, we believe the alternative RIN retirement schedule for 2020 is necessary and appropriate for facilitating RFS compliance by small refineries.

Under the alternative RIN retirement schedule, a small refinery must retire at least 20 percent of its 2020 RVOs by the first quarterly RIN retirement deadline, at least 40 percent by the second quarterly RIN retirement deadline, and so on, as laid out in Table III.1, such that a small refinery's full 2020 RVOs must be met on the final RIN retirement deadline of February 1, 2024. For example, under the alternative RIN retirement schedule, if a small refinery retired RINs sufficient to meet 30 percent of its 2020 RVOs by the 2020 compliance deadline of December 1, 2022, then it would not be obligated to retire additional RINs towards its 2020 RVOs until the second quarterly RIN retirement deadline ( i.e., May 1, 2023), at which time it would be obligated to retire RINs equal to at least 40 percent of its 2020 RVOs.

We are also allowing small refineries to use any valid RINs at the time of retirement for compliance, including RIN vintages after 2020 ( i.e., 2021, 2022, 2023, and 2024 RINs) until such RIN vintages expire ( e.g., 2021 RINs expire after the 2022 compliance deadline). This will allow small refineries access to additional RINs while maintaining compliance with the RFS regulations regarding the validity and expiration of RINs. 31 Doing so will increase the likelihood of a small refinery satisfying its outstanding 2020 obligations and that the volume targets are fulfilled. Given the relatively small proportion of the overall demand for RINs that is represented by all small refineries ( i.e., less than 10 percent of the total RVO for any given year) and that there is likely only a limited number of small refineries that will utilize the alternative RIN retirement schedule, we do not anticipate that this action will have any significant impact on the overall RIN market in future years through increased demand for future year vintages given the small volume of RINs likely to be used through the alternative RIN retirement schedule as compared to the larger renewable fuels market.

One commenter asserted that it is inappropriate to allow the use of RINs generated in 2023 and 2024 as part of the alternative RIN retirement schedule because EPA has not yet established the RVOs for those years. However, the commenter did not explain why the fact the EPA has not yet set the standards for 2023 and 2024 makes the use of those vintage RINs inappropriate for the alternative RIN retirement schedule. Indeed, this is an integral aspect of the alternative RIN retirement schedule as it eases current RIN supply constraints and provides small refineries with sufficient time to plan and execute their RIN purchases.

Other commenters asserted that the proposal to allow small refineries to use 2023 and 2024 RINs for compliance with their 2020 obligations under the alternative RIN retirement schedule did not go far enough to support small refineries. These commenters asserted that EPA should allow small refineries to use any 2019 or 2020 RINs they currently hold for compliance in any compliance year through 2023. One commenter further suggested that EPA could create a separate compliance category for small refineries and set their RFS obligations at the same average percentage of their RVOs based on the number of RINs the group currently holds.

We disagree that these additional flexibilities are appropriate or necessary to bring small refineries into compliance with their RFS obligations. Small refineries currently holding 2019 or 2020 RINs are encouraged to use those RINs for 2019 or 2020 compliance, such that there will be fewer RINs that they need to acquire going forward. Additionally, EPA did not propose a new methodology to create small refinery-specific RVOs and such comments overlook the fact that the RFS obligations are already proportional to an obligated party's production of gasoline and diesel fuel. Moreover, CAA section 211(o)(3)(B)(ii)(III) requires EPA to establish a single annual standard applicable to all obligated parties. The commenter did not provide any explanation as to how EPA could establish a separate annual obligation for only small refineries under the terms of CAA section 211(o)(3)(B)(ii)(III).

We are requiring small refineries to notify EPA of their intent to use the alternative RIN retirement schedule on or before the 2020 compliance deadline. This notice will inform EPA as to which small refineries are using the alternative RIN retirement schedule and will allow EPA to monitor and track the progress of the small refineries towards full compliance with their 2020 RVOs. We are requiring a small refinery to send us a letter signed by the responsible corporate officer expressing their intent to comply using the alternative RIN retirement schedule. We will acknowledge receipt of the small refinery's notification of their intent to comply using the alternative RIN retirement schedule. We did not receive any comments on this aspect of the proposal. Accordingly, we are finalizing as proposed.

Under the alternative RIN retirement schedule, we will still require that participating small refineries submit a 2020 annual compliance report by the 2020 compliance deadline. The 2020 annual compliance report is necessary to establish a small refinery's 2020 RVOs, which will be used by the small refinery to determine minimum RIN retirements for each installment under the alternative RIN retirement schedule, and for EPA to verify that the small refinery is meeting its quarterly RIN retirement obligations. We did not receive any comments on this aspect of the proposal and are finalizing it as proposed.

As a condition to use the alternative RIN retirement schedule, the obligated party that owns/operates the small refinery must, on its annual RFS compliance report, provide the individual-small refinery RVO for the 2020 compliance year ( i.e., comply on a refinery-basis for that small refinery). Under the RFS program, obligated parties must either comply with their RVOs on an individual-refinery basis or an aggregated basis ( i.e., they combine the RVOs from all of their refineries). If an obligated party owns other refineries with RVOs in addition to the small refinery and complies on an aggregated basis, it would be unclear what portion of the aggregated RVOs apply to only the small refinery and whether the obligated party has met the RIN retirement quotas under the alternative RIN retirement schedule. Therefore, as a condition for a small refinery to use the alternative RIN retirement schedule, the small refinery must demonstrate compliance on an individual basis so that RINs can be retired for the specific small refinery's RVOs. Similarly, if an obligated party carries forward a RIN deficit from 2019 into 2020, that obligated party would need to comply on an individual-refinery basis for the 2019 compliance year as well. This condition allows EPA to track the small refinery's progress towards compliance with its 2020 obligations more effectively, and will not unduly hinder obligated parties in making their compliance demonstrations. We did not receive any comments on this aspect of the proposal. Accordingly, we are finalizing as proposed.

We are not changing the regulatory provisions governing the use of cellulosic waiver credits (CWCs). The regulations currently state that CWCs “may only be used for an obligated party's current-year cellulosic biofuel RVO and not towards any prior year deficit cellulosic biofuel volume obligations.”  32 We believe this approach is appropriate because, in recent years, the use of CWCs has decreased as obligated parties have largely been complying with their cellulosic RVO through RIN retirements. 33 Accordingly, small refineries wishing to use CWCs for their 2020 cellulosic biofuel RVO must purchase and use CWCs by the 2020 compliance deadline. 34 Additionally, allowing small refineries to use CWCs to meet their cellulosic biofuel RVO through the alternative RIN retirement schedule ( i.e., after the 2020 compliance deadline) would introduce logistical challenges for EPA and small refineries that would complicate the implementation of the alternative RIN retirement schedule. Moreover, it is unlikely that modifications to the CWC regulations would provide small refineries with a meaningful benefit in complying with their RFS obligations, when viewed in light of what we have already provided in this alternative RIN retirement schedule. We did not receive any comments on this aspect of the proposal and are finalizing it as proposed.

Under the alternative RIN retirement schedule, a participating small refinery will not be permitted to carry forward a RIN deficit from 2021 or a subsequent year into the following compliance year unless it had fully complied with its 2020 RFS obligations. We are imposing this condition as a prerequisite to carrying forward a future RIN deficit because we want to prevent the scenario in which a small refinery continuously accrues annual RIN deficits, placing it in the position where it is no longer capable of complying with its accrued RFS obligations. The alternative RIN retirement schedule is intended to support small refineries in achieving and maintaining full compliance with their RFS obligations and get them on track for future compliance, not to permit them to indefinitely delay their compliance demonstrations.

Some commenters supported the RIN deficit carry-forward restriction, while several other commenters opposed this limitation as being contrary to EPA's goal of providing meaningful support to small refineries to achieve compliance. The commenters opposing this restriction also asserted that it is contrary to CAA section 211(o)(5)(D) in that it denies small refineries that would be in compliance with the alternative RIN retirement schedule a statutory flexibility that would otherwise be available to them. We disagree that this restriction is contrary to CAA section 211(o)(5)(D). In this instance, EPA is allowing small refineries to carry forward RIN deficits from 2019 into 2020 and satisfy their combined obligations using the alternative RIN retirement schedule. Thus, EPA is not depriving small refineries of that statutory flexibility. However, as the statute requires that such a deficit be satisfied in the next compliance year, and the compliance demonstration for 2020 is prolonged by the alternative RIN retirement schedule, it would be a violation of the statute and regulations to allow additional deficits to be carried forward. Moreover, even if a small refinery chose not to carry forward a 2019 RIN deficit and only used the alternative RIN retirement schedule for its 2020 RVOs, permitting a 2021 deficit to be carried forward before the 2020 obligations have been fully satisfied would only encourage small refineries to again delay their compliance preparation and demonstration, contrary to the goals of the alternative RIN retirement schedule and the RFS program. Additionally, a small refinery would again be eligible to carry forward a deficit upon full demonstration of its 2020 obligation; thus, it is the decisions of the small refinery itself that determine whether or not they can utilize the statutory and regulatory flexibilities provided by the deficit carry forward provision.

We note that all of the already existing regulatory flexibilities for small refineries—including the ability to satisfy up to 20 percent of their 2019 RVOs using 2018 carryover RINs under 40 CFR 80.1427(a)(5) and the ability to carry forward a RIN deficit from 2019 to 2020 if they did not carry forward a RIN deficit from 2018 under 40 CFR 80.1427(b)—will continue to be available under the alternative RIN retirement schedule. It should also be noted that other current RFS regulations will also remain in effect, including that small refineries that use 2018 RINs to meet up to 20 percent of their 2019 RVOs must do so by the 2019 compliance deadline because 2018 RINs expire after the 2019 compliance deadline and become invalid. 35 Similarly, any 2019 RINs that a small refinery uses to satisfy up to 20 percent of its 2020 RVOs must be retired for compliance by the 2020 compliance deadline because 2019 RINs expire after the 2020 annual compliance deadline and become invalid. 36

As described above, participating small refineries will still be able to use any valid RINs at the time of retirement under the alternative RIN retirement schedule. We believe that this approach will encourage participating small refineries to retire a maximum number of 2019 RINs for their 2020 RVOs while providing flexibility for small refineries to obtain and retire valid RINs for 2021, 2022, 2023, and 2024 to satisfy their 2020 RVOs.

To help implement the alternative RIN retirement schedule for participating small refineries, we intend to assist parties with procedures for submitting forms that they would use. For example, we plan to leverage existing forms and procedures for the submission of reports and transactions under our e-reporting systems. Due to the limited number of small refineries, we plan to work individually with participating small refineries. To further help communicate this alternative RIN retirement schedule for small refineries, we also intend to post the deadlines for the alternative RIN retirement schedule on our website. 37

Lastly, we received comments from one commenter that were beyond the scope of this rulemaking. This commenter raised issues facing the RFS program as a whole, such as renewable fuel blending challenges relating to the E10 “blendwall,” the imposition of RIN price controls, and the potential environmental impacts of renewable fuel production. While the proposed RIN retirement schedule touched on many challenges small refineries currently face—including the final RFS standards, RIN price controls, and the environmental impacts of renewable fuel production—these matters are beyond the scope of this rulemaking. Many of these issues, moreover, have been addressed in separate proceedings. Therefore, these topics are not further addressed in this action.

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

The information collection activities in this final rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2718.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

The information to be collected is necessary to implement the alternative RIN retirement schedule for small refineries. As part of this rule, a participating small refinery will submit a notification to EPA indicating that the small refinery will use the alternative RIN retirement schedule and maintain records related to the determination and retirement of RINs under the alternative RIN retirement schedule. We estimate that 13 small refineries will use the alternative RIN retirement schedule.

Respondents/affected entities: Small refineries.

Respondent's obligation to respond: Mandatory in order to receive compliance flexibility under § 80.1444.

Estimated number of respondents: 39. 38

Frequency of response: Notification letters would typically be a one-time response. Recordkeeping is performed on occasion, and as needed.

Total estimated burden: 19 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $1,710, all of which is labor costs, and which includes $0 annualized capital or operation & maintenance costs.

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, EPA will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule has no net burden on the small entities subject to the rule. This action reduces burden to small refineries by creating an alternative RIN retirement schedule for their 2020 RVOs. As small refineries have no obligation to use the alternative RIN retirement schedule, there is no additional cost to small refineries if they simply comply with the existing regulatory schedule. We do not anticipate that there will be any costs associated with these changes and that the alternative RIN retirement schedule may reduce costs. We have therefore concluded that this action will have no net regulatory burden for all directly regulated small entities.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local, or tribal governments. Requirements for the private sector do not exceed $100 million in any one year.

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

This action does not have tribal implications as specified in Executive Order 13175. This action only affects RFS obligated parties. Thus, Executive Order 13175 does not apply to this action.

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

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

This action does not involve technical standards.

EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does establish an environmental health or safety standard. This action addresses the 2020 compliance deadline for small refineries only and does not impact the RFS standards themselves.

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

Statutory authority for this action comes from section 211(o) of the Clean Air Act, 42 U.S.C. 7545(o).

For the reasons set forth in the preamble, EPA amends 40 CFR part 80 as follows:

GSA is issuing a final rule with a 60-day comment period amending the Federal Management Regulation (FMR) to update certain provisions regarding Facility Management. These revisions will enable access to property under the direct custody and control of GSA, or property for which Federal agencies are acting under a delegation of authority from GSA, for union organizers with the intent to educate employees of private sector contractors working in these Federal Government facilities about the benefits of organizing, collective bargaining and union membership.

In 1935, in the middle of the Great Depression, Congress enacted the National Labor Relations Act, as amended, 29 U.S.C. 151-169 (NLRA), to protect the rights of workers to organize into trade unions and engage in collective bargaining and collective action. The NLRA was a landmark piece of legislation that sought to correct the “inequality of bargaining power between employees . . . and employers . . .” (29 U.S.C. 151) and promoted collective bargaining between trade unions on behalf of their members and the business entities that employed them.

In the decades that followed, Congress also enacted reforms to civil service, as the government grew in size and complexity. These efforts resulted in the Civil Service Reform Act of 1978, as amended, Public Law 95-454 (October 13, 1978), 5 U.S.C. 1101 et seq. (CSRA), the most comprehensive civil service legislation in almost a century. These reforms included the Federal Service Labor-Management Relations Statute, which allowed Federal employees to form unions and engage in collective bargaining regarding personnel practices. Among many other provisions, this statute required Federal agencies to allow union organizers access to Federal property for the purpose of conducting union business, such as organizing, holding regular meetings and dispute settlement.

On April 26, 2021, President Biden issued Executive Order (E.O.) 14025, titled “Worker Organizing and Empowerment” (available at 86 FR 22829 (April 29, 2021); https://www.whitehouse.gov/briefing-room/presidential-actions/2021/06/25/executive-order-on-diversity-equity-inclusion-and-accessibility-in-the-federal-workforce/ ), section 2 of which established a White House Task Force on Worker Organizing and Empowerment (Task Force) to identify executive branch policies, practices and programs that could be used, consistent with applicable law, to promote the Administration's policy of empowering workers to organize and successfully bargain with their employers. The Task Force recommended that GSA, in consultation with the Office of Management and Budget (OMB), consider revising the FMR to allow that worker organizing and collective bargaining among employees of contractors working in Federal Government facilities are not covered or restricted by the general prohibition on soliciting, posting and distributing materials in GSA-controlled property. These recommendations are available at https://www.dol.gov/sites/dolgov/files/OPA/newsreleases/2022/02/OSEC20220195.pdf on page 20.

GSA, in consultation with OMB, is updating the FMR on soliciting, vending and debt collection consistent with the Task Force recommendation. Specifically, GSA is updating the FMR to address the recommendation to include an exception to the prohibition on soliciting, posting or distributing materials, or seeking donations, on GSA-controlled property. The FMR currently contains a general prohibition on the activities of soliciting and posting and distributing materials on GSA-controlled property at 41 CFR 102-74.410 and 102-74.415, respectively. This prohibition only covers activities and does not set forth any restrictions or exemptions regarding the individuals performing those activities. The existing regulation provides six exceptions to the general prohibition in 41 CFR 102-74.410 concerning soliciting, vending and debt collection in or on Federal property, including one for the solicitation of labor organization membership or dues authorized by occupant agencies under the CSRA. This exception authorizes union organizer access to Federal employees working in GSA-controlled property to educate Federal employees who either wish to organize or are already members of a union.

Requests by union organizers to meet with Federal contractor employees in space occupied by the legislative or judicial branches are beyond the scope of the order because executive orders do not apply to the legislative or judicial branches of the Federal Government.

This final rule will enable labor organizations who represent contractors working in Federal Government facilities to access Federal property to educate Federal contractors about the benefits of organizing, collective bargaining and union membership. If a security clearance is required for access to the Federal property, labor organizations will still have to follow the normal process of gaining access. This final rule also furthers the goals of E.O. 14035, “Diversity, Equity, Inclusion, and Accessibility in the Federal Workforce.” This E.O. reflects the goal of “cultivat[ing] a workforce that draws from the full diversity of the Nation,” and directs agencies to identify strategies to promote diversity and equity while removing barriers to inclusion and success for employees in marginalized groups. Unions can provide greater protection for employees in marginalized groups as they advocate for employees and allow for collective bargaining on behalf of marginalized employees who may not otherwise be comfortable with or able to do so on their own.

This final rule amends 41 CFR part 102-74 by adding a new paragraph to § 102-74.410. The section outlines the ban on soliciting contributions, vending goods, advertising, and debt collection on Federal property. The current FMR already provides an exception for union organizing activities for Federal employees; however, this rule will add union organizing activities for labor organizations representing or seeking to represent contractors working in GSA-controlled property to the list of authorized exceptions to the general prohibition. The addition of this new exception does not in and of itself create a direct employment relationship with the Federal Government nor does it replace or prohibit the implementation of current or future Federal agency or contractor policies regarding access to Federal property or the regulation of conduct in or on Federal property.

GSA has conducted an economic analysis of the proposed change and determined that the total predicted monetary costs to the Government and to the private sector are $1,334,937 over the next 10 years. (For a full breakdown of compliance costs, see section VI of this rule.) The benefit to the Federal agencies and Federal contractors may include no loss of productivity due to workers taking leave to attend labor organization or collective bargaining presentations or unscheduled meetings. Federal contractors' employees will also benefit from having easier access to union organizers and better opportunities for collective bargaining.

In addition to the changes discussed with this final rule, GSA requests public comments to better understand how the agency can promote the goals articulated in E.O. 14025, as well as providing opportunities for all employees to learn about and access unions should they deem it beneficial. These comments will inform possible policy formation in the future, as well as future Task Force projects.

This rulemaking is exempt from the advance notice-and-comment and delayed-effective-date requirements of the Administrative Procedure Act pursuant to 5 U.S.C. 553(a)(2) because this rulemaking relates to agency management or personnel or to public property, loans, grants, benefits, or contracts. This rulemaking relates to both GSA's agency management and public property, as it involves the internal process of managing conduct on public property by GSA and Federal agencies acting under a delegation of authority from GSA.

E.O.s 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits of reducing costs, harmonizing rules and promoting flexibility. OMB's Office of Information and Regulatory Affairs has determined that this is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, “Regulatory Planning and Review,” dated September 30, 1993.

The OMB Office of Information and Regulatory Affairs has determined that this rule is not a “major rule” as defined by 5 U.S.C. 804(2). Additionally, this rule is excepted from Congressional Review Act reporting requirements prescribed under 5 U.S.C. 801 since it relates to agency management or personnel under 5 U.S.C. 804(3).

This final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it applies to agency management or personnel. Therefore, an initial regulatory flexibility analysis has not been performed. GSA invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

GSA will also consider comments from small entities and other interested parties concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FMR Case 2022-02) in correspondence.

GSA determined, based on an economic model, that there will be compliance costs associated with the new rule. For the model, GSA assumed that compliance activities would need to take place in federally owned and leased buildings and buildings under construction. Compliance activities would consist of developing guidance around providing union organizer access to Federal facilities where employees of private sector contractors are working and distributing that guidance to building managers for their review. Below is a list of activities related to regulatory familiarization that GSA anticipates will occur.

GSA calculates it will take 8 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 30 hours each in the first year to develop guidance informing the owned building community of the changes to union organizer access to Federal property. Therefore, GSA calculated the total estimated cost for this part of the rule to be $18,310 (= 8 × $76.29 [GS-14, step 5 rate] × 30 hours).

Based on recent experience, GSA estimates that the guidance document will be updated about once every 10 years and the updated guidance will be redistributed to appropriate individuals. GSA calculates it will take 8 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 5 hours each once every 10 years to develop updates to the guidance informing the owned building community of the changes to union organizer access to Federal property. Therefore, GSA calculated the total annual estimated cost for year 10 for this part of the rule to be $3,052 (= 8 × $76.29 [GS-14, step 5 rate] × 5 hours).

GSA calculates it will take 12 GSA employees, on average with a GS-15, step 5, with an average hourly rate of $89.73/hour, 0.25 hours each to distribute the union organizer access guidance to the owned building community once every 10 years. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $269 (= 12 × $89.73 [GS-15, step 5 rate] × 0.25 hours).

There are 893 GSA employees in the Building Manager, GS-1176, job series. GSA calculates it will take 893 GSA building managers, on average with a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 hours each to receive and review the initial and any updates to the union organizer access guidance, again estimated to be once every 10 years. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $14,413 (= 893 × $64.56 [GS-13, step 5 rate] × 0.25 hours).

GSA calculates it will take 12 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 30 hours each in the first year to develop awareness communication at the headquarters level for occupant agencies on the change in the union organizer access policies. Therefore, GSA calculated the total estimated cost for this part of the rule to be $27,464 (= 12 × $76.29 [GS-14, step 5 rate] × 30 hours).

GSA calculates it will take 12 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 5 hours once every 10 years to develop awareness communication at the headquarters level for occupant agencies on any updates to the union organizer access policies. Therefore, based on the prior estimation of updates to the policies occurring once every decade, GSA calculated the total annual estimated cost for year 10 for this part of the rule to be $4,577 (= 12 × $76.29 [GS-14, step 5 rate] × 5 hours).

There are 893 GSA employees in the building manager, GS-1176, job series. GSA calculates it will take 893 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 0.5 hours each to develop awareness communication at the regional or local level for occupant agencies on the union organizer access policies once every 10 years. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $34,063 (= 893 × $76.29 [GS-14, step 5 rate] × 0.5 hours).

GSA calculates it will take 1 GSA employee, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 0.25 hours to distribute the regional or local level awareness communication to occupant agencies on any changes to the union organizer access policies, estimated to occur once every 10 years. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $19 (1 × $76.29 [GS-14, step 5 rate] × 0.25 hours).

There are 893 GSA employees in the building manager, GS-1176, job series. GSA calculates it will take 893 GSA employees, on average with a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 hours each to distribute the regional or local level awareness communication to occupant agencies on the changes to the union organizer access policies once every 10 years, based on the prior estimation. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $14,413 (= 893 × $64.56 [GS-13, step 5 rate] × 0.25 hours).

GSA estimated the costs associated with Federal employees based on historical familiarization of headquarters, regional, and local level employees and subject matter expert judgment. Subject matter experts included GSA realty specialists and leasing contracting officers. GSA calculates it will take 10,000 Federal employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 0.5 hours each to receive and review the awareness communication on the union organizer rule once every 10 years, based on the prior estimation of changes to the policies occurring once each decade. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $381,450 (= 10,000 × $76.29 [GS-14, step 5 rate] × 0.5 hours).

GSA calculates it will take 8 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 30 hours each in the first year to develop awareness communication on the union organizer rule. Therefore, GSA calculated the total estimated cost for this part of the rule to be $18,310 (= 8 × $76.29 [GS-14, step 5 rate] × 30 hours).

GSA calculates it will take 8 GSA employees, on average with a GS-14, step 5, with an average hourly rate of $76.29/hour, 5 hours each to develop awareness communication as a building requirement on the union organizer access policies once every 10 years. Therefore, GSA calculated the total annual estimated cost for year 10 for this part of the rule to be $3,052 (= 8 × $76.29 GS-14 Step 5 rate × 5 hours).

GSA calculates it will take 12 GSA employees, on average with a GS-15, step 5, with an average hourly rate of $89.73/hour, 0.25 hours each to distribute the awareness communication as a building requirement on the union organizer access policies once every 10 years, based on the prior estimation. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $269 (= 12 × $89.73 [GS-15, step 5 rate] × 0.25 hours).

GSA assumes 3 GSA employees per large construction project and 1 GSA employee per small construction project receiving and reading the communication, which totals to 5,846 GSA employees. GSA calculates it will take 5,846 GSA employees, on average with a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 hours each to receive and review the awareness communication as a building requirement on union organizer access policies once every 10 years, based on the prior estimation. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $94,354 (= 5,846 × $64.56 [GS-13, step 5 rate] × 0.25 hours).

GSA calculates the total government costs to be $603,334 in the first year and $549,931 in year 10. The table below shows total present value and annualized costs for 10 years.

Public costs associated with this rule include both large and small businesses managing buildings with ongoing construction projects in or on GSA-controlled property. The GSA Office of Design and Construction estimated that there are 109 capital projects under construction. GSA assumes each large business operating a building under construction will have one employee receive and review the awareness communication. GSA calculates it will take 109 large business employees, on average with a GS-13, step 5, with an average hourly rate of $64.56/hour, 0.25 hours to receive and review the awareness communication as a building requirement on the union organizer rule once every 10 years. GSA estimates the average hourly rate of $64.56 for the large business employees as the private sector pay equivalent of a GS-13, step 5. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $1,759 (= 109 × $64.56 [GS-13, step 5 rate] × 0.25 hours).

GSA estimates an average of 5,519 small businesses operating a building under construction each year. GSA assumes each small business operating a building under construction will have one employee receive and review the awareness communication. GSA calculates it will take 5,519 small business employees, with an average hourly rate of $64.56/hour, 0.25 hours to receive and review the awareness communication as a building requirement on the union organizer rule once every 10 years. GSA estimates the average hourly rate of $64.56 for the small business employees as the private sector pay equivalent of a GS-13, step 5. Therefore, GSA calculated the total annual estimated cost for year 1 and year 10 for this part of the rule to be $89,077 (= 5,519 × $64.56 [GS-13, step 5 rate] × 0.25 hours).

GSA calculates the total undiscounted public costs related to buildings under construction to be $90,836 over 10 years. The table below shows total present value and annualized costs for 10 years.

The overall total additional undiscounted cost of this final rule is estimated to be $1,334,937 over a 10-year period. GSA did not identify any cost savings based on the impact of the rule.

The preferred alternative is the process laid out in the analysis above. However, GSA has analyzed two alternatives to the preferred process.

Alternative 1: GSA could decide to take no regulatory action and not allow exceptions for labor organizations representing or seeking to represent contractors working in GSA-controlled property to access the property. No action from the government would be required. Union organizers might still be able to access GSA-controlled property; however, they would have to have a Federal employee act as their host, depending on access rules for the specific building. This option would be inconsistent with the Task Force recommendation based on E.O. 14025, as it would mean that some buildings or worksites would be inaccessible to union organizers, thus denying workers opportunities to be informed of the benefits of unions and collective bargaining. As a result, GSA rejects this alternative.

Alternative 2: GSA could take limited regulatory action based on the policy direction of E.O. 14025 and the recommendation from the Task Force. Limited action from the government would be required, and would only be partially consistent with E.O. 14025 and the Task Force recommendation, and would only partially provide workers opportunities to be informed of the benefits of unions and collective bargaining. As a result, GSA rejects this alternative.

The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors or members of the public, that require the approval of OMB under 44 U.S.C. 3501 et seq.

For the reasons set forth in the Preamble, GSA amends 41 CFR part 102-74 as set forth below:

This is a synopsis of the Federal Communications Commission's (Commission) Report and Order, adopted August 25, 2022 and released August 26, 2022. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

The 2022 annual management measures for ocean salmon fisheries (87 FR 29690, May 16, 2022), announced management measures for the commercial and recreational fisheries in the area from the United States (U.S.)/Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 16, 2022, until the effective date of the 2023 management measures, as published in the Federal Register . NMFS is authorized to implement inseason management actions to modify fishing seasons and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Chairman of the Pacific Fishery Management Council (Council), and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions).

Management of the salmon fisheries is divided into two geographic areas: north of Cape Falcon (NOF) (U.S./Canada border to Cape Falcon, OR), and south of Cape Falcon (SOF) (Cape Falcon, OR, to the U.S./Mexico border). The actions described in this document affect the NOF commercial and recreational salmon fisheries, as set out under the heading Inseason Action below.

Consultations with the Council Chairperson on these inseason actions occurred on August 4, 2022 and August 10, 2022. Representatives from NMFS, Washington Department of Fish and Wildlife (WDFW), Oregon Department of Fish and Wildlife (ODFW), California Department of Fish and Wildlife (CDFW) and Council staff participated in these consultations. Members of the Salmon Advisory Subpanel and Salmon Technical Team (STT) were also present on the calls.

These inseason actions were announced on NMFS's telephone hotline and U.S. Coast Guard radio broadcast on the date of the consultations (50 CFR 660.411(a)(2)).

Description of the action: Inseason action #34 modifies the commercial salmon troll fishery from Humbug Mountain, OR, to the Oregon/California border (Oregon Klamath Management Zone (KMZ)). The August 2022 quota increased from 250 Chinook salmon to 658 Chinook salmon through an impact-neutral rollover of unused quota from the July 2022 commercial troll fishery in the same area.

Effective date: Inseason action #34 took effect on August 4, 2022, and remains in effect until August 28, 2022, at 11:59 p.m.

Reason and authorization for the action: The 2022 commercial salmon troll fishery in the Oregon KMZ includes three quota managed seasons: June (800 Chinook salmon), July (400 Chinook salmon), and August (250 Chinook salmon) (87 FR 29690, May 16, 2022). After the July season, 627 Chinook salmon remained uncaught. The annual management measures (87 FR 29690, May 16, 2022) provide that any remaining portion of Chinook salmon quotas in this fishery may be transferred inseason on an impact-neutral basis to the next open quota period. The STT calculated the impact-neutral transfer of 627 Chinook salmon from the July quota to the August quota would result in adding 408 Chinook salmon to the August quota, resulting in an adjusted August quota of 658 Chinook salmon. The quota transfer is impact-neutral for spawning escapement goals for Klamath River fall-run Chinook salmon (KRFC). This change results in KRFC and Sacramento River fall-run Chinook salmon escapement meeting or exceeding the escapement levels forecasted at the April 2022 Council meeting. The quota transfer also preserves 50/50 KRFC harvest sharing between non-tribal Klamath River tribal fisheries and results in a KRFC age-4 ocean harvest rate of 10 percent. This action did not increase the overall 2022 Chinook salmon quota in the SOF commercial salmon troll fishery.

The NMFS West Coast Region Regional Administrator (RA) considered the landings of Chinook salmon in the SOF commercial salmon fishery to date, fishery effort occurring to date as well as anticipated under the proposal, and the Chinook salmon quota remaining and determined that this inseason action was necessary to meet management and conservation objectives. Inseason modification of quotas is authorized by 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #35 modifies the Chinook salmon landing and possession limit for the commercial salmon troll fishery across the entire north of Cape Falcon area, regardless of subarea, to: 40 Chinook salmon per vessel per landing week (Thursday through Wednesday).

Effective date: Inseason action #35 took effect on August 5, 2022, and remains in effect until superseded.

Reason and authorization for the action: Inseason action #35 was necessary to allow opportunity to catch the remainder of the Chinook salmon quota and to allow greater access to coho salmon in the commercial salmon troll fishery. The RA considered the landings of Chinook and coho salmon to date and projected catch, fishery effort occurring to date and projected effort, and quotas set preseason and determined that this inseason action was necessary to meet management goals to fully utilize the salmon quotas set preseason while not exceeding conservation objectives. The modification of commercial landing and possession limits is authorized by 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #36 modifies the Chinook salmon landing and possession limit for the commercial salmon troll fishery across the entire north of Cape Falcon area, regardless of subarea, to: 30 Chinook salmon per vessel per landing week (Thursday through Wednesday).

Effective date: Inseason action #36 took effect on August 11, 2022, and remains in effect until superseded.

Reason and authorization for the action: Inseason action #36 was necessary to slow the rate of Chinook salmon catch in order to preserve the length of the salmon fishing season by setting a lower landing and possession limit. The RA considered the landings of Chinook salmon to date and projected catch, fishery effort occurring to date and projected effort, and quotas set preseason and determined that this inseason action was necessary to provide greater fishing opportunity and provide economic benefit to the fishery-dependent community by preserving season length. The modification of commercial landing and possession limits is authorized by 50 CFR 660.409(b)(1)(i).

All other restrictions and regulations remain in effect as announced for the 2022 ocean salmon fisheries (87 FR 29690, May 16, 2022), as modified by previous inseason action (87 FR 41260, July 12, 2022; 87 FR 49534, August 11, 2022; 87 FR 49534).

The RA determined that these inseason actions were warranted based on the best available information on Pacific salmon abundance forecasts, landings to date, anticipated fishery effort and projected catch, and the other factors and considerations set forth in 50 CFR 660.409. The states and tribes manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone (3-200 nautical miles; 5.6-370.4 kilometers) off the coasts of the states of Washington, Oregon, and California consistent with these Federal actions. As provided by the inseason notice procedures at 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the actions became effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NMFS issues these actions pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). These actions are authorized by 50 CFR 660.409, which was issued pursuant to section 304(b) of the MSA, and are exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. Prior notice and opportunity for public comment on this action was impracticable because NMFS had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook and coho salmon abundance, catch, and effort information were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best scientific information available and that fishery participants can take advantage of the additional fishing opportunity these changes provide. As previously noted, actual notice of the regulatory actions was provided to fishers through telephone hotline and radio notification. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (87 FR 29690, May 16, 2022), the Fishery Management Plan (FMP), and regulations implementing the FMP under 50 CFR 660.409 and 660.411.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date, as a delay in effectiveness of this action would restrict fishing at levels inconsistent with the goals of the FMP and the current management measures.