On July 26, 2022 (87 FR 44273), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to revise the Holtec International HI-STORM Flood/Wind Multipurpose Canister Storage System listing within the “List of approved spent fuel storage casks” to include Amendment No. 8 to Certificate of Compliance No. 1032. Amendment No. 8 revises the description in the certificate of compliance for the HI-STORM Flood/Wind system to clearly indicate that only the portions of the components that contact the pool water need to be made of stainless steel or aluminum. Amendment No. 8 also incorporates other minor editorial corrections.

In the direct final rule published on July 26, 2022, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on October 11, 2022. The NRC did not receive any comments on the direct final rule. Therefore, this direct final rule will become effective as scheduled.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to 14 CFR 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On March 17th, 2022, L2 Consulting Services, Inc., applied for a supplemental type certificate for the installation of a digital system that contains a wireless and hardwired network with hosted application functionality that allows access, from sources internal to the airplane, to the airplane's internal electronic components. The Bombardier Model CL-600-2B16 (604 variant) airplane is a twin-engine business jet with a maximum takeoff weight of 47,600 pounds (21,591 Kg) and a maximum seating capacity of twenty passengers and two crew members.

Under the provisions of title 14, Code of Federal Regulations (14 CFR), § 21.101, L2 Consulting Services Inc., must show that the Bombardier Model CL-600-2B16 (604 variant) airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A21EA, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model CL-600-2B16 (604 variant) airplane, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model CL-600-2B16 (604 variant) airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Bombardier Model CL-600-2B16 (604 variant) airplane will incorporate the following novel or unusual design feature, which is the installation of a digital system that contains a wireless and hardwired network with hosted application functionality that allows access, from sources internal to the airplane, to the airplane's internal electronic components.

The Bombardier Model CL-600-2B16 (604 variant) airplane electronic system architecture and network configuration change is novel or unusual for commercial transport airplanes because it is composed of several connected wireless and hardwired networks. This proposed system and network architecture is used for a diverse set of airplane functions, including:

• flight-safety related control and navigation systems,

• airline business and administrative support, and

• passenger entertainment.

The airplane's control domain and airline information services domain of these networks perform functions required for the safe operation and maintenance of the airplane. Previously, these domains had very limited connectivity with other network sources. This network architecture creates a potential for unauthorized persons to access the aircraft control domain and airline information services domain from sources internal to the airplane, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplane.

The existing FAA regulations did not anticipate these networked airplane-system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems will not be compromised by unauthorized hardwired or wireless electronic connections from within the airplane. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design so that this feature does not allow or reintroduce security threats.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Bombardier Model CL-600-2B16 (604 variant) airplane. Should L2 Consulting Services, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A21EA to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on the Bombardier Model CL-600-2B16 (604 variant) airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of this feature on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Bombardier Model CL-600-2B16 (604 variant) airplane for airplane electronic-system internal access.

1. The applicant must ensure that the design provides isolation from, or airplane electronic-system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, and other assets required for safe flight and operations.

2. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post-type-certification modifications that may have an impact on the approved electronic-system security safeguards.

The substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA finds, pursuant to 14 CFR 11.38(b), that new comments are unlikely, and notice and comment prior to this publication are unnecessary.

The FAA invites interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

The FAA will consider all comments received by the closing date for comments. The FAA may change these special conditions based on the comments received.

On March 17th, 2022, L2 Consulting Services, Inc., applied for a supplemental type certificate for the installation of an electronic network system architecture that will allow increased connectivity to and access from external network sources, ( e.g., operator networks, wireless devices, internet connectivity, service provider satellite communications, electronic flight bags, etc.) to the airplane's previously isolated electronic assets (networks, systems, and databases). The Bombardier Model CL-600-2B16 (604 variant) airplane is a twin-engine, transport category airplane, executive-interior business jet with a maximum takeoff weight of 47,600 pounds (21,591 Kg) and a maximum seating capacity of twenty passengers and two crew members.

Under the provisions of title 14, Code of Federal Regulations (14 CFR), § 21.101, L2 Consulting Services Inc., must show that the Bombardier Model CL-600-2B16 (604 variant) airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. A21EA, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations ( e.g., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Bombardier Model CL-600-2B16 (604 variant) airplane, because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

In addition to the applicable airworthiness regulations and special conditions, the Bombardier Model CL-600-2B16 (604 variant) airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.

The Bombardier Model CL-600-2B16 (604 variant) airplane will incorporate a novel or unusual design feature, which is the installation of an electronic network system architecture that will allow increased connectivity to and access from external network sources, ( e.g., operator networks, wireless devices, internet connectivity, service provider satellite communications, electronic flight bags, etc.) to the airplane's previously isolated electronic assets (networks, systems, and databases).

The Bombardier Model CL-600-2B16 (604 variant) airplane electronic system architecture and network configuration is novel or unusual for commercial transport airplanes because it may allow increased connectivity to and access from aircraft external network sources, airline operations, and maintenance networks, to the airplane's control domain and airline information services domain. The airplane's control domain and airline information services domain perform functions required for the safe operation and maintenance of the airplane. Previously, these domains had very limited connectivity with external network sources. This data network and design integration creates a potential for unauthorized persons to access the aircraft control domain and airline information services domain, and presents security vulnerabilities related to the introduction of computer viruses and worms, user errors, and intentional sabotage of airplane electronic assets (networks, systems, and databases) critical to the safety and maintenance of the airplane.

The existing FAA regulations did not anticipate these networked airplane-system architectures. Furthermore, these regulations and the current guidance material do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, databuses, and servers. Therefore, these special conditions ensure that the security ( i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections. This includes ensuring that the security of the airplane's systems is not compromised during maintenance of the airplane's electronic systems. These special conditions also require the applicant to provide appropriate instructions to the operator to maintain all electronic-system safeguards that have been implemented as part of the original network design so that this feature does not allow or introduce security threats.

These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

As discussed above, these special conditions are applicable to the Bombardier Model CL-600-2B16 (604 variant) airplane. Should L2 Consulting Services, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. A21EA to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on the Bombardier Model CL-600-2B16 (604 variant) airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of this feature on the airplane.

The authority citation for these special conditions is as follows:

Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model CL-600-2B16 (604 variant) airplane, as modified by L2 Consulting Services, Inc., for airplane electronic-unauthorized external access.

1. The applicant must ensure airplane electronic system security protection from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic system security threats are identified and assessed, and that effective electronic system security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the airplane is maintained, including all post type certification modifications that may have an impact on the approved electronic system security safeguards.

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 GE90-110B1 and GE90-115B model turbofan engines and certain GE90-76B, GE90-85B, GE90-90B, and GE90-94B model turbofan engines. The NPRM published in the Federal Register on May 27, 2022 (87 FR 32098). The NPRM was prompted by notification by the engine manufacturer of the detection of melt-related freckles in the forgings and billets, which may reduce the life of certain rotating CDP seals, interstage HPT rotor seals, and HPT rotor stage 2 disks on GE90-110B1 and GE90-115B model turbofan engines and may reduce the life of certain interstage HPT rotor seals on GE90-76B, GE90-85B, GE90-90B, and GE90-94B model turbofan engines. The manufacturer's investigation determined that, as a result of such freckles forming in the forgings and billets, certain rotating CDP seals, interstage HPT rotor seals, and HPT rotor stage 2 disks (life-limited parts (LLPs)) may have undetected subsurface anomalies that developed during the manufacturing process, resulting in reduced material properties and a lower fatigue life capability. Reduced material properties may cause premature LLP fracture, which could result in uncontained debris release. As a result of its investigation, the manufacturer determined the need to reduce the life limits of certain LLPs. To reflect these reduced life limits, the manufacturer revised the ALS of the affected GE90-100 EMs. Additionally, the manufacturer published service information that specifies procedures for the removal and replacement of certain interstage HPT rotor seals installed on GE90-76B, GE90-85B, GE90-90B, and GE90-94B model turbofan engines. In the NPRM, the FAA proposed to require revising the ALS of the applicable GE90-100 EM and the operator's existing approved maintenance program or inspection program, as applicable, to incorporate reduced life limits for certain LLPs. The NPRM also proposed to require the removal and replacement of certain interstage HPT rotor seals. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from six commenters. The commenters were Air Line Pilots Association, International (ALPA), American Airlines, The Boeing Company (Boeing), FedEx Express, Japan Airlines, and United Airlines. Five of the commenters, ALPA, American Airlines, Boeing, FedEx Express, and United Airlines, supported the proposal without change. The following presents the comment received on the NPRM and the FAA's response.

Japan Airlines requested that the FAA refer to GE90 SB 72-1211, latest revision, in the AD as the appropriate source of service information for the required actions. Japan Airlines noted that this would confirm the source of the affected interstage HPT rotor seal for the GE90-76B, GE90-85B, GE90-90B, and GE90-94B model engines. The FAA infers that Japan Airlines is requesting for GE90 SB 72-1211 to be incorporated by reference. The FAA disagrees with the request to incorporate GE90 SB 72-1211 by reference. Paragraph (c)(2) of this AD identifies the affected interstage HPT rotor seal installed on the GE90-76B, GE90-85B, and GE90-94B model turbofan engines by part number and serial number. The FAA did not change this AD as a result of this comment.

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

The FAA reviewed GE GE90-100 SB 72-0851 R00, dated August 17, 2021. This service information provides reduced life limits for certain LLPs. The FAA also reviewed GE GE90 SB 72-1211 R00, dated March 9, 2022. This service information describes procedures for removing and replacing certain interstage HPT rotor seals.

The FAA estimates that this AD affects 248 engines installed on airplanes of U.S. registry. The FAA estimates that zero engines installed on airplanes of U.S. registry will require replacement of the interstage HPT rotor seal.

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:

This rulemaking provides relief to military pilots  1 of powered-lift seeking to obtain an airline transport pilot (ATP) certificate with an airplane category rating. As discussed in section III.a of this preamble, the FAA is allowing military pilots to credit flight time in a powered-lift operated in horizontal flight towards the 250-hour flight time requirement in an airplane in § 61.159(a)(5). This change assists military pilots of powered-lift in qualifying for an ATP certificate in the airplane category.

This final rule also includes several changes to the 1,000-hour air carrier experience required to serve as PIC in part 121 operations. As discussed in section III.B, this final rule allows pilots with part 121 PIC experience acquired prior to July 31, 2013, to count that time towards the 1,000 hours of air carrier experience required to serve as PIC in part 121 operations. Additionally, the final rule broadens the existing 500-hour credit for military pilots of fixed-wing airplanes and can count towards the 1,000-hour air carrier experience requirement by permitting certain powered-lift experiences to be credited. The change allows up to 500 hours of experience in multiengine powered-lift in operations where more than one pilot is required to be credited towards the 1,000-hour air carrier experience requirement. 2 Additionally, in response to comments received, the FAA is also permitting a pilot to credit PIC time in certain part 135 eligible on-demand multiengine aircraft operations to count towards the 1,000-hour air carrier experience requirement.

Because this final rule amends two disparate regulations, the FAA has provided the necessary background information in the relevant sections of the Discussion of the Final Rule and Public Comments.

The FAA's authority to issue rules on aviation safety is found in Title 49 United States Code (U.S.C.). 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 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; U.S.C. 44701(a)(5), which requires the Administrator to promulgate regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security; and U.S.C. 44703(a), which requires the Administrator to issue airman certificates when the Administrator finds, after investigation, that an individual is qualified for and physically able to perform the duties related to, the position authorized by the certificate. This rulemaking revises the qualifications required to apply for an ATP certificate and the qualifications required to serve as PIC in part 121 operations. For these reasons, this rulemaking is within the scope of the FAA's authority.

On November 24, 2017, the FAA published a notice of proposed rulemaking (NPRM) titled Recognition of Pilot in Command Experience in the Military and in Part 121 Air Carrier Operations. 3 In the NPRM, the FAA proposed amendments to parts 61 and 121 that would alleviate the regulatory burden on pilots with military powered-lift experience and pilots with part 121 PIC experience prior to July 31, 2013.

The NPRM provided for a 60-day comment period, which ended on January 23, 2018. The FAA received and considered a total of 146 comments to the NPRM. 4 Commenters included major air carriers, cargo air carriers, powered-lift manufacturers, pilot labor associations, military pilots, and private citizens. The majority of the comments were from military pilots with experience operating powered-lift.

All of the commenters, including many from the military powered-lift community, generally supported the proposal. Some commenters recommended changes to the proposed rule language. The FAA also received several comments on the cost savings for military pilots who can use the powered-lift time towards the 250 hours of PIC time for an ATP certificate in the airplane category.

Because of the specific nature of each provision, the FAA discusses each amendment separately.

Since 1969, the FAA has required an applicant for an ATP certificate with an airplane category rating to have at least 1,500 hours of flight time as a pilot. 5 Today, this requirement is found in § 61.159(a). As part of the 1,500 hours of the total time required, § 61.159(a)(5) requires the applicant to have at least 250 hours of flight time in an airplane as PIC, or as SIC performing the duties of PIC while under the supervision of a PIC, 6 or any combination thereof. The 250 hours of airplane time must include at least 100 hours of cross-country time and 25 hours of night time. 7

Over the years, military pilots have asked the FAA whether they may credit their flight time in powered-lift aircraft, when operated in horizontal flight, towards the aeronautical experience requirement of § 61.159(a)(5) for an ATP certificate with an airplane category rating. 8 Prior to this final rule, § 61.159(a)(5) required a person to obtain 250 hours of flight time as a PIC (or SIC performing the duties of PIC while under the supervision of a PIC) in the airplane category, which was the category of aircraft for which the rating was sought. In 1997, the FAA established a separate category of aircraft for powered-lift and adopted § 61.163(a), 9 which prescribes the aeronautical experience required for an ATP certificate with a powered-lift category rating. 10 Because the FAA established powered-lift as a separate category of aircraft rather than a class or type under an existing category, a pilot was precluded from crediting flight time in a powered-lift aircraft towards the airplane-specific aeronautical experience requirement of § 61.159(a)(5). 11

In the NPRM for this rule, the FAA proposed to amend § 61.159(a)(5) by adding a new provision that would allow military pilots to credit flight time in a powered-lift operated in horizontal flight towards the 250-hour airplane flight time requirement. 12 Under the proposal, a military pilot would be allowed to credit flight time obtained in a powered-lift as PIC, or SIC performing the duties of PIC while under the supervision of a PIC, towards the aeronautical experience requirement of § 61.159(a)(5). Additionally, the proposed allowance for military time in powered-lift would have extended to the cross-country time and night time requirements of § 61.159(a)(5). The FAA did not propose to limit the amount of powered-lift time a military pilot may credit towards the 250 hours of airplane time other than stating the time credited must have been acquired in horizontal flight.

All commenters generally supported the proposal to permit credit for military powered-lift PIC time. Delta Airlines Flight Operations, Coalition of Airline Pilots Associations (CAPA), and AgustaWestland Philadelphia Corporation (AWPC) fully supported the proposal. Several commenters suggested changes to the proposed rule language, which are discussed below.

The Air Line Pilots Association, International (ALPA) suggested the FAA limit the amount of flight time a military powered-lift pilot may credit towards the 250 hours of airplane PIC time but did not state what it believed would be an appropriate amount of time. ALPA was concerned about the pilots' ability to track and verify the applicable powered-lift time. ALPA also stated that the number of takeoffs and landings in the “airplane” mode is important. ALPA believed it would be inappropriate to allow a pilot to credit 250 hours of powered-lift time that was conducted at cruise while most takeoffs and landings were done vertically.

An individual commenter responded to ALPA's concerns. With regard to ALPA's concerns about tracking the flight time, the commenter explained that a pilot can easily determine and log the flight time obtained in a powered-lift in horizontal flight. The commenter added that each military pilot signs each page of his or her logbook as a “certified and correct record”; therefore, any powered-lift “horizontal” flight time credited towards the 250-hour aeronautical experience requirement could be properly accounted for in the pilot's records. With respect to takeoff and landing, the commenter believed that ALPA erred in suggesting that vertical takeoffs and landings are the standards for powered-lift. According to the commenter, a typical profile for both the V-22 and AV-8  13 includes takeoffs and landings in airplane mode. Nonetheless, because the FAA already proposed to preclude the crediting of vertical flight time in a powered-lift, the commenter found no reason to further limit the horizontal portion of powered-lift flight time simply because vertical landings or takeoffs occurred.

While the FAA acknowledges that military pilots do not typically log powered-lift time in each “mode” of flight ( i.e., horizontal or vertical), the FAA has determined that limiting the amount of credit on this basis is not necessary. As many of the commenters attested, a significant majority  14 of the time spent in powered-lift is in horizontal flight. Military pilots will have well in excess of 250 hours of PIC time in powered-lift. Even using the most conservative approximation, these pilots will generally have two to five times that amount of PIC-powered-lift time. 15 Because the applicable amount of powered-lift time will well exceed the 250-hour flight time requirement, the FAA finds it unnecessary to limit the amount of credit simply because military pilots may not have tracked the exact number of hours spent in horizontal flight. In response to ALPA's comment about the FAA's ability to verify the hours, the evaluator for the ATP certificate will determine if the pilot's records and desired credit sought are appropriate. 16 For these reasons, the FAA does not share ALPA's concern about the ability to track and verify the applicable amount of PIC powered-lift time.

In response to ALPA's concern about takeoffs and landings, the FAA recognizes that a military powered-lift pilot may conduct more takeoffs and landings in the vertical mode rather than “airplane” mode. As noted by commenters, however, this is not always the case. The type of takeoff and landing largely depends on the powered-lift and the military operation. Nevertheless, the FAA finds it unnecessary to limit the amount of military powered-lift time that may be credited towards the 250-hour requirement merely because the pilot may have conducted takeoffs and landings in the vertical mode. Section 61.159(a)(5) does not expressly require any of the 250 hours of airplane PIC time to include takeoffs and landings. The requirement in § 61.159(a)(5), which has existed since 1952, 17 is intended to require aeronautical experience performing the duties and functions of a PIC or SIC performing the duties of PIC while under the supervision of a PIC in an airplane.

The FAA recognizes that, in obtaining the 250 hours of PIC time in an airplane, a pilot who has learned to fly and acquired experience in an airplane will likely have obtained a certain amount of PIC experience performing takeoffs and landings in an airplane. The FAA finds, however, that this is not a basis to limit the amount of powered-lift time a military pilot may credit towards the 250 hours of airplane time, other than stating the time credited must have been acquired in horizontal flight. As previously stated, military powered-lift pilots will have two to five times the amount of PIC time required by the regulation. In addition, due to the quality and structure of military training and the demanding nature of military operations, the FAA finds that a pilot who has spent approximately 500-1,250 hours performing the duties and functions of a PIC in military powered-lift operations will have obtained a level of experience comparable to the experience obtained by accruing 250 hours of PIC time in an airplane.

To the extent ALPA is concerned that a military powered-lift pilot will not have airplane experience, particularly in takeoff and landing, prior to obtaining an ATP certificate in the airplane category, the FAA responds that military powered-lift pilots receive training and are qualified in an airplane prior to transitioning to a powered-lift. The amount of airplane-specific training varies depending upon which powered-lift the pilot will transition to. However, the comprehensive and demanding nature of military pilot training and the military's assessment of flight proficiency ensures that the pilot is capable of successfully performing takeoffs and landings in an airplane prior to operating a powered-lift. As evidenced by several commenters, military V-22  18 pilots were required to demonstrate proficiency to the commercial level in the King Air 200  19 while attending Naval Flight Training. With the required documentation outlined in § 61.73, the FAA acknowledges the airplane training and checking a military powered-lift pilot has completed and permits those pilots to apply for a commercial pilot certificate in the appropriate airplane class(es) as a result. 20

Furthermore, the accumulation of 250 hours of PIC time in a military powered-lift does not automatically result in an ATP certificate in the airplane category. Rather, a military pilot will still be required to meet the other aeronautical experience requirements of § 61.159, including the requirement to obtain at least 50 hours of flight time in the class of airplane for the rating sought. 21 This means a military pilot seeking an ATP certificate with an airplane category multiengine class rating must have at least 50 hours of flight time in a multiengine airplane, which will provide the pilot with experience performing takeoffs and landings in the class of airplane appropriate to the rating sought. Additionally, the military pilot will still be required to complete the ATP certification training program (ATP CTP) required by § 61.156 for a multiengine airplane ATP certificate, pass the ATP knowledge test, and pass the ATP practical test or air carrier evaluation that results in the issuance of an ATP certificate. The ATP CTP requires 10 hours of training in a flight simulation training device (FSTD) that represents a multiengine turbine airplane. 22 In addition, the practical test—or the proficiency and competency checks required under parts 121 and 135—will be conducted in the class of airplane for the rating sought and will include an evaluation of the pilot's ability to take off and land the airplane.

For the reasons explained above, the FAA finds it unnecessary to limit the amount of PIC-powered-lift flight time that a military pilot may credit toward the 250-hour flight time requirement. Section 61.159(a)(5) remains unchanged from the proposed rulemaking.

One commenter suggested the FAA also allow powered-lift flight time to be credited toward the commercial pilot certificate in the airplane category with a multiengine class rating.

The FAA finds it unnecessary to amend the regulations in response to this comment. Consistent with the NPRM, the amendment to § 61.159(a)(5), which allows certain powered-lift times to be credited, applies only to military pilots. While a military pilot must satisfy the aeronautical requirements of § 61.159(a) to obtain an ATP certificate with an airplane category rating, a military pilot is not required to satisfy the aeronautical experience requirements of § 61.129(a) to obtain a commercial pilot certificate with an airplane category rating. Instead, § 61.73(a) allows military pilots to apply for a commercial pilot certificate with the appropriate aircraft category and class rating “on the basis of their military pilot qualifications” without taking a practical test. 23 Military powered-lift pilots receive comprehensive training in an airplane and a rating qualification prior to transitioning to the powered-lift. 24 Military powered-lift pilots may therefore obtain a commercial pilot certificate with an airplane category rating and single-engine or multiengine class rating(s), as appropriate, based on their military pilot qualifications, provided the pilot satisfies the requirements of § 61.73. 25 Because the regulations allow a military powered-lift pilot to obtain a commercial pilot certificate with an airplane category rating without satisfying the aeronautical experience requirements of § 61.129, the FAA finds it unnecessary to revise § 61.129 in response to the commenter.

Two commenters suggested the FAA allow powered-lift credit toward the requirements for the flight instructor certificate and the flight instructor certificate with an instrument rating. 26 One commenter specifically mentioned instructor ratings obtained based on military competency, which is a term associated with § 61.73. Because the commenters did not provide specific detail about the kind of credit that the FAA should allow, the FAA will address both avenues for obtaining an instructor certificate based on military experience in accordance with § 61.73(g) and adding instructor ratings through the regular FAA certification process in accordance with § 61.183. 27

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act establishes the National Indian Gaming Commission (NIGC or Commission) and sets out a comprehensive framework for the regulation of gaming on Indian lands.

On January 22, 1993, the NIGC published a final rule in the Federal Register called Submission of Gaming Ordinance or Resolution. 58 FR 5810. The rule added part 522, which established a process for Indian tribes to submit a gaming ordinance, resolution, or amendment for the NIGC Chair's review and approval as required by 25 U.S.C. 2710(b)(2) and (d)(2)(a). The NIGC's intent was to assist tribal gaming operators with maintaining compliance with IGRA and implement its provisions germane to gaming ordinances or resolutions. The Commission promulgated three minor amendments thereafter. 58 FR 16494, 73 FR 6029, and 80 FR 31994.

On March 23, 1993, the Commission amended its submission requirements at § 522.2(h) to include identification of a law enforcement agency that will take fingerprints and a description of the procedures for conducting a criminal history check by a law enforcement agency. 58 FR 16494.

On February 1, 2008, the Commission amended part 522's submission requirements to codify that a tribe shall provide Indian lands or environmental and public health and safety documentation upon the NIGC Chair's request, 25 U.S.C. 2710(b), (2)(e), and (d)(1). 73 FR 6029.

On June 5, 2015, the Commission amended part 522 to remove and update references to other regulations and make minor grammatical changes. 80 FR 31994.

It has been approximately twenty-nine years since the NIGC first promulgated part 522, with few revisions. During the intervening period, Indian gaming has undergone a meteoric expansion. During that expansion, the NIGC has continued to utilize part 522, and continues to look for ways to improve the regulations. The amendments reflect the Agency's intent to ensure that NIGC regulations meet the needs of the tribal gaming industry.

Through this rule, the NIGC amends its regulations to make several changes. The Commission will no longer require the submission of a physical copy of the ordinance. This rule will authorize the submission of documents in electronic or physical form, saving time and preventing inadvertent delays in review. The Commission will publish an updated bulletin that includes directions for electronic submission.

The amendment also clarifies that the 90-day deadline for the NIGC Chair's decision to approve an ordinance does not begin until the NIGC has received a complete submission and that the submission requirements apply to amendments of ordinances or resolutions. Submission of amendments will also require the submission of a conformed copy of the Ordinance.

The Commission also recognizes that a tribe's gaming ordinance often creates the tribal regulatory authority that will draft and implement the tribe's gaming regulations. As such, the Commission is amending the rule to eliminate the requirement that a tribe provide copies of all gaming regulations with its submission. Instead, tribes will only be required to submit gaming regulations upon request.

In most circumstances, if the NIGC identifies any issues during an ordinance review period that may lead to a disapproval recommendation to the Chair, it will discuss those issues with the submitting tribe and allow for the tribe to address the issues before a final decision is made by the Chair. This rule requires tribes that subsequently amend a gaming ordinance pending the Chair's decision to provide an authentic resolution withdrawing the pending submission and resubmitting the revised submission.

This rule eliminates the requirement that the NIGC Chair publish a tribe's entire gaming ordinance in the Federal Register . Instead, the regulation will require the Agency to publish notice of each approved ordinance and the Chair's approval letter in the Federal Register . The Agency will continue its existing practice of publishing the ordinance itself on the NIGC's website.

Finally, the NIGC has made other non-substantive revisions, such as corrections to cross references, minor grammatical revisions, and formatting changes.

On June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the gaming ordinance or resolution submission process. Prior to consultation, the Commission released proposed discussion drafts of the regulations for review. The proposed amendment to the gaming ordinance or resolution submission regulations were intended to improve the Agency's efficiency in processing gaming ordinance or resolution submissions, clarify existing regulations, and eliminate unnecessary obstacles for tribal gaming operators.

The Commission held two virtual consultation sessions in July of 2021 to receive tribal input on the possible changes. The Commission reviewed all comments received as part of the consultation process. After considering the comments received from the public and through tribal consultations, the Commission published a notice of proposed rulemaking on December 9, 2021, 86 FR 70067. The notice of proposed rulemaking indicated that comments were due on or before January 10, 2022. On January 14, 2022, 87 FR 2384, the NIGC published a correction to the notice of proposed rulemaking, clarifying that the comment period would close on February 7, 2022. On June 16, 2022, 87 FR 36280, the NIGC announced the reopening of the comment period until June 23, 2022.

The Commission reviewed all of the public's comments and now proposes these changes, which it believes will improve the gaming ordinance or resolution submission process.

The Commission received the following comments in response to the notice of proposed rulemaking.

Comment: A commenter disagreed with requiring a tribe to submit to the Chair a copy of the tribe's constitution, governing document(s), or an accurate and true description of the tribe's governmental entity and authority to enact the submitted ordinance or resolution, with a request for approval of a class II or class III ordinance or resolution or amendment thereto. The commenter stated that the documents submitted should be sufficient.

Response: The Commission agrees and accepts this recommendation. Generally, a tribe submits a resolution enacted by the tribe's governing body that indicates it was adopted pursuant to tribal law that is signed by a tribal official who certifies the authenticity or accuracy of the resolution that adopted the class II or class III ordinance resolution, or amendment thereto. Generally, this is sufficient.

IGRA requires that the Chair shall approve an ordinance or resolution unless the Chair specifically determines that the ordinance or resolution was not adopted in compliance with the tribe's governing documents. 25 U.S.C. 2710(d)(2)(B). In order to make such a determination, the Chair may need copies of the tribe's governing documents or, for those tribes that do not have a written constitution or governing documents, a description of the governmental organization and authority to approve ordinances. The purpose is not to question or interpret the tribe's law or structure, but simply to ensure that any ordinance approved was enacted by the tribe pursuant to its own laws. As part of its existing review process, the NIGC often requests such documents. It proposed to add the submission here to clarify the Chair's responsibility, not to grant the Chair additional authority. The NIGC will meet our obligations, however, through existing internal processes to ensure that the ordinance was adopted pursuant to the tribe's own laws or rules. The Commission will also publish a Bulletin discussing IGRA's requirement in this regard and the NIGC's process for ensuring that all ordinances are adopted by the authorized body pursuant to the tribe's governing requirements.

Comment: A commenter requested that we clarify the requirement that a tribe identify the entity that will take fingerprints and provide a copy of the procedures for conducting a criminal history check with a request for approval of a class II or class III ordinance, resolution, or amendment thereto.

Response: Currently, NIGC regulations require that a tribe provide the identification of the law enforcement agency that will take fingerprints and a description of the procedures for conducting a criminal history check with a request for approval of a class II or class III ordinance or resolution. 25 CFR 522.2(h). This requirement relates to background investigations performed by tribes on individuals seeking to be licensed as a key employee or primary management official of a gaming operation. The background investigation requires the tribe to request fingerprints from each key employee or primary management official.

The NIGC has long taken the position that a tribe or its tribal gaming regulatory authority qualifies as a law enforcement agency for this limited purpose. The current revision clarifies this position by removing the language suggesting that only traditional police agencies can take fingerprints.

Comment: A commenter supported the removal of the requirement to publish a tribe's class III gaming ordinance in the Federal Register along with the Chair's approval thereof. The commenter believes that it is a matter of tribal sovereignty for each tribe to determine whether to make its gaming ordinance publicly available.

Response: The Commission appreciates the comment. The requirement is being removed because IGRA requires all tribal gaming ordinances contain the same requirements concerning a tribe's sole proprietary interest and responsibility for the gaming activity, use of net revenues, annual audits, health and safety, and background investigations and licensing of key employees and primary management officials. The Commission, therefore, believes that publication of each ordinance in the Federal Register would be redundant and result in unnecessary cost to the Commission. Thus, the Commission believes that publishing a notice of approved Class III tribal gaming ordinances in the Federal Register is sufficient to meet the requirements of 25 U.S.C. 2710(d)(2)(B).

The Commission disagrees with the commenter's opinion that the decision to make a gaming ordinance publicly available should be determined by each tribe. Tribal gaming ordinances provide information of which the public, including tribal members, should be aware. This includes informing tribal members whether the tribe has elected to make per capita distribution, informing those seeking to be licensed as a primary management official or key employee the standards for obtaining a license, and informing patrons of a gaming operation the procedures for resolving disputes between the gaming public and the tribe. For this reason, the Commission posts every ordinance and approval thereof on its website ( www.nigc.gov ) under General Counsel, Gaming Ordinances.

The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian tribes are not considered small entities for the purposes of the Regulatory Flexibility Act.

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises to compete with foreign based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the order.

The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 3141- 0003.

The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC consultation policy specifies that it will consult with tribes on Commission Actions with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.

Pursuant to this policy, on June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on a number of topics, including proposed changes to the gaming ordinance or resolution submission and approval process.

The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act establishes the National Indian Gaming Commission (NIGC or Commission) and sets out a comprehensive framework for the regulation of gaming on Indian lands. On January 22, 1993, the Commission promulgated § 571.12 establishing audit standards for tribal gaming facilities. On July 27, 2009, the Commission amended the regulation to allow tribes with multiple facilities to consolidate their audit statements into one and to allow operations earning less than $2 million in gross gaming revenue to file an abbreviated statement.

On June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation announcing that the Agency intended to consult on several topics, including proposed changes to the Audit standards. Prior to consultation, the Commission released proposed discussion drafts of the regulations for review. The amendments to the Audit standards are designed to reduce the financial hurdles that small and charitable gaming operations face regarding the audit requirement. They also clarify which types of audit opinions satisfy the audit submission requirements. The Commission held two virtual consultation sessions in September and one virtual consultation in October of 2021 to receive tribal input on any proposed changes.

The Commission then published a proposed rule for notice and comments on June 1, 2022 at 87 FR 33091 and extended the comment period to August 1, 2022 on July 13, 2022 at 87 FR 41637.

The Commission received several general and specific comments on the proposed amendments.

Comment: One commenter proposed changes to eliminate the “prepared by a certified public accountant” language from the financial statements element of audit submissions.

Response: Commission agrees and has revised the rule accordingly.

Comment: One commenter proposed changes to clarify that the independent certified public accountant is the entity that may issue an adverse opinion and that any adverse opinions must still be submitted to the Commission.

Response: Commission agrees and has revised the rule accordingly.

Comment: One commenter expressed appreciation for the Commission's proposal to continue accepting adverse opinions that result from financial statements prepared in accordance with generally accepted accounting principles as promulgated by the Financial Accounting Standards Board rather than the Governmental Accounting Standards Board.

Response: Commission appreciates the comment and has maintained the exception in this rule.

Comment: Two commenters noted that the discussion draft circulated during the consultation rounds addressed disclaimed audits, but the proposed rule did not. They asked what the Commission's position is on disclaimed audits.

Response: At this time, the Commission has chosen to continue to accept disclaimed audit opinions, but may revisit the issue in the future. The Compliance Division will continue to carefully review each disclaimed opinion and the circumstances behind them.

Comment: One commenter expressed concern that tribes who go to the effort and expense of conducting an audit only to receive an adverse opinion are now subject to the same violation as a tribe that failed to submit anything at all.

Response: The reasons for receiving an adverse opinion and the difference in circumstances is more appropriately considered in the Civil Fine Assessment process, which requires the Chairman to weigh the unique facts and circumstances—including good faith efforts toward compliance—for each violation.

Comment: Two commenters are concerned that this creates a new basis for a violation without requiring an intermediate investigative or technical assistance step.

Response: Under the amended rule, if a tribe submits an adverse opinion, the Chair must still follow the procedures set forth in IGRA and NIGC regulations before taking any enforcement action. The Commission has determined that this amendment is necessary for the Chairman to protect the tribal gaming industry and its assets.

Comment: One commenter has requested more detail on how a tribe or TGRA must notify NIGC that it has given permission for a gaming operation to submit reviewed financial statements.

Response: Upon reviewing this section of the regulation, the Commission determined that notice is not necessary and has revised the rule accordingly. The Commission presumes by submission of the reviewed financial statements that the tribe or TGRA has given permission for the review process. If any questions arise about a gaming operation's authority to file reviewed statements, the Compliance Division will contact the tribe or TGRA for confirmation.

Comment: Several commenters asked what constitutes a “reason to believe” that a gaming operation's assets are at risk or are being misused under IGRA, and suggest that it should be more clearly defined.

Response: The Commission disagrees. Nothing in IGRA or NIGC regulations requires the Commission to reduce the audit requirements to a review of financial statements or submission of financial records to the TGRA. The Commission is taking this step to relieve the burden on certain small and charitable gaming operations. That being said, the Commission and the Chairman still have the regulatory responsibility placed on it under IGRA to ensure that the Tribe is the primary beneficiary of its gaming operations and that gaming revenues are used for the purposes set forth in IGRA. The Commission believes the standard set forth in this rule allows the NIGC to achieve both of those goals and adequately limits the Chairman's discretion to a good faith belief in a threat to gaming assets.

Comment: Several commenters noted that draft circulated during consultations included changes to the language regarding gaming operations consolidating audits for multiple places, facilities, or locations, but the proposed rule did not contain these changes.

Response: In the draft submitted for consultation, the language in § 571.12(d) stated: “If a tribe has multiple gaming facilities or operations on the tribe's Indian lands, the tribe may choose to satisfy the annual audit requirement of paragraph (b) with a consolidated audit if the following requirements are satisfied. . . .” This change was inadvertently left out of the NPRM, and the language reverted back to that in the existing regulation, “If a gaming operation has multiple gaming places. . . .” The Commission is reinstating the language proposed in the consultation draft, as it is more accurate.

Comment: One commenter expressed appreciation for the third tier of financial reporting established for operations with gross gaming revenue under $50,000.

Response: Commission appreciates this comment.

Comment: Several commenters requested that the Commission increase the $50,000 threshold for reviewed financial statements to $100,000 or higher.

Response: Commission disagrees. The reviewed financial statements submitted to date do not indicate any benefit to raising the threshold at this time. The Commission may revisit this in the future if circumstances change.

The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions. Nor will the rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.

The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of section 3(a) and 3(b)(2) of the Order.

The Commission has determined that the rule does not constitute a major Federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

The information collection requirements contained in this rule were previously approved by the Office of Management and Budget (OMB) as required by 44 U.S.C. 3501 et seq. and assigned OMB Control Number 3141- 0001.

The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.

Pursuant to this policy, on June 9, 2021, the National Indian Gaming Commission sent a Notice of Consultation to the public, announcing the Agency intended to consult on several topics, including proposed amendments to NIGC audit standards. The Commission held two virtual consultation sessions in September and one virtual consultation session in October of 2021 to receive tribal input on proposed changes.

Therefore, for reasons stated in the preamble, 25 CFR part 571 is amended as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The event sponsor notified the Coast Guard with insufficient time to accommodate the comment period. This safety zone must be established by September 24, 2022 in order to protect the public and vessels from the hazards associated with a maritime fireworks display.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the rule's objectives of protecting the public and vessels on the navigable waters in the vicinity of the fireworks display.

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 Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 420-foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.

This rule establishes a safety zone that will be enforced from 9:30 p.m. through 10:30 p.m. on September 24, 2022. The safety zone will encompass all U.S. navigable waters of the Detroit River within a 420-foot radius of the fireworks launch site located at the The ICON Center in downtown Detroit, MI. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the COTP Detroit or his designated representative. The COTP Detroit or his designated representative may be contacted via VHF Channel 16.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Detroit River for approximately 1 hour during the evening when vessel traffic is normally low. Moreover, under certain conditons vessels may still transit through the safety zone when permitted by the COTP Detroit or his designated representative.

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 apprixmately 1 hour that will prohibit entry within a 420-foot radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

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

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

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with pipeline removal operations occurring from 9 a.m. on September 19, 2022 through 3 p.m. on September 22, 2022 will be a safety concern for anyone within the Corpus Christi Shipping Channel in a zone defined by the following coordinates; 27°49′27.0″ N, 097°08′38.5″ W; 27°49′34.0″ N, 097°08′41″ W; 27°49′26.4″ N, 097°08′29.1″ W; 27°49′35.9″ N, 097°08′31.7″ W. The purpose of this rule is to ensure safety of vessels and persons on these navigable waters in the safety zone while pipelines are removed from the floor of the Corpus Christi Shipping Channel.

This rule establishes a temporary safety zone from 9 a.m. on September 19, 2022 through 3 p.m. on September 22, 2022 and will be subject to enforcement from 9 a.m. to 3 p.m. each day. The safety zone will encompass all navigable waters of the Corpus Christi Shipping Channel in a zone defined by the following coordinates; 27°49′27.0″ N, 097°08′38.5″ W; 27°49′34.0″ N, 097°08′41″ W; 27°49′26.4″ N, 097°08′29.1″ W; 27°49′35.9″ N, 097°08′31.7″ W. The pipeline will be removed along the floor of the Corpus Christi Shipping Channel. No vessel or person is permitted to enter the temporary safety zone during the effective period without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the safety zone. The temporary safety zone will be enforced for a short period of only 6 hours each day. The rule does not completely restrict the traffic within a waterway and allows mariners to request permission to enter the zone.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, and Environmental Planning, COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of a temporary safety zone for navigable waters of the Corpus Christi Shipping Channel in a zone defined by the following coordinates; 27°49′27.0″ N, 097°08′38.5″ W; 27°49′34.0″ N, 097°08′41″ W; 27°49′26.4″ N, 097°08′29.1″ W; 27°49′35.9″ N, 097°08′31.7″ W. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by pipeline that will be removed from the floor of the Corpus Christi Shipping Channel. It is categorically excluded from further review under paragraph L60(c) 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 contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

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

In 2010, section 1720G of title 38 of the United States Code (U.S.C.) was codified when it was enacted as part of the Caregivers and Veterans Omnibus Health Services Act of 2010. Public Law (Pub. L.) 111-163, 124 Stat. 1130 (2010). As originally enacted, section 1720G required VA, in part, to establish a Program of Comprehensive Assistance for Family Caregivers (PCAFC) for Family Caregivers of eligible veterans who have a serious injury incurred or aggravated in the line of duty in the active military, naval, or air service on or after September 11, 2001. VA implemented PCAFC through its regulations in part 71 of title 38, Code of Federal Regulations (CFR). PCAFC provides certain benefits such as training, respite care, counseling, technical support, beneficiary travel (to attend required caregiver training and for an eligible veteran's medical appointments), access to health care (if qualified) through the Civilian Health and Medical Program of the Department of Veterans Affairs (CHAMPVA), and a monthly stipend. 38 U.S.C. 1720G; 38 CFR 71.25(d), 71.40.

In 2018, section 161 of the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Networks Act of 2018 (VA MISSION Act of 2018), Public Law 115-182, 132 Stat. 1393 (2018), amended 38 U.S.C. 1720G by expanding PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, in a phased approach, establishing new benefits for designated Primary Family Caregivers of eligible veterans, and making other changes affecting program eligibility and VA's evaluation of PCAFC applications. To incorporate these and other necessary changes to improve and expand VA's PCAFC, VA amended 38 CFR part 71. 85 Federal Register (FR) 46226 (July 31, 2020). These changes took effect on October 1, 2020. Id. As part of that rulemaking, VA revised the eligibility criteria for PCAFC in § 71.20, identified a legacy cohort ( i.e., legacy applicants, legacy participants, and their Family Caregivers, as those terms are defined in § 71.15) who were approved for PCAFC under the previous eligibility criteria, and created a one-year transition period whereby the legacy cohort would continue to remain eligible for PCAFC while VA reassessed whether the legacy cohort would continue to be eligible for PCAFC under the new eligibility criteria.

When VA established the initial one-year transition period for the legacy cohort, VA intended to establish a transition plan for legacy participants and legacy applicants who may or may not meet the new eligibility criteria and whose Primary Family Caregivers could have their stipend amount impacted by changes to the stipend payment calculation. 85 FR 13356 (March 6, 2020). The one-year period was intended to provide a reasonable amount of time for VA to conduct reassessments, minimize disruption to those individuals, including disruptions that would result from the changes to the stipend payment calculation, and provide a fair and reasonable time for transition. 85 FR 46253. VA intended that all legacy applicants, legacy participants, and their Family Caregivers would have the same transition period, regardless of when the reassessment was completed during the one-year transition period. Id. This transition period was intended to ensure equitable treatment for all legacy applicants, legacy participants, and their Family Caregivers. Id.

On September 22, 2021, VA published an interim final rule (First PCAFC Extension for Legacy Cohort) which amended 38 CFR part 71, by extending the one-year transition period and timeline for VA to conduct all necessary reassessments of the legacy cohort for one additional year (that is, until September 30, 2022). 86 FR 52614 (September 22, 2021). A targeted discussion explaining why VA created the legacy cohort and the initial one-year transition period is more fully described in the First PCAFC Extension for Legacy Cohort, and that description is adopted by reference into this preamble. See id. at 52615.

On March 25, 2022, the U.S. Court of Appeals for the Federal Circuit issued a decision that set aside certain PCAFC criteria that VA established as part of the July 31, 2020 rulemaking. Veteran Warriors, Inc. v. Sec'y of Veterans Affairs, 29 F.4th 1320 (Fed. Cir. 2022). The court's decision applies to cases and claims initiated on or after the date of the decision, as well as any PCAFC determination still open on direct review before VA as of that date. Matters still open on direct review include determinations concerning stipend decreases or discharges for the legacy cohort made in the course of reassessments completed before March 25, 2022. As a result, VA must repeat certain reassessments of the legacy cohort to account for the court's interpretation, as explained in more detail below.

For the reasons explained in the subsequent discussion below, VA is extending the transition period and timeline for VA to complete reassessments of the legacy cohort by three additional years (that is, until September 30, 2025). Accordingly, VA is amending 38 CFR 71.20(b) and (c) regarding program eligibility; § 71.30(e) regarding reassessments; and § 71.40(c)(4)(i)(B) through (D), (c)(4)(ii)(C)( 2 )( i ) and ( ii ), and the note to (c)(4)(ii)(C)( 2 ) regarding the stipend methodology, to account for the additional three-year period through September 30, 2025.

Additionally, VA is making technical amendments to correct the citation in the definition of “General Caregiver” in § 71.15; and in §§ 71.20(a)(2)(ii) and (iii) and 71.25(a)(3)(ii)(A) and (B), VA is making technical amendments to reflect the date VA submitted to Congress a certification that VA fully implemented the information technology (IT) system required by section 162 of the VA MISSION Act of 2018 ( i.e., October 1, 2020) and the date that is two years after the Secretary submitted such certification to Congress ( i.e., October 1, 2022).

VA published the First PCAFC Extension for Legacy Cohort because VA was unable to conduct all reassessments of the legacy cohort within the one-year period provided in the July 31, 2020 rulemaking. 86 FR 52616. Since the First PCAFC Extension for Legacy Cohort was published, VA has made significant progress in completing reassessments of the legacy cohort. As stated in the First PCAFC Extension for the Legacy Cohort, as of July 1, 2021, VA had only completed four percent of the estimated 19,800 reassessments needed for the legacy cohort. Id. As of August 3, 2022, VA has completed approximately 95 percent of the reassessments needed for the legacy cohort;  1 however, as discussed below, the outcome of the Veteran Warriors decision has impacted VA's ability to rely on certain determinations made during many of the reassessments that were completed. Therefore, VA believes an additional three-year transition period is necessary while VA completes the remaining reassessments and repeats certain reassessments that were completed before the Veteran Warriors decision.

In the July 31, 2020 rulemaking, VA added a “need for supervision, protection, or instruction” as a basis upon which VA could determine that a veteran or servicemember is in need of personal care services under 38 CFR 71.20(a)(3). VA defined the term, “need for supervision, protection, or instruction,” to mean “an individual has a functional impairment that directly impacts the individual's ability to maintain his or her personal safety on a daily basis.” 38 CFR 71.15. This term and its definition were intended to implement the two criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) (that is, “a need for supervision or protection based on symptoms or residuals of neurological or other impairment or injury” and “a need for regular or extensive instruction or supervision without which the ability of the veteran to function in daily life would be seriously impaired”, respectively). The term “need for supervision, protection, or instruction” is also referenced in the definition of “unable to self-sustain in the community” in 38 CFR 71.15, which is applied for purposes of determining the applicable stipend level in § 71.40(c)(4)(i)(A).

In Veteran Warriors, several parts of the July 31, 2020 rulemaking were challenged, including VA's definition of need for supervision, protection, or instruction. On March 25, 2022, the U.S. Court of Appeals for the Federal Circuit set aside VA's definition of “need for supervision, protection, or instruction” because it determined that the definition was inconsistent with the statutory language. Veteran Warriors at 1342-43. The court dismissed or denied the petition for review with respect to the other regulatory provisions challenged. Thus, none of the other PCAFC criteria or requirements in 38 CFR part 71 were impacted by the court's decision.

As a result of the court's decision, effective March 25, 2022, VA is required to apply clauses (ii) and (iii) of 38 U.S.C. 1720G(a)(2)(C) in place of the regulatory definition at 38 CFR 71.15 when making determinations under the PCAFC regulations that became effective on October 1, 2020. Further, in addition to cases and claims initiated on or after March 25, 2022, the judicial interpretation in Veteran Warriors also applies to any PCAFC determination ( e.g., claim, case, appeal) “still open on direct review” before VA as of March 25, 2022, in any future decision that will be issued as part of that direct review. See George v. McDonough, 142 S. Ct. 1953, 1962 (2022) (citing the general rule from Harper v. Virginia Dept. of Taxation, 509 U.S. 86, 97 (1993) that the new interpretation of a statute can only retroactively affect decisions still open on direct review).

In general, new judicial interpretations apply to cases pending when the judicial interpretation is issued, but do not provide a basis to reopen final decisions. See generally Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (citing Reynoldsville Casket Co. v. Hyde, 514 U.S. 749, 752 (1995) as an example of the United States Supreme Court denying an attempt to reopen a final decision); Disabled Am. Veterans v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000) (citing Harper, 509 U.S. at 97 (1993), in stating that “new interpretation of a statute can only retroactively effect decisions still open on direct review, not those decision[s] that are final”); Rivers v. Roadway Express, 511 U.S. 298, 311-13 (1994) (discussing retroactive application of statutes). In general, cases are pending when no decision containing language “from which a claimant could deduce that the claim was adjudicated” has been issued. Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007).

In the context of PCAFC, VA interprets “still open on direct review” to mean that, as of March 25, 2022, VA had not issued the last notice of decision that it intends to issue or provide the claimant on a PCAFC determination. This includes decisions pertaining to joint applications, reassessments, discharges, revocations, and stipend changes. Matters “still open on direct review” also encompass determinations for which VA had, as of March 25, 2022, issued advanced notice of its findings, but not “final notice” as that term is used in 38 CFR 71.40(c)(4)(ii)(C)( 1 )( ii ) and (c)(4)(ii)(C)( 2 )( ii ) and 71.45(b)(1)(ii)(A). Under those provisions, VA provides a 60-day advanced notice period before issuing a final notice in the case of a stipend decrease based on a reassessment or a discharge based on the eligible veteran not meeting the eligibility criteria in § 71.20(a)(1) through (4). As a result, for those determinations involving the “need for supervision, protection, or instruction” definition that were still pending issuance of a last notice of decision on March 25, 2022, VA must re-evaluate such determinations based on the Veteran Warriors decision, as such determinations are considered “still open on direct review.”

For the legacy cohort, the 60-day advanced notice period for stipend decreases under § 71.40(c)(4)(ii)(C)( 2 )( ii ) and discharges under § 71.45(b)(1)(i)(A) (because the eligible veteran does not meet the requirements of § 71.20) cannot begin until October 1, 2022, by regulation, and thus, could not have been issued before March 25, 2022. Prior to March 25, 2022, when a reassessment of a member of the legacy cohort under § 71.30(e) resulted in a decision to decrease the stipend or discharge the individual, VA provided such preliminary findings to the individual, with the intent of adopting those findings in its advanced notice of findings to be provided on October 1, 2022. However, because final notice of VA's decision regarding stipend decreases or discharges for the legacy cohort cannot be issued before 60 days after October 1, 2022, those cases or claims are “still open on direct review” by VA. Moreover, because VA's preliminary findings regarding stipend decreases and discharges made in the course of reassessments under § 71.30(e) for the legacy cohort were based, at least in part, on VA's definition for need for supervision, protection, or instruction that was invalidated by the decision in Veteran Warriors, VA can no longer rely on those preliminary findings.

In contrast, for any PCAFC decision in which VA had issued a final decision notice before March 25, 2022, VA is not required to proactively reopen the matter and adjudicate the decision again in accordance with Veteran Warriors. See Jordan, 401 F.3d at 1298-99; Disabled Am. Veterans, 234 F.3d at 698; Rivers, 511 U.S. at 311-13. Such decisions include those in which members of the legacy cohort received notice of a decision that was favorable before March 25, 2022 ( i.e., a reassessment that resulted in a determination of continued eligibility for PCAFC under 38 CFR 71.20(a) with the same monthly stipend payment or an increased monthly stipend payment). Upon making such determinations, VA provides written notice of the decision. When a reassessment results in an increase in the monthly stipend payment for a Primary Family Caregiver of a legacy applicant or legacy participant, the increase takes effect as of the date of the reassessment. 38 CFR 71.40(c)(4)(ii)(C)( 2 )( i ). Such determination is considered final and is not subject to the 60-day advanced notice period for stipend decreases under § 71.40(c)(4)(ii)(C)( 2 )( ii ) and discharges under § 71.45(b)(1)(i)(A). Therefore, VA would not repeat reassessments for the legacy cohort that resulted in a favorable determination before March 25, 2022. However, this would not preclude a claimant from requesting a review of or appealing a PCAFC decision issued before March 25, 2022, to the extent authorized by law.

Prior to the Veteran Warriors decision on March 25, 2022, VA had completed approximately 80 percent of the reassessments for the legacy cohort. As a result of those reassessments, VA determined that approximately 12,970 of the legacy participants and legacy applicants in the legacy cohort that were reassessed were no longer eligible for PCAFC, and approximately 360 legacy participants and legacy applicants that were reassessed would remain eligible but their Primary Family Caregiver's monthly stipend would be reduced based on the stipend level criteria in § 71.40(c)(4)(i)(A). Each of these approximately 13,330 individuals was provided preliminary findings from VA following their reassessments.

Since VA cannot rely on preliminary findings regarding stipend decreases and discharges for the legacy cohort that were based on VA's definition for need for supervision, protection, or instruction that was invalidated by the decision in Veteran Warriors, VA must repeat reassessments for such members of the legacy cohort who were reassessed using the definition of need for supervision, protection, or instruction (hereinafter referred to as “repeat reassessments”). In light of the short timeframe between the date Veteran Warriors was decided and September 30, 2022, VA will not be able to complete the remaining reassessments and repeat reassessments before the transition period for the legacy cohort is set to end under VA's current regulations. In order to maintain equity and parity within the legacy cohort, VA believes it is prudent to extend the eligibility for the entire legacy cohort until all members of the legacy cohort have been reassessed using the same eligibility criteria. 2

VA believes that a three-year extension is necessary to complete remaining reassessments and repeat reassessments, particularly as the second phase of PCAFC expansion begins on October 1, 2022, when VA anticipates an influx of an unknown quantity of applications. VA expects the surge in new applications associated with the second phase of PCAFC expansion will impact its ability to timely complete the remaining reassessments and repeat reassessments.

The VA MISSION Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, in a two-phase approach. As described in the First PCAFC Extension for Legacy Cohort, VA received a dramatic increase in PCAFC applications at the onset of the first phase of expansion. VA anticipates the second phase of expansion, which takes effect October 1, 2022, will also result in a surge in new applications. VA believes it has adequately prepared for the influx of applications that will be received beginning on October 1, 2022, through staffing enhancements, streamlining processes, and continuing to provide Caregiver Support Program staff with focused trainings. VA increased the number of approved Caregiver Support Program positions by over 350 in fiscal year 2022, bringing the total number of positions to 2,325. As of August 30, 2022, 89 percent of all positions have been filled. VA has streamlined its approach to the PCAFC assessment process by eliminating redundancies in assessments and evaluations, where possible. Targeted trainings have been provided to PCAFC staff focused on the process of conducting evaluations of PCAFC eligibility to build consistency and standardization in decision making, as well as delivery of PCAFC services. Trainings have reinforced a holistic approach in evaluating not only eligibility for PCAFC but also identifying opportunities for referrals to supports and services beyond PCAFC that are available through VA and outside VA. Each of these initiatives has positioned VA to improve the experience of those already participating in PCAFC, those who are applying for PCAFC currently, and individuals who will apply as a result of second phase of expansion.

While VA has planned and prepared for a surge in new applications as a result of this long-awaited second phase of expansion, similar to the surge in applications VA received as a result of the first phase of expansion, VA did so based on the presumption that all necessary reassessments of the legacy cohort would have already been completed before October 1, 2022. VA does not know the exact quantity of applications VA will receive under the second phase of expansion, but VA anticipates that completing necessary reassessments of the legacy cohort while also adjudicating a surge in PCAFC applications received on and after October 1, 2022, will be challenging. Thus, to mitigate delay in new Family Caregivers obtaining PCAFC benefits, VA anticipates focusing our resources initially on evaluating these new applications received at the onset of the second phase of expansion, which will mean that additional time is needed to complete necessary reassessments and repeat reassessments of the legacy cohort.

This current scenario closely mirrors the scenario when the first phase of PCAFC expansion began in 2020. At that time, VA experienced a surge of new applications but also had to conduct reassessments of the legacy cohort. VA found that two years were needed (from October 1, 2020, to September 30, 2022) to complete most of the legacy cohort reassessments under 38 CFR 71.30(e), as explained in the First PCAFC Extension for Legacy Cohort. See 86 FR 52615.

While VA has planned and prepared for a surge in new applications starting October 1, 2022, it needs to extend the transition period for three additional years to complete reassessments and repeat reassessments of the legacy cohort. While VA acknowledges that it determined two years were needed under the previous expansion, VA believes that three years will be needed during phase two of expansion to accommodate unforeseen circumstances or barriers that could interfere with VA's ability to complete reassessments and repeat reassessments.

For those reasons explained above, VA is now extending the transition period for three additional years (until September 30, 2025) for the legacy cohort while VA completes the remaining reassessments and repeat reassessments. This extension will ensure that all members of the legacy cohort have the same transition period and the same effective date for any termination or reduction in benefits, regardless of whether the reassessment was completed before or after the Veteran Warriors decision.

Without this extension, the current regulations would require VA to proceed in one of two ways starting October 1, 2022, both of which would be harmful to a portion of legacy applicants, legacy participants, and their Family Caregivers. First, VA could carry out the stipend decreases and discharges based on the determinations regarding the legacy cohort that were made before Veteran Warriors using the “need for supervision, protection, or instruction” regulatory definition. However, that would be unfair and inequitable to those legacy participants, legacy applicants, and their Family Caregivers because they would not have the benefit of being reassessed under the same criteria as those reassessed after Veterans Warriors (under the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii)), and the outcome of their determinations may be different if VA applied the statutory criteria in section 1720G(a)(2)(C)(ii) and (iii).

In the alternative, VA could set aside the stipend decreases and discharges based on the determinations that were made before Veterans Warriors using the “need for supervision, protection, or instruction” regulatory definition, but proceed in carrying out the stipend decreases and discharges that were determined after Veteran Warriors, as those determinations correctly used the statutory criteria in section 1720G(a)(2)(C)(ii) and (iii). However, this too would be unfair and inequitable to those legacy participants, legacy applicants, and their Family Caregivers with determinations made after Veteran Warriors because it would mean that they would have a shorter transition period than those for whom VA initiates repeat reassessments after October 1, 2022, because their determinations were made before Veterans Warriors. This is because the legacy applicants, legacy participants, and their Family Caregivers who are reassessed and found to be no longer eligible for PCAFC, or eligible but with a reduced stipend amount, would be impacted at different times. Some legacy participants, legacy applicants, and their Family Caregivers would experience negative impacts before others within this same cohort based on when they are reassessed. The varying impact would result from no reason other than that VA reassessed certain individuals prior to the Veterans Warriors decision and needed to conduct a repeat reassessment at a later date after October 1, 2022, than those individuals who were reassessed after Veterans Warriors under the statutory criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) before that date.

The initial one-year transition period for the legacy cohort was intended to establish a transition plan for the legacy cohort who may or may not meet the new eligibility criteria and whose Primary Family Caregivers could have their stipend amount impacted by changes to the stipend payment calculation. 85 FR 13356 (March 6, 2020). VA intended for the stipend amount for Primary Family Caregivers of legacy participants and legacy applicants to remain generally unchanged during the transition period, unless it is to their benefit, and so long as the eligible veteran did not relocate. 85 FR 13387. To this end, 38 CFR 71.40(c)(4)(i)(D) permits the Primary Family Caregiver of an eligible veteran who meets the requirements of § 71.20(b) ( i.e., legacy participants) to receive a monthly stipend that is not less than the amount the Primary Family Caregiver was eligible to receive as of the day before October 1, 2020 (based on the eligible veteran's address on record with PCAFC on such date), so long as the eligible veteran resides at the same address on record with PCAFC as of the day before October 1, 2020. VA believed that this special rule would provide legacy participants and their Primary Family Caregivers time to adjust to the proposed changes in PCAFC eligibility and the stipend payment methodology. Id. at 13385. When VA published the First PCAFC Extension for Legacy Cohort, VA continued for an additional year this special rule, and VA believes it is necessary to continue this special rule for an additional three years while VA completes reassessments and repeat reassessments for the legacy cohort.

VA believes this is necessary as the transition period for the legacy cohort is intertwined with the special rule in § 71.40(c)(4)(i)(D). VA never anticipated that the transition period associated with the special rule would be any different than the transition period authorized in other provisions of part 71 concerning the legacy cohort. VA's transition plan was intended to mitigate potentially negative impact on the legacy cohort based on changes VA made to the PCAFC eligibility criteria and stipend payment methodology. 85 FR 46268, 46270, and 46275. It was never VA's intention to remove the special rule in § 71.40(c)(4)(i)(D) before the conclusion of the transition period for the legacy cohort in other provisions of part 71 and doing so could cause hardship to the Primary Family Caregivers still receiving stipends under the special rule.

Moreover, CARMA, which is the workflow management tool used within the Caregiver Support Program and which automates the stipend payment calculation, intricately intertwines the transition period and the special rule. The workflow functionality within CARMA allows a Primary Family Caregiver to be transitioned off the special rule only if the legacy participant relocates to a new address or if the Primary Family Caregiver is eligible for a higher monthly stipend level as a result of a reassessment under § 71.30(e)(1) or as a result of Office of Personnel Management (OPM) updates to the General Schedule (GS). This functionality is by design, and bifurcating this functionality would require additional development, time, and resources. In the future, if VA determines that it is appropriate to uncouple the special rule from the transition period associated with the legacy cohort, VA will do so in a future rulemaking.

When VA established the initial one-year transition period for the legacy cohort, § 71.40(c)(4)(ii) was revised to address adjustments to stipend payments. 85 FR 46297. Section 71.40(c)(4)(ii)(C)( 2 ) focuses on adjustments to monthly stipends pursuant to reassessments conducted by VA under § 71.30 for eligible veterans who meet the requirements of § 71.20(b) or (c) ( i.e., legacy participants and legacy applicants) whose Primary Family Caregivers received monthly stipends pursuant to § 71.40(c)(4)(i)(B) or (D). Section 71.40(c)(4)(ii)(C)( 2 )( i ) focuses on reassessments that result in an increase in the monthly stipend, sets forth the effective date of this increase, and authorizes retroactive payments because of this increase. Under § 71.40(c)(4)(ii)(C)( 2 )( i ), VA provides retroactive payments back to October 1, 2020 in recognition that not all legacy participants and legacy applicants are reassessed at one time but rather are reassessed at different points during the transition period. Retroactive payments ensure that the Primary Family Caregivers of all legacy participants and legacy applicants meeting the requirements of § 71.20(a) receive the benefit of any stipend increase as of October 1, 2020, regardless of when the reassessment is completed during the transition period.

Further, § 71.40(c)(4)(ii)(C)( 2 )( i ) states that if more than one reassessment is completed during the two-year period beginning on October 1, 2020, the retroactive payment would only apply if the first reassessment during the two-year period beginning on October 1, 2020 results in an increase in the monthly stipend payment, and retroactive payments only apply as a result of the first reassessment. VA believed that any subsequent reassessment completed after the initial reassessment of a legacy participant or legacy applicant would likely be based on changes in the circumstances of the legacy participant or legacy applicant, such that retroactive payments back to a date before a previous reassessment would not be warranted. 85 FR 13389.

However, as a result of Veteran Warriors, VA must initiate repeat reassessments for purposes unrelated to the specific circumstances of the legacy participant or legacy applicant. As discussed above, the repeat reassessments are needed because the definition of need for supervision, protection, or instruction that was relied upon by VA during reassessments completed before Veteran Warriors, was invalidated by the court's decision. VA cannot rely on preliminary findings regarding stipend decreases and discharges for the legacy cohort that were based on VA's definition of need for supervision, protection, or instruction that was invalidated by the decision in Veteran Warriors. Since this decision, VA has applied 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of this definition when making PCAFC eligibility and stipend level determinations.

To maintain equity among members of the legacy cohort, VA believes that those who will require a repeat reassessment as a result of Veteran Warriors should be eligible to receive a retroactive payment under 38 CFR 71.40(c)(4)(ii)(C)( 2 )( i ) if the repeat reassessment results in a stipend increase. For example, a reassessment of a legacy participant and their Primary Family Caregiver could have been completed in February 2022 applying the definition of need for supervision, protection, or instruction, among other applicable criteria, which resulted in a determination of continued eligibility under § 71.20(a), but at a reduced monthly stipend amount. If a repeat reassessment is completed in November 2022 applying 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of the definition of need for supervision, protection, or instruction, which results in a determination of continued eligibility, but at the higher monthly stipend level, which is more than the monthly stipend amount the Primary Family Caregiver was receiving before the repeat reassessment, VA believes the Primary Family Caregiver should be eligible for the retroactive increase back to October 1, 2020, which is presumably what would have been authorized had VA applied section 1720G(a)(2)(C)(ii) and (iii) in place of the definition of need for supervision, protection, or instruction during the first reassessment.

Therefore, VA adds a sentence to the end of 38 CFR 71.40(c)(4)(ii)(C)( 2 )( i ) explaining that notwithstanding the previous sentence ( i.e., the last sentence in the current paragraph), if the first reassessment during the five-year period beginning on October 1, 2020 was completed by VA before March 25, 2022, and such reassessment did not result in an increase in the monthly stipend payment, the retroactive payment described in this paragraph applies to the first reassessment initiated by VA on or after March 25, 2022 that applies the criteria in 38 U.S.C. 1720G(a)(2)(C)(ii) and (iii) in place of the definition of need for supervision, protection, or instruction that was invalidated by Veteran Warriors, if such reassessment results in an increase in the monthly stipend payment, and only as a result of such reassessment.

For the reasons explained above, VA amends its regulations codified in 38 CFR 71.20 regarding program eligibility, § 71.30 regarding reassessments, and § 71.40 regarding caregiver benefits, to extend the transition period for legacy applicants, legacy participants, and their Family Caregivers from two years to five years (that is, until October 1, 2025) and to extend the time period for VA to conduct reassessments of such individuals from two years to five years (that is, until October 1, 2025).

VA amends § 71.20 by removing the words “two years” in § 71.20(b) and (c), and adding, in their place, the words “five years”.

VA amends § 71.30 by removing the words “two-year” in paragraphs (e)(1) and (2) and adding, in their place, the words “five-year”.

VA also amends § 71.40 by removing the words “two years” in paragraphs (c)(4)(i)(B) through (D) and adding, in their place, the words “five years”. VA similarly amends paragraph (c)(4)(ii)(C)( 2 )( i ) by removing the words “two-year” and adding, in their place, the words “five-year”. Additionally, VA revises paragraph (c)(4)(ii)(C)( 2 )( i ) by adding a sentence to the end of the paragraph explaining that notwithstanding the previous sentence ( i.e., the last sentence in the current paragraph), if the first reassessment during the five-year period beginning on October 1, 2020 was completed by VA before March 25, 2022, and such reassessment did not result in an increase in the monthly stipend payment, the retroactive payment described in this paragraph applies to the first reassessment initiated by VA on or after March 25, 2022 that applies the criteria in section 1720G(a)(2)(C)(ii) and (iii) in place of the definition of need for supervision, protection, or instruction that was invalidated by Veteran Warriors, if such reassessment results in an increase in the monthly stipend payment, and only as a result of such reassessment. Lastly, VA amends paragraph (c)(4)(ii)(C)( 2 )( ii ) and the note to paragraph (c)(4)(ii)(C)( 2 ) by removing the words “October 1, 2022”, and adding, in their place, the words “October 1, 2025”.

The VA MISSION Act of 2018 amended 38 U.S.C. 1720G by expanding eligibility for PCAFC to Family Caregivers of eligible veterans who incurred or aggravated a serious injury in the line of duty before September 11, 2001, in a two-phase approach. The first phase expanded PCAFC to eligible veterans who incurred or aggravated a serious injury (including traumatic brain injury, psychological trauma, or other mental disorder) in the line of duty on or before May 7, 1975, and began on the date the Secretary submitted a certification to Congress that VA fully implemented a required IT system required by section 162(a) of the VA MISSION Act of 2018. 38 U.S.C. 1720G(a)(2)(B)(ii). The second phase will begin two years after the date the Secretary submitted such certification to Congress. Id. at 1720G(a)(2)(B)(iii). As part of the July 31, 2020 rulemaking, VA referenced these dates of certification required by the VA MISSION Act of 2018 in 38 CFR 71.20(a)(2)(ii) and (iii) and 71.25(a)(3)(ii)(A) and (B) by using the phrases “date specified in a future Federal Register document” and “date published in a future Federal Register document”. 85 FR 46295-96. Section 71.20(a)(2)(ii) and (iii) refer to the time periods within which the individual's serious injury must have been incurred or aggravated for purposes of the first and second phases of expansion, respectively. Section 71.20(a)(3)(ii)(A) and (B) refer to the dates VA will begin approving joint applications pursuant to § 71.20(a)(2)(ii) and (iii), respectively.

On October 7, 2020, VA published a Federal Register Notice (FRN) announcing that, in accordance with the requirements of the VA MISSION Act of 2018, the Secretary submitted to Congress on October 1, 2020, a certification that VA fully implemented the IT system required by the Act. 85 FR 63358 (October 7, 2020). This certification enabled VA to begin the first phase of the PCAFC expansion on October 1, 2020, and the second phase will begin on October 1, 2022. VA is amending §§ 71.20(a)(2)(ii) and (iii) and 71.25(a)(3)(ii)(A) and (B), to reflect these dates.

Thus, § 71.20(a)(2)(ii) is amended to replace “on the date specified in a future Federal Register document” with “October 1, 2020”. Section 71.20(a)(2)(iii) is amended to replace “two years after the date specified in a future Federal Register document as described in paragraph (a)(2)(ii) of this section” with “October 1, 2022”. Section 71.25(a)(3)(ii)(A) is amended to replace “the date published in a future Federal Register document that is specified in such section” and “the date published in a future Federal Register document that is specified in § 71.20(a)(2)(ii)” with “October 1, 2020”. Section 71.25(a)(3)(ii)(B) is amended to replace “the date that is two years after the date published in a future Federal Register document that is specified in § 71.20(a)(2)(ii)” each time it appears with “October 1, 2022”.

These are non-substantive technical amendments that will reflect the publication of the October 7, 2020 FRN and add clarity to the regulation but will have no impact on PCAFC eligibility criteria nor VA's administration of PCAFC.

Additionally, in the July 31, 2020 rulemaking, VA redesignated § 71.30, which pertained to the Program of General Caregiver Support Services (PGCSS), as § 71.35. 85 FR 46296. The definition for general caregiver under § 71.15 refers to an individual who meets the requirements of PGCSS; however, the cross-reference in the definition directs readers to § 71.30, which now pertains to reassessments of eligible veterans and Family Caregivers. Accordingly, the definition for general caregiver is amended to include the correct cross-reference to § 71.35.

Further, in § 71.40 in the note to paragraph (c)(4)(ii)(C)( 2 ), VA is redesignating the note as “Note 1 to paragraph (c)(4)(ii)(C)( 2 )”. The Office of Federal Register has directed that even if there is only one note in a section, it must still be designated as “Note 1.” Therefore, we are redesignating the note accordingly.

The Secretary of Veterans Affairs finds that there is good cause under 5 U.S.C. 553(b)(B) to publish this rule without prior notice and opportunity for public comment, as notice and comment would be impracticable and contrary to public interest. Generally, VA would seek notice and comment in advance of issuing a final rule. However, in this circumstance, VA does not have sufficient time to provide the public with the opportunity for prior notice and comment and have the amendments effective by October 1, 2022. To provide such opportunity would cause harm to the eligible veterans and Family Caregivers who greatly benefit from and rely on PCAFC. As discussed earlier, due to the Veteran Warriors case, for those determinations involving the “need for supervision, protection, or instruction” definition in 38 CFR 71.15 that were still pending issuance of a last notice of decision on March 25, 2022, VA must re-evaluate such determinations based on the Veteran Warriors decision. VA cannot rely on preliminary findings regarding stipend decreases and discharges for the legacy cohort that were based on VA's regulatory definition for need for supervision, protection, or instruction, and therefore these reassessments must be repeated. At the time of the court's decision, VA had already completed approximately 80 percent of assessments for the legacy cohort. However, VA will not be able to repeat reassessments that were completed prior to the Veteran Warriors decision in addition to completing remaining reassessments that have yet to be completed by October 1, 2022. The time period is much too short for VA to be able to repeat and complete all these reassessments.

Therefore, absent regulatory action, as mentioned earlier, the current regulations would require VA to proceed in one of two ways, both of which would be harmful to a portion of legacy applicants, legacy participants, and their Family Caregivers. First, VA could carry out the stipend decreases and discharges based on the determinations regarding the legacy cohort that were made before Veteran Warriors using the “need for supervision, protection, or instruction” regulatory definition. In the alternative, VA could set aside the stipend decreases and discharges based on the determinations that were made before Veterans Warriors using the “need for supervision, protection, or instruction” regulatory definition, but proceed in carrying out the stipend decreases and discharges that were determined after Veteran Warriors, as those determinations correctly used the statutory criteria in section 1720G(a)(2)(C)(ii) and (iii). However, as explained earlier, neither option would be fair and equitable to all members of the legacy cohort.

Therefore, extending the transition and reassessment period in advance of October 1, 2022, is necessary to provide time for VA to repeat reassessments that were completed prior to the Veterans Warriors decision (in addition to complete remaining reassessments) in order to maintain equity and parity among the legacy applicants, legacy participants, and their Family Caregivers. Otherwise, certain eligible veterans and Family Caregivers may be harmed, which would be contrary to public interest.

Notwithstanding the need to publish these amendments as an interim final rule, VA invites public comments on the amendments and will fully consider and address any comments received.

For the reasons stated above, the Secretary also finds good cause under 5 U.S.C. 553(d)(3) to make this interim final rule effective on the date of its publication in the Federal Register .

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this interim final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). This interim final rule extends the time for VA to conduct reassessments of legacy applicants, legacy participants, and their Family Caregivers and the transition period for such individuals. This rule will have no impact on small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This interim final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

Pursuant to Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved this document on August 19, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 71 as follows:

On May 7, 2021, EPA published a notice of proposed rulemaking (NPRM). 86 FR 24564. In the NPRM, EPA proposed approval of case-by-case RACT determinations for sources at ten facilities in Allegheny County, as EPA found that that the RACT controls for these sources met the CAA RACT requirements for the 2008 8-hour ozone NAAQS. On October 21, 2021, EPA approved case-by-case RACT determinations for sources at nine of these major NO X and VOC emitting facilities in Allegheny County and noted that EPA was not taking final action on PPG Springdale at that time. 86 FR 58220. This rule takes final action on the case-by-case RACT determination for sources at the one remaining facility included in the May 7, 2021 NPRM, PPG Springdale. PADEP, on behalf of ACHD, initially submitted the revisions to its SIP to address case-by-case VOC RACT sources at PPG Springdale on May 7, 2020.

As more fully explained in the NPRM, under certain circumstances, states are required to submit SIP revisions to address RACT requirements for both major sources of nitrogen oxides (NO X ) and VOC and any source covered by control technique guidelines (CTG) for each ozone NAAQS. Which NO X and VOC sources in Pennsylvania are considered “major,” and are therefore subject to RACT, is dependent on the location of each source within the Commonwealth. NO X sources in Pennsylvania located in any ozone attainment areas or in any nonattainment areas designated moderate or below are subject to a major source threshold of 100 tons per year (tpy) because of the Ozone Transport Region (OTR) requirements in CAA section 182(f)(1). See definition of “Major NO X emitting facility” at 25 Pa. Code 121.1 and 40 CFR 52.2020(c)(1). Similarly, VOC sources located in any ozone attainment areas or in any nonattainment areas designated serious or below are subject to a source threshold of 50 tpy because of the OTR requirements in CAA section 184(b)(2). See definition of “Major VOC emitting facility” at 25 Pa. Code 121.1 and 40 CFR 52.2020(c)(1).

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

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

The SIP revision in this action only establishes 2008 8-hour ozone NAAQS RACT requirements. Applicable RACT requirements under the CAA for sources located in Allegheny County for the 1997 8-hour ozone NAAQS were previously satisfied. See 78 FR 34584 (June 10, 2013).

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

In the case-by-case RACT determinations for PPG Springdale submitted by PADEP on behalf of ACHD, an evaluation was completed to determine if previously SIP-approved, case-by-case RACT emission limits or operational controls (herein referred to as RACT I and contained in RACT I permits) were more stringent than the new RACT II presumptive or case-by-case requirements. If previously SIP-approved RACT I requirements are more stringent, such RACT I requirements continue to apply to the applicable source. If the new case-by-case RACT II requirements are more stringent than the RACT I requirements, then the RACT II requirements supersede the prior RACT I requirements. 3

Here, EPA is approving a SIP revision pertaining to case-by-case RACT requirements for certain VOC sources at PPG Springdale. PPG is a major source of VOC and was subject to RACT I under the name PPG Industries, Inc.—Springdale. The case-by-case RACT determinations submitted by PADEP, on behalf of ACHD, consist of an evaluation of all reasonably available controls at the time of evaluation for each affected emissions unit, resulting in a determination of what specific emissions limit or control measures satisfy RACT for that particular unit. The adoption of additional, or revised emissions limits or control measures to existing SIP-approved RACT I requirements were specified as requirements in a revised federally enforceable permit (hereafter RACT II permit) issued by ACHD to PPG Springdale. The RACT II permit was submitted as part of the Pennsylvania RACT SIP revision for EPA's approval in the Pennsylvania SIP under 40 CFR 52.2020(d)(1). The RACT II permit being approved in this action for PPG Industries Springdale Plant (formerly PPG Industries, Inc.—Springdale) is permit number 0057-OP18a, effective February 28, 2020, and is part of the docket for this rulemaking, which is available online at https://www.regulations.gov, Docket No. EPA-R03-OAR-2020-0575. 4 For certain VOC sources at PPG Springdale, EPA is incorporating by reference in the Pennsylvania SIP the source-specific emissions limits and control measures in the RACT II permit, and is determining that these provisions satisfy the RACT requirement under the 2008 8-hour ozone NAAQS.

This CbC RACT SIP revision incorporates determinations by ACHD of source-specific RACT II controls for individual VOC emission units at PPG Springdale, where those units are not covered by or cannot meet Pennsylvania's presumptive RACT regulation. After thorough review and evaluation of the information submitted to EPA by PADEP on behalf of ACHD, in its SIP revision submittals for sources at PPG Springdale, EPA found that: (1) ACHD's case-by-case RACT determinations and conclusions establish limits and/or controls on individual sources that are reasonable and appropriately considered technically and economically feasible controls; and (2) ACHD's determinations are consistent with the CAA, EPA regulations, and applicable EPA guidance.

ACHD, in its RACT II determinations, considered the prior source-specific RACT I requirements and, where more stringent, retained those RACT I requirements as part of its new RACT determinations. EPA found that all the proposed revisions to previously SIP-approved RACT I requirements would result in equivalent or additional reductions of VOC emissions. Consistent with section 110(l) of the CAA, the revisions for this major VOC source will not result in additional VOC emissions and thus should not interfere with any applicable requirement concerning attainment.

Other specific requirements of the 2008 8-hour ozone NAAQS case-by-case RACT determinations for PPG Springdale and the rationale for EPA's action are explained more thoroughly in the NPRM, and its associated technical support document (TSD), and will not be restated here.

EPA received one comment relevant to PPG Springdale on the May 7, 2021 NPRM. 86 FR 24564. A summary of the comment and EPA's response are discussed in this section. A copy of the comment can be found in the docket for this rule action.

Comment 1: The comment requests that EPA not take final action on the revisions pertaining to PPG Springdale as certain RACT requirements are involved in the appeal of the facility's permit before ACHD's hearing officer. The comment requests EPA delay action until the appeal is adjudicated or resolved, and any modifications to the permit are finalized.

Response 1: Under Clean Air Act Section 110(k), EPA has a statutory responsibility to act on plan revisions submitted by states by specified deadlines. EPA's failure to act within those deadlines can subject EPA to a lawsuit for our failure to timely execute a mandatory statutory duty. There is no provision in the Clean Air Act to toll the statutory deadline pending the outcome of state proceedings, or for any other reason. As long as the SIP revision is pending before EPA, our statutory obligation to approve or disapprove that revision in whole or part remains. Pennsylvania could formally withdraw the SIP revision from EPA's consideration but has not done so. EPA therefore remains under a statutory duty under section 110(k) of the Act to approve or disapprove this SIP revision in whole or part. EPA has determined that it will complete its statutory duty as proposed to approve this SIP revision with respect to PPG Springdale. If the outcome of the appeal process affects the RACT determination, Pennsylvania can then submit any proposed SIP revision with supporting documentation for the changes to EPA for review and appropriate agency action. At this time EPA is finalizing these case-by-case RACT determinations for PPG Springdale.

EPA is approving case-by-case RACT determinations for certain VOC sources at PPG Springdale, as required to meet obligations pursuant to the 2008 8-hour ozone NAAQS, as revisions to the Pennsylvania SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of source-specific RACT determinations under the 2008 8-hour ozone NAAQS for one major VOC-emitting facility in Pennsylvania, as discussed in Section II. of this preamble. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rule of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 5

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

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

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 21, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action.

This action approving Pennsylvania's NO X and VOC RACT requirements for one facility for the 2008 8-hour ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

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

As a result of MassDEP's expressed interest in exercising its authority in the implementation and enforcement of CAA sections 111(d) and 129 Federal Plan requirements for existing sources in Massachusetts, EPA Region 1 developed and submitted a preliminary draft of the MOA to MassDEP for its feedback in April 2020. Region 1 staff and legal counsel worked with MassDEP Air and Climate Programs staff and legal counsel to develop an agreed upon final draft.

Both EPA and MassDEP agree that the MOA is mutually advantageous and an effective mechanism to protect air quality. Accordingly, the MOA was signed by the Acting EPA Region 1 Administrator on October 15, 2021, and was signed by the MassDEP Commissioner on November 9, 2021. It addresses the functions MassDEP will assume, and the authorities EPA will continue to retain, for the implementation and enforcement of the CAA section 111(d) and/or section 129 Federal Plan requirements for affected sources in the Commonwealth of Massachusetts.

The MOA delineates the scope of the agreement, the mechanism of coordinating implementation and enforcement authority of the Federal Plan requirements via MassDEP's Title V operating permit program, standards affected by this MOA, the roles and responsibilities MassDEP will assume as well as those that EPA will continue to retain, and the administration of this agreement. The Federal Plans that are specifically covered by this MOA are codified at title 40 Code of Federal Regulations (CFR), part 62, subpart JJJ (for “small municipal waste combustors”), subpart LLL (for “sewage sludge incinerators”), and subpart OOO (for “municipal solid waste landfills”). Furthermore, the MOA also describes the method by which EPA and MassDEP will coordinate the implementation and enforcement of future Federal Plans.

The text of EPA Region 1's and MassDEP's MOA, effective November 9, 2021, is reproduced below:

A. The purpose of this Memorandum of Agreement (MOA) is to coordinate implementation and enforcement responsibilities and authorities between the U.S. Environmental Protection Agency, Region 1 (EPA), and the Massachusetts Department of Environmental Protection (MassDEP) with respect to the Federal Plan requirements for affected sources  1 promulgated by EPA pursuant to Clean Air Act (CAA) section 111(d) and/or section 129, as further specified herein. The CAA section 111(d) and/or section 129 Federal Plans that are covered by this MOA are codified at Title 40 Code of Federal Regulations (CFR), Part 62, subpart JJJ (for “small municipal waste combustors”), subpart LLL (for “sewage sludge incinerators”), and subpart OOO (for “municipal solid waste landfills”). In addition, this MOA details the process by which future federal plans promulgated under Part 62 will be implemented and enforced by MassDEP should it accept to exercise this responsibility. This MOA does not cover “large municipal waste combustors” subject to the State Plan approved by EPA and codified at 310 CMR 7.08(2).

B. MassDEP and EPA concur that it is mutually advantageous and the best use of resources to coordinate their efforts in the implementation and enforcement of these Federal Plans by entering this MOA.

C. MassDEP and EPA affirm their commitment to an effective partnership and agree to review this MOA from time to time, as necessary.

A. MassDEP will exercise its authority to implement and enforce the CAA section 111(d) and/or section 129 Federal Plans for affected sources in the Commonwealth of Massachusetts through its Title V operating permits as required under Title V of the CAA (Title V operating permit program), as codified in Massachusetts regulations at 310 CMR 7.00: Appendix C. See 61 FR 31442 and 66 FR 49541. Tribal lands with affected sources, if any, are not subject to this MOA.

B. This MOA addresses the functions MassDEP will assume, and the authorities EPA will continue to retain, as they pertain to the implementation and enforcement of the CAA section 111(d) and/or section 129 Federal Plans for affected sources.

A. As outlined in this MOA, MassDEP will exercise its authority to implement and enforce the emission standards and other applicable requirements contained in the section 111(d) and/or 129 Federal Plans for affected sources through MassDEP's Title V operating permit program, as codified in Massachusetts regulations at 310 CMR 7.00: Appendix C.

B. In its Title V operating permit program, MassDEP defines “applicable requirement” as:

See 310 CMR 7.00 Appendix C section (1) Definitions.

C. In accordance with the language above, MassDEP has the authority to implement and enforce CAA section 111, including CAA section 111(d) and/or section 129 Federal Plan standards, through MassDEP's Title V operating permit program.

D. MassDEP will implement and enforce CAA section 111(d) and/or section 129 Federal Plan standards by including such standards as applicable requirements in affected sources' Title V operating permits when such permits are issued or revised.

E. MassDEP has the following authorities to implement the program:

1. Requesting information on applicable requirements in affected sources' Title V operating permit applications. Through 310 CMR 7.00: Appendix C (3) and (10)(a), MassDEP is authorized to apply 111(d) and/or 129 Federal Plan requirements by requesting and receiving operating permit applications, as well as records relating to the operating permit or the emission of air contaminants;

2. Requesting and receiving records relating to the emission of air contaminants. Through 310 CMR 7.00: Appendix C (10)(a), MassDEP is authorized to request and receive records relating to the Title V operating permit or the emission of air contaminants;

3. Requiring that all applicable State and Federal requirements be included in Title V operating permits. Specific conditions related to CAA section 111(d) and/or section 129 Federal Plans will be included in an affected source's Title V operating permit by MassDEP through 310 CMR 7.00: Appendix C (3)(g)1, which specifies that all applicable requirements must be included in an operating permit;

4. Enforcing all conditions and requirements of its Title V operating permits. Enforcement of the CAA section 111(d) and/or section 129 Federal Plans will be exercised by MassDEP through its enforcement provision in 310 CMR 7.00: Appendix C (3)(f), which states that an Appendix C qualifying facility is subject to enforcement pursuant to the Massachusetts General Laws and regulations thereunder if a violation of Appendix C occurs. Penalties for such violations are outlined in M.G.L. c. 111, §§ 142A and B. MassDEP also has authority to issue civil administrative penalties for noncompliance violations pursuant to M.G.L. c. 21A, § 16, and 310 CMR 5.00.

A. Upon the effective date of this MOA, EPA recognizes MassDEP as having implementation and enforcement authority for Part 62, subpart JJJ (for “small municipal waste combustors”), subpart LLL (for “sewage sludge incinerators”), and subpart OOO (for “municipal solid waste landfills”) upon issuance of a Title V operating permit with applicable requirements for those standards written into the source-specific permit.

B. When EPA establishes future CAA section 111(d) and/or section 129 Federal Plan standards, EPA will notify MassDEP by forwarding a copy of the applicable regulations via a letter asking whether the standard is applicable to sources in Massachusetts and whether MassDEP intends to accept implementation and enforcement authority of the standard through issuance of a Title V operating permit with applicable requirements for those standards written into the source-specific permit. MassDEP will notify EPA by letter whether MassDEP intends to accept implementation and enforcement authority of the standard through issuance of Title V operating permits to applicable sources.

A. MassDEP and EPA agree to maintain a high level of communication, coordination, and cooperation between their respective staffs to assure the successful and effective administration and implementation of the CAA section 111(d) and/or section 129 Federal Plans for affected sources.

B. EPA commits to provide MassDEP with technical support and assistance in its implementation of CAA section 111(d) and/or section 129 Federal Plans for affected sources, as necessary.

C. Both parties agree to the following procedures:

1. MassDEP shall exercise its authority for the implementation and enforcement of CAA section 111(d) and/or section 129 Federal Plan standards in Title V operating permits, except for applicable sources, if any, in Tribal lands. Such implementation and enforcement shall include as appropriate:

a. Distribution of informational letters and information to potentially affected sources;

b. Receiving and reviewing notices, reports, and compliance certifications;

c. Conducting compliance inspections;

d. Preparing inspection reports and sharing with EPA those reports which find violations;

e. Requiring submittal of, receiving, and reviewing Title V operating permit applications from affected sources;

f. Expeditiously issuing or revising existing Title V operating permits for affected sources, as needed, to include the CAA section 111(d) and/or section 129 Federal Plan standards;

g. Assuring compliance through implementation and enforcement of the Title V operating permit program for affected sources; and

h. In instances where an affected source is required to develop pollution control parameter operating limits based on periodic testing, ensuring that such parameter operating limits are enforceable after the date of a successful performance test and the parameter operating limits are incorporated into a monitoring plan as expeditiously as possible.

2. EPA retains its implementation and enforcement authorities for CAA section 111(d) and/or section 129 Federal Plans in Massachusetts. EPA retains sole authority for the following functions:

a. Alternative site-specific non-methane organic compounds (NMOC) concentrations or site-specific methane generation rate constant (k) used in calculating the annual NMOC emission rate (for landfills);

b. Alternative emission standards;

c. Major alternatives to test methods;

d. Major alternatives to monitoring;

e. Waivers of record keeping;

f. Alternative monitoring parameters (if applicable);

g. Petitions for alternative control device monitoring parameters (where applicable); and

h. Implementation and enforcement in Tribal lands.

D. Nothing in this MOA shall constrain EPA's authority to fulfill its oversight and enforcement roles under the CAA. This MOA shall not be construed to contravene any provision for any associated CAA section 111(d) and/or section 129 Federal Plan requirements. Furthermore, this MOA is in addition to, and does not affect, other EPA approvals and/or delegations under the CAA, such as New Source Review, the Title V Permitting Program, and the State Implementation Plan.

E. Upon issuance of a Title V operating permit to an affected source, MassDEP will have the authority necessary to enforce the CAA section 111(d) and/or section 129 Federal Plan standards.

A. This MOA is effective when signed by both parties below and may be modified at any time upon the written agreement of MassDEP and EPA. This MOA may be terminated by either signatory at any time after proper written notice.

1. EPA and MassDEP may execute this MOA by handwritten or electronic signatures.

2. To ensure the validity of any electronic signatures and the legal enforceability of this MOA, EPA electronic signatures will comply with the Agency's 2018 Electronic Signature Policy and Electronic Signature Procedure. MassDEP signatures will comply with all applicable Massachusetts e-signature laws and policies. At a minimum, an electronically signed document must be reproducible in a human-intelligible form and clearly indicate: (1) that the document was electronically signed; (2) the unique identity of the individual who signed the document and their intent to sign; and (3) the date and time it was signed. Once the MOA is signed by a party, the document must be locked to prevent any further alteration of this document. An electronically signed MOA delivered by email or in hard copy shall be deemed an original document which shall be stored and managed in accordance with State and Federal recordkeeping requirements. EPA and MassDEP acknowledge that electronic signatures carry the legal effect, validity, or enforceability of handwritten signatures. Therefore, the parties shall not deny the legal effect, validity, or enforceability of records containing electronic signatures that they transmit and receive on the ground that such records, including the signature(s), are in electronic form.

B. Nothing in this agreement shall be construed to restrict in any way the authority of either MassDEP or EPA in fulfilling its responsibilities under State or Federal law, respectively.

For the United States, Deborah Szaro, Acting Regional Administrator, EPA Region 1, October 15, 2021.

For the Commonwealth of Massachusetts, Martin Suuberg, Commissioner, Massachusetts Department of Environmental Protection, November 9, 2021.

This document informs the public of EPA Region 1 and MassDEP's November 9, 2021 MOA. In addition, a copy of the MOA signed by EPA Region 1 and MassDEP is available in the docket for this action identified in the ADDRESSES section above.

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0153 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 21, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2021-0153, by one of the following methods:

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

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

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

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

In the Federal Register of June 28, 2021 (86 FR 33922) (FRL-10025-08), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E8882) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.598 be amended by establishing tolerances for residues of the insecticide novaluron in or on individual crops of proposed Crop Subgroup 6-XXA: Edible podded bean legume vegetable subgroup at 0.7 parts per million (ppm); individual crops of proposed Crop Subgroup 6-XXB: Edible podded pea legume vegetable subgroup at 2 ppm; individual crops of Proposed Crop Subgroup 6-XXC: Succulent shelled bean subgroup at 0.7 ppm; individual crops of Proposed Crop Subgroup 6-XXD: Succulent shelled pea subgroup at 0.05 ppm; individual crops of Proposed Crop Subgroup 6-XXE: Dried shelled bean, except soybean at 0.3 ppm; individual crops of Proposed Crop Subgroup 6-XXF: Dried shelled pea subgroup at 0.1 ppm; and Pea, forage at 15 ppm. The petition also requested to amend 40 CFR part 180 by removing established tolerances for residues of novaluron, including its metabolites and degradates, in or on Bean, dry, seed at 0.30 ppm, and Bean, succulent at 0.70 ppm. That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. One comment was received from the United States Department of Agriculture in support of the notice of filing.

In the Federal Register of April 28, 2022 (87 FR 25178) (FRL-9410-12-OCSPP) EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E8882) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.598 be amended by establishing tolerances for residues of the insecticide novaluron in or on the following raw agricultural commodities: Bean, phaseolus, forage at 15 ppm; Cowpea, forage at 15 ppm; Pea, field, forage at 15 ppm; Bean, phaseolus, hay at 80 ppm; Cowpea, hay at 80 ppm; and Pea, field, hay at 80 ppm. That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. No substantive comments were received in response to the notice.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is modifying many of the commodity definitions to be consistent with Agency terminology. The tolerance levels being established are the same as the petition requested.

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

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

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published tolerance rulemakings for novaluron in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to novaluron and established tolerances for residues of that chemical. EPA is incorporating previously published sections from these rulemakings as described further in this rulemaking, as they remain unchanged.

In addition, EPA has conducted a human health risk assessment in support of registration review for novaluron. That document, “Novaluron: Draft Human Health Risk Assessment to Support Registration Review” dated March 24, 2020, along with the Novaluron Interim Registration Review Decision, are available in docket ID number EPA-HQ-OPP-2015-0171 and are referenced below.

Toxicological profile. For a discussion of the Toxicological Profile of novaluron, see Unit III.A. of the novaluron tolerance rulemaking published in the Federal Register of July 22, 2015 (80 FR 43329) (FRL-9929-57) as well as the Novaluron: Draft Human Health Risk Assessment to Support Registration Review and Novaluron Interim Registration Review Decision.

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for novaluron used for human health risk assessment, please reference Unit III.B. of the July 22, 2015, rulemaking as well as the Novaluron: Draft Human Health Risk Assessment to Support Registration Review and Novaluron Interim Registration Review Decision.

Exposure assessment. EPA's dietary exposure assessments have been updated to include the additional exposure from the proposed new uses of novaluron on the commodities identified in this action. An acute dietary exposure assessment was not performed as there are no toxicological effects attributable to a single exposure (dose). A partially refined chronic dietary (food and drinking water) exposure and risk assessment was conducted that incorporated tolerance-level residues for the proposed new uses. The chronic dietary exposure and risk assessment also incorporated average percent crop treated (PCT) data for several registered commodities as well as projected PCT data for the proposed Field Pea and Cowpea feed commodities. For the remaining commodities, 100 PCT was assumed. Anticipated residues for meat, milk, hog, and poultry commodities were incorporated as well. A cancer dietary assessment was not conducted because novaluron is classified as “not likely to be carcinogenic to humans.”

Anticipated residue and PCT information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

Updated average percent crop treated values were used for the following crops that are currently registered for novaluron: apples (10%), broccoli (1%), cabbage (5%), cantaloupe (1%), cauliflower (1%), cherries (1%), cotton (5%), dry beans/peas (1%), peaches (1%), peanuts (5%), pears (25%), peppers (5%), plums/prunes (1%), potatoes (5%), pumpkins (1%), sorghum (1%), squash (1%), strawberries (45%), sugarcane (1%), sweet corn (1%), tomatoes (2.5%), and watermelons (1%).

In most cases, EPA uses available data from the United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and California Department of Pesticide Regulation (CalDPR) Pesticide Use Reporting (PUR) for the chemical/crop combination for the most recent 10 years. EPA uses an average PCT for chronic dietary risk analysis and a maximum PCT for acute dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 1% or less than 2.5% as the average PCT value, respectively. In those cases, the Agency would use less than 1% or less than 2.5% as the average PCT value, respectively. The maximum PCT figure is the highest observed maximum value reported within the most recent 10 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%, except where the maximum PCT is less than 2.5%, in which case, the Agency uses less than 2.5% as the maximum PCT.

Projected PCT was used for Field Pea and Cowpea feed commodities (10%). EPA estimates the projected PCT, also known as the percent crop treated of a new use (PCTn), based on the PCT of the dominant pesticide ( i.e., the one with the greatest PCT) used on that crop over the three most recent years of available data. Comparisons are only made among pesticides of the same pesticide types ( e.g., the dominant insecticide on the crop is selected for comparison with a new insecticide). The PCTs included in the analysis may be for the same pesticide or for different pesticides since the same or different pesticides may dominate for each year. Typically, EPA uses USDA NASS as the source for raw PCT data because it is publicly available and does not have to be calculated from available data sources. When a specific use site is not surveyed by USDA NASS, EPA uses other appropriate public data or private market research to calculate the PCTn.

The average PCT of the market leader(s) is appropriate for use in the chronic dietary risk assessment. This method of estimating a PCT for a new use of a registered pesticide or a new pesticide produces a high-end estimate that is unlikely, in most cases, to be exceeded during the initial five years of actual use. The predominant factors that bear on whether the estimated PCTn could be exceeded are (1) the extent of pest pressure on the crops in question; (2) the pest spectrum of the new pesticide in comparison with the market; and (3) resistance concerns with the market leaders. EPA has examined the relevant data and concludes that it is unlikely that the actual PCT with novaluron on the Field Pea and Cowpea feed commodities will exceed the PCTn within the next 5 years.

The Agency believes that Conditions a, b, and c discussed above have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which novaluron may be applied in a particular area.

Drinking water and non-occupational exposures. The previously recommended estimated drinking water concentrations (EDWCs) remain current and are considered protective potential drinking water residue levels anticipated from the proposed tolerances. As stated in Unit III of the novaluron tolerance rulemaking published in the Federal Register of August 13, 2020 (85 FR 49261) (FRL-10011-78), the chronic dietary exposure and risk assessment incorporate the highest total estimated drinking water concentration (EDWC) of 8.4 parts per billion directly into this dietary assessment. The residential exposure assessment has not changed since the July 22, 2015, rulemaking because there are no proposed new residential uses. For a summary of the residential exposure analysis for novaluron used for the human health risk assessment, please reference Unit III.C.3. of the July 22, 2015, rulemaking.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to novaluron and any other substances and novaluron does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that novaluron has a common mechanism of toxicity with other substances.

Safety factor for infants and children. EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor from 10X to 1X. See Unit III.D. of the July 22, 2015, rulemaking for a discussion of the Agency's rationale for that determination.

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

An acute dietary exposure assessment was not performed as there were no toxicological effects attributable to a single exposure (dose) observed in available oral toxicity studies, including maternal toxicity in the developmental toxicity studies. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 29% of the cPAD for children 1 to 2 years old, the group with the highest exposure. The combined short- and intermediate-term food, water, and residential exposures result in aggregate margins of exposures of 3,800 for adults and 280 for children 1 to 2 years old. These MOEs are greater than the level of concern of 100 and are therefore not of concern. Novaluron is classified as “Not Likely to Be Carcinogenic to Humans”; therefore, EPA does not expect novaluron exposures to pose an aggregate cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to novaluron residues. More detailed information on this action can be found in the document titled “Novaluron. Human Health Risk Assessment for Petition for Individual Commodities of Proposed Crop Subgroup 6-XXA: Vegetable, legume, bean, edible podded, subgroup 6-xxA; Proposed Crop Subgroup 6-XXB: Vegetable, legume, pea, edible podded, subgroup 6-xxB; Proposed Crop Subgroup 6-XXC: Vegetable, legume, bean, succulent shelled, subgroup 6-xxC; Proposed Crop Subgroup 6-XXD: Vegetable, legume, pea, succulent shelled, subgroup 6-xxD; Proposed Crop Subgroup 6-XXE: Vegetable, legume, bean, dried shelled, subgroup 6-xxE; Proposed Crop Subgroup 6-XXF: Vegetable, legume, pea, dried shelled, subgroup 6-xxF; Proposed Crop Subgroup 7-XXA: Vegetable, legume, forage and hay, except soybean group 7-xxA, forage; and Proposed Crop Subgroup 7-XXA: Vegetable, legume, forage and hay, except soybean group 7-xxA, hay” in docket ID EPA-HQ-OPP-2021-0153.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the July 22, 2015, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

The U.S. and Codex levels are harmonized for edible-podded and succulent shelled beans at 0.7 ppm. Using the Organization for Economic Cooperation and Development (OECD) calculator for the dried shelled beans, except soybean, subgroup gives a recommended tolerance level of 0.3 ppm, which is higher than the established Codex MRL of 0.1 ppm for “beans (dry).” The Agency is not lowering the tolerance level to harmonize with Codex because doing so could cause U.S. growers to have violative residues despite legal use of novaluron according to the label. There are no Codex MRLs for any of the other commodities identified in this action.

Therefore, tolerances are established for residues of novaluron in or on Bean, adzuki, dry seed at 0.3 ppm; Bean, African yam, dry seed at 0.3 ppm; Bean, American potato, dry seed at 0.3 ppm; Bean, asparagus, dry seed at 0.3 ppm; Bean, asparagus edible podded at 0.7 ppm; Bean, black, dry seed at 0.3 ppm; Bean, broad, dry seed at 0.3 ppm; Bean, broad, succulent shelled at 0.7 ppm; Bean, catjang, dry seed at 0.3 ppm; Bean, catjang edible podded at 0.7 ppm; Bean, catjang, succulent shelled at 0.7 ppm; Bean, cranberry, dry seed at 0.3 ppm; Bean, dry bean, dry seed at 0.3 ppm; Bean, field, dry seed at 0.3 ppm; Bean, French, dry seed at 0.3 ppm; Bean, French, edible podded at 0.7 ppm; Bean, garden, dry seed at 0.3 ppm; Bean, garden, edible podded at 0.7 ppm; Bean, goa, dry seed at 0.3 ppm; Bean, goa, edible podded at 0.7 ppm; Bean, goa, succulent shelled at 0.7 ppm; Bean, great northern, dry seed at 0.3 ppm; Bean, green, dry seed at 0.3 ppm; Bean, green, edible podded at 0.7 ppm; Bean, guar, dry seed at 0.3 ppm; Bean, guar, edible podded at 0.7 ppm; Bean, horse gram, dry seed at 0.3 ppm; Bean, kidney, dry seed at 0.3 ppm; Bean, kidney, edible podded at 0.7 ppm; Bean, lablab, dry seed at 0.3 ppm; Bean, lablab, edible podded at 0.7 ppm; Bean, lablab, succulent shelled at 0.7 ppm; Bean, lima, dry seed at 0.3 ppm; Bean, lima, succulent shelled at 0.7 ppm; Bean, morama, dry seed at 0.3 ppm; Bean, moth, dry seed at 0.3 ppm; Bean, moth, edible podded at 0.7 ppm; Bean, moth, succulent shelled at 0.7 ppm; Bean, mung, dry seed at 0.3 ppm; Bean, mung, edible podded at 0.7 ppm; Bean, navy, dry seed at 0.3 ppm; Bean, navy, edible podded at 0.7 ppm; Bean, phaseolus, forage at 15 ppm; Bean, phaseolus, hay at 80 ppm; Bean, pink, dry seed at 0.3 ppm; Bean, pinto, dry seed at 0.3 ppm; Bean, red, dry seed at 0.3 ppm; Bean, rice, dry seed at 0.3 ppm; Bean, rice, edible podded at 0.7 ppm; Bean, scarlet runner, dry seed at 0.3 ppm; Bean, scarlet runner, edible podded at 0.7 ppm; Bean, scarlet runner, succulent shelled at 0.7 ppm; Bean, snap, edible podded at 0.7 ppm; Bean, sword, dry seed at 0.3 ppm; Bean, sword, edible podded at 0.7 ppm; Bean, tepary, dry seed at 0.3 ppm; Bean, urd, dry seed at 0.3 ppm; Bean, urd, edible podded at 0.7 ppm; Bean, wax, edible podded at 0.7 ppm; Bean, wax, succulent shelled at 0.7 ppm; Bean, yardlong, dry seed at 0.3 ppm; Bean, yardlong, edible podded at 0.7 ppm; Bean, yellow, dry seed at 0.3 ppm; Chickpea, dry seed at 0.1 ppm; Chickpea, edible podded at 2 ppm; Chickpea, succulent shelled at 0.05 ppm; Cowpea, dry seed at 0.3 ppm; Cowpea, edible podded at 0.7 ppm; Cowpea, forage at 15 ppm; Cowpea, hay at 80 ppm; Cowpea, succulent shelled at 0.7 ppm; Jackbean, dry seed at 0.3 ppm; Jackbean, edible podded at 0.7 ppm; Jackbean, succulent shelled at 0.7 ppm; Lentil, dry seed at 0.1 ppm; Lentil, edible podded at 2 ppm; Lentil, succulent shelled at 0.05 ppm; Longbean, Chinese, dry seed at 0.3 ppm; Longbean, Chinese, edible podded at 0.7 ppm; Lupin, Andean, dry seed at 0.3 ppm; Lupin, Andean, succulent shelled at 0.7 ppm; Lupin, blue, dry seed at 0.3 ppm; Lupin, blue, succulent shelled at 0.7 ppm; Lupin, grain, dry seed at 0.3 ppm; Lupin, grain, succulent shelled at 0.7 ppm; Lupin, sweet, dry seed at 0.3 ppm; Lupin, sweet, succulent shelled at 0.7 ppm; Lupin, white sweet, dry seed at 0.3 ppm; Lupin, white sweet, succulent shelled at 0.7 ppm; Lupin, white, dry seed at 0.3 ppm; Lupin, white, succulent shelled at 0.7 ppm; Lupin, yellow, dry seed at 0.3 ppm; Lupin, yellow, succulent shelled at 0.7 ppm; Pea, blackeyed, dry seed at 0.3 ppm; Pea, blackeyed, succulent shelled at 0.7 ppm; Pea, crowder, dry seed at 0.3 ppm; Pea, crowder, succulent shelled at 0.7 ppm; Pea, dry, dry seed at 0.1 ppm; Pea, dwarf, edible podded at 2 ppm; Pea, English, succulent shelled at 0.05 ppm; Pea, field, dry seed at 0.1 ppm; Pea, field, forage at 15 ppm; Pea, field, hay at 80 ppm; Pea, garden, dry seed at 0.1 ppm; Pea, garden, succulent shelled at 0.05 ppm; Pea, grass, dry seed at 0.1 ppm; Pea, grass, edible podded at 2 ppm; Pea, green, dry seed at 0.1 ppm; Pea, green, edible podded at 2 ppm; Pea, green, succulent shelled at 0.05 ppm; Pea, pigeon, dry seed at 0.1 ppm; Pea, pigeon, edible podded at 2 ppm; Pea, pigeon, succulent shelled at 0.05 ppm; Pea, snap, edible podded at 2 ppm; Pea, snow, edible podded at 2 ppm; Pea, southern, dry seed at 0.3 ppm; Pea, southern, succulent shelled at 0.7 ppm; Pea, sugar snap, edible podded at 2 ppm; Pea, winged, dry seed at 0.3 ppm; Pea, winged, edible podded at 0.7 ppm; Soybean, vegetable, dry seed at 0.3 ppm; Soybean, vegetable, edible podded at 0.7 ppm; Soybean, vegetable, succulent shelled at 0.7 ppm; Velvetbean, dry seed at 0.3 ppm; Velvetbean, edible podded at 0.7 ppm; Velvetbean, succulent shelled at 0.7 ppm.

Additionally, the established tolerances on Bean, dry, seed and Bean, succulent are removed as unnecessary.

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

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

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

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

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

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2020-0498 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 21, 2022. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2020-0498, by one of the following methods:

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

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

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

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

In the Federal Register of December 21, 2020 (85 FR 82998) (FRL-10016-93), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0E8859) by IR-4, NC State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.473 be amended to establish tolerances for residues of the herbicide glufosinate-ammonium, determined by measuring the sum of glufosinate-ammonium, butanoic acid, 2-amino-4-(hydroxymethylphosphinyl) monoammonium salt, and its metabolites, 2-(acetylamino)-4-(hydroxymethyl phosphinyl)butanoic acid, and 3-(hydroxymethylphosphinyl)propanoic acid, expressed as 2-amino-4-(hydroxymethylphosphinyl)butanoic acid equivalents in or on avocado at 0.03 parts per million (ppm); bushberry subgroup 13-07B at 0.15 ppm; cottonseed subgroup 20C at 4 ppm; fig at 0.07 ppm; fig, dried at 0.2 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.05 ppm; hop, dried cones at 0.9 ppm; melon subgroup 9A at 0.08 ppm; pepper/eggplant subgroup 8-10B at 0.08 ppm; rapeseed, subgroup 20A at 0.4 ppm; squash/cucumber subgroup 9B at 0.15 ppm; tomato, paste at 0.11 ppm; tomato, subgroup 8-10A at 0.06 ppm; tropical and subtropical, small fruit, edible peel, subgroup 23A at 0.5 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.8 ppm. Upon the establishment of those tolerances, the petition also requested that EPA remove the following tolerances from 40 CFR 180.473: apple at 0.05 ppm; bushberry subgroup 13B at 0.15 ppm; canola, seed at 0.40 ppm; cotton, undelinted seed at 4.0 ppm; grape at 0.05 ppm; juneberry at 0.10 ppm; lingonberry at 0.10 ppm; olive at 0.50 ppm; pistachio at 0.10 ppm; potato at 0.80 ppm; and salal at 0.10 ppm. That document referenced a summary of the petition prepared by IR-4, the petitioner, and is available in the docket, https://www.regulations.gov. Two comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

In the Federal Register of August 24, 2021 (86 FR 47275) (FRL-8792-02-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 0F8865) by BASF Corporation, 26 Davis Drive, Research Triangle Park, NC 27709. The petition requested that 40 CFR 180.473 be amended to establish or revise tolerances for residues of the herbicide glufosinate-ammonium, determined by measuring the sum of glufosinate-ammonium, butanoic acid, 2-amino-4-(hydroxymethylphosphinyl) monoammonium salt, and its metabolites, 2-(acetylamino)-4-(hydroxymethyl phosphinyl)butanoic acid, and 3-(hydroxymethylphosphinyl)propanoic acid, expressed as 2-amino-4-(hydroxymethylphosphinyl)butanoic acid equivalents in or on oilseed, cottonseed subgroup 20C at 15 ppm and cotton gin byproducts at 50 ppm. That document referenced a summary of the petition prepared by BASF, the registrant, and is available in the docket, https://www.regulations.gov. Comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition, EPA is establishing some tolerances at different levels than the petitioner requested. The reasons for these changes are explained in Unit IV.D.

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

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

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

The toxicology database for glufosinate is complete. A primary effect associated with glufosinate is inhibition of glutamine synthetase in the brain, which may be of significant concern for possible neurotoxicity and/or expression of clinical signs. Clinical signs of neurotoxicity were seen in several studies, including the subchronic, developmental, and chronic studies in rats and dogs. In addition to a variety of clinical signs, retinal atrophy was also observed in the subchronic and chronic rat studies. The rat developmental neurotoxicity (DNT) study demonstrated altered brain morphometrics.

There was evidence of both qualitative (rabbit developmental study) and quantitative (rat reproductive toxicity study; DNT study) susceptibility following glufosinate exposure. A 28-day inhalation toxicity study demonstrated toxicity at the lowest dose tested as indicated by lung and bronchial congestion. Glufosinate ammonium is classified as Toxicity Category III or IV for acute oral, dermal, and inhalation toxicity; and is not a dermal or eye irritant, nor a dermal sensitizer. Glufosinate was classified as “not likely to be a human carcinogen.” There was no evidence of a treatment-related increase in tumors in either rats or mice.

Specific information on the studies received and the nature of the adverse effects caused by glufosinate as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at https://www.regulations.gov in the document titled “Glufosinate. Human Health Risk Assessment for the Proposed Use of Glufosinate on tomato subgroup 8-10A; pepper/eggplant subgroup 8-10B; melon subgroup 9A; squash/cucumber subgroup 9B; fig; avocado; hops: and crop group expansions for rapeseed subgroup 20A; cottonseed subgroup 20C; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F; tropical and subtropical, small fruit, edible peel, subgroup 23A; vegetable, tuberous and corm, subgroup 1C; and a crop group conversion for bushberry subgroup 13-07B: an amended application rate for cotton: and revised restricted entry intervals for cotton, field corn, sweet corn, soybean, and canola” (hereinafter “Glufosinate Human Health Risk Assessment”) on pages 43-52 in docket ID number EPA-HQ-OPP-2020-0498.

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

A summary of the toxicological endpoints for glufosinate used for human risk assessment can be found in the Glufosinate Human Health Risk Assessment on page 23-26.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to glufosinate, EPA considered exposure under the petitioned-for tolerances as well as all existing glufosinate tolerances in 40 CFR 180.473. EPA assessed dietary exposures from glufosinate in food as follows:

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. Such effects were identified for glufosinate.

In conducting the acute dietary exposure assessment, EPA used the 2003-2008 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). The acute dietary exposure assessment is unrefined, assuming tolerance level residues and 100% crop treated (100 PCT) for all crop and livestock commodities.

ii. Chronic exposure. In conducting the chronic dietary exposure assessment, EPA used the 2003-2008 food consumption data from the NHANES/WWEIA. EPA used anticipated residues based on average field trial residue levels for plant raw agricultural commodities, PCT information where available, and experimentally-determined processing factors where available. Anticipated residues for livestock commodities were also calculated and incorporated into the assessment.

iii. Cancer. EPA has concluded that glufosinate does not pose a cancer risk to humans. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

iv. Anticipated residue and PCT information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Section 408(b)(2)(F) of FFDCA states that the Agency may use data on the actual percent of food treated for assessing chronic dietary risk only if:

• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.

• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.

• Condition c: Data are available on pesticide use and food consumption in a particular area, and the exposure estimate does not understate exposure for the population in such area.

In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.

For the chronic dietary assessment, the following PCT assumptions were made: almonds: 25%; apples: 5%; apricots: 15%; blueberries: 20%; canola: 55%; cherries: 5%; corn: 2.5%; cotton: 20%; grapes: 20%; hazelnuts: 40%; peaches:10%; pears: 10%; pecans: 1%; pistachios: 35%; plums/prunes: 15%; potatoes: 15%; rice: 1%; soybeans: 10%; sweet corn: 1%; and walnuts: 20%. In the acute analysis, the Agency made the conservative assumption of 100 PCT.

In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and California Department of Pesticide Regulation (CalDPR) Pesticide Use Reporting (PUR) for the chemical/crop combination for the most recent 10 years. EPA uses an average PCT for chronic dietary risk analysis and a maximum PCT for acute dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than 1% or less than 2.5%. In those cases, the Agency would use less than 1% or less than 2.5% as the average PCT value, respectively. The maximum PCT figure is the highest observed maximum value reported within the recent 10 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5% except where the maximum PCT is less than 2.5%, in which case, the Agency uses less than 2.5% as the maximum PCT.

The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which glufosinate may be applied in a particular area.

2. Dietary exposure from drinking water. The Agency used screening level water exposure models in the dietary exposure analysis and risk assessment for glufosinate in drinking water. These simulation models take into account data on the physical, chemical, and fate/transport characteristics of glufosinate. Further information regarding EPA drinking water models used in pesticide exposure assessment can be found at https://www.epa.gov/science-and-assessing-pesticide-risks/pesticide-risk-assessment.

Based on the Pesticides in Water Calculator (PWC; version 1.52), the estimated drinking water concentrations (EDWCs) of glufosinate are estimated to be 201 ppb for acute dietary exposures and 24.4 ppb parts per billion (ppb) for chronic dietary exposures. Surface water simulations resulted in the highest EDWCs.

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). Glufosinate is currently registered for uses that could result in residential handler and post-application exposures including use on lawn and turf as well as recreational sites such as golf courses. The current action does not add any new uses with residential exposures.

For assessing aggregate exposure to adults, the Agency used exposures from the dermal exposure scenario from high contact lawn activity on treated lawns and turf. For assessing aggregate exposure to children 1 to less than 2 years old, the conservative exposure assessment for dermal plus incidental oral (hand-to-mouth and object-to-mouth) exposure from high contact lawn activity on lawns and turf treated with glufosinate was assumed. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at https://www.epa.gov/science-and-assessing-pesticide-risks/standard-operating-procedures-residential-pesticide.

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

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to glufosinate and any other substances, and glufosinate does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has not assumed that glufosinate has a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

1. In general. Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data are available to EPA support the choice of a different factor.

2. Prenatal and postnatal sensitivity. Quantitative susceptibility was seen in the rat developmental neurotoxicity (DNT) study for glufosinate which demonstrated alterations in brain morphometrics in the adult offspring exposed in utero and/or during lactation at dose levels not associated with maternal toxicity. The reproductive toxicity study in rats also showed evidence of quantitative susceptibility indicated by an increase in pup mortality in the absence of parental toxicity. In rabbits, decreased fetal body weight and increased mortality were observed. Since increased fetal mortality was observed in the presence of less severe maternal toxicity (decreased food consumption, body weight, and body weight gain), there is evidence of qualitative susceptibility in the fetuses. The developmental toxicity study in the rat revealed dilated renal pelvis and/or hydroureter in the fetuses at the same dose level that produced significant increases in hyperactivity and vaginal bleeding in the dams indicating no qualitative or quantitative sensitivity.

3. Conclusion. EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X for acute dietary exposure. For all other exposure scenarios where the DNT study or the 28-day inhalation study is used as an endpoint for risk assessment ( i.e., short-term incidental oral, short- and intermediate-term dermal, and chronic dietary), EPA is retaining a 10X FQPA SF as a LOAEL to NOAEL extrapolation factor since NOAELs were not observed in those studies. The decision to reduce the FQPA SF to 1X for acute dietary exposure is based on the following findings:

i. The toxicity database for glufosinate is complete.

ii. A number of clinical signs indicative of neurotoxicity were noted in rat and dog studies. A critical indication of neurotoxicity was also evident in the DNT study where alterations in brain morphometrics in the adult offspring were demonstrated. However, concern is low since the selected points of departure are protective of observed neurotoxic effects.

iii. Quantitative evidence of increased in utero and post-natal susceptibility was identified in rats. However, concern for the observed susceptibility is low as all selected endpoints are protective of these effects.

iv. There are no residual uncertainties identified in the exposure databases. The acute dietary food exposure assessment was performed based on 100 PCT and tolerance-level residues for all crops and livestock commodities. With limited monitoring data available, upper-bound assumptions were used to determine exposure through drinking water sources. These assessments will not underestimate the exposure and risks posed by glufosinate.

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

1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions described in this unit for acute exposure, EPA has concluded that acute exposure to glufosinate from food and water will utilize 27% of the aPAD with the females 13 to 49 years old population subgroup, the only population group of concern because no appropriate toxicological effect attributable to a single dose was observed for the general U.S. population or any other population subgroup.

2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to glufosinate from food and water will utilize 37% of the cPAD for children 1 to 2 years old, the population group receiving the greatest exposure. Chronic residential exposure to residues of glufosinate is not expected.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Glufosinate is registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to glufosinate.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in a short-term aggregate MOE 5,100 for adults. Likewise, for children 1 to less than 2 years old, the short-term aggregate risk estimates are not of concern. The short-term aggregate MOE is 1,100 and the Agency's level of concern is 1,000 for the particular exposures discussed in this section. Because EPA's level of concern for glufosinate is 1,000 or below, these risks are not of concern.

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

5. Aggregate cancer risk for U.S. population. Based on the lack of evidence of carcinogenicity in two adequate rodent carcinogenicity studies, glufosinate is not expected to pose a cancer risk to humans.

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

Two analytical methods have been validated by EPA for enforcement of the currently established tolerances: (1) Method HRAV-5A for the determination of glufosinate and glufosinate propanoic acid in/on almond, apple, corn forage, corn grain, grape, and soybean seed; and, (2) Method BK/01/99 used for the determination of glufosinate, N-acetyl-glufosinate, and glufosinate propanoic acid in/on canola seed and sugar beet root.

Based on the results of the crop field trials validating a method similar to Method BK/01/99, EPA concludes that Method BK/01/99 is a suitable method for enforcement of tolerances on avocado, fig, hops, melon, pepper, squash/cucumber and tomato.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

Codex has not established MRLs for glufosinate in/on cotton, gin byproducts; fig, dried; hop, dried cones; melon, subgroup 9A; pepper/eggplant 8-10B; squash/cucumber subgroup 9B; or tomato, paste.

The U.S. tolerances for avocado and fig are harmonized with the Codex MRLs of 0.1 ppm for avocado and 0.1 ppm for fig. The U.S. tolerance for tomato subgroup 8-10A is harmonized with Codex MRLs of 0.1 ppm on naranjilla and tree tomato.

Tolerances for bushberry subgroup 13-07B; tropical and subtropical, small fruit, edible peel, subgroup 23A; vegetable, tuberous and corm, subgroup 1C; and cottonseed subgroup 20C are not harmonized with the corresponding Codex MRLs because the residue data based on approved application rates indicates that residues of glufosinate would be higher than the Codex MRL. Decreasing the U.S. tolerances would put U.S. growers at risk of having violative residues despite legal use of glufosinate according to the label. The tolerance for rapeseed subgroup 20A at 0.4 ppm is not harmonized with the Codex MRL on rapeseed at 1.5 ppm because the Codex MRL is based on an obsolete use and because available data indicate that 0.4 ppm is sufficient for glufosinate residues from use on rapeseed subgroup 20A. EPA is not harmonizing the U.S. tolerance for fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.05 ppm with the Codex MRLs of 0.15 ppm for table and wine grape because the Codex MRLs are based on obsolete data and there are no registered uses in the European Union.

The same two comments were received to both the registrant's and IR-4's notice of filing. Both comments stated in part that the Agency should “deny this profiteering exemption for rutgers.” Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by section 408 of the FFDCA authorizes EPA to establish tolerances when it determines that the tolerances are safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that the glufosinate tolerances are safe. The commenter has provided no information indicating that a safety determination cannot be supported.

EPA is establishing the tolerances for avocado, fig, and tomato subgroup 8-10A at different levels than requested to harmonize with the Codex MRL.

For cottonseed, subgroup 20C, IR-4 requested a tolerance of 4 ppm based on the existing tolerance of 4 ppm on cotton, undelinted seed; however, BASF also petitioned for a new tolerance on cottonseed subgroup 20C at 15 ppm. EPA is establishing the tolerance at 15 ppm based on the new cotton field trial data. For cotton, gin byproducts, the already established tolerance of 15 ppm is being changed to 30 ppm rather than 50 ppm requested by BASF based on the new field trial data provided for cotton gin byproducts. The tolerance of 30 ppm for cotton gin byproducts is based on the field trials most reflective of the label use pattern on cotton (2 applications of ~0.8 lb ai/A), rather than using field trials that exceed the maximum single application rate.

IR-4 requested a tolerance of 0.2 ppm for fig, dried. EPA is establishing the tolerance for fig, dried at 0.15 ppm to reflect the correct theoretical processing factor. The tolerance level for fig, dried was derived using the combined glufosinate, 3-(hydroxymethylphosphinyl) propanoic acid (MPP), and 2-(acetylamino)-4-(hydroxymethyl phosphinyl) butanoic acid (NAG) highest average field trials (HAFTs) of the fig field trials in combination with the theoretical processing factor of 3.5X rather than 4.8X.

EPA is establishing the tolerance for pepper/eggplant subgroup 8-10B at 0.15 ppm rather than at 0.08 ppm as requested by IR-4. As the representative crops for the subgroup, the field trial data for bell and nonbell peppers were analyzed separately, which resulted in a higher tolerance of 0.15 ppm for nonbell pepper. EPA is using that value to establish the tolerance for the subgroup.

IR-4 requested a tolerance of 0.11 ppm for tomato, paste but EPA is establishing the tolerance at 0.15 ppm. The tolerance level of 0.15 ppm was derived using the glufosinate and 3-(hydroxymethylphosphinyl) propanoic acid HAFTs from the tomato field trials in combination with the empirically-determined processing factors for glufosinate and 3-(hydroxymethylphosphinyl) propanoic acid.

Therefore, tolerances are established for residues of glufosinate, including its metabolites and degradates, in or on avocado at 0.1 ppm; bushberry subgroup 13-07B at 0.15 ppm; cottonseed subgroup 20C at 15 ppm; fig at 0.1 ppm; fig, dried at 0.15 ppm; fruit, small, vine climbing, except fuzzy kiwifruit, subgroup 13-07F at 0.05 ppm; hop, dried cones at 0.9 ppm; melon subgroup 9A at 0.08 ppm; pepper/eggplant subgroup 8-10B at 0.15 ppm; rapeseed subgroup 20A at 0.4 ppm; squash/cucumber subgroup 9B at 0.15 ppm; tomato, paste at 0.15 ppm; tomato subgroup 8-10A at 0.1 ppm; tropical and subtropical, small fruit, edible peel, subgroup 23A at 0.5 ppm; and vegetable, tuberous and corm, subgroup 1C at 0.8 ppm. EPA is also revising the tolerance for cotton, gin byproducts from 15 ppm to 30 ppm.

Tolerances are also removed for the following commodities due to the establishment of tolerances for the above commodities or previously established tolerances: apple at 0.05 ppm; bushberry subgroup 13B at 0.15 ppm; canola, seed at 0.40 ppm; cotton, undelinted seed at 4.0 ppm; grape at 0.05 ppm; juneberry at 0.10 ppm; lingonberry at 0.10 ppm; olive at 0.50 ppm; pistachio at 0.10 ppm; potato at 0.80 ppm; and salal at 0.10 ppm.

Finally, EPA is revising the title of § 180.473 from “Glufosinate Ammonium; tolerances for residues” to “Glufosinate; tolerances for residues” and revising the tolerance expression for glufosinate in 40 CFR 180.473(a) and (d) to clarify that the tolerance for the active ingredient will be referred to as glufosinate ( i.e., the racemic mixture). Glufosinate is a racemic mixture of the D- and L-enantiomers; with the L-enantiomer being responsible for its herbicidal activity. Glufosinate can exist in multiple forms, including the acid, ammonium, and sodium forms; other salt forms of glufosinate may be possible as well. While there are presently only registrations for the ammonium form of glufosinate, future registration requests may be submitted for the acid, sodium, or other forms. This change to the tolerance expression will cover the particular form ( e.g., acid or ammonium) that may be in any particular pesticide product in the future. EPA has determined that it is reasonable to make this change final without prior proposal and opportunity for comment, because public comment is not necessary, in that the change has no substantive effect on the tolerance because ammonium is the only form currently registered.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

The EPA is promulgating this rulemaking to amend the existing crop grouping regulations under section 408(e)(1)(C) of the Federal Food, Drug, and Cosmetic Act (FFDCA), which authorizes EPA to establish “general procedures and requirements to implement [section 408].” 21 U.S.C. 346a(e)(1)(C). Under FFDCA section 408, EPA is authorized to establish tolerances for pesticide chemical residues in food. EPA establishes tolerances for each pesticide based on data on the pesticide residues and the potential risks to human health posed by that pesticide. A tolerance is the maximum permissible residue level established for a pesticide in raw agricultural commodities and processed foods. The crop group regulations currently in 40 CFR 180.40 and 180.41 enable the establishment of tolerances for a group of crops based on residue data for certain crops that are representative of the group.

This final rule is the sixth in an ongoing series of crop group updates, including an additional update expected to be promulgated in the next several years. EPA is finalizing revisions to EPA's regulations governing crop group tolerances for pesticides. Specifically, this rule is finalizing revisions to Crop Group 6: Legume Vegetables (Succulent or Dried) Group; Crop Group 7: Foliage of Legume Vegetables Group; Crop Group 15: Cereal Grains Group; and Crop Group 16: Forage, Fodder, and Straw of Cereal Grains Group. The changes include changes to the terminology in the names of Crop Groups 6, 7, 15, and 16, the addition of commodities, and changes that advance international harmonization. In addition, the final changes include revisions to the subgroups for Crop Group 6 and the addition of subgroups for Crop Group 15. EPA is also finalizing additions and revisions to associated commodity definitions at 40 CFR 180.1(g). Unit III. of the proposed rule includes a detailed description of the provisions that EPA proposed and which the Agency is now finalizing (87 FR 1091, January 10, 2022 (FRL-5032-12-OSCPP)). The changes made in response to public comments are described in greater detail in Unit III. of this final rule.

EPA sets tolerances, which are the maximum amount of a pesticide allowed to remain in or on a food, as part of the process of regulating pesticides that may leave residues in food. Crop groups are established when residue data for certain representative crops are used to establish pesticide tolerances for a group of crops that are botanically or taxonomically related. Representative crops of a crop group or subgroup are those crops whose residue data can be used to establish a tolerance for the entire group or subgroup.

With the establishment of crop groups such as the ones being revised in this final rule, EPA seeks to:

• Enhance our ability to conduct food safety evaluations on crops for tolerance-setting purposes;

• Promote global harmonization of food safety standards;

• Reduce regulatory burden; and

• Ensure food safety for agricultural goods.

This is a burden-reducing regulation because crop grouping allows the results of pesticide residue studies for some crops, called representative crops, to be applied to other, similar crops in the group. EPA prepared an Economic Analysis for this rulemaking (Ref. 1), a copy of which is in the docket for this rule and is summarized here.

1. Costs. The Agency anticipates that the revisions to the crop grouping program finalized in this rulemaking will result in no appreciable costs or negative impacts to consumers, specialty crop producers, pesticide registrants, the environment, or human health. In particular, specialty crop producers may gain access to pesticides that are registered on the crop group that would not have been available when the crop was not part of the group. Although this rule may make it possible to get a pesticide tolerance on a larger number of crops within a group, it will not necessarily increase the amount of pesticides released into the environment and will expand the choice of pesticides for crop producers, which may result in the use of less risky pesticides.

2. Benefits. This final rule will promote greater use of crop groupings for tolerance-setting purposes, both domestically and in countries that export food to the U.S. and is anticipated to benefit pesticide registrants, minor crop growers, and the Agency. While the Agency has not attempted to quantify the benefits at the final rule stage, the qualitative Economic Analysis finds that legume vegetable growers, cereal grain growers, and pesticide registrants are anticipated to be the biggest beneficiaries of this rulemaking. EPA estimates the average cost savings resulting from an avoided residue field trial per crop commodity to be $101,700. Growers, particularly minor crop growers, will benefit from this rule through the availability of more registered pesticide products for small scale commodities, and registrants will benefit as expanded markets for pesticide products will lead to increased sales.

As discussed in greater detail in Unit II. of the proposed rule (87 FR 1091, January 10, 2022 (FRL-5032-12-OSCPP)), EPA is authorized to establish tolerances under FFDCA section 408 (21 U.S.C. 346a). EPA establishes pesticide tolerances only after determining that they are safe, i.e., that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide. The U.S. Food and Drug Administration (FDA) and the U.S. Department of Agriculture (USDA) enforce compliance with tolerance limits.

Traditionally, tolerances are established for a specific pesticide and commodity combination. However, under EPA's crop grouping regulations (40 CFR 180.40 and 180.41), a single tolerance may be established that applies to a group of related commodities. For example, with these revisions, Crop Group 15-22: Cereal Grain Group will include 60 commodities. Crop group tolerances may be established based on residue data from designated representative commodities within the group. Representative commodities are selected based on EPA's determination that they are likely to bear the maximum level of residue that could occur on any crop within the group. The representative commodities for Crop Group 15-22 are wheat, barley, field corn, sweet corn, rice, and either grain sorghum or proso millet. Once a crop group tolerance is established, the tolerance level applies to all commodities within the group.

The changes identified in this action have been informed by petitions developed by the International Crop Grouping Consulting Committee (ICGCC) workgroup and submitted to EPA by a nation-wide cooperative project, IR-4 (Refs. 2 and 3). The petitions and the supporting monographs, as well as EPA's analyses of the petitions (Refs. 4-11), are included in the docket for this action.

In 2007, EPA prepared an Economic Analysis (EA) of the potential costs and benefits associated with the first proposed rule issued in this series of updates, entitled “Economic Analysis Proposed Expansion of Crop Grouping Program” (Ref. 12). EPA considers the findings of the 2007 EA to apply to each subsequent crop group rulemaking, including this final rule, due to the similarity in purpose and scope of each of those rulemakings. As discussed in the 2007 EA, EPA has determined that the crop grouping rulemakings are burden-reducing and cost-saving regulations.

The primary beneficiaries are minor crop producers and pesticide registrants. Minor crop producers benefit because lower registration costs will encourage more products to be registered on minor crops, providing additional tools ( i.e., pesticides) for pest control. Pesticide registrants are expected to benefit as expanded markets for pesticide products will lead to increased sales. Additionally, the IR-4, which is publicly funded, is also expected to benefit from this rule as it will help IR-4 use its resources more efficiently in its efforts to ensure that minor or specialty crop growers have access to legal, registered uses of essential pest management tools such as pesticides and biopesticides. The Agency is also expected to benefit from broader operational efficiency gains.

The generic crop group regulations include an explicit scheme for how revised crop groups will be organized in the regulations. In brief, the regulations at 40 CFR 180.40(j) specify that when a crop group is amended in a manner that expands or contracts its coverage of commodities, EPA will retain the pre-existing crop group in 40 CFR 180.41 and insert the new, related crop group immediately after the pre-existing crop group in the CFR. Although EPA will initially retain pre-existing crop groups that have been superseded by new crop groups, 40 CFR 180.40(j) states that EPA will not establish new tolerances under the pre-existing groups and that, at appropriate times, EPA will convert tolerances for pre-existing crop groups to tolerances with the coverage of the new crop group. Conversions to revised crop groups are mainly implemented through petitions submitted by IR-4 and registrants and can also be made through the registration review process.

This unit provides a summary of the public comments on the proposed rule (87 FR 1091, January 10, 2022 (FRL-5032-12-OSCPP)), EPA's responses to those comments, and any resulting revisions to the regulatory text.

EPA received several comments that generally supported the proposed regulations and the Crop Group Program. EPA also received comments on general pesticide use, the overall need for continued regulation of pesticides, organic labeling practices, the importance of biodiversity, and on EPA's relationship to the farming community. One commenter noted that the revised regulations will not necessarily increase the amount of pesticides being used, but rather extend the options of pesticides that can be used on specific crop groups. Another commenter expressed a concern that the revised regulations would limit the pesticides that farmers could use on their crops and thus become a burden.

EPA maintains that these crop group revisions will not result in a decrease in available pesticide options. On the contrary, the Agency anticipates that revisions to the crop groups will result in no appreciable costs or negative impacts to consumers, specialty crop producers, pesticide registrants, the environment, or human health. As discussed in Unit I. of this final rule, specialty crop producers may gain access to pesticides that are registered on the crop group that would not have been available when a crop was not part of the group. Crop groups, such as the ones being revised in this final rule, allow EPA to enhance the Agency's ability to conduct food safety evaluations on crops for tolerance-setting purposes, promote global harmonization of food safety standards, reduce regulatory burden; and ensure food safety for agricultural goods. Comments related to organic labeling, use of specific pesticides, and promotion of biodiversity are outside the scope of this final rule.

EPA proposed to amend “Crop Group 6: Legume Vegetables (Succulent or Dried)” to update the commodity listings in the group. EPA proposed to name the new crop group “Crop Group 6-22 Legume Vegetable Group.” EPA also proposed to revise the subgroups to include 6 subgroups (the original three subgroups divided into their respective bean and pea subgroups):

• Crop Subgroup 6-22A, Edible podded bean subgroup;

• Crop Subgroup 6-22B, Edible podded pea subgroup;

• Crop Subgroup 6-22C, Succulent shelled bean subgroup;

• Crop Subgroup 6-22D, Succulent shelled pea subgroup;

• Crop Subgroup 6-22E, Dried shelled bean, except soybean, subgroup; and

• Crop Subgroup 6-22F, Dried shelled pea subgroup.

To ensure commodities are clearly defined and specific to which part of the plant the commodity covers, EPA proposed to modify and add several definitions to 40 CFR 180.1(g) that are relevant to Crop Groups 6 and 7. In addition to revisions to the name of Crop Group 7-22 and its subgroups, EPA proposed to change the description of the commodities from “Plant parts of any legume vegetable included in the legume vegetables that will be used as animal feed” to “Plant parts of any legume vegetable listed in crop group 6-22 that will be used as animal feed.” EPA also proposed several revisions to the crop subgroups to parallel the changes that were proposed for the commodities and representative commodities of Crop Group 6-22. A more detailed description of the proposed changes to Crop Groups 6 and 7, and the rationale behind those changes can be found in Unit III. of the proposed rule (87 FR 1091, January 19, 2022 (FRL-5032-12-OSCPP)).

EPA received one comment on the specifics of the proposed changes to Crop Group 6 and no comments on the specifics of the proposed changes to Crop Group 7-22: Forage and Hay of Legume Vegetables Group. EPA is finalizing the changes to Crop Group 7-22: Forage and Hay of Legume Vegetables Group as proposed.

The commenter was strongly supportive of the revisions to these crop groups but suggested some discrete changes. The commenter notes that the varieties listed for dry peas do not include yellow peas, wrinkled peas, or marrowfat peas. The commenter suggests including yellow peas, wrinkled peas, and marrowfat peas as additional examples of Pisum spp. in subgroup 6-22F (dry seed peas). According to U.S. Federal Grain Inspection Service (FGIS) Grading Standards, Smooth Dry Peas include yellow types, green types, mottled types, and others. Commercially, most of the dried pea acres planted are yellow peas or green peas. Wrinkled peas are the mature seed peas raised to support the succulent peas in subgroup 6-22B and 6-22D. The mature seed would fall under the definition of dried peas, subgroup 6-22F. Marrowfat peas are not widely raised in the U.S. but they fit in the subgroup of dried peas. The commenter believes the list of commodities under dry peas should include these three categories.

In the proposed rule, EPA requested comment on whether EPA should include additional examples of Pisum spp. EPA agrees with the commenter that yellow peas, wrinkled peas, and marrowfat peas are additional examples of Pisum spp. and accordingly EPA is including these as examples of Pisum spp. in group 6-22 and subgroup 6-22F (dry seed peas) and in the definition of pea in 40 CFR 180.1(g).

The commenter noted that the new standard clearly defines chickpeas as a pea. The previous standard included chickpeas as a dry bean and a dry pea. The commenter asks whether products currently in use based on only the dry bean as the representative crop will be required to be re-evaluated for dry peas. The commenter is in favor of keeping chickpeas as both a dry bean and a dry pea commodity.

EPA acknowledges that chickpea has previously been classified as a pea and a bean for pesticide tolerance purposes (see 40 CFR 180.1(g)). However, to facilitate international pesticide tolerance harmonization ( e.g., Codex classifies chickpea as a pea) and avoid confusion when interpreting multiple potential tolerance levels for the same commodity, chickpea will be included within the pea subgroups in the revised Crop Group 6. This approach will not result in the removal of any existing chickpea tolerances or changes in registration for use on chickpea. For example, an existing tolerance on subgroup 6C (dried peas and beans)—which includes chickpea—would have been supported by field trials on both a pea and a bean. That same data could, in turn, support a tolerance petition for subgroups 6-22E (dry beans) and 6-22F (dry peas), with 6-22F covering chickpeas. Also, tolerance petitions regarding existing “bean” tolerances (per 40 CFR 180.1(g)) would convert to both the new bean subgroups (6-22A, C, and/or E) as well as separate applicable chickpea tolerances ( e.g., “chickpea, dry seed”). Again, the revisions to old crop group 6 and the related definitions in 40 CFR 180.1 will not result in removal of pesticide tolerances. Furthermore, EPA notes that establishing the new group/subgroups does not automatically result in changes to existing tolerances; such an update requires a tolerance petition or will be implemented through the registration review process. Overall, the separation into further subgroups delineating peas and beans is anticipated to facilitate pesticide tolerances and their data requirements where only pea or only bean registrations are desired.

The commenter recommends that the subgroups 6-22E and 6-22F use the term “Pulse” in the title/description. The commenter notes that recent papers published in the scientific journal, Nutrients, describe the need to standardize scientific references to the dried seeds of legumes as pulses. Pulse is a term used in many MRL standards worldwide and the commenter believes that EPA should use the term to further harmonize U.S. standards and help facilitate trade.

EPA agrees with the commenter's suggested terminology addition and is adding the term “Pulse” in the title/description of subgroups 6-22E and 6-22F (Crop Subgroup 6-22F: Pulses, dried shelled pea subgroup). At one point the comment also refers to adding the term “Pulse” to subgroup 6-22D (the succulent shelled pea subgroup). Based on the entirety of the comment and the specific suggested revisions, EPA believes the reference to subgroup 6-22D was a typographical error. In any event, EPA is not adding the term “Pulse” to subgroup 6-22D because it refers to dried seeds of legume, not succulent shelled peas.

The commenter recommends adding fava (also referred to as “faba”) where broad bean is listed. The commenter states that faba beans are increasingly important as an alternative pulse crop because of their ability to fix atmospheric Nitrogen, their importance to sustainability and their high protein content. EPA agrees fava bean is a synonym for broad bean and had, in some instances, included “fava bean” parenthetically along with broad bean, but has made further edits to address this comment.

The commenter recommends removal of “vegetable soybean (edamame)” from subgroup 6-22E. Subgroup 6-22E is for bean pulses. The commenter explains that edamame is, by definition, the succulent seed of soy and thus states that edamame fits in the category for garden peas, snap beans, and edible podded peas. The dried seeds of edamame would be classified as soy beans or soya beans. The commenter believes that they should be classified separately from pulses because these seeds have an oil component and are traded as oilseeds.

EPA agrees with the commenter and is removing edamame from subgroup 6-22E. EPA notes that the IR-4 petition also did not include edamame in their proposal for the dried seed bean group.

Other than these adjustments, EPA is finalizing the changes to Crop Group 6-22: Legume Vegetable Group as proposed.

EPA proposed to add additional commodities to the revised Group 15-22: Cereal Grain Group. These include twenty-one listings that simply reflect specific terms for commodities already included in the preexisting crop group ( i.e., baby corn and the different varieties of oat and wheat) and twenty-four new commodities: amaranth, purple amaranth, tartary buckwheat, annual canarygrass, cañihua, chia, cram cram, black fonio, white fonio, huauzontle, Inca wheat, Job's tears, barnyard millet, finger millet, foxtail millet, little millet, prince's feather, psyllium, blond psyllium, quinoa, African rice, teff, intermediate wheatgrass, and eastern wild rice. EPA proposed to create 6 subgroups: Crop Subgroup 15-22A, Wheat subgroup; Crop Subgroup 15-22B, Barley subgroup; Crop Subgroup 15-22C, Field corn subgroup; Crop Subgroup 15-22D, Sweet corn subgroup; Crop Subgroup 15-22E, Grain sorghum and millet subgroup; and Crop Subgroup 15-22F, Rice subgroup. In addition to adding subgroups, EPA proposed changes to the representative commodities. EPA proposed to keep the preexisting representative commodities for Crop Group 15, add barley as a representative crop to accommodate the new Barley Subgroup (15-22B), and add proso millet as an alternative representative commodity for better international harmonization of the Grain Sorghum and Millet Subgroup (15-22D). EPA proposed to rename the revised crop group “Crop Group 16-22: Forage, Hay, Stover, and Straw of Cereal Grain Group.” Consistent with the changes proposed for Crop Group 15-22, EPA proposed to add the same additional commodities to Crop Group 16-22. A more detailed description of the proposed changes to Crop Groups 15 and 16, and the rationale behind those changes can be found in Unit III. of the proposed rule (87 FR 1091, January 10, 2022 (FRL-5032-12-OSCPP)).

EPA received one comment on the specifics of the proposed changes to Crop Group 15 and no comments on the specifics of the proposed changes to Crop Group 16. EPA is finalizing the changes to Crop Group 16-22: Forage, Hay, Stover, and Straw of Cereal Grain Group as proposed. In the final regulatory text EPA is correcting a typographical error that appeared in the proposed regulatory text for Crop Group 15. EPA proposed the inclusion of “Princess feather, Amaranthus hypochondriacus L.” This has been changed to “Prince's feather” because this is the correct name for this commodity.

One commenter states it is unclear whether benefits or negatives exist with revising the cereal grains crop group to create a rice subgroup. The commenter states that it is difficult for the industry to support a rice subgroup without knowledge of the benefits or risks. The commenter fully supports changes where rice, as a representative crop, would receive a pesticide tolerance or maximum residue limit (MRL). The commenter notes that current pesticide registrations for the cereal grains crop group often exclude rice. A cereal grain tolerance that includes rice would be of benefit for U.S. tolerances and resulting pesticide registrations. However, rice receiving a pesticide tolerance as part of the crop group could be problematic for foreign MRLs. Harmonization of rice specific tolerances and MRLs have become more important as countries receiving California rice are in the early stages of developing regulation for residue limits on imports. The commenter states that countries with high rice consumption do not accept MRLs for cereal grains because the residue data must be specific to rice. Pesticide registrants have become reluctant to submit the necessary data to countries establishing the positive list for MRLs. Harmonization is important with more countries establishing positive lists.

The commenter states that there are additional barriers involved with registering pesticides for use on rice in California. The rationale to not register pesticides on California rice relates to the expense and time commitment for developing aquatic dissipation studies even though the data is a requirement in all states receiving a pesticide registration on the commodity.

EPA acknowledges the issues related to pesticide registrations and data requirements with respect to rice and how those issues have resulted in pesticide tolerances with rice “exceptions”. The proposed revisions do not change data requirements related to pesticide registrations that can, in turn, affect tolerances on rice ( e.g., the example issue mentioned by the commenter related to the aquatic dissipation studies will remain). Additionally, a tolerance for the entire crop group will still require field trial residue data on rice. However, when a registration on rice is not desired, a benefit of the change will be the clarity resulting from tolerances being established on subgroups A through E ( i.e., the “non-rice” subgroups) instead of using the “except rice” convention. Furthermore, EPA anticipates better harmonization internationally as a result of the adoption of the subgroups, including the rice subgroup in particular ( e.g., EPA is essentially adopting the same 6 cereal grain subgroups as Codex). Finally, as is the case when any crop group or subgroup is established, there is the benefit to minor crop growers who are provided with additional crop protection tools by way of field trials conducted on “representative commodities”. Whereas, previously, crop-specific field trial data might have been required to establish tolerances on African rice, wild rice or Eastern wild rice, field trial data on rice will now formally cover those other minor crops as it is the only data required to establish a rice subgroup tolerance.

Other than correcting the name of Prince's feather, EPA is finalizing the changes to Crop Group 15-22: Cereal Grain Group as proposed.

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

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 under Executive Orders 12866 (58 FR 51735; October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action does not impose any new information collection requirements that would require additional review or approval by OMB under the provisions of the PRA, 44 U.S.C. 3501 et seq. Because this action expands the number of crops in the affected crop groups, if tolerances are established for those crop groups, they will have broader applicability. Crop groupings enhance our ability to conduct food safety evaluations on crops for tolerance-setting purpose; allowing for tolerances to be established for the defined crop groups rather than individually for each crop. For future tolerance actions, petitioners will be able to submit the same number of residue field trial studies and, using the updated crop groups, obtain tolerances that cover more crops. This action does not impose any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations related to tolerance petitions for food/feed crops under OMB control number 2070-0024.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities, and the Agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule relieves regulatory burden (Ref. 1).

This action provides regulatory relief and regulatory flexibility. The new crop groups ease the process for pesticide manufacturers to obtain pesticide tolerances on greater numbers of crops. Pesticides will be more widely available to growers for use on crops, particularly specialty crops. Rather than having any adverse impact on small businesses, this rule will relieve regulatory burden for all directly regulated small entities. We have therefore concluded that this action will relieve regulatory burden for all directly regulated small entities.

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

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 4, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Thus, Executive Order 13132 does not apply to this action.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) because it will not have any effect on tribal governments, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Thus, Executive Order 13175 does not apply to this action.

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

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards as specified in NTTAA section 12(d), 15 U.S.C. 272 note.

EPA believes that this action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action is a procedural change and does not have any impact on human health or the environment. As previously discussed, crop groups are established when residue data for certain representative crops are used to establish pesticide tolerances for a group of crops that are botanically or taxonomically related. Representative crops of a crop group or subgroup are those crops whose residue data can be used to establish a tolerance for the entire group or subgroup.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

The Bureau of Land Management (BLM) has authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) that established new fees or revised fees and service charges for processing documents related to its minerals programs (“2005 Cost Recovery Rule”). In addition, the 2005 Cost Recovery Rule also established the method that the BLM would use to adjust those fees and service charges for inflation on an annual basis.

The regulations at 43 CFR 3000.12(a) provide that the BLM will annually adjust fees established in Subchapter C (43 CFR parts 3000-3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule updates those fees and service charges consistent with that direction. The fee adjustments in this final rule are based on the mathematical formula set forth in the 2005 Cost Recovery Rule. The public had an opportunity to comment on that adjustment procedure as part of the 2005 rulemaking. Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the fee adjustments in this final rule may be effective less than 30 days after publication. See 43 CFR 3000.10(c).

For the first time, this year's annual cost recovery rule includes an inflation adjustment to the BLM's APD fee. Between 2016 and 2020, the BLM adjusted the APD fee through a series of annual instruction memoranda. In 2021, the BLM issued a Federal Register Notice to increase the APD fee. In an effort to be more transparent, the BLM last year adjusted the fee through publication of a notice in the Federal Register (86 FR 58095, October 20, 2021). In order to reduce the BLM's publication burden and make it easier for the public to locate the fees, the BLM is now including the annual APD fee adjustment in this final rule, along with the other minerals-program-related fees that the BLM adjusts each year. The BLM plans to include the APD adjustment in its annual minerals cost recovery final rule going forward.

Section 3021(b) of the National Defense Authorization Act of 2015 (Pub. L. 113-291; 30 U.S.C. 191(d)) (the Act) directs the BLM to collect a fee for each new APD submitted to the BLM for fiscal years (FY) 2016 through 2026 and requires the fee amount to be adjusted annually for inflation. The Act set the initial fee amount at $9,500 as of October 1, 2015, with updated annual fee amounts to be indexed for United States dollar inflation from that date as measured by the Consumer Price Index (CPI). 30 U.S.C. 191(d)(2). The CPI is used only for the APD fee inflation adjustment while the IPD-GDP is used for all the other fees that are being adjusted for inflation. Public comment procedures are unnecessary for this adjustment as the authorizing statute does not give the BLM the discretion to vary the amount of the inflation adjustment for the APD to reflect any views or suggestions provided by commenters.

As set forth in the 2005 Cost Recovery Rule, the updates for 48 of the fees covered by this rule are based on the change in the IPD-GDP. The BLM's minerals program publishes the updated cost recovery fees annually, at the start of each fiscal year.

This final rule updates the current (FY 2022) cost recovery fees for use in FY 2023. The current fees were set by the cost recovery fee rule published on October 4, 2021 (86 FR 54636), effective October 4, 2021. The update in this final rule adjusts the FY 2022 fees based on the change in the IPD-GDP from the 4th Quarter of 2020 to the 4th Quarter of 2021.

As required by the Act, the BLM is updating the APD fee based on the percentage change in the U.S. Bureau of Labor Statistics' Consumer Price Index for all goods and all urban consumers (CPI-U). Between 2016 and 2021, the BLM adjusted the APD fee based on CPI-U data from August of the previous calendar year to August of the current calendar year. This year, in order to accommodate the publishing schedule of this final rule, the BLM is adjusting the APD fee based on CPI-U data from August 2021 to June 2022. In future years, the APD fee adjustment will be based on data from June of the previous calendar year to June of the current calendar year. This change will allow the BLM to publish its annual cost recovery rule, which will include the APD fee increase, in time to start collecting the adjusted fee at the start of each fiscal year.

Under this final rule, 15 fees will remain the same and 33 fees will increase. The filing fees are not adjusted if the change is less than $5. For example, if inflation adjusted a fee from $14.10 to $17.24, the filing fee would remain at $15. Of the 33 fees that are being increased by this final rule, 13 fees will increase by $5 each, and six fees will increase by $10. Two fees will increase by $15, two fees by $20, three fees by $25, and three fees by $30. The largest increase, $905, will be applied to the APD fee, which will increase from $10,900 to $11,805. The fee for adjudicating a patent application containing more than 10 claims will increase by $200—from $3,385 to $3,585. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $100. The smallest increase—1 cent—will be added to the per-acre cost of nominating lands for geothermal leasing, which will rise from 12 cents per acre to 13 cents per acre. It is important to note that the “real” values of the fees are not actually increasing, since real values account for the effect of inflation. In real terms, the values of the fees are simply being adjusted to account for the changes in the prices of goods and services produced in the United States.

The calculations that resulted in the new fees are included in the table below:

The BLM took the base values (or “existing values”) upon which it derived the FY 2022 cost recovery fees (or “existing fees”) and multiplied them by the percent change in the IPD-GDP (5.9 percent for this update) to generate the “IPD-GDP increases” (in dollars). The BLM then added the “IPD-GDP increases” to the “existing values” to generate the “new values.” The BLM then calculated the “new fees” by rounding the “new values” to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1. The “new fees” are the updated cost recovery fees for FY 2023.

The source for IDP-GDP data is the U.S. Department of Commerce, Bureau of Economic Analysis, specifically, “Table 1.1.9. Implicit Price Deflators for Gross Domestic Product,” which the BLM accessed on July 14, 2022, on the web at https://apps.bea.gov/iTable/iTable.cfm?reqid=19&step=2#reqid=19&step=3&isuri=1&1921=survey&1903=13.

The updated APD fee amount reflects an adjustment to the current fee of $10,900 based on the percentage change in the CPI-U from the end of August 2021 to the end of June 2022. The CPI-U for June 2022 is 8.3 percent higher than the CPI-U for August 2021. Increasing the 2022 fee of $10,900 by 8.3 percent and rounding the product to the nearest $10 produces a 2023 fee of $11,805.

The source for CPI-U data is the BLS, U.S. Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers: All Items in U.S. City Average [CPIAUCSL], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/CPIAUCSL, accessed on July 14, 2022.

This document is not a significant rule, and the Office of Management and Budget has not reviewed this final rule under Executive Order 12866.

The BLM has determined that this final rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The changes in today's rule are much smaller than those in the 2005 Cost Recovery Rule, which did not approach the threshold in Executive Order 12866.

This final rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that will not change with this rule.

In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflationary adjustment factor to existing user fees for processing certain actions associated with the onshore minerals programs.

Finally, this final rule will not raise novel legal or policy issues. As explained earlier, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 Cost Recovery Rule.

This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). As a result, a Regulatory Flexibility Analysis is not required. The Small Business Administration defines small entities as individual, limited partnerships, or small companies considered to be at arm's length from the control of any parent companies if they meet the following size requirements as established for each North American Industry Classification System (NAICS) code:

The SBA would consider many, if not most, of the operators with whom the BLM works in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”

The final rule may affect a large number of small entities because 33 fees for activities on public lands will be increased. The adjustments result in no increase in the fees for processing 15 actions relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for the APD fee. That fee will increase by $905, from $10,900 to $11,805. It is important to note that the “real” values of the fees are not actually increasing, since real values account for the effect of inflation. In real terms, the values of the fees are simply being adjusted to account for the changes in the prices of goods and services produced in the United States. Accordingly, the BLM has concluded that the economic effect of the rule's changes will not be significant, even for small entities.

For the 2005 Cost Recovery Rule, the BLM completed a Regulatory Flexibility Act threshold analysis. That analysis concluded that the fees would not have a significant economic effect on a substantial number of small entities. The fee increases implemented in this rule are substantially smaller than those provided for in the 2005 Cost Recovery Rule.

The APD fee increase is mandated by Section 3021(b) of the National Defense Authorization Act of 2015 (Pub. L. 113-291; 30 U.S.C. 191(d)) (the Act). The Act directs the BLM to collect a fee for each new APD submitted to the BLM for fiscal years (FY) 2016 through 2026 and requires the fee amount to be adjusted for inflation.

This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. Accordingly, a Small Entity Compliance Guide is not required.

This final rule 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. In accordance with Executive Order 13132, the BLM therefore finds that the final rule does not have federalism implications, and a federalism assessment is not required.

This final rule does not contain information-collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:

(1) 1004-0034, which expires September 30, 2024;

(2) 1004-0137, which expires January 31, 2025;

(3) 1004-0162, which expires December 31, 2024;

(4) 1004-0185, which expired December 31, 2021;  11

(5) 1004-0132, which expires July 31, 2023;

(6) 1004-0073, which expires April 30, 2023;

(7) 1004-0025, which expires July 31, 2025;

(8) 1004-0114, which expires April 30, 2023; and

(9) 1004-0121, which expires October 31, 2022.

As required by Executive Order 12630, the BLM has determined that this final rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.

In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.

The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215. Therefore, neither an environmental assessment nor an environmental impact statement is required in connection with the rule (40 CFR 1508.4).

The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq. , because it will not result in State, local, private sector, or tribal government expenditures of $100 million or more in any one year, 2 U.S.C. 1532. This rule will not significantly or uniquely affect small governments. Therefore, the BLM is not required to prepare a statement containing the information required by the Unfunded Mandates Reform Act.

In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian Tribes. Consequently, the BLM did not use the consultation process set forth in Section 5 of the Executive Order.

In developing this final rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.

The principal author of this final rule is Faith Bremner of the Division of Regulatory Affairs, Bureau of Land Management.

For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:

In FR Doc. 2022-19185 appearing on page 55305 in the Federal Register of Friday, September 9, 2022, the following correction is made:

The Commission submitted revised information collection requirements for review and approval by OMB, as required by the Paperwork Reduction Act (PRA) of 1995, on June 1, 2022, which were approved by OMB on July 5, 2022. The information collection requirements are contained in the Commission's Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs Order, FCC 20-176 published at 86 FR 2904, January 13, 2021. The OMB Control Number is 3060-0986. If you have any comments on the burden estimates listed in the following, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-0986, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on July 5, 2022, for the information collection requirements contained in 47 CFR 54.11 published at 86 FR 2904, January 13, 2021. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0986.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0986.

OMB Approval Date: July 5, 2022.

OMB Expiration Date: July 31, 2025.

Title: High-Cost Universal Service Support.

Form Number: FCC Form 481 and FCC Form 525.

Type of Review: Revision of a currently approved collection.

Respondents: Business or other for-profit, Not-for-profit institutions and State, Local or Tribal Government.

Number of Respondents and Responses: 2,229 respondents; 13,804 responses.

Estimated Time per Response: 0.1-15 hours.

Frequency of Response: On occasion, quarterly and annual reporting requirements, recordkeeping requirement and third party disclosure requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 151-154, 155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, 405, 410, and 1302.

Total Annual Burden: 50,857 hours.

Total Annual Cost: No Cost.

Privacy Act Impact Assessment: No impact(s).

Nature and Extent of Confidentiality: The Federal Communications Commission (Commission) notes that the Universal Service Administrative Company (USAC or Administrator) must preserve the confidentiality of all data obtained from respondents and contributors to the universal service support program mechanism; must not use the data except for purposes of administering the universal service program; and must not disclose data in company-specific form unless directed to do so by the Commission. Parties may submit confidential information in relation pursuant to a protective order. Also, respondents may request materials or information submitted to the Commission or to the Administrator believed confidential to be withheld from public inspection under 47 CFR 0.459 of the FCC's rules.

Needs and Uses: On November 18, 2011, the Commission adopted an order reforming its high-cost universal service support mechanisms. Connect America Fund; A National Broadband Plan for Our Future; Establish Just and Reasonable Rates for Local Exchange Carriers; High-Cost Universal Service Support; Developing a Unified Intercarrier Compensation Regime; Federal-State Joint Board on Universal Service; Lifeline and Link-Up; Universal Service Reform—Mobility Fund, WC Docket Nos. 10-90, 07-135, 05-337, 03-109; GN Docket No. 09-51; CC Docket Nos. 01-92, 96-45; WT Docket No. 10-208, Order (76 FR 73830 (Nov. 29, 2011)) and Further Notice of Proposed Rulemaking (76 FR 78384 (Dec. 16, 2011)), 26 FCC Rcd 17663 (2011) ( USF/ICC Transformation Order ). The Commission and Wireline Competition Bureau have since adopted a number of orders that implement the USF/ICC Transformation Order; see also Connect America Fund et al., WC Docket No. 10-90 et al., Third Order on Reconsideration (77 FR 30904 (May 24, 2012)), 27 FCC Rcd 5622 (2012); Connect America Fund et al., WC Docket No. 10-90 et al., Order (77 FR 14297 (March 9, 2012)), 27 FCC Rcd 605 (Wireline Comp. Bur. 2012); Connect America Fund et al., WC Docket No. 10-90 et al., Fifth Order on Reconsideration (78 FR 3837 (Jan. 17, 2013)), 27 FCC Rcd 14549 (2012); Connect America Fund et al., WC Docket No. 10-90 et al., Order (78 FR 22198 (April 15, 2013)), 28 FCC Rcd 2051 (Wireline Comp. Bur. 2013); Connect America Fund et al., WC Docket No. 10-90 et al., Order, 28 FCC Rcd 7227 (Wireline Comp. Bur. 2013); Connect America Fund, WC Docket No. 10-90, Report and Order (78 FR 38227 (June 26, 2013)), 28 FCC Rcd 7766 (Wireline Comp. Bur. 2013); Connect America Fund, WC Docket No. 10-90, Report and Order (78 FR 32991 (June 3, 2013)), 28 FCC Rcd 7211 (Wireline Comp. Bur. 2013); Connect America Fund, WC Docket No. 10-90, Report and Order (78 FR 48622 (Aug. 9, 2013)), 28 FCC Rcd 10488 (Wireline Comp. Bur. 2013); Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order, Order and Order on Reconsideration (81 FR 24282 (April 25, 2016)) and Further Notice of Proposed Rulemaking (81 FR 21511 (April 12, 2016)), 31 FCC Rcd 3087 (2016); Connect America Fund, et al., WC Docket No. 10-90, et al., Report and Order (81 FR 44414 (July 7, 2016)) and Further Notice of Proposed Rulemaking (81 FR 40235 (June 21, 2016)), 31 FCC Rcd 5949 (2016); Connect America Fund et al., WC Docket Nos. 10-90, 16-271; WT Docket No. 10-208, Report and Order (81 FR 69696 (Oct. 7, 2016)) and Further Notice of Proposed Rulemaking (81 FR 69772 (Oct. 7, 2016)), 31 FCC Rcd 10139 (2016); Connect America Fund; ETC Annual Reports and Certifications, WC Docket Nos. 10-90, 14-58, Order, 32 FCC Rcd 968 (2017); Connect America Fund et al., WC Docket No. 10-90 et al., Report and Order (84 FR 4711 (Feb. 19, 2019)), Further Notice of Proposed Rulemaking (84 FR 2132 (Feb. 6, 2019)), and Order on Reconsideration (84 FR 4711 (Feb. 19, 2019)), 33 FCC Rcd 11893 (2018); Connect America Fund; ETC Annual Reports and Certifications, WC Docket Nos. 10-90, 14-58, Report and Order (82 FR 39966 (Aug. 23, 2017)), 32 FCC Rcd 5944 (2017).

In 2019, the Commission adopted an order establishing a separate, parallel high-cost program for the U.S. territories suffering extensive infrastructure damage due to Hurricanes Irma and Maria. The Uniendo a Puerto Rico Fund and the Connect USVI Fund, et al., WC Docket No. 18-143, et al., Report and Order and Order on Reconsideration (84 FR 59937 (Nov. 7, 2019)), 34 FCC Rcd 9109 (2019) ( Puerto Rico and USVI Stage 2 Order). Also, in the 2019 Supply Chain Order (85 FR 230 (Jan. 3, 2020)), the Commission adopted a rule prohibiting the use of Universal Service Fund (USF) support, including high-cost universal service support, to purchase or obtain any equipment or services produced or provided by a covered company posing a national security threat to the integrity of communications networks or the communications supply chain. Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Report and Order (85 FR 230 (Jan. 3, 2020)), Further Notice of Proposed Rulemaking (85 FR 277 (Jan. 3, 2020), and Order (85 FR 230 (Jan. 3, 2020)), 34 FCC Rcd 11423, 11433, para. 26. See also 47 CFR 54.9.

Through several orders, the Commission has changed, modified, and eliminated certain reporting obligations for high-cost support. These changes are outlined in the following:

On January 30, 2020, the Commission adopted an order establishing the framework for the Rural Digital Opportunity Fund (RDOF), building on the successful Connect America Fund (CAF) Phase II auction. Rural Digital Opportunity Fund; Connect America Fund, WC Docket Nos. 19-126 and 10-90, Report and Order (85 FR 13773 (March 10, 2020)), 35 FCC Rcd 686 (2020) ( RDOF Order ). The RDOF represents the Commission's single biggest step to close the digital divide by providing up to $20.4 billion to connect millions more rural homes and small businesses to high-speed broadband networks. In the RDOF Order, “[t]o ensure that support recipients are meeting their deployment obligations,” the Commission “adopt[ed] essentially the same reporting requirements for the RDOF that the Commission adopted for the CAF Phase II auction.” Id. at 712, para. 56.

In the 2020 Supply Chain Order, the Commission adopted two additional supply chain rules associated with newly required certifications. Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs, WC Docket No. 18-89, Second Report and Order (86 FR 2904 (Jan. 13, 2021)), 35 FCC Rcd 14284 (2020) ( 2020 Supply Chain Order ). First, the Commission adopted a rule, 47 CFR 54.10, prohibiting the use of a Federal subsidy made available through a program administered by the Commission that provides funds to be used for the capital expenditures necessary for the provision of advanced communications services to purchase, rent, lease, or otherwise obtain, any covered communications equipment or service, or maintain any covered communications equipment or service previously purchased, rented, leased, or otherwise obtained. Second, the Commission adopted a rule, 47 CFR 54.11, which requires each eligible telecommunications carrier receiving universal service fund support to remove and replace all covered communications equipment and services from their networks, and subsequently certify prior to receiving a funding commitment or support that it does not use covered communications equipment or services. The Commission also adopted procedures, consistent with the Secure and Trusted Communications Networks Act of 2019 (Pub. L. 116-124), to identify such covered equipment and services and publish a Covered List. That list was published March 12, 2021 and will be updated as needed.

In the Rate Floor Repeal Order, the Commission decided to “eliminate the rate floor and, following a one-year period of monitoring residential retail rates, eliminate the accompanying reporting obligations after July 1, 2020.” Connect America Fund, WC Docket No. 10-90, Order (84 FR 19874 (May 7, 2019)), 34 FCC Rcd 2621, 2621 para. 2 (2019) ( Rate Floor Repeal Order ); see also 47 CFR 54.313(h). As explained in the Order, the rate floor was “[i]ntended to guard against artificial subsidization of rural end user rates significantly below the national urban average” but, practically speaking, “increase[d] the telephone rates of rural subscribers . . . and individuals living on Tribal lands.” Rate Floor Repeal Order, 34 FCC Rcd at 2621 para. 1.

The Commission therefore revises this information collection, as well as the Form 481 and its accompanying instructions, to reflect these modified and eliminated requirements. Finally, the Commission increases the respondents associated with existing reporting requirements to account for additional carriers that will be subject to those requirements.

This is a summary of the Commission's Report and Order, document FCC 22-51, adopted June 28, 2022, released June 30, 2022, in CG Docket Nos. 03-123, 10-51, and 13-24. The Commission sought comment on the two-week grace period issue in Misuse of Internet Protocol (IP) Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities , Further Notice of Proposed Rulemaking, CG Docket Nos. 13-24 and 03-123, published at 84 FR 9276, March 14, 2019 ( 2019 IP CTS Further Notice of Proposed Rulemaking (FNPRM) ) and in Structure and Practices of the Video Relay Service Program; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities , Further Notice of Proposed Rulemaking, CG Docket Nos. 10-51 and 03-123, published at 84 FR 26379, June 6, 2019 ( 2019 VRS FNPRM ).

The full text of document FCC 22-51 can be accessed electronically via the FCC's Electronic Document Management System (EDOCS) website at www.fcc.gov/edocs or via the FCC's Electronic Comment Filing System (ECFS) website at www.fcc.gov/ecfs . To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov , or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY).

1. User Registration and Verification. TRS are telephone transmission services that enable people with speech or hearing disabilities to communicate by wire or radio in a manner that is functionally equivalent to communication using voice services. Under section 225 of the Communications Act of 1934, as amended (the Act), 47 U.S.C. 225, the Commission must ensure that TRS are available “to the extent possible and in the most efficient manner” to persons “in the United States” who are deaf, hard of hearing, or deafblind or who have speech disabilities, so that they can communicate by telephone in a manner that is functionally equivalent to voice communication service. VRS, a form of TRS, enables people with hearing or speech disabilities who use sign language to make telephone calls over a broadband connection using a video communication device. The video link allows a communications assistant (CA) to view and interpret the party's signed conversation and relay the conversation back and forth with a voice caller. IP CTS, another form of TRS, permits a person with hearing loss to have a telephone conversation while reading captions of what the other party is saying on an internet-connected device.

2. Before commencing service to a subscriber, a VRS or IP CTS provider must register the user by collecting certain identifying information, as well as a signed self-certification of eligibility for TRS. In addition, registration data for VRS users must be submitted to the Commission's centralized TRS User Registration Database (User Database or Database). IP CTS user registration data also will be submitted and maintained in the Database once it is activated for that purpose. Upon receiving the registration data for a newly registered TRS user, the Database administrator verifies the user's identity. Providers are prohibited from seeking compensation for service to users who do not pass this identity verification check.

3. Although User Database registration is usually completed within hours of data submission, it may take longer if the administrator's initial attempt to verify a registrant's identity is unsuccessful, requiring the provider to obtain corrected information or additional documentation from the registrant. The two-week “grace period” will allow VRS and IP CTS providers to immediately begin serving new or porting-in users without waiting for the verification process to complete, thereby promoting the availability and efficiency of TRS. Moreover, by allowing customers to make and receive TRS calls during the grace period, those users are better able to obtain the documentation and information needed to verify their identities. Because providers will not be compensated for calls made during the two-week grace period unless and until the customer is successfully entered into the Database, this rule change will not increase any risk of TRS Fund payment for ineligible calls or otherwise contribute to waste, fraud, or abuse of TRS Fund resources.

4. Alternative Proposals. The Commission rejects proposals to extend the grace period beyond two weeks as unnecessary. Moreover, extending the grace period for individuals who are deafblind or who are deaf with additional disabilities would increase the complexity of administering the registration process as a whole and is unwarranted in the absence of actual evidence of a need for additional time.

5. Limitations on Number Reassignments. In the case of VRS, and in the event verification of registration data for a newly assigned TRS telephone number is not completed within two weeks, the telephone number should not be immediately reassigned. Under the current as well as the newly adopted rules, a new number is not entered in the Database until such time as the user's identity is verified. Therefore, if registration data for a new telephone number is submitted to the Database, and the user's identity has not been verified within the two-week grace period, then the number shall not be entered in the Database, and no provider may request compensation for compensable calls from that number after expiration of the two-week period. Similarly, the new telephone number and associated routing information, which were entered in the Telephone Numbering Directory to allow calls to be made to and from the new number on a provisional basis, shall be removed from the Directory. As a result, upon expiration of the two-week period, the number will not be usable until such time as the user's identity is verified or the number is reassigned to a different customer. Because the consumer has already begun using the submitted number, he or she should not be automatically deprived of the opportunity to recommence service with the same number, if verification is successfully completed within a reasonable period after the two weeks expires. Therefore, even if verification cannot be completed within the two-week grace period, the submitting provider shall retain that number in inactive status, for an additional period of 30 days or the pendency of any appeal, whichever is later, before reassigning it to a new user or otherwise making it available for re-use. If the user's identity is later verified, the telephone number may be entered in the Database at that time and calls made to or from the number from that time forward may be submitted for compensation.

6. When an existing TRS telephone number has been ported, a failure to verify the number within the two-week grace period will have somewhat different consequences. Under the current rules, when a number is being ported, the Database registration of that number is not changed to designate the porting-in VRS provider until the registration data collected by the porting-in provider has been verified. By adopting the grace period, the Commission permits a port to be completed on a provisional basis, pending verification of the registration data submitted by the porting-in provider. Therefore, the porting-in provider's routing information shall be entered in the TRS Numbering Directory, so that during the two-week grace period, calls to and from the ported number are handled by the porting-in VRS provider. However, the number will continue to be registered in the User Database under the name of the porting-out VRS provider until the registration data submitted by the porting-in provider has been verified. If such verification is not completed within the two-week grace period, then the port will be reversed, and the porting-out provider's routing information will be re-entered in the TRS Numbering Directory. In the event that verification of a ported number is not completed within the grace period, neither the porting-out nor porting-in provider may seek compensation for calls placed to or from the ported number during those two weeks.

7. Technical Corrections to TRS Rules. This document amends § 64.604(d) of the Commission's rules to delete an obsolete cross-reference. Section 64.604(d) of the Commission's rules provides that the applicable requirements of certain provisions of the Commission's rules are to be considered mandatory minimum standards for TRS. Among the listed provisions is § 64.617 of the Commission's rules, which was repealed in 2017. The cross-reference to that provision in § 64.604(d) of the Commission's rules was not deleted.

8. Good cause exists to make this correction without prior notice and comment. The cross-reference is clearly incorrect and without any substantive effect, now that § 64.617 of the Commission's rules has been deleted. The correction is therefore simply a conforming change to the Commission's rules.

9. The Commission also makes a technical correction to § 64.604(c)(5)(iii)(D)( 1 ) of its rules, which addresses data reporting requirements. The four bold, italicized words below were inadvertently deleted from the following excerpt from the previous version of that provision: “TRS providers shall provide the administrator with the following: total TRS minutes of use, total interstate TRS minutes of use, total operating expenses and total TRS investment in general in accordance with part 32 of this chapter . . .” The correction restores the inadvertently deleted text.

10. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission incorporated an Initial Regulatory Flexibility Analysis (IRFA) into both the 2019 VRS FNPRM and the 2019 IP CTS FNPRM. The Commission sought written public comment on the proposals in both FNPRMs, including comment on the IRFAs. No comments were received in response to the IRFAs.

11. Need for, and Objectives of, the Rules. This document addresses the procedures for registering users of certain forms of TRS and verifying their identities in the User Database. The purpose of these rules is to ensure that only persons with hearing and speech disabilities who are eligible to use TRS can make calls that are compensated from the Interstate TRS Fund. Providers of VRS and IP CTS cannot receive compensation from the Fund unless the caller is registered in, and has had his or her identity verified, in the User Database.

12. The Commission adopts a two-week grace period during which VRS and IP CTS providers can handle calls for new and porting-in customers after submitting the user's registration information while identity verification is pending and receive compensation for the calls as long as the user's identity is ultimately verified in the User Database as eligible for TRS within the same two-week period from the initial submission of the user's registration information. The Commission concludes that the grace period will improve functional equivalency for individuals with hearing and speech disabilities because it will allow them to start making calls immediately with their TRS provider, just as most voice customers of landline and mobile services can start using the service when they sign up for service.

13. The Commission finds that the two-week grace period will not contribute to waste, fraud, and abuse of the TRS Fund. If the user is verified, then his or her calls during the two-week period are eligible for compensation. If the user is not verified, then the VRS or IP CTS provider will not be compensated for the calls. Accordingly, the TRS Fund will not be paying for ineligible calls.

14. Summary of Significant Issues Raised by Public Comments in Response to the IRFA. No comments were filed in response to either IRFA.

15. Response to Comments by the Chief Counsel for Advocacy of the Small Business Administration. The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

16. Description and Estimate of the Number of Small Entities to which the Rules will Apply. The amendments to rules adopted in this document will affect the obligations of VRS and IP CTS providers. These services can be included within the broad economic category of All Other Telecommunications.

17. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements. In allowing VRS and IP CTS providers to receive compensation for up to two weeks while the identity verification is pending for new users and users changing providers for calls by or to such users, the Commission retains the reporting, recordkeeping, and other compliance requirements currently applicable to VRS and IP CTS providers and adopts minor modified reporting requirements related to the timing for requesting compensation for calls by and to such users.

18. For new users and users changing providers, VRS and IP CTS providers must track what calls are made by and to such users while their identity verification remains pending and only seek compensation from the Interstate TRS Fund for those call minutes within the two-week grace period if the user's identity is verified by the User Database administrator before the end of that period. For users whose identify cannot be verified within the two-week period, VRS and IP CTS providers can only seek compensation for calls by and to the user if and when the user's identity has been verified.

19. These modified requirements are no more burdensome than those currently applicable to VRS and IP CTS providers and are needed to ensure compliance with the Commission's rules and protect against waste, fraud, and abuse of the TRS program.

20. Steps Taken to Minimize Significant Impact on Small Entities, and Significant Alternatives Considered. The new rule does not impose any modified requirements that would increase regulatory burdens beyond those that are already required. The modified requirements apply equally to all VRS and IP CTS providers and are necessary to prevent waste, fraud, and abuse of the TRS Fund by ensuring that providers are not compensated for service provided to users who do not satisfy the verification requirements.

21. Pursuant to sections 1, 2, and 225 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, and 225, document FCC 22-51 is adopted, and the Commission's rules are hereby amended.

22. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of document FCC 22-51, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

The Commission sent a copy of document FCC 22-51 to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

This document contains modified information collection requirements, which are not effective until approval is obtained from the Office of Management and Budget (OMB). As part of its continuing effort to reduce paperwork burdens, the Commission will invite the general public to comment on the information collection requirements as required by the PRA of 1995, Public Law 104-13. The Commission will publish a separate document in the Federal Register announcing approval of the information collection requirements. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, 44 U.S.C. 3506(c)(4), the Commission previously sought comment on how the Commission might “further reduce the information burden for small business concerns with fewer than 25 employees.” 84 FR 9276, March 14, 2019; 84 FR 26379, June 6, 2019.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 64 as follows:

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

Under § 635.28(a)(1), NMFS files a closure action with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category until the opening of the relevant subsequent quota period or until such date as specified.

The baseline U.S. BFT quota is 1,316.14 metric tons (mt) (§ 635.27(a)). The current baseline quota for the General category is 587.9 mt and the baseline subquota for the September time period is 155.8 mt. Effective September 7, 2022, NMFS increased the September subquota to 225.5 mt through an inseason quota transfer (87 FR 54910, September 8, 2022). Within that transfer notice, NMFS made an inadvertent error in calculating the adjusted September subquota. Through this action, NMFS corrects the adjusted September subquota to 225.8 mt (155.8 mt baseline subquota + 70 mt transferred). This transfer provided additional quota for the September time period and also addressed a 20.5 mt overharvest from previous time period subquotas.

As of September 15, 2022, reported landings for the General category September subquota time-period total approximately 181.6 mt. Based on these landings data, as well as average catch rates and anticipated fishing conditions, NMFS projects the adjusted September 2022 subquota of 225.8 mt will be reached shortly. Therefore, retaining, possessing, or landing large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) BFT by persons aboard vessels permitted in the Atlantic Tunas General category and HMS Charter/Headboat permitted vessels (while fishing commercially) must cease at 11:30 p.m. local time on September 19, 2022. This action applies to Atlantic Tunas General category (commercial) permitted vessels and HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT, and is taken consistent with the regulations at § 635.28(a)(1). The intent of this closure is to prevent overharvest of the available September subquota. The General category will automatically reopen October 1, 2022, for the October through November 2022 subquota time-period.

On June 1, 2022 (87 FR 33056), NMFS published a final rule implementing RFDs every Tuesday, Friday, and Saturday through November 30, 2022. Because the fishery will be closed for the remainder of the September subquota time period, NMFS has decided to waive the previously-scheduled RFDs for the remainder of that period. Previously scheduled RFDs will resume on October 1, 2022.

With the RFDs waived during the closure, consistent with § 635.23(a)(4), fishermen aboard General category permitted vessels and HMS Charter/Headboat permitted vessels may tag and release BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

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

After the fishery reopens on October 1, depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at (978) 281-9260, or access www.hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

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

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing for prior notice and an opportunity to comment is impracticable and contrary to the public interest. This fishery is currently underway and, based on landings information, delaying this action could result in BFT landings exceeding the adjusted September 2022 General category subquota. Taking this action does not raise conservation and management concerns. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

For all of the above reasons, the AA also finds that pursuant to 5 U.S.C. 553(d), there is good cause to waive the 30-day delay in effectiveness.