The Dodd-Frank Wall Street Reform and Consumer Protection Act (the Dodd-Frank Act) was enacted on July 21, 2010. 1 Section 1075 of the Dodd-Frank Act amended the Electronic Fund Transfer Act (EFTA) (15 U.S.C. 1693 et seq. ) to add a new section 920 regarding interchange transaction fees for debit card transactions and rules for debit card and credit card transactions. 2

EFTA section 920(b)(1) directs the Board to prescribe regulations that limit the restrictions issuers and payment card networks (networks) may place on the processing of debit card transactions. 3 A debit card transaction typically involves at least five parties: (i) a cardholder, (ii) the entity that issued the debit card to the cardholder (the issuer), (iii) a merchant, (iv) the merchant's depository institution (the acquirer), and (v) a network. 4 EFTA section 920(b)(1) contains two provisions that apply to issuers and networks.

First, EFTA section 920(b)(1)(A) directs the Board to prescribe regulations to prohibit an issuer or network from imposing exclusivity arrangements with respect to the networks over which a debit card transaction may be processed. Specifically, the statute directs the Board to prescribe regulations that prohibit issuers and networks from restricting the number of such networks to fewer than two unaffiliated networks. 5 Absent this prohibition, an issuer could enable only a single network, or only affiliated networks, to process a debit card transaction, thereby foreclosing the ability of the merchant or its acquirer to choose among competing networks to process the transaction.

Second, EFTA section 920(b)(1)(B) directs the Board to prescribe regulations to prohibit issuers or networks from restricting the ability of a merchant or its acquirer to choose among the networks enabled to process a debit card transaction when deciding how to route such transaction. 6 Specifically, the statute requires the Board to prescribe regulations that prohibit issuers and networks from directly or indirectly inhibiting any person that accepts debit cards for payment from directing the routing of a debit card transaction over any network that may process that transaction. Absent this prohibition, issuers or networks could establish rules or other restrictions that override a merchant's routing preferences, thereby preventing the merchant or its acquirer from routing a debit card transaction over a network with lower merchant fees, better fraud-prevention capabilities, or otherwise more favorable terms from the merchant's perspective.

The Board promulgated a final rule implementing these provisions of the EFTA in July 2011. 7 The routing provisions of Regulation II aim to ensure that merchants or their acquirers have the opportunity to choose from at least two unaffiliated networks when routing debit card transactions.

Section 235.7(a) of Regulation II implements the prohibition set out in EFTA section 920(b)(1)(A). Specifically, the provision prohibits an issuer or network from directly or indirectly restricting the number of networks on which a debit card transaction may be processed to fewer than two unaffiliated networks (the “prohibition on network exclusivity”). Current § 235.7(a) provides that to comply with the prohibition on network exclusivity, an issuer must allow a debit card transaction to be processed on at least two unaffiliated networks, (i) each of which does not, by rule or policy, restrict the operation of the network to a limited geographic area, specific merchant, or particular type of merchant or transaction, and (ii) each of which has taken steps reasonably designed to enable the network to process the debit card transactions that the network would reasonably expect will be routed to it, based on expected transaction volume. Therefore, when configuring its debit cards, an issuer must enable at least two unaffiliated networks, neither of which has rules or policies that restrict it from processing transactions in, for example, a particular geographic area.

Section 235.7(b) implements the prohibition set out in EFTA section 920(b)(1)(B). Specifically, current § 235.7(b) prohibits any issuer or network from directly or indirectly inhibiting the ability of any person that accepts or honors debit cards for payments (such as a merchant) to direct the routing of debit card transactions for processing over any network that may process such transactions. Taken together, § 235.7(a) and § 235.7(b) of Regulation II require an issuer to enable two unaffiliated networks to process a transaction performed with the issuer's debit card and prohibit the issuer from inhibiting the merchant's ability to route the debit card transaction over the merchant's preferred network among those enabled by the issuer.

On May 13, 2021, the Board published in the Federal Register a proposal to amend Regulation II's prohibition on network exclusivity to clarify that debit card issuers should enable at least two unaffiliated networks for card-not-present debit card transactions. 8 Specifically, the Board proposed revisions to the Official Board Commentary on Regulation II to specify that the prohibition on network exclusivity applies to card-not-present debit card transactions by clarifying that card-not-present transactions are a particular type of debit card transaction for which two unaffiliated networks must be available. 9 The Board proposed further revisions to the rule and commentary to clarify the issuer's responsibility to enable at least two unaffiliated networks to comply with the prohibition on network exclusivity. In addition to these changes, the Board proposed revisions to the commentary to § 235.7 to standardize and clarify the use of certain terminology. 10

As explained in the proposal, the Board proposed these revisions in light of data collected by the Board and information from debit card industry participants indicating that some issuers are not enabling two unaffiliated networks to process card-not-present transactions, and as a result, merchants often can route card-not-present debit card transactions only over a single network. When the Board promulgated Regulation II, the market had not yet developed solutions to broadly support multiple networks over which merchants could route card-not-present debit card transactions. 11 At the time, many networks could not process such transactions at all, while others could do so only with technology that was not widely deployed in the marketplace. In particular, the lack of widely-deployed methods for online entry of PINs was an impediment for single-message networks that traditionally required PIN entry during transaction authorization. In the decade since the adoption of Regulation II, however, technology has evolved to address these barriers, and most networks have introduced capabilities to process card-not-present transactions. Recent data collected by the Board confirm that most single-message networks are now capable of processing card-not-present transactions.

Despite these developments, some issuers are not enabling two unaffiliated networks to process card-not-present transactions, like they currently do for card-present debit card transactions. 12 As a consequence, merchants often do not have the opportunity to choose from at least two unaffiliated networks when routing card-not-present transactions. Instead, merchants often have no alternative but to route card-not-present transactions over the dual-message network that an issuer has enabled as the only network available to process card-not-present transactions performed with its debit cards. 13

The Board received slightly more than 2,750 comment letters in response to the proposal. 14 Of these comment letters, approximately 1,700 were from debit card issuers (all of whom were depository institutions) and related trade associations, approximately 1,000 were from merchants and related trade associations, 5 were from networks, 3 were from federal agencies, 3 were from government officials, and around 40 were from other interested parties (including some consumers and consumer groups). 15 Approximately 2,600 of the comment letters were one of 11 form letters.

Merchants and related trade associations, single-message networks, and federal agencies uniformly supported the proposal. These commenters generally expressed the view that the proposal is consistent with the intent of the statute and would appropriately clarify requirements that already apply to issuers. Some of these commenters suggested that the statute and current text of Regulation II are sufficiently clear that the Board should not have needed to propose revisions to address routing issues for card-not-present debit card transactions. Commenters that supported the proposal further argued that it would increase routing choice for debit card transactions and promote competition between networks, thereby reducing costs for merchants and ultimately prices for consumers.

By contrast, most issuers, related trade associations, and dual-message networks opposed the proposal, with several commenters urging the Board to withdraw the proposal. These commenters generally, but not unanimously, expressed the view that the proposal goes beyond mere clarification of existing requirements and instead represents a fundamental change to the regulation that would impose new obligations on issuers. Commenters that opposed the proposal further argued that it would impose significant compliance costs on issuers and result in increased debit card fraud, and that these consequences would ultimately harm consumers. At the same time, a small number of issuer commenters and one related trade association expressed the view that the proposed amendments were consistent with the intent of the statute and represent clarifications to existing obligations that already apply to issuers and with which many issuers already comply.

The remainder of this section provides a general overview of some of the major themes raised by commenters. Issues raised by commenters are additionally discussed in the Final Rule and Section-by-Section Analysis, infra section III, and the Regulatory Analyses, infra section IV, as appropriate.

The Board received numerous comment letters, primarily from merchants and related trade associations, but also from federal agencies and some community bank issuers, stating that the proposal would merely clarify requirements that already apply to issuers and with which issuers should already comply. In particular, these commenters argued that the prohibition on network exclusivity already requires issuers to enable two unaffiliated networks to process a debit card transaction, and there is no exemption from this requirement in either the statute or Regulation II for card-not-present transactions.

However, numerous other comment letters, primarily from issuers, related trade associations, and dual-message networks, characterized the proposal as an expansion of both the coverage and substantive requirements of the prohibition on network exclusivity. Some of these commenters stated that the proposal would expand the prohibition on network exclusivity to include card-not-present transactions, which the commenters believed had not previously been subject to that prohibition. Commenters also raised concerns that the proposal would transform the existing requirement that an issuer allow a debit card transaction to be processed on at least two unaffiliated networks into a broad new mandate requiring issuers to affirmatively guarantee that two unaffiliated networks would always be available to all merchants in every conceivable transaction context. Commenters raised a variety of concerns with this broad reading of the proposal, including that it is impractical, contrary to the statute, and overly burdensome, and would deter innovation in the debit card industry. Commenters' concerns, including the Board's analysis of these concerns and corresponding adjustments to the final rule, are discussed further in the Final Rule and Section-by-Section Analysis, infra section III.

Various commenters, especially issuers, related trade associations, and dual-message networks, expressed the view that the proposal would, in practice, require most issuers to enable single-message networks to process card-not-present debit card transactions, which in turn may result in an increased level of fraud for card-not-present transactions. In particular, such commenters suggested that single-message networks would be likely to have higher levels of card-not-present fraud than dual-message networks because of single-message networks' limited experience in processing card-not-present transactions. These commenters further argued that the proposal casts doubt on whether an issuer could decline specific transactions for good-faith fraud concerns.

Other commenters, including commenters representing merchants and single-message networks, argued that the proposal would not increase card-not-present fraud and that single-message networks are as effective at mitigating fraud as dual-message networks. A few commenters suggested that sending all information relevant to the transaction in a single message gives single-message networks an inherent advantage over dual-message networks in preventing card-not-present fraud. Commenters' concerns related to fraud are discussed further in the EFTA Section 904(a) Analysis, infra section IV.A.

The Board received numerous comment letters that raised issues not specifically related to the proposed changes. 16 Because these comments are not directly related to the proposal, the Board is not addressing them in this notice. The Board will continue to monitor developments in the debit card industry, including how these developments relate to the requirements of Regulation II.

A copy of the Update to Investigative and Enforcement Procedures notice of proposed rulemaking (NPRM) (84 FR 3614, February 12, 2019), comments received, and final rule may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of these technical amendments will be placed in the same docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found at the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing these technical amendments, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Section 553(d)(3) of the APA requires that agencies publish a rule not less than 30 days before its effective date, except as otherwise provided by the agency for good cause found and published with the rule.

This action makes technical amendments that will not impose any additional substantive restrictions or requirements on any persons affected by the regulations. Therefore, the FAA finds that notice and public comment under 5 U.S.C. 553(b)(3)(B) is unnecessary and that good cause exists under 5 U.S.C. 553(d) for making this rule effective in less than 30 days.

On October 1, 2021, the Update to Investigative and Enforcement Procedures final rule (RIN 2120-AL00) was published in the Federal Register at 86 FR 54514. After the rule was published, the FAA discovered that a delegation of the Administrator's authority under 49 U.S.C. 44709 and 5121 previously codified in 14 CFR 13.19(b) was inadvertently deleted. On March 17, 2022, the Administrator issued a Delegation of Authority that authorized the Chief Counsel, the Deputy Chief Counsel, and the Assistant Chief Counsel for Enforcement to exercise his authority under 49 U.S.C. 44709 and 5121 to issue orders, including emergency orders, and also ratified all orders issued under these statutes between publication of the final rule and March 17, 2022.

This technical amendment restores the delegation of the Administrator's authority under 49 U.S.C. 44709(b)(1)(A), (b)(2), and 5121 to part 13 by inserting it in §§ 13.19(a)(2) and 13.70. This places part of the prior delegation that pertained to the Administrator's authority to take certain certificate actions, as currently codified in 49 U.S.C. 44709(b)(1)(A) and (b)(2), in § 13.19 because this section pertains to certificate actions. The other part of the prior delegation that addressed the Administrator's authority under the Hazardous Materials Transportation Act, as currently codified in 49 U.S.C. 5121, is being placed in § 13.70 of subpart E because it pertains to hazardous material actions. It is necessary to restore this delegation to the text of these regulations because it was inadvertently deleted, and to ensure consistency throughout part 13, which contains other codified delegations of the Administrator's authority.

This same final rule included an information collection subject to the Paperwork Reduction Act: formal complaints, codified at 14 CFR 13.5. Since the publication of the final rule, OMB has approved the formal complaint information collection. The FAA is therefore adding the formal complaint control number to the list of OMB control numbers for FAA information collections at 14 CFR 11.201.

Accordingly, the FAA amends 14 CFR parts 11 and 13 as set forth below:

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-10-10, Amendment 39-21543 (86 FR 27271, May 20, 2021) (AD 2021-10-10). AD 2021-10-10 applied to all Airbus Helicopters Model SA330J helicopters. AD 2021-10-10 required repetitively inspecting the MGB particle detector and the MGB bottom housing (oil sump) for metal particles, analyzing any metal particles that are found, and replacement of the MGB if necessary. AD 2021-10-10 was prompted by EASA AD 2018-0272, dated December 13, 2018 (EASA AD 2018-0272), issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for all Airbus Helicopters Model SA 330 J helicopters. The FAA issued AD 2021-10-10 to address failure of an MGB second stage planet gear, which could result in failure of the MGB and subsequent loss of control of the helicopter.

The NPRM published in the Federal Register on July 21, 2022 (87 FR 43453). The NPRM was prompted by EASA AD 2021-0239, dated November 5, 2021 (EASA AD 2021-0239). EASA AD 2021-0239 supersedes EASA AD 2018-0272 and continues to require repetitively inspecting the MGB particle detector and the MGB bottom housing (oil sump) for metal particles, and analyzing any metal particles that are found. EASA AD 2021-0239 also requires installing an MGB equipped with a new second-stage planet gear assembly part number (P/N) 330A32-9861-02 (mod 0751091) or modifying an affected MGB by having the second stage planet gear assembly replaced by an Airbus Helicopters qualified technician; and extends the compliance time for the repetitive MGB bottom housing (oil sump) inspections and establishes a life limit for post-mod 0751091 helicopters.

You may examine EASA AD 2021-0239 in the AD docket at regulations.gov under Docket No. FAA-2022-0888.

In the NPRM, the FAA proposed to require accomplishing the actions specified in EASA AD 2021-0239, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this AD and the EASA AD.”

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

These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in its AD referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.

The FAA reviewed EASA AD 2021-0239, which supersedes EASA AD 2018-0272 and continues to require repetitively inspecting the MGB particle detector and the MGB bottom housing (oil sump) for metal particles, and analyzing any metal particles that are found. EASA AD 2021-0239 also requires installing an MGB equipped with a new second-stage planet gear assembly P/N 330A32-9861-02 (mod 0751091) or modifying an affected MGB by having the second stage planet gear assembly replaced by an Airbus Helicopters qualified technician; and extends the compliance time for the repetitive MGB bottom housing (oil sump) inspections and establishes a life limit for post-mod 0751091 helicopters.

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

The FAA reviewed Airbus Helicopters Alert Service Bulletin (ASB) No. SA330-05.103, Revision 3, dated October 4, 2021. This service information specifies procedures for checking (inspecting) the MGB particle detector and the bottom housing (oil sump) to ensure that there are no particles, and for particle analysis.

The FAA also reviewed Airbus Helicopters ASB No. SA330-65.139, Revision 0, dated October 4, 2021 (ASB SA330-65.139). This service information specifies procedures for installing an MGB equipped with a new second-stage planet gear assembly P/N 330A32-9861-02 (mod 0751091) and the alternate action of having the second stage planet gear assembly replaced by an Airbus Helicopters qualified technician. The new second stage planet gear assembly has improved stress and fatigue characteristics. ASB SA330-65.139 also establishes an airworthiness limitation of 2,750 flight hours for all post-mod 0751091 planet gear assemblies.

EASA AD 2021-0239 requires certain actions be done after the last flight of the day or “ALF,” whereas this AD requires doing those actions before the first flight of the day. EASA AD 2021-0239 requires contacting the manufacturer if unsure about the characterization of the particles collected, whereas this AD does not. If there are any 16NCD13 particles, EASA AD 2021-0239 requires contacting the manufacturer and sending a 1-liter sample of oil to the manufacturer, whereas this AD does not. EASA AD 2021-0239 requires returning certain parts to the manufacturer, whereas this AD does not. EASA AD 2021-0239 allows the option of modifying an affected MGB by having the second stage planet gear assembly replaced by an Airbus Helicopters qualified technician, whereas this AD allows that modification with certain approvals instead. EASA AD 2021-0239 allows different methods to accomplish the oil sump inspection, whereas this AD requires a certain method. EASA AD 2021-0239 requires discarding certain parts, whereas this AD requires removing those parts from service instead.

The FAA estimates that this AD affects 15 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the MGB particle detector takes about 0.25 work-hour for an estimated cost of $21 per helicopter and $315 for the U.S. fleet, per inspection cycle. Inspecting the MGB bottom housing (oil sump) takes up to about 4 work-hours for an estimated cost of $340 per helicopter and $5,100 for the U.S. fleet, per inspection cycle.

Replacing a second stage planet gear assembly takes about 100 work-hours and parts cost about $121,140 for an estimated cost of $129,640 per helicopter and $1,944,600 for the U.S. fleet, per replacement cycle. Alternatively, replacing an MGB takes about 100 work-hours and parts cost about $600,000 (overhauled) for an estimated cost of $608,500 per helicopter.

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE CF34-8C1, CF34-8C5, CF34-8C5A1, CF34-8C5A2, CF34-8C5A3, CF34-8C5B1, CF34-8E2, CF34-8E2A1, CF34-8E5, CF34-8E5A1, CF34-8E5A2, CF34-8E6, and CF34-8E6A1 model turbofan engines. The NPRM published in the Federal Register on August 1, 2022 (87 FR 46906). The NPRM was prompted by a report of a crack found on the LPT stage 5 disk at the forward arm area. In the NPRM, the FAA proposed to require the removal of the affected LPT stage 5 disk and replacement with a part eligible for installation. The FAA is issuing this AD to address the unsafe condition on these products.

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

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

The FAA reviewed GE CF34-8C Service Bulletin (SB) 72-0352 R00, dated September 20, 2021, and GE CF34-8E SB 72-0240 R00, dated September 20, 2021. These SBs, differentiated by engine model, describe procedures for removing and replacing the affected LPT stage 5 disk, part number (P/N) 4117T14P02, with a new LPT stage 5 disk, P/N 4117T14P03.

The FAA estimates that this AD affects 112 engines installed on airplanes of U.S. registry.

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

The FAA published a final rule in the Federal Register for Docket No. FAA 2021-0169 (86 FR 50245, September 8, 2021), amending Class D and Class E airspace for eight airports in the south Florida area. Subsequent to publication, the FAA found that the dividing line between Pompano Beach Airpark and Fort Lauderdale Executive Airport had moved due to the geographic coordinates of these airports being updated. This action corrects this error by amending the dividing line to mirror the previous line. Also, the effective date to amend Class D and Class E airspace for North Perry Airport, Miami-Opa Locka Executive Airport, Fort Lauderdale Executive Airport, Pompano Beach Airpark, and Boca Raton Airport was updated three times so as to coincide with the Class B and Class C actions, which were also delayed.

Section 553(b) (3) (B) of Title 5, United States Code, (the Administrative Procedure Act) authorizes agencies to dispense with notice and comment procedures for rules when the agency for “good cause” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The FAA finds that prior notice and public comment to this final rule is unnecessary due to the fact that there is no substantive change to the rule.

This document amends FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and became effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic routes, and reporting points.

This action amends Title 14 Code of Federal Regulations (14 CFR) part 71 by correcting the dividing line between Pompano Beach Airpark and Fort Lauderdale Executive Airport in the final rule of Amendment Class D and Class E Airspace; South Florida.

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

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

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

FHWA is required to withhold an amount equal to 8 percent of the amount of Federal-aid highway funds required to be apportioned to any State under 23 U.S.C. 104(b)(1) and (2), the National Highway Performance Program and the Surface Transportation Block Grant Program, respectively, on the first day of each fiscal year if the State fails to meet the requirements in 23 U.S.C. 159 associated with the revocation or suspension of driver's licenses of individuals convicted of drug offenses. The statute (23 U.S.C. 159) provides for two ways the States can satisfy this requirement: (1) the State has enacted and is enforcing a law that requires in all circumstances, or requires in the absence of compelling circumstances warranting an exception, the revocation, or suspension for at least 6 months, of the driver's license of any individual who is convicted of any violation of the Controlled Substances Act  1 or any drug offense;  2 or (2) the State submits a written certification stating that the Governor is opposed to the enactment or enforcement of a law involving the revocation, suspension, issuance, or reinstatement of driver's licenses to convicted drug offenders and submits written certification that the legislature (including both Houses where applicable) has adopted a resolution expressing its opposition to a law.

The regulation that implements this law first took effect in 1992. The current regulatory language references several administrative and fiscal provisions that were only applicable the first year the regulation was promulgated. This rulemaking updates the administrative and fiscal language to what is currently required of the State. The current regulatory language also requires each State to annually certify their compliance with 23 U.S.C. 159, which has proved burdensome and inefficient for the States. This rulemaking eliminates the annual certification and requires re-certification only when there is a change to a State law affecting the State's method of compliance and allows for a designee of the Governor to sign the certification on behalf of the State.

FHWA is required to withhold an amount equal to 8 percent of the amount required to be apportioned to any State under 23 U.S.C. 104(b)(1) and (2) on the first day of each fiscal year if the State fails to meet the requirements in 23 U.S.C. 159 associated with the revocation or suspension of driver's licenses of individuals convicted of drug offenses. The regulation implementing this law in 23 CFR part 192 references administrative and fiscal provisions that were only applicable the first year the regulation was promulgated and requires annual certifications from States. FHWA is revising its regulation governing the certification requirements in 23 CFR part 192 that implement the 23 U.S.C. 159 requirements to update the regulatory language and streamline the certification process for States.

FHWA published its NPRM on February 18, 2022 (87 FR 9297), seeking public comment on proposed revisions to its regulation governing the suspension of driver's licenses for drug offenders. FHWA received nine public comment submissions. Commenters included agencies from two States with the remaining being individuals. After carefully considering the comments received in response to the NPRM in light of the statutory requirements, FHWA is promulgating the final regulation adopting the changes set forth in the NPRM as proposed.

Consistent with a change made to 23 U.S.C. 159 in the Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141) (MAP-21), FHWA is revising § 192.4 to update the amount of penalty withholding from 10 to 8 percent and updating what apportioned funds the withholding applies to by changing reference to 23 U.S.C. 104(b)(1), 104(b)(3), and 104(b)(5) to 23 U.S.C. 104(b)(1) and (b)(2). The updated § 192.4 now also allows a designee of the Governor of the State to submit a written certification through its respective FHWA Division Administrator. This provision will result in reduced administrative burdens for Governors of the State, including time to obtain written signatures on certifications.

In § 192.5, FHWA sets new requirements for when certifications compliant with 23 U.S.C. 159 are required. FHWA requires all States to certify to the Secretary of Transportation, through their respective FHWA Division Administrator, by January 1, 2023, that it meets the requirements of 23 U.S.C. 159. This certification will establish a baseline from which compliance can be determined for all States. FHWA is now requiring in § 192.5 that a State certify to the Secretary of Transportation, through its FHWA Division Administrator, that it meets the requirements of 23 U.S.C. 159 only when there is a change to the State law, regulation, or binding policy relating to the suspension, revocation, issuance, or reinstatement of driver's licenses of drug offenders within 90 days of the effective date of a such a change affecting State compliance with 23 U.S.C. 159. FHWA believes that States do not often have changes in State laws, regulations, and binding policies affecting compliance with 23 U.S.C. 159, and that annual certification is redundant and unnecessary. FHWA expects that States will continue to monitor State laws, regulations, and policies relating to the suspension, revocation, issuance, or reinstatement of driver's licenses of drug offenders and continue to notify their respective FHWA Division Administrator accordingly. FHWA also amends § 192.5 to update the wording of the certification to be consistent with allowing the Governor of the State or the Governor's designee to provide certification signatures. Lastly, FHWA also allows submission of electronic copies of signed certifications to the FHWA Division Administrator. These changes increase efficiency by decreasing the number of submissions of original signed certifications.

FHWA clarifies in § 192.6, in accordance with the statute, that funds withheld under § 192.4 from apportionment to any State will not be available for apportionment to the State and will lapse immediately.

FHWA revises § 192.7 with respect to the procedures affecting States that are in noncompliance with 23 U.S.C. 159. FHWA will require that States that fail to notify FHWA within 90 days of the effective date of a change to State law, regulation, or policy that affects State compliance with 23 U.S.C. 159, or are found to be in noncompliance based on the status of the State's certification, will be advised of the funds expected to be withheld under § 192.4 approximately 90 days before the beginning of the fiscal year for which the penalty withholding will be applied. The revisions to § 192.7 also allow for a State to submit documentation demonstrating compliance. This provision gives a State an opportunity to rectify noncompliance prior to funds being withheld.

As stated, FHWA expects that States do not often change State laws, regulations, and binding policies affecting compliance with 23 U.S.C. 159, and would notify their respective FHWA Division Administrators in the event of such changes. Furthermore, the regulation continues to allow FHWA to withhold Federal-aid funding, consistent with 23 U.S.C. 159, from a non-compliant State in the event the State either (1) does not notify FHWA in these circumstances or (2) does not provide certification in compliance with 23 U.S.C. 159. Consequently, the changes reduce neither safety nor the substantive protections provided by 23 U.S.C. 159.

Finally, FHWA is making minor technical and conforming changes in part 192 to align the rule's language with the wording of relevant statutes and to promote overall clarity of the rule.

FHWA presents the economic analysis in a supporting statement and a spreadsheet found in the rulemaking docket (FHWA-2020-0015) and summarizes the analysis under “Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), and DOT Rulemaking Policies and Procedures” heading of this preamble.

FHWA received nine public comment submissions in response to the NPRM. Commenters included the Department of Transportation and the Bureau of Motor Vehicles from one State in a combined comment, one State Motor Vehicles Division, and seven individuals. Six of the nine comments made specific statements of support for the changes in the regulation as outlined in the NPRM. One of the State commenters stated they were highly supportive of the changes.

Four comments directly referenced the reduced administrative burden on States if the NPRM was to be implemented and agreed with that statement. One of the State commenters indicated that the changes “will greatly reduce the administrative obligation mandated within the current certification requirements.” Two commenters agreed that this action would not compromise safety on our Nation's roads.

Several commenters provided their view of the statute. Since this rule is the implementation of the statute, FHWA cannot respond to statements of support or disagreement regarding the statute itself.

There were no comments submitted that expressed any disagreement with any of the proposed changes in this regulation as described in the NPRM. As a result, FHWA adopts the changes set forth in the NPRM as proposed.

The Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) has determined that this rulemaking is not a significant regulatory action under section 3(f) of Executive Order (E.O.) 12866. Accordingly, OMB has not reviewed it under that E.O. This action complies with E.O. 12866 and 13563 to improve regulation. FHWA anticipates that the rule would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. The rule also does not raise any novel legal or policy issues.

FHWA has determined that this action could generate cost savings, measured in 2020 dollars and discounted at 7 percent, expected to total $181,812 over 10 years. The present value annualized total is $25,886 per year.

The quantified cost savings resulting from this action are generated from reducing administrative burdens. The rule will reduce the burden on States and FHWA by significantly reducing the number of compliance certifications required annually, without compromising the intent of the statute.

Currently, States must certify their compliance with 23 U.S.C. 159 annually. The rule requires States only notify FHWA of a change in the type of compliance, instead of recertifying compliance every year. Furthermore, the rule will result in additional cost savings by allowing the State Governors to appoint a designee to certify compliance, instead of requiring the Governor's signature on the certification. This change will result in a lower-level of staff time needed to complete the certification. Under the rule, the States must certify compliance in the first year after the rule takes effect to establish a baseline. This will be an administrative cost to all 52 States. 3 However, this certification may be made using the new rule, allowing the Governor of the State to appoint a designee. Therefore, the costs to the States in the first year will still be lower under the rule.

The rule is not expected to affect the number of States in compliance with 23 U.S.C. 159. FHWA reports no States out of compliance in the last 3 years. Furthermore, in recent years, only one State has failed to certify, and this failure is not considered a typical occurrence. Based on this current trend, there is no expectation that any States will be out of compliance in the future due to the rule or otherwise. Therefore, FHWA believes there will be no negative social consequences or disbenefits from the rule.

The rule does not change the current requirement that State legislatures must pass a resolution in order to enact a change in type of compliance. Therefore, there will be no change in cost for the State legislature due to the rule.

The method for estimating the cost savings from the rule is as follows. The analysis uses a base year of 2020 and a 10-year analysis period. Estimated wage rates for FHWA employees at division offices, who currently process the State certifications, are based on 2020 General Schedule (GS) Locality Pay Tables. 4 Estimated wage rates for FHWA Headquarters (HQ) staff, who compile and analyze the certifications nationwide, were obtained from the same source using the Washington, District of Columbia, locality table. Estimated wages for State government employees were obtained from the Bureau of Labor Statistics occupational employment statistics for State government employees. Lower wages were used in the rule scenario, compared to the current regulation, in order to account for the ability of the Governor of the State to appoint a designee. 5 To account for the cost of employer provided benefits, all wage rates were multiplied by a factor of 1.61. 6 Wage rates were adjusted using this factor to generate a total cost of labor per hour, as seen in Table 1.

For State department of transportation administrative cost savings, under current regulation, all 50 States plus the District of Columbia and Puerto Rico must submit proof of compliance each year. Under the rule, after the first year, only States which change compliance type must submit a certification. The estimated time burden on the States per certification is 5 hours in both the current and new rule scenarios. Given that FHWA historically receives 1-4 changes per year from States, going forward, the analysis assumed two compliance changes per year to be processed, after the first year of analysis. These changes were assumed to be medium to high level of administrative burden for processing by FHWA Division Office employees and HQ staff.

Under current regulation, the certification of compliance must be signed by the Governor of each State, while under the new rule, the Governor may appoint a designee. Based on current trends, FHWA assumes two States will make a change and submit for certification each year, under the new rule, with 5 hours of burden per State. Furthermore, the estimated wage rate was reduced to account for the appointment of a designee by the Governor under the new rule. Under the rule, all 52 States will spend 5 hours certifying compliance in the first year, 2021, at a lower administrative cost due to the rule, as seen in Table 2. For all years after the initial certification, rather than 52 States spending 5 hours per year submitting a certification with the Governor's signature, only 2 States will spend 5 hours per year submitting a certification with a designee's signature. This resulted in a yearly undiscounted cost savings of $19,132 for the States, beginning in 2022, as shown in Table 2.

Purpose: As noted above, this final rule incorporates classification changes adopted by the Nice Agreement that will become effective on January 1, 2023. Specifically, this rule adds new services to, or deletes existing services from, two class headings to further define the types of services appropriate to the classes.

Summary of Major Provisions: The USPTO is revising § 6.1 of 37 CFR part 6 to incorporate classification changes and modifications, as listed in the Nice Classification (12th ed., ver. 2023), published by WIPO, that will become effective on January 1, 2023.

The Nice Agreement is a multilateral treaty, administered by WIPO, that establishes the international classification of goods and services for the purposes of registering trademarks and service marks. As of September 1, 1973, this international classification system is the controlling system used by the United States, and it applies, for all statutory purposes, to all applications filed on or after September 1, 1973, and their resulting registrations. See 37 CFR 2.85(a). Every signatory to the Nice Agreement must use the international classification system.

Each state party to the Nice Agreement is represented in the Committee of Experts of the Nice Union (Committee of Experts), which meets annually to vote on proposed changes to the Nice Classification. Any state that is a party to the Nice Agreement may submit proposals for consideration by the other members of the Committee of Experts, in accordance with agreed-upon rules of procedure. Proposals are currently submitted annually to an electronic forum on the WIPO website, where they are commented on, modified, and compiled for further discussion and voting at the annual Committee of Experts meeting.

In 2013, the Committee of Experts began annual revisions to the Nice Classification. The annual revisions, which are published electronically and enter into force on January 1 each year, are referred to as versions and identified by an edition number and the year of the effective date ( e.g., “Nice Classification, 10th edition, version 2013” or “NCL 10-2013”). Each annual version includes all changes adopted by the Committee of Experts since the adoption of the previous version. The changes consist of: (1) The addition of new goods and services to, and deletion of goods and services from, the Alphabetical List; and (2) any modifications to the wording in the Alphabetical List, the class headings, and the explanatory notes that do not involve the transfer of goods or services from one class to another.

Beginning on January 1, 2023, new editions of the Nice Classification will be published electronically every three years. They will include all changes adopted since the previous edition, as well as goods or services transferred from one class to another and new classes that have been created since the previous edition.

Due to the worldwide impact of COVID-19, the International Bureau (IB) at WIPO announced on February 25, 2022, that the 32nd session of the Committee of Experts would be held in a hybrid format, with WIPO participating at the WIPO headquarters in Geneva and member states participating via an online platform or in person. The annual revisions contained in this final rule consist of modifications to the class headings that were incorporated into the Nice Agreement through e-voting during the 32nd session of the Committee of Experts, which took place from April 25-29, 2022. Under the Nice Classification, there are 34 classes of goods and 11 classes of services, each with a class heading. Class headings generally indicate the fields to which goods and services belong. Specifically, this rule adds new services to, or deletes existing services from, two class headings, as set forth in the discussion of regulatory changes below. The changes to the class headings further define the types of services appropriate to the class. As a signatory to the Nice Agreement, the United States adopts these revisions pursuant to article 1.

The USPTO is revising § 6.1 as follows:

In Class 36, the wording “affairs” is amended to “services.”

In Class 45, the wording “personal and social services rendered by others to meet the needs of individuals” after “security services for the physical protection of tangible property and individuals;” is replaced with the wording “dating services, online social networking services; funerary services; babysitting.”

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 575 U.S. 92, 97 (2015) (interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers”) (citation and internal quotation marks omitted); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that clarifies interpretation of a statute is interpretive); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (rules governing an application process are procedural under the Administrative Procedure Act); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims).

Accordingly, prior notice and opportunity for public comment for the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 575 U.S. at 101 (notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice-and-comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice”) (quoting 5 U.S.C. 553(b)(A)).

B. Regulatory Flexibility Act: As prior notice and an opportunity for public comment are not required pursuant to 5 U.S.C. 553 or any other law, neither a Regulatory Flexibility Act analysis nor a certification under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) is required. See 5 U.S.C. 603.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The USPTO has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the USPTO has, to the extent feasible and applicable: (1) made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) have substantial direct effects on one or more Indian tribes, (2) impose substantial direct compliance costs on Indian tribal governments, or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq. ), the USPTO will submit a report containing the final rule and other required information to the United States Senate, the United States House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this rulemaking are not expected to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not expected to result in a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by state, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

O. Paperwork Reduction Act of 1995: This final rule does not involve information collection requirements that are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information has a currently valid OMB control number.

P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons given in the preamble and under the authority contained in 15 U.S.C. 1112 and 1123 and 35 U.S.C. 2, as amended, the USPTO is amending 37 CFR part 6 as follows:

VA is correcting its regulations published on October 29, 2018, in the Federal Register at 83 FR 54250 in the final rule “RIN 2900-AO19, Schedule for Rating Disabilities: The Hematologic and Lymphatic Systems”. The first error is within the text of the 100 percent evaluation for diagnostic code (DC) 7718 Essential Thrombocythemia and Primary Myelofibrosis. Within the preamble of the proposed rule, VA proposed a 100-percent evaluation in cases requiring either continuous myelosuppressive therapy or, for six months following hospital admission, any of the following treatments: peripheral blood or bone marrow stem cell transplant, or chemotherapy, or radioactive phosphorus. (See 80 FR 46888 published August 6, 2015.) Within the final rule, VA replaced radioactive phosphorus with interferon treatment because radioactive phosphorus is an outdated treatment and interferon alpha treatment is in line with current clinical practice. (See 83 FR 54253 published October 29, 2018.) However, VA omitted “any of the following treatments:” in the regulatory text of its proposed and final rules. VA corrects this error by adding the phrase “for any of the following treatments:” after the words “hospital admission” of the 100-percent disability evaluation criteria under DC 7718.

The second error is within the text of Note (2) under DC 7718. VA excluded interferon treatment from its discussion regarding the assignment of 100 percent evaluations and mandatory VA examinations following hospital admission. To promote clarity and the consistency of application of its rating schedule, VA adds interferon treatment to the list of treatments to the text on Note (2). This change is editorial in nature and does not result in any substantive changes to the rating criteria.

For the reasons set out in the preamble, 38 CFR part 4 is corrected by making the following correcting amendment:

Throughout this document “we,” “us,” and “our” means EPA.

On May 6, 2022 (88 FR 27050), EPA published a document in the Federal Register proposing approval of the two remanded parts of EPA's 2020 final rule. 1 EPA's May 2022 proposed approval addressed (1) the adequacy of Colorado's infrastructure submission for the 2015 8-hour ozone NAAQS under the CAA's “good neighbor provision,”  2 which generally requires SIPs to contain adequate provisions to prohibit in-state emissions from significantly contributing to nonattainment or interfering with the maintenance in another state, and (2) the adequacy of Colorado's infrastructure submission for the 2015 8-hour ozone NAAQS under CAA section 110(a)(2)(E)(i), particularly with respect to Colorado's authority to regulate agricultural sources. 3 The rationale for EPA's proposed action is included in the May 6, 2022 proposal and will not be repeated here.

EPA received comments on the proposed rule from an individual citizen and the Center for Biological Diversity (the Center). We summarize and respond to the comments below.

Comment: The commenter initially states that “concerns regarding the 2015 Ozone NAAQS infrastructure requirements highlight potential problems regarding both the `Good Neighbor Provision' CAA section 110(a)(2)(D)(i)(I), as well as the adequate implementation of [the] SIP regarding CAA section 110(a)(2)(E)(i).” The commenter believes that EPA's use of the 4-step interstate transport framework is an effective method to address the previously mentioned concerns, but that there needs to be adequate implementation and “more stringent regulations reinforced regarding step 3 and step 4, of the 4-step interstate transport framework.” The commenter recommends two “strategies” in order to make the 4-step framework more stringent. For Step 3, the commenter suggests re-evaluating Prevention of Significant Deterioration (PSD) regulations, with a focus on “improving standards” related to Best Available Control Technology (BACT). Regarding Step 4, the commenter recommends that EPA adopt measures to reduce carbon via a cap-and-trade system.

Response: These comments are not relevant to the action EPA proposed. In the proposed rule, EPA applied the well-established 4-step framework for assessing interstate ozone transport to determine whether Colorado's infrastructure SIP meets the requirements of CAA section 110(a)(2)(D)(i)(I). We invited comment on our conclusions with respect to Colorado's infrastructure SIP, but did not invite comment on the integrity and process of the 4-step framework itself. 4 Further, we determined that Colorado's emissions do not contribute at or above the threshold of 1 percent of the 2015 8-hour ozone NAAQS (0.70 parts per billion (ppb)) to any downwind nonattainment or maintenance receptor at Step 2 of the 4-step interstate transport framework, and thus did not reach the steps of the 4-step framework discussed in this comment, i.e., analysis of potential emissions controls at Step 3 or permanent and federally enforceable control strategies to achieve emissions reductions at Step 4. 5 6 Thus, the commenter's recommended strategies for Steps 3 and 4 are not relevant to EPA's determination that Colorado does not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in any other state, and that therefore Colorado's infrastructure SIP submission satisfies CAA section 110(a)(2)(D)(i)(I).

Additionally, the commenter states that “concerns regarding the 2015 Ozone NAAQS infrastructure requirements highlight potential problems regarding both the `Good Neighbor Provision' CAA section 110(a)(2)(D)(i)(I), as well as the adequate implementation of SIP regarding CAA section 110(a)(2)(E)(i),” but the commenter does not explain what these concerns or potential problems are. Without knowing the specific concerns to which the commenter is referring, EPA cannot respond to this part of the comment.

Comment: The Center asserts that EPA should have used an analytic year of 2020 instead of 2023 and that EPA made a “post hoc justification” for using a 2023 analytic year. The Center states that EPA is incorrect that most areas downwind of Colorado have an attainment date of August 3, 2024, which is the attainment date for 2015 ozone moderate nonattainment areas. The Center asserts that EPA has delayed “bumping up” downwind areas (or determining that these areas have failed to attain the 2015 ozone NAAQS by the attainment date) and that these areas should be designated moderate instead of marginal. The Center also states that Congress' intent under the CAA is for EPA to act on SIPs before the marginal attainment date. 7 The Center claims that EPA is not justified in doing an analysis based on acting on Colorado's SIP submission after the marginal attainment date and also claims that using a 2023 analytic year is inconsistent with recent EPA actions related to designations. Additionally, the Center asserts that using an analytic year of 2020 would “allow” EPA to use monitored data in determining downwind nonattainment and maintenance monitors. The Center suggests that if EPA were to use a 2020 analytic year, the Agency would determine that Colorado needs to reduce the State's emissions, and that such a conclusion would benefit several downwind areas such as Amador County, California; Dallas-Fort Worth, Texas; Houston, Texas; the Northern Wasatch Front, Utah; Phoenix, Arizona; San Antonio, Texas; the Uinta Basin, and others.

Response: The Center supports its preferred analytic year of 2020 by arguing that if EPA had used an analytic year of 2020, we would have concluded that Colorado has good neighbor obligations that, if met, would benefit downwind areas including Amador County, California; Dallas-Fort Worth, Texas; Houston, Texas; Northern Wasatch Front, Utah; Phoenix, Arizona; San Antonio, Texas; and Uinta Basin, Utah. We do not agree that the Center's assertions regarding Colorado's transport linkages in 2020 are correct. However, it is not necessary to evaluate the technical basis for these claims because the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) previously rejected a similar argument regarding sole reliance on conditions that are wholly in the past to assess good neighbor obligations and upheld EPA's reasonable interpretation of the good neighbor provision as forward-looking. 8 In that case, Delaware argued that EPA should have used data from the year SIP submissions for the 2008 ozone NAAQS were due (2011) instead of the future analytic year that EPA used (2017) on the theory that EPA would have concluded in that circumstance that upwind states had good neighbor obligations with respect to Delaware. 9 The court held that Delaware's argument could not “be reconciled with the text of the Good Neighbor Provision, which prohibits upwind States from emitting in amounts `which will' contribute to downwind nonattainment.” The court concluded that “[g]iven the use of the future tense, it would be anomalous for EPA to subject upwind States to good neighbor obligations in 2017 by considering which downwind States were once in nonattainment in 2011.”  10 Likewise, in the present circumstance, it would be anomalous for EPA now in 2022 to consider upwind states' obligations under the good neighbor provision based solely on data from years that have already passed.

For more than two decades, EPA has taken a forward-looking approach in evaluating good neighbor obligations; using an analytic year that is wholly in the past, as the Center urges, would be inconsistent with the Agency's past practice. 11 Furthermore, even prior to Wisconsin, the D.C. Circuit upheld EPA's interpretation of “will” in CAA section 110(a)(2)(D)(i)(I) as being both future-tense and conveying a sense of certainty. 12 EPA's use of forward-looking projections in assessing good neighbor obligations here continues to give meaning to both senses of the term. 13 EPA's rationale for the selection of 2023 as the appropriate future analytic year for assessing whether Colorado has any good neighbor obligations for the 2015 ozone NAAQS was presented in the proposed rule in section II.A.2 and was not a “post hoc” justification as the Center asserts. Further, 2023 continues to be the key analytic year that EPA is using in multiple other actions to address other states' good neighbor obligations under the 2015 ozone NAAQS. 14

Despite the Center's argument to the contrary, using a forward-looking analysis to inform EPA's evaluation of good neighbor SIP submissions pursuant to the requirements of CAA section 110(a)(2)(D)(i)(I) is not incompatible with EPA using existing record information to revise certain designations under CAA section 107(d)(1) on remand. When EPA revised some initial area designations for the 2015 ozone NAAQS on remand after Clean Wisconsin v. EPA, 15 EPA found it appropriate in that specific circumstance to use data available to the agency at the time of the initial designations in revising the boundaries of some nonattainment areas to avoid introducing inconsistencies within and across nonattainment areas, some of which were unaffected by the court's remand. 16 The overall goal of the Agency's analytical approach to the action revising initial area designations—to avoid introducing inconsistencies across areas—is entirely consonant with EPA's approach to addressing good neighbor obligations using a consistent analytic year for the entire country, which, at the time of this action, is 2023.

Part of the Center's argument appears to be a suggestion for an alternative approach to identifying receptors at Step 1 of the 4-step framework for the purpose of assessing whether a state has obligations under CAA section 110(a)(2)(D)(i)(I). The Center suggests that if EPA were to use an analytic year of 2020, then EPA would identify downwind air quality issues using only measured values from 2020. But this ignores that EPA's methodology for identifying receptors already gives consideration to recent measured values, including in 2020, while also using forward-looking modeling projections. Using only measured values to identify receptors would introduce several problems into EPA's methodology.

EPA explained how the Agency identifies nonattainment and maintenance receptors at Step 1 of the 4-step framework for the 2015 ozone NAAQS in the proposed rule in section II.A.3 and provided more detail in our “Air Quality Modeling Technical Support Document: 2015 Ozone National Ambient Air Quality Standards Transport SIP Proposed Actions.”  17 EPA's approach gives independent consideration to both the “contribute significantly to nonattainment” and the “interfere with maintenance” prongs of CAA section 110(a)(2)(D)(i)(I), consistent with the D.C. Circuit's direction in North Carolina v. EPA. 18

• Monitoring sites with future year average design values that exceed the NAAQS and that are currently measuring nonattainment are considered nonattainment receptors. 19

• Monitoring sites with projected average design values or maximum design values that exceed the NAAQS are projected to be maintenance receptors. 20

EPA's methodology for defining maintenance and nonattainment receptors uses projected air quality modeling to capture variability such that monitors that may be attaining based on current data may still be deemed a “maintenance receptor.” Under the Center's idea of using only actual monitoring data, it is unclear how EPA would distinguish between those monitors which should be maintenance receptors and those which are not receptors at all. Additionally, if EPA were to use only recorded monitoring data for 2020 in order to define receptors and not use modeling, there would be no way to measure upwind state contributions to downwind receptors at Step 2 of the 4-step framework. EPA's analysis uses modeling in order to obtain information for both components of the key questions at Steps 1 and 2—indicating where there are anticipated air quality problems and which states are contributing to those problems. Moreover, as discussed above, using only past measured data to identify receptors would not align with the forward-looking nature of the good neighbor provision.

In response to the comment arguing that using a 2020 analytic year would “allow” EPA to use actual monitor data, EPA points out that, in fact, the identification of receptors at Step 1 of the 4-step framework already considers measured ozone design values from 2020, as explained in section 3.1 of the Air Quality Modeling TSD. In other words, while EPA uses a future analytic year to define good neighbor obligations, our assessment of likely air quality conditions in that future year is informed by, among other things, recent and historical ambient air quality monitoring data.

EPA acknowledges that, at the time the Agency originally acted on Colorado's infrastructure SIP in the 2020 final rule, good neighbor obligations for the 2015 ozone NAAQS should have been met no later than the marginal attainment date of August 3, 2021. 21 But, as explained above, the D.C. Circuit has agreed that it is reasonable for EPA to look to a future year in evaluating transport obligations, even if the Agency would have been able to evaluate an earlier year had they acted sooner. Indeed, in EPA's Revised CSAPR Update rule, on remand from the D.C. Circuit's decision in Wisconsin, EPA did not continue to assess obligations based on a 2017 analytic year (as had been used in the 2016 CSAPR Update) but instead used 2021, associated with the serious area attainment date for the 2008 ozone NAAQS. 22 Similarly, here, EPA's choice of a 2023 analytic year is based on the fact that 2023 air quality will impact whether areas attain by the relevant moderate attainment date of August 3, 2024.

The Center's contention that EPA should not look to the moderate area attainment date because EPA has not yet finalized the Agency's action making those areas downwind of Colorado moderate is incorrect. EPA has issued a proposed finding, and signed a final finding, that a number of marginal areas failed to attain by the 2021 attainment date, and per the statute, now that EPA has finalized this determination, these areas will be reclassified to moderate by operation of law on the effective date of the final rule (30 days after publication in the Federal Register ). 23 However, the timing of that action does not affect when the moderate attainment date would be. EPA is not permitted under the statute to adjust the attainment dates for areas under a given classification; that is, no matter when EPA finalizes the determination that an area failed to attain by its attainment date and reclassifies that area, the attainment date remains fixed, based on the number of years from the area's initial designation. 24 To illustrate this point, the attainment date for moderate areas that were designated on August 3, 2018 under the 2015 ozone NAAQS is August 3, 2024, regardless of when EPA finalizes the action that will reclassify areas to moderate. August 3, 2024 is also the attainment date for any area that was initially designated moderate under the 2015 ozone NAAQS on August 3, 2018. Thus, based on Wisconsin and Maryland, good neighbor obligations for the 2015 ozone NAAQS should be met “as expeditiously as practicable but not later than” the next applicable attainment date. For this NAAQS, the next attainment date is the moderate attainment date of August 3, 2024. 25

For all of these reasons, EPA rejects the Center's contention that we should have used a 2020 analytic year to evaluate Colorado's good neighbor obligations in this action and maintains that selecting 2023 as the analytic year is appropriate.

Comment: As part of their comment that EPA must disapprove Colorado's infrastructure SIP submission under CAA section 110(a)(2)(D)(i)(I), the Center criticizes EPA's modeling for failing to properly account for emissions related to EPA's withdrawal of California Clean Car Rules Waiver. The Center states that the “repeal of [the withdrawal of] California's waiver to have more stringent emissions limits for on-road mobile sources has not yet been finalized” and points to EPA's normal practice of including only emissions changes resulting from final regulatory actions in our modeling. The Center says that since the repeal of the withdrawal of California's waiver has not been finalized, EPA's emissions inventory should be based on the on-road mobile sources from states like California and Colorado as if they are not complying with their respective state's clean car rule requirements, such as the zero emissions vehicle (ZEV) requirements and low-emissions vehicle (LEV) requirements. The Center believes it is arbitrary for EPA to base their emissions inventories on these states having emissions limits for on-road mobile sources which are not permitted without a preemption waiver.

Response: The Center is correct that it is the Agency's general practice to include only emissions reductions from finalized legal and regulatory requirements in our ozone transport modeling. EPA's 2023 modeling using the 2016v2 platform reflects an updated assessment of the emissions inventory nationwide based on changes in federal and state rules and other relevant changes in the emissions inventory.

We disagree with the Center that the Agency did not appropriately consider emissions changes related to the repeal of the CAA waiver for California's Advanced Clean Car program in our emissions inventory and subsequent interstate transport modeling. EPA finalized the decision to withdraw a 2013 CAA waiver previously provided to California for the State's greenhouse gas (GHG) and ZEV programs under section 209 of the CAA on September 27, 2019. 26 However, EPA then reconsidered that decision and finalized a repeal of the withdrawal of the CAA waiver of preemption for California's GHG and ZEV sale mandate on March 14, 2022. 27 Whether it was appropriate to include these emissions changes in our 2023 modeling at the time we conducted the modeling is effectively moot, since EPA did in fact repeal the withdrawal of the waiver by March of this year.

EPA's projected emissions for the updated 2023 modeling used in this action use, in relevant part, mobile source emissions inventories provided by the California Air Resources Board (specifically, EMFAC2017), which incorporate emissions reductions from California's GHG emissions standards and ZEV sale mandate, while for the remaining states the inventories are based on MOVES3. 28 MOVES3 reflects the impacts of the Tier 3 Motor Vehicle Emission and Fuel Standards rule which harmonized the California LEV and federal requirements for low emissions vehicles. 29 ZEV populations in the modeling were based on actual registration data for the modeling base year and were grown to future years according to Annual Energy Outlook forecasts. 30 Thus, EPA's updated 2023 modeling appropriately included emissions changes regarding California's GHG and ZEV sale mandate waiver, as well as LEV emissions standards nationwide by virtue of EPA's inclusion of the Tier 3 program in our modeling. Additionally, the September 27, 2019 rulemaking did not affect California's low emissions vehicle III (LEV III emission standards.)

Overall, while the Center is correct that it is the Agency's general practice to include only emissions reductions from final rules in our modeling, there is no merit to the remainder of this comment, because EPA has in fact repealed the withdrawal of the waiver as to California's GHG and ZEV rules and thus they were appropriately incorporated into the modeling.

Comment: The Center further asserts that EPA wrongly ignored receptor values above the level of the NAAQS. The Center points to Step 2 of the 4-step interstate transport framework, as described in the proposed rule for this action, 31 where the contribution metric is defined as the average impact from each state to each receptor on the days with the highest ozone concentrations at the receptor based on the 2023 modeling. The Center states that by using this protocol, “EPA is ignoring impacts from upwind states on days with high ozone concentrations, including concentrations above the level of the NAAQS, but which aren't necessarily the highest ozone concentration. This is ignoring an important aspect of the problem; that is days above the level of the NAAQS but still not the highest days.” The Center states that EPA criticized Colorado for using the same calculations when the State submitted its designations recommendations for the 2015 ozone NAAQS, “not because those areas violated the NAAQS but rather because they contributed to violations.”  32 The Center concludes that there is no difference between intra-state contribution and inter-state contribution and that it is arbitrary for EPA to ignore the above-the-NAAQS level days because failure to address them means downwind areas will continue to struggle to reach attainment.

Response: Through the development and implementation of the CSAPR rulemakings as well as prior regional rulemakings pursuant to the interstate transport provision, EPA, working in partnership with states, developed the 4-step interstate transport framework to evaluate states' obligations to eliminate interstate transport emissions under the good neighbor provision for the ozone NAAQS. This includes Step 2 of the 4-step framework which identifies states that impact air quality problem (nonattainment or maintenance) receptors in downwind states sufficiently such that the states are considered “linked” and therefore warrant further review and analysis of their air quality impacts. As the Center notes in their comment, EPA evaluated Colorado's contribution (as we did every other state's) based on the average relative downwind impact calculated over multiple days. The number of days used in calculating the average contribution metric has historically been determined in a manner that is generally consistent with EPA's recommendations for projecting future year ozone design values. 33 Our ozone attainment demonstration modeling guidance at the time CSAPR was originally promulgated recommended using all model-predicted days above the NAAQS to calculate future year design values. 34 In 2014, EPA issued draft revised guidance that changed the recommended number of days to the top-10 model predicted days. 35 For the CSAPR Update, promulgated in 2016, EPA transitioned to calculating design values based on this draft revised approach. The revised modeling guidance was finalized in 2018. 36 Since that time EPA has consistently calculated both the ozone design values and the contributions based on the top-10 day approach. As this guidance is finalized, we will continue to base our average contribution metric in accordance with the top-10 day approach. Thus, EPA disagrees with the Center's claim that EPA's current modeling approach for identifying contributing upwind states is arbitrary and contrary to law or that the Agency must disapprove Colorado's good neighbor SIP revision for the 2015 ozone NAAQS. Further, the Center has not supplied any information establishing that, had EPA used a larger set of days with high ozone concentrations at identified out of state nonattainment or maintenance receptors to calculate contribution values at Step 2, Colorado's contribution would then be found to exceed the 1 percent of NAAQS threshold at any of these receptors.

Additionally, EPA disagrees with the Center's statement that EPA “criticized” Colorado for using the same calculations when the State submitted its designations recommendations for the 2015 ozone NAAQS. The Center refers to page 28 of EPA's final designation technical support document (designation TSD)  37 supporting Colorado's designations for the 2015 ozone NAAQS, and we believe the Center is referring to EPA's assessment of the Denver nonattainment area's meteorology.

As an initial matter, the technical analysis and process for designations falls under a separate set of guidance and policies than the modeling guidance that EPA follows for purposes of interstate transport. 38 Thus, we do not agree that EPA's designation TSD methodology should be considered relevant or even analogous to EPA's Step 2 analysis in this action. Nonetheless, during the process of designating nonattainment areas, the evaluation of meteorological data helps to assess the fate and transport of emissions contributing to ozone concentrations and to identify areas potentially contributing to the monitored violations. During a designation review for a new NAAQS, the results of meteorological data analysis may inform the determination of nonattainment area boundaries. At the time of the 2015 ozone NAAQS designations, to determine how meteorological conditions, including, but not limited to, weather, transport patterns, and stagnation conditions, could affect the fate and transport of ozone and precursor emissions from sources in the area, EPA evaluated 2014-2016 HYSPLIT (Hybrid Single-Particle Lagrangian Integrated Trajectory) trajectories at 100, 500, and 1000 meters above ground level that illustrate the three-dimensional paths traveled by air parcels to a violating monitor. In EPA's 2015 ozone NAAQS designation TSD for Colorado, the Agency provided figures of the 24-hour HYSPLIT back trajectories for each exceedance day for the violating monitors in 2013-2015, while the State of Colorado focused on the four highest exceedance days in each of those three years in its own designation TSD. EPA concluded that even though EPA's total number of trajectories differ from those conducted by the State of Colorado, the geographic distribution of trajectory hours was the same between the two analyses. 39 EPA did not criticize Colorado's methodology per se in the designations TSD but simply identified a difference in approach while noting that it produced the same result. However, this was in the context of EPA's comparison of HYSPLIT back trajectory data for purposes of evaluating the designation of a nonattainment area, which is entirely separate from the use of photochemical grid modeling projections for purposes of assessing contribution at Step 2 of the 4-step interstate transport framework. Therefore, the Center's statement not only misinterprets the content and purpose of EPA's 2015 ozone NAAQS designation TSD for Colorado, but also mischaracterizes its significance to this action. 40

Comment: The Center claims that “EPA's failure to analyze Colorado's contribution to wintertime ozone levels is arbitrary and capricious” and therefore the Agency must disapprove the State's good neighbor SIP. The Center states that wintertime ozone is an issue in basins in the Western United States where oil and gas extraction occurs, not just in the Uinta Basin area. The Center asserts that EPA arbitrarily treated the Uinta Basin as unique. The Center points to the Upper Green River Basin area in Wyoming, which was designated as nonattainment for the 2008 ozone NAAQS due to wintertime ozone. 41

Additionally, the Center notes that some areas, though not designated as nonattainment for wintertime ozone, will have a difficult time coming into attainment without addressing wintertime ozone. The Center cites the Denver Metro/North Front Range (DMNFR) nonattainment area as an example and provides March 2021 monitor values at various Colorado monitors in support. The Center further states that the DMNFR monitor values cannot be explained by stratospheric intrusion or wildfire. While the Center notes that they do not expect EPA to analyze Colorado's “interstate” contribution to Colorado, the Center states that DMNFR values demonstrate that EPA is wrong to claim that the Uinta Basin's wintertime ozone problem is unique. The Center asserts that EPA must “do an analysis, using the same methodology as summertime ozone, for other Western areas with significant oil and gas production and winter weather to determine if Colorado is significantly contributing to them.” Additionally, the Center claims that “while EPA uses a 1% threshold for determining if there is significant contribution to summertime ozone, EPA appears to be using a 50% or more, that is upwind states would have to be the main cause, threshold for significant contribution for wintertime ozone.” The Center also insists that “EPA must do an analysis to determine which states contribute more than 1% to wintertime ozone in the Uinta Basin, the Denver Metro/North Front Range, and other areas with areas with wintertime ozone problems and then come up with emission reduction requirements for those upwind contributors.” Finally, the Center states that EPA previously redefined the ozone season for Colorado and many other Western States to be year-round and that the Agency “is acting like the ozone season for Colorado and other Western States is only the summertime but EPA cannot undo its previous rulemaking to create year round ozone seasons via the preamble to this proposed rule.”

Response: EPA agrees with the Center that the occurrence of high levels of ozone in the wintertime, in the presence of snow cover and emissions from oil and gas operations, is not limited to the Unita Basin. EPA used the word “unique” in two separate instances in the proposed rule and in the accompanying Uinta Basin Technical Support Document, 42 but did not mean to suggest that the Uinta Basin is unique in experiencing wintertime ozone events. Instead, in both the proposal and the Uinta Basin TSD, EPA referred to the Uinta Basin's unique topography. 43 Also, in the proposal, EPA referred to the unique analytical challenges in assessing whether there is interstate transport of ozone and its precursors from Colorado during wintertime episodes in Utah. 44

However, we do not agree that we did not conduct an analysis of the potential for transport of ozone under these circumstances. We performed a separate analysis for the Uinta Basin because, as explained in the Uinta Basin TSD, we acknowledged that the modeling we would otherwise use is not reliable for projecting high ozone levels associated with wintertime inversions in that area. Additionally, the Uinta Basin is the only wintertime ozone area that is currently designated as nonattainment or maintenance for the 2015 ozone NAAQS and is the only area with high wintertime ozone that is immediately adjacent to the Colorado border. As explained in the Uinta Basin TSD, high ozone levels during the winter in the Uinta Basin area are associated with stagnant meteorological conditions that result in the build-up of local ozone precursor emissions and snow cover which enhances the reflectivity of solar radiation which, in turn, accelerates photochemical reactions of the trapped precursors to form locally high ozone concentrations. Because of the stagnant conditions, transport of precursor emissions from outside the immediate area are likely to be minimal, at most. In any case, the Center has not provided any information to support its notion that Colorado significantly contributes to nonattainment or interferes with maintenance in the Uinta Basin, much less in other areas farther from Colorado experiencing high wintertime ozone levels.

The Center cites the Upper Green River Basin area as another area that periodically experiences wintertime ozone. EPA designated this area as nonattainment for the 2008 ozone NAAQS for wintertime ozone. 45 We are aware that one of the monitors in this nonattainment area is violating the 2015 ozone NAAQS according to the 2021 design value; however, as discussed below, we do not believe emissions from Colorado contribute to this design value. 46

The Upper Green River Basin is located in western Wyoming, about half-way between the southern and northern borders of the State. The southernmost border of the nonattainment area is at least 80 miles from the closest Colorado border. In EPA's technical support document that supported the Agency's designation for the Upper Green River Basin 2008 ozone NAAQS nonattainment area, we stated that “ozone exceedances almost always occur when winds are low indicating that there is little to no transport of ozone or precursors from distant sources outside the proposed nonattainment area.”  47 The Agency also indicated that the wind field trajectory analyses led to the conclusion that regional transport for the area is insignificant, and local-scale precursor emissions transport is the dominant means of precursor transport during high ozone periods. 48 Additionally, during a high fidelity trajectory analysis conducted by Wyoming in support of its recommendation for the southern boundary of the Upper Green River Basin nonattainment area, emissions from sources south of the nonattainment boundary were consistently transported east and out of the region without entering the area with violating monitors. 49 Furthermore, multiple research studies have found that wintertime ozone is a local phenomenon that is not affected by long range transport. 50 Based on this information, EPA finds that it is reasonable to conclude that Colorado does not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS (or the 2008 ozone NAAQS) in the Upper Green River Basin area. Additionally, as we stated previously, the Center has not provided any information to support their notion that Colorado significantly contributes to nonattainment or interferes with maintenance during wintertime ozone events in the Upper Green River Basin, or any other western area experiencing wintertime ozone events.

As the Center acknowledges, their comments about the DMNFR nonattainment area are not relevant to this rulemaking because the issue EPA is addressing under CAA section 110(a)(2)(D)(i)(I) is whether Colorado contributes significantly to nonattainment or interferes with maintenance in other states, not Colorado's own nonattainment and maintenance problems.

EPA disagrees with the Center's assertion that EPA should conduct the same analysis for wintertime ozone transport as the Agency does for summertime ozone transport. As EPA explained in our proposed approval and the Uinta Basin TSD, there are no reliable models that accurately predict wintertime ozone levels and contributions. 51 In addition, currently available emissions inventories are not sufficiently refined to accurately estimate emissions from oil and gas production during transient wintertime events. Therefore, in this action, EPA relied on other methods of analysis as opposed to computer-based modeling when reviewing wintertime ozone areas. 52

The Center is incorrect to claim that the Agency appears to be using 50 percent or more of the NAAQS as a threshold for significant contribution for wintertime ozone for the Uinta Basin. EPA has reviewed our proposal and the Uinta Basin TSD for this action and cannot find what the commenter is referencing, nor has commenter provided a citation. The Center seems to think EPA is using a higher contribution threshold for wintertime ozone than we do for a Step 2 analysis for summertime ozone. This is incorrect. For summertime ozone, EPA is able to use current state-of-the science photochemical modeling for Step 1 and Step 2 and this allows us to set and use a contribution threshold of 1 percent for the purpose of evaluating a state's contribution to nonattainment or maintenance of the 2015 8-hour ozone NAAQS ( i.e., 0.70 ppb) at downwind receptors. As explained previously, since our current photochemical modeling does not fully capture wintertime ozone events, we cannot rely on modeling to assess a state's contribution in wintertime ozone areas. However, knowing that the Uinta Basin has nonattainment monitors, EPA performed an extensive analysis, as documented in the Uinta Basin TSD for this action. The results of the in-depth analysis conducted in the Uinta Basin TSD support EPA's conclusion that interstate transport of air pollution from Colorado does not significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in the Utah portion of the Uinta Basin.

In regard to the Center's argument about year-round ozone, the Center does not provide a cite where EPA “redefined the ozone season” so we are unable to address that assertion specifically. With respect to the Center's statement that “EPA is acting like the ozone season for Colorado and other Western States is only the summertime,” EPA disagrees. By the Center's own admission, EPA designated the Upper Green River Basin area in Wyoming as nonattainment for the 2008 ozone NAAQS based on wintertime ozone. Additionally, in the Uinta Basin TSD for this very action, EPA provided an in-depth analysis on whether Colorado significantly contributed interstate transport air pollution to a 2015 ozone nonattainment area for wintertime ozone, the Uinta Basin. Thus, EPA acknowledges that ozone nonattainment can be a wintertime problem and thoroughly addressed whether emissions from Colorado significantly contribute to nonattainment or interfere with maintenance of the 2015 ozone NAAQS in those areas in the proposed rule, the Uinta Basin TSD for this action, and in this final action.

In summary, EPA disagrees with the Center's claims that EPA failed to properly analyze Colorado's contribution to wintertime ozone nonattainment and maintenance of the 2015 ozone NAAQS and that we must disapprove the State's good neighbor SIP provisions for the 2015 ozone NAAQS.

Comment: The Center challenges the emissions inventory on which EPA's 2023 modeling is based, asserting that EPA ignored increased emissions from the construction and operation of the Uinta Basin Railway in our emissions inventory platform and modeling. The Center notes that the U.S. Surface Transportation Board (STB) recently approved the construction and operation of the Uinta Basin Railway, “a planned 88-mile long railway that would transport crude oil from Myton and Leland Bench, Utah to Kyune, Utah.” According to the Center, by approving a cheaper means of transporting crude oil to the Gulf Coast than the trucking industry, the oil railway is intended to quadruple oil production in the Uinta Basin from roughly 90,000 barrels per day to 350,000 barrels per day. The Center indicates that in order to meet that increased oil demand, up to 3,330 new wells would need to be drilled in the Uinta Basin over the next 15 years, also increasing the number of trucking miles to support the oil fields. The Center also points to a Uinta Basin Railway final environmental impact statement (EIS) conducted by STB that estimates that after 15 years, and under a high oil production scenario, 53 the annual emissions associated with oil and gas development, including trucking, for carbon monoxide (CO), nitrogen oxides (NO X ), and volatile organic compounds (VOC) would be 4,454 tons per year (tpy), 3,146 tpy, and 5,558 tpy, respectively. The Center believes these emissions are underestimated. The Center further cites EIS estimates of annual emissions associated with rail operations along the 88-mile long rail line, excluding downline emissions in Utah and Colorado, for CO, NO X , and VOCs of 405 tpy, 1,056 tpy, and 40 tpy, respectively. The Center also includes a table of estimated downline emissions of criteria pollutants from the increase in trains traveling in Colorado per day, and states that NO X and VOC emissions along downline segments (excluding emissions in attainment areas) would total 5,771.05 tpy and 205.33 tpy, respectively, and CO emissions would total 2,076.41 tpy. The Center concludes that “EPA must revise its analysis to consider these increased emissions caused by the U.S. Government's final approval of the Uinta Basin Railway.” The Center states that the approval by the STB “is a final action by the federal government itself” and “EPA cannot justify ignoring it based on a claim that EPA does not consider future actions which are not final actions.”

Response: The STB, which provided the notice of approval as well as the EIS to which the Center refers to in their comment, is an independent federal agency that is charged with the economic regulation of various modes of transportation, primarily freight rail. The STB's Office of Environmental Assessment (OEA) prepared an EIS pursuant to the National Environmental Policy Act (NEPA). The NEPA process is intended to assist the STB and the public in identifying and assessing the potential environmental consequences of a proposed action before a decision on a proposed action. In a December 21, 2021 document the STB authorized construction and operation of the proposed rail line and, among three build alternatives, specifically authorized the Whitmore Park Alternative because it would avoid and minimize major environmental impacts. EPA is aware of the STB's EIS and final decision; in fact, as part of the comment process for the EIS, EPA filed comments on September 2, 2021, recommending certain changes to an air emissions dispersion model that the OEA ran as part of the environmental review process. 54

The Center's comments suggest that since the STB issued a final EIS and authorized the Railway construction and operation, then the emissions predicted in the EIS (and particularly the high oil production scenario) should be considered final as well and should have been incorporated into EPA's modeling for purposes of assessing Colorado's contribution to nonattainment and interference with maintenance for the 2015 ozone NAAQS in other states.

Our 2016v2 modeling of 2023 did not include projected increases in emissions from the Uinta Basin Railway project or from the associated projected increase in emissions of ozone precursor emissions from expanded oil and gas operations that are associated with the Uinta Basin Railway. However, we disagree with the Center that this potential increase in emissions would change our analysis for Colorado for several reasons.

First, any potential increase in emissions in Utah associated with the Railway is not relevant to assessing Colorado's good neighbor obligations. The Center does not explain how projected emissions increases due to the construction and operation of the Uinta Basin Railway as a whole are relevant to whether emissions from Colorado contribute significantly to nonattainment or interfere with maintenance for the 2015 ozone NAAQS in other states. The selected Whitmore Park Alternative extends approximately 88 miles from terminus points in the Uinta Basin from around Myton, Utah, and Leland Bench, Utah, to an existing rail line near Kyune, Utah. The EIS does not specify if the possible new well drilling and trucking could occur from wells outside the State of Utah as well as inside the State. However, the final EIS indicated that OEA assumed that future oil and gas development, including well drilling and operation along with construction and operation of related facilities, such as pipelines, would occur throughout the Uinta Basin in the fields shown in Figure 3.15-1 of the EIS. 55 None of these fields within the cumulative impacts analysis study area—which extends approximately 18 miles into the Yampa Intrastate Air Quality Control Region in Colorado—are located within Colorado. 56

We also note that in the EIS, OEA identified 27 reasonably foreseeable future actions within the area of the cumulative impacts study that could have cumulative impacts in addition to estimated additional exploration and drilling of oil wells. We again note that none of these activities were estimated to take place within Colorado. 57

Therefore, while we do not know for certain where or in which state drilling would occur, estimations indicate that most, if not all, of the expanded production and exploration (and its associated foreseeable future actions) would occur within Utah. It is not possible to determine with much certainty what emissions may be released in Colorado based on the information supplied by the Center or in the EIS, or when, or in what quantity these emissions would occur.

Further, the STB approval for construction and operation of the Railway does not in itself equate to approval of any new oil and gas development or drilling in the small portion of the Uinta Basin area located in Colorado. We do not know how many of the high oil production scenario's estimated 3,330 wells will be drilled and operating and by what year ( e.g., the total amount of wells is not expected until after 15 years), nor do we know what controls or limits they will be operating under. We also do not know if wells in the Uinta Basin will be operating at the high oil production scenario (3,330 wells), the low oil production scenario (1,245 wells), or some other production level. Thus, the emissions associated with increased well development because of the Uinta Basin Railway—to the extent any such development may occur in the small portion of the Uinta Basin that is located in Colorado—are too speculative to assume they would impact our analysis of potential ozone transport from Colorado.

The Center points to the downline segment analysis of railroad emissions that extended to Denver, Colorado. 58 The EIS states that the total NO X and VOC emissions at any particular downline location/segment will vary depending on total train traffic, local background concentrations, and local topographic and meteorological conditions. 59 Further, the EIS states “that increases in concentrations measured at air quality monitoring sites, if any, are expected to be negligible” and that “[t]he increased downline rail traffic associated with the proposed rail line would not lead to a violation of the NAAQS for counties that are in attainment, and would not increase the severity of conditions in counties that are not in attainment.”  60 Nonetheless, assuming there may be some increase in railroad emissions in Colorado associated with the Uinta Basin Railway project, these emissions increases are too small when viewed in comparison with the total amount of ozone-precursor emissions from Colorado to reasonably be expected to alter the results of our modeling at Step 1 and Step 2. Even an increase in NO X emissions of 5,771.06 tpy and in VOC emissions of 205.33 tpy would be a very small change in the total statewide emissions of these pollutants from Colorado, which are projected in 2023 to be 145,621 tpy NO X and 555,631 tpy VOC. 61 Considering that our current 2023 modeling indicates that the largest impact Colorado makes at any downwind receptor is only 0.20 ppb in 2023 (Denton County, Texas, Site ID 481210034), this very small change in statewide emissions cannot reasonably be anticipated to change our modeling results. 62 63

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:

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-2020-0336 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 December 12, 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-2020-0336, 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 September 30, 2020 (85 FR 61681) (FRL-10014-74) 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 0E8833) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested that 40 CFR 180.544 be amended by establishing tolerances for residues of the insecticide, methoxyfenozide, including its metabolites and degradates. Compliance with the tolerance levels is to be determined by measuring only methoxyfenozide (3-methoxy-2-methylbenzoic acid 2-(3,5-dimethylbenzoyl)-2-(1,1-dimethylethyl) hydrazide) in or on multiple commodities that are listed out in the petition and in the regulatory text. That document referenced a summary of the petition submitted by IR-4, the petitioner, which is available in the docket, https://www.regulations.gov. A comment was received in response to the notice of filing; however, it was unrelated to methoxyfenozide specifically or to pesticides in general.

Based upon review of the data supporting the petition, EPA is establishing some tolerances at different levels than petitioned for and many of the commodity definitions have been modified as well. A discussion of these modifications can be found in section IV.C.

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 methoxyfenozide, including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with methoxyfenozide 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 rulemaking of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemaking, 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 a tolerance rulemaking for methoxyfenozide in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to methoxyfenozide and established tolerances for residues of that chemical. EPA is incorporating previously published sections from that rulemaking as described further in this rulemaking, as they remain unchanged.

Toxicological profile. For a discussion of the Toxicological Profile of methoxyfenozide, see Unit III.A. of the methoxyfenozide tolerance rulemaking published in the Federal Register of March 12, 2019 (84 FR 8820) (FRL-9985-06).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern for methoxyfenozide used for human risk assessment, please reference Unit III.B. of the March 12, 2019, rulemaking.

Exposure assessment. The exposure assessment has been updated to include the new regional use on rice and the crop group expansions and conversions but uses the same previous assumptions of tolerance level residues and 100 percent crop treated (PCT). For a description of the previous approach to and assumptions for the exposure assessment, please reference Unit III.C. of the March 12, 2019, rulemaking.

Drinking water exposure. EPA has revised the methoxyfenozide drinking water assessment since the March 12, 2019, rulemaking to reflect the new regional use on rice. Based on the Tier 1 Rice Model, the new estimated drinking water concentration for the chronic dietary assessment is 232 ppb.

Non-occupational exposure. Lastly, the residential assessment has also been updated to reflect current Agency policy. In the March 12, 2019, rulemaking, a residential assessment was conducted. However, the Agency now assumes that when labels require specific clothing and/or personal protective equipment (PPE) such products are not for residential use. The methoxyfenozide label requires specific clothing and/or PPE; therefore, the Agency has made the assumption that the registered methoxyfenozide labels are not intended for use by residential handlers and a quantitative residential handler assessment has not been conducted. The approach to assessing post-application exposure is the same as described in Unit III.C.3 of the March 12, 2019, rulemaking.

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.” In 2016, EPA's Office of Pesticide Programs released a guidance document entitled Pesticide Cumulative Risk Assessment: Framework for Screening Analysis ( https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/pesticide-cumulative-risk-assessment-framework ). This document provides guidance on how to screen groups of pesticides for cumulative evaluation using a two-step approach beginning with the evaluation of available toxicological information and if necessary, followed by a risk-based screening approach. This framework supplements the existing guidance documents for establishing common mechanism groups (CMGs) and conducting cumulative risk assessments (CRA).

The Agency used this framework for methoxyfenozide and determined that the diazylhydrazine class of insecticides (methoxyfenozide, halofenozide and tebufenozide) form a candidate CMG. This group of pesticides is considered a candidate CMG because there is sufficient toxicological data to suggest a common mechanism of toxicity. Following this determination, the Agency conducted a screening-level cumulative risk assessment consistent with the 2016 guidance document. This assessment included only methoxyfenozide and tebufenozide since there are no registered uses for halofenozide. The Agency has updated the cumulative dietary and residential aggregate exposure estimates for methoxyfenozide and tebufenozide to take into account the new regional use on rice and crop group expansions and conversions for methoxyfenozide. The updated assessment indicates that cumulative dietary and aggregate exposures for methoxyfenozide and tebufenozide are not of concern. For more information see Appendix F of the document titled “Methoxyfenozide. Human Health Risk Assessment for the Petition to Establish Permanent Tolerances, and Associated Section 3 Registration, for Residues Resulting from Use of the Insecticide on Rice, and Crop Group Conversions and Expansions” in docket ID number EPA-HQ-OPP-2020-0336.

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 March 12, 2019, 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 risk assessment was not needed for methoxyfenozide since no toxic effects attributable to a single dose were identified in the toxicity database. Chronic dietary risks are below the Agency's level of concern of 100% of the cPAD; they are 80% of the cPAD for children 1 to 2 years old, the group with the highest exposure. There are currently no residential handler uses for methoxyfenozide, and none are pending before the Agency. Therefore short- and intermediate-term exposure to methoxyfenozide is not expected and the short- and intermediate-term risk is equivalent to the chronic dietary risk, which is not of concern. Methoxyfenozide is classified as “Not Likely to Be Carcinogenic to Humans”; therefore, EPA does not expect methoxyfenozide exposures to pose an aggregate cancer risk.

Determination of safety. 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 methoxyfenozide residues. More detailed information on this action can be found in the document titled “Methoxyfenozide. Human Health Risk Assessment for the Petition to Establish Permanent Tolerances, and Associated Section 3 Registration, for Residues Resulting from Use of the Insecticide on Rice, and Crop Group Conversions and Expansions” in docket ID EPA-HQ-OPP-2020-0336.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the March 12, 2019, 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 tolerance for Cottonseed subgroup 20C is set at 7 ppm to harmonize with the Codex MRL. In addition, although EPA has not yet implemented the new subgroups to replace the established subgroups 6A, 6B, and 6C, the tolerances for each of the individual commodities that will fall under the future subgroups 6-22A, 6-22B, 6-22C, 6-22D, 6-22E, and 6-22F, are harmonized with Codex, except for “pea, black-eyed, seed” and “pea, southern, seed,” which have existing, higher MRLs that are not being modified. Tolerances for commodities that will be in future subgroups 6-22A and 6-22B are set at 2 ppm, and those in future subgroups 6-22C and 6-22D are set at 0.3 ppm to harmonize with Codex. The Agency is not harmonizing with Codex by setting higher tolerances for Field pea (Codex-5 ppm) and Cowpea (Codex-3 ppm) as the increase would be too great and is not supported by previously submitted data.

There are additional commodities covered by this rule that are not harmonized with Codex. The explanation for the deviations can be found in Appendix E of the document titled “Methoxyfenozide. Human Health Risk Assessment for the Petition to Establish Permanent Tolerances, and Associated Section 3 Registration, for Residues Resulting from Use of the Insecticide on Rice, and Crop Group Conversions and Expansions” in docket ID number EPA-HQ-OPP-2020-0336.

FFDCA section 408(d)(4)(A)(i) permits the Agency to finalize a tolerance that varies from that sought by the petition. The proposed tolerance on Rice, straw is not being established because the Agency no longer considers it a significant livestock feed item. EPA is establishing some tolerances at different levels than petitioned-for to be consistent with Organization for Economic Co-operation and Development (OECD) rounding practice. EPA is not establishing a tolerance for edible podded pea, edible podded because it is not a distinct commodity requiring a tolerance.

Many of the proposed commodity definitions have been revised to be consistent with Agency nomenclature.

Therefore, tolerances are established for residues of methoxyfenozide in or on Bean, adzuki, dry seed at 0.5 ppm; Bean, American potato, dry seed at 0.5 ppm; Bean, asparagus, edible podded at 2 ppm; Bean, asparagus, dry seed at 0.5 ppm; Bean, black, dry seed at 0.5 ppm; Bean, broad, dry seed at 0.5 ppm; Bean, broad, succulent shelled at 0.3 ppm; Bean, catjang, edible podded at 2 ppm; Bean, catjang, dry seed at 0.5 ppm; Bean, catjang, succulent shelled at 0.3 ppm; Bean, cranberry, dry seed at 0.5 ppm; Bean, dry, dry seed at 0.5 ppm; Bean, field, dry seed at 0.5 ppm; Bean, French, dry seed 0.5 ppm; Bean, French, edible podded at 2 p.m.; Bean, garden, dry seed at 0.5 ppm; Bean, garden, edible podded at 2 ppm; Bean, goa, dry seed at 0.5 ppm; Bean, goa, edible podded at 2 ppm; Bean, goa, succulent shelled at 0.3 ppm; Bean, great northern, dry seed at 0.5 ppm; Bean, green, dry seed at 0.5 ppm; Bean, green, edible podded at 2 ppm; Bean, guar, dry seed at 0.5 ppm; Bean, guar, edible podded at 2 ppm; Bean, kidney, dry seed at 0.5 ppm; Bean, kidney, edible podded at 2 ppm; Bean, lablab, dry seed at 0.5 ppm; Bean, lablab, edible podded at 2 ppm; Bean, lablab, succulent shelled at 0.3 ppm; Bean, lima, dry seed at 0.5 ppm; Bean, lima, succulent shelled at 0.3 ppm; Bean, morama, dry seed at 0.5 ppm; Bean, moth, dry seed at 0.5 ppm; Bean, moth, edible podded at 2 ppm; Bean, moth, succulent shelled at 0.3 ppm; Bean, mung, dry seed at 0.5 ppm; Bean, mung, edible podded at 2 ppm; Bean, navy, dry seed 0.5 ppm; Bean, navy, edible podded at 2 ppm; Bean, pink, dry seed at 0.5 ppm; Bean, pinto, dry seed at 0.5 ppm; Bean, red, dry seed at 0.5 ppm; Bean, rice, dry seed at 0.5 ppm; Bean, rice, edible podded at 2 ppm; Bean, scarlet runner, dry seed at 0.5 ppm; Bean, scarlet runner, edible podded at 2 ppm; Bean, scarlet runner, succulent shelled at 0.3 ppm; Bean, snap, edible podded at 2 ppm; Bean, sword, dry seed at 0.5 ppm; Bean, sword, edible podded at 2 ppm; Bean, tepary, dry seed at 0.5 ppm; Bean, urd, dry seed at 0.5 ppm; Bean, urd, edible podded at 2 ppm; Bean, wax, edible podded at 2 ppm; Bean, wax, succulent shelled at 0.3 ppm; Bean, yardlong, dry seed at 0.5 ppm; Bean, yardlong, edible podded at 2 ppm; Bean, yellow, dry seed at 0.5 ppm; Celtuce at 25 ppm; Chickpea, dry seed at 0.5 ppm; Chickpea, edible podded at 2 ppm; Chickpea, succulent shelled at 0.3 ppm; Cottonseed subgroup 20C at 7 ppm; Cowpea, dry seed at 0.5 ppm; Cowpea, edible podded at 2 ppm; Cowpea, succulent shelled at 0.3 ppm; Fennel, Florence, fresh leaves and stalk at 25 ppm; Gram, horse, dry seed at 0.5 ppm; Grass pea, dry seed at 0.5 ppm; Grass pea, edible podded at 2 ppm; Jackbean, dry seed at 0.5 ppm; Jackbean, edible podded at 2 ppm; Jackbean, succulent shelled at 0.3 ppm; Kohlrabi at 7 ppm; Leaf petiole vegetable subgroup 22B at 25 ppm; Lentil, dry seed at 0.5 ppm; Lentil, edible podded at 2 ppm; Lentil, succulent shelled at 0.3 ppm; Longbean, Chinese, dry seed at 0.5 ppm; Longbean, Chinese, edible podded at 2 ppm; Lupin, Andean, dry seed at 0.5 ppm; Lupin, Andean, succulent shelled at 0.3 ppm; Lupin, blue, dry seed at 0.5 ppm; Lupin, blue, succulent shelled at 0.3 ppm; Lupin, grain, dry seed at 0.5 ppm; Lupin, grain, succulent shelled at 0.3 ppm; Lupin, sweet white, dry seed at 0.5 ppm; Lupin, sweet white, succulent shelled at 0.3 ppm; Lupin, sweet, dry seed at 0.5 ppm; Lupin, sweet, succulent shelled at 0.3 ppm; Lupin, white, dry seed at 0.5 ppm; Lupin, white, succulent shelled at 0.3 ppm; Lupin, yellow, dry seed at 0.5 ppm; Lupin, yellow, succulent shelled at 0.3 ppm; Pea, blackeyed, succulent shelled at 0.3 ppm; Pea, crowder, dry seed at 0.5 ppm; Pea, crowder, succulent shelled at 0.3 ppm; Pea, dry, dry seed at 0.5 ppm; Pea, dwarf, edible podded at 2 ppm; Pea, English, succulent shelled at 0.3 ppm; Pea, field, dry seed at 0.5 ppm; Pea, garden, dry seed at 0.5 ppm; Pea, garden, succulent shelled at 0.3 ppm; Pea, green, dry seed at 0.5 ppm; Pea, green, edible podded at 2 ppm; Pea, green, succulent shelled at 0.3 ppm; Pea, pigeon, dry seed at 0.5 ppm; Pea, pigeon, edible podded at 2 ppm; Pea, pigeon, succulent shelled at 0.3 ppm; Pea, snap, edible podded at 2 ppm; Pea, snow, edible podded at 2 ppm; Pea, southern, succulent shelled at 0.3 ppm; Pea, sugar snap, edible podded at 2 ppm; Pea, winged, dry seed at 0.5 ppm; Pea, winged, edible podded at 2 ppm; Soybean, vegetable, dry seed at 0.5 ppm; Soybean, vegetable, edible podded at 2 ppm; Soybean, vegetable, succulent shelled at 0.3 ppm; Tropical and subtropical, palm fruit, edible peel, subgroup 23C at 8 ppm; Tropical and subtropical, small fruit, inedible peel, subgroup 24A at 2 ppm; Vegetable, brassica, head and stem, group 5-16 at 7 ppm; Vegetable, leafy, group 4-16 at 30 ppm; Velvetbean, dry seed at 0.5 ppm; Velvetbean, edible podded at 2 ppm; Velvetbean, succulent shelled at 0.3 ppm; and Yam bean, African, dry seed at 0.5 ppm.

Also, tolerances for regional registration are established for Rice, grain at 30 ppm; and Rice, hulls at 55 ppm.

The following tolerances are removed as unnecessary due to the establishment of the above tolerances: Brassica, head and stem, subgroup 5A; Brassica, leafy greens, subgroup 5B; Cotton, undelinted seed; Date; Leaf petioles subgroup 4B; Leafy greens subgroup 4A; Longan; Lychee; Pea and bean, dried shelled, except soybean, subgroup 6C, except pea, blackeyed, seed and pea, southern, seed; Pea and bean, succulent shelled, subgroup 6B; Spanish lime; Turnip greens; and Vegetable, legume, edible podded, subgroup 6A. In addition, the Section 18 emergency exemption time-limited tolerances for Rice, bran and Rice, grain are removed as unnecessary due to the establishment of the tolerances for regional registration.

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: