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 GEnx-1B54/P2, GEnx-1B58/P2, GEnx-1B64/P2, GEnx-1B67/P2, GEnx-1B70/P2, GEnx-1B70C/P2, GEnx-1B70/72/P2, GEnx-1B70/75/P2, GEnx-1B74/75/P2, GEnx-1B75/P2, GEnx-1B76/P2, GEnx-1B76A/P2, and GEnx-1B78/P2 (GEnx-1B) and GEnx-2B67, GEnx-2B67B, and GEnx-2B67/P (GEnx-2B) model turbofan engines. The NPRM published in the Federal Register on June 1, 2022 (87 FR 33071). The NPRM was prompted by the engine manufacturer notifying the FAA of the detection of melt-related freckles in the forgings and billets, which may reduce the life of certain CDP seals, interstage seals, HPT rotor stage 2 disks, and stages 6-10 compressor rotor spools (life-limited parts (LLPs)). The manufacturer's investigation determined that, as a result of such freckles forming in the forgings and billets, certain LLPs may have undetected subsurface anomalies that developed during the manufacturing process, resulting in reduced material properties and a lower fatigue life capability. Reduced material properties may cause premature LLP fracture, which could result in uncontained debris release. As a result of its investigation, the manufacturer determined the need to reduce the life limits of certain LLPs. To reflect these reduced life limits, the manufacturer revised the ALS of the affected GEnx-1B and GEnx-2B EMs. In the NPRM, the FAA proposed to require operators to update the ALS of the applicable GEnx-1B and GEnx-2B EM and the operator's existing approved maintenance program or inspection program, as applicable, to incorporate reduced life limits for certain LLPs. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from seven commenters. The commenters were Air China, Air Line Pilots Association, International (ALPA), American Airlines (AAL), GE, The Boeing Company (Boeing), TUI Airways, and United Airlines Powerplant Engineering (United Airlines). ALPA, Boeing, and United Airlines supported the proposed AD without change. AAL supported the proposed AD, with one comment relating to the service information. Three commenters, Air China, GE, and TUI Airways, requested changes to the proposed AD. The following presents the comments received on the NPRM and the FAA's response to each comment.

AAL and GE noted that the preamble of the NPRM refers to service information that has been superseded. GE published GE GEnx-1B Service Bulletin (SB) 72-0484 R01, dated March 17, 2022 (GE GEnx-1B SB 72-0484 R01), and GE GEnx-2B SB 72-0423 R01, dated March 17, 2022 (GE GEnx-2B SB 72-0423 R01). The revisions contain corrections to serial number errors published in the original service information. GE requested that the FAA update the service information to reflect the current revisions to avoid confusion among the operators.

The FAA agrees and updated the Related Service Information paragraph in the preamble of this final rule to reference GE GEnx-1B SB 72-0484 R01 and GE GEnx-2B SB 72-0423 R01. This change places no additional burden on operators who are required to comply with this AD.

Air China noted that there is a revision to the service information in tables 5 through 8 to paragraph (g)(2) of the proposed AD. The commenter requested that the FAA modify the service information in the tables from “GEnx-2B SB 72-0423, latest revision” to “GEnx-2B SB 72-0423 R01 revision.”

The FAA disagrees. Paragraph (g)(2) of this AD requires the operator to revise the ALS of the applicable GEnx-2B EM and the operator's existing approved maintenance program or inspection program, as applicable, by inserting the information in the tables to paragraph (g)(2) into the applicable table for their respective part numbers. The description of the service information in the tables to paragraph (g) of this AD is consistent with the description of the service information in the applicable tables in the ALS. The FAA did not change this AD as a result of this comment.

GE requested that the FAA clarify the wording in the proposed AD regarding parts not affected or listed in GE GEnx-1B SB 72-0484 R01 and GE GEnx-2B SB 72-0423 R01. The commenter noted that the proposed AD includes updating the ALS language for parts not affected by the population listed in GE GEnx-1B SB 72-0484 and GE GEnx-2B SB 72-0423. GE requested that the FAA modify the tables to paragraph (g) of this AD to remove the life cycles for part serial numbers not listed in GE GEnx-1B SB 72-0484 and GE GEnx-2B SB 72-0423. If such modifications cannot be done, GE requested that the FAA add language to clarify that future LLP life extensions on part serial numbers not listed in the SB populations would not require an alternative method of compliance (AMOC).

The FAA agrees with the modification. The FAA revised the tables to paragraph (g) of this AD to remove the entries for life cycles for part serial numbers not listed in the service information. This change places no additional burden on operators who are required to comply with this AD.

Air China commented that paragraph (g)(2) of the proposed AD states to “revise the ALS of the existing GEnx-2B EM.” The commenter stated that the responsibility for revising the EM belongs to the manufacturer, not the operator.

The FAA disagrees. While the manufacturer does revise the engine manuals, this AD requires the operator to revise the ALS of the existing GEnx-2B EM and the operator's existing approved maintenance program or inspection program, as applicable. This includes revising the operator's copies of the EM to incorporate the reduced life limits for certain LLPs. The FAA did not change this AD as a result of this comment.

Air China stated that it performed certain required actions proposed in paragraph (g)(2) of the NPRM using GE GEnx-2B SB 72-0423 before the NPRM was issued:

1. For the affected LLPs that had already been installed on GEnx-2B67/P engines of Air China, Air China listed the LLPs' time limits in the continuous airworthiness maintenance program.

2. For the affected LLPs that were not installed on GEnx-2B67/P engines of Air China, Air China issued engineering order documents that prohibit the installation of affected LLPs on the Air China GEnx-2B67/P fleet.

Air China asked if the FAA would consider these actions as being in compliance with the proposed requirements in paragraph (g)(2) of the proposed AD.

In response to this comment, the FAA notes that paragraph (g)(2) of this AD requires the operator to revise the ALS of the existing GEnx-1B EM and the operator's existing approved maintenance program or inspection program, as applicable, by inserting the information in the tables to paragraph (g)(2) into the applicable table for their respective part numbers. This AD requires revising the life limits with the entirety of the information provided in the tables to paragraph (g)(2) of this AD, regardless of the installation of affected parts. Additionally, this AD does not contain an installation prohibition.

TUI Airways requested that the FAA add an allowance for pro-rated life calculations to this AD. TUI Airways noted that paragraph (g)(3) of the proposed AD states, “After performing the actions required by paragraphs (g)(1) and (2) of this AD, except as provided in paragraph (h) of this AD, no alternative life limits may be approved for the affected parts.” TUI Airways suggested that this statement does not consider parts that have or could operate at different engine ratings or are common to two or more engine models. The commenter reasoned that a part common to multiple engine ratings or models could have different life cycle limits depending on the engine application, and therefore, a pro-rated calculation (per GE EM 05-11-00) could be made to determine the remaining cycles of the given part.

The FAA does not agree. The intent of this AD is to revise the ALS of the existing GEnx-1B and GEnx-2B EMs and the operator's existing approved maintenance or inspection program with the updated life limits provided in paragraph (g) of this AD. This AD does not prohibit pro-rated life limit calculations, but the FAA cautions that such calculations performed prior to the effective date of this AD may need to be re-evaluated using the new life limits provided in paragraph (g) of this AD. The FAA did not change this AD as a result of this comment.

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

The FAA reviewed GE GEnx-1B SB 72-0484 R01, dated March 17, 2022, and GE GEnx-2B SB 72-0423 R01, dated March 17, 2022. These SBs, differentiated by engine model, provide the reduced life limits for certain LLPs.

The FAA estimates that this AD affects 390 engines installed on airplanes of U.S. registry.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain serial-numbered Bell Textron Inc. Model 204B, 205A, and 205A-1 helicopters, and all restricted category Model HH-1K, SW205A-1, TH-1F, TH-1L, UH-1A, UH-1B, UH-1E, UH-1F, UH-1H, UH-1L, and UH-1P helicopters, with MRB part number (P/N) 204-011-250-001, -005, -009, -113, or -117 installed.

The NPRM published in the Federal Register on June 29, 2022 (87 FR 38686). The NPRM was prompted by reports of chordwise cracks in MRB P/N 204-011-250-113. The cracks originated from the extreme trailing edge between blade station 190 and 210; this area is currently not inspected during routine maintenance. In the NPRM, the FAA proposed to require cleaning certain areas of the upper and lower skin surfaces of each MRB with a cheesecloth. If the cheesecloth is snagged or frayed while cleaning an MRB, removing paint from the area that caused the snagging and then either visually or eddy current inspecting the area for a crack would be required. The NPRM also proposed to require wiping each MRB with isopropyl alcohol and immediately after the blade dries, inspecting the area for a dark line, which is an indication that excess alcohol is bleeding out of a crack or edge void. If there is a dark line, removing paint from the area where there is a dark line and inspecting for a crack in the skin would be required. Finally, the NPRM proposed to require removing any cracked MRB from service. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received comments from one commenter, Salmon River Helicopters (SRH). SRH commented about allowing a pilot to accomplish the daily (before first flight of each day) inspection. The following presents the comment received on the NPRM and the FAA's response.

SRH asked whether a pilot may accomplish the daily (before the first flight of each day) inspection. SRH stated that it has never had an issue with blade cracking between blade stations 190 and 210, and is unaware of reported accidents due to blade cracking within those stations. SRH further stated that many operators, like SRH, do not staff a mechanic every day of flight and it would be a significant disadvantage to do so.

The FAA partially agrees. The FAA agrees to allow the owner/operator (pilot) to accomplish the actions required by paragraph (g)(1)(i) of this AD because it only involves cleaning with a cheesecloth and visually checking for unsmooth areas and surfaces that snag the cheesecloth or cause it to fray. These actions could be performed equally well by a pilot or a mechanic, and is an exception to the FAA's standard maintenance regulations. The FAA disagrees with a pilot accomplishing the remaining required actions because those actions must be accomplished by a mechanic that meets the requirements of 14 CFR part 65 subpart D.

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

The FAA reviewed the following Bell Alert Service Bulletins (ASBs), each Revision A and dated October 12, 2018, and for helicopters with MRB P/N 204-011-250-001, -005, -009, -113, or -117:

• Bell ASB 204-96-49 for Model 204B helicopters, serial numbers (S/N) 2001 through 2070 and 2196 through 2199 and

• Bell ASB 205-96-67 for Model 205A and 205A-1 helicopters, S/N 30001 through 30332.

The FAA also reviewed Bell ASB UH-1H-18-20, dated October 23, 2018, for all Model UH-IH helicopters with MRB P/N 204-011-250-113 installed.

These service bulletins specify procedures for daily wipe down inspections and 25-hour inspections of the MRBs for cracks.

The FAA estimates that this AD affects 682 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.

Each MRB inspection takes about .5 work-hour and parts cost $50 for an estimated cost of $93 per helicopter and $63,426 for the U.S. fleet, per inspection cycle.

Replacing an MRB, if required, takes about 10 work-hours and parts cost about $157,815 per blade for an estimated cost of $158,665 per MRB replacement.

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

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

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

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

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

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

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

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

Table of Contents I. Executive Summary II. Authority for This Rulemaking III. Background A. Flight Attendant Requirements B. Advance Notice of Proposed Rulemaking (ANPRM) C. Notice of Proposed Rulemaking (NPRM) IV. Discussion of Public Comments and the Final Rule A. General Support for the Proposal B. General Opposition to the Proposal C. Implementation Period for the Final Rule D. Duty and Rest Period Requirements E. Costs and Benefits F. Out of Scope V. Regulatory Notices and Analyses A. Regulatory Impact Analysis B. Regulatory Flexibility Act C. International Trade Impact Assessment D. Unfunded Mandates Reform Act of 1995 E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis VI. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13175, Consultation and Coordination With Indian Tribal Governments C. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use D. Executive Order 13609, Promoting International Regulatory Cooperation and International Trade Analysis VII. Additional Information A. Electronic Access and Filing B. Small Business Regulatory Enforcement Fairness Act I. Executive Summary

This final rule addresses the requirement of section 335(a) of the FAA Reauthorization Act of 2018 (Pub. L. 115-254, 132 Stat. 3186 (Oct. 5, 2018) (the FAARA 2018), codified at 49 U.S.C. 44701 note. Section 335(a) requires the FAA to conduct rulemaking to increase the minimum rest period to 10 hours for flight attendants in domestic, flag, and supplemental operations who are scheduled for a duty period  1 of 14 hours or less; and to prohibit the reduction of the rest period under any circumstances. The FAA's existing regulations require only a nine-hour rest period  2 for these flight attendants, which can be reduced to eight hours in certain circumstances. Consistent with the requirement of section 335(a) of the FAARA 2018, the FAA amends § 121.467(b)(2) and (b)(3) to require 10 hours of consecutive rest, remove the existing allowance for a reduction in rest time, and prohibit reduction of the 10 hours of consecutive rest time under any circumstances.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (U.S.C.). Subtitle I, Section 106 describes the authority of the FAA Administrator. Section 106(f) vests final authority in the Administrator for carrying out all functions, powers, and duties of the administration relating to the promulgation of regulations and rules.

Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. Section 44701(a)(4) requires the Administrator to promulgate regulations in the interest of safety for the “maximum hours or periods of service of airmen and other employees of air carriers.” Section 44701(a)(5) requires the Administrator to promulgate “regulations and minimum standards for other practices, methods, and procedure that the Administrator finds necessary for safety in air commerce and national security.” In addition, 49 U.S.C. 44701(d)(1)(A) specifically states that the Administrator, when prescribing safety regulations, must consider the duty of an air carrier to provide service with the highest possible degree of safety in the public interest. Such authority applies to the oversight the FAA exercises to ensure safety of air carrier operations, including crewmember flight, duty, and rest requirements.

Section 335(a) of the FAARA 2018 requires the FAA to amend the flight attendant duty period limitations and rest regulation to increase to 10 hours the minimum rest period for flight attendants in domestic, flag, and supplemental operations who are scheduled for a duty period of 14 hours or less. Section 335(a) also prohibits reduction of the rest period for those flight attendants under any circumstances.

Currently, certificate holders conducting domestic, flag, and supplemental operations are required to give flight attendants scheduled to a duty period of 14 hours or less a scheduled rest period of at least nine consecutive hours. 3 This rest period is required to occur between the completion of the scheduled duty period and the commencement of the subsequent duty period. 4 Under these regulations, the certificate holder is able to schedule or reduce the rest period to eight consecutive hours if the certificate holder provides a subsequent rest period of at least 10 consecutive hours that is scheduled to begin no later than 24 hours after the beginning of the reduced rest period. 5

Section 335(a) of the FAARA 2018 requires “[modification of] the final rule” relating to flight attendant duty period limitations and rest requirements to “ensure that—(A) a flight attendant scheduled to a duty period of 14 hours or less is given a scheduled rest period of at least 10 consecutive hours; and (B) the rest period is not reduced under any circumstances.” Consistent with the requirement of section 335(a) of the FAARA 2018, the FAA is amending § 121.467(b)(2) and (b)(3) to require certificate holders operating under part 121 to provide at least 10 hours of consecutive rest for flight attendants scheduled to a duty period of 14 hours or less, remove the allowance for a reduction in rest, and explicitly prohibit a reduction in the 10 hours of rest. For the reasons described in the FAA's response to NPRM comments on implementation, the final rule is effective November 14, 2022 and certificate holders are required to comply with the final rule on January 10, 2023.

Section 121.467(a) of 14 CFR defines a flight attendant serving in part 121 operations as an individual, other than a flightcrew member, 6 who is assigned by a certificate holder to duty in an aircraft during flight time and whose duties include activities related to ensuring cabin safety. 7 Section 121.391 specifies the minimum number of flight attendants required on board a flight, based on maximum payload capacity and seating capacity, for certificate holders conducting passenger-carrying operations under part 121. 8

Any person serving as a flight attendant in part 121 operations must complete the training and qualification requirements of part 121 subparts N and O. 9 The training and qualification requirements for flight attendants include specific programmed hours, 10 as well as airplane type specific knowledge and skill requirements.

Flight attendants are responsible for taking action during emergencies, including administering first aid, conducting aircraft evacuations, responding to inflight fires, managing medical emergencies, and handling passengers who threaten the safety of other passengers or might be unruly or disruptive. They must also be prepared to respond to situations that could threaten the safety of the passengers and the flight, including turbulent air, airplane decompression, and hijackings. Flight attendants must know the location of emergency exits, fire extinguishers, first aid kits, flotation devices, oxygen masks, and emergency slides, and check emergency equipment before flight. Additionally, they must assess and verify the suitability of passengers that occupy exit seating, brief passengers on safety equipment and evacuation and emergency landing procedures, and ensure compliance with applicable safety and security regulations. 11

On September 25, 2019, the FAA published an advance notice of proposed rulemaking (ANPRM), Flight Attendant Duty Period Limitations and Rest Requirements . 12 The FAA determined that soliciting public input on the regulatory impact of the changes to flight attendant duty and rest requirements codified in section 335(a) of the FAARA 2018 was appropriate. The FAA also intended for the ANPRM to provide additional avenues for public participation and to inform the FAA's analysis and future development of the rule.

The FAA received 216 comments on the ANPRM. Commenters included various trade groups, labor unions, and airlines, as well as numerous individuals. The commenters raised three principal issues: increased rest period, costs, and implementation. Two commenters provided information indicating the increased rest period would increase costs to certificate holders. Several trade groups, labor unions, and many individuals supported the increased rest period, emphasizing the roles and responsibilities of flight attendants with regard to aviation safety and commenting that flight attendants' duties are fatigue-inducing and that flight attendants would benefit from increased rest. These commenters also stated that the increased rest would not always result in increased costs.

On November 2, 2021, the FAA published a notice of proposed rulemaking (NPRM), Flight Attendant Duty Period Limitations and Rest Requirements . 13 The FAA utilized public comments on the ANPRM to inform the FAA's analysis for the NPRM. The FAA solicited public comments on the NPRM for a period of 60 days.

The FAA received 812 comments to the proposed rule; of those 812 comments, 291 were submitted as part of a Transport Workers Union of America (TWU) form letter campaign. Two comments were received and accepted after the comment period closed.

Commenters included Airlines for America (A4A), Association of Flight Attendants-CWA (AFA-CWA), Association of Professional Flight Attendants (APFA), International Association of Machinists and Aerospace Workers (IAM), International Brotherhood of Teamsters (IBT), American Federation of Labor & Congress of Industrial Organizations (AFL-CIO), American Academy of Sleep Medicine (AASM), Regional Airline Association (RAA), and United Airlines, as well as numerous individuals. The commenters raised three overarching issues: implementation, rest period requirements, and certificate holder impact.

The FAA received 631 comments expressing support for the rule as proposed. These commenters made no requests for changes or additional provisions. These commenters included United Airlines and AASM, as well as individuals including airline pilots, flight attendants, and TWU members, among others.

United Airlines commented that it supports the proposed rule to comply with the statutory requirement of 10 hours of rest in section 335 of the FAARA 2018, noting that safety is United's top priority. United also stated that it voluntarily adopted a 10-hour rest requirement for its flight attendants in 2016, though United allows its flight attendants to voluntarily accept trips with a shorter rest period during irregular operations. United noted that assuming that the final rule does not allow for reduction in rest, as the FAA proposed in the NPRM, then United will advise its crewmembers that these voluntary extensions are no longer permissible.

AASM also expressed its support for the proposed rule. In particular, AASM voiced support for the proposed prohibition on any reduction in the minimum 10 hours of rest. AASM stated that reducing the rest period can prevent individuals from reaping the restorative benefits of sleep, leading to both immediate and long-term health impacts. To reinforce their support for the rule, AASM cited a study of flightcrew members that showed early and longer duty times were associated with increased fatigue. 14 AASM reiterated its position that sleep is essential to health and to safety and therefore they support an irreducible 10-hour rest period for flight attendants.

The FAA received 291 comments from TWU members as part of a form letter campaign. The members commented that, as frontline aviation workers, they know firsthand how important adequate rest is to be effective on the job. The members stated that a 10-hour rest period will enable flight attendants to remain focused and responsive to any event that may arise inflight. The members concluded that this is a matter of safety, as flight attendants need adequate rest in order to perform their duties.

Many individuals, including those identifying as pilots and flight attendants, commented in support of the rule. These commenters provided myriad reasons for supporting the proposed rule, including having a healthier workforce; ensuring flight attendants have sufficient rest to perform their duties; improving overall safety; providing flight attendants with acceptable working conditions; and improving reaction times, cognitive abilities, and the ability to fight illness. Commenters also pointed out that flight attendants in today's climate are now facing “COVID exposure” and unruly passengers. Several flight attendants commented that, under the current rest period rules, their employers treat them as “robots” or “machines.” Additionally, commenters noted that it is in the public's best interest that flight attendants are well-rested and alert, as flight attendants are first responders and need sufficient rest to be focused and remain alert for medical emergencies and possible evacuations. Commenters emphasized that the safety of crewmembers and the flying public is important and that the 10-hour minimum rest period is critical for flight attendant health. These individuals commented with overwhelming support for the rule as proposed.

Several commenters noted that they had either experienced or observed flight attendant fatigue. Multiple commenters shared their concerns about mistakes being made by flight attendants, including mistakes on duty, such as accidentally deploying slides, and after finishing work, such as driving drowsy and causing traffic accidents. Two commenters stated that the public would be uncomfortable flying if they knew how fatigued flight attendants are. One commenter noted that, because flight crews are often on the same schedules, all of the flight attendants on a flight could be fatigued. Another commenter argued that working while fatigued is comparable to working while under the influence of alcohol or drugs. Commenters specifically pointed to the length of rest periods as the reason for flight attendant fatigue.

The FAA has constructed the final rule with very few departures from the NPRM. A discussion of comments requesting specific provisions or changes to the NPRM and the FAA's responses to these requests follows.

Five individuals opposed the proposal. One commenter, who identified as an airplane pilot, believed the 10-hour minimum rest requirement would make schedules less efficient for certificate holders and flight attendants, especially with the inability to reduce the 10-hour rest period under any circumstances. This commenter explained that aircraft often only have a nine- or ten-hour turnover at smaller airports, and not having the flexibility to use the same crewmembers will result in more delays and cancellations. One commenter stated that the rule would not improve safety.

Two individuals, both of whom identified as flight attendants, opposed the proposal because it would result in flight attendants working more days out of the month. One individual explained that this would occur due to certificate holders building less productive trips under the new rule. The other individual explained that working more days out of the month would cause flight attendants to lose focus and responsiveness during events that may arise in flight.

One commenter disagreed with increasing rest requirements for flight attendants because, while there were benefits to changing the rest requirements for pilots in part 117, those rule changes were cumbersome to operations and unnecessary. This individual stated that flight attendants have plenty of opportunities to rest.

One commenter recommended the FAA not amend the rest requirements for persons who serve as flight attendants on one-day trips because these persons want productivity and increasing the rest period requirement will take that away. This individual asserted that FAA should increase the rest period only for flight attendants who do layovers and experience longer commutes to the hotel.

One commenter was indifferent to the proposed rule change. This individual stated that the current minimum rest requirements were sufficient because the individual's contract ( i.e., collective bargaining agreement) covers the individual's minimum rest. Lastly, one individual expressed concern that the increased rest period will affect flight attendants' pay.

The FAA promulgates this final rule in response to a specific statutory mandate, which means that the existing rest requirements in § 121.467(b)(2) and (b)(3) cannot be retained and that flight attendants affected by this rule cannot receive less than 10 hours of required rest. With regard to the comment asking FAA not to amend the rest requirements for flight attendants on day trips, the FAA lacks any evidence that a series of day trips is any more or less fatiguing than a series of layovers. The FAA also recognizes that there are flight attendants who have long distance commutes. This subset of flight attendants may find their day trip commutes to be just as, or more, fatiguing as layovers. Finally, section 335(a) of the FAARA 2018 does not make an exception for this category of flight attendants, and therefore, neither can this rulemaking.

In the NPRM, the FAA proposed a 30-day effective date, which means the final rule would have been effective 30 days after publication in the Federal Register . The FAA explained that certificate holders would have been required to comply with the new rule upon the effective date. The FAA received numerous comments concerning the implementation period for the final rule. These commenters fell into two categories: (1) those that wanted the FAA to implement the final rule immediately, and (2) those that wanted the FAA to delay implementation of the final rule.

Over fifty commenters, including flight attendants and labor groups, encouraged the FAA to implement the final rule immediately. Flight attendants cited safety, personal experiences with fatigue, and serving as first responders in their comments requesting that the final rule be implemented either “immediately” or “as soon as possible.” In a joint comment submitted by several labor unions (AFA-CWA, APFA, IAM, IBT, TWU, and the AFL-CIO), the unions requested that the FAA “act urgently to issue the final rule.”  15 Additionally, several commenters noted that the statutory language directed the FAA to implement the regulatory changes within 30 days of enactment.

One commenter specifically asked why the FAA had not yet implemented this final rule when the statute, which required the FAA to amend the rules within 30 days of enactment, was passed in 2018. This commenter also questioned the FAA's actions to gather additional information on costs and benefits because the statute did not require these actions.

The APA requires the FAA to publish a final rule not less than 30 days before the rule's effective date unless the agency finds good cause. 16 In this instance, the FAA has not found good cause to waive the 30-day effective date. Rather, for the reasons discussed below in response to requests for longer implementation, the FAA has determined that a 30-day effective date is appropriate and is adding a 90-day compliance date. The extended compliance date is to ensure that certificate holders have at least two full calendar months to implement schedule changes and they can initiate those changes on the date that is most efficient for their operation.

The commenter was correct that section 335 of the FAARA 2018 did not expressly require the FAA to gather information concerning the costs and benefits of the changes to § 121.467(b). However, changes to Federal regulations must undergo economic analyses. The FAA completes such analyses in accordance with Executive Order 12866, 17 Office of Management and Budget (OMB) Circular A-4, 18 and the Regulatory Flexibility Act of 1980. 19

The FAA received comments from RAA and A4A seeking to extend the implementation period for the final rule beyond 30 days. RAA requested an implementation period of 60 days because of the varying scheduling procedures at individual airlines. A4A requested a six-month implementation period because of the substantial amount of work required by air carriers to facilitate a smooth, efficient and equitable implementation. A4A noted that the FAA's 1994 final rule relating to flight attendant duty period limitations and rest requirements allowed over five months for operators to come into compliance. 20

A4A explained that 30 days is an insufficient amount of time for carriers to implement changes to cabin crew scheduling software, hire and onboard additional flight attendants, and train persons that use crew-scheduling software on the rest rule changes and on changes to day-of-operations flexibility that most carriers permit today. With respect to training, A4A stated that the FAA Certificate Management Offices may require carriers to provide new or reworked training materials as part of ensuring compliance with the final rule, which will take time. A4A also asserted that the flight attendant schedule planning and bidding process supports a six-month implementation period to protect the schedule process and avoid potential errors that will negatively affect flight attendant scheduling. A4A noted that a particular area of focus for carriers and schedulers will be flight attendant assignments or pairings that begin under existing flight attendant rest rules and end under the new flight attendant rest rules. Additionally, if the final rule takes effect during the middle of a carrier schedule, A4A stated that the carrier must build two separate schedules for that bidding period—one schedule under existing flight attendant rest rules and another schedule under the new rules.

Upon consideration of the implementation periods recommended by RAA and A4A, the FAA agrees that certificate holders need more than 30 days to achieve compliance with the final rule. However, a six-month implementation period is unreasonable. Section 335(a) required the FAA, in a narrow timeframe, to modify the regulations in accordance with the statute. As such, industry stakeholders have been on notice of the statutory mandate since Congress enacted it in 2018. Many certificate holders have already voluntarily implemented the longer rest period, either unilaterally or through contract negotiations with their flight attendants or flight attendant unions. Furthermore, the 1994 final rule cited by A4A, which adopted a delayed compliance date greater than five months, does not support a delayed implementation period for this final rule. Unlike the 1994 final rule, which adopted flight attendant duty period limitations and rest requirements across multiple CFR parts, this final rule contains only two discrete amendments to § 121.467(b)(2) and (b)(3).

The FAA recognizes that certificate holders will need to implement changes to crew-scheduling software upon publication of this final rule. Additionally, certificate holders will need to either generate schedules to be bid upon or modify pairing rules with preferential bidding software. The FAA has determined that 30 days is an insufficient amount of time to conduct these implementation activities. Therefore, consistent with RAA's recommendation, the FAA is adopting an effective date of 30 days with a compliance date of 90 days. This ensures certificate holders have at least two full calendar months to implement schedule changes and they can initiate those changes on the date that is most efficient for their operation. This marks a change from the NPRM, which proposed only a 30-day effective date.

Many commenters supported the rule, but requested that the FAA require a minimum rest period longer than 10 hours for flight attendants. One commenter who identified as a flight attendant stated that flight attendants are sometimes so fatigued that they struggle to perform their duties as required and that a 10-hour rest period is not enough. Several flight attendants commented that after accounting for activities such as traveling to the hotel, checking in, showering, eating, winding down, getting ready for the next duty period, traveling back to the airport, and getting through security, 10 hours is not enough. Several commenters noted that the amount of rest is reduced significantly after accounting for deplaning and transportation to a place of rest. Many flight attendants shared anecdotes of rest periods where, because of factors beyond their control, they ended up only getting four or five hours of sleep. One flight attendant noted that flight attendants have irregular sleep schedules, which can make it difficult to fall asleep immediately upon reaching the hotel room. Another commenter noted that rest periods can begin at unusual times, which makes falling asleep difficult. Several commenters pointed out that eight hours of sleep is generally considered by the public to be a necessary amount of rest.

One flight attendant stated that a 10-hour rest period is not enough to allow flight attendants to be fully cognizant for their duties. Twenty-three commenters requested a 12-hour rest period. Three commenters requested a 14-hour rest period. Two commenters suggested that the rest period be the same length of time as the preceding duty period. One commenter requested a 19-hour rest period. Another commenter suggested that the rest period be a minimum of 12 hours at base and 10 hours for layovers. One commenter requested a 12-hour minimum rest period that could be reduced to 10 hours if there were unforeseen circumstances. One commenter noted that their employer already has 10 hours as the standard rest period and the flight attendants find it insufficient. One commenter suggested that the FAA follow what other countries do for minimum rest period durations.

Section 335(a) of the FAARA 2018 required the FAA to amend the regulation to ensure that a flight attendant scheduled to a duty period of 14 hours or less is given a scheduled rest period of at least 10 consecutive hours; and the rest period is not reduced under any circumstances. The FAA initiated this rulemaking in response to the statutory mandate, which the FAA interprets as direction to amend § 121.467 by changing the minimum rest requirement described in paragraph (b)(2) of that section from 9 hours to 10 hours; and by eliminating the reduced rest provision described in paragraph (b)(3) of that section.

The FAA currently lacks data and supporting research or studies on flight attendant fatigue that would support an increased rest period beyond 10 hours. The 10-consecutive-hour rest requirement provided in this rulemaking is a minimum rest requirement. Nothing in this final rule would preclude a certificate holder from increasing the rest period. Accordingly, in promulgating this final rule, the FAA is amending § 121.467(b)(2) and (b)(3), as proposed.

In addition, many commenters recommended that the rest period should begin at hotel check-in in order to maximize rest. Myriad commenters noted that their rest periods currently start when the aircraft reaches the gate and end when the flight attendant checks in for their next duty period. Many commenters stated that the rest period should be 10 hours behind the hotel door at a minimum, after taking into account transportation to and from lodging, time spent checking in, and getting food. Other commenters noted that the rest period should start at the hotel because the deplaning process and transportation to the hotel are not rest. One commenter suggested that rest start behind the door (at the place of lodging) or otherwise allow 45 minutes for transportation before the rest period commences. Another commenter suggested that the rest period should begin after the flight attendants leave the airport. Several commenters requested equal rest to that of flightcrew members, stating that there are differences between when the flight attendant rest period starts and the requirements for pilots. One commenter shared that, following a recent canceled flight, the flightcrew members were given hotel rooms, but the flight attendants had to sleep on the aircraft. Another commenter suggested that the rest period include a requirement for eight hours of prone rest, while some suggested either 8 or 12 hours behind the door. Other commenters noted that it often takes a long time to get from the airport to the hotel and vice versa, which cuts into the flight attendants' rest period. Several commenters stated that the hotels they stay in are located far from the airports, requiring long transport times. One commenter also noted that hotel shuttles are “notoriously late,” while another noted that hotel shuttles are often infrequent and require long waits. Another commenter shared that delays can result in hotels giving away their rooms, leading flight attendants to sleep in hotel lobbies or on airport floors. One commenter suggested that the rest period should not be reduced because of transport delays to the hotel or check-in delays at the hotel itself, a suggestion which was echoed by another flight attendant who commented that airlines do not provide additional rest time if there are delays in hotel transportation. Another commenter shared an example of a time when there were no hotels provided for flight attendants, so they ended up spending their rest periods on the floors of the airport.

In 14 CFR 121.467(a), the FAA defines “rest period” as a time when a flight attendant is free of all restraint, duty, or responsibility upon release from an assignment. The FAA understands that the time available for sleep during a rest period may vary depending on the amount of time a flight attendant spends on other activities during the rest period, such as transportation to the hotel. However, at this time, FAA lacks data and supporting research or studies on flight attendant fatigue that would support changing the nature of the minimum required flight attendant rest period. The FAA also notes that section 335(a) of the FAARA 2018 does not require it to change the nature of the flight attendant rest period, but merely to increase it to 10 hours. Therefore, the FAA is amending § 121.467(b)(2) and (b)(3) as proposed.

In the NPRM, the FAA proposed to amend § 121.467(b)(3) by expressly prohibiting certificate holders from reducing the rest period to less than 10 consecutive hours.

One individual generally supported the proposal to increase the minimum rest period to 10 consecutive hours but asserted that the FAA should permit a flight attendant to waive the 10-hour rest period when doing so would be beneficial for the flight attendant. Another commenter suggested that flight attendants should have the ability to opt out of the new requirement if they have had nine hours of rest. Several commenters disagreed and stated that the rest period for flight attendants should never be less than 10 hours. Two commenters stated that the rest period should not be reduced in the case of irregular operations. Two commenters noted that, under the current rules, airlines frequently reduce rest to accommodate schedules. Another commenter suggested that airlines use flight attendant rest as a bargaining chip.

In accordance with the statutory requirement in section 335(a)(2)(B), the final rule must ensure that the rest period, which must be at least 10 consecutive hours, is not reduced under any circumstances and there are no exceptions given permitting flight attendants to waive the minimum rest period requirement and accept a reduced rest period that is less than 10 consecutive hours. Accordingly, section 121.467(b)(3) remains unchanged from the proposal.

In this section, the FAA responds to various miscellaneous comments concerning the FAA's proposed amendments to the rest period requirements.

One commenter noted that the FAA included a table in the “original” rulemaking for § 121.467 that summarized the flight attendant rest periods. 21 This commenter recommended the FAA include a similar table in this final rule to facilitate understanding of the regulations.

When the FAA adopted § 121.467 in 1994, the FAA included a chart in the preamble to the final rule that depicted the new scheduled duty period, rest period, and augmented flight attendant crew requirements. The FAA finds it unnecessary to include a similar table in this final rule because the amendments to § 121.467(b)(2) and (b)(3) are minimal, uncomplicated, and easy to understand.

One commenter stated that the flight attendant rest requirements should be the same as the rest requirements in 14 CFR 91.1059. This individual recommended the FAA withdraw the proposed rule and simply add flight attendants to § 91.1059.

The commenter's recommendation would not work under the structure of the Federal regulations. Section 91.1059 applies only to part 91, subpart K operators. Therefore, expanding the scope of § 91.1059 to include flight attendants would not result in an increased rest period for flight attendants operating under Part 121 regulations. The FAA is amending § 121.467(b) as proposed.

One individual asked why the FAA was seeking input from the general public on the proposed rule rather than solely the airline employees. Another commenter stated that getting feedback from airline employees was important. Two commenters suggested that the people drafting the final rule should spend time working as a flight attendant in order to fully understand flight attendant fatigue.

The Administrative Procedure Act, which contains the procedural requirements for notice-and-comment rulemaking, requires an agency to issue a general notice of proposed rulemaking in the Federal Register . 22 The APA also requires an agency to give interested persons an opportunity to participate in the rulemaking through the submission of written data, views, or arguments. Therefore, pursuant to the statutory requirements set forth in the APA, the FAA published the proposed rule in the Federal Register and gave interested members of the public, including flight attendants, an opportunity to submit comments.

Several commenters also suggested that time zones should be taken into account when determining how long a rest period is. The commenters noted that switching time zones has an impact on flight attendant fatigue. One commenter noted that it is especially important that the rule be mandatory for flight attendants on international flights. Another commenter requested that there be different standards for domestic and international travel.

The FAA is not addressing the effect of time zones on flight attendant fatigue at this time because it lacks the data on flight attendant fatigue that would be necessary for this type of a regulatory change. The FAA is retaining this regulatory regime and amending the rules consistent with the statutory mandate in section 335(a)(2). The final rule will apply to all certificate holders conducting domestic, flag, or supplemental operations.

Two comments discussed deadhead transportation. One commenter described carrier scheduling practices such as deadhead transportation as being used to circumvent rest requirements and contributing to fatigue. In the Flight Attendant Duty Period Limitations and Rest Requirements final rule, published in 1994, the FAA defined deadhead transportation as “time spent in transportation, not local in character, that a certificate holder requires of a flight attendant and provides to transport the flight attendant to an airport at which that flight attendant is to serve on a flight as a crewmember, or from an airport at which the flight attendant was relieved from duty to return to the flight attendants home base.”  23 As the FAA stated previously in the preamble to the final rule found at 59 FR 42974, for the purpose of determining duty period limitations and rest requirements, deadhead transportation is not considered an assignment involving flight time and is not part of a duty period, and is not considered rest. 24 The use of deadhead transportation in relation to flight attendant duty period limitations and rest requirements is consistent with the application of flightcrew member flight time limitations and rest requirements. In addition, a flight attendant scheduled for deadhead transportation is not assigned duty in an aircraft and is not considered a working flightcrew member. This final rule does not alter the definition of deadhead transportation, nor does it change how § 121.467(b)(2) is applied with regard to deadhead transportation.

Several individual commenters expressed concern that airlines have, and will continue to look for, ways to circumvent the minimum rest period requirement. One commenter noted that flight attendants have been told to report for duty at a certain time, but to not step on the aircraft until the minimum rest period time was met. Another commenter echoed this experience, sharing an experience where the airline had flight attendants wait to close the aircraft door in order to have the rest period duration meet the requirement. One flight attendant shared a story of a colleague who was asked to stay on duty because there were no hotels available, recounting that the colleague did not want to inform the airline of their fatigue because they were afraid of punitive action. One flight attendant stated that their job has become more difficult because the airline they work for will often try to avoid scheduling rest periods. Several commenters noted that crew scheduling and coordination can result in shortened rest periods. A flight attendant noted in their comment that airlines will contact flight attendants during their rest periods and inform them that, due to rerouting, the flight attendant has a shorter rest period than anticipated. One commenter suggested that the rest period should be undisturbed and that flight attendants should not be required to answer company communications during the rest period. Another commenter noted that flight attendants are considered to be on call 24 hours a day.

Under this final rule, all certificate holders conducting domestic, flag, or supplemental operations will be required to give scheduled rest periods of at least 10 consecutive hours to flight attendants scheduled to a duty period of 14 hours or less. The FAA is not addressing company communications during rest periods or changes to the duration of rest periods, so long as the rest period is at least 10 consecutive hours.

Several commenters noted the benefits of increased rest, including preventing fatigue, performing safety related tasks without error, offsetting stress and burnout, improving reaction times and cognitive abilities, decreasing illnesses, improving alertness and focus, and being better prepared for medical emergencies and flight evacuations.

The FAA agrees that increasing the minimum flight attendant rest period may improve health and lead to a reduction in performance errors; however, the FAA did not receive new information or data to provide a quantitative analysis. Therefore, the FAA continues to analyze benefits qualitatively.

AFA-CWA, APFA, IAM, IBT, TWU, and AFL-CIO commented in a joint comment that the concerns raised during the ANPRM comment period over the cost of implementation are grossly exaggerated. The comment provided information on airlines that have already implemented a 10-hour rest policy and stated that there is no evidence of significant costs. However, they asserted that there is extensive evidence of the problems associated with flight attendant fatigue and that these issues are heightened in the wake of scheduling during the coronavirus public health emergency, along with the stresses on the job including unruly, disruptive, and violent passenger events.

Conversely, A4A commented that the FAA has understated the costs to major carriers because the FAA's information indicates that only one major carrier has implemented a 10-hour flight attendant rest period without an opportunity for reduced rest. A4A stated that the FAA should therefore increase the “existing practices” baseline to state that three major carriers will be impacted by the final rule and increase the number of flight attendants impacted accordingly. They also requested that the FAA amend the Regulatory Impact Analysis to include a 10-year analysis because the requirement to provide flight attendants 10 hours of rest will not sunset in 5 years and the impacts of the final rule will continue to 10 years and beyond.

With respect to the comment submitted by A4A, the FAA disagrees and determined that the information provided would not impact the analysis of costs. The FAA determined that it has categorized the major carriers appropriately in the analysis, as those that have implemented the 10-hour rest period already need to have sufficient staffing and resources. The FAA also found that the 5-year timeframe for the analysis is reasonable, given that there is a high rate of change in the industry. The estimated annualized costs are the same for a 5-year or a 10-year period, however, uncertainty over the future baseline increases beyond the 5-year period.

Several individual commenters noted that any costs to airlines that result from the 10-hour minimum rest period would be outweighed by the benefits for flight attendants. One commenter stated that increased productivity should not come at the expense of safety. Another commenter argued that a decrease in profits would be worth the improvement in quality of life for flight attendants. A commenter also pointed out that, in the long term, airlines could see improvements to productivity and profitability because employees are more productive when they have a better work environment. Additionally, one commenter noted that airlines could minimize any disruption because they have scheduling flexibility, while another commenter argued that airlines can use crew pairing to minimize effects. One commenter stated that airlines have had “plenty of time” to implement necessary changes. Another commenter also pointed out that flight attendants who are concerned about a decrease in pay could choose to work longer duty periods or more frequently in order to make up for the longer rest periods.

The FAA agrees that increasing the minimum flight attendant rest period may have benefits for flight attendants. However, the FAA does not currently have the information or data to conduct a quantitative analysis of the benefits. While it is possible that there could be benefits for airlines as a result of a more productive workforce, the FAA does not have sufficient data to reach a conclusion on that point. The FAA notes that airlines can create schedules that both comply with this final rule and minimize disruption. As the FAA Reauthorization Act was signed into law in 2018, the FAA agrees that this final rule should not surprise any airlines.

The FAA received several comments to the NPRM that were outside the scope of this rulemaking. One commenter stated that to be consistent with international standards and other FAA regulations, the FAA should add two new provisions to § 121.467. One provision would prescribe requirements for a fatigue risk management system (FRMS), including a requirement for the FRMS to include an education and awareness training program. The second provision would prescribe specific requirements for the fatigue education and training program.

Some commenters stated that the rule needs strong language that will preclude a certificate holder from interpreting the rule to mean the certificate holder may reduce rest.

One commenter suggested the FAA adopt a mandatory retirement age for flight attendants. Another individual recommended the FAA require flight attendants to undergo annual medical examinations. One commenter suggested that the FAA research the effects of turbulence on flight attendants. One commenter noted that flight attendants need healthy meals, while another raised the issue of regular breaks for food. Another commenter expressed concern over how airlines pay for duty periods that cover two calendar days.

One commenter noted that fatigue reports are long and monotonous, which discourages fatigued flight attendants from filling out the report and asked the FAA to limits barriers when filling out such reports. One commenter suggested that the FAA take action if an airline receives a high number of fatigue reports. Also, several commenters suggested that duty periods should be limited, with two suggesting a 16-hour limit and four suggesting a 12-hour limit. One commenter stated that 14 hour duty periods are too long. Two commenters suggested that the FAA adopt a duty period limit similar to the hours of service rules for the rail and trucking industries. Several commenters noted that airlines will schedule flight attendants to the longest duty periods possible, something that has become more prevalent during the coronavirus public health emergency and subsequent staffing issues. Several commenters noted that flight attendants feel discouraged from using sick leave or paid time off and fear punitive measures if they report being fatigued, with one noting that their employer categorizes fatigue as a “negative attendance occurrence” and another explaining that they felt “bullied” by their employer into not reporting fatigue. One commenter shared that, in order to take sick leave, the airline they work for requires flight attendants to have their requests verified by a company doctor.

The NPRM also received comments relating to the Federal face mask mandate and no-fly lists for unruly passengers. One commenter suggested that low-cost flights are the reason for increased violence on aircraft. Another commenter suggested that commercial airlines not be allowed to sell alcoholic beverages and that passengers and employees should not be allowed to fly if showing any signs of illness. Another commenter was concerned about the radiation levels flight attendants are exposed to. Two commenters expressed their frustration with the FAA regulating things like flight attendant rest breaks.

These comments are all outside the scope of this rulemaking.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $165,000,000, using the most current (2021) Implicit Price Deflator for the Gross Domestic Product. The FAA has provided a detailed Regulatory Impact Analysis (RIA) in the docket for this rulemaking. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

In conducting these analyses, the FAA has determined that this rule: is a “significant regulatory action” as defined in section 3(f) of Executive Order 12866; may have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

This section provides a summary of the FAA's regulatory impact analysis (RIA). Please see the RIA available in the docket for the rulemaking for more details.

The baseline for analysis of the incremental benefits and costs of the final rule includes the regulations regarding flight attendant rest and existing practices, the affected entities and flight attendants, and potential safety and health risks. Prior to the adoption of this final rule, certificate holders conducting domestic, flag, or supplemental operations under 14 CFR part 121 needed to provide a flight attendant scheduled to a duty period of 14 hours or less a scheduled rest period of at least 9 consecutive hours. The certificate holder could schedule or reduce the rest period to eight consecutive hours if the certificate holder provided a subsequent rest period of at least 10 consecutive hours that was scheduled to begin no later than 24 hours after the beginning of the reduced rest period. In response to the FAARA 2018 and other circumstances (including that some airlines schedule flight attendants to be synchronized with those for pilots), 12 certificate holders already schedule flight attendants for 10 hours of rest. The provision may be reflected in a certificate holder's collective bargaining agreement with the flight attendant union.

The FAA's Safety Performance Analysis System (SPAS) contains information on certificate holders conducting operations under part 121 and the number of flight attendants. Table 1 provides a summary by category of carriers. 25

The Commission issued the Energy Labeling Rule (“Rule”) in 1979, 1 pursuant to the Energy Policy and Conservation Act of 1975 (“EPCA”). 2 The Rule requires energy labeling for major home appliances and other consumer products to help consumers compare competing models. It also contains labeling requirements for refrigerators, refrigerator-freezers, freezers, dishwashers, water heaters, clothes washers, room air conditioners, furnaces, central air conditioners, heat pumps, plumbing products, lighting products, ceiling fans, and televisions.

The Rule requires manufacturers to attach yellow EnergyGuide labels to many covered products and prohibits retailers from removing these labels or rendering them illegible. In addition, it directs sellers, including retailers, to post label information on websites and in paper catalogs from which consumers can order products. EnergyGuide labels for most covered products contain three key disclosures: estimated annual energy cost, a product's energy consumption or energy efficiency rating as determined by Department of Energy (“DOE”) test procedures, and a comparability range displaying the highest and lowest energy costs or efficiency ratings for all similar models. For cost calculations, the Rule specifies national average costs for applicable energy sources ( e.g., electricity, natural gas, oil) based on DOE estimates. Under the Rule, the Commission periodically updates comparability range and annual energy cost information based on manufacturer data submitted pursuant to the Rule's reporting requirements. The Rule sets a five-year schedule for updating range of comparability and annual energy cost information. 3 Pursuant to that schedule, the Commission announces the following amendments.

Consistent with the Rule's five-year schedule, on May 25, 2022 (87 FR 31754), the Commission proposed routine updates to comparability ranges and national average energy cost figures (appendices K1 and K2) for several product categories. The proposed amendments also updated § 305.10 to clarify that manufacturers must determine capacity for room air conditioners using current DOE requirements. In response, the Commission received nine comments, several of which raised specific issues with the proposed amendments. 4 We discuss these issues below.

As discussed below, the Commission updates comparability ranges and national average energy cost figures (appendices K1 and K2) for several product categories consistent with the Rule's five-year schedule. The amendments also update § 305.10 to clarify that manufacturers must determine capacity for room air conditioners using current DOE requirements. 5

In accordance with the Rule's five-year schedule (§ 305.12), the Commission revises the comparability range and energy cost information for refrigerators and freezers, dishwashers, water heaters, room air conditioners (ranges only), clothes washers, furnaces, and pool heaters. 6 In addition, the Commission updates the average energy cost figures manufacturers must use to calculate a model's estimated energy cost. 7 Specifically, the Commission now updates the energy cost tables in appendices K1 and K2. 8

Television Ranges: In response to comments, the Commission will wait to update television ranges until DOE completes proposed test procedure changes for those products. Comments from the Association of Home Appliance Manufacturers (AHAM) (#008) and American Council for an Energy-Efficient Economy (ACEEE) (#010) explained DOE is currently finalizing changes to the television test procedure that will make substantive changes to the measured energy use for these products. 9 To avoid multiple updates to the television label within a short period of time, the FTC, in coordination with DOE, will publish updated ranges after data derived from the upcoming test procedure becomes available.

Clothes Washer Ranges: In response to AHAM's comment (#008), the final amendments correct the proposed clothes washer ranges to reflect only the annual energy consumption of the tested model. The proposed ranges in the NPRM were inadvertently derived from energy consumption figures that reflected DOE's Integrated Modified Energy Factor, an efficiency rating that does not appear on the label and accounts for expected dryer use associated with the washer.

Timing of Updates: Consistent with § 305.12, manufacturers must begin using this information on new product labels within 90 days after publication of a final notification announcing updated ranges for specific products. Manufacturers do not have to relabel products labeled prior to the effective date of the changes. For room air conditioners, however, the final notification sets a compliance date of October 1, 2023.

In the NPRM, the Commission proposed setting an October 1, 2022, effective date for those ranges because this label must appear on product boxes, and such package changes can require additional planning and coordination. The proposed October date coincides with the annual production cycle ( i.e., the cooling season) for those products.

However, in its comments, AHAM (#008) stressed that, given the likely timing of the final range publication, manufacturers will be unable to change labels on packaging to reflect the new labels for this year's production cycle. Therefore, AHAM recommended a compliance date for the new room air conditioner ranges coinciding with next year's production cycle. In response, this document sets the compliance date for 2023. Adjusting the compliance date should have minimal impact on the label's usefulness in the interim because the old and new ranges are not substantially different for many model categories, and the label's primary feature—the model-specific cost number—will not change because of these amendments. Additionally, extending the compliance date will promote consistency in labels and otherwise foster an orderly transition over the next year by setting a compliance date that all manufacturers will be able to meet.

Cost Figures for Room and Portable Air Conditioners: As explained in the NPRM, the amendments do not change the range and cost information for central air conditioner and portable air conditioner labels because the Commission recently updated those ranges. 10 Additionally, the amendments do not change the cost figure for room air conditioner labels because such a change would make room air conditioner labels inconsistent with cost information on portable air conditioners, a similar product category. This inconsistency could cause consumer confusion and make comparison shopping more difficult. Accordingly, the electricity cost figure ($0.13/kWh) for those two categories appears in appendix K2 and in the calculations for the room air conditioner cost ranges (appendix E) in the amendments. No comments opposed this change.

The amendments also update § 305.10 to clarify that manufacturers must determine capacity for room air conditioners using current DOE requirements. Specifically, the amendment eliminates obsolete text related to rounding and updates references to existing DOE requirements for capacity determinations. 11 No comments opposed this change.

The current Rule contains recordkeeping, disclosure, testing, and reporting requirements that constitute information collection requirements as defined by 5 CFR 1320.3(c), the definitional provision within the Office of Management and Budget (OMB) regulations that implement the Paperwork Reduction Act. OMB has approved the Rule's existing information collection requirements through February 29, 2024 (OMB Control No. 3084-0069). The amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements and, therefore, do not require further OMB clearance.

The provisions of the Regulatory Flexibility Act relating to a Regulatory Flexibility Act analysis (5 U.S.C. 603-604) are not applicable to this proceeding because the amendments do not impose any new obligations on entities regulated by the Energy Labeling Rule. As explained elsewhere in this document, the amendments do not change the substance or frequency of the recordkeeping, disclosure, or reporting requirements. Thus, the amendments will not have a “significant economic impact on a substantial number of small entities.” 5 U.S.C. 605. The Commission has concluded, therefore, that a regulatory flexibility analysis is not necessary, and certifies, under Section 605 of the Regulatory Flexibility Act (5 U.S.C. 605(b)), that the amendments will not have a significant economic impact on a substantial number of small entities.

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

For the reasons stated above, the Commission amends part 305 of title 16 of the Code of Federal Regulations as follows:

Ebola disease, caused by the virus genus Ebolavirus, is a severe and often fatal disease that can affect humans and non-human primates. Disease transmission occurs via direct contact with bodily fluids ( e.g., blood, mucus, vomit, urine). The first known Ebola disease outbreak occurred in 1976. From 2013-2016, the largest recorded Ebola disease outbreak occurred in West Africa, primarily affecting Guinea, Liberia, and Sierra Leone, with cases exported to seven additional countries across three continents, including the United States. The epidemic demonstrated the potential for Ebola disease to become an international crisis in the absence of early intervention. Further, Ebola disease can have substantial medical, public health, and economic consequences if it spreads to densely populated areas. As such, Ebola disease may present a threat to United States health security given the unpredictable nature of outbreaks and the interconnectedness of countries through global travel.

On September 19, 2022, Uganda reported a single, fatal case of Ebola disease due to the Sudan virus (species Sudan ebolavirus ). Earlier in September 2022, community reports had described occurrences of strange illness and sudden deaths in the affected area. Some of these unexplained deaths were in persons who had known contact with the index patient. As of October 4, 2022, a total of 43 confirmed cases with 10 confirmed deaths have been reported from five districts within Uganda Centers for Disease Control and Prevention (CDC) has issued an Alert—Level 2, Practice Enhanced Precautions advising against non-essential travel to several regions in Uganda where the Ministry of Health in Uganda has declared an Ebola virus outbreak. 1 The Centers for Disease Control and Prevention (CDC) is closely monitoring an outbreak of Ebola virus in five districts within Uganda. In order to assist in preventing or limiting the introduction and spread of this communicable disease into the United States, the Departments of Homeland Security and Health and Human Services, including CDC, and other agencies charged with protecting the homeland and the American public, are currently implementing enhanced public health measures at five United States. airports that receive the largest number of travelers originating from Uganda. To ensure that all travelers with recent presence in Uganda arrive at one of these airports, DHS is directing all flights to the United States carrying such persons to arrive at airports where enhanced public health measures are being implemented. While DHS, in coordination with other applicable federal agencies, anticipates working with the operators of aircraft in an endeavor to identify potential travelers who have recently traveled from, or were otherwise present within, Uganda prior to boarding, operators of aircraft will remain obligated to comply with the requirements of this notice. Department of Defense (DoD) flights, via either military aircraft or contract flights, will be managed by DoD in accordance with HHS guidelines.

Pursuant to 6 U.S.C. 112(a), 19 U.S.C. 1433(c), and 19 CFR 122.32, DHS has the authority to limit the locations where all flights entering the United States from abroad may land. Under this authority and effective for flights departing after 11:59 p.m. Eastern Daylight Time on October 10, 2022, I hereby direct all operators of aircraft to ensure that all flights (with the exception of those operated or contracted by DoD) carrying persons who have recently traveled from, or were otherwise present within, Uganda only land at one of the following airports:

• Hartsfield-Jackson Atlanta International Airport (ATL), Georgia;

• Chicago O'Hare International Airport (ORD), Illinois;

• Newark Liberty International Airport (EWR), New Jersey;

• John F. Kennedy International Airport (JFK), New York;

• Washington-Dulles International Airport (IAD), Virginia;

This direction considers a person to have recently traveled from Uganda if that person departed from, or was otherwise present within, Uganda within 21 days before the date of the person's entry or attempted entry into the United States. Also, for purposes of this document, crew and flights carrying only cargo ( i.e., no passengers or non-crew), are excluded from the applicable measures set forth in this notification. This direction is subject to any changes to the airport landing destination that may be required for aircraft and/or airspace safety, as directed by the Federal Aviation Administration.

This list of designated airports may be modified by the Secretary of Homeland Security in consultation with the Secretary of Health and Human Services and the Secretary of Transportation. This list of designated airports may be modified by an updated publication in the Federal Register or by posting an advisory to follow at www.cbp.gov. The restrictions will remain in effect until superseded, modified, or revoked by publication in the Federal Register .

For purposes of this Federal Register document, “United States” means the territory of the several States, the District of Columbia, and Puerto Rico.

This document contains amendments to the Income Tax Regulations (26 CFR part 1) under section 42 of the Internal Revenue Code (the Code).

The Tax Reform Act of 1986, Public Law 99-514, 100 Stat. 2085 (1986 Act), created the low-income housing credit under section 42 of the Code.

Section 42(a) provides that the amount of the low-income housing credit for any taxable year in the credit period is an amount equal to the applicable percentage (effectively, a credit rate) of the qualified basis of each qualified low-income building.

Section 42(c)(1)(A) provides that the qualified basis of any qualified low-income building for any taxable year is an amount equal to (i) the applicable fraction (determined as of the close of the taxable year) of (ii) the eligible basis of the building (determined under section 42(d)). Section 42(c)(1)(B) defines applicable fraction as the smaller of the unit fraction or floor space fraction. The unit fraction is the number of low-income units in the building over the number of residential rental units (whether or not occupied) in the building. The floor space fraction is the total floor space of low-income units in the building over the total floor space of residential rental units (whether or not occupied) in the building. Subject to certain exceptions set forth in section 42(i)(3)(B), a low-income unit is defined in section 42(i)(3) as any unit in a building if the unit is rent-restricted and the individuals occupying the unit meet the income limitation under section 42(g)(1) that applies to the project of which the building is a part. Section 42(d)(1) and (2) define the eligible basis of a new building or an existing building, respectively.

Section 42(c)(2) defines a qualified low-income building as any building which is part of a qualified low-income housing project at all times during the compliance period (the period of 15 taxable years beginning with the first taxable year of the credit period). To qualify as a low-income housing project, one of the section 42(g) minimum set-aside tests, as elected by the taxpayer, must be satisfied.

Prior to the enactment of the Consolidated Appropriations Act of 2018, Public Law 115-141, 132 Stat. 348 (2018 Act), section 42(g) set forth two minimum set-aside tests, known as the 20-50 test and the 40-60 test. If a taxpayer elects to apply the 20-50 test, at least 20 percent of the residential units in the project must be both rent-restricted and occupied by tenants whose gross income is 50 percent or less of the area median gross income (AMGI). If a taxpayer elects to apply the 40-60 test, at least 40 percent of the residential units in the project must be both rent-restricted and occupied by tenants whose gross income is 60 percent or less of AMGI.

The 2018 Act added section 42(g)(1)(C), which contains a third minimum set-aside test option—the average income test. If a taxpayer elects to apply the average income test, a project meets the minimum requirements of the average income test if 40 percent or more of the residential units in the project are both rent-restricted and occupied by tenants whose income does not exceed the imputed income limitation designated by the taxpayer with respect to the specific unit. (In the case of a project described in section 142(d)(6)), “40 percent” in the preceding sentence is replaced with 25 percent.) Section 42(g)(1)(C)(ii)(I)-(III) provides special rules relating to the income limitation for the average income test. Specifically, unlike the 20-50 and 40-60 tests, section 42(g)(1)(C)(ii)(I) requires the taxpayer to designate each unit's imputed income limitation that is taken into account for purposes of the average income test. Section 42(g)(1)(C)(ii)(II) requires the average of the imputed income limitations designated under section 42(g)(1)(C)(ii)(I) not to exceed 60 percent of AMGI. Finally, section 42(g)(1)(C)(ii)(III) requires the imputed income limitation designated for any unit to be 20, 30, 40, 50, 60, 70, or 80 percent of AMGI.

Generally, under section 42(g)(2)(D)(i), if the income for the occupant of a low-income unit rises above the relevant income limitation, the unit continues to be treated as a low-income unit if the income of the occupant had initially met the income limitation and the unit continues to be rent-restricted. Section 42(g)(2)(D)(ii), however, provides an exception to the general rule in the case of the 20-50 test or the 40-60 test. Under this exception, the unit ceases to be treated as a low-income unit if two disqualifying conditions occur.

• The first condition is that the occupant's income increases above 140 percent of the income limitation applicable under section 42(g)(1) (applicable income limitation).

• The second condition is that a new occupant whose income exceeds the applicable income limitation occupies any residential rental unit in the building of a comparable or smaller size.

In the case of a deep rent skewed project described in section 142(d)(4)(B) of the Code “170 percent” is substituted for “140 percent” in applying the applicable income limitation under section 42(g)(1), and the second condition is that any low-income unit in the building is occupied by a new resident whose income exceeds 40 percent of AMGI.

The exception contained in section 42(g)(2)(D)(ii) is referred to as the next available unit rule. See also § 1.42-15 of the Income Tax Regulations.

The 2018 Act added a new next available unit rule in section 42(g)(2)(D)(iii), (iv), and (v) for situations in which the taxpayer has elected the average income test. Under this new rule, a unit ceases to be a low-income unit if two slightly different disqualifying conditions are met:

• First, the income of an occupant of a low-income unit increases above 140 percent of the greater of (i) 60 percent of AMGI, or (ii) the imputed income limitation designated by the taxpayer with respect to the unit; and

• Second, a new occupant whose income exceeds the applicable imputed income limitation occupies any other residential rental unit in the building that is of a comparable or smaller size. The applicable imputed income limitation for this purpose depends upon whether the unit being occupied was a low-income unit before becoming vacant.

○ If the new tenant occupies a unit that was taken into account as a low-income unit prior to becoming vacant, section 42(g)(2)(D)(v)(I) provides that the applicable imputed income limitation is the limitation designated with respect to the unit.

○ If the new tenant occupies a market-rate unit, section 42(g)(2)(D)(v)(II) provides that the applicable imputed income limitation is “the imputed income limitation which would have to be designated with respect to such unit under [section 42(g)(1)(C)(ii)(I)] in order for the project to continue to meet the requirements of [section 42(g)(1)(C)(ii)(II)].” (Those requirements mandate that the “average of the imputed income limitations designated under [section 42(g)(1)(C)(ii)(I)] shall not exceed 60 percent of” AMGI.)

Section 42(g)(2)(D)(iv) also provides a next available unit rule for deep rent skewed projects that elect the average income test.

Under section 42(g), once a taxpayer elects to use a particular set-aside test for a project, that election is irrevocable. Thus, if a taxpayer had previously elected to use the 20-50 test or the 40-60 test, the taxpayer may not subsequently elect to use the average income test. Under section 42(g)(4), the rules of sections 142(d)(2)(B) through (E), 142(d)(3) through (7), and 6652(j) of the Code apply to determine whether any project is a qualified low-income housing project and whether any unit is a low-income unit.

Section 42(m)(1) provides that the owners of an otherwise-qualifying building are not entitled to the housing credit dollar amount that is allocated to the building unless, among other requirements, the allocation is pursuant to a qualified allocation plan (QAP). A QAP provides standards by which a State or local housing credit agency (Agency) is to make these allocations. Under section 42(m)(1)(B)(iii), a QAP must contain a procedure that the Agency or its agent will follow in monitoring noncompliance with low-income housing credit requirements and in notifying the IRS of any such noncompliance. See § 1.42-5 of the Income Tax Regulations for rules implementing this requirement.

On October 30, 2020, the Department of Treasury (Treasury Department) and the IRS published a notice of proposed rulemaking (NPRM) (REG- 119890-18) in the Federal Register (85 FR 68816) proposing regulations setting forth guidance on the average income test under section 42(g)(1)(C). The Treasury Department and the IRS received 98 comments, including requests to testify at a public hearing on the proposed regulations and written testimony for the public hearing.

On March 24, 2021, the Treasury Department and the IRS held a public hearing on the proposed regulations. Fifteen taxpayers provided testimony at the hearing.

After consideration of the comments received and the testimony provided, the proposed regulations are adopted as modified by this Treasury Decision. The major areas of comment and the revisions to the proposed regulations are discussed in the following Summary of Comments and Explanation of Revisions. The comments are available for public inspection at www.regulations.gov or upon request. Other minor, non-substantive modifications that were made to the proposed regulations and adopted in these final regulations are not discussed in the Summary of Comments and Explanation of Revisions. In addition, the Treasury Department and the IRS are publishing in this Treasury Decision temporary regulations containing recordkeeping and reporting requirements that are needed to facilitate administrability of, and compliance with, changes made in the final regulations. Those changes were based on comments received on the proposed rule. These requirements are described in this preamble along with the substantive rules contained in the final regulations. The text of these temporary regulations also serves as the text of the proposed regulations (REG-113068-22) set forth in the notice of proposed rulemaking on this subject in the Proposed Rules section of this issue of the Federal Register .

These final regulations and temporary regulations set forth guidance on the average income test under section 42(g)(1)(C).

The proposed regulations updated the next available unit provisions in § 1.42-15 to reflect the new set-aside based on the average income test and to take into account section 42(g)(2)(D)(iii), (iv), and (v). One commentator recommended that no changes be made to the proposed regulations concerning the next available unit rule when the proposed regulations are finalized. No other comments were received on the next available unit rule.

While no comments requested changes, the final regulations for the next available unit rule were revised to be consistent with changes made to the provisions in § 1.42-19, which are described in section II of this Summary of Comments and Explanation of Revisions. The final regulations include revisions to the two limitations in § 1.42-15(c)(2)(iv) related to the imputed income designation of the next available unit, which relate to the limitations described in section 42(g)(2)(D)(v). The final regulations provide taxpayers with administrable rules and objective standards to apply when determining the designation of the next available unit. The first limitation in § 1.42-15(c)(2)(iv)(A) applies to units that met all of the requirements in § 1.42-19(b)(1)(i) through (iii) prior to becoming vacant. In other words, the unit was rent-restricted, the occupants satisfied the imputed income limitation for the unit (or the unit's low-income status continued under section 42(g)(2)(D)), and no other provision in section 42 or the regulations thereunder denied low-income status to the unit. For those units, which would have had a designated imputed income limitation prior to vacancy, the limitation is the unit's designated imputed income limitation. This rule is equivalent to the rule in the proposed regulations, which interpreted the definition of low-income unit as including only the requirements in § 1.42-19(b)(1)(i) through (iii). The second limitation in § 1.42-15(c)(2)(iv)(B) requires a taxpayer, in the case of any other unit (such as a market rate unit), to limit the imputed income limitation to a designation that will not cause the average of all imputed income designations of residential units in the project to exceed 60 percent of AMGI. This ensures that the next available unit is designated in such a way that maintains compliance with the averaging requirement in section 42(g)(2)(C)(ii)(II). This revision to the second limitation was necessary because the proposed regulations relied on a reference to the mitigating action provisions, which were removed from the final regulations as explained in section II.B. of this Summary of Comments and Explanation of Revisions.

Additionally, these final regulations provide that, if multiple units are over-income at the same time in a project that has elected the average income set-aside (average income project) and that has a mix of low-income and market-rate units, then the taxpayer need not comply with the next available unit rule in a specific order with respect to occupancy. Instead, renting any available comparable or smaller vacant unit to a qualified tenant maintains all over-income units' status as low-income units until the next comparable or smaller unit becomes available (or, in the case of a deep rent skewed project, the next low-income unit becomes available). The final regulations include an example illustrating the application of this rule. Note, the order in which units are designated, however, may affect the qualified group that is used for computing the applicable fraction. See further discussion in section II.B of this Summary of Comments and Explanation of Revisions.

The proposed regulations provided that a project for residential rental property meets the requirements of the average income test under section 42(g)(1)(C) if (1) 40 percent or more (25 percent or more in the case of a project described in section 142(d)(6)) of the residential units in the project are both rent-restricted and occupied by tenants whose income does not exceed the imputed income limitation designated by the taxpayer with respect to the respective unit; (2) the taxpayer designated the imputed income limitations in the manner provided in § 1.42-19(b) of the proposed regulations; and (3) the average of the designated imputed income limitations of the low-income units in the project does not exceed 60 percent of AMGI. The proposed regulations would have required taxpayers to complete, not later than the close of the first taxable year of the credit period, the initial designation of imputed income limitations for all of the units taken into account for the average income test.

Under the proposed regulations, the 60 percent of AMGI limit on the average of designated imputed income limitations applied to all of the low-income units in the project. The requirement as so interpreted did not take into account whether fewer than all of those units could constitute a group of at least 40 percent of the residential units in the project such that the average of the limitations of the units in that group averaged to no more than 60 percent of AMGI.

In some cases, this interpretation magnified the adverse consequences of a single unit's failure to maintain low-income status. For example, under the proposed regulations, a unit losing low-income status would remove that unit's imputed income limitation from the computation of the average, but not impact the low-income status of any other units. If that unit's limitation was less than 60 percent of AMGI, the loss of the unit could cause the average of the remaining low-income units to rise above 60 percent of AMGI. That noncompliant average would cause the entire project to fail the average income test and therefore fail to be a qualified low-income housing project. In light of the potential adverse consequences of the rule, the proposed regulations provided for mitigating actions the taxpayer could take within 60 days of the close of the year for which the average income test might be violated.

Many commenters disagreed with the adequacy of the proposed mitigation actions and with the correctness of the underlying interpretation of the average income test, which required testing of all low-income units.

Commenters noted that the mitigation possibilities in the proposed regulations depended on the taxpayer both appreciating that the entire project might be jeopardized by a problem with a particular unit and knowing how to deploy the mitigation actions. Commenters also suggested that the mitigation proposal incorporated such a rigid deadline that even alert and well-advised taxpayers might be unable to timely take mitigating actions to be eligible to receive credits for their projects.

Commenters' central concern was the invalidity, as they saw it, of the underlying interpretation of the average income test. Under the interpretation in the proposed regulations, a single unit's falling out of compliance could result in the complete loss of tax credits for the entire project, or at least loss of credits for an entire year. Commenters noted that this result flowing from the interpretation in the proposed regulations suggested the invalidity of the interpretation. Several commenters observed that the proposed regulations imposed on projects electing the average income test a higher standard than that required for satisfying the other set-aside elections. Under the 20-50 test and 40-60 test, one noncompliant unit could not cause an entire project to fail the set-aside test if, without taking the noncompliant unit into account, there remained a sufficient number of compliant units to meet the statutory minimum percentage of all residential units. The commenters, therefore, concluded that the interpretation in the proposed regulations regarding the average income test could not have been the intent of Congress.

Most commenters recommended that the average income test be satisfied if any group of 40 percent of the units in the project have designations whose average does not exceed 60 percent of AMGI. In general, these commenters correctly asserted that the average income test is a minimum set-aside test, and, therefore, a project should meet the test if the minimum requirements of the test are satisfied, even if low-income units not necessary for the minimum are noncompliant.

Other commenters noted that even though the project should additionally meet an overall average test of no more than 60 percent of AMGI across all low-income units (as required by the proposed regulations), relief should nevertheless be built into the requirement. Thus, if a unit is out of compliance, causing the project-wide average to go above 60 percent of AMGI, the failure should be considered noncompliance for that unit only, and only that non-compliant unit should be subject to credit adjustment and recapture. They urged that this noncompliance should not be a violation of the minimum set-aside, provided that at least 40 percent of the units' designations still meet the 60 percent average.

This suggested approach, however, could create problems similar to those in the proposed regulations because one unit's noncompliance could cause the overall average of the remaining low-income units to rise above 60 percent of AMGI. For this reason, the comment was not adopted, but it was considered in connection with developing the final regulations' rules for determining low-income units and a building's applicable fraction, as is discussed later.

Some commenters believed that the average income test is satisfied as long as the original imputed income limitations of designated low-income units average to 60 percent, and 40 percent or more of those units continue to be rent-restricted and meet their respective imputed income limitations. Thus, the average must be met initially, but subsequently, the requirement is permanently satisfied, regardless of any changes in circumstances related to occupancy. Commenters suggested that a general anti-abuse rule could be adopted to allow the IRS to disregard designations made in bad faith.

The Treasury Department and the IRS do not agree that the averaging requirement of section 42(g)(1)(C)(ii)(II) is concerned only with the original designations. Like the other minimum set-aside tests, the average income test is an ongoing requirement for a project to maintain its status as a qualified low-income housing project. A project failing to maintain an average of 60 percent or less of AMGI across at least 40 percent of its residential units that qualify as low-income units violates the requirement. This is consistent with a plain reading of the statute, as the imputed income limitations of the units taken into account (meaning, counted for purposes of meeting the average income test) must not exceed 60 percent of AMGI. Section 42(g)(1)(C)(ii)(I) and (II). The rejected suggestion would allow an original imputed income limit designation of a subsequently disqualified unit to satisfy compliance with the minimum set-aside test throughout the entire compliance period. Treating such a situation as compliant would effectively waive the rule that a project consistently maintain its level of affordability—a central requirement of the low-income housing credit. Moreover, adoption of a general anti-abuse rule would miss many non-compliant situations, would increase administrative complexity for the IRS and the Agencies and would potentially create uncertainty for taxpayers.

A separate comment recommended that an out-of-compliance unit should maintain its designation if the owner can demonstrate due diligence when completing the initial income certification. The Treasury Department and IRS disagree with the suggestion that an out-of-compliance unit should not lose its designation if the owner can demonstrate due diligence when completing the initial income certification. Demonstrating due diligence upon initial income certification is not sufficient to satisfy ongoing compliance requirements. Further, similar to a general anti-abuse rule proposed by another commenter, this approach would increase administrative complexity for the IRS and Agencies and could potentially create uncertainty for taxpayers.

In response to the comments received, the Treasury Department and the IRS have revised their interpretation of the set-aside rule and incorporated the revised interpretation in the final regulations. In making these revisions, the Treasury Department and the IRS considered the plain language of section 42(g)(1)(C) as well as the definition of low-income unit for projects electing the average income test. When section 42(g)(1)(C)(i) and the special rules in section 42(g)(1)(C)(ii)(I) and (II) are read together, the taxpayer satisfies the average income test if at least 40 percent of the building's residential units are eligible to be low-income units and have designated imputed income limitations that collectively average 60 percent or less of AMGI. A project satisfying this minimum requirement satisfies the average income test. Thus, the final regulations have been revised so that it is no longer necessary to consider all low-income units in a project for residential rental property when determining whether the average income test is met.

While making this change, the Treasury Department and the IRS also considered the definition of “low-income unit” in a project electing the average income test, and the final regulations provide a clarifying definition of this term. As the final regulations no longer require a taxpayer to consider all of the low-income units in a project in order to satisfy the minimum set-aside requirement, the issue for consideration is whether a project's election of the average income test has any impact on whether a unit that is rent-restricted and whose occupants satisfy the imputed income limitation designated for the unit qualifies as a low-income unit as that term is defined in section 42(i)(3). This determination is relevant for the average income test as well as for purposes of the other provisions of the low-income housing credit, including a building's applicable fraction as explained later.

In defining the term “low-income unit,” section 42(i)(3)(A)(ii) requires that the individuals occupying the unit meet the income limitation applicable under section 42(g)(1) to the project of which the building is a part. With respect to the 20-50 and the 40-60 minimum set-asides, there is no difficulty in applying this language to specific units. Every unit in the project has an identical income limitation, namely the income limitation embodied in the set-aside test that the taxpayer elected for that project. If the taxpayer elects the 20-50 test, then the income limitation for each unit is 50% of AMGI. If the taxpayer elects the 40-60 test, the income limitation for each unit is 60% of AMGI.

For a project electing the average income test, however, the reference to “the income limitation applicable . . . to the project” poses a challenge because income limitations will typically vary among the units in the project. In addition, pursuant to section 42(g)(1)(C)(ii)(II), the average of the designated imputed income limitations for the units taken into account for meeting the minimum set-side test must not exceed 60% of AMGI. As a result, for purposes of the average income test, the fact that the occupants of a unit satisfy the imputed income limitation designated for that unit does not by itself establish that the unit satisfies the requirements in section 42(i)(3)(A).

The Treasury Department and the IRS considered interpreting the language in section 42(i)(3)(A)(ii) as referring only to the income limitation designated for a specific unit. Such an interpretation would be consistent with the approach under the 20-50 and 40-60 tests where a single unit's noncompliance does not impact the low-income status of any other low-income units in the project. It would also be in accord with many comments that argue the low-income status of one unit should not impact the status of other units if those other units meet their respective income limitations.

In a project electing the average income test, however, it is insufficient to read “the income limitation applicable under [section 42(g)(1)] to the project” as referring only to the designated imputed income limitation appliable to a unit. Under the average income test, a unit's status as a low-income unit for purposes of the set-aside and the applicable fraction depends not only on its own attributes but also on the income limitations of other units that are taken into account for these purposes. In contrast, under the historic set-asides, knowing that a unit satisfies the income limitation applicable to the unit is sufficient to know that the unit meets the project's income limitation for purposes of the minimum set-aside test and a building's applicable fraction.

This interpretation means that to qualify as a low-income unit in a project electing the average income test, a residential unit, in addition to meeting the other requirements to be a low-income unit under section 42(i)(3), must be part of a group of units such that the average of the imputed income limitations of the units in the group does not exceed 60 percent of AMGI. Thus, to provide clarity on the definition of low-income unit for a project electing the average income test, the final regulations include a definition of low-income unit that takes into account whether the unit is a member of a group of units with a compliant average limitation.

This definition of low-income unit in the final regulations is in accord with the definition of low-income unit as originally described in the Conference Report for the Tax Reform Act of 1986 (1986 Conference Report):

In that explanation, it is required that a low-income unit meet “all other requirements applicable to units satisfying the minimum set-aside test.” Although the average income test was not in existence at the time of the 1986 Conference Report, it is apparent that Congress wanted to avoid creating one standard for low-income units that qualified their projects as part of the 20-50 and 40-60 minimum set-asides and a different standard for any other low-income units that played some other role in the same project. Thus, it is consistent with how low-income units are defined under the 20-50 and 40-60 minimum set-aside tests for these final regulations to require all low-income units in an average income project to satisfy a consistent and equal set of standards—standards that, in the average income context, incorporate the average income limitations of the group of which the units are a part.

Accordingly, under the final regulations, a project for residential rental property meets the requirements of the average income test if the taxpayer's project contains a qualified group of units that constitutes 40 percent or more (25 percent or more in the case of a project described in section 142(d)(6)) of the residential units in the project. Section 1.42-19(b)(2)(i) requires the units in a qualified group to, first, individually satisfy the criteria that would qualify each unit as a low-income unit under the 20-50 or 40-60 set-asides. Specifically, the rules in § 1.42-19(b)(1)(i) through (iii) require that each unit be rent-restricted, occupants of the unit meet the income limitation for the unit, and no other provision in section 42 or the regulations thereunder denies low-income status to the unit (including section 42(i)(3)(B)-(E)). In addition, § 1.42-19(b)(2)(ii) requires that the average of the designated imputed income limitations of the units in the group not exceed 60 percent of AMGI. The group of units must be identified as required in § 1.42-19(b)(3)(i). A taxpayer identifies the units in the group by recording the units in the taxpayer's books and records, and the taxpayer must communicate that annual identification to the applicable Agency as required in §§ 1.42-19(b)(3)(iii) and 1.42-19T(c)(1) of the associated temporary regulations. See further description in section II.C of this Summary of Comments and Explanation of Revisions.

These revisions provide more flexibility for meeting the average income test than had been available under the proposed regulations. Most importantly, the revised rules limit the impact of one unit's noncompliance on the ability of a project to satisfy the average income test. The status of additional units beyond the minimum number of units needed to satisfy the test does not impair satisfaction of the average income test as discussed in section II.B of this Summary of Comments and Explanation of Revisions. By removing the proposed requirement applicable to all low-income units and thus allowing a project to satisfy the average income test if it contains a qualified group of units meeting the minimum requirements, the final regulations generally avoid the outsized impact that one unit's loss of low-income status could have under the proposed regulations. The interpretation of the average income set-aside in the final regulations is consistent with the majority of comments on this issue.

In addition, this interpretation creates more parallels between the average income test and the 20-50 and 40-60 tests. Under either of those latter tests, when there are more than the minimum number of low-income units, one unit going out of compliance would not cause a project to fail the minimum set-aside test. Similarly, under the final regulations, one unit's loss of low-income status will not jeopardize the entire project's status as a qualified low-income housing project subject to the average income test if there are a sufficient number of remaining units that comprise a qualified group of units that satisfy the minimum set-aside.

As mentioned earlier, the amount of low-income housing credits earned by a building in a taxable year depends on a computation that includes a number called the building's “applicable fraction” for that year. This fraction is based on the number and size of the low-income and non-low-income units in the building and can be thought of as an indicator of the extent to which the building is dedicated to affordable housing. Thus, the applicable fraction plays a role both in determining credits during the credit period and in demonstrating continued dedication to affordable housing during the extended use period. See section 42(h)(6)(B)(i).

The proposed regulations provided an approach to addressing continuous compliance with the average income requirement by using the same group of low-income units for both satisfying the minimum set-aside requirement and determining the applicable fraction. The proposed regulations also provided for a removed unit, which was a low-income unit identified by the taxpayer that was not taken into account for purposes of the set-aside test or the applicable fraction but was taken into account for purposes of reducing recapture. As described earlier in this Summary of Comments and Explanation of Revisions, taxpayers strongly criticized the set-aside rule. In response, the final regulations both allow the minimum set-aside test to be satisfied by any qualified group of units that is no smaller than the statutory minimum (40 percent) and also add a clarifying definition of “low-income unit” for projects electing the average income test. To implement the statutory requirement regarding the average of the imputed income limitations of residential units in a project, this clarifying definition is sensitive to the imputed income limitations of the other residential units in the same group.

The approach in the final regulations for the average income test differs from the other two set-asides in that the final regulations allow for a distinction between the group of low-income units taken into account for satisfying the minimum set-aside and the (usually larger) group of units taken into account for computing credits. However, under the final regulations, the units included in both groups are subject to the same standards.

Congress acknowledged the absence of such a distinction in the 20-50 and 40-60 tests in its discussion of the low-income housing credit in the 1986 Conference Report:

Thus, under the 20-50 and 40-60 tests, units included in qualified basis in addition to those needed to satisfy the minimum set-aside must meet the same requirements as the units used to satisfy the minimum set-aside. This application under the 20-50 and 40-60 tests is straightforward, however, because all low-income units have to be at or less than a single elected AMGI standard, either 50 percent or 60 percent of AMGI (assuming other requirements are met). Under either test, the minimum set-aside units and any additional low-income units are effectively interchangeable, so there was no need to clarify treatment between the groups.

For the average income test, however, units are not interchangeable because they have a range of imputed income limitations and cannot be evaluated in isolation because there is an income averaging requirement in section 42(g)(1)(C)(ii)(II). By stating that additional units beyond those meeting the minimum set-aside test must continuously comply with the income requirement, the 1986 Conference Report identified the necessity of developing a common standard for all residential units in projects electing the 20-50 and 40-60 tests. As discussed in section II.A.3 of this Summary of Comments and Explanation of Revisions, this principle is reflected in the final regulations' definition of low-income units, and it impacts the treatment of units that may be taken into account for computing a building's applicable fraction.

In the context of the 20-50 or 40-60 minimum set-asides, commenters noted, non-compliance by one or more units (for example, not being suitable for occupancy) reduces a building's applicable fraction only with respect to the units that are non-compliant as of the taxpayer's year end. These commenters recommended similar treatment in the average income context. They advocated evaluating eligibility of units for inclusion in the applicable fraction on a unit-by-unit basis (that is, taking into account only facts about the particular unit, without taking into account the designated imputed income limitation of other units).

In the context of removed units, some comments argued that the proposed applicable fraction treatment of these units amounted to “double counting.” Not only did the proposed regulations exclude the noncompliant unit from the computation of the applicable fraction of the building containing the unit, but by taking into account the average of the group's income limitations, they could force a taxpayer to exclude one or more compliant units from the applicable fraction(s) of the building(s) containing the compliant unit(s).

The Treasury Department and the IRS considered the proposal to include units in applicable fraction computations on a unit-by-unit basis but did not adopt it. To be sure, that proposal would preserve the requirement that units satisfying the set-aside requirement must have income limitations whose average does not exceed 60 percent of AMGI. The proposal, however, would not apply this average requirement to the units that are taken into account for the project's applicable fractions. The proposed approach would thus be inconsistent with the language of section 42(c)(1)(c)(i), which provides that the numerator of the applicable fraction is number of “low-income units” in the building. As explained earlier in the discussion of the average income test, the definition of low-income unit for a project electing the average income test necessarily includes the requirement that the average of the designated income limitations of the units taken into account as low-income units includes that the average designated income limitations of the units not exceed 60% of AMGI.

In addition, the failure to apply the average income limitation in determining the applicable fraction would allow a taxpayer to include units in the qualified basis even if they are a majority of the units in a project and their average limitation greatly exceeds 60 percent of AMGI. If accepted, the proposal would have allowed a taxpayer to give appropriate income limitations to 40 percent of a project's units but to designate limitations of 80 percent of AMGI for all the remaining low-income units in the project and receive credits for all of these units.

In the context of determining what units to include in the applicable fraction, another commenter recommended revising the proposed regulations to include an exception for units that are not habitable due to a casualty loss, such as from a fire in the unit. The commenter asserted that because the noncompliance was not the fault of taxpayer, the regulations should not require the taxpayer to remove another unit from an applicable fraction to offset the noncompliance associated with the casualty loss. The Treasury Department and the IRS did not adopt this suggestion. An approach that requires a determination of fault would create additional complexity for taxpayers, Agencies, and the IRS. In addition, while the 20-50 and 40-60 set-asides do not have the same issue, adopting rules allowing for special treatment in the case of casualties would necessitate a broader section 42 regulatory project.

Under the final regulations, the determination of a group of units to be taken into account in the applicable fractions for the buildings in a project follows the same approach as determining a group of units to be taken into account for purposes of the set-aside test. Essentially, a taxpayer can determine this group of units by including the low-income units identified for the average income test, and any other residential units that can qualify as low-income units if they are part of a group of units such that the average of the imputed income limitations of all of the units in the group does not exceed 60 percent of AMGI. If the average exceeds 60 percent of AMGI, then the group is not a qualified group. For example, if a unit was designated at 80 percent of AMGI and if including that unit in an otherwise qualified group of units causes the average of the imputed income limitations of the group to exceed 60 percent of AMGI, then the taxpayer cannot include the 80 percent unit in the otherwise qualified group. Only the otherwise qualified group of units, without the 80 percent unit, is a qualified group of units used to determine the project's buildings' applicable fractions.

Once a qualified group of units in a project has been identified for a taxable year, the applicable fraction for each building in the project is computed using the units that are in both the qualified group and the building at issue. (Although the qualified group of units for a project must have an average limitation no greater than 60 percent of AMGI, this is not true of the average limitation of the units used to compute the applicable fraction of individual buildings in the project.) This method of determining a building's applicable fraction applies both for ascertaining low-income housing credits earned for a year in the credit period and for complying with the extended use requirement in section 42(h)(6)(B)(i).

The Treasury Department and the IRS determined that the approach to determining the applicable fraction in the final regulations better aligns with the 20-50 and 40-60 set-aside tests than the approach in the proposed regulations in that it creates parallel requirements for both “minimum set-aside units” and any “additional units” that may contribute to earning low-income housing credits. This rule in the final regulations is also consistent with the description of the low-income units and the principle regarding set-aside units and additional units in the other set-aside tests that is described in the 1986 Conference Report discussion quoted earlier. The rule is also consistent with comments stating that the low-income units in a project should have an overall average that does not exceed 60 percent of AMGI.

The potential downside of this approach to an owner is that if one unit loses low-income status, then it is possible that other units' status as low-income units may be impacted. Specifically, an owner may have to exclude one or more otherwise qualifying units from the qualified group of units for use in applicable fraction determinations for the group to retain an average income limitation that does not exceed 60% of AMGI. This, however, will not always be the case. For example, if a unit designated at 60, 70, or 80 percent of AMGI loses low-income status and no other changes occurred, then the owner could maintain the required average limitation of the qualified group of units without excluding any of the other units from the qualified group of units that had been taken into account in the previous year. Also, as is discussed later, in some cases a unit may be included in the qualified group of units after its income limitation has been designated or redesignated to a lower income limitation.

The proposed regulations, in some cases, would have caused a compliant low-income unit with a relatively high-income limitation not to have been taken into account in computing low-income housing credits earned for a year in the credit period. The mechanisms for achieving this result were called “mitigating actions” and “removed units”. To minimize recapture, the proposed regulations would have included these units in the computations underlying section 42(j) so that the units' inclusion avoided having their absence contribute to recapture of credits. As described in section II.B.6. of this Summary of Comments and Explanation of Revisions, however, the Treasury Department and the IRS deleted the mitigating actions concept from the final regulations. For this reason, the final regulations do not include the proposed regulations' rule related to recapture.

As described previously, the proposed regulations would have created a risk that, in some situations, one unit losing its low-income status could have caused an entire project to fail the average income test. To reduce that risk, the proposed regulations described two possible mitigating actions that a taxpayer could have taken to avoid disqualifying the project. Because the final regulations differ from the proposed regulations in a way that avoids that risk, there is no longer a need for mitigating actions. For this reason, the final regulations do not include rules related to mitigating actions.

In response to comments on the proposed rule, the final rule provides significant flexibility regarding the qualified group of units used to satisfy the average income set-aside and the qualified group of units used for purposes of computing the applicable fraction. Providing the requested flexibility necessitates that the taxpayer have the discretion and responsibility to make these identifications and that the contemporary identification of the units be unambiguous.

Specifically, to implement the changes made in response to the comments on the proposal rule, § 1.42-19(b)(3) of the final regulations provides that a taxpayer separately identifies (i) units in the qualified group of units used for satisfying the average income set-aside and (ii) units in the qualified group for purposes of the applicable fractions. Section 1.42-19T(c)(1) of the temporary regulations requires that this be done by recording these identifications in the taxpayer's books and records (where the identification must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2)) and by communicating that identification annually to the applicable Agency. These rules promote certainty and administrability. The rules, in conjunction with the other procedures provided in § 1.42-19T(c)(3), will allow taxpayers, Agencies, and the IRS to more easily verify the status, including the average imputed income limitation, of the qualified group of units used for purposes of satisfying the average income set-aside and the qualified group of units used for purposes of determining the applicable fraction(s).

In addition, taxpayers are required to report specified information to Agencies and to maintain records in sufficient detail to establish the accuracy of the project's applicable fractions, the satisfaction of the average income set-aside, and compliance with requirements in section 42 and the applicable regulations. Section 1.6001-1 requires the keeping of records “sufficient to establish the amount of gross income, deductions, credits, or other matters required to be shown by such person in any return of such tax or information.” See §§ 1.6001-1 and 1.42-5.

Section 42(g)(1)(C)(ii) contains substantive requirements for income limitations applicable in the average income test. Specifically, the taxpayer must designate the imputed income limitation for each unit taken into account under the average income test; the average of those imputed income limitations cannot exceed 60 percent of AMGI; and the designated imputed income limitation of any unit must be 20, 30, 40, 50, 60, 70, or 80 percent of AMGI. That statutory provision, however, does not contain procedural requirements to specify the manner in which taxpayers must designate the imputed income limitation of units.

Filling this gap, the proposed regulations added procedural requirements that a taxpayer must designate each imputed income limitation in accordance with: (1) any procedures established by the IRS in forms, instructions, or publications or in other guidance published in the Internal Revenue Bulletin pursuant to § 601.601(d)(2)(ii)( b ); and (2) any procedures established by the Agency that has jurisdiction over the low-income housing project that contains the units to be designated, to the extent that those Agency procedures are consistent with IRS guidance and the governing regulations.

No negative comments were submitted regarding these provisions, but, on review, and in conjunction with other revisions made based on comments received, the Treasury Department and the IRS determined that more detailed designation rules were needed to promote certainty and administrability. Section 1.42-19T(c)(3)(iv) of the temporary regulations provides that a taxpayer designates a unit's imputed income limitation by recording the limitation in its books and records, where it must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2). The final regulations require the initial designation of a unit to be made no later than when a unit is first occupied as a low-income unit. See § 1.42-19(c)(3)(i). Under § 1.42-19T(c)(3)(iv) of the temporary regulations, the designation must also be communicated annually to the applicable Agency, and the applicable Agency may establish the time and manner in which information is provided to it. See § 1.42-19T(c)(2)(i).

In the context of the final regulations' provision of significant flexibility with respect to satisfying the average income test and identifying a qualified group of units, these designation and identification rules will facilitate taxpayer access to this additional flexibility. Providing a specific method of designation will give taxpayers more certainty than the proposed regulations as to how to meet the statutory requirement of designation. The rule will also benefit administration by ensuring a contemporaneous record of designation, without creating a significant burden on taxpayers. The final regulations also revise timing of the designation so that it is no longer required by the end of the first year of the credit period, and instead is based on when a unit is first occupied as a low-income unit. This rule better aligns the timing of designation with the rental of low-income units and should allow a taxpayer to make designations after having a chance to evaluate the market for a particular unit. Finally, requiring annual communication of the information to the applicable Agency will help the Agency determine whether a project is in compliance with the requirements of section 42. The temporary regulations give flexibility to Agencies to determine the best time and manner for taxpayers to communicate the information so each Agency can ensure the system best serves that particular Agency with minimal burden.

Importantly, the temporary regulations also provide Agencies with the discretion, on a case-by-case basis, to waive in writing any failure to comply with the temporary regulations' recordkeeping and reporting requirements. See § 1.42-19T(c)(4). The waiver may be done up to 180 days after discovery of the failure, whether by taxpayer or Agency. At the discretion of the applicable Agency, this waiver may treat the relevant requirements as having been satisfied.

In providing Agencies with the ability to waive and the timeline for waiving, the Treasury Department and the IRS considered comments made in response to the proposed regulations regarding the rules for “removed units” and the timing for completing “mitigating actions.” In response to the proposed regulations' rules on removed units, Agencies commented that they do not have authority to determine the tax consequences of noncompliance with respect to the requirements of section 42, and, instead, Agencies are only responsible for determining the existence of noncompliance itself. The ability of Agencies to waive the failure to comply with the procedural requirements provided by the final regulations is not inconsistent with the scope of Agency responsibility, and the IRS itself will ultimately determine the tax consequences of noncompliance.

With respect to timing, many commenters suggested that a 60-day period in which to take mitigating actions beginning on the first day after the year of noncompliance was too short and began before the noncompliance may be known. Commenters recommended various time periods, and also suggested that the time period run from the time of discovery of the noncompliance. Although the Agency waiver rule in the temporary regulations involves a different situation, commenters' recommendations provide valuable information regarding Agencies' need for a sufficient period of time to consider whether to grant the waiver and that this time period should begin when the failure to comply is discovered. Thus, the temporary regulations provide that the period to provide a waiver is the 180-day period after discovery of the failure to comply by taxpayer or Agency.

One commenter expressed concern that, in some situations, a multiple-building project claims the section 42 credit beginning in two different years depending on when the different buildings in the project are fully leased, and thus, the credit period for one building in the project may begin in one taxable year and the credit period for a second building in the same project may begin during the subsequent taxable year. In such a situation, the commenter requested, the regulations should permit the taxpayer to make unit designations at the end of the respective taxable years in which the credit period begins for each building in the same project.

The final regulations require a designation of the imputed income limitation for a unit by the time the unit is first occupied as a low-income unit, which could take place in different taxable years for different units. This rule also allows conversion of a market-rate unit to low-income status, with designation of an income limitation occurring any time before it is first occupied as a low-income unit. Thus, the final regulations provide the flexibility that may be needed by multiple-building projects. In addition, as described later, the final regulations permit the changing of a unit's imputed income limitation in certain circumstances. For an unoccupied unit that is subject to a change in imputed income limitation, the final regulations provide that the taxpayer must designate the unit's changed imputed income limitation prior to occupancy of that unit. For an occupied unit that is subject to a change in imputed income limitation, the taxpayer must designate the unit's changed imputed income limitation prior to the end of the taxable year in which the change occurs.

In general, the proposed regulations did not allow income limitations to be changed after they had been designated.

The preamble to the proposed regulations, however, requested comments on an alternative mitigating approach for situations in which a unit losing status as a low-income unit had caused the average of unit limitations to rise above 60 percent of AMGI as of the close of a taxable year. The mitigating approach would have allowed the taxpayer to redesignate the imputed income limitation of a low-income unit to return the average of unit limitations to 60 percent of AMGI or lower.

Numerous commenters disagreed with the proposed regulations' disallowance of modifying the designated imputed income limitation of a unit. In general, these commenters stressed that greater flexibility to change unit designations would align with what multiple Agencies had been pursuing to implement existing State and local policies. Some commentators observed that the proposed regulations may conflict with other Federal or State laws or programs that, in certain cases, require rental housing to accommodate a tenant's need to move to another unit. Additionally, some commentators noted that after enactment of section 42(g)(1)(C), some Agencies adopted their own guidance with which the subsequently published proposed regulations were in conflict.

Multiple commenters recommended that the final regulations allow taxpayers to modify unit designations if the Agency with jurisdiction over the project at issue allows for that in its policies and the Agency consents to the change. A different commenter suggested that the final regulations should allow taxpayers to adjust imputed income limitation designations over time, provided that the taxpayer's adjusted designations continue to satisfy the requirements of the average income test (that is, at all times 40 percent of the units remain rent-restricted and occupied by tenants whose income does not exceed the imputed income limitation designated by the owner, and the average of the imputed income limitation designations does not exceed 60 percent of AMGI in any given year).

The Treasury Department and the IRS agree with taxpayers that the final regulations should allow greater flexibility in changes in unit designations than the proposed regulations did. Because not all Agencies may want the exact same standards for permitting redesignations, the final regulations address these taxpayer concerns by providing Agencies significant flexibility in determining procedures.

Under the final regulations, a taxpayer may change the imputed income limitation designation of a previously designated low-income unit in any of the following circumstances:

(1) In accordance with any procedures established by the IRS in forms, instructions, or guidance published in the Internal Revenue Bulletin pursuant to § 601.601(d)(2)(ii)( b ) of this chapter.

(2) In accordance with an Agency's publicly available written procedures, if those procedures are available to all of the Agency's projects that have elected the average income test.

(3) To enhance protections set forth in the Americans With Disabilities Act of 1990 (ADA), Public Law 101-336, 104 Stat. 328; the Fair Housing Amendments Act of 1988, Public Law 100-430, 102 Stat. 1619; the Violence Against Women Act of 1994, Public Law 103-322, 108 Stat. 1902; the Rehabilitation Act of 1973, Public Law 93-112, 87 Stat. 394; or any other State, Federal, or local law or program that protects tenants and that is identified by the IRS or an Agency in a manner described in (1) or (2) above. The tenant protections that apply to an average-income project and that redesignation may enhance do not necessarily have any specific connection to section 42. For example, the protections may be ones that apply to all multifamily rental housing, or they may apply to the project at issue because some congressionally authorized spending supported the project with Federal financial assistance. Even if a tenant protection does not legally apply to a particular average-income project but does apply to analogous multifamily rental housing, the owner of the project may redesignate income limitations to implement the protection for the project's residents.

(4) To enable a current income-qualified tenant to move to a different unit within a project keeping the same income limitation (and thus the same maximum gross rent), with the newly occupied unit and the vacated unit exchanging income limitations.

(5) To restore the required average income limitation for purposes of identifying a qualified group of units either for purposes of satisfying the average income set-aside or for purposes of identifying the units to be used in computing applicable fraction(s). This rule is limited to newly designated, or redesignated, units that are vacant or are occupied by a tenant that would satisfy the new, lower imputed income limitation.

Also, the temporary regulations provide that a taxpayer effects a change in a unit's imputed income limitation by recording the limitation in its books and records, where it must be retained for a period not shorter than the record retention requirement under § 1.42-5(b)(2). See § 1.42-19T(d)(2). The new designation must also be communicated to the applicable Agency in the time and manner required by the applicable Agency and must become part of the annual report to the Agency of income designations. As part of its discretion to specify the manner of communicating the new designation, the Agency may, if it wishes, require identification of the justification for the redesignation. The prior designation must be retained in the books and records for the period specified in § 1.42-19T(c)(3)(iv). These requirements for redesignations are consistent with those for initial designation of a unit's imputed income limitation and, similarly, are intended to increase both certainty and administrability with respect to redesignations.

Three commenters recommended that the final regulations should provide relief for projects that have elected the average income minimum set-aside prior to the publication of the final rule. These commenters suggested that taxpayers that elected the average income test before the finalization of the regulations did so based on a set of expectations that may be in conflict with how the final regulations actually work. For example, one commenter stated that the final regulations should provide taxpayers the opportunity to choose a different minimum set-aside.

Section 42 provides that an election of a minimum set-aside is irrevocable. Therefore, these final regulations do not permit taxpayers to change a minimum set-aside election.

In general, the final regulations apply to taxable years beginning after December 31, 2022. Section 1.42-19(f)(2) provides rules for residential units in projects that were already occupied prior to the applicability date of the regulations. The final regulations in both §§ 1.42-15(i)(2) and 1.42-19(f)(3) also contain provisions that makes them more broadly available for taxpayers that desire their application. For taxable years prior to the first taxable year to which these regulations apply, taxpayers may rely on a reasonable interpretation of the statute in implementing the average income test for taxable years to which these regulations do not apply.

For the reasons discussed above, the Treasury Department and the IRS consider the recordkeeping and reporting requirements contained in the temporary regulations to be a logical outgrowth of the proposed rule. In any event, the Treasury Department and the IRS determine that there would be good cause to issue the temporary regulations contained in this Treasury Decision without additional notice and the opportunity for public comment. This action may be taken pursuant to section 553(b)(3)(B) of the Administrative Procedure Act, which provides that advance notice and the opportunity for public comment are not required with respect to a rulemaking when an “agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” Under the “public interest” prong of 5 U.S.C. 553(b)(3)(B), the good cause exception appropriately applies where notice-and-comment would harm, defeat, or frustrate the public interest, rather than serving it.

It would frustrate the public interest to delay the applicability date of the regulations until the recordkeeping and reporting requirements have received additional notice and comment. Taxpayers are seeking to rely on the substantive final regulations as soon as possible, and taxpayers cannot do so prior to the applicability date of the requirements in the temporary regulations. In general, these substantive final regulations provide significant flexibility with respect to satisfying the average income test, identifying a qualified group of units for use in the average income set-aside test and applicable fraction determinations, and changing the imputed income limitation designations of residential units. This increased flexibility was in response to taxpayer comments on the proposed regulations, including taxpayer complaints about burdens in the proposed regulations. The increased regulatory flexibility, in turn, necessitates these recordkeeping and reporting requirements to enhance administrability and certainty for the taxpayers and Agencies that will be taking advantage of the flexibility. In addition, these requirements are minimally burdensome. The recordkeeping requirements are similar to existing recordkeeping requirements for low-income housing projects, and Agencies may specify the time and manner of communication of regulatorily required information and may waive any failure to comply.

There is also good cause to find notice is “unnecessary” within the meaning of 5 U.S.C. 553(b)(3)(B). The Treasury Department and the IRS are responding to commenters by providing the flexibility they sought, which requires enhanced tracking to prevent abuse. The recordkeeping additions do not alter the substance of the basic rule provisions, which are a logical outgrowth of the NPRM. And because the recordkeeping requirements provide what is minimally necessary to ensure compliance and oversight, soliciting further comment would not alter these minimal recordkeeping requirements.

Accordingly, the Treasury Department and IRS have determined that notice is unnecessary and that it is in the public interest to allow expedited reliance on the recordkeeping and reporting requirements contained in the temporary regulations. At the same time, as set forth above, the Treasury Department and IRS are soliciting comments on the recordkeeping and reporting requirements in the notice of proposed rulemaking published contemporaneously with this final rule. At the time of publication, the Office of Management and Budget (OMB) has considered and approved these recordkeeping and reporting requirements under the Paperwork Reduction Act so that taxpayers can rapidly access the flexibility provided in these final regulations regarding the average income test.

Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.

These final regulations have been designated as subject to review under Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) (MOA) between the Treasury Department and the Office of Management and Budget (OMB) regarding review of tax regulations. The Office of Information and Regulatory Affairs has designated these final regulations as significant under section 1(b) of the MOA.

The Tax Reform Act of 1986, Public Law 99-514, 100 Stat. 2085, created the low-income housing credit under section 42 of the Code. Section 42(a) provides that the credit amount earned by a qualified low-income building depends on the number of low-income units in the building, among other factors. Among other requirements, a low-income unit as defined in section 42(i)(3) must be rent-restricted, and the individuals occupying the unit must meet the income limitation applicable to the project of which the building is a part.

To qualify as a low-income housing project, one of the section 42(g) minimum set-aside tests, as elected by the taxpayer, must be satisfied. Prior to the enactment of the Consolidated Appropriations Act of 2018, Public Law 115-141, 132 Stat. 348 (2018 Act), section 42(g) set forth two minimum set-aside tests, known as the 20-50 test and the 40-60 test. Under the 20-50 test, at least 20 percent of the residential units in the project must be both rent-restricted and occupied by tenants whose gross income is 50 percent or less of AMGI. Under the 40-60 test, at least 40 percent of the residential units in the project must be both rent-restricted and occupied by tenants whose gross income is 60 percent or less of AMGI. To be rent restricted, a unit must have maximum gross rent no more than 30 percent of the unit's income limitation.

The 2018 Act added section 42(g)(1)(C), which contains a third minimum set-aside test—the average income test. A project meets the minimum requirements of the average income test if 40 percent or more of the residential units in the project are both rent-restricted and occupied by tenants whose income does not exceed the imputed income limitation designated by the taxpayer with respect to the specific unit. (In the case of a project described in section 142(d)(6), 40 percent in the preceding sentence is replaced by 25 percent.) For a project to meet the average income test, among other criteria, the average of the imputed income limitations must not exceed 60 percent of AMGI.

The Treasury Department and the IRS have assessed the benefits and costs of these final regulations relative to a no-action baseline reflecting anticipated Federal income tax-related behavior in the absence of these regulations.

These final regulations provide guidance on the average income test under section 42(g)(1)(C). Despite the absence of this guidance, between 2018 and 2022 approximately 200 taxpayers elected the average income test for projects containing, in the aggregate, just over 2,000 buildings. With the benefit of this guidance, we project that an additional 100 taxpayers will elect the average income test annually, for around 1,000 buildings in aggregate, relative to a baseline scenario of no guidance.

These final regulations are expected to increase election of the average income test because the regulations will reduce uncertainty regarding the interpretation of 42(g)(1)(C). Absent these regulations, some taxpayers might shy away from the average income test, fearing adverse tax consequences if their interpretation of the statute is determined to be incorrect as well as lost time and expense for litigation, even if their interpretation is eventually confirmed. Instead, these or other taxpayers would elect either the 20-50 test or the 40-60 test.

Projects electing the average income test may be more financially stable and more likely to be mixed income than if they had to rely on the 20-50 or 40-60 tests; however, in aggregate, the final regulations are expected to have essentially no immediate effect on the number of affordable housing units produced. The pool of potential low-income housing credits allocated by state housing agencies is capped annually and is generally oversubscribed. Thus any increase in allocated credits flowing to projects electing the average income test is expected to be offset by a concomitant reduction in credits flowing to projects electing one of the other two set-aside tests.

Despite having no measurable impact on the stock of affordable housing, these final regulations will likely have some economic effect. First, there will likely be a minor efficiency gain to taxpayers electing the average income set-aside compared to the situation of taxpayers that, in the absence of this guidance, would experience uncertainty interpreting section 42(g)(1)(C). These taxpayers may save on consulting fees or hours of effort. Second, there may be a minor efficiency gain from avoiding time spent in litigation regarding the interpretation of section 42(g)(1)(C). These are unambiguous benefits of providing the final regulations, even if quantitatively small. Third, there may be costs associated with the record-keeping requirements of these final regulations. In Section II of these Special Analyses, we estimate that the annual paperwork burden for this regulation is $676,712 in aggregate. These costs fall upon low-income housing tax credit (LIHTC) building owners who choose to incur them when electing the average income test.

Less directly, the final regulations will likely result in a marginal geographic redistribution in the location of LIHTC-supported housing, away from densely populated areas and towards more sparsely populated ones. Absent an option to elect the average income test, property owners seeking LIHTCs must rely on either the 20-50 or 40-60 tests. These tests set a single income standard for all LIHTC-generating units in a building. For a building to be financially feasible, its owners must be confident that there is a sufficiently large pool of potential renters having incomes in these relatively narrow ranges (just under 50 or 60 percent of AMGI). These conditions are more easily met in densely populated areas.

In contrast, with income averaging, developers have leeway to establish a variety of income limitations in a building. Thus, in a sparsely populated area where there are not enough people in the relatively narrow required range of incomes to support a 20-50 or 40-60 building, an average income building may be financially feasible. Despite the low population density, the wider range of potential tenant incomes may enable the building owner to fill the low-income units with qualifying tenants from that vicinity. That ability could make the difference in whether or not the project is feasible.

To be sure, most of the effect of the average income test on the geographic distribution of affordable housing is a direct consequence of statutory amendments to section 42 made by the 2018 Act, independent of this regulatory guidance. However, to the extent that the final regulations encourage some taxpayers to use the average income test who otherwise would not, the regulations reinforce the statutory effect. The end result is a marginal transfer of economic well-being from renters and LIHTC property developers in densely populated areas towards renters and LIHTC property developers in sparsely populated areas.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) (PRA) requires that a Federal agency obtain the approval of OMB before collecting information from the public, whether such collection of information is mandatory, voluntary, or required to obtain or retain a benefit. The collections of information contained in these regulations has been approved by OMB under control number 1545-0988.

The collections of information that are needed for certainty and administrability of the final regulations are included in § 1.42-19T of the temporary regulations. Section 1.42-19T(c)(1) provides recordkeeping and reporting requirements related to the identification of a qualified group of units for each of (i) satisfaction of the average income set-aside test and (ii) applicable fraction determinations. Section 1.42-19T(c)(2) provides reporting requirements to the Agency with jurisdiction over a project. Section 1.42-19T(c)(3)(iv) provides recordkeeping and reporting requirements related to designations of the imputed income limitations for residential units. Section 1.42-19T(d)(2) provides recordkeeping and reporting requirements related to changing a unit's designated imputed income limitation.

This information in the collections of information will generally be used by the IRS and Agencies for tax compliance purposes and by taxpayers to facilitate proper reporting and compliance. Specifically, the collections of information in § 1.42-19T apply to taxpayer owners of projects that receive the low-income housing credit and elect the average income set-aside. With respect to the recordkeeping requirements in § 1.42-19T(c)(3)(iv) and (d)(2) and section 42(g)(1)(C)(ii)(I) requires that the taxpayer designate the imputed income limitations of the units taken into account for purposes of the average income test. Thus, the recordkeeping requirements that are provided allow for a process of designation that will result in a reliable record of both the original designations of the imputed income limitations of low-income units and any redesignations of units' limitations within a project.

The recordkeeping rules in § 1.42-19T(c)(1) with respect to a qualified group of units are similarly needed to ensure there is a reliable record to show that the units used for purposes of the average income set-aside test, and for determining a building's applicable fraction were part of a group of units within the project whose average designated imputed income limitations do not exceed 60 percent of AMGI. This limitation is consistent with the requirement in section 42(g)(1)(C)(ii)(II). The annual reporting requirements in § 1.42-19T(c)(1) and (3) and (d)(2) are also similar in substance to other annual certifications required of taxpayers. For example, minimum certifications by taxpayers are required in qualified allocation plans as provided in § 1.42-5(c). The reporting requirements in these final regulations also provide added flexibility by allowing the applicable Agency to determine the time and manner that the reporting is made under § 1.42-19T(c)(2)(i). Also, § 1.42-19T(c)(4) gives Agencies the ability to waive any failure of reporting on a case-by-case basis.

A summary of paperwork burden estimates follows:

Estimated number of respondents: Approximately 200 taxpayers elected the average income test for just over 2,000 buildings between 2018 and 2022. When viewed annually, we project that approximately 100 additional taxpayers will have eligible buildings and 1,000 additional buildings will be eligible under the average income test.

Estimated burden per response: We estimate that identifying which units are for use in the average income set-aside test and applicable fraction determinations and designating a unit's imputed income limitation takes an average of 15 minutes per unit. Based on an estimated average of 15 units per building and an average 15 minutes of time per unit, an impacted taxpayer will incur an average of 225 minutes per building to record the additional designations due to the flexibility under the regulations for the average income test. Total average annual burden for recording the designations per building is 11,250 hours (15 units × 15 minutes × 3,000 buildings).

Taxpayers are also required to report redesignation of units, and why they are required to redesignate units during the year. For purposes of this analysis, we assume that an average of 4 units per building will be redesignated annually. We estimate each redesignation will take an average of 10 minutes. Thus, we estimate the average number of minutes per year to record redesignations for an impacted taxpayer to be 40 minutes per building for a total average annual burden of 2,000 hours (40 minutes × 3,000 buildings).

In addition, we estimate an annual reporting burden related to the expanded flexibility rules to average 20 minutes per impacted taxpayer for a total burden of 100 hours (20 minutes × 300 taxpayers).

Estimated frequency of response: Annual.

Estimated total burden hours: The annual burden hours for this regulation is estimated to be 13,350 hours. Using a monetization rate of $50.69 per hour (2020 dollars), the burden for this regulation is $676,712 for impacted taxpayers.

A Federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. chapter 6), it is hereby certified that this final regulation will not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that, prior to the publication of this final regulation and before the enactment of the 2018 Act, taxpayers were already required to satisfy either the 20-50 test or the 40-60 test, as elected by the taxpayer, in order to qualify as a low-income housing project. The 2018 Act added a third minimum set-aside test (the average income test) that taxpayers may elect. This final regulation sets forth requirements for the average income test, and the costs associated with the average income test are similar to the costs associated with the 20-50 test and 40-60 test. In addition, affected taxpayers, including some who end up not electing the average income test) will incur minimal costs in reading and understanding the regulations. The Treasury Department and the IRS estimate that the burden involved in reading and understanding the regulations will be approximately 3 to 5 hours and largely will be borne by advisors and trade media. A portion of the cost to such advisors and trade media will be passed on to taxpayers.

As described in more detail in the Paperwork Reduction Act section of this preamble, approximately 200 taxpayers elected the average income test between 2018 and 2022. When that figure is viewed annually, the Treasury Department and the IRS project that approximately 100 additional taxpayers will elect the average income test due to the final regulations. For the 300 taxpayers affected, the annual burden hours for this regulation is estimated in the Paperwork Reduction Act analysis to be 13,350 hours. Thus, the average annual burden hours amount to 44.5 hours per affected small entity. This estimate reflects all recordkeeping and reporting requirements associated with the final regulations, including (i) identifying which units are for use in the average income set-aside test, (ii) identifying which units are for use in applicable fraction determinations, (iii) designating a unit's imputed income limitation, (iv) reporting redesignation of units, (v) reporting reasons why units are redesignated, and (v) the reporting burden related to the expanded flexibility rules.

Monetized at $50.69 per hour (2020 dollars), the average annual burden hours represent a cost of $2,256 per affected small entity. This amount is likely quite small relative to the entity's revenue. A precise estimate of typical revenue is not possible with the data available to the Treasury Department and the IRS. However, the Treasury Department and the IRS estimate that the typical annual LIHTC allocation to an affected entity is between $125,000 and $1,450,000. Relative to these sums, the $2,256 annual cost of the regulations is not a significant economic impact.

Accordingly, it is hereby certified that these regulations will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the RFA.

For the applicability of the RFA to the temporary regulations, refer to the Special Analyses section of the preamble to the notice of proposed rulemaking published in the Proposed Rules section in this issue of the Federal Register .

Pursuant to section 7805(f), the proposed regulation was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received. The Treasury Department and the IRS also requested comments from the public.

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. This final rule does not include any Federal mandate that may result in expenditures by State, local, or tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These regulations do not have federalism implications and do not impose substantial direct compliance costs on State and local governments or preempt State law within the meaning of the Executive order.

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

The principal authors of these regulations are Dillon Taylor, Office of the Associate Chief Counsel (Passthroughs and Special Industries), and Michael J. Torruella Costa, formerly at Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR part 1 is amended as follows:

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. It is impracticable to publish an NPRM because we must establish this safety zone by October 9, 2022 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule is contrary to public interest because it would delay the safety measures necessary to respond to potential hazards associated with the Tour Du Teche 135 paddle race. Immediate action is needed to protect vessels, event participants, and mariners from the safety hazards associated with the race.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Houma (COTP) has determined that potential hazards associated with the Tour Du Teche 135 paddle race will be a safety concern to vessels and persons. This rule is needed to protect the public, mariners, event participants, and vessels from the potential hazards associated with the Tour Du Teche 135 paddle race.

The Coast Guard is establishing a temporary safety zone from 10 a.m. through 5 p.m. on October 9, 2022. The temporary safety zone encompasses the Berwick Bay lock and dam (in the proximity of MM 119) and extends 100-meters from the western shore outwards of the Atchafalaya River through Berwick Bay, ending at the Southwest “Red” Reef Lighthouse, near the I-90 Bridge (in the proximity of MM 121). This temporary safety zone will not interfere with navigable waterway. No person or vessel will be permitted to enter or transit within the safety zone, unless specifically authorized by the COTP or a designated Patrol Commander. Public notifications will be made to the local maritime community through Broadcast Notice to Mariners (BNM). Mariners and other members of the public may contact the Waterways Management Division at MSU Morgan City, to inquire about the safety zone by telephone at (985) 855-0724.

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

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

This temporary safety zone will not restrict navigation on the Atchafalaya River thought Berwick Bay. Moreover, the Coast Guard will issue a Local Notice to Mariners (LNM) about the zone, and the rule will allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1., associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone that will not prohibit mariners and the public to transit through the navigational channel in the Atchafalaya River through Berwick Bay. It is categorically excluded from further review under paragraph L60 (a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration (REC) supporting this determination is available in the docket where indicated under the ADDRESSES section of this preamble.

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

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

On December 11, 2020, the Secretary published a document in the Federal Register announcing waivers and modifications of statutory and regulatory requirements governing the Federal student financial aid programs under the authority of the HEROES Act, as codified at 20 U.S.C. 1098aa-1098ee. 85 FR 79856 (Dec. 11, 2020). On January 19, 2021, the Secretary published corrections to those updated waivers and modifications. 86 FR 5008 (Jan. 19, 2021). The Secretary is issuing this document to provide certain updated waivers and modifications under the HEROES Act.

The HEROES Act authorizes the Secretary to waive or modify any statutory or regulatory provision applicable to the Federal student financial assistance programs under title IV of the Higher Education Act of 1965, as amended (HEA), 20 U.S.C. 1070 et seq., as the Secretary deems necessary in connection with a war or other military operation or national emergency to fulfill certain purposes enumerated in the statute. 20 U.S.C. 1098bb(a). Such waivers or modifications may be provided to affected individuals who are recipients of Federal student financial assistance under title IV of the HEA; and to institutions of higher education (IHEs), eligible lenders, guaranty agencies (GAs), and other entities participating in the Federal student financial assistance programs under title IV of the HEA that are located in areas declared disaster areas by any Federal, State, or local official in connection with a national emergency, whose operations are significantly affected by such a disaster (affected entities). Id. 1098bb(a)(2)(A), (E). Affected individuals include, among others, any individual who “resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency” or any individual who “suffered direct economic hardship as a direct result of a . . . national emergency, as determined by the Secretary.” Id. 1098ee(2)(C), (D). The Secretary may issue waivers and modifications “as may be necessary to ensure that” such individuals “are not placed in a worse position financially in relation to [their] financial assistance because of their status as affected individuals.” Id. 1098bb(a)(2)(A). Affected entities “may be granted temporary relief from requirements that are rendered infeasible or unreasonable by a national emergency, including due diligence requirements and reporting deadlines.” Id. 1098bb(a)(2)(E).

In 20 U.S.C. 1098bb(b)(1), the HEROES Act further provides that section 437 of the General Education Provisions Act (20 U.S.C. 1232) and section 553 of the Administrative Procedure Act (5 U.S.C. 553) do not apply to this waiver or modification of student financial assistance program provisions.

The Department recently published a memorandum outlining its interpretation of the HEROES Act. See Notice of Debt Cancellation Legal Memorandum, 87 FR 52943 (Aug. 30, 2022). That memorandum explained why a January 2021 memorandum authored by a former Principal Deputy General Counsel was substantively and procedurally deficient. See id. at 52944-45 & n.5.

On March 13, 2020, by Proclamation 9994, 85 FR 15337, the President declared a national emergency concerning the COVID-19 pandemic, which was extended on February 24, 2021 (86 FR 11599), and February 18, 2022 (87 FR 10289). The waivers and modifications provided in this document apply only to the declared national emergency due to the COVID-19 pandemic. Prior waivers granted by the Secretary under this Act remain in effect for affected individuals and affected entities, as defined in those waivers.

In 20 U.S.C. 1098ee, the HEROES Act provides definitions critical to determining whether a person is an “affected individual” under the Act and, if so, which waivers and modifications apply to the affected individual. As noted above, the term “affected individual” includes any individual who “resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency” or “any individual who “suffered direct economic hardship as a direct result of a national emergency, as determined by the Secretary.” 20 U.S.C. 1098ee(2)(C), (D). Because the COVID-19 pandemic has been declared and continues to be a national emergency, and because the Federal Government has declared every State, the District of Columbia, and all five permanently populated United States territories to be disaster areas due to COVID-19, the “affected individuals” for purposes of the waivers and modifications described in this document include any person with a Federal student loan under title IV of the HEA.

Next, the Act describes in 20 U.S.C. 1098bb(a)(2) the purposes for which the Secretary may grant relief to “affected individuals.” As relevant here, the Secretary may waive or modify statutory and regulatory provisions “as may be necessary to ensure” that “recipients of student financial assistance under title IV of the [HEA] who are affected individuals are not placed in a worse position financially in relation to that financial assistance because of their status as affected individuals.” 20 U.S.C. 1098bb(a)(2)(A). The statute also authorizes the Secretary to minimize administrative requirements placed on affected individuals who are recipients of student financial assistance to the extent possible without impairing the integrity of the student financial assistance programs, to ease the burden on such individuals and avoid inadvertent technical violations or defaults. Id. 1098bb(a)(2)(B).

The Secretary determined that the financial harm caused by the COVID-19 pandemic has made the waivers and modifications described in this document necessary to ensure that affected individuals are not placed in a worse position financially with respect to their student loans because of that harm. 1 The Secretary further determined that the modifications and waivers as described in this document will help minimize the administrative burdens placed on affected individuals. The Secretary is publishing this document in the Federal Register in accordance with 20 U.S.C. 1098bb(b)(1). The waivers and modifications are discussed further below:

• The automatic suspension of payment and application of a zero percent interest rate for affected individuals with federally held Direct Loans, federally held Federal Family Education Loans (FFEL), federally held Perkins Loans, federally held Health Education Assistance Loans (HEAL), and defaulted FFEL loans subject to collection by a guaranty agency are further extended until December 31, 2022. The automatic suspension of payment and the application of a zero percent interest rate on loans held by the Department were extended to October 1, 2020, under the Coronavirus Aid, Relief, and Economic Security (CARES) Act. 2 The Secretary previously extended those benefits through August 31, 2022, and on August 24, 2022, the Secretary announced the extension of those benefits through December 31, 2022. Affected individuals will be required to make payments on their loans beginning in January 2023.

• On August 24, 2022, the Secretary announced that he intended to discharge loans to address the financial hardship arising out of the COVID-19 pandemic on individuals who owe student loans. Specifically, the Department announced it intended to discharge certain amounts of Federal Direct Loans and FFEL loans held by the Department or subject to collection by a guaranty agency and Federal Perkins Loans held by the Department (covered loans). The Department announced that, subject to certain income limitations, it intended to discharge up to a total of $20,000 in covered loans for affected individuals who received Pell Grants and up to a total of $10,000 in covered loans for affected individuals who did not receive a Pell Grant. Granting relief on a class-wide basis in this manner will also minimize administrative burdens and thus “ease the burden” on students who are affected individuals. 20 U.S.C. 1098bb(a)(2)(B); see also id. 1098bb(b)(3) (authorizing class-wide relief).

Prior waivers granted by the Secretary under the HEROES Act that are not otherwise mentioned in this document remain in effect for affected individuals, as defined in those waivers. See 85 FR 79856; 86 FR 5008.

Section 3513 of the CARES Act directs the Secretary to: (1) suspend all payments due, (2) cease interest accrual, and (3) suspend involuntary collections for loans that are held by the Department and made under parts D and B of title IV of the HEA through September 30, 2020. The section also directs the Secretary to deem each month for which a loan payment was suspended as if the borrower of the loan had made a payment for the purpose of any loan forgiveness program or loan rehabilitation program authorized under parts D or B for which the borrower would have otherwise qualified. Lastly, this section directs the Secretary to ensure that, for the purpose of reporting information about the loan to a consumer reporting agency, any payment that has been suspended is treated as if it were a regularly scheduled payment made by a borrower.

On August 8, 2020, President Donald J. Trump issued a memorandum directing the Secretary to continue to waive interest and payments on such loans until December 31, 2020. On December 4, 2020, at the direction of President Trump, the Department further extended the payment pause to January 31, 2021. On January 21, 2021, at the direction of President Joseph R. Biden, the Department further extended the pause through September 30, 2021. On August 6, 2021, the President authorized the Secretary to use his authority under the HEROES Act to extend the benefits provided under section 3513 of the CARES Act until January 31, 2022, for borrowers with federally held Perkins, HEAL, Direct, and FFEL loans. President Biden announced on December 22, 2021, that the Secretary would extend the waiver on interest and payments on such loans through May 1, 2022, and the Secretary further extended the benefits until August 31, 2022. Following these prior announcements, on August 24, 2022, the Secretary announced he was using his authority under the HEROES Act to modify the terms of the CARES Act to extend the waiver on interest and payments on such loans through December 31, 2022. 3

The Secretary extends those waivers and modifications specified in the December 11, 2020, Federal Register document (85 FR 79856), that relate to the payment and collection of, and accumulation of interest on, Federal student loans, through December 31, 2022. The Department further extends the corresponding pause for FFEL loans held by guaranty agencies, as discussed in Dear Colleague Letter GEN-21-03, through December 31, 2022.

Pursuant to the HEROES Act, 20 U.S.C. 1098bb(a)(1), the Secretary modifies the provisions of: 20 U.S.C. 1087, which applies to the Direct Loan Program under 20 U.S.C. 1087a and 1087e; 20 U.S.C. 1087dd(g); and 34 CFR part 674, subpart D, and 34 CFR 682.402 and 685.212 to provide that, notwithstanding any other statutory or regulatory provision, the Department will discharge the balance of a borrower's eligible loans up to a maximum of: (a) $20,000 for borrowers who received a Pell Grant and had an Adjusted Gross Income (AGI) below $125,000 for an individual taxpayer or below $250,000 for borrowers filing jointly or as a Head of Household, or as a qualifying widow(er) in either the 2020 or 2021 Federal tax year; or (b) $10,000 for borrowers who did not receive a Pell Grant and had an AGI on a Federal tax return below $125,000 if filed as an individual or below $250,000 if filed as a joint return or as a Head of Household, 4 or as a qualifying widow(er) in either the 2020 or 2021 Federal tax year. This waiver is applicable to borrowers with eligible loans who apply by the deadline established by the Secretary (to the extent an application is required) and who are determined to be eligible by the Department. Borrowers who are eligible for relief without applying will have the option to opt out of the program. Eligible loans include the following categories of loans, provided they were disbursed by June 30, 2022: Direct Loans, FFEL loans held by the Department or subject to collection by a guaranty agency, and Perkins Loans held by the Department.

Direct Consolidation loans disbursed after June 30, 2022, and for which the repaid loans were loans described in the paragraph above, are also eligible for relief. However, Direct Consolidation loans disbursed after June 30, 2022, and for which the repaid loans include a FFEL loan not held by ED, are only eligible for relief if the borrower submitted an application to consolidate such loans prior to September 29, 2022.

Accessible Format: On request to Robin Moss, by telephone: (202) 453-7106 or by email: robin.moss@ed.gov, individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.

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

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

(Assistance Listing Numbers: 84.032 Federal Family Education Loan Program; 84.038 Federal Perkins Loan Program; 84.063 and 84.268 William D. Ford Federal Direct Loan Program.)

Program Authority: 20 U.S.C. 1071, 1082, 1087a, 1087aa, Part F-1.

Following the promulgation in 2010 of a 1-hour primary SO 2 NAAQS, on August 5, 2013, EPA designated the Detroit area within the State of Michigan as nonattainment for this NAAQS, in conjunction with designating multiple areas in other states as nonattainment (78 FR 47191).

For a number of nonattainment areas, including the Detroit area, EPA published an action on March 18, 2016, effective April 18, 2016, finding that Michigan and other pertinent states had failed to submit the required SO 2 nonattainment plan by the submittal deadline (81 FR 14736). This finding initiated a deadline under CAA section 179(a) for the potential imposition of 2-to-1 NSR offset and Federal highway funding sanctions. Additionally, under CAA section 110(c), the finding triggered a requirement that EPA promulgate a FIP within two years of the finding unless, by that time, (a) the state had made the necessary complete submittal, and (b) EPA had approved the submittal as meeting applicable requirements.

Michigan submitted the Detroit SO 2 attainment plan on May 31, 2016, and submitted associated final enforceable measures on June 30, 2016. Michigan's submission of a complete attainment plan terminated the deadlines for imposing the 2-to-1 NSR offset sanctions and Federal highway funds sanctions, pursuant to 40 CFR 52.31(d)(5), but it did not terminate EPA's FIP obligation. On March 19, 2021, EPA partially approved and partially disapproved Michigan's SO 2 plan as submitted in 2016 (86 FR 14827). EPA approved the base-year emissions inventory and affirmed that the NSR requirements for the area had previously been met on December 16, 2013 (78 FR 76064). EPA also approved the enforceable control measures for two facilities. At that time, EPA disapproved the attainment demonstration, as well as the requirements for meeting RFP toward attainment of the NAAQS, RACM/RACT, and contingency measures. Additionally, EPA disapproved the plan's control measures for two facilities as insufficient to demonstrate attainment. These disapprovals triggered new sanctions clocks under CAA section 179(a).

As Michigan has not submitted an approvable plan for the Detroit nonattainment area, EPA published a notice of proposed rulemaking on June 1, 2022, proposing a FIP for the Detroit nonattainment area (87 FR 33095). EPA proposed limits and associated requirements for U.S. Steel (Ecorse and Zug Island), EES Coke, Cleveland-Cliffs Steel Corporation (formerly AK or Severstal Steel), and Dearborn Industrial Generation (DIG). EPA also proposed to include in its analysis the Carmeuse Lime emission limits specified in Permit to Install 193-14A and the DTE Energy (DTE) Trenton Channel emission limits specified in Permit to Install 125-11C, which had already been incorporated into Michigan's SIP.

EPA proposed to conclude that the FIP meets the requirements set forth in the CAA to provide for the Detroit area to attain the SO 2 NAAQS. Finally, EPA proposed to conclude that the FIP satisfies the other applicable requirements for nonattainment areas, including requirements for RACM/RACT, RFP, and contingency measures. The proposal supplemented the previous action in which EPA concluded that Michigan had met the requirements for a suitable emissions inventory and nonattainment NSR program.

The comment period on the proposed action described above closed on July 18, 2022. EPA held a virtual public hearing on June 16, 2022. The transcript of the public hearing is available in the docket for this action. EPA received 14 written comments, seven of which were supportive and seven of which were adverse. EPA also received verbal comments from four individuals at the public hearing, all of which were adverse or partially adverse comments. The adverse comments are summarized below along with EPA's responses.

Comment: The commenters contend that EPA's modeling demonstration has not correctly accounted for all the SO 2 sources in the area as well as short-term spikes in emissions. In particular, the commenters suggest that EPA did not sufficiently account for the Marathon Refinery emissions, as they were calculated using maximum heat input multiplied by emissions factors. The commenters stated that emission factors, particularly AP-42 emission factors, are intended to calculate average emission levels and are not appropriate for calculating modeling inputs to address the short-term SO 2 NAAQS. The commenters recommend EPA use another method for calculating Marathon Refinery emissions, such as continuous emissions monitoring, stack testing, vendor guarantees and stack testing data from similar facilities, material balance calculations, or optical remote sensing.

Response: Section 8.2.2.b of EPA's Guideline on Air Quality Models (appendix W to 40 CFR part 51) (appendix W) requires regulatory modeling of inert pollutants such as SO 2 to use the emission input data given in Table 8-1 of appendix W. For stationary point sources subject to SIP emission limit evaluation for compliance with short-term standards such as the 1-hour SO 2 NAAQS, the modeled emission rate is required to be based on the maximum allowable emission limit or federally enforceable permit limit, on actual or design capacity of the point source (whichever is greater) or federally enforceable permit conditions, and on continuous operation for all hours of each time period under consideration.

As stated in the technical support document (included in the docket for this action), Marathon Refinery's emission units were modeled based on maximum uncontrolled emissions—a rate that is higher, and consequently more conservative in avoiding underestimation of emissions, than would be a limited emission rate. The maximum uncontrolled emission rates for Marathon Refinery were determined based on the maximum heat input of each modeled point source and emission factors derived from the hydrogen sulfide (H 2 S) and total reduced sulfur (TRS) concentration of the refinery fuel gas combusted in each emission unit. The H 2 S/TRS concentration of the fuel gas is a representative source-specific concentration that was used to determine a source-specific emission factor as opposed to an AP-42 emission factor that may be determined based on average emissions across different facilities.

Additionally, the commenters recommend different methods for estimating short-term emissions instead of using the source-specific emission factor used in the modeling, including continuous emissions monitoring, stack testing, vendor guarantees and stack testing data from similar facilities, material balance calculations, or optical remote sensing. All of these methods would be suitable for determining actual emissions. However, EPA's modeling instead accounts for maximum uncontrolled emissions, which are higher and more conservative than actual emissions, based on each emission unit's maximum capacity and combusted fuel gas. Therefore, EPA believes it has appropriately modeled the emissions for Marathon Refinery.

Comment: Five commenters commented on the background concentration used in the model. Three commenters believe that the background concentration used in EPA's modeling analysis may be underestimated. To avoid double-counting concentrations associated with sources explicitly modeled in the demonstration, EPA's background concentration calculation was derived by removing wind directions between 40 and 205 degrees, which the commenters contend is overly broad and eliminates the highest concentrations that come from the easterly winds. In particular, a commenter states that Michigan's original background concentration calculation approach excluded wind directions between 40 and 180 degrees, and then Michigan later changed its approach, which EPA adopted, to removing wind directions between 40 and 205 degrees without adequate justification. A commenter suggests that sources in Ohio, western Pennsylvania, Indiana, Kentucky, Illinois, eastern Michigan, and Canada, some of which are relatively close and emit much more SO 2 than the background sources that EPA considers, should be included in the background concentration. The commenter states that although SO 2 concentrations decline with distance, they can still remain significant with respect to the difference between the maximum modeled concentration and the NAAQS.

One commenter contends that the FIP does not adequately justify the approach for the Detroit SO 2 nonattainment area given the large number of SO 2 sources. Additionally, the commenter points out that EPA based its approach for calculating background concentrations on EPA guidance for calculating NO X background concentrations, which may not be appropriate for SO 2 .

The commenters also state that the uncertainty of the background estimate was not provided, and the fact that the approach depends on the meteorological and monitoring data used, the definition of the wind sector, the wind sector width, and year and seasons considered adds to this uncertainty. The commenters also state that the error is higher at lower concentrations, which should be considered. The commenters note that an accurate background concentration calculation is critical given that the maximum modeled concentration is very close to the NAAQS.

Additionally, one commenter alleges that the meteorological data at the Allen Park site is not representative due to trees near the site that shelter the tower because they exceed its height. The commenter states that the wind directions at Allen Park diverge from other Michigan sites and recommend that EPA use airport data instead.

The commenters recommend that EPA perform trajectory analyses to eliminate the possibility that concentrations at the endpoints of the exclusion are due to extreme meteorology instead of stationary sources, analyze different exclusion ranges, and make conservative assumptions to minimize modeling uncertainties. One commenter recommends that EPA model background estimates using the largest sources within 500 kilometers, use other monitoring sites, which may include using sites classified as “source” or “population” instead of “background” and/or deploying additional monitoring sites, and use a meaningful margin of error to account for model uncertainty in the background concentration analysis.

However, two commenters contend that the background concentration that EPA used was overly conservative and reflects an overestimate of background concentrations, as the maximum background concentration used in the model (11.9 parts per billion (ppb)) occurs around the 33-degree wind direction, which is directly over a source that was explicitly modeled in the demonstration and near other sources. One commenter points out that the Trinity monitor, which is upstream of these sources, recorded a concentration of 0.7 ppb for the same hour that was used for the maximum background concentration.

Response: Sections 8.3.1.a and 8.3.3 of appendix W discusses that background air quality should not include the ambient impacts of the project source under consideration. Appendix W further states that nearby sources that cause a significant concentration gradient in the vicinity of the source(s) under consideration for emissions should not be included in the background monitoring data and should be explicitly modeled. The portion of the background attributable to natural sources, other unidentified sources near the project, and regional transport from distant sources, both domestic and international, can be represented by air quality monitoring data. Per Table 8-1 of appendix W, these other sources include both minor sources and distant major sources. Section 8.3.2.b of appendix W states that EPA recommends the use of data from the monitor closest to and upwind of the project area. Section 8.3.2.c of appendix W also discusses that there are cases in which the current design value may not be appropriate for use as a background concentration, including situations with a modifying source where the existing facility is determined to impact the ambient monitor. In these cases, the background concentration can be determined by excluding values when the source in question is impacting the monitor.

In the case of the analysis for the Detroit SO 2 nonattainment area, monitor values from the Allen Park monitor (AQS 26-163-0001) that occurred when the wind directions were between 40 and 205 degrees were removed from the calculations for the background concentration. The Allen Park monitor is on the western boundary of the Detroit SO 2 nonattainment area and is upwind of the explicitly modeled sources in the analysis due to predominant southwesterly winds. The directions between 40 and 205 were chosen as concentrations from these directions would be double counting the impacts from the explicitly modeled sources within the analysis. This excludes all modeled sources to the northeast (U.S. Steel, EES Coke, Carmeuse Lime, Marathon Refinery, Cleveland-Cliffs Steel Corporation, and DIG) and modeled sources to the south (DTE Trenton Channel and DTE Monroe). Examining the meteorological data collected from the Allen Park monitor, the highest concentrations measured at the monitor occur when the winds are from the northeast, which suggests that the monitor is being impacted by SO 2 emission sources from the Detroit area that are already included in the modeling analysis. Section 8.3.2.c.i of appendix W discusses that a 90-degree sector downwind of the source(s) may be used to determine the area of impact. In the case of the Detroit nonattainment area, EPA did not exclude 45 degrees to the west of the northernmost sources. EPA did exclude 45 degrees west of the southern source that is farther from the monitor and for which there would be more plume spread by the time SO 2 reaches the Allen Park monitor.

SO 2 is a localized, source-oriented pollutant, as described in section III of EPA's final rule revising the SO 2 NAAQS (75 FR 35520) and section 4.2.3.3 of appendix W. Section 8.3.3.d of appendix W states that portions of the background attributable to all other sources ( e.g., natural sources, minor and distant major sources) should be accounted for through use of ambient monitoring data and determined by the procedures found in section 8.3.2 in keeping with eliminating or reducing the source-oriented impacts from nearby sources to avoid potential double-counting of modeled and monitored contributions. As section 8.3.3.d of appendix W describes, background concentrations inherently account for the impacts of minor and distant major sources with the use of appropriate monitoring data. Due to the localized nature of SO 2 , impacts from localized sources are accounted for by either explicitly modeling these as nearby sources in the modeling analysis or through ambient air monitoring data. As localized sources were explicitly modeled as nearby sources in the analysis, and the referred guidance above was followed, EPA disagrees with the commenter that sources outside of the nonattainment area should be explicitly included in the background concentration as these would already be accounted for in the background concentration.

EPA disagrees with the commenter that the FIP does not adequately justify the approach for the Detroit SO 2 nonattainment area given the large number of SO 2 sources and that the background calculations relied on EPA guidance. Section 8.1 of EPA's SO 2 NAAQS Designations Modeling Technical Assistance Document (TAD), which was most recently updated in August 2016, discusses how the methodology for calculating NO X background concentrations applies to SO 2 . The TAD explains that the same methodology for NO X is applicable to SO 2 designations modeling based on use of the 99th percentile by hour of day and season for background concentration excluding periods when the dominant source(s) are influencing the monitored concentration. 1

EPA agrees that an accurate background concentration is critical. EPA has accurately calculated background concentrations from the hourly monitoring data collected at the Allen Park ambient air monitoring station based on guidance from EPA's TAD and appendix W. An uncertainty analysis for background estimates is not required for regulatory air dispersion modeling analyses and therefore, was not provided in the technical support document for this action.

EPA disagrees that the meteorological data at the Allen Park site is not representative and that meteorological data from the airport should be used instead. The Allen Park monitoring site is an NCore monitoring site for the state of Michigan that also collects meteorological data. When comparing the wind roses of the Detroit Metropolitan Wayne County Airport (DTW) 2016-2020 wind data and the Allen Park 2018-2020 wind data, the wind roses are very similar in wind direction frequency and wind speed classes. One difference between the two sites is the prevalence of winds from the south/southwest (SSW), in which DTW experiences more frequent SSW winds than the Allen Park site. However, the sites experience similar easterly winds. As such, the trees near the Allen Park monitoring site are not causing the wind directions to diverge from the airport site; therefore, the wind measurements from the DTW airport should not be used instead. EPA also verified with Michigan that all monitors and meteorological instruments at the Allen Park monitoring site meet EPA's siting criteria. This monitoring site is subject to EPA audits and siting criteria are frequently checked and confirmed.

EPA disagrees that trajectory analyses need to be performed and that different exclusion ranges need to be examined. Pollution roses from the Allen Park monitor were examined by Michigan in the development of the background concentration. Pollution roses consider hourly meteorological conditions and ranges of wind directions in which SO 2 concentrations impact the monitor site. As was demonstrated by Michigan, the range of exclusion used in the FIP modeling analysis is acceptable as the pollution rose demonstrates that the Allen Park monitor was impacted by explicitly modeled nearby sources in this wind direction range. Therefore, trajectory analyses are not required for this analysis.

EPA disagrees with the commenter that modeled background estimates should be used to determine the background concentrations for the modeling analysis. Section 8.3.2.b of appendix W states that in most cases, EPA recommends using data from the monitor closest to and upwind of the project area. If several monitors are available, preference should be given to the monitor with characteristics that are most similar to the project area. The Allen Park monitor was chosen as a representative monitor for background concentrations for the Detroit nonattinment area due its location within the SO 2 nonattainment boundary and prevailing southwest winds that make the monitor upwind of Detroit.

EPA disagrees that the background concentrations are overly conservative; as explained above, EPA has followed relevant EPA guidance in determining background concentrations. EPA did exclude SO 2 concentrations from northeast of the Allen Park monitor based on data from the SO 2 pollution roses for the Allen Park monitor. These excluded impacts from explicitly modeled nearby sources in the modeling analysis to prevent double-counting impacts. EPA did not exclude 45 degrees to the west of the northernmost sources for the background concentration as plume spread from these sources would not have as great of an impact as more distant emission sources. Therefore, the exclusion range sufficiently excludes nearby sources in the area.

Comment: Four commenters commented on EPA's usage of rural dispersion coefficients as part of the modeling analysis. EPA used rural dispersion coefficients to characterize three tall stacks in the modeling analysis to better correlate the modeled concentrations with modeling concentrations at two monitors in the Detroit nonattainment area. The commenters state that the heat island effect can cause higher concentrations during the night, which is shown with the urban coefficient option. The commenters recommend additional analysis to determine whether the SO 2 temporal distribution at the monitors can be extrapolated to the area of maximum SO 2 concentration near DTE Trenton Channel.

The commenters raise concern that the use of a rural dispersion coefficient for stacks at EES Coke, DTE Monroe, DTE River Rouge, and DTE Trenton Channel leads to significantly lowered predicted concentrations. The commenters claim that EPA did not properly document its model performance evaluation to support the claim that applying a rural dispersion coefficient to the listed sources was the most appropriate way to run the model. The commenters state that if EPA had properly applied an urban dispersion coefficient to the sources, the area could not model attainment.

Response: EPA agrees that the urban heat island effect can in some cases cause higher concentrations during the night. However, as was demonstrated in the document entitled “Analysis of Michigan Dispersion Coefficient Use” and the technical support document, both included in the docket for this action, this was not the case when examining monitoring data in the Detroit nonattainment area for the Southwest High School and West Windsor monitors. Monitoring data from these monitors demonstrated that peak monitored impacts occurred during the daytime (between 12:00 p.m.-3:00 p.m.) instead of at night. As described in the AERMOD Implementation Guide, 2 plumes from tall buoyant stacks, transported over the urban boundary layer at night, may be unaffected by the urban enhanced dispersion and may require special consideration on a case-by-case basis. The urban dispersion option in AERMOD only applies to nighttime and morning transition hours. Nighttime hours would normally be stable if not for the urban heat island effect, and the morning transition hours right after sunrise, when the atmosphere would transition from stable to convective conditions in a rural setting, might be more convective in urban conditions. Both monitored data at the Southwest High School and West Windsor sites, as well as modeled concentrations using the rural option for these stacks, showed peak concentrations outside of the nighttime and morning transition hours, which indicate the rural dispersion option is more appropriate for this set of stacks in this analysis.

EPA disagrees with the commenters that EPA did not properly document the model performance evaluation. Section 7.2.1.1.e of appendix W states that model users should consult with the appropriate reviewing authority and the latest version of the AERMOD Implementation Guide when evaluating this situation. Further, Section 5.1 of the AERMOD Implementation Guide states that a more thorough case-specific justification will be needed to support excluding elevated sources from application of the urban option. 3 As these guidance documents state, a case-specific justification needs to be provided to support the exclusion of these stacks from the urban option, and the case-specific justification was provided within the technical support document as well as the document “Analysis of Michigan Dispersion Coefficient Use,” which are both in the docket for this action. These documents demonstrated that the application of the urban option to the tall stacks at EES Coke, DTE Monroe, DTE River Rouge, and DTE Trenton Channel resulted in anomalously high concentrations due to plume height limitations in the model. As such, additional analysis is also not warranted to determine if the temporal distribution can be extrapolated to the DTE Trenton facility.

Comment: The commenter raises concern that the 50 kilometer distance from the nonattainment area is an inadequate cutoff for including major point sources. The commenter states that there are a number of large sources just beyond this distance that are not included in the background concentration.

Response: EPA disagrees that the 50 kilometer distance from the nonattainment area is an inadequate cutoff for including major point sources. EPA used the maximum distance (50 kilometers) from the nonattainment area in its modeling analysis. Section 4.1.c of appendix W explains that due to the steady-state assumption, Gaussian plume models are generally considered applicable to distances less than 50 kilometers, beyond which, modeled predictions of plume impact are likely conservative. As such, AERMOD is not recommended for use in far-field (greater than 50 kilometers) dispersion applications. Since SO 2 is a source-oriented pollutant and not considered a regional pollutant for regulatory purposes, it is not appropriate to model beyond 50 kilometers. In this case, EPA explicitly modeled DTE Monroe, a source outside of the nonattainment area, in addition to the sources within the nonattainment area as a conservative measure. Please also refer to the responses above regarding background concentrations, specifically the response to comments about sources beyond 50 kilometers being included in the modeling analysis and background concentration.

Comment: The commenter states that EPA's modeling lacks transparency and detail, as EPA did not provide sufficient maps and tabular data, SO 2 levels throughout the nonattainment area, and information pertaining to understanding spatial and temporal exposure variation, locations of impacts, critical meteorological factors, culpable sources, background levels, etc.

Response: EPA's modeling analysis is available in the technical support document, which is included in the docket for this action. In the technical support document, EPA provided maps of the areas of maximum concentration, as well as the modeling parameters used in the area of analysis, including background concentrations. As the focus of this action is to demonstrate attainment of the NAAQS, and the technical support document demonstrates that the areas of maximum concentration are below the NAAQS, EPA did not provide maps of SO 2 concentrations throughout the nonattainment area. However, EPA's modeling files are available to the public upon request. The maximum modeled concentration, including background concentrations, was 73.6 ppb and occurred approximately 4 kilometers to the northwest of DTE Trenton Channel's facility. Other modeled concentrations that were less than the maximum modeled design value at receptors in the nonattainment area were 71.5 ppb to the northeast of Cleveland-Cliffs Steel Corporation and DIG, 73.2 ppb on the northern fenceline of Zug Island (when U.S. Steel's Zug Island sources are in operation), and 68.7 ppb to the northeast of Carmeuse Lime.

Comment: EPA received three comments regarding the FIP's margin of safety and the health effects of SO 2 , particularly for children in Detroit. The commenters state that the FIP does not provide an uncertainty analysis. The commenters contend that as the maximum modeled concentration is so close to the NAAQS (73.4 ppb compared to 75 ppb), the FIP does not provide any margin of safety. The commenters state that the model cannot be considered conservative due to likely background concentration underprediction, the use of rural dispersion coefficients, and longer-term average emission rates. The commenters recommend that EPA either validate the model using the monitoring data from the SO 2 monitoring sites in the Detroit nonattainment area or set limits that produce modeled SO 2 concentrations well below the NAAQS.

The commenters argue that the NAAQS itself is not protective, as a health study of children in Detroit shows that 1-hour maximum SO 2 exposures were associated with increased odds of respiratory symptoms, even though the levels of SO 2 that the children were exposed to were generally below the NAAQS. One commenter states that children in Detroit have breathing issues due to pollution that cause them to miss school and cited a study that shows Southwest Detroit has some of the worst air pollution in the country. The commenters note that Detroit communities experience asthma rates that are 1.5-3 times the national average along with low rates of asthma controller utilization due to health care access, poverty, and caregiver issues.

Response: As described further in comment responses below, under section 109 of the CAA, EPA sets primary, or health-based, NAAQS for all criteria pollutants to provide requisite protection of public health, including the health of at-risk populations, with an adequate margin of safety. The health effects information provided by the commenters, which was addressed in EPA's promulgation of the 2010 SO 2 NAAQS, is not in dispute in this rulemaking, and EPA in this action is not reopening the NAAQS itself which was established to protect public health with an adequate margin of safety. This rulemaking instead addresses the requirements needed for the Detroit area to meet the NAAQS. However, EPA is aware of the demographic data for the Detroit nonattainment area, and that the Detroit nonattainment area includes communities that are pollution-burdened and underserved, and environmental justice concerns are addressed in comment responses below.

EPA disagrees that the model cannot be considered conservative. In its modeling analysis, EPA used the maximum uncontrolled or maximum allowable emission rates for all sources in the Detroit nonattainment area. In reality, it is extremely unlikely that all sources would be operating at maximum emission rates simultaneously. Additionally, EPA's method of background concentration calculation, use of rural dispersion coefficients, and reliance on longer-term average emission rates follow EPA guidance and are appropriate for demonstrating attainment of the NAAQS, as explained in comment responses above and below.

Comment: Three commenters state that a taller combined stack at U.S. Steel will not significantly decrease SO 2 concentrations that affect public health in residential areas downwind of the facility.

Response: While EPA acknowledges that combining and raising the U.S. Steel Boilerhouse 2 stack will only decrease near-field SO 2 concentrations where current ambient concentrations threaten the NAAQS, EPA is requiring this stack construction in combination with new limits at U.S. Steel, a facility that has not previously had hourly SO 2 limits. Both of these control mechanisms are needed to ensure that the SO 2 concentrations in the Detroit area, including those in residential areas downwind of the facility, stay permanently below the NAAQS and result in protection of public health with an adequate margin of safety.

Comment: The commenters contend that long-term average limits alone do not provide for attainment of the one-hour SO 2 NAAQS, as 30-day average limits allow sources to operate at higher levels before and after shutdowns and remove incentives for sources to avoid malfunctions. The commenters believe that a long-term average limit should have supplemental limits governing the magnitude and frequency of short-term periods of emissions above the emission rate at which the longer-term average limit is set. Additionally, the commenters contend that EPA's use of national average adjustment factors for the DIG and Cleveland-Cliffs Steel Corporation 24-hour average limits is not justified.

Response: EPA disagrees with the commenter's statement that longer-term average limits alone do not provide for attainment of the 1-hour SO 2 NAAQS. EPA believes as a general matter that properly set, longer-term average limits are comparably effective in providing for attainment of the 1-hour SO 2 standard as are 1-hour limits. On April 23, 2014, EPA issued recommended guidance for meeting the statutory requirements in SO 2 nonattainment plans, in a document entitled, “Guidance for 1-Hour SO 2 Nonattainment Area SIP Submissions” (2014 SO 2 Guidance). 4 EPA's 2014 SO 2 Guidance sets forth in detail the reasoning supporting its conclusion that the distribution of emissions that can be expected in compliance with a properly set longer-term average limit is likely to yield overall air quality protection that is as good as a corresponding hourly emissions limit set at a level that provides for attainment. EPA's 2014 SO 2 Guidance specifically addressed this issue as it pertains to requirements for attainment demonstrations for SO 2 nonattainment areas under the 2010 NAAQS, especially with regard to the use of appropriately set comparably stringent limitations based on averaging times as long as 30 days. EPA found that a longer-term average limit which is comparably stringent to a short-term average limit is likely to yield comparable air quality; and that the net effect of allowing emissions variability over time but requiring a lower average emission level is that the resulting worst-case air quality is likely to be comparable to the worst-case air quality resulting from the corresponding higher short-term emission limit without variability. See 2014 SO 2 Guidance.

Any accounting of whether a 30-day average limit provides for attainment must consider factors reducing the likelihood of hourly exceedances as well as factors creating a risk of additional exceedances. To facilitate this analysis, EPA used the concept of a critical emission value (CEV) for the SO 2 -emitting facilities which are being addressed in a nonattainment plan. The CEV is the continuous 1-hour emission rate which is expected to provide for the average annual 99th percentile maximum daily 1-hour concentration to be at or below 75 ppb, which in a typical year means that fewer than four days have maximum hourly ambient SO 2 concentrations exceeding 75 ppb. See 2014 SO 2 Guidance. EPA recognizes that a 30-day limit can allow occasions in which emissions exceed the CEV, and such occasions yield the possibility of hourly exceedances occurring that would not be expected if emissions were always at the CEV. At the same time, the establishment of the 30-day average limit at a level below the CEV means that emissions must routinely be lower than they would be required to be with a 1-hour emission limit at the CEV.

The proposed FIP provides an illustrative example of the effect that application of a limit with an averaging time longer than one hour can have on air quality. 5 This example illustrates both (1) the possibility of elevated emissions (emissions above the CEV) causing exceedances not expected with emissions at or below the CEV and (2) the possibility that the requirement for routinely lower emissions would result in avoiding exceedances that would be expected with emissions at the CEV. In this example, moving from a 1-hour limit to a 30-day average limit results in one day that exceeds 75 ppb that would otherwise be below 75 ppb, one day that is below 75 ppb that would otherwise be above 75 ppb, and one day that is below 75 ppb that would otherwise be at 75 ppb. In net, the 99th percentile of the 30-day average limit scenario is lower than that of the 1-hour limit scenario, with a design value of 67.5 ppb rather than 75 ppb. Stated more generally, this example illustrates several points: (1) The variations in emissions that are accounted for with a longer-term average limit can yield higher concentrations on some days and lower concentrations on other days, as determined by the factors influencing dispersion on each day, (2) one must account for both possibilities, and (3) accounting for both effects can yield the conclusion that a properly set longer-term average limit can provide as good or better air quality than allowing constant emissions at a higher level. As noted in the proposed FIP, and as described in appendix B of the 2014 SO 2 guidance, EPA expects that an emission profile with a comparably stringent 30-day average limit is likely to have a net effect of having a lower number of exceedances and better air quality than an emissions profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value. Thus, EPA continues to assert that appropriately set 30-day emission limits can be protective of the 1-hour SO 2 standard.

The long-term average limits included in the FIP are for a period of 30 days for DTE Trenton Channel and 24 hours for DIG and Cleveland-Cliffs Steel Corporation. As stated above, EPA posits that limits based on periods of as long as 30 days (720 hours), determined in accordance with EPA's April 2014 guidance, can, in many cases, be reasonably considered to provide for attainment of the 2010 SO 2 NAAQS. Since 30 days for DTE Trenton Channel and 24 hours for DIG and Cleveland-Cliffs Steel Corporation are equal to or well within, respectively, the period of 30 days, EPA has concluded that a limit based on a period of 30 days for DTE Trenton Channel and limits based on a period of 24 hours for DIG and Cleveland-Cliffs Steel Corporation determined in accordance with EPA's April 2014 guidance can be reasonably considered to provide for attainment. While the longer-term averaging limits allow occasions in which emissions may be higher than the level that would be allowed with the 1-hour limit, the limits compensate by requiring average emissions to be adequately lower than the level that would otherwise have been required by a 1-hour average limit.

As noted by the commenters, EPA's April 2014 guidance addresses the use of supplemental short-term limits. While supplemental limits can further strengthen the justification for the use of longer-term limits, they are not necessary to provide for attainment of the 2010 SO 2 NAAQS. In this case, as discussed further below, DTE Trenton Channel has been permanently shut down during the comment period for this action, and DIG and Cleveland-Cliffs Steel Corporation are not the primary contributors to the areas of maximum modeled concentrations. Therefore, EPA is not considering supplemental limits for DTE Trenton Channel, DIG, or Cleveland-Cliffs at this time.

Regarding the adjustment factors used for the daily DIG and Cleveland-Cliffs limits, EPA believes that the appendix D ratios are acceptable adjustment factors in this specific situation for use in calculating a long-term average emission limit when hourly SO 2 emissions data are not available for use in calculating source-specific emission ratios. Although these daily limits are included in the FIP, EPA is not relying on emission reductions from either DIG or Cleveland-Cliffs Steel Corporation to demonstrate attainment of the 2010 SO 2 NAAQS. Rather, EPA has included these limits in the FIP to ensure that SO 2 concentrations in the Detroit area stay permanently below the NAAQS. Since these sources are not the controlling sources with respect to the attainment demonstration, reliance on the default adjustment factors to account for the emissions variability provides a suitable estimate in this instance where no other data is available.

For the reasons stated above and in the proposed rule, EPA concludes that the use of long-term average emission limits for DTE Trenton Channel, DIG, and Cleveland-Cliffs Steel Corporation is consistent with recommendations discussed in EPA's April 2014 guidance and adequately protects against violations of the 1-hour SO 2 NAAQS.

Comment: The commenters disagree with EPA's interpretation of RACT for SO 2 as the control technology necessary to achieve the NAAQS and point out that RACT has been defined for other pollutants as the lowest emission limit that is reasonably available considering technological and economic feasibility. The commenters contend that the U.S. Steel emission limits do not achieve a reduction in SO 2 , as the maximum allowable annual emissions, assuming maximum operation for every hour in a year, are higher than U.S. Steel's past annual emissions. The commenters believe that EPA should consider alternatives to the requirement for combining and raising the U.S. Steel Boilerhouse 2 stacks as well as complete a RACT analysis considering technological and economic feasibility for U.S. Steel, DIG, Cleveland-Cliffs, and EES Coke.

Response: Section 172 (c)(1) of the CAA provides that “such plan shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.” EPA has long defined RACT for SO 2 as that control technology which will achieve the NAAQS within statutory timeframes. See State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule, 57 FR 13498, 13547 (April 16, 1992) (General Preamble); see also, SO 2 Guideline Document, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC 27711, EPA-452/R-94-008, February 1994 (SO 2 Guideline), at 6-39. For most criteria pollutants, RACT is control technology that is reasonably available considering technological and economic feasibility. The definition of RACT for SO 2 is that control technology which is necessary to achieve the NAAQS (40 CFR 51.100(o)). Since SO 2 RACT is already defined as the technology necessary to achieve the SO 2 NAAQS, control technology which failed to achieve the NAAQS would fail to be SO 2 RACT. EPA intends to continue defining RACT for SO 2 as that control technology which will achieve the NAAQS, as it has in numerous SIP actions since promulgating the 2010 NAAQS. Here, the emission limits in the FIP and previously approved into the SIP provide for such NAAQS attainment, as demonstrated by the modeling. Consequently, under EPA's longstanding approach to SO 2 RACT, the CAA section 172(c)(1) RACM/RACT requirement is met. CAA section 172(c)(6) also requires plans to include enforceable emission limits and control measures as may be necessary or appropriate to provide for attainment. The emission limits and associated requirements included as part of the FIP analysis show attainment of the 2010 SO 2 NAAQS of 75 ppb, as the modeling analysis, which is detailed in the technical support document for this action, shows a maximum concentration of 73.6 ppb. Thus, further controls are not necessary to satisfy the requirement for RACT. 6

As determined through air dispersion modeling, emission limits and associated requirements at the U.S. Steel, EES Coke, DIG, Cleveland-Cliffs Steel Corporation, DTE Trenton Channel, and Carmeuse Lime facilities are needed to reach attainment in the Detroit area. While EPA recognizes the commenters' concern that the annual maximum emissions allowed under the U.S. Steel limits set forth in the FIP are larger than actual emissions in previous years, EPA believes that setting limits at U.S. Steel, a facility that has not previously had hourly SO 2 emission limits, is critically important to ensuring that SO 2 concentrations in the Detroit area stay permanently below the NAAQS.

Comment: The commenters point out that the FIP does not require monitoring, recordkeeping, or reporting from U.S. Steel No. 2 Baghouse or DIG Flares 1 and 2.

Response: EPA notes that U.S. Steel No. 2 Baghouse was mistakenly omitted from 40 CFR 52.1189(b)(3)(ii) in the proposed regulatory text and EPA has updated 40 CFR 52.1189(b)(3)(ii) to include U.S. Steel No. 2 Baghouse. Recordkeeping and reporting for U.S. Steel No. 2 Baghouse are required under 40 CFR 52.1189(b)(5)(ii) and 40 CFR 52.1189(b)(6)(ii), respectively. Regarding compliance for DIG Flares 1 and 2, EPA has added the requirement to 40 CFR 52.1189(e)(2) that the owner or operator verify compliance with the limit for Boilers 1, 2, 3 and Flares 1 and 2 (combined) by following the procedures and methodologies contained in the document entitled “Protocol for Demonstrating Continuous Compliance with the Emission Limitations of ROP MI-ROP-N6631-2004” as set forth in its operating permit (Permit MI-ROP-N6631-2012a, modified June 28, 2016).

Comment: EPA received seven comments regarding emissions monitoring requirements. The commenters believe that the FIP should require all units, particularly at U.S. Steel and DIG, to install a Continuous Emission Monitoring System (CEMS) on all units to monitor SO 2 emissions directly, which the commenters state would be a much more accurate and transparent way to monitor emissions than what the proposed FIP requires. The commenters state that it is unclear as to why the FIP would require CEMS to be installed at U.S. Steel Boilerhouse 2 but not at U.S. Steel Boilerhouse 1 and why the FIP would require CEMS for the Cleveland-Cliffs Steel Corporation blast furnaces but not the U.S. Steel blast furnaces. The commenters also state that it is unclear as to why a Predictive Emissions Monitoring System (PEMS) is allowed in lieu of CEMS to monitor DIG emissions. A commenter states that CEMS are available and commonly used and that it is particularly important that SO 2 emissions are monitored closely as the maximum modeled SO 2 concentration is very close to the NAAQS. The commenters recommend that EPA require CEMS to be installed at each U.S. Steel and DIG unit, and that EPA explain the choice of monitoring technique if CEMS is not deemed appropriate, considering regulatory needs, monitoring technology costs, and relative benefits of the monitoring technique.

Response: With regard to DIG units, the FIP requires compliance as set forth in its operating permit (Permit MI-ROP-N6631-2012a, modified June 28, 2016). As described in the response above regarding DIG Flares 1 and 2 compliance, EPA added additional compliance language to 40 CFR 52.1189(e)(2). These compliance mechanisms are currently in place and work to sufficiently monitor hourly SO 2 emissions at the DIG facility; therefore, EPA is not requiring CEMS on the DIG units at this time.

With regard to U.S. Steel units, the FIP requires CEMS on Boilerhouse 2, the highest-emitting unit at the facility, as part of the new stack construction. For the remaining U.S. Steel units, the FIP requires the owner or operator to calculate hourly SO 2 emissions using all raw material sulfur charged into each affected emission unit and assumes 100 percent conversion of total sulfur to SO 2 to be conservative. Aside from the U.S. Steel boilerhouses, blast furnaces, and the associated furnace flares, the other emission limits for other U.S. Steel units are very small (all less than 5 pounds per hour (lbs/hr) and only one over 1 lbs/hr). Many large SO 2 sources, such as blast furnace stoves, blast furnace flares, and (reheat) furnaces, combust blast furnace gas and/or coke oven gas. These gases are considered fuel for those units. EPA believes that frequent fuel sampling will provide sufficiently accurate measurement of SO 2 emissions. Fuel sampling has historically been used to determine emissions, and EPA believes this method is acceptable here. The FIP requires the owner or operator of each applicable U.S. Steel unit to submit a Compliance Assurance Plan (CAP) for the unit that specifies calculation methodology, procedures, and inputs used in these calculations. EPA expects that the procedures shall include a fuel sampling schedule at a frequency that captures any variation in fuel sulfur content. Additionally, while Boilerhouse 1 is not currently operating, U.S. Steel has committed not to combust coke oven gas at Boilerhouse 1 upon restart, which is reflected in the Boilerhouse 1 limit set forth in the FIP. EPA concludes that the required CAPs, as well as the quarterly requirement to submit calculated hourly SO 2 emissions to EPA, are sufficient for determining compliance with the emission limits set forth in the FIP. However, the requirement of CAPs does not preclude future requirements or installation of CEMS on these units.

Comment: The commenters believe that the requirement that U.S. Steel submit a CAP for units that do not require CEMS detailing the calculation methodology, procedures, and inputs that will be used for monitoring SO 2 emissions is insufficient. The commenters believe that U.S. Steel's CAPs should undergo public notice and comment, but point out that this is not possible as the plans are required to be submitted after the effective date of the FIP. Additionally, the commenters pointed out that the FIP does not allow EPA the authority to review, modify, or reject a CAP, and that the CAP does not require continuous monitoring.

Response: EPA disagrees with the commenters' position that the requirement for U.S. Steel to submit CAPs is insufficient. The public is not an approving authority for CAPs, and therefore, there is no requirement that the owner or operator submit the CAPs for public review and approval. However, for transparency and ease in accessibility, EPA will post the CAPs to the Detroit SO 2 FIP website at https://www.epa.gov/mi/detroit-so2-federal-implementation-plan. Although the FIP does not require EPA's explicit approval of CAPs, EPA has authority to enforce the requirement to submit CAPs that meet the requirements set forth in the FIP. Failure to submit a CAP or submission of a CAP that does not meet the requirements set forth in the FIP would be a violation of the FIP. The owner or operator of the U.S. Steel facility is required to maintain records of hourly emissions calculated in accordance with the CAP under 40 CFR 52.1189(b)(5)(ii) and to report these hourly mass balance calculations, as well as excess emissions, quarterly, and no later than the 30th day following each quarter under 40 CFR 52.1189(b)(6)(ii) and 40 CFR 52.1189(b)(6)(iv), respectively.

Comment: EPA received three comments about idled units at U.S. Steel. The commenters contend that although the FIP requires that a CAP be submitted for each idled U.S. Steel unit under 40 CFR 52.1189(b)(4), the FIP does not require U.S. Steel to comply with emission limits or monitoring requirements for idled units. One commenter states that the community is very concerned with the reopening of U.S. Steel and believes the FIP should include limits for idled units.

Response: The FIP includes limits for all units, regardless of operating status. The idled units referenced in 40 CFR 52.1189(b)(4) each have limits under 40 CFR 52.1189(b)(1)(i). Additionally, emissions from these units are required to be monitored and reported under 40 CFR 52.1189(b)(3)(ii) and 40 CFR 52.1189(b)(6)(ii), respectively.

Comment: EPA received three comments about contingency measures in the FIP. The commenters disagree with EPA's interpretation of contingency measures for SO 2 to mean that the State, or EPA in the case of a FIP, has a comprehensive enforcement program. The commenters suggest that under CAA section 172(c)(9), contingency measures must take effect without further action by the State or EPA, which would exclude enforcement actions because an enforcement action is further action. Additionally, the commenters state that enforcement actions are not “measures” as defined in CAA section 110(a)(2), and that a comprehensive enforcement program is already required separately under CAA section 110(a)(2). The commenters also note that enforcement actions are not reviewable under the Administrative Procedure Act (APA), so citizens are not able to enforce EPA's proposed contingency measures, and that EPA's reliance on enforcement actions is contrary to the history of the CAA due to their discretionary nature.

Additionally, the commenters allege that authority to enforce the FIP does not equate to a comprehensive enforcement program, which the commenters suggest would mean having a schedule for determining whether violations occurred and a binding mechanism requiring EPA to take action if they did occur. The commenters suggest that a comprehensive enforcement program could not be called aggressive unless it went beyond the basic enforcement requirements, for example, increasing the basic mandatory penalty scheme.

The commenters also point out that contingency measures are intended to address situations that cause an area to fail to attain despite a valid attainment demonstration and that there is no specific measure in the proposed FIP that would be activated in the case that EPA's analysis that the FIP will bring the Detroit area into attainment is incorrect. The commenters contend that it is more likely that violations of the 1-hour standard will occur with longer-term average limits in the FIP due to short-term spikes in emissions at sources that are still complying with their long-term average limits. The commenters state that the fact that EPA does not require a new SIP submittal for determining whether an area has attained the standard, even though modeling parameters such as source characteristics and background concentrations could have changed, is an additional issue if contingency measures do not address failures to attain despite valid attainment demonstrations.

The commenters state that EPA failed to include contingency measures in the FIP regulatory text and recommend that EPA incorporate alternative contingency measures into the FIP, such as switching to low-sulfur fuel, limiting operation until the SIP is revised, limits that automatically scale to adjust for background concentrations, and supplementary short-term limits for longer-term average limits. The commenters state that these suggested contingency measures could be promulgated as rules to take effect without further action from EPA. The commenters disagree that the contingency measures language as written in CAA section 172(c)(9) does not apply to SO 2 plans and was directed at other pollutants such as ozone, as Congress added specific contingency measures language in the ozone provisions but did not change the general contingency measures provisions in CAA section 172(c)(9). The commenters argue that without implementing alternative contingency measures, EPA fails to make a good-faith effort to comply with the terms of the September 30, 2020, consent decree to promulgate a FIP that complies with the CAA.

Response: EPA disagrees with the commenter that the contingency measures are inadequate. Section 172(c)(9) of the CAA defines contingency measures as such measures in a nonattainment plan that are to be implemented in the event that an area fails to make RFP, or fails to attain the NAAQS, by the applicable attainment date. Contingency measures are to become effective without further action by the State or EPA, where the area has failed to (1) achieve RFP or, (2) attain the NAAQS by the statutory attainment date for the affected area. These control measures are to consist of other available control measures that are not included in the control strategy for the attainment plan SIP for the affected area.

However, EPA has long interpreted the contingency measures requirement for SO 2 in light of the fact that SO 2 presents special considerations. See, General Preamble at 13547; see also, SO 2 Guideline at 6-40—6-41, 2014 Guidance at 41-42. EPA interprets the contingency measure provisions as primarily directed at NAAQS implementation which can be undertaken on an areawide basis, such as for ozone or particulate matter. EPA's policy for SO 2 is different because, first, for some of the other criteria pollutants, the analytical tools for quantifying the relationship between reductions in precursor emissions and resulting air quality improvements remain subject to significant uncertainties, in contrast with procedures for directly-emitted pollutants such as SO 2 . Second, emissions estimates and attainment analyses for other criteria pollutants can be strongly influenced by overly optimistic assumptions about control efficiency and rates of compliance for many small sources. This is not the case for SO 2 .

In contrast, the control efficiencies for SO 2 control measures are well understood and are far less prone to uncertainty. Since SO 2 control measures are by definition based on what is directly and quantifiably necessary to attain the SO 2 NAAQS, it would be unlikely for an area to implement the necessary emission controls yet fail to attain the NAAQS. Therefore, for SO 2 programs, EPA has long explained that “contingency measures” can mean that the air agency has a comprehensive program to identify sources of violations of the SO 2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement, including expedited procedures for establishing enforceable consent agreements pending the adoption of a revised SIP. EPA believes that this approach continues to be valid for the implementation of contingency measures to address the 2010 SO 2 NAAQS, and consequently reiterated its view in the preamble to the final 2010 NAAQS and has followed it in several actions on SIPs implementing the 2010 NAAQS. See, e.g., Primary National Ambient Air Quality Standard for Sulfur Dioxide; Final Rule, 75 FR 35520, 35576 (June 22, 2010); Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Plan for the Warren County, Pennsylvania Nonattainment Area for the 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard; Final Rule, 83 FR 51629, 51632-33; Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Attainment Plan for the Beaver, Pennsylvania Nonattainment Area for the 2010 Sulfur Dioxide Primary National Ambient Air Quality Standard; Final Rule, 84 FR 51988, 51994-95. EPA therefore concludes that EPA's comprehensive enforcement program, as discussed below, satisfies the SO 2 contingency measure requirement.

The commenters listed several options for specific contingency measures. EPA acknowledges that one or more of these options may be appropriate in a specific situation, and for a specific source, if the area fails to achieve RFP or fails to attain the NAAQS by the statutory attainment date. However, in this situation, as Detroit is a multisource area with several emission units per facility, requiring one or more of these measures also may not be appropriate depending on the cause of the potential violation, which would need to be evaluated at the time of occurrence. For example, triggering a fuel-switch at one facility may not bring the area into attainment if the issue is caused by another facility violating its limit. Similarly, limiting operation of one facility may be appropriate if EPA determines that the subject facility is the cause of the problem, but requiring additional measures at other facilities may not be warranted where the cause of the NAAQS violation was non-compliance by a different facility and where the NAAQS violation can be most efficiently remedied by bringing that source into compliance with its established emission limits. Likewise, limiting operations at all SO 2 facilities in the area may not appropriately address the issue due to the localized nature of SO 2 emissions and direct link to a specific facility. Changing the limits at all facilities from a longer-term limit to a shorter-term limit similarly may appropriately address the problem, but this action also may not, and EPA would evaluate appropriate measures if and when an issue arises. These are illustrative examples, and while not exhaustive, highlight the need for EPA to be able to respond appropriately in a particular scenario due to the localized nature of SO 2 impacts. In any case where the Detroit area fails to achieve RFP or attain the NAAQS, EPA would consider all viable solutions to address the actual issue at a specific facility or facilities and take appropriate responsive action.

In accordance with longstanding policy, EPA deems investigation and enforcement authority for aggressive follow-up for ensuring source compliance an appropriate and expeditious solution to any potential violations.

As noted in the proposed rule, EPA's 2014 SO 2 guidance describes special features of SO 2 planning that influence the suitability of alternative means of addressing the requirement in CAA section 172(c)(9) for contingency measures including a comprehensive enforcement program. EPA has a comprehensive enforcement program as specified in section 113(a) of the CAA. Under this program, EPA is authorized to take enforcement actions to ensure compliance with the CAA and the rules and regulations promulgated under the CAA. Such actions include the issuance of an administrative order requiring compliance with the applicable implementation plan; the issuance of an administrative order requiring the payment of a civil penalty for past violations; and the commencement of a civil judicial action. Orders issued under CAA section 113(a) require subject entities to comply with the requirements set forth in the order as expeditiously as practicable, but in no event longer than one year after the date the order was issued. Issuance of any such order does not prohibit EPA from assessing any penalties. Under CAA section 113(b), civil judicial enforcement may require assessment of penalties of up to $109,024 per day for each violation. 7 Additionally, under CAA section 113(c), any person who knowingly violates any requirement or prohibition of an implementation plan may be subject to criminal enforcement, with penalties including fines and imprisonment.

EPA's enforcement program is capable of prompt action to remedy compliance issues. Additionally, enforcement in communities with environmental justice concerns is a priority for EPA. EPA's steps to advance environmental justice through enforcement include increasing the number of facility inspections in overburdened communities, resolving noncompliance through remedies with tangible benefits, and increasing engagement with communities about enforcement cases that most directly impact them. 8 EPA also notes that under CAA section 304, citizens may also commence civil enforcement actions against any person who is in violation of an emission standard. See 42 U.S.C. 7604(a)(1), (f). Therefore, EPA believes that EPA's enforcement program by itself suffices to meet CAA section 172(c)(9) requirements for SO 2 as interpreted in the 1992 General Preamble, the SO 2 Guideline, the 2010 SO 2 NAAQS promulgation, the 2014 SO 2 guidance, and in numerous subsequent SIP actions. Finally, EPA disagrees with the assertion that without implementing alternative contingency measures, EPA fails to make a good-faith effort to comply with the terms of the September 30, 2020, consent decree to take final action to promulgate a FIP. The consent decree properly imposes only a September 30, 2022, deadline for EPA to sign a notice of final rulemaking to approve a revised SIP submission, to promulgate a FIP, or to approve in part a revised SIP submission and promulgate a partial FIP for the Detroit area addressing the elements of CAA sections 172(c) and 192, but does not (as it could not) impose any requirements for how EPA might meet the statutory elements.

Comment: EPA received eight comments about environmental justice. The commenters contend that while EPA recognized that communities are located in the Detroit nonattainment area with environmental justice concerns, EPA did not conduct a meaningful analysis or adequately use its discretionary authority to consider environmental justice in development of the FIP. The commenters state that EPA did not follow Executive Order 12898, which directs EPA to achieve environmental justice to the greatest extent practicable and permitted by law. The commenters contend that EPA should have considered alternatives to its proposed plan and how the FIP could provide the most benefit to Detroit populations given the history of industrial pollution and nonattainment for multiple pollutants and the environmental justice communities in the Detroit nonattainment area, which are demonstrated by EPA's EJScreen as well as other screening tools such as the draft Climate and Economic Justice Screening Tool and the Michigan EJ screen map. The commenters also believe that EPA should consider actions that can be taken to acknowledge and address the impacts of the delay in bringing the Detroit area into attainment, and ensure that any future nonattainment is addressed promptly, as well as more fully acknowledge the burden that Detroit community members of different populations have faced due to nonattainment. One commenter points out that EPA's conclusion that the FIP will decrease pollution levels, which will be beneficial to the environmental justice populations in Detroit, does not address the fact that it will not be more beneficial to environmental justice populations than others in the area nor acknowledge the harm that previous emissions in the area have caused the community. The commenters believe that EPA only took steps to promulgate a FIP as a result of a consent decree arising from a 2021 civil action, as EPA's deadline to promulgate a FIP was April 18, 2018, so the commenters request that EPA explain the delay in promulgating a FIP.

The commenters recommend that EPA's environmental justice analysis address the presence of vulnerable populations in the nonattainment area and include an analysis of the FIP's impact on these vulnerable populations, such as individuals with asthma, particularly with respect to long-term average emission limits. The commenters note that the presence of asthma in Detroit is extremely high as compared to the rest of the state and point to studies showing that vulnerable populations may experience health effects associated with SO 2 concentrations below the NAAQS. The commenters state that affected populations of the nonattainment area need assurance on plans for access to healthcare, asthma treatment, and air filtration. The commenters also request a more detailed description of aggressive enforcement measures EPA will use and recommend that EPA require all sources to install CEMS.

Response: While EPA appreciates the commenters' concerns and the issues facing communities in the greater Detroit area, in general EPA disagrees with the commenters' characterization of EPA's consideration of environmental justice as it regards this action. EPA is aware of the demographic data for the Detroit nonattainment area, and that the Detroit nonattainment area includes communities that are pollution-burdened and underserved. In part for this reason, EPA conducted outreach beyond its obligations of notice-and-comment rulemaking as discussed in the response to comments on EPA's outreach and comment process below.

Under section 109 of the CAA, EPA sets primary, or health-based, NAAQS for all criteria pollutants to provide requisite protection of public health, including the health of at-risk populations, with an adequate margin of safety. In EPA's June 22, 2010, rulemaking strengthening the SO 2 NAAQS to the level of 75 ppb, EPA provided a detailed rationale for the Administrator's determination that the 2010 SO 2 NAAQS would be protective of public health (75 FR 35520). This rationale included explicit consideration of protection for people, including children, with asthma. Specifically, the standard was based on direct evidence of SO 2 -related effects in controlled human exposure studies of exercising individuals with asthma, as well as epidemiologic evidence of associations between SO 2 concentrations in ambient air and respiratory-related emergency department visits and hospitalizations.

Commenters reference Executive Order 12898 (59 FR 7629, February 16, 1994), which directs Federal agencies, to the greatest extent practicable and permitted by law, to identify and address disproportionately high and adverse human health or environmental effects of their actions on minority and low-income populations. Executive Order 12898 is addressed in the executive order section of this action. With regard to environmental justice considerations, to identify environmental burdens and susceptible populations in communities in the Detroit nonattainment area, EPA performed a screening-level analysis using EPA's EJ screening and mapping tool (“EJScreen”). 9 EPA prepared two EJScreen reports covering buffer areas of 1- and 6-mile diameters around U.S. Steel, which is the main facility impacted by the FIP. Our screening-level analysis of the area strongly suggests that communities within the selected buffer areas bear a high overall pollution burden as indicated by high percentile values for particulate matter and other environmental indicators, as well as high percentiles of low income and people of color. Specifically, the 6-mile buffer included in the docket of this rulemaking showed that the percentage of low-income individuals is almost twice the U.S. average. These results highlight commenters' concerns of the pollution burdens that Detroit community members of different populations have faced.

Considering these results, EPA further considered emission reductions expected from the FIP and forthcoming emission reduction measures that may help to mitigate existing pollution issues in the area. As explained in the proposal, the proposed FIP regulatory language includes new SO 2 emission limits throughout the U.S. Steel facility. Additionally, the FIP includes several new requirements for U.S. Steel's Boilerhouse 2, including the requirement to combine and raise its stacks to increase dispersion away from the area, new limits, and installation of a new CEMS. Further, EPA included the DTE Trenton Channel permit as part of the FIP analysis, which was scheduled to retire  10 11 at the time the proposed FIP was published and has since shut down as of June 19, 2022. Hence, the FIP analysis included the permitted (Permit to Install 125-11C) enforceable SO 2 limit of 5,907 lbs/hr on a 30-day average basis applicable to DTE Trenton Channel as a precautionary measure. Actual emissions at DTE Trenton Channel in recent years were 3,114, 3,754, and 885 tons per year (tpy) in 2018, 2019 and 2020, respectively. In Wayne County (the partial county containing in the Detroit SO 2 Nonattainment area), these reductions would account for 25.2, 31.9 and 14.8 percent of SO 2 emissions in 2018, 2019 and 2020, respectively. While EPA recognizes the importance of assessing impacts of our actions on potentially overburdened communities, we believe that the promulgation of the FIP will not adversely affect disproportionally impacted populations in the Detroit nonattainment area. The purpose of the FIP is to ensure attainment and maintenance of the NAAQS, so promulgation of this FIP is expected to have a positive impact on the Detroit nonattainment area as a whole, for all populations in the Detroit nonattainment area.

With regard to the delay in bringing the area into attainment, Michigan and EPA have faced several obstacles during the attainment planning process, beginning with the invalidation of Michigan Administrative Code (MAC) 336.1430 (“Rule 430”) by the Michigan Court of Claims on October 4, 2017. The court held that, because Rule 430 contained enforceable limits for U.S. Steel and the limits applied to a single facility, Rule 430 failed the “general applicability” requirement of Michigan's Administrative Procedures Act, Michigan Compiled Laws (MCL) 24.201 et seq. The court expressly declined to advise how the State could properly impose emission limits on the source at issue via other means but noted elsewhere in the decision that the state and other sources “agreed to revise pertinent DEQ permits.” Since the time of the designation, Michigan and EPA have been working on an approvable attainment plan and emission reductions in the area. In addition, to the extent that the State prefers to proceed via generally applicable state regulations rather than permits, EPA expects that Michigan will draft future rules to avoid the concerns raised by the court which resulted in invalid SO 2 limits to avoid this issue going forward.

In 2016, Michigan submitted an SO 2 attainment plan for the Detroit nonattainment area, which included limits for DTE Trenton Channel, DTE River Rouge, Carmeuse Lime, and U.S. Steel. While EPA was unable to approve the 2016 attainment plan as a whole, EPA did approve the limits for DTE Trenton Channel and Carmeuse Lime into Michigan's SIP on March 19, 2021. The compliance dates for DTE Trenton Channel and Carmeuse Lime permits were January 1, 2017, and October 1, 2018, respectively, and both facilities have been in compliance since their respective dates. In March 2020, a more stringent interim limit for DTE River Rouge became effective, and in May 2021 the facility shut down.

Although the FIP is based on maximum allowable or uncontrolled emissions, EPA also completed a model run using actual emissions from 2015-2017, which was used in EPA's January 28, 2022, action to determine whether the area attained the standard by the attainment date (87 FR 4501). The modeling was based on guidelines from appendix W of 40 CFR part 51 and EPA's TAD that contained an assessment of the air quality impacts from the following sources: U.S. Steel Ecorse, U.S. Steel Zug Island, EES Coke, DTE River Rouge, DTE Trenton Channel, Carmeuse Lime, DTE Monroe, Cleveland-Cliffs Steel Corporation, DIG, and Marathon Refinery. The modeling demonstration included actual emissions for DTE River Rouge, Trenton Channel, and U.S. Steel, the source that was determined to have the most significant contribution to the maximum NAAQS violations in the area. EPA found that the areas with modeled SO 2 concentrations above the NAAQS were on and surrounding Zug Island in areas that are not residential, while all the monitors in the Detroit nonattainment area showed values below the NAAQS. The updated FIP analysis modeled attainment of the NAAQS in the Detroit nonattainment area after inclusion of the new U.S. Steel emission limits proposed in this FIP and the emission reduction measures that have already occurred since the finding of failure to attain, including the previously approved DTE Trenton Channel and Carmeuse Lime emission limits and the shutdown of DTE River Rouge. The implementation of the FIP makes these reductions, as well as the existing emission limits at EES Coke, Cleveland-Cliffs Steel Corporation, and DIG, permanent and enforceable and provides protection for future attainment. Further, as previously discussed, these reductions will be even greater with the shutdown of DTE Trenton Channel.

With regard to the enforcement measures that EPA will use, as stated in the proposed rule, options include the issuance of an administrative order requiring compliance with the applicable implementation plan; the issuance of an administrative order requiring the payment of a civil penalty for past violations; and the commencement of a civil judicial action. These options are explained further in the response to the comment above regarding contingency measures. While the FIP does not require CEMS on all units, as explained in the response to comments about CEMS above, EPA is confident that the FIP provides adequate means of determining whether a violation has occurred in order to take appropriate enforcement action.

Comment: EPA received four comments on EPA's outreach and comment process. The commenters contend that the timeline between the proposed rule publication date and the public hearing and public hearing registration deadline was not sufficient and should have been closer to 30 or 45 days, similar to other EPA comment periods. The commenters state that while EPA is facing a tight deadline to finalize the FIP, the tight timeline is due, in part, to EPA's delay in responding to Michigan's SIP.

The commenters also state that while EPA held a meeting with various Detroit environmental organizations and community groups in March 2022, the FIP was not the main focus of the meeting and a more robust approach to community outreach was needed, particularly due to the high levels of limited English proficiency (LEP) persons living in the area. The commenters give examples of ways that EPA could have improved its public outreach, including holding a community meeting before the proposed FIP was published, working with community groups in the area to distribute information, and providing handouts about the FIP surrounding the public hearing. One commenter believes that EPA should engage with the public as soon as new NAAQS are set and EPA knows which areas area likely to fall into nonattainment about the causes and impacts of the nonattainment designation and solutions being sought, as well as after each delay to explain why the delay occurred and how it will be avoided in the future.

Additionally, the commenters state that EPA only provided notice of the hearing in the proposed rule published in the Federal Register and did not provide notice that was sufficiently accessible on widely disseminated platforms or reach out directly to the community. In particular, the commenters note that the proposed rule was published in English with no translation services available and that translation services were not made available for the public hearing, which is of particular concern due to the Spanish and Arabic speaking communities in and surrounding the nonattainment area. The commenters note that while EPA did solicit requests for translation services in the proposed rule, this solicitation did not give LEP persons meaningful access to translation services as it was published in an English-only document with a tight deadline for submitting requests. Therefore, the commenters suggest that EPA should have proactively provided Arabic and Spanish translation services at the public hearing.

The commenters contend that EPA did not meet its obligations under Executive Order 13166 and EPA's FY 2022-2026 Strategic Plan and has subjected individuals to discrimination by failing to proactively reach out to LEP persons in and around the nonattainment area due to the high percentages of LEP persons in the area, as shown in EJScreen analyses completed by both commenters and EPA. Additionally, the commenters mention the Informal Resolution Agreement that EPA entered with Michigan, under which Michigan developed an LEP Plan. The commenters believe that EPA should have followed the guidelines set forward in this plan, which include providing solicitations for translation services in other languages besides English and developing a strategy to best engage with LEP individuals. The commenters note that while EPA has since translated a fact sheet into Arabic and Spanish, these fact sheets were not available at the beginning of the comment period and EPA did not release a plan on how to ensure the documents would reach LEP persons.

Response: EPA appreciates the commenters' suggestions on how EPA can improve its outreach and comment process and will consider, as appropriate, in future actions the suggestions to extend the time between proposal publication and public hearing, engage earlier with the public, and reach out to LEP communities before the comment period. However, EPA would like to highlight the additional outreach efforts that EPA made surrounding the FIP proposal publication beyond its obligations of notice-and-comment rulemaking.

As the commenters note, EPA held a meeting with representatives from the City of Detroit, Michigan Environmental Council, Great Lakes Environmental Law Center (GLELC), Southwest Detroit Environmental Vision, and the Ecology Center regarding the FIP, including a presentation by EPA and a roundtable discussion with these stakeholders. EPA disagrees that the FIP was not the main topic of the meeting and has posted the presentation and attendance list to the docket for this action. Specifically, after outlining a summary of the FIP proposal, EPA requested feedback on structuring future engagement with stakeholders in Detroit.

In addition to communicating directly with stakeholders, EPA issued a press release on the day the proposed FIP was published in the Federal Register . 12 The press release noted that EPA would be accepting public comments on the proposed FIP. EPA also created a website for the FIP containing a summary of the rule, as well as information about how to register for the public hearing or submit written comments. The FIP was also highlighted on EPA's Region 5 web page.

With regard to translation services for the public hearing, EPA solicited requests in both the Federal Register document as well as on the registration web page for the public hearing. EPA proactively arranged for interpretation services to be available at the public hearing in case the services were requested by registered attendees; however, no registered attendees requested these services or any other translation services.

During the public comment period, EPA received a request from GLELC to delay the public hearing, as GLELC stated that EPA had not provided adequate outreach to LEP communities. Per the email exchange posted in the docket for this action, EPA was unable to delay the public hearing, but did what was possible during the comment period to address this request. As the commenters note, EPA created a fact sheet, which included information about how to submit written comments, during the comment period and translated it into Spanish and Arabic. EPA posted the fact sheets in the docket for this action, on the FIP web page, and on the general Spanish and Arabic EPA web pages. EPA appreciates the suggestions on how to reach out to LEP communities more proactively for future rulemakings.

Comment: Two commenters argue that EPA should develop maps and other analyses that represent SO 2 exposure within and outside of the nonattainment area in conjunction with maps illustrating cumulative impacts of social, economic, and physical environmental factors to show how SO 2 concentrations add to cumulative pollution impacts and to evaluate environmental justice concerns.

Response: The focus of this action is to ensure attainment of the SO 2 NAAQS within the nonattainment area. EPA has no information suggesting that SO 2 concentrations outside of the nonattainment area boundary are above the SO 2 NAAQS, and EPA does not believe that exposure maps within and beyond the nonattainment are pertinent to demonstrating how the control measures and emissions limits in the FIP provide for attainment of the SO 2 NAAQS in the Detroit area.

Comment: The FIP includes two separate limits for U.S. Steel Boilerhouse 2 based on two different operating scenarios. Two commenters note that the FIP incorrectly states that Boilerhouse 2 is the only U.S. Steel unit operating under the scenario in which Boilerhouse 2 has a limit of 750.00 lbs/hr. The commenters point out that the modeling analysis for this scenario includes operation of the U.S. Steel Ecorse sources, which include the Hot Strip Mill, No. 2 Baghouse, Main Plant Boiler No. 8, and Main Plant Boiler No. 9, in addition to Boilerhouse 2.

Response: EPA notes that the U.S. Steel Ecorse sources were included in the modeling analysis for the scenario in which Boilerhouse 2 has a limit of 750 lbs/hr and were incorrectly excluded from the scenario in the proposed rule. EPA has updated 40 CFR 52.1189(b)(1)(ii) accordingly. The limits for the U.S. Steel Ecorse sources are shown in Table 1 below.

Comment: The proposed FIP includes a requirement for the owner or operator of the U.S. Steel facility to combine and raise all five stacks from each corresponding boiler at U.S. Steel Boilerhouse 2 into a single larger stack. Two commenters state that all five Boilerhouse 2 boilers are not currently in operation. The commenters request that only stacks from the operating boilers be required to be included in the combined stack in order to reduce capital, operating, and maintenance costs. The commenters assert that if a boiler begins operation at a later date, it can be included in the stack at that time.

Response: EPA agrees that not requiring any idled boiler stacks to be added to the combined Boilerhouse 2 stack, so long as no SO 2 is emitted from Boilerhouse 2 except from the new stack after the new stack construction is required to be completed, would not affect attainment of the NAAQS in the Detroit area. Therefore, EPA is not explicitly requiring that all Boilerhouse 2 boilers be added to the combined stack, and EPA has updated 40 CFR 52.1189(b)(2)(i) accordingly. As set forth in 40 CFR 52.1189(b)(2)(ii), beginning two years after the effective date of the FIP, no owner or operator shall emit SO 2 from Boilerhouse 2, except from the stack point at least 170 feet above ground level.

Comment: EPA received two comments about the U.S. Steel Boilerhouse 2 stack construction timeline. The commenters contend that the two years allotted for construction of the stack is not sufficient, as construction cannot begin until Michigan issues the construction permit. The commenters state that at least 15 months are needed to procure materials and complete stack construction, which would leave 9 months for Michigan to issue the permit. The commenters allege that the timeline is aggressive, given that the completion is dependent on Michigan acting quickly to issue the permit.

Response: EPA disagrees that the U.S. Steel Boilerhouse 2 stack construction timeline is insufficient. The construction permit process was considered as part of this timeline. Michigan is aware of the construction timeline, and the construction permit for the Boilerhouse 2 stack construction is a high priority for the State. Additionally, Michigan is statutorily required to process permit applications within 240 days if public comment is required and 180 days if public comment is not required. 13 This comment did not provide any new information on the project timeline, so therefore, EPA is not extending the timeline for the Boilerhouse 2 stack construction.

Comment: The commenter states that the community would like to know if they will be notified if facilities reopen, how they would be affected if facilities have ownership changes, what kind of assurance there is that Michigan will not permit new sources in the area, and EPA's future commitment to the Detroit area.

Response: The focus of this action is to ensure attainment of the SO 2 NAAQS in the Detroit area. The requirements of the FIP will continue to apply regardless of any facility ownership change. If there are changes to the Michigan SIP, which includes the emission limits and requirements set forth in the FIP, those changes will be subject to public notice and comment.

Comment: The commenter requests that EPA explain how it will guarantee that the FIP will attain and maintain the SO 2 NAAQS in light of the June 30, 2022, West Virginia v. EPA Supreme Court ruling regarding EPA's ability to regulate carbon emissions.

Response: The attainment planning requirements that the FIP addresses are set forth in the CAA, and the June 30, 2022, Supreme Court ruling does not affect this action. This action regulates SO 2 emissions, which the CAA explicitly requires, and does not regulate carbon emissions as such or impose limits on greenhouse gas emissions.

Comment: The commenter states that industry should be held accountable for the pollution that it emits, and that industry and government do not provide sufficiently transparent air quality data.

Response: This nonattainment plan provides emission limits and requirements for facilities in the Detroit area and is protective of the SO 2 NAAQS. A variety of air quality data sources are available for the Detroit area, including but not limited to design value reports, 14 ECHO, 15 and AirNow. 16

Comment: The commenter requests that EPA minimize the cost and time required to implement the FIP, as the commenter states that a facility that is not economically viable is less likely to comply with limits.

Response: The FIP includes limits and associated requirements needed to meet the NAAQS in the Detroit area. Compliance with the requirements of the FIP is not optional and is not dependent on a facility's economic viability. As discussed further above in the response to comments regarding continency measures, EPA has a comprehensive enforcement program as specified in section 113 of the CAA. Under this program, EPA is authorized to take any action it deems necessary or proper for the effective enforcement of the CAA and the rules and regulations promulgated under the CAA, including the requirements set forth in the FIP.

Comment: The commenter states that alleged deficiencies in the model cannot be addressed by assuming DTE Trenton Channel will be shut down, as there are several model receptors with concentrations that exceed 70 ppb.

Response: EPA's FIP modeling analysis does not assume the shutdown of DTE Trenton Channel. Instead, the FIP analysis includes the permitted (Permit to Install 125-11C) enforceable SO 2 limit of 5,907 lbs/hr on a 30-day average basis as a precautionary measure. As described above, particularly in the response to comments regarding background concentrations and dispersion coefficients, EPA concludes that its modeling analysis sufficiently demonstrates attainment of the SO 2 NAAQS of 75 ppb, even assuming continued operation of DTE Trenton Channel (which will not in fact operate).

Comment: The commenter points out that the emission rate used for DTE Trenton Channel in the model is higher than the emission rate specified in the proposed FIP (7,834 lbs/hr versus 7,661 lbs/hr).

Response: EPA notes the discrepancy between the DTE Trenton Channel emission rates in the proposed FIP and in the model. As no other changes were made to the model, EPA did not remodel based on this error alone, since the error resulted in a more conservative design value. EPA believes that this discrepancy has minimal impact on the maximum modeled concentration, and as it results in an overestimate, it does not have any negative impact on human health.

EPA is promulgating a FIP for attaining the 2010 SO 2 NAAQS for the Detroit area and for meeting other nonattainment area planning requirements. In accordance with section 172 of the CAA, this FIP includes an attainment demonstration for the Detroit area and addresses requirements for RFP, RACT/RACM, enforceable emission limitations and control measures, and contingency measures. EPA has previously concluded that Michigan has addressed the requirements for emissions inventories for the Detroit area and nonattainment area NSR.

The FIP is based on the Carmeuse Lime emission limits specified in Permit to Install 193-14A, the DTE Trenton Channel emission limits specified in Permit to Install 125-11C, and the U.S. Steel, EES Coke, Cleveland-Cliffs Steel Corporation, and DIG emission limits specified in the regulatory language of this FIP. The Carmeuse Lime and DTE Trenton Channel permits have already been approved into Michigan's SIP that is incorporated into 40 CFR part 52, so EPA is not re-incorporating them into 40 CFR part 52 here.

EPA made changes to the regulatory text that was included in the proposed FIP under 40 CFR 52.1189 paragraphs (b)(1)(ii), (b)(2)(i), (b)(3)(ii), and (e)(2) due to public comments received. These changes include updating the list of sources that may operate under the scenario in which U.S. Steel Boilerhouse 2 has a limit of 750.00 lbs/hr to include U.S. Steel Ecorse sources, as included in EPA's modeling analysis; not explicitly requiring all Boilerhouse 2 boiler stacks to be merged and raised, so long as no SO 2 is emitted except from the new stack beginning two years after the effective date of the FIP; adding U.S. Steel No. 2 Baghouse to the list of units subject to monitoring requirements, which previously was incorrectly omitted; and adding language regarding compliance for DIG Flares 1 and 2. Additionally, EPA corrected a citation error in the proposed regulatory text under CFR 52.1189(b)(3)(iii).

This FIP satisfies EPA's duty to promulgate a FIP for the area under CAA section 110(c) that resulted from the previous finding of failure to submit. However, it does not affect the sanctions clock started under CAA section 179 resulting from EPA's partial disapproval of the prior SIP, which would be terminated by an EPA rulemaking approving a revised SIP. See 40 CFR 52.31.

This action is exempt from review by the Office of Management and Budget (OMB), as it is not a rule of general applicability. This action specifically regulates four facilities in Detroit, Michigan.

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. Under the Paperwork Reduction Act, a “collection of information” is defined as a requirement for “answers to . . . identical reporting or recordkeeping requirements imposed on ten or more persons . . .” 44 U.S.C. 3502(3)(A). Because the FIP applies to just four facilities, the Paperwork Reduction Act does not apply. See 5 CFR 1320(c).

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. The OMB control numbers for our regulations in 40 CFR are listed in 40 CFR part 9.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action adds additional controls to certain sources. None of these sources are owned by small entities, and therefore are not small entities.

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

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

This action does not have tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments. Thus, Executive Order 13175 does not apply to this action.

This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. To the extent this action will limit SO 2 emissions, the rule will have a beneficial effect on children's health by reducing air pollution.

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

This rulemaking does not involve technical standards.

EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

This final rule will improve local air quality by reducing SO 2 emissions in a part of the Detroit metropolitan area that includes a higher proportion of minority and low-income populations compared to the State or US averages. Socioeconomic indicators such as low income, unemployment rate and percentage of people of color  17 were all at levels at least two times that of the state-wide averages (in some cases two to five times higher), within one to six miles from facilities affected by this action ( see EJScreen analyses provided in the docket for this action). These populations, as well as all affected populations in this area, will stand to benefit from the increased level of environmental protection with the implementation of this rule.

Pursuant to CAA section 307(d)(1)(B), this action is subject to the requirements of CAA section 307(d), as it promulgates a FIP under CAA section 110(c).

This rule is exempt from the CRA because it is a rule of particular applicability.

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 12, 2022. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review, does not extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307(b)(2).

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0774 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), although the Office of the Administrative Law Judges, which houses the Hearing Clerk, encourages parties to file objections and hearing requests electronically. See https://www.epa.gov/sites/default/files/2020-05/documents/2020-04-10_-_order_urging_electronic_service_and_filing.pdf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP- 2021-0774, 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/contacts.html.

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 February 25, 2022 (87 FR 10760) (FRL-9410-01), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11603) by Exponent, Inc., 1150 Connecticut Ave., Suite 1100, Washington, DC 20036, on behalf of Gaylord Chemical Company, LLC, 106 Galeria Boulevard, Slidell, LA 70458. The petition requested that 40 CFR 180.920 be amended by modifying an exemption from the requirement of a tolerance for residues of dimethyl sulfoxide (CAS Reg. No. 67-68-5) by allowing its use as an inert ingredient (solvent, co-solvent) in pesticide formulations applied for pre-harvest applications, including post-emergence use. That document referenced a summary of the petition prepared by Exponent, Inc. on behalf of Gaylord Chemical Company, the petitioner, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice of filing.

Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for 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. . . .”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), 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 dimethyl sulfoxide including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with dimethyl sulfoxide follows.

The toxicological profile of dimethyl sulfoxide remains unchanged from the Toxicological Profile in Unit IV.A. of the October 9, 2015, rulemaking (80 FR 61125) (FRL-9934-17). Refer to that section for a discussion of the toxicological profile of dimethyl sulfoxide.

The toxicological points of departure/levels of concern of dimethyl sulfoxide remains unchanged from the Toxicological Points of Departure/Levels of Concern discussion in Unit IV.B. of the October 9, 2015, rulemaking (80 FR 61125) (FRL-9934-17). No endpoints of concern were identified. Refer to that section for a discussion of the toxicological points of departure/levels of concern of dimethyl sulfoxide.

The exposure assessment for dimethyl sulfoxide remains unchanged from the discussion in Unit IV.C. of the October 9, 2015, rulemaking and supporting human health risk assessment (September 11, 2015). Refer to that section for a discussion of the exposure assessment for dimethyl sulfoxide.

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.”

Based on the lack of toxicity in the available database, EPA has not found dimethyl sulfoxide to share a common mechanism of toxicity with any other substances, and dimethyl sulfoxide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that dimethyl sulfoxide does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and- assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

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

Because there are no threshold effects associated with dimethyl sulfoxide, EPA conducted a qualitative assessment. As part of that assessment, the Agency did not use safety factors for assessing risk, and no additional safety factor is needed for assessing risk to infants and children. Based on an assessment of dimethyl sulfoxide EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children.

The aggregate exposure assessment for dimethyl sulfoxide remains unchanged from the discussion in Unit IV.E. of the October 9, 2015, rulemaking and supporting human health risk assessment. Refer to that section for a detailed discussion of the aggregate assessment for dimethyl sulfoxide (these documents can be found at https://www.regulations.gov under docket ID numbers EPA-HQ-OPP-2014-0630 and EPA-HQ-OPP-2021-00774). In summary, qualitative dietary, residential and aggregate assessments were performed due to the lack of toxicity endpoints of concern. There was no dietary, residential or aggregate risks of concern for the U.S. population and all subpopulations. Based on this human health risk assessment, an exemption from the requirement of a tolerance was established for residues of dimethyl sulfoxide under 40 CFR 180.920 for use before crop emerges from soil or prior to formation of edible parts of food plants; for pesticide formulations used after crop emerges but before harvest. This limitation was based on concerns regarding the chemical properties of dimethyl sulfoxide that could result in increased active ingredient residues. However, the petitioner submitted a comparative field trial residue study showing that dimethyl sulfoxide as an inert ingredient in pesticide formulations does not increase active ingredient residues. EPA has concluded that the use of dimethyl sulfoxide as an inert ingredient in pesticide formulations does not increase active ingredient residues; nor is it expected to result in active ingredient residue levels that exceed established tolerances. Therefore, since there is no concern for increased active ingredient residues on treated crops due to dimethyl sulfoxide and there are no endpoints of concern for dimethyl sulfoxide, the qualitative dietary, non-dietary risk, and aggregate assessments performed in 2015 are appropriate and remain unchanged. As a result, the Agency has determined that a tolerance is not necessary to protect public health.

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 dimethyl sulfoxide.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.920 for dimethyl sulfoxide (CAS Reg. No. 67-68-5) when used as an inert ingredient (solvent, co-solvent) in pesticide formulations pre-harvest applications, including post-emergence use.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption 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 part 180 as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2021-0422 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-2021-0422, 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/contacts.html.

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 April 28, 2022 (87 FR 25178 (FRL-8792-03-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 0F8873) by Amoéba SA, 38 ave des Frères Montgolfier, F-69680 Chassieu, France. The petition requested that 40 CFR part 180 be amended to establish an exemption from the requirement of a tolerance for residues of the pesticide, when used as a fungicide and systemic resistance inducer for various food crops in fields and greenhouses, in accordance with label directions and good agricultural practices. That document referenced a summary of the petition prepared by the petitioner, Amoéba SA, which is available in the docket, https://www.regulations.gov. There were no relevant comments received in response to the notice of filing.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing a tolerance exemption that varies from what the petitioner sought. The reason for the change is explained in full detail in Unit V.B.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require 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. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that 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.”

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no harm to human health. If EPA is able to determine that a tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), 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 Lysate of Willaertia magna C2c Maky including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with Lysate of Willaertia magna C2c Maky follows.

Willaertia magna C2c Maky is a non-genetically modified microorganism isolated from the thermal baths of Aix-les-Bains (France). It is a thermophilic free-living amoeba strain that belongs to the protozoan order, among eukaryotic unicellular mobile microorganisms (with flagella). It is a natural predator of bacteria, including Legionella, and other smaller amoebas. The lack of pathogenicity of this amoeba in human endothelial cells was demonstrated by cell culture.

With regard to the overall toxicological profile, Willaertia magna C2c Maky is of low toxicity. Based on acute studies, Willaertia magna C2c Maky is of low acute oral toxicity and acute inhalation toxicity (Toxicity Category III), low acute dermal toxicity (Toxicity Category III) and is non-irritating to the skin and eye (Toxicity Category IV). The chemical is not a skin sensitizer. Subchronic 90-day oral toxicity, developmental toxicity, reproductive toxicity and mutagenicity data requirements were satisfied by guideline studies. There were no adverse subchronic effects for any oral routes of exposure. The active ingredient was determined to be non-mutagenic, and no adverse effects were identified relative to either developmental toxicity or reproductive toxicity. EPA granted waivers for the 90-day dermal and 90-day inhalation data requirements based on a weight of the evidence approach (WOE) due to: (1) significant volatilization not being expected, (2) low overall acute toxicity (Toxicity Category III for inhalation), (3) its components are naturally-occurring and are similar to substances already present in mammalian cells, (4) the lysate of Willaertia magna C2c Maky being non-irritating to the skin and non-sensitizing to the skin and its physical/chemical properties indicate it is unlikely to be dermally absorbed, and (5) no adverse effects were seen in neither the 90-day oral toxicity study up to the limit dose nor the prenatal developmental toxicity study up to the limit dose.

EPA did not identify any toxicological endpoints of concern for Willaertia magna C2c Maky.

1. Dietary exposure from food, feed uses, and drinking water. As part of its qualitative risk assessment for lysate of Willaertia magna C2c Maky, the Agency considered the potential for dietary exposure to residues of lysate of Willaertia magna C2c Maky. EPA concludes that dietary (food and drinking water) exposures are possible. However, no toxicological endpoint of concern was identified for lysate of Willaertia magna C2c Maky, and therefore, a quantitative assessment of dietary exposure is not necessary.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). There are currently no proposed residential uses for this active ingredient; therefore, a residential exposure assessment is not necessary.

3. 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.” EPA has not found that lysate of Willaertia magna C2c Maky shares a common mechanism of toxicity with any other substances, and it does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed lysate of Willaertia magna C2c Maky does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticides/cumulative.

FFDCA Section 408(b)(2)(C) provides that EPA shall retain an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the FQPA safety factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor. An FQPA safety factor is not required at this time for lysate of Willaertia magna C2c Maky because no dietary endpoints have been selected based on the lack of human-relevant adverse effects at limit doses in the 90-day oral toxicity study and prenatal developmental toxicity study.

Based on the available data and information, the EPA has concluded that a qualitative aggregate risk assessment is appropriate to support the pesticidal use of lysate of Willaertia magna C2c Maky, and that risks of concern are not anticipated from aggregate exposure to the substance. This conclusion is based on the low toxicity of the active ingredient.

A full explanation of the data upon which EPA relied and its risk assessment based on those data can be found within the January 13, 2022, document entitled “BPPD Risk Assessment 91283-I, 91283-O and Tolerance Petition.” This document, as well as other relevant information, is available in the docket for this action as described under ADDRESSES .

Based on the Agency's assessment, EPA concludes that there is reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of lysate of Willaertia magna C2c Maky.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

The petitioned-for tolerance exemption for lysate of Willaertia magna C2c Maky is different from that being established by EPA. EPA determined that based on the low toxicity of lysate of Willaertia magna C2c Maky, any possible residues from the use of this active ingredient as a pesticide are not expected to result in any risks of concern to humans. Therefore, EPA has determined that the broad exemption for all food commodities, when used in accordance with label directions, is appropriate.

Therefore, EPA is establishing an exemption for residues of lysate of Willaertia magna C2c Maky in or on all food commodities, when used in accordance with label directions and good agricultural practices.

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

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

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

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

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

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

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0507 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-2022-0507, 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/contacts.html. 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 July 20, 2022 (87 FR 43232) (FRL-9410-03-OCSPP), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the receipt of a pesticide petition (PP IN-11697) filed by Dow Chemical Company, 715 E Main Street, Midland, MI 48640. The petition requested that 40 CFR 180.960 be amended by establishing an exemption from the requirement of a tolerance for residues of siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes (CAS Reg. No. 156065-02-0), with a minimum number average molecular weight of 10,600 Daltons. That document included a summary of the petition prepared by the petitioner and solicited comments on the petitioner's request. The Agency did not receive any public comments.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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 use 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 an exemption from the requirement of 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.” and specifies factors EPA is to consider in establishing an exemption.

EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be shown that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. To determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

Consistent with FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action and considered its validity, completeness and reliability and the relationship of this information to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In the case of certain chemical substances that are defined as polymers, the Agency has established a set of criteria to identify categories of polymers expected to present minimal or no risk. The definition of a polymer is given in 40 CFR 723.250(b) and the exclusion criteria for identifying these low-risk polymers are described in 40 CFR 723.250(d). Siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes with a minimum number average molecular weight 10,600 Daltons, conforms to the definition of a polymer given in 40 CFR 723.250(b) and meets the following criteria that are used to identify low-risk polymers.

1. The polymer is not a cationic polymer nor is it reasonably anticipated to become a cationic polymer in a natural aquatic environment.

2. The polymer does contain as an integral part of its composition at least two of the atomic elements carbon, hydrogen, nitrogen, oxygen, silicon, and sulfur.

3. The polymer does not contain as an integral part of its composition, except as impurities, any element other than those listed in 40 CFR 723.250(d)(2)(ii).

4. The polymer is neither designed nor can it be reasonably anticipated to substantially degrade, decompose, or depolymerize: Adequate biodegradation studies (MRID 51816203) were submitted for siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes, with a minimum number average molecular weight 10,600 Daltons, showing lack of biodegradation.

5. The polymer is manufactured or imported from monomers and/or reactants that are already included on the Toxic Substances Control Act (TSCA) Chemical Substance Inventory or manufactured under an applicable TSCA section 5 exemption.

6. The polymer is not a water absorbing polymer with a number average molecular weight (MW) greater than or equal to 10,000 Daltons.

7. The polymer does not contain certain perfluoroalkyl moieties consisting of a CF 3 - or longer chain length as listed in 40 CFR 723.250(d)(6).

Additionally, the polymer also meets as required the following exemption criteria specified in 40 CFR 723.250(e).

The polymer's number average molecular weight (MW) of 10,600 Daltons is greater than 10,000 Daltons. However, the polymer contains less than 2% oligomeric material below MW 500 and less than 5% oligomeric material below MW 1,000.

Thus, siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes meets the criteria for a polymer to be considered low risk under 40 CFR 723.250. Based on its conformance to the criteria in this unit, no mammalian toxicity is anticipated from dietary, inhalation, or dermal exposure to siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes.

For the purposes of assessing potential exposure under this exemption, EPA considered that Siloxanes and Silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes could be present in all raw and processed agricultural commodities and drinking water, and that non-occupational non-dietary exposure was possible. The minimum number average MW of siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes is 10,600 Daltons. Generally, a polymer of this size would be poorly absorbed through the intact gastrointestinal tract or through intact human skin. Since siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes conforms to the criteria that identify a low-risk polymer, there are no concerns for risks associated with any potential exposure scenarios that are reasonably foreseeable. The Agency has determined that a tolerance is not necessary to protect the public health.

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.”

EPA has not found siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes to share a common mechanism of toxicity with any other substances, and siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at https://www.epa.gov/pesticide-science-and-assessing-pesticide-risks/cumulative-assessment-risk-pesticides.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the data base unless EPA concludes that a different margin of safety will be safe for infants and children. Due to the expected low toxicity of siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes, EPA has not used a safety factor analysis to assess the risk. For the same reasons the additional tenfold safety factor is unnecessary.

Based on the conformance to the criteria used to identify a low-risk polymer, EPA concludes that there is a reasonable certainty of no harm to the U.S. population, including infants and children, from aggregate exposure to residues of siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Accordingly, EPA finds that exempting residues of siloxanes and silicones, di-Me, Me hydrogen, reaction products with vinyl group-terminated di-Me siloxanes from the requirement of a tolerance will be safe.

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

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance 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 CRA (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

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

The reef fish fishery of the Gulf is managed under the Fishery Management Plan (FMP) for Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP), prepared by the Gulf of Mexico Fishery Management Council (Gulf Council). The CMP fishery is managed under the FMP for CMP Resources in the Gulf of Mexico and Atlantic Region (CMP FMP), prepared by the Gulf Council and South Atlantic Fishery Management Council (South Atlantic Council). The snapper-grouper fishery in the South Atlantic is managed under the FMP for the Snapper-Grouper Fishery of the South Atlantic Region, prepared by the South Atlantic Council. The dolphin and wahoo fishery in the Atlantic is managed under the FMP for the Dolphin and Wahoo Fishery of the Atlantic, prepared by the South Atlantic Council. These FMPs are implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

Amendment 26 to the Reef Fish FMP established an IFQ program for the commercial red snapper component of the Gulf reef fish fishery (71 FR 67447, November 22, 2006). Amendment 29 to the Reef Fish FMP established an IFQ program for the commercial grouper and tilefish components of the Gulf reef fish fishery (74 FR 44732, August 31, 2009). Regulations implementing these IFQ programs (50 CFR 622.21 and 622.22) require that IFQ participants have access to a computer and the internet and that they conduct administrative functions associated with the IFQ program, e.g., landing transactions, online. However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may authorize IFQ participants to use paper-based forms to complete administrative functions for the duration of the catastrophic conditions. The RA must determine that catastrophic conditions exist, specify the duration of the catastrophic conditions, and specify which participants or geographic areas are deemed affected.

The Generic Dealer Amendment established Federal dealer reporting requirements for federally permitted dealers in the Gulf and South Atlantic (79 FR 19490, April 9, 2014). The Gulf For-Hire Reporting Amendment implemented reporting requirements for Gulf reef fish and CMP owners and operators of Gulf for-hire vessels (85 FR 44005, July 21, 2020). The South Atlantic For-Hire Reporting Amendment implemented reporting requirements for South Atlantic snapper-grouper, Atlantic dolphin and wahoo, and CMP owners and operators of South Atlantic and applicable Atlantic for-hire vessels (85 FR 10331, February 24, 2020). Regulations implementing these Gulf and South Atlantic dealer reporting requirements (50 CFR 622.5) and for-hire vessel reporting requirements (50 CFR 622.26, 622.176, 622.271, and 622.374) state that dealers must submit electronic reports and that Gulf reef fish, CMP, South Atlantic snapper-grouper, and Atlantic dolphin and wahoo, and vessels with the applicable charter vessel/headboat permit must submit electronic fishing reports of all fish harvested and discarded. A reporting requirement in the South Atlantic amendment was also established for a “Did Not Fish” report (South Atlantic permits only). However, these regulations also specify that during catastrophic conditions, as determined by the RA, the RA may waive or modify the reporting time requirements for dealers and for-hire vessels for the duration of the catastrophic conditions.

Hurricane Ian made landfall in the U.S. near Cayo Costa, Florida, in the Gulf as a Category 4 hurricane on September 28, 2022, then moved across the Florida peninsula into the South Atlantic and made another U.S. landfall as a Category 1 hurricane near Georgetown, South Carolina, on September 30, 2022. Strong winds and flooding from this hurricane impacted communities throughout coastal Florida and coastal South Carolina. This resulted in power outages and damage to homes, businesses, and infrastructure. As a result, the RA has determined that catastrophic conditions exist in the Gulf for the Florida counties of Pinellas, Hillsborough, Polk, Orange, Osceola, Manatee, Hardee, Highlands, Sarasota, DeSoto, Charlotte, Glades, Lee, Hendry, Collier, Volusia, Seminole, Flagler, Saint Johns, Duval, and Nassau. For the South Atlantic the RA has determined that catastrophic conditions also exist for Horry County in South Carolina.

Through this temporary rule, the RA is authorizing Federal dealers and Federal for-hire operators in these affected areas to delay reporting of trip tickets and for-hire logbooks to NMFS, and authorizing IFQ participants in this affected area to use paper-based forms, from October 6, 2022, through November 7, 2022. NMFS will provide additional notification to affected dealers via NOAA Weather Radio, Fishery Bulletins, and other appropriate means. NMFS will continue to monitor and re-evaluate the areas and duration of the catastrophic conditions, as necessary.

Dealers may delay electronic reporting of trip tickets to NMFS during catastrophic conditions. Dealers are to report all landings to NMFS as soon as possible. Assistance for Federal dealers in affected area is available from the NMFS Fisheries Monitoring Branch at 1-305-361-4581. NMFS previously provided IFQ dealers with the necessary paper forms and instructions for submission in the event of catastrophic conditions. Paper forms are also available from the RA upon request. The electronic systems for submitting information to NMFS will continue to be available to all dealers, and dealers in the affected area are encouraged to continue using these systems, if accessible.

Federal for-hire operators may delay electronic reporting of logbooks and South Atlantic's Did Not Fish reports to NMFS during catastrophic conditions. Federal for-hire operators are to report all landings or Did Not Fish reports to NMFS as soon as possible. Assistance for Federal for-hire operators in affected area is available from the NMFS Southeast For-Hire Integrated Electronic Reporting Program at 1-833-707-1632, Monday through Friday, between 8 a.m. and 4:30 p.m., Eastern Time. The electronic systems for submitting information to NMFS will continue to be available to all Federal for-hire operators, and for-hire operators are encouraged to continue using the these systems, if accessible.

The administrative program functions available to IFQ participants in the area affected by catastrophic conditions will be limited under the paper-based system. There will be no mechanism for transfers of IFQ shares or allocation under the paper-based system in effect during catastrophic conditions. Assistance in complying with the requirements of the paper-based system will be available via the NMFS Catch Share Support line, 1-866-425-7627 Monday through Friday, between 8 a.m. and 4:30 p.m., Eastern Time.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is consistent with the regulations in 50 CFR 622.5(c)(1)(iii), 622.21(a)(3)(iii), and 622.22(a)(3)(iii), which were issued pursuant to section 304(b) of the Magnuson-Stevens Act, and are exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment are unnecessary and contrary to the public interest. Such procedures are unnecessary because the final rules implementing the Gulf IFQ programs, the Gulf and South Atlantic Federal dealer reporting requirements, and Gulf and South Atlantic for-hire vessel reporting requirements have already been subject to notice and public comment. These rules authorize the RA to determine when catastrophic conditions exist, and which participants or geographic areas are deemed affected by catastrophic conditions. The final rules also authorize the RA to provide timely notice to affected participants via publication of notification in the Federal Register , NOAA Weather Radio, Fishery Bulletins, and other appropriate means. All that remains is to notify the public that catastrophic conditions exist, that IFQ participants may use paper forms, and that Federal dealers and Gulf and South Atlantic for-hire permit holders may submit delayed reports. Such procedures are also contrary to the public interest because of the need to immediately implement this action because affected dealers continue to receive these species in the affected area and need a means of completing their landing transactions. With the power outages and damages to infrastructure that have occurred in the affected area due to Hurricane Ian, numerous businesses are unable to complete landings transactions, fishing reports, and dealer reports electronically. In order to continue with their businesses, IFQ participants need to be aware they can report using the paper forms, and Federal dealers and Gulf for-permit holders need to be aware that they can delay reporting.

For the aforementioned reasons, there is good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).

NMFS manages the groundfish fishery in the BSAI according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The non-CDQ allocation of the 2022 Pacific cod TAC in the Bering Sea subarea of the BSAI is 121,864 metric tons (mt) as established by the final 2022 and 2023 harvest specifications for groundfish in the BSAI (87 FR 11626, March 2, 2022). In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, has determined that the non-CDQ allocation of the 2022 Pacific cod TAC in the Bering Sea subarea of the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 118,664 mt, and is setting aside the remaining 3,200 mt as incidental catch in directed fishing for other species. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod in the Bering Sea subarea of the BSAI.

While this closure is effective, the maximum retainable amounts at 50 CFR 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishing closure of non-CDQ Pacific cod in the Bering Sea subarea of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of October 5, 2022.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.