I. Background

Rural Development is a mission area within the U.S. Department of Agriculture (USDA) comprising the Rural Utilities Service, Rural Housing Service, and Rural Business-Cooperative Service. Rural Development's mission is to increase economic opportunity and improve the quality of life for all rural Americans. Rural Development meets its mission by providing loans, loan guarantees, grants, and technical assistance through numerous programs aimed at creating and improving housing, business, and infrastructure throughout rural America. The Rural Utilities Service (RUS) loan, loan guarantee, and grant programs act as a catalyst for economic and community development. By financing improvements to rural electric, water and waste, and telecommunications and broadband infrastructure, RUS also plays a significant role in improving other measures of quality of life in rural America, including public health and safety, environmental protection and culture and historic preservation.

RUS Electric Program loans, loan guarantees and grants finance the construction and improvement of rural electric infrastructure. In an effort by the RUS Electric Program to administer its program in an efficient and effective manner while improving its customer service and experience, and in response to requests from the RUS Electric Program borrowers, the Electric Program undertook a systematic review of regulations and procedures in place to administer its program. The Electric Program has completed two streamlining efforts to date:

(a) On July 9, 2019, Streamlining Electric Program Procedures (84 FR 32607) was published in the Federal Register . That regulation streamlined some pre- and post-loan procedures to adopt efficiencies and to reduce regulatory burden on Electric Program borrowers while still ensuring RUS loans remained adequately secured and ensuring that loan funds would be repaid in the time agreed upon.

(b) On July 9, 2021, Streamlining Electric Program Procedures (86 FR 24857) was published in the Federal Register . That regulation streamlined its procedures for borrowers, including its loan application requirements, approval of construction work plans, contract bidding procedures, contact approval procedures, system operation and maintenance reviews, long-range engineering plans and system design procedures. It also removed unnecessary sections from the regulations.

This rulemaking is part of the Electric Program's continuing effort to improve customer service for its borrowers and to create a more efficient work process for its staff. This rulemaking will continue to streamline Electric Program procedures and revise regulations, including removing unnecessary and outdated regulations and simplifying other policies and procedures that impose burdensome requirements on borrowers and applicants.

To implement this change, the Agency will publish this as a final rule with comment. The Administrative Procedure Act exempts from prior notice rules, any actions, “relating to agency management or personnel or to public property, loans, grants, benefits, or contracts” (5 U.S.C. 553(b)(A)).

(a) Section 1710.1 was modified to remove outdated references and bulletins.

(b) Section 1710.2 was modified to delete the definitions for approved load forecast workplan, load forecast workplan, and PRS workplan. The requirement for borrowers to maintain a load forecast workplan has been eliminated. This reduces the number of documents that must be submitted by the applicants/borrowers and reviewed by Agency employees. In addition, §§ 1710.200; 1710.202(a) and (b); 1710.203(a), (b), and (e); 1710.205; and 1710.209 have been revised to remove the references to load forecast workplans.

(c) Section 1710.101(a) and (b) were updated to include Tribes as eligible entities to receive RUS funding and added Tribes to the list of entities that receive preference from RUS in making loans. These changes were made for clarification and to codify current practices.

(d) Section 1710.105 was updated to include Tribal areas as places where borrowers may need to obtain Tribal approval prior to loans being approved or funds advanced. It was also updated to include reaffirmation of the project and its financing from Tribal authorities prior to additional loan funds being advanced when the borrower has failed to proceed with the project in a timely manner. These changes will help ensure that projects are feasible, as without the commitment of support from the Tribal entity, the viability of those projects could be in question. These changes are also aligned with the Administration's priorities.

(e) Section 1710.106(a)(3) was modified to include headquarters office and other headquarters facilities which reflects RUS's current acceptance of financing headquarters office and other headquarters facilities. This update codifies the Agency's current practice of funding headquarters buildings as a typical project instead of only in cases of financial hardship. Thus, the provisions of § 1710.106(b)(1) was moved to a new § 1710.106(a)(3). Paragraphs (c)(2) and (3) were updated to correct punctuation.

(f) Sections 1710.202(a) and 1710.203(a) through (e) were modified to define a current load forecast as having been prepared within the last 2 years. The 2 years is being added to provide clarity and consistency. A load forecast is a primary support document for developing construction workplans and should be current.

(g) Section 1710.205 was modified to include information that is required to be included in the load forecast. It is being included in this section due to §§ 1710.206 and 1710.209 being deleted as the requirement for borrowers to maintain a load forecast workplan has been eliminated. These deleted sections will be reserved.

(h) Sections 1710.400(b)(2), 1710.404, 1710.408(h) and 1710.500(a) were modified to address spelling, punctuation errors, and formatting and to correct an email address.

(i) Section 1710.501(a)(1)(v) was updated to replace DUNS number with Unique Entity Identifier. Paragraphs (a)(1)(viii), (x), (xiii), and (xvi), and (a)(2) and (8) were updated to require that borrowers indicate if Tribal approval is needed and to provide Tribal resolutions when needed. These changes help ensure compliance with Tribal law when doing business on Tribal land and help develop strong working partnerships with Tribes. These changes are also in line with the Administration's priorities. Paragraph (a)(4) was deleted due to being outdated and no longer relevant. The RUS Form 740g is no longer being required because it duplicates information provided in the Construction Workplan (CWP) or CWP Amendment and on the RUS Form 740c. This change reduces the number of forms submitted by applicants/borrowers and reviewed by Agency staff. The references to Form 740g are being removed from 7 CFR 1717.855(g) and 1724.54(f)(2).

(j) In 7 CFR 1714, subpart B was removed in its entirety and incorporated into 7 CFR 1710 as subpart J. The word “Insured” was removed from the titles of the Subpart and of 7 CFR 1714.55 (now § 1710.601). Outdated language from 7 CFR 1714.58 (now § 1710.604) was removed and the rules on principal deferment were revised. The outdated language that was removed referred to loans approved before and after February 21, 1995. Principal deferment was revised to include a written request from the borrower to the Administrator to defer amortization of the principal. Additionally, 7 CFR 1714.59(a) (now § 1710.605(a)) was revised to allow the borrower to request a rescission of a loan without the additional requirement of a formal Board Resolution. 7 CFR part 1714, subpart B referred only to insured loans but these processes are related to all loans and were added to 7 CFR part 1710, subpart J. These changes will help to eliminate possible confusion and conflicts in the regulations. Removing the requirement for a formal Board Resolution permits the General Manager, Board President or other individual authorized by the Board of Directors to request such rescission without having to have a formal resolution prepared.

(k) Section 1717.616 was revised to include language from Bulletin 1717 M-2, Sale or Transfer of Capital Assets by Electric Borrowers. This language was removed from the bulletin because the purpose of bulletins is to provide additional guidance, not requirements. Therefore, the Agency made these changes to codify the requirements in the regulation.

(l) Section 1717.855(g) was updated to remove reference to the Form 740g as referenced in (i) above.

(m) Section 1724.9 was updated to add “or any successor regulations that implement the provisions of the National Environmental Policy Act”. This update was made to provide flexibility should 7 CFR part 1970 change.

(n) Section 1724.40 was updated to include a web page for copies of the bulletins in lieu of a physical mailing address.

(o) Section 1724.51(f)(1) was updated to clarify that the provision does not apply to cybersecurity projects.

(p) Section 1724.54(d)(1)(ii) was updated to provide an additional option for the required notification. Paragraphs (e)(2) and (g)(2) were updated to provide clarification that this provision may have been waived for those borrowers who have indentures or other specialized loan security documents. Paragraph (f)(2) was updated to remove the reference to RUS Form 740g which will no longer be used. Paragraph (g)(1) was updated to clarify that the provision does not apply to cybersecurity projects.

(q) Section 1724.70(b) was updated to incorporate the program's streamlining measures that a borrower may deviate from the standard RUS contract without RUS approval provided that essential terms remain in the contract.

(r) Section 1724.71(a), (b), and (c) was updated to clarify that a borrower that is subject to an indenture is not subject to the provisions in the standard RUS loan contract. These changes are related to those made in § 1724.70(b).

(s) Sections 1730.27 and 1730.28 were updated to remove obsolete dates and outdated language. These changes were made to help alleviate confusion for borrowers.

(t) Section 1730.63(a)(5) was modified to change the update period of Interconnection of Distributed Resources (IDR) policy compliance from five years to as needed. The IDR policy generally does not change once implemented. This change will provide the borrower with more flexibility. Paragraph (b)(2) was deleted in order to remove outdated IDR language.

(u) Section 1730.65 was modified to eliminate obsolete compliance dates. This change will help alleviate confusion for applicants and borrowers as it will now be clear that the letter of certification is required for everyone.

This final rule has been determined to be non-significant for purposes of Executive Order (E.O.) 12866 and therefore has not been reviewed by the Office of Management and Budget (OMB).

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 Assistance Listing Number assigned to the Rural Electrification Loans and Loan Guarantees Program is 10.850. The Assistance Listings are available on the internet at https://sam.gov/.

This rule is excluded from the scope of E.O. 12372, Intergovernmental Consultation, which may require a consultation with State and local officials. See the final rule related notice entitled, “Department Programs and Activities Excluded from E.O. 12372” (50 FR 47034) advising that RUS loans and loan guarantees were not covered by E.O. 12372.

The Agency has determined that this final rule has a substantial direct effect on one or more Indian tribe(s) or on either the relationship or the distribution of powers and responsibilities between the Federal Government and Indian Tribes. Thus, this final rule is subject to the requirements of E.O. 13175. Tribal specific amendments in §§ 1710.101(a) and (b), 1710.105(a) and (b), and 1710.501 were based on feedback from Tribal Leaders heard during virtual Tribal Consultation events hosted by USDA in March of 2021 and April of 2022. For additional information Tribes can contact USDA's Office of Tribal Relations or USDA Rural Development's Tribal Coordinator at (720) 544-2911 or AIAN@usda.gov. If Tribes request consultation on provisions not required by law, Rural Development will collaborate with the Office of Tribal Relations to ensure that meaningful consultation occurs.

This final rule has been reviewed under E.O. 12988, Civil Justice Reform. In accordance with this final rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) No retroactive effect will be given to this rule; and (3) Administrative proceedings of the National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule.

In accordance with the National Environmental Policy Act of 1969, Public Law 91-190, this final rule has been reviewed in accordance with 7 CFR part 1970 (“Environmental Policies and Procedures”). The Agency has determined that (i) this action meets the criteria established in 7 CFR 1970.53(f); (ii) no extraordinary circumstances exist; and (iii) the action is not “connected” to other actions with potentially significant impacts, is not considered a “cumulative action” and is not precluded by 40 CFR 1506.1. Therefore, the Agency has determined that the action does not have a significant effect on the human environment, and therefore neither an Environmental Assessment nor an Environmental Impact Statement is required.

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, RUS generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with Federal mandates that may result in expenditures to State, local, or Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires RUS to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This final rule contains no Federal mandates (under the regulatory provisions of title II of the UMRA) for State, local, and Tribal governments or the private sector. Therefore, this final rule is not subject to the requirements of sections 202 and 205 of the UMRA.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act (APA) or any other statute. This final rule; however, is not subject to the APA under 5 U.S.C. 553(a)(2) and 5 U.S.C. 553(b)(3)(A) nor any other statute.

It has been determined, under E.O. 13132, Federalism, that the policies contained in this final rule do not have any substantial direct effect on 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. Nor does this final rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The Agency is committed to complying with the E-Government Act of 2002, Public Law 107-347, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible and to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

The information collection and record-keeping requirements contained in this rule are approved by the Office of Management and Budget (OMB) under OMB Control Numbers 0572-0032, 0572-0089, 0572-0100, 0572-0118, 0572-0140, and 0572-0141.

Rural Development, a mission area for which RUS is an agency, has reviewed this rule in accordance with USDA Regulation 4300-4, Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex, or disability. After review and analysis of the rule and available data, it has been determined that based on the analysis of the program purpose, application submission and eligibility criteria, issuance of this final rule is not likely to negatively impact very low, low and moderate-income populations, minority populations, women, Indian Tribes or persons with disability, by virtue of their race, color, national origin, sex, age, disability, or marital or familial status. No major civil rights impact is likely to result from this rule.

In accordance with Federal civil rights laws and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA, its Mission Areas, agencies, staff offices, employees, and institutions participating in or administering USDA programs are prohibited from discriminating based on race, color, national origin, religion, sex, gender identity (including gender expression), sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.

Program information may be made available in languages other than English. Persons with disabilities who require alternative means of communication to obtain program information ( e.g., Braille, large print, audiotape, American Sign Language) should contact the responsible Mission Area, agency, or staff office; the USDA TARGET Center at (202) 720-2600 (voice and TTY); or the 711 Relay Service.

To file a program discrimination complaint, a complainant should complete a Form AD-3027, https://www.usda.gov/sites/default/files/documents/usda-program-discrimination-complaint-form.pdf, which can be obtained online at https://www.usda.gov/sites/default/files/documents/usda-program-discrimination-complaint-form.pdf, from any USDA office, by calling (866) 632-9992, or by writing a letter addressed to USDA. The letter must contain the complainant's name, address, telephone number, and a written description of the alleged discriminatory action in sufficient detail to inform the Assistant Secretary for Civil Rights (ASCR) about the nature and date of an alleged civil rights violation. The completed AD-3027 form or letter must be submitted to USDA by:

(1) Mail: U.S. Department of Agriculture, Office of the Assistant Secretary for Civil Rights, 1400 Independence Avenue SW, Washington, DC 20250-9410; or

(2) Fax: (833) 256-1665 or (202) 690-7442; or

(3) Email: program.intake@usda.gov .

For the reasons set forth in the preamble, RUS amends 7 CFR parts 1710, 1714, 1717, 1724, and 1730 as follows:

On December 20, 2018, under the Agricultural Improvement Act of 2018, Public Law 115-334 (2018 Farm Bill), Congress made significant improvements to the program, most notably by furnishing grant assistance to reach the most underserved rural areas lacking broadband access. The Agency published an interim rule with comment on March 12, 2020 (85 FR 14393), to implement those required statutory changes.

The 60-day comment period ended on May 11, 2020. Comments were received from 16 respondents. Respondents included a funding institution, telecommunications and satellite associations and providers, businesses, and a private citizen. Four of the 16 respondents did not offer comments that were responsive or conducive to improving the interim rulemaking. Below are the comments received from the 12 remaining respondents and the Agency's responses:

Respondent 1: “The respondent is a longtime supporter of government programs that bring better broadband access to all Americans. Our members support closing the digital divide through reduced regulatory barriers and opening additional government funding opportunities for companies to invest in wireless and wireline deployments of broadband infrastructure. Therefore, the respondent encourages RUS to consider all forms of broadband deployment (both wireless and wireline) when evaluating applications for the Rural Broadband Program funding. By expanding the scope of RUS's program funding it will allow for the economy to continue to grow, provide a technology neutral environment to identify the best solutions to have broadband access to rural communities, and follow Congressional intent to expand the RUS program to utilize technology that incorporates television white spaces (TVWS). Therefore, it is important that RUS activate TVWS in addition to wireline broadband for the United States to support the present and future of Internet of Things (IoT) services.”

Agency response: We appreciate your concern. The broadband program is a technology neutral program and wireless technology along with wireline technology is eligible for funding consideration as long as the overall application meets the eligibility requirements of the program.

Respondent 2: The interim rule should be modified to clarify that the “associated loan” component of the grant could be provided by a private funding source. Regardless of whether the loan portion of the grant/loan combination comes from RUS or a private lender, RUS should consider adding alternative forms of credit support. Since the statutory and regulatory framework allows RUS the discretion to determine appropriate security arrangements, respondent believes that a letter of credit alternative should be permitted for those systems that have repaid and no longer borrow from the Government (“Non-Government Borrowers”). The published interim final rule does not explain how RUS would calculate the fees, and respondent encourages the agency to elaborate on the expected method of calculating the fees in the final rule.

Agency response: The requirement to apply for an RUS loan in order to receive associated grant funding is a statutory requirement and cannot be modified at this time. Concerning the security arrangements for an RUS loan, applicants may propose alternate forms of collateral but should be prepared to enter into security arrangements as detailed in the regulation.

Respondent 3: “Please do not forget the micro deserts. Broadband is available two houses from me but they will not extend to me on my farm. I rely on a hotspot that doesn't always work, and never gets more then about 4m BPS download and less than one upload and that's with an expensive booster. I have to go to town to update my computer. Our cell signal is not good.”

Agency response: The Agency understands your situation. Applicants determine the service areas that they are requesting financing for and the Agency requires that all premises in the proposed funded service must be capable of receiving the proposed broadband service.

Respondent 4: Programs can only reach their highest potential if they adhere to the principles for which the respondent has consistently advocated: a focus on dedicating funding to bring broadband to truly unserved areas in the most cost-effective way possible, and a commitment to ensuring a fully transparent process so that all providers can ensure that scarce funding is not allocated to already served areas.

Agency response: The Agency will analyze industry trends and set the broadband eligibility speeds accordingly to ensure that areas with inadequate broadband service can receive improved broadband service comparable to broadband service that is being provided in non-rural areas.

Respondent 5: “Significantly reduce the environmental reporting requirements in the application. Remove location and network specifics regarding Non-funded Service Areas (NFSA) and Unadvanced Prior Loan Fund (UPLF) areas. Allow non-contiguous boundaries for NFSAs. Points associated with schools and libraries should be handled differently. The requirement that 100% of location in PFSA [proposed funded service area] be unserved should be relaxed when applying for 100% grants. Requiring a blanket first lien on all assets (when a loan component was included) eliminated many potential applicants who use other lending sources. Do not require applicant to provide subscriber penetrations per serving area. Calculation of depreciation expense on grant funded assets should be eliminated or should have the ability to be manually adjusted. Environmental questionnaire (EQ) should be similar to EQ for RUS Infrastructure loans. Allow adequate time for application preparation. Definition of Unserved should match the FCC [Federal Communications Commission] definition. Eliminate requirement to list fiber sizing on network diagrams. There are also several enhancements we would like to see with the application portal.”

Agency response: The application process and system have been designed to ensure that all regulatory/statutory requirements are met and that the proposed system is both financially and technically feasible. The information requested is essential in making these determinations.

Respondent 6: “Consistent with the intent of the 2018 Farm Bill, section 1738.101(a)(1) should make it clear that applicants are eligible for grant funding if they are pairing the grant with a loan from a third-party, not just a loan from RUS. Similarly, the discussion of grants for development costs in section 1738.101(d) should include broadband loans from third parties, not just RUS broadband loans.

• The definition and discussion of the “Broadband lending speed” should be modified to clarify that the initial Broadband lending speed under these programs is “25/3 Mbps fixed terrestrial” and clarify the discussion of eligible service area to make it clear that initially any area with anything less than “25/3 Mbps fixed terrestrial” is eligible while prioritizing areas that lack access to at least 10/1.

• RUS should emphasize that mobile and satellite service will not be considered in determining eligibility, that RUS funding will not be provided to mobile service, but rather for high-capacity backbone to connect households and premises, and also to support wireless sites.

• RUS should clarify that, if there are applications for low density areas, RUS will exercise its discretion in determining the mix of grants and loans by using more of the designated funds in the form of grants and targeting such grant funding to lower density areas.

• The standards set forth in section 1738.101(b) for determining density should be based upon household density, not population density.

• RUS should allow matching funding, whether in the form of cash or loan funds, to be spread over the built-out period, rather than fully expended upfront before grant funding can be used. And loan/grant combo awardees should be allowed to draw equally from loan and grant funds rather that expend loan funds before accessing grant funds.

• For these programs, RUS should continue with the competitive market analysis used in ReConnect program, rather than the heightened requirements contained in the IFR [interim final rule].

• RUS should modify the treatment of challenges to applications by providing the applicant with access to the challenge and given a chance to respond within 30 days.

• In cases where issues raised in a challenge can be addressed by minor modifications to the application, RUS should allow applicants to do so.

• We encourage RUS to clearly state in the Application what the applicant must report and provide regarding its structure to increase its flexibility regarding partnerships (for example, not requiring one partner to be designated “lead applicant”).

• Regarding fidelity bond coverage of 15% of the loan or loan/grant amount, RUS should permit a letter of credit in lieu of a fidelity bond and should allow either mechanism to be reduced as the awardee meets or exceeds build-out milestones or obligations.

• We also ask RUS to clarify the effective date of IFR and clarify that the RUS letter to the applicant on fund availability is the event that marks the beginning of the five-year build-out period.

• Finally, we ask RUS to explain how lender fees for loan guarantees would be calculated and how RUS would use the proceeds from those fees.”

Agency response: Pairing grant funding with an RUS loan is a statutory requirement and cannot be modified at this time.

The broadband lending speed is designed to change with the ever-increasing bandwidth requirements that the public requires. The Agency will evaluate the broadband lending spend each time that a funding announcement is published and set this requirement accordingly.

The broadband program is technology neutral and any technology that can meet the broadband lending speed is eligible for consideration.

The amount of grant funds and the associated density calculations that can be applied for are statutory requirements and cannot be changed at this time.

The agency will consider the recommendation to spread out matching requirements over the construction period but at this time, the requirement will remain that matching funds be expended first.

Through the Public Notice Response process, the Agency will conduct on-site review of the proposed service area to determine if adequate broadband exists. If an area of the proposed funded service area is found to be ineligible, the Agency will work with applicants to modify the proposed service area accordingly.

Once an offer of an award is extended to an applicant, the 5-year construction period starts once all closing conditions are satisfied and funds become available to the awardee.

At this time, the Agency has not determined how fees associated with a loan guarantee will be calculated. Once this process has been fully determined, the Agency will conduct outreach explaining the process.

Respondent 7: As demonstrated by respondent's successful deployments in rural America and around the world, excluding satellite from the definition of broadband is arbitrary and would unjustly penalize operators that use satellite in whole or in part to provide the same services as exclusively terrestrial operators, with no perceivable difference in customers' experiences. In contrast, enabling the inclusion of satellite connectivity in RUS's rural broadband funding programs would empower applicants to bring service to the most rural areas of the United States using a combination of satellite and terrestrial deployments. Respondent urges RUS to adopt technology-neutral standards without an arbitrary definition of broadband to ensure that applicants for RUS funding have the option to integrate cost-effective and high-performance satellite broadband technologies into their networks. At the very least, RUS should clarify that its definition of broadband only applies to last mile connectivity and does not seek to limit other non-terrestrial network components used to reach remote rural areas.

Agency response: To ensure that all rural areas have sufficient bandwidth, the Agency will evaluate the eligibility and construction requirements every time a funding announcement is published. The bandwidth for both eligibility and construction will be set to ensure that all rural Americans have access to sufficient bandwidth. Applicants must ensure that all households in the proposed funded service area can receive the minimum bandwidth requirements at the same time.

Respondent 8: The rule proposed by RUS excludes satellite Broadband from aspects of its grant programs, while the 2018 Farm Bill did not exclude satellite operators who otherwise meet the requirements of RUS' assistance programs from participating in these programs. Satellite broadband services should not be excluded from the determination of whether proposed project areas are already served. Accordingly, RUS should clarify that satellite providers are eligible to participate in these important programs and adopt technology neutral criteria. Wrongly excluding satellite—or even failing to remove this ambiguity—will greatly undermine RUS's ability to achieve its goals of increasing economic opportunity in rural America by supporting broadband infrastructure deployments that will provide affordable, high-quality connectivity to rural communities.

Agency response: To ensure that that all rural areas have sufficient bandwidth, the Agency will evaluate the eligibility and construction requirements every time a funding announcement is published. The bandwidth for both eligibility and construction will be set to ensure that all rural Americans have access to sufficient bandwidth. Applicants must ensure that all households in the proposed funded service area can receive the minimum bandwidth requirements at the same time.

Respondent 9: With its Starlink satellite system, respondent seeks to provide high-speed broadband worldwide, and specifically to remote and rural areas that are the most unserved. Although respondent has made no decision to participate in any program administered by RUS or any other Federal or state broadband program, respondent opposes any proposals that would arbitrarily exclude next-generation satellite systems from the definition of broadband. Broadband should be defined by the quality of service provided, not by the mechanism which provides it.

Agency response: The Agency will continue to monitor the developments in satellite technology and may consider modifying the restrictions on satellite provided broadband for future funding rounds.

Respondent 10: Respondent unequivocally supports the position stated in respondent 7's letter against the proposed rule changing the definition of broadband to exclude satellite. In a state where zero school districts have the FCC recommended 1 Mbps per student capacity and 20% of Alaska residents have no broadband access other than satellite, Alaska would be irreparably harmed if the Department were to adopt the proposed rules that exclude satellite.

Agency response: To ensure that that all rural areas have sufficient bandwidth, the Agency will evaluate the eligibility and construction requirements every time a funding announcement is published. The bandwidth for both eligibility and construction will be set to ensure that all rural Americans have access to sufficient bandwidth. Applicants must ensure that all households in the proposed funded service area can receive the minimum bandwidth requirements at the same time.

Respondent 11: Respondent supports the interim funding rule and provides the following comments to improve upon the rules, as summarized below:

• Applicants should be allowed to pair their grants with loans from third parties, not just loans from RUS.

• “Broadband lending speed” should be modified to clarify that the initial broadband lending speed under these programs is “25/3 Mbps fixed terrestrial” and clarify the discussion of “eligible service area” to make it clear that initially any area with anything less than “25/3 Mbps fixed terrestrial” is eligible while prioritizing areas that lack access to at least 10/1.

• Mobile and satellite services should not be considered for purposes of determining eligible areas, nor should mobile broadband be included for purposes of “Broadband lending speeds” that may receive RUS funding.

• RUS should allow matching funding, whether in the form of cash or loan funds, to spread over the built-out period, rather than fully expended upfront before grant funding can be used.

• RUS should not require applicants to provide a competitive analysis of the market, because such analysis is not provided within the statute nor is such analysis necessary for purposes of carrying out the other provisions in the statute.

• RUS should allow applicants an opportunity to respond to challenges from existing service providers claiming to serve areas within the applicants' proposed funded service area; and should permit applicants to modify their application to respond to challenges. In any event, RUS should not exempt from disclosure the information that is presented in support of an existing service provider's claim. This one-way, opaque process invites abuse by existing service providers and prevents applicants from defending their proposals.

Agency response: Pairing grant funding with an RUS loan is a statutory requirement and cannot be modified at this time.

The broadband lending speed is designed to change with the ever-increasing bandwidth requirements that the public requires. The Agency will evaluate the broadband lending speed each time that a funding announcement is published and set this requirement accordingly.

The broadband program is technology neutral and any technology that can meet the broadband lending speed is eligible for consideration.

The amount of grant funds and the associated density calculations that can be applied for are statutory requirements and cannot be changed at this time.

The Agency will consider the recommendation to spread out matching requirements over the construction period but at this time, the requirement will remain that matching funds be expended first.

Through the Public Notice Response process, the Agency will conduct on-site review of the proposed service area to determine if adequate broadband exists. If an area of the proposed funded service area is found to be ineligible, the Agency will work with applicants to modify the proposed service area accordingly.

Once an offer of an award is extended to an applicant, the 5-year construction period starts once all closing conditions are satisfied and funds become available to the awardee.

Respondent 12: “Regardless of the specific needs of a locality, strong last-mile wireless broadband connectivity is a necessity for countless internet of things use cases the RUS seeks to advance, such as smart agriculture deployments, and should be prioritized in Rural Broadband Program awards. RUS Enabled by new rules adopted by the Federal Communications Commission, new wireless technology that utilizes television white spaces (TVWS) has the demonstrated ability to exceed Rural Broadband Program thresholds in RUS' interim final rule, providing extended last-mile wireless connectivity that supports higher throughput. We strongly encourage RUS to ensure that the updated Rural Broadband Program's rules support applications utilizing TVWS technology deployments that will increase and improve broadband access to rural communities, consistent with Congress' intent in the Agricultural Act of 2018.”

Agency response: Fixed wireless broadband is an eligible technology as long as it can deliver the required broadband service to every household in the proposed service area at the same time.

The Agency evaluated the responsive comments and based on analysis and response to comments, we are adopting the interim rule without change.

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all BAE Systems (Operations) Limited Model BAe 146 series airplanes. The NPRM published in the Federal Register on August 22, 2022 (87 FR 51271). The NPRM was prompted by AD G-2022-0002, dated February 11, 2022, issued by United Kingdom Civil Aviation Authority (U.K. CAA), which is the aviation authority for the United Kingdom (referred to after this as the MCAI). The MCAI states that when the autopilot is engaged, the architecture of the autopilot system does not automatically disconnect the autopilot in response to pilot application of a pitch input or when the electric pitch trim switch on either pilot control wheel is operated.

In the NPRM, the FAA proposed to require modifying the autopilot engagement circuit. The FAA is issuing this AD to address continued autopilot engagement after flightcrew input to disengage the autopilot, which could lead to reduced controllability of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1053.

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

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

BAE Systems (Operations) Limited has issued Modification Service Bulletin SB.22-072-36262A, dated September 14, 2021. This service information describes procedures for modifying the autopilot engagement circuit, including the wiring, relay, and certain module blocks. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 20 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2021-06-03, Amendment 39-21469 (86 FR 12809, March 5, 2021) (AD 2021-06-03). AD 2021-06-03 applied to all The Boeing Company Model 777F series airplanes. The NPRM published in the Federal Register on March 25, 2022 (87 FR 17035). The NPRM was prompted by the development of new actions that result in a need to modify AD 2021-06-03. AD 2021-06-03 was issued because of a report of a water supply line that detached at a certain joint located above an EE cooling filter, leading to water intrusion into the forward EE bay. In the NPRM, the FAA proposed to continue to require deactivating the potable water system. The NPRM also proposed to require installing a shroud to the water supply line in the forward cargo compartment, and performing a leak test of the potable water system. For certain airplanes, the NPRM also proposed to require replacing tubes and hoses from the water supply line and installing a shroud to the water return line. The FAA is issuing this AD to address water entering the EE cooling system via the cooling filter, which can affect multiple EE bay racks and line replaceable units (LRUs), resulting in loss of functionality or inaccurate output of critical electrical systems and possible loss of control of the airplane.

The FAA received comments from the Air Line Pilots Association, International (ALPA), and an individual, who supported the NPRM without change.

The FAA received additional comments from three commenters, including Boeing, FedEx, and All Nippon Airways. The following presents the comments received on the NPRM and the FAA's response to each comment.

FedEx and Boeing requested that the FAA change the affected airplanes in paragraph (g)(2) of the proposed AD from “L/Ns [line numbers] 960 and subsequent.” to “L/N 960 through L/N 1689.” FedEx noted that the airplanes affected by paragraph (g)(2) of the proposed AD should reflect the effectivity of Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021. FedEx stated that if the affected airplanes are not revised, then the final rule will require Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021, to be accomplished on aircraft to which it is not effective. Boeing pointed out that the FAA has previously accepted this alternative method of compliance (AMOC) to AD 2021-06-03 for L/N(s) 1692 and on, which have incorporated Type Design Change PRR 62701 Part B.

The FAA agrees with the request for the reasons stated above. The FAA has changed paragraph (g)(2) of this AD from “L/Ns 960 and subsequent” to “L/N 960 through L/N 1689 inclusive.”

FedEx requested that the FAA allow the AMOC to AD 2021-06-03 that included Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, to remain valid for 24 months from the published date of Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, in this AD. FedEx reasoned that the AMOC to AD 2021-06-03 will expire earlier than actions specified in Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021, can reasonably be accomplished. All Nippon Airways requested that the AMOC to AD 2021-06-03 for Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, remain valid for 24 months from the effective date of this AD. All Nippon Airways contended that if this AD does not allow Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, to remain valid, certain airplanes will be grounded. All Nippon Airways also noted that if this AD continues to allow Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, as an AMOC to this AD, but without extending the compliance time, certain airplanes may be grounded due to the time needed to submit and validate the AMOC Notice to its local authority.

Alternatively, All Nippon Airways requested that this AD be issued after the expiration of the interim action of the AMOC to AD 2021-06-03 that includes Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. All Nippon Airways contended that if this AD does not allow the AMOC that specifies Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, to remain valid, certain airplanes will be grounded for the reasons described above.

The FAA agrees with the intent behind the requests but cannot change the existing AMOC to provide this relief to operators. However, the FAA is considering issuing an amended AMOC that would extend the compliance time of Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. If this amended AMOC is issued, then it may extend the 24-month compliance time to align with the compliance time of Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021. The FAA has added paragraph (n)(4) of this AD to state that “AMOCs approved for AD 2021-06-03 are approved as AMOCs for the corresponding provisions of this AD.”

Additionally, the FAA does not agree to delay the issuance of this AD until after the expiration of the interim action of the AMOC to AD 2021-06-03 that includes Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. An AD is issued to correct an unsafe condition. The unsafe condition will be corrected using Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021. The FAA has not changed the AD in this regard.

FedEx and Boeing requested that the FAA include a paragraph in this AD that allows for an optional interim action in accordance with Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. FedEx and Boeing maintained that this AD should reference Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, which was included in an AMOC to AD 2021-06-03. FedEx noted that by including the interim action of Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021, in this final rule, the information will provide a more complete picture of the entire timeline for future reference.

The FAA agrees for the reasons provided. The FAA has previously approved the AMOC to AD 2021-06-03 regarding the installation of a temporary water line shroud in accordance with Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. As a result, the FAA has added paragraph (l) of this AD, which allows the activation of the potable water system provided that installation of a shroud around the water supply line and gray water line, installation of a shroud around the water return line, and post-installation inspections and applicable corrective actions are done in accordance with Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021; and provided that the potable water system is deactivated within a certain compliance time. The FAA has also redesignated subsequent paragraphs accordingly. The FAA has also revised the Costs of Compliance section to include the cost estimates for this optional action.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. 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 Boeing Alert Requirements Bulletin 777-38A0048 RB, dated October 18, 2021. This service information specifies procedures for replacing tubes and hoses from the water supply line and installing a shroud to the water supply and return lines in the forward cargo compartment and performing a leak test of the potable water system.

The FAA also reviewed Boeing Alert Service Bulletin 777-38A0047, dated March 30, 2021. This service information describes procedures for installing a shroud around the water supply line and gray water line at station (STA) 529 to STA 634 in the forward cargo compartment, installing a shroud around the water return line at STA 550 to STA 620 in the forward cargo compartment, post-installation inspection requirements (which, depending on the shroud location, include a detailed inspection for any evidence of a water leak and a general visual inspection to determine if the shroud is in serviceable condition), and corrective actions (which include doing applicable corrective actions and a leak test until no leak is detected, and doing applicable corrective actions to put the shroud back to serviceable condition).

This AD also requires Boeing Multi Operator Message MOM-MOM-21-0089-01B, dated February 26, 2021, which the Director of the Federal Register approved for incorporation by reference as of March 5, 2021 (86 FR 12809, March 5, 2021).

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

The FAA estimates that this AD affects 58 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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:

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 The Boeing Company Model 777 airplanes. The NPRM published in the Federal Register on March 21, 2022 (87 FR 15902). The NPRM was prompted by reports of discrepancies between the CWT fuel quantity, as indicated by the FQIS, and the refueling truck uploaded fuel amount, followed by certain EICAS messages. In the NPRM, the FAA proposed to require installing new software in the FQPU, or replacing the FQPU with one that includes new software, depending on airplane configuration; doing a software version check; and doing a FQPU operational check, depending on airplane configuration. In the NPRM, the FAA also proposed to prohibit the installation of certain FQPUs on certain airplanes. The FAA is issuing this AD to address discrepancies in the CWT FQIS, which can result in an airplane being dispatched with insufficient fuel in the CWT and with the flight crew unaware of the insufficient fuel prior to departure. This condition, coupled with continued flight to the destination airport after receiving EICAS messages while in route to the destination, could result in fuel exhaustion and subsequent power loss to all engines, thereby resulting in the inability to land at the destination airport or at a diversion airport, possibly leading to flight into terrain.

The FAA received comments from Air Line Pilots Association, International (ALPA), FedEx Express, and United Airlines (UAL), who supported the NPRM without change.

The FAA received additional comments from seven commenters, including Cathay Pacific Airways (Cathay), Air France (AFA), Korean Air (KAL), Boeing, British Airways (BAB), Ontic, and American Airlines (AAL). The following presents the comments received on the NPRM and the FAA's response to each comment.

Boeing requested that the FAA remove the parts installation prohibition specified in paragraph (j) of the proposed AD. Boeing stated that the safety rationale for immediate prohibition of installation of FQIS-1 FQPU P/N 0320KPU01 is unclear, and that the actions and compliance times outlined in paragraph (g) of the proposed AD are sufficient without the additional prohibitions identified in paragraph (j) of the proposed AD. Boeing stated that operators have indicated a need to continue installing FQIS-1 FQPU part number (P/N) 0320KPU01 within the compliance period prior to availability of replacement FQIS-2 FQPUs P/Ns 0335KPU01, 0335KPU02, and 0335KPU03; and that prohibiting the installation of a FQIS-1 FQPU would present an unnecessary hardship due to insufficient availability of FQIS-2 FQPU. Boeing added that the statement “This proposed AD would also prohibit the installation of certain FQPUs on certain airplanes” in the Summary of the NPRM should also be removed.

AFA requested that the FAA modify the parts prohibition specified in paragraph (j) of the proposed AD in order to give more flexibility and allow installation of FQIS-1 FQPU P/N 0320KPU01 on airplanes that have not yet been retrofitted in accordance with Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. AFA explained that unplanned removal ( e.g., due to failure or troubleshooting) of FQIS-1 FQPU would necessitate replacement with FQIS-2 FQPU, but demand for that cannot be met by the manufacturer. AFA stated that if the installation prohibition per paragraph (j) of the proposed AD is adopted as is, airplanes would be grounded because of the lack of required serviceable spares. AFA asserted that the safety risk is already addressed by AD 2020-11-11, Amendment 39-19915 (85 FR 34090, June 3, 2020) (AD 2020-11-11).

KAL requested that the FAA consider removing the parts installation prohibition specified in paragraph (j) of this proposed AD, or clarify and mitigate the parts installation prohibition conditions. KAL said the vendor was not able to provide the FQIS-2 FQPU until December 2023.

BAB proposed removing paragraph (j) of the proposed AD (the “Parts Installation Prohibition,” requirement) because the forecast supply of upgraded FQPUs (FQIS-2 FQPUs P/Ns 0335KPU01, 0335KPU02, and 0335KPU03) does not support the requirement, and the resulting cost of aircraft grounding is disproportionate to the fleet safety risk mitigation provided to the fleet by the proposed AD. BAB said the action is not justified; is not required for fleet safety; and was not required, recommended, or communicated to operators in the Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021, which the FAA has previously approved.

BAB explained that due to material shortages, the manufacturer is forecasting that deliveries of the new FQPUs will not commence until the second quarter of 2023. Should the AD be published with the prohibition specified in paragraph (j) of the proposed AD, BAB asserted that there will be a significant risk of grounding aircraft due to lack of availability of FQIS-2 FQPU P/N 0335KPU03. BAB also said the mandated integrated refuel panel (IRP) door cycling procedure required by AD 2020-11-11 is performed for all fuel uplifts regardless of whether the CWT is being utilized, and will continue until Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021, has been accomplished on the entire fleet. BAB concluded that the risk of departing with less than the minimum fuel for the mission has been effectively mitigated since 2020 with this mandated IRP door cycling procedure.

AAL requested that the FAA allow replacement of FQIS-1 FQPU P/N 0320KPU01 with the same FQPU while the fleet is being upgraded to the FQIS-2 FQPU ( e.g., P/N 0335KPU03), as specified in Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. AAL noted that the parts installation prohibition specified in paragraph (j) of the proposed AD specifies that, for certain airplanes, “as of the effective date of the AD,” FQIS-1 FQPU P/N 0320KPU01 may not be installed. AAL said that the manufacturer is unable to meet delivery schedules. AAL noted it will likely not have the spare FQIS-2 FQPU P/N 0335KPU03 necessary for out-of-service events caused by failure of FQIS-1 FQPU P/N 0320KPU01, potentially causing extended down time. AAL explained that the fuel cycling procedure required by AD 2020-11-11 will continue while the upgrade is in progress, eliminating fuel drop events potentially caused by the FQIS-1 FQPU.

The FAA partially agrees with the request to modify paragraph (j) of this AD because, as the commenters explained, there is a limited availability of FQIS-2 FQPU, and AD 2020-11-11 is still in effect for airplanes with FQIS-1 FQPU installed. The FAA agrees to provide relief to the parts installation prohibition specified in paragraph (j) of this AD by allowing airplanes identified in Group 1 of Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021, that still have FQIS-1 FQPU installed to continue installing FQIS-1 FQPU P/N 0320KPU01 within the 30-month compliance time. For those airplanes, FQIS-1 FQPU must be replaced by FQIS-2 FQPU by the end of the compliance time as required by paragraph (g) of this AD, which mandates Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. Note that paragraph (h) of this AD (“Exceptions to Service Information Specifications”) defines the compliance time as 30 months after “the effective date of this AD” rather than after “the original issue date of Requirements Bulletin 777-28A0090 RB.”

The FAA disagrees with removing paragraph (j) of this AD completely because the installation of FQIS-1 FQPU onto Group 1 airplanes that already have the FQIS-2 FQPU installed must be prevented, even when there is an unplanned removal of the FQPU.

Paragraph (j) of this AD has been revised to read “For Group 1 airplanes identified in Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021, that have a FQIS-2 fuel quantity processor unit (FQPU) part number (P/N) 0335KPU01, 0335KPU02, or 0335KPU03 installed: As of the effective date of this AD, no person may install a FQIS-1 FQPU P/N 0320KPU01 (Boeing P/N S345W001-010), on any airplane.”

AFA requested a reasonable timescale for replacement of FQIS-1 FQPU P/N 0320KPU01 due to the shortage of FQIS-2 FQPU replacement units.

KAL also requested that the FAA provide a compliance time long enough ( e.g., a compliance time extension) to support the shortage of FQPU (the FAA infers the commenter is referring to FQIS-2 FQPU) because of lack of availability of replacement units. KAL said the vendor was not able to provide the FQIS-2 FQPU until December 2023, and they are unable to meet the compliance deadline of “September 2023.” The FAA infers that KAL is measuring the 30-month compliance time from March 30, 2021, the publication date of Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021.

Ontic stated that the limited availability of FQIS-2 FQPU could not support the fleet of aircraft still in operation within the 30 months compliance time specified in Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. Ontic further stated that it understands the 30-month compliance time typically commences on the release of the AD, and not the service information. The FAA infers a request by Ontic to extend the compliance time if it commences on the publication date of Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021.

The FAA disagrees with the request to change the compliance time of 30 months to accomplish Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. The FAA has confirmed with the manufacturers that a sufficient supply of FQIS-2 FQPU would be available to meet the compliance time if replacement of a FQIS-1 FQPU with a serviceable FQIS-1 FQPU is done within that time. As stated previously, the 30-month compliance time commences on the effective date of this AD, as specified in paragraph (h) of this AD. If operators encounter difficulty with accomplishing the actions required by this AD within the compliance time, they may request an alternative method of compliance (AMOC) in accordance with paragraph (k) of this AD. This AD has not been changed regarding this request.

Boeing offered to provide guidance for operators who request continued use of AD 2020-11-11 as an AMOC to this AD. Boeing said that individual airlines operate Model 777 airplanes differently, therefore a global AMOC is not practical for this AD. Boeing advised that considerations for requesting an AMOC would include frequency and quantity of center tank fuel loaded for mission profiles, planned end-of-life retirement of the airplane, and other factors impacting individual airline operations.

The FAA supports the manufacturer's offer of guidance. Operators may request AMOCs under the provisions of paragraph (k) of this AD. This AD has not been changed regarding this request.

Boeing requested that the Summary section of the NPRM be revised for clarity. Boeing stated that the Summary description is inconsistent with the service bulletin regarding the operational check and the software version check. Boeing explained that the software version check should be accomplished when the software is downloaded to the FQPU onboard, and when a new FQPU is installed on the airplane. Boeing added that the operational check is only required when installing a new or updated FQPU on the airplane.

The FAA agrees to the request to revise the Summary section of this AD for the reason provided by the commenter. The third sentence of the Summary has been changed by adding “, depending on airplane configuration” to the end of the sentence.

Boeing recommended that the technical description of the design flaw in the Background paragraphs be refined for clarity and reduce the possibility of reader misperception. Boeing provided revised language for the paragraph discussing the design flaw. Boeing also asked that the paragraph discussing the events where there was incorrect fuel quantity information be removed; that paragraph includes a description of the situation where the FQIS could indicate less than the actual fuel quantity in the CWT.

The FAA disagrees with this recommendation because the referenced information provided in the Background paragraphs of the NPRM is not repeated in the final rule. Furthermore, the information given adequately describes the design flaw in the FQIS, including the one in-service event where more fuel was added to the center tank than required for the mission. This AD has not been changed with regard to this request.

Cathay asked for the lead time for an AMOC to retain the door cycling procedure of AD 2020-11-11. Cathay also asked whether a certain Boeing information notice will be part of the AD requirement because of difficulties encountered with software loading.

The FAA advises that the standard response time for an AMOC application is 30 days. AMOC requests may be submitted as indicated in paragraph (k) of this AD. This AD requires only that FQPU software be upgraded or the FQPU replaced. There is no requirement regarding how the software upgrade is to be accomplished. Operators may refer to the Boeing information notice without requesting an AMOC. This AD has not been revised in this regard.

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 Boeing Alert Requirements Bulletin 777-28A0090 RB, dated March 30, 2021. This service information specifies procedures for a check of maintenance or delivery records or an inspection to determine the part number of the FQPU for Group 1 airplanes. For Group 1 airplanes with a FQIS-1 FQPU, this service information specifies procedures for removing the existing FQPU; installing certain FQIS-2 FQPU with upgraded software; and doing a software version check and FQPU operational check. For Group 1 airplanes with a FQIS-2 FQPU and Group 2 airplanes, this service information specifies procedures for upgrading the FQPU software, and doing a software version check.

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

The FAA estimates that this AD affects 257 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has included all known costs in its cost estimate. According to the software manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 747-100, 747-100B, 747-100B SUD, 747-200B, 747-200C, 747-200F, 747-300, 747-400, 747-400D, 747-400F, 747SR, and 747SP series airplanes. The NPRM published in the Federal Register on September 8, 2022 (87 FR 54927). The NPRM was prompted by reports that high temperature composite TADD showed composite degradation and signs of hot air leakage. In the NPRM, the FAA proposed to require a one-time LFEC inspection of certain center tank upper skin panels on the right and left side for any structural damage due to heat exposure, and repair if necessary. The FAA is issuing this AD to address possible sustained hot air leakage from damaged TADDs, which could result in undetected damage to adjacent airframe structure. This condition, if not addressed, could lead to heat damage to the wing center section and adjacent structure and adversely affect the structural integrity of the airplane, resulting in the inability of the structure to carry limit load and the possible loss of continued safe flight and landing.

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

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

The FAA reviewed Boeing Alert Requirements Bulletin 747-57A2370 RB, dated March 2, 2022. This service information specifies procedures for a one-time LFEC inspection for any structural damage due to heat exposure of the center tank upper skin panels on the right and left side between station (STA) 1100-1120, 1140-1160, and 1180-1200 bays outboard of left buttock line (LBL) 98 and right buttock line (RBL) 98 seat tracks, and repair. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 104 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA has received no definitive data on which to base the cost estimates for the on-condition repairs specified in this AD.

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

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

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

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

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

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

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

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

Background

The final regulations (TD 9967) subject to this correction are issued under section 42 of the Internal Revenue Code.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendment:

Background

The Postal Service hereby amends Publication 52, Hazardous, Restricted, and Perishable Mail, with the provisions set forth herein. While not codified in Title 39, Code of Federal Regulations (CFR), Publication 52 is a regulation of the Postal Service, and changes to it may be published in the Federal Register . 39 CFR 211.2(a)(2). Moreover, Publication 52 is incorporated by reference into Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM) section 601.8.1, which is incorporated by reference, in turn, into the Code of Federal Regulations. 39 CFR 111.1, 111.3. Publication 52 is publicly available, in a read-only format, via the Postal Explorer® website at https://pe.usps.com. In addition, links to Postal Explorer are provided on the landing page of USPS.com, the Postal Service's primary customer-facing website, and on Postal Pro, an online informational source available to postal customers.

On June 6, 2022, the Postal Service published an interim final rule (IFR) (87 FR 34197) requiring mailers to separate HAZMAT requiring marks or labels from non-hazmat and tender it to the Postal Service in containers labeled “HAZMAT.”

Undeclared, unidentified, mislabeled, and misrouted HAZMAT can and does cause fires, spills, corrosion, and other dangers to personnel and equipment of the Postal Service, air carriers, and surface transportation providers, as well as to mailers' property and to aircraft passengers.

In particular, the increasing consumer use of lithium metal and lithium-ion batteries has brought a concomitant rise in fires and other dangerous incidents related to such batteries. The Federal Aviation Administration (FAA) has publicly reported 398 aviation incidents involving lithium batteries between March 3, 2006, and July 22, 2022, including a substantial number in just the most recent twelve months. FAA, Events with Smoke, Fire, Extreme Heat, or Explosion Involving Lithium Batteries, May 1, 2022, https://go.usa.gov/xusNT. 1

The Pipeline and Hazardous Materials Safety Administration (PHMSA) has similarly reported a number of incidents involving mail between 2014 and 2021. See PHMSA, Incident Statistics, last updated March 9, 2022, https://go.usa.gov/xJrSS. One-third of the PHMSA-reported mail incidents occurred on passenger aircraft; approximately half were discovered because of a thermal or release event; and more than half were discovered only after flight. A plurality of such items were Class 9 items such as lithium batteries, and many were ineligible for air transportation. Moreover, in recent compliance inspections, PHMSA investigators “routinely saw shippers and carriers improperly package and ship lithium batteries for disposal or recycling,” including “packaging lithium batteries in a way that did not prevent short circuits, mixing damaged lithium batteries with other batteries in the same packaging within shipments for disposal or recycling, and shipping pallet loads of batteries in boxes and drums with inappropriate identification of the packages' contents.” PHMSA, Safety Advisory Notice for the Disposal and Recycling of Lithium Batteries in Commercial Transportation 1-2, May 17, 2022, https://go.usa.gov/xJY3J.

Internal Postal Inspection Service data and anecdotal reports from commercial air-carrier partners over the last few years likewise indicate a consistent and alarming rise in incidents involving mailed packages of both lithium batteries and other HAZMAT, including flammable liquids, aerosols, and strike-anywhere matches. Incidents include unlabeled or improperly labeled air-ineligible HAZMAT being accepted for air transportation, as well as properly prepared air-ineligible HAZMAT that was improperly routed to air transportation because it was commingled with other mail and insufficiently visible to Postal Service personnel.

The FAA and PHMSA have issued standards for safe carriage of lithium batteries, including a prohibition on air transportation of damaged, defective, or recalled lithium batteries. See, e.g., 49 CFR 173.185. However, the determinants of hazard risk, such as damage, defects, state of charge, or packaging of batteries, are not outwardly apparent to Postal Service and other personnel handling packages. In other respects, as well, safety depends on a shipper's awareness of and compliance with packaging, labeling, marking, and other HAZMAT shipping requirements. If a shipper does not make HAZMAT adequately visible to Postal Service personnel responsible for acceptance and sortation, then there is an unacceptably high risk that postal and air-carrier personnel will not know that the item warrants special handling and routing.

While many incidents involving HAZMAT in the mail are minor and controllable, the risk of a major threat to an aircraft—including, in particular, passenger aircraft—and other infrastructure and personnel is real, severe, and growing with the rise in lithium-battery and other hazardous shipments. By way of illustration, the U.S. Coast Guard (USCG) recently reported that on August 19, 2021, a shipping container loaded with discarded lithium batteries caught fire, with heat intense enough not only to destroy much of the cargo, but also to burn a hole in the container's structure itself. USCG, Marine Safety Alert: Lithium Battery Fire, March 10, 2022, https://go.usa.gov/xJYxu. USCG noted that the incident would have been “catastrophic” if it had occurred after loading onto the container ship. The same could be said if a similar fire arose from discarded lithium batteries aboard passenger aircraft. It is imperative that the Postal Service undertake measures to reduce the risk to its operations and aviation safety.

On August 3, 2020, the Postal Service published a notice of proposed rulemaking regarding a proposed requirement to separate air-eligible HAZMAT from all other matter in a mailing. 85 FR 46575. The Postal Service received several comments on that notice, and it appreciates the valuable public input. In particular, multiple commenters expressed support for the proposition of separating HAZMAT from non-HAZMAT matter and for further improving the Postal Service's ability to ensure that air-ineligible HAZMAT is not inadvertently loaded onto air transportation. Further study and intervening events have made clear that the August 3, 2020 proposal would not be sufficiently effective to mitigate the risk that HAZMAT poses to other mail, postal and air-carrier equipment and personnel, commercial air passengers, and the public at large. In lieu of the earlier proposal, therefore, the Postal Service adopted the three measures described in the June 6, 2022, IFR. 87 FR 34197. While the IFR was made immediately effective, the Postal Service nonetheless invited public comments on the new measures. The Postal Service now restates those measures herein, with slight modifications, as part of this final rule, and responds to the public comments received.

In addition to preexisting packaging, labeling, and marking requirements and other conditions for mailability, two conditions are necessary to ensure the proper handling and routing of HAZMAT.

The first condition is visibility: the Postal Service must be aware of HAZMAT shipments in order to accord them appropriate attention. A HAZMAT package can easily evade postal HAZMAT processing if it is nestled beneath non-HAZMAT packages in a bulk mail receptacle. Moreover, the Postal Service is obligated to separate HAZMAT from non-HAZMAT when presenting items to certain suppliers, an obligation which the Postal Service cannot adequately fulfill under current circumstances. To address this problem, the final rule requires mailers tendering a mix of HAZMAT and non-HAZMAT items to present them separately, including in separate mail receptacles except for destination entered mail entered at a Destination Delivery Unit (DDU), Destination Sectional Center Facility (DSCF), or Destination Network Distribution Center (DNDC). In contrast with the 2020 proposed rule, customers are required to separate all HAZMAT from non-HAZMAT, rather than only air-eligible HAZMAT, from other mail. While visibility is important for air-eligible HAZMAT to ensure proper handling, it is also important that surface-only HAZMAT not be erroneously routed to air transportation due to commingling with non-HAZMAT. Separating all HAZMAT from non-HAZMAT will reduce the likelihood of commingling and increase the opportunity for Postal Service personnel to determine the proper procedures for any HAZMAT items presented.

The second condition is separation integrity: once recognized, the Postal Service must ensure that HAZMAT is identifiable from non-HAZMAT, lest it be improperly handled or routed.

This final rule also maintains the specific labeling requirements contained in the IFR for packages containing used, damaged, or defective electronic devices containing or packed with lithium batteries and prohibits them from eligibility for any Postal Service product that makes routine use of air transportation. However, the final rule now specifically excludes devices that are new in original packaging, and manufacturer certified new/refurbished.

Among other things, mailings covered by the new requirements include used items sent pursuant to e-commerce or private sales transactions; lost items being returned to the owner; and items sent for repair, replacement, upgrade, warranty service, diagnostics, recycling, or insurance claims. Again, for clarity, the term used electronic devices excludes those that are new in original unopened manufacturer packaging or manufacturer certified new/refurbished devices.

The Postal Service and its partner air carriers have identified used, damaged, and defective electronic devices containing or packed with lithium batteries as a particular and growing cause of lithium-battery incidents. Indeed, damaged, defective, and recalled lithium cells and batteries are already ineligible for air transportation. 49 CFR 173.185(f). Beyond devices with damage or defects to batteries themselves, such devices may also have other damage or defects that increase the chances of exposure and ignition of even an intact battery. Moreover, such devices are highly likely to be packaged without original packaging and have batteries in various conditions and varying states of charge. In contrast with new electronic devices in manufacturers' original packaging or manufacturer certified new/refurbished devices, consumers sending used, damaged, and defective electronic devices are less likely to be aware of HAZMAT requirements, let alone to comply with them.

As a result of these factors, lithium batteries in used, damaged, and defective electronic devices pose a particular hazard, as demonstrated by numerous incidents reported to the Postal Service as involving such items. To reduce the risk of such incidents occurring on air transportation, the Postal Service will restrict used, damaged, and defective electronic devices containing or packaged with lithium batteries to surface transportation. Consequently, such items will be prohibited in inbound and outbound international mail; mail to, from, and between overseas military and diplomatic addresses; and mail to, from, and within certain domestic locations for which the Postal Service lacks surface transportation. Moreover, to ensure adequate visibility, the Postal Service will require that packages containing used, damaged, and defective electronic devices (excluding devices that are new in original packaging, and manufacturer certified new/refurbished) containing or packaged with lithium batteries be marked “Restricted Electronic Device” and “Surface Transportation Only,” in addition to any other applicable markings.

The Postal Service determined that, due to the urgency of the danger to personnel, property, passengers, and the public, it was necessary to implement the IFR immediately. Nonetheless, the Postal Service provided the public with a 30-day public comment period. The Postal Service received submissions from 17 commenters. As explained in the next section, the Postal Service has reviewed and considered these comments. As a result, the Postal Service has adopted one minor change to exclude from requirements for use of surface transportation products only those devices that are new, manufacturer certified as new or refurbished, and devices contained in new unopened packaging. For the reasons articulated below, the remainder of the IFR remains largely unchanged.

The Postal Service received several comments relating to the rule's restrictions on shipping electronic devices and cell phones with lithium batteries.

Several commenters voiced concern regarding the definition of a “used, damaged, or defective electronic device,” claiming the definition is unclear and overly restrictive. One commenter recommended changing the definition to “is not new and some form of battery damage or defect” and excluding “refurbished to fully functioning and non-defective state.” Another noted that the inability to ship individual used phones via the Postal Service will cause significant upheaval in the electronics and e-commerce industries and observed the importance of distinguishing bulk shipments from the shipment of individual devices. Additionally, a cruise line company noted that it frequently ships such lost and found devices that customers leave on board its vessels back to customers.

The Postal Service has considered the impact of its rule regarding used electronic devices containing or packed with lithium batteries and recognizes the importance of narrowly tailoring the scope of devices included to address the risk posed by lithium batteries without imposing undue burden on customers shipping devices which pose a diminished risk. To that end, the Postal Service has revised its definition to explicitly exclude from requirements for use of surface transportation products only those devices that are new, manufacturer certified as new or refurbished in new, unopened packaging from these requirements. While the Postal Service recognizes that this may not be as expansive as suggested by some of the commenters, the revised definition narrows the devices covered by the rule to exclude those that pose a diminished risk, while continuing to limit shipments of devices more prone to causing dangerous and potentially catastrophic events.

The Postal Service received several comments regarding the impact of the final rule on rural and otherwise hard to reach communities. One commenter broadly noted that rural and hard to reach communities would be particularly disadvantaged by the new rules. One Alaskan native village noted that air transportation is the only available means of delivery to their respective locations and the rule's restrictions would essentially cut off their communities. An air carrier serving Alaska made similar observations.

The Postal Service recognizes the importance of serving rural and hard to reach communities which depend on air transportation because surface transportation is otherwise unavailable. For those ZIP Codes that are air transportation only, an air transportation solution may be utilized to transport used, damaged, or defective electronic devices containing or packed with lithium batteries due to the absence of ground transportation. In these rare cases, this allowance is deemed to be a lower level of risk based on the design of the aircraft used, how the cargo is stored, limited passenger capacity, flight duration, and other considerations. The final rule includes a list of 5-digit ZIP Codes where this exception applies, to be found in Appendix F of Publication 52.

The Postal Service received several comments regarding the need for additional training, education, and messaging to ensure understanding of and compliance with the new rules. Relatedly, several commenters noted the burden that the immediate effectiveness of the IFR placed on mailers.

A commercial passenger airline broadly supported the enhancements to the Postal Service's existing rules but noted the importance of the Postal Service taking steps to further educate shippers on the hazards posed to air carriers by dangerous goods and equipping them with the tools needed to ensure compliance in both their operations and their engagement with customers. One commenter noted the need for additional employee training, including increased efforts to identify and hold accountable those companies which fail to comply with the new rule. A few industry groups commented that additional time is needed to train employees and update training materials to ensure compliance. One commented that the rule offered too little notice to comply, suggesting a 6-12-month grace period for compliance. Another likewise noted that companies did not have sufficient time to incorporate the new rules and restrictions, requesting an extended compliance deadline or an enforcement grace period of at least 90 days. One commented that the immediate effective date of the rule changes is impractical, requesting a 1-year grace period. Another commented that the prescribed timeframe is impossible for companies to comply with, requesting the rule's effective date be delayed while the new policies are implemented in the field. In addition, other individual customers expressed similar concerns regarding the general burdens placed on mailers and the need for increased communication about the new requirements.

The Postal Service understands and shares the view that additional training and education is necessary to effectively implement these rules and assist customers, partners, and employees to comply therewith. To that end, the Postal Service has initiated numerous initiatives to increase, enhance, and amplify educational and instructional materials, both internally and externally. These new resources will continue to be rolled out and improved upon to seek out additional opportunities to inform and educate internal and external stakeholders about these changes.

Regarding timing, while the IFR was made effective immediately, the Postal Service has not to this point initiated any compliance enforcement actions in order to give mailers an extended timeframe to bring their operations into compliance with the new rule. The Postal Service is dedicated to further working with mailers to help them understand and implement these requirements. Nonetheless, the immediacy of the dangers involved necessitates prompt action to assuage the dangers posed to the public. To delay the implementation of these requirements poses unacceptable risks. Given these considerations, the Postal Service has determined that the public interest requires immediate action and compliance is expected upon the publication of this final rule.

An industry association questions whether certain provisions of the interim final rule (“New Mailing Standards for the Separation of Hazardous Materials”) relating to marking requirements are “inconsistent with a number of provisions” in the World Trade Organization's (WTO's) Agreement on Technical Barriers to Trade (“TBT Agreement”). Upon further analysis, the Postal Service is confident that the measures in question are consistent with the TBT Agreement. Further inquiries about the TBT Agreement are best addressed to the Office of the United States Trade Representative, which is responsible for representation of the United States in the WTO.

The Postal Service received comments from several companies and industry groups recommending a known or trusted shipper program, allowing businesses with extensive backgrounds in and a proven history of properly shipping HAZMAT to avail themselves of less stringent requirements. The Postal Service finds merit in these suggestions and is open to developing such options, so long as the program does not unacceptably increase the risk of mishandled, misrouted, or improperly intermingled HAZMAT. To that end, the Postal Service is currently exploring similar programs to ease some of the burdens this final rule may place on mailers. However, development of such programs will take time to ensure they are both comprehensive and effective. The Postal Service's preeminent concern remains public safety, and any such program would likewise prioritize those objectives. Moreover, given the grave risks currently at stake, implementation of the final rule will not be delayed until such programs can be established. Instead, the new requirements must remain in immediate effect while the Postal Service works with its customers and partners to determine the future state of any such program.

The Administrative Procedure Act (APA) does not ordinarily apply to Postal Service rulemakings. 39 U.S.C. 410(a). As a rare exception to that general rule, “proceedings concerning the mailability of matter under this chapter and chapters 71 and 83 of title 18” are extraordinarily subject to the APA. 39 U.S.C. 3001(m). Because the measures herein merely concern acceptance requirements, available services, and conditions of mailing for mailable matter, and do not concern the mailability of matter itself, they do not trigger the narrow exception for APA applicability.

Even if the IFR were deemed to be subject to the APA, good cause existed, under 5 U.S.C. 553(b)(B), to issue the measures therein, under 5 U.S.C. 553(d)(3), to dispense with the delayed effective date ordinarily prescribed by the APA. The Postal Service was justified in making the IFR effective immediately in order to take quick and targeted action to mitigate the potential of dangerous incidents involving HAZMAT such as lithium batteries which can cause smoke, fire, extreme heat, or explosion caused by thermal runaway, impairing the safe operation of aircraft and exceeding the capabilities of an aircraft's fire suppression system. Further delay would have increased the risk of an adverse event, potentially resulting in the catastrophic loss of life or property. Such a narrowly tailored rule with specific measures that can immediately respond to the imminent risks presented by HAZMAT corresponds with a proportionately diminished public interest in an opportunity to comment compared to a more far-reaching rule. While there is a public interest in having an opportunity for the public to comment on agency action, it was critical that the Postal Service responded to this hazardous trend as soon as possible to mitigate potential dangers that could have contributed to an incident resulting in loss of life or aircraft. Further delay would have increased the risk of harm and the likelihood of a catastrophic incident.

Moreover, pursuant to section 553(b)(B) of the APA, general 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.” Nonetheless, although the IFR was effective immediately, the Postal Service has now provided an opportunity for public comment, considered the arguments raised therein, made minor refinements to the rules, and responded to those comments in the final rule promulgated here.

The Postal Service still finds that it would be impracticable and contrary to the public interest to delay issuance of this final rule because there is an immediate and pressing need to reduce the risks that HAZMAT poses to postal operations, supplier equipment and personnel, commercial air passengers, and the public. Thus, delaying the implementation of the risk-mitigation measures in this final rule in order to receive and consider further public comment beyond what the Postal Service has already allowed would be impracticable, contrary to the public interest, 2 and given that the public has now had adequate opportunity to comment since the issuance of the IFR, not required by the APA. As with the IFR, immediate mitigation of these urgent safety risks also constitutes good cause for this final rule to be effective immediately upon publication.

The Postal Service adopts the following changes to Publication 52, Hazardous, Restricted, and Perishable Mail, incorporated by reference into Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), section 601.8.1, which is further incorporated by reference in the Code of Federal Regulations. 39 CFR 111.1, 111.3. Publication 52 is also a regulation of the Postal Service, changes to which may be published in the Federal Register . 39 CFR 211.2(a). Accordingly, for the reasons stated in the preamble, the Postal Service amends Publication 52 as follows:

I. Introduction

On November 10, 2021, the Postal Service filed a notice in Docket No. MT2022-1 announcing its intent to conduct a market test of an experimental product denominated as USPS Connect TM Local Mail and demonstrated that the market test would comply with applicable legal requirements. The Postal Regulatory Commission found that the market test met the requirements of 39 U.S.C. 3641 and 39 CFR part 3045 and authorized the market test to proceed in Order No. 6080 on January 4, 2022.

The Postal Service initially introduced its test of USPS Connect TM Local Mail in Texas to align with its nationwide rollout of the corresponding packages product, USPS Connect TM Local. By the end of the second quarter, which ended March 31, 2022, USPS Connect TM Local Mail was offered as a market test product in 11 states. Another 16 states were added in the third quarter; 23 more were added in the fourth quarter. Once the initial phased national rollout was complete, USPS Connect TM Local Mail was offered in all 50 states and the District of Columbia.

The Postal Service is now seeking to classify USPS Connect TM Local Mail as a permanent classification in the Mail Classification Schedule (MCS). The Postal Service has thus requested that the service be listed in the MCS under the First-Class Mail class in Postal Regulatory Commission Docket No. MC2023-12. Assuming the changes are adopted in accordance with the expected date of implementation of January 22, 2023, the Postal Service plans to add USPS Connect TM Local Mail as a price category within First-Class Mail Flats. USPS Connect TM Local Mail will provide customers same-day or next-day options for local delivery of documents. USPS Connect TM Local Mail requires local induction through dropoff at a participating Destination Delivery Unit (DDU), or carrier pick-up in line-of-travel to a participating DDU. Documents accepted by the Postal Service at a participating DDU by 7 a.m. will receive a same day service standard, while mailpieces received after 7 a.m. at a participating DDU or by carrier pick-up will receive a one day service standard ( i.e., they will be eligible for delivery the following delivery day).

The Postal Service's market-dominant service standards are contained in 39 CFR part 121. The revisions to 39 CFR part 121 appear at the end of this document. The following is a summary of the revisions.

Service standards contain two components: (1) a delivery day range within which mail in a given product is expected to be delivered; and (2) business rules that determine, within a product's applicable day range, the specific number of delivery days after acceptance of a mail piece by which a customer can expect that piece to be delivered, based on the piece's point of entry into the mail stream and its delivery address.

Business rules are based on critical entry times (CETs). The CET is the latest time on a particular day that a mail piece can be entered into the postal network and still have its service standard calculated based on that day (this day is termed “day-zero”). In other words, if a piece is entered before the CET, its service standard is calculated from the day of entry, whereas if it is entered after the CET, its service standard is calculated from the following day. (If the following day is a Sunday or holiday, then the service standard is calculated from the next Postal Service delivery day.) For example, if the applicable CET is 5:00 p.m., and a letter is entered at 4:00 p.m. on a Tuesday, its service standard will be calculated from Tuesday, whereas if the letter is entered at 6:00 p.m. on a Tuesday, its service standard will be calculated from Wednesday. CETs are not contained in 39 CFR part 121, because they vary based on where mail is entered, the mail's level of preparation, and other factors.

USPS Connect TM Local Mail will be offered as a price category under First-Class Mail Flats. It is intended for local document delivery. Customers will be able to deposit USPS Connect TM Local Mail items at participating destination delivery units (DDUs) or present them to mail carriers along their lines of travel to participating DDUs.

USPS Connect TM Local Mail will receive either a same-day or a 1-day ( i.e., next-delivery day) service standard, depending on whether it is accepted at a participating DDU by the CET of 7:00 a.m. USPS Connect TM Local Mail accepted by the Postal Service at a participating DDU by the applicable CET will receive a same day service standard, while mailpieces received after applicable CET at a participating DDU or by carrier pick-up will receive a one day service standard.

Payment for USPS Connect TM Local Mail will be offered via Click N Ship and by USPS API as well. Tracking will be offered to USPS Connect TM Local Mail customers using IMpb barcodes.

Accordingly, for the reasons stated, the Postal Service adopts the following amendment to 39 CFR part 121:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

On October 1, 2018, a Final Rule published at 83 FR 49297 (FR doc. 2018-21150). EPA has identified the need for a typographical correction to the regulatory text approved into the Code of Federal Regulations by FR Rule Doc. 2018-21150. The typographical error appears on page 49298, in the second column, in § 52.377, in amendment 2, within the added paragraph (t).

The EPA is revising a final rule that was published in the Federal Register on October 1, 2018, which became effective on October 31, 2018, correcting a typographical error to 40 CFR 52.377(t). The final rule approved SIP revisions submitted by the State of Connecticut to address SIP revisions submitted to meet moderate area nonattainment requirements for the 2008 ozone standard. The SIP revisions are for the Greater Connecticut and the Connecticut portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT moderate ozone nonattainment areas, and include these areas 2011 base year emissions inventories, an emissions statement certification, RFP demonstrations, RACM analyses, motor vehicle emissions budgets, and contingency measures. This revision does not change any final action taken by EPA on October 1, 2018; this action merely corrects the CAA citation for moderate area contingency measures. We have determined that there is good cause for making this rule final without prior proposal and opportunity for comment because we are merely correcting an incorrect citation in a previous action. Thus, notice and public procedure are unnecessary. We find that this constitutes good cause under 5 U.S.C. 553(b)(B).

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

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

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

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

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

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

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

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

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

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

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

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

Part 52 of chapter I, title 40 of the Code of Federal Regulations 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-2018-0191 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 January 30, 2023. 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-2018-0191, 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//send-comments-epa-dockets .

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

In the Federal Register of October 18, 2018 (83 FR 52787) (FRL-9984-21), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (IN-11126) by Spring Trading Company, on behalf of Clariant Corporation, 4000 Monroe Rd., Charlotte, NC 28205. The petition requested that 40 CFR be amended by establishing an exemption from the requirement of a tolerance for residues of N,N-dimethylnonanamide (CAS Reg. No. 6225-08-7) when used as an inert ingredient (solvent, co-solvent, and adjuvant) in pesticide formulations applied to growing crops or raw agricultural commodities pre- and post-harvest under 40 CFR 180.910 and applied to animals under 40 CFR 180.930. That document referenced a summary of the petition prepared by Spring Trading Company, on behalf of Clariant Corporation, the petitioner, which is available in the docket, https://www.regulations.gov . Subsequently, the petitioner requested that N,N-dimethylnonanamide be limited to no more than 20% in pesticide formulations. There were no relevant 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(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. When making a safety determination for an exemption for the requirement of a tolerance FFDCA section 408(c)(2)(B) directs EPA to consider the considerations in section 408(b)(2)(C) and (D). 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. . . .” Section 408(b)(2)(D) lists other factors for EPA consideration making safety determinations, e.g., the validity, completeness, and reliability of available data, nature of toxic effects, available information concerning the cumulative effects of the pesticide chemical and other substances with a common mechanism of toxicity, and available information concerning aggregate exposure levels to the pesticide chemical and other related substances, among others.

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. 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 N,N-dimethylnonanamide, including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with N,N-dimethylnonanamide follows.

EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. Specific information on the studies received and the nature of the adverse effects caused by N,N-dimethylnonanamide as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in this unit.

The toxicological database of N,N-dimethylnonanamide is supported by data regarding N,N-dimethyldecanamide and N,N-dimethyloctanamide. EPA has determined that it is appropriate to bridge N,N-dimethyldecanamide and N,N-dimethyloctanamide data to assess N,N-dimethylnonanamide due to similarities in functional groups/structure.

The available toxicity studies indicate that N,N-dimethylnonanamide has low overall toxicity. N,N-dimethylnonanamide exhibits low levels of acute toxicity via the oral and dermal routes of exposure and it is anticipated to have low potential for inhalation toxicity, based on an inhalation toxicity study with surrogate chemicals. N,N-dimethylnonanamide is not a skin sensitizer, but it is irritating to the eyes and skin. No adverse effects were reported in the 28-day study in rats. This study also performed neurotoxicity screening and no adverse effects were reported. No adverse parental, reproductive, or developmental effects were found in the reproductive/developmental toxicity screening study in rats. Furthermore, concern for carcinogenicity is low, based on negative results in mutagenicity studies, and the lack of structural alerts for carcinogenicity using the Organization for Economic Co-operation and Development (OECD) QSAR Toolbox. There is no evidence of neurotoxicity or immunotoxicity in the available studies.

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

The hazard profile of N,N-dimethylnonanamide is adequately defined. Overall, N,N-dimethylnonanamide is of low acute, subchronic, and reproductive/developmental toxicity. No systemic toxicity is observed up to 1,000 mg/kg/day. Since signs of toxicity were not observed, no toxicological endpoints of concern or PODs were identified. Therefore, a qualitative risk assessment for N,N-dimethylnonanamide can be performed.

1. Dietary exposure from food and feed uses. In evaluating dietary exposure to N,N-dimethylnonanamide, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from N,N-dimethylnonanamide in food as follows:

Dietary exposure (food and drinking water) to N,N-dimethylnonanamide may occur following ingestion of foods with residues from their use in accordance with this exemption. However, a quantitative dietary exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

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).

N,N-dimethylnonanamide may be present in pesticide and non-pesticide products that may be used in and around the home. However, a quantitative residential exposure assessment was not conducted since a toxicological endpoint for risk assessment was not identified.

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.”

Based on the lack of toxicity in the available database, EPA has not found N,N-dimethylnonanamide to share a common mechanism of toxicity with any other substances, and N,N-dimethylnonanamide does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance exemption, therefore, EPA has assumed that N,N-dimethylnonanamide 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 Safety Factor. 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.

Based on an assessment of N,N-dimethylnonanamide EPA has concluded that there are no toxicological endpoints of concern for the U.S. population, including infants and children. Because there are no threshold effects associated with N,N-dimethylnonanamide, 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.

Because no toxicological endpoints of concern were identified, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to N,N-dimethylnonanamide residues.

An analytical method is not required for enforcement purposes since the Agency is not establishing a numerical tolerance for residues of N,N-dimethylnonanamide in or on any food commodities. EPA is establishing a limitation on the amount of N,N-dimethylnonanamide that may be used as an inert ingredient in pesticide formulations applied to growing crops and raw agricultural commodities pre- and post-harvest and to animals. This limitation will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for food use that exceeds 20% N,N-dimethylnonanamide by weight in the final pesticide formulation.

Therefore, an exemption from the requirement of a tolerance is established for residues of N,N-dimethylnonanamide (CAS Reg. No. 6225-08-7) when used as an inert ingredient (solvent, co-solvent, and adjuvant) not to exceed 20% by weight in pesticide formulations applied to growing crops and raw agricultural commodities pre- and post-harvest under 40 CFR 180.910 and applied to animals under 40 CFR 180.930.

This action establishes exemptions 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 exemptions 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 own or operate a facility that manufactures, processes, or otherwise uses any of the 12 chemicals included in this final rule. 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 facilities may include:

• Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 113310, 211130*, 212324*, 212325*, 212393*, 212399*, 488390*, 511110, 511120, 511130, 511140*, 511191, 511199, 512230*, 512250*, 519130*, 541713*, 541715* or 811490*.

*Exceptions and/or limitations exist for these NAICS codes.

• Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 212111, 212112, 212113 (corresponds to SIC code 12, Coal Mining (except 1241)); or 212221, 212222, 212230, 212299 (corresponds to SIC code 10, Metal Mining (except 1011, 1081, and 1094)); or 221111, 221112, 221113, 221118, 221121, 221122, 221330 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 425110, 425120 (limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); or 562112 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211, 562212, 562213, 562219, 562920 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq. ) (corresponds to SIC code 4953, Refuse Systems).

• Federal facilities.

• Facilities that the EPA Administrator has specifically required to report to TRI pursuant to a determination under EPCRA section 313(b)(2).

To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in part 372, subpart B of Title 40 of the Code of Federal Regulations. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

In response to a petition submitted by the Toxics Use Reduction Institute (TURI) that requested the addition of 25 chemicals to the EPCRA section 313 toxic chemicals list (Ref. 1), EPA is adding 12 chemicals to the EPCRA section 313 toxic chemical list. EPA has determined that each of the 12 chemicals meets the EPCRA section 313(d)(2)(B) and/or (C) criteria for listing. EPA is also classifying one chemical as a PBT chemical and adding it to the list of chemicals of special concern with a 100-pound reporting threshold.

This action is issued under EPCRA sections 313(d), 313(e)(1) and 328, 42 U.S.C. 11023(d), 11023(e)(1) and 11048. EPCRA is also referred to as Title III of the Superfund Amendments and Reauthorization Act of 1986.

Section 313 of EPCRA, 42 U.S.C. 11023 (also known as the Toxics Release Inventory (TRI)), requires owners/operators of certain facilities that manufacture, process, or otherwise use listed toxic chemicals in amounts above reporting threshold levels to report their facilities' environmental releases and other waste management information on such chemicals annually. These facility owners/operators must also report pollution prevention and recycling data for such chemicals, pursuant to section 6607 of the PPA, 42 U.S.C. 13106.

Under EPCRA section 313(c), Congress established an initial list of toxic chemicals subject to EPCRA toxic chemical reporting requirements that was comprised of 308 individually listed chemicals and 20 chemical categories.

EPCRA section 313(d) authorizes EPA to add or delete chemicals from the list and sets criteria for these actions. EPCRA section 313(d)(2) states that EPA may add a chemical to the list if any of the listing criteria in EPCRA section 313(d)(2) are met. Therefore, to add a chemical, EPA must determine that at least one criterion is met, but need not determine whether any other criterion is met. Conversely, to remove a chemical from the list, EPCRA section 313(d)(3) dictates that EPA must determine that none of the criteria in EPCRA section 313(d)(2) are met. The listing criteria in EPCRA section 313(d)(2)(A)-(C) are as follows:

• The chemical is known to cause or can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.

• The chemical is known to cause or can reasonably be anticipated to cause in humans: cancer or teratogenic effects, or serious or irreversible reproductive dysfunctions, neurological disorders, heritable genetic mutations, or other chronic health effects.

• The chemical is known to cause or can be reasonably anticipated to cause, because of its toxicity (EPCRA section 313(d)(2)(C)(i)), its toxicity and persistence in the environment (EPCRA section 313(d)(2)(C)(ii)), or its toxicity and tendency to bioaccumulate in the environment (EPCRA section 313(d)(2)(C)(iii)), a significant adverse effect on the environment of sufficient seriousness, in the judgment of the Administrator, to warrant reporting under this section.

EPA often refers to the EPCRA section 313(d)(2)(A) criterion as the “acute human health effects criterion;” the EPCRA section 313(d)(2)(B) criterion as the “chronic human health effects criterion;” and the EPCRA section 313(d)(2)(C) criterion as the “environmental effects criterion.”

Under EPCRA section 313(e)(1), any person may petition EPA to add chemicals to or delete chemicals from the list. EPA issued a statement of policy in the Federal Register of February 4, 1987 (52 FR 3479) providing guidance regarding the recommended content of and format for petitions. On May 23, 1991 (56 FR 23703), EPA issued guidance regarding the recommended content of petitions to delete individual members of the metal compounds categories reportable under EPCRA section 313. EPA published in the Federal Register of November 30, 1994 (59 FR 61432) (FRL-4922-2) (Ref. 2) a statement clarifying its interpretation of the EPCRA section 313(d)(2) and (d)(3) criteria for modifying the EPCRA section 313 list of toxic chemicals.

EPA is taking this action in response to a petition submitted under EPCRA section 313(e)(1). EPA is required to respond to petitions by ether initiating a rulemaking to grant the petition or publishing an explanation of why the petition is denied. In this case EPA is partially granting the petition to add 25 chemicals to the EPCRA section 313 toxic chemicals list.

EPA prepared an addendum to its economic analysis for this action entitled, “Economic Analysis Addendum for the Final Rule to Add Twelve Chemicals Identified in a Petition from the Toxics Use Reduction Institute to the EPCRA Section 313 List of Toxic Chemicals” which presents an updated analysis of the costs of the addition of the twelve chemicals (Ref. 3). EPA estimates that this action would result in an additional 1,342 reports being filed annually. EPA estimates that the costs of this action will be approximately $6,660,633 in the first year of reporting and approximately $3,172,080 in the subsequent years. In addition, EPA has determined that of the 1,283 small businesses affected by this action, none are estimated to incur annualized cost impacts of more than 1%. Thus, this action is not expected to have a significant adverse economic impact on a substantial number of small entities.

On May 6, 2014, EPA received a petition from the TURI requesting the addition of 25 chemicals to the EPCRA section 313 toxic chemicals list (Ref. 1). The petitioner believed that each of these 25 chemicals meets the EPCRA section 313(d)(2) listing criteria and that the 25 chemicals should be added to the EPCRA section 313 toxic chemical list so that releases can be monitored and reported. The 25 chemicals, listed by name and Chemical Abstracts Service Registry Number (CASRN), are shown here (note that some chemical names are different than those used in the petition because they are listed here using the EPA Registry Name):

• Tris(dimethylphenol) phosphate; 25155-23-1.

On October 18, 2021, EPA proposed to add 12 of the 25 chemicals included in the TURI petition to the EPCRA section 313 toxic chemicals list (Ref. 4). In separate, unrelated actions, three of the 25 chemicals (1-bromopropane (80 FR 72906, November 23, 2015 (FRL-9937-12-OEI)), nonylphenol (79 FR 58686, September 30, 2014 (FRL-9915-59-OEI)) and 1,2,5,6,9,10-hexabromocyclododecane (81 FR 85440, November 28, 2016 (FRL-9953-28)) have already been added to the EPCRA section 313 chemical list. Of the remaining 10 chemicals, EPA determined that the available data for nine chemicals was not sufficient for EPA to find that the chemicals meet the EPCRA section 313 listing criteria for human health or ecological effects (Refs. 5 and 6). Therefore, EPA did not propose to add the nine chemicals listed here:

In addition, EPA did not propose to add octabromodiphenyl ether (OctaBDE) (32536-52-0) to the EPCRA section 313 toxic chemical list. EPA issued a significant new use rule (SNUR) that requires notification to EPA 90 days prior to the intended manufacture or import for any use of OctaBDE ether after January 1, 2005 (71 FR 34015, June 13, 2006 (FRL-7743-2); 40 CFR 721.10000). The lack of significant new use notices (SNUNs) under this SNUR indicates that there has been no non-exempt manufacture or import for any use of OctaBDE in the United States since January 1, 2005. In addition, there have been no submissions for OctaBDE under the Chemical Data Reporting (CDR) Rule ( https://www.epa.gov/chemical-data-reporting ) since 2006. In a 2008 evaluation, the United Nations noted that, as of 2005, the manufacture and import of OctaBDE had been phased out by industry and estimated that most of the remaining processing of OctaBDE in the United States was likely negligible and only occurring where remaining stockpiles were being used up or in waste processing facilities ( http://chm.pops.int/portals/0/repository/poprc4/unep-pops-poprc.4-6.english.pdf ). Given that the phase out occurred more than ten years ago, it is even more likely today that there is a negligible amount of OctaBDE remaining that is processed or otherwise used by facilities in the United States. Therefore, EPA did not propose to add OctaBDE to the EPCRA section 313 list since EPA expects that no TRI reports would be filed for this chemical. Section 313(d)(2) of EPCRA provides EPA the discretion to add chemicals to the TRI list when there is sufficient evidence to establish any of the listing criteria. EPA can add a chemical that meets one criterion regardless of its production volume. However, consistent with the Agency's previously articulated position on the use of manufacturing volume thresholds ( e.g., 58 FR 63500, December 1, 1993) and as in past chemical reviews ( e.g., 59 FR 61432, November 30, 1994) (Ref. 2), EPA adopted a production volume screen for the development of this rule to screen out those chemicals for which no reports are expected to be submitted. If chemicals that did not meet the production volume screen were listed, there would be an economic burden for firms that would have to determine that they did not exceed the reporting threshold. Since the production volume screen indicates that no reports would be filed for such chemicals, there would be no information provided to the public. EPA's position is that it is appropriate at this time to focus on chemicals for which reports are likely to be filed.

In addition to proposing to add HHCB to the EPCRA section 313 toxic chemical list, EPA proposed to add HHCB to the list of chemicals of special concern. There are several chemicals and chemical categories on the EPCRA section 313 chemical list that have been classified as chemicals of special concern because they are PBT chemicals (see 40 CFR 372.28(a)(2)). In a final rule published in the Federal Register of October 29, 1999 (64 FR 58666) (FRL-6389-11) (Ref. 7), EPA established the PBT classification criteria for chemicals on the EPCRA section 313 chemical list. For purposes of EPCRA section 313 reporting, EPA established persistence half-life criteria for PBT chemicals of 2 months in water, sediment and soil and 2 days in air, and established bioaccumulation criteria for PBT chemicals as a bioconcentration factor (BCF) or bioaccumulation factor (BAF) of 1,000 or higher. Most chemicals meeting the PBT criteria are assigned 100-pound reporting thresholds. EPA set lower reporting thresholds (10 pounds) for those PBT chemicals with persistence half-lives of 6 months or more in water, sediment, or soil and with BCF or BAF values of 5,000 or higher since these chemicals are considered highly PBT chemicals. The data presented in the hazard assessment for the proposed rule support classifying HHCB as a PBT chemical and designating it as a chemical of special concern with a 100-pound reporting threshold.

EPA received 31 comments on the proposed rule. Twenty-one of the comments came from private citizens or anonymous commenters. Five comments were received from trade associations including, the American Chemistry Council (ACC) (Ref. 8), Alkylphenols & Ethoxylates Research Council (APERC) (Ref. 9), Fragrance Creators Association and American Cleaning Institute (Ref. 10), Fragrance Science & Advocacy Council (Ref. 11), and Household & Commercial Products Association (Ref. 12). Three comments were received from environmental/public interest groups including, CleanEarth4Kids.org (Ref. 13), Earthjustice (on behalf of Sierra Club, Toxic-Free Future, and Defend Our Health) (Ref. 14), and Silent Spring Institute (Ref. 15). Lastly, two comments were received from government organizations including, the Small Business Administration (Ref. 16) and TURI (Ref. 17). This unit provides summaries of some of the more significant comments and EPA's responses. A complete set of comments and EPA's detailed responses can be found in the Response to Comments (RTC) document that is available in the docket for this rulemaking (Ref. 18).

The 21 private citizens or anonymous commenters and the three commenters from environmental/public interest groups, CleanEarth4Kids.org (Ref. 13), Earthjustice (on behalf of Sierra Club, Toxic-Free Future, and Defend Our Health) (Ref. 14), and Silent Spring Institute (Ref. 15) all supported EPA's proposed addition of the 12 chemicals to the TRI list. Though, as discussed Unit III.E., certain commenters believe that EPA should have proposed the listing of some of the other chemicals included in the TURI petition.

Comment: ACC (Ref. 8) and the Fragrance Creators Association and American Cleaning Institute (Ref. 10) commented that EPA should complete the risk evaluation being conducted for HHCB under TSCA section 6 before finalizing the proposed addition of HHCB to the TRI chemical list. ACC also stated that, as a matter of policy, EPA should defer from consideration the addition of any chemical to the TRI list that is undergoing a TSCA risk evaluation until that risk evaluation is completed.

EPA Response: TSCA section 6 ( i.e., the existing chemicals program) and EPCRA section 313 are two separate EPA programs operating under two separate statutory authorities with different purposes and criteria. EPA does not agree that it should wait until the TSCA section 6 risk evaluation has been completed for HHCB (or any other chemical) before adding HHCB (or any other chemical) to the TRI chemical list. The addition of chemicals to the TRI list is primarily based on an assessment of hazard ( i.e., not a risk assessment). The TSCA section 6 risk evaluations go far beyond what is needed to list a chemical under EPCRA section 313(d)(2) and are for the purpose of determining if there is an unreasonable risk that needs to be mitigated. Moreover, under TSCA, EPA may take actions that could severely limit or even ban the use of a chemical because of unreasonable risk. In contrast, a decision to add a substance to TRI pursuant to EPCRA section 313 does not impose any restrictions on the use or manufacturing of that substance; it establishes requirements for the reporting of releases and other waste management information. In addition, information obtained through TRI can be very helpful to the risk evaluation process, as TRI data can provide information concerning releases and waste management activities.

Comment: APERC (Ref. 9) commented that they support the addition of p-(1,1,3,3-tetramethylbutyl)phenol (TMBP) to the TRI list for the purpose of providing exposure data that could support future prioritization and risk evaluations of TMBP under TSCA. While supporting the addition of TMBP to the TRI list, APERC did object to some of the hazard characterizations that EPA presented in support of the listing of TMBP. APERC also stated that EPA proposed to list TMBP on the TRI based on it ecotoxicity and “tendency to bioaccumulate.”

EPA Response: EPA has addressed in detail APERC's comments regarding bioaccumulation potential, toxicity data, and monitoring data in the RTC document (Ref. 18). However, EPA would like to clarify that TMBP meets the listing criteria based on ecological toxicity alone. As EPA stated in the proposed rule “EPA believes that the evidence is sufficient to list p-(1,1,3,3-Tetramethylbutyl)phenol (TMBP) on the EPCRA section 313 toxic chemicals list pursuant to EPCRA section 313(d)(2)(C) based on the available ecotoxicity information for this chemical alone and also based on its toxicity and tendency to bioaccumulate” (see 86 FR 57619) (Ref. 4). EPA clearly stated that TMBP meets the EPCRA section 313(d)(2)(C) criteria based on the ecotoxicity data alone ( i.e., “. . . based on the available ecotoxicity information for this chemical alone . . .”) which is covered under section 313(d)(2)(C)(i). In addition, EPA stated that TMBP also meets the 313(d)(2)(C) criteria “. . . based on ecotoxicity and bioaccumulation potential” which is covered under section 313(d)(2)(C)(iii). EPA summarized the toxicity data as follows “In summary, the available data demonstrate that TMBP can cause acute and chronic toxicity to aquatic organisms at low concentrations indicating that TMBP is highly toxic to aquatic organisms” (see 86 FR 57619) (Ref. 4).

Comment: The Fragrance Creators Association and American Cleaning Institute (Ref. 10), and the Fragrance Science & Advocacy Council (Ref. 11) provided comments on the toxicity, persistence, and bioaccumulation data for HHCB. The commenters contend that the data do not support classifying HHCB as a PBT chemical under the criteria established for EPCRA section 313. Both commenters provided or cited to additional information, some of it previously submitted for the TSCA risk evaluation process, that they said EPA should consider before finalizing the listing of HHCB.

EPA Response: As discussed in the RTC document (Ref. 18), EPA has reviewed the suggested information. Short summaries of some of their specific comments and EPA's responses are provided here, complete detailed comments and EPA responses can be found in the RTC document (Ref. 18).

Comment: The Fragrance Creators Association and American Cleaning Institute (Ref. 10) stated that in EPA's 2014 TSCA risk assessment (Ref. 19), EPA cited half-lives of HHCB in water for days to weeks which is below the TRI 2-month half-life criteria. The commenter noted that EPA cited half-lives for HHCB in sludge of 10-69 hours and that since the majority of release of HHCB are to wastewater treatment plants (WWTPs), removal during treatment and degradation in sludge is important. The commenter state that EPA cited a single study on the fate of HHCB in sediments that resulted in a half-life of 79 days (Ref. 20), which they contend may be artificially high due to the high concentration of the test material (Ref. 21). The commenter also cited sampling data that they said show low concentrations of HHCB in the environment (Ref. 22). The commenter stated that several studies found half-lives of HHCB in soils amended with biosolids ( i.e., sewage sludge) that ranged from 105 days to 144 days. The commenter stated that for at least one of the studies (Ref. 23), the soil was frozen for three months of the study and the concentrations of HHCB were stable (after one month, the concentrations of HHCB in the four soils were 30 to 90 percent of the initial concentration, and after 90 days, concentrations ranged from 8 to 60 percent of the initial concentration).

EPA Response: EPA's determination that HHCB meets the persistence portion of the PBT criteria and is thus a chemical of special concern was not based on half-lives of HHCB in water. The determination was based on the half-lives for HHCB in soil and sediment which are above the 60-day criteria. The International Flavors and Fragrances (IFF) has submitted a study from 1998 with CBI indicating that HHCB has a half-life of less than 1 year, but this study does not provide sufficient clarity to negate the 60-day window. Similarly, there is not sufficient evidence to support that the half-life of HHCB in river sediments is affected by concentration. Some researchers have published data depicting that the half-life may be impacted by sediment dwelling organisms (Refs. 24 and 25) as well sediment conditions (Ref. 26). However, more information is needed to understand how concentration might impact the half-life of HHCB in sediments. Regarding the data on environmental concentrations and treatment, these are not factors considered under the PBT criteria established for the TRI program (Refs. 7 and 27)). According to the commenter's reference 7 (Ref. 21) the European Union (EU) used a half-life of 79 days for sediment:

EPA's 2014 risk assessment (Ref. 19) concluded the following regarding HHCB persistence in soil and sediment:

EPA cited the same data in its assessment for listing under EPCRA section 313. These data exceed the persistence criteria of half-lives in soil or sediment of 60 days or longer under the PBT criteria established for the TRI program. Regarding biodegradation in sludge, in a wastewater environment, HHCB is expected to partition strongly to solid phases based on its high measured log K OW (octanol-water partition coefficient) of 5.9 (see Rimkus, 1999 for a summary of values for musks (Ref. 28)) and the soil/sediment organic carbon partition coefficient (log Koc = 3.6-3.9; Ref. 29) which is supported by the estimated log K OC of 4.1-4.3 (KOCWIN TM program v2.00; in EPI Suite TM v4.11, (Ref. 30)). In addition, Schaefer & Koper (2009) (Ref. 31) extrapolated an average Log Kow of 7.1 conferring more evidence for partitioning to solid phases. Values for both K d (sorption coefficient) and K OC (organic carbon-normalized sorption coefficient) are generally in the range of 3 to 4 on a logarithmic scale. This means that HHCB will be substantially removed by sorption to sludge in WWTPs; will have low mobility in soil; and will bind strongly to benthic and suspended sediment. In addition to this knowledge, the Office of Water has documented the presence of HHCB in sludge via the National Sewage Sludge Survey in 2005, 2007, 2009, and 2011 (Ref. 32).

The half-life of HHCB in activated sludge at concentrations of 5, 17.4, 25, 25 micrograms per liter (μg/L) has been reported as 69, 10-15, 21, 33 hours, respectively (Refs. 33, 34 and 35—33). HHCB disappearance with subsequent appearance of more polar entities was observed (Ref. 35). The geometric mean from these studies for activated sludge half-disappearance time was 22.5 hours. This corresponds to “moderate-to-slow” biodegradation in activated sludge; see guidance in the Estimation Programs Interface (EPI) Suite v4.11 (Ref. 30). Overall complete biodegradation rates have been reported as 15.39% ± 8.29% and a steady state average biodegradation of 12.74% ± 8.29% (Ref. 31); these rates also confer “moderate-to-slow” biodegradation rates.

Chen et al. (2014) (Ref. 36) evaluated the dissipation rate of HHCB among other personal care products in soils amended with biosolids (concentration = 2950 micrograms per kilogram (µg/kg)) after a single application and a repeated annual application at three different sites. The dissipation half-life was found to be 900 days for the single treatment and 83 days for an annual treatment. Yager et al. (2014) (Ref. 37) reported that HHCB had migrated down in soil profile and was still detectable 468 days after being amended with biosolids. Poulsen and Bester (2010) (Ref. 38) reported a shorter half-life (t 1/2 = 20 days) when HHCB was present at lower concentrations (1000 µg/kg) but in a high temperature compost environment with regular turning. As the commentor also notes: “[. . . several studies found half-lives of HHCB in soils amended with biosolids (sewage sludge) ranging from 105 days to 144 days . . .].”

These results indicate that the half-life of HHCB in soil amended with biosolids or sludge is substantial and demonstrate the substance is persistent under these conditions.

The Fragrance Science & Advocacy Council (Ref. 11) also questioned the persistence data for HHCB and provided studies and references for EPA to consider.

Regarding the range of values identified for persistence in soils, EPA utilizes conservative values to account for a range of possible soil types and land management practices. As the commentor notes: FSAC has calculated half-lives from this study ranging 35-116 days depending on treatment and soil type, further supporting the USGS study.

Because the upper range of these half-lives exceeds the 60-day window, HHCB would still be considered persistent in this compartment. The commentors also note that the concentrations cited by EPA are too high and unrealistic pointing to a technical report submitted to EPA as CBI. Though the concentrations in the technical report are lower than those cited by EPA, the conclusions of that study do not negate that HHCB can persist in soils and biosolids amended soils for >60 days. The major conclusion of the report indicates that “. . . HHCB has a half-life in soils and sediments significantly less than one year.” This conclusion was determined by evaluating HHCB concentration in amended soils in microcosms after 365 days and does not provide any precision on the half-life of HHCB in a variety of soil conditions. Thus, the study does not refute the concentrations cited by EPA.

Regarding the review of studies presented in commenter's Appendix 2 of their comments, these studies are currently subject to OPPT's Systematic Review Protocol. The studies and their assigned Health and Environmental Research Online Identification numbers (HEROIDs) included: Litz et al. 2007: 100883141 (Ref. 39), DiFrancesco et al. 2004: 76939752 (Ref. 23), Yager et al. 2014: 23460273 (Ref. 37), Chen et al. 2014a: 54285094 (Ref. 40), Chen et al. 2014b: 54284935 (Ref. 36), and Yang & Metcalfe 2006: 54278926 (Ref. 41). Worth noting is that many of the values reported in these studies are considered high quality according to the commenter and these values also exceed the 60-day half-life criteria. EPA also notes that the DiFrancesco et al. study (Ref. 23) was cited in EPA's ecological hazard assessment for HHCB (Ref. 42).

EPA has concluded that none of the data provide by the commenters change EPA's determination that HHCB meets the persistence criteria established for evaluations under EPCRA section 313 (Refs. 7 and 27).

Comment: The Fragrance Creators Association and American Cleaning Institute (Ref. 10) stated that the proposed rule did not provide the complete story regarding the potential for HHCB to bioaccumulation. The commenters noted that in EPA's 2014 risk assessment (Ref. 19), EPA reported BCF and BAF data for several aquatic species that varied but were generally lower than the 1,000 bioaccumulation criteria. The commenters noted that EPA's assessment suggests that HHCB does not biomagnify. The commenters also stated that EPA's assessment notes that metabolism may account for the observation that measured BCFs and BAFs are lower than would be estimated based on the log K OW of HHCB. The commenters cited data indicating that HHCB is metabolized and excreted without significant bioaccumulation. The commenters stated that as a result of this metabolism BCFs estimated using the EPA EPISuite model may not be accurate. The commenters cited EPA's 2014 risk assessment as evidence that EPA relied more on the available BAF values:

EPA Response: The commenters provided no information or evidence that the BCF values greater than 1,000 reported in EPA's HHCB assessment (Ref. 42) are invalid. These reported values suggest significant bioaccumulation potential for at least some species and come from solid peer-reviewed studies (BCF: 2692, Artola-Garciano et al., 2003 (Ref. 43) and BCF: 1584, Balk & Ford, 1999b (Ref. 26)). Note: Both of these studies are cited in the OPPT 2014 risk assessment for HHCB (Ref. 19). HHCB meets the bioaccumulation criteria established for the TRI program (Refs. 7 and 27). In addition to studies reported in the 2014 Risk Evaluation (Ref. 19), numerous articles have been published by the science community demonstrating a substantially wider range of bioaccumulation values. Yao et al. 2018 (Ref. 44) reported bioaccumulation factors ranging from 52.5 to 46,773.5 for fish species exposed to 0-133 nanograms per liter (ng/L) of HHCB. Similarly, Reiner and Kannan (2011) (Ref. 45) reported BAF values for fish livers ranging from 261 to 2,897 when exposed to two different concentrations of HHCB in water and sediment. The upper range of these bioaccumulation factors further support that HHCB meets the bioaccumulation criteria.

As EPA has previously stated, in the October 29, 1999 Federal Register Notice biomagnification is not required to have a concern for biomagnification. (64 FR 58682-58683, October 29, 1999) (Ref. 7)

Comment: The Fragrance Science & Advocacy Council (Ref. 11) also questioned the bioaccumulation and biomagnification data for HHCB and provided studies and references for EPA to consider. The commenter contends that HHCB has low to moderate bioaccumulation potential, and low biomagnification potential. The commenter provided a report that they said they had submitted to EPA on behalf of the IFF as a member of the International Fragrance Association, entitled, “Report on Bioaccumulation and Tropic Magnification Potential in the Aquatic Environment of 1,3,4,6,7,8-Hexahydro-4,6,6,7,8,8- hexamethylcyclopenta[g]-2-benzopyran (HHCB).” The commenter stated that the report contains information on the bioaccumulation and biomagnification potential of HHCB.

EPA Response: EPA has received the report submitted by IFF and assigned it the HEROID 10365931 (Ref. 46). The report included bioaccumulation values above the 1,000 criteria. For example, there is a BCF value of ~1,550 for Rainbow Trout in Appendix III. In addition to the IFF report provided by the commenter, IFF has submitted another study (Accumulation and Elimination of 14C-HHCB by Blue Gill Sunfish in a Dynamic Flow-Through System, OECD 305E, 1996 (Ref. 47)) indicating a BCF of 1,635 for whole fish exposed to 1 µg/L and a BCF of 1,613 for whole fish exposed to 10 µg/L (mean: 1,624 ± 16). Because the studies cited in the two reports provide bioaccumulation values >1,000, they further support EPA's conclusion that HHCB meets the bioaccumulation criteria established for the TRI program (Refs. 7 and 27)).

The biomagnification information/comments do not impact the conclusion regarding PBT status since the BCFs exceed the bioaccumulation criteria for TRI and as noted above, biomagnification is not part of the PBT criteria established for evaluations under EPCRA section 313 (Refs. 7 and 27).

Comment: The Fragrance Creators Association and American Cleaning Institute (Ref. 10) stated that HHCB is not particularly toxic and “does not exhibit any specific toxic mode of action that contributes to excess ecotoxicity.” The commenters also stated that “Moreover, HHCB is typically not found in the aquatic environment above the detection limit (0.04 μg/L), and when it is detected, it is generally less than 1 ug/L, 11 well below the EPA chronic concentration of concern (COC) of 9.7 ug/L established in the 2014 risk assessment.”

EPA Response: EPA does not limit its ecological toxicity criterion to a specific mode of action. For TRI listing purposes, chemicals with acute aquatic toxicity values at or below 1 milligram per liter (mg/L) are considered highly toxic. As discussed in EPA hazard assessment for HHCB, there are numerous acute aquatic toxicity values below 1 mg/L, which show that HHCB is highly toxic to aquatic organisms (Ref. 42). There are also chronic aquatic toxicity values below 0.1 mg/L which EPA also considers highly toxic (Ref. 42). In addition, the studies submitted to EPA following the 2014 risk assessment support this determination. There are no separate toxicity criteria for PBT chemicals. Regarding the presence of HHCB in aquatic environments, EPA does not consider potential exposures or environmental concentrations for chemicals that are highly toxic to aquatic organisms when determining if they meet the EPCRA section 313(d)(2)(C) listing criteria. EPA has explained in detail how it evaluates chemicals under the EPCRA section 313(d)(2) criteria (see 59 FR 61432, November 30, 1994 (FRL-4922-2) (Ref. 2)).

Comment: The commenters CleanEarth4Kids.org (Ref. 13), Earthjustice (on behalf of Sierra Club, Toxic-Free Future, and Defend Our Health) (Ref. 14), Silent Spring Institute (Ref. 15), and TURI (Ref. 17) contend that up to eight of the chemicals that EPA determined do not meet the EPCRA section 313(d)(2) listing criteria actually have data that support their listing. The chemicals in question include azodicarbonamide (123-77-3), 4-chlorobenzotrichloride (5216-25-1), dimethylacetamide (127-19-5), 2,3-dinitrotoluene (602-01-7), 2,5-dinitrotoluene (619-15-8), hexahydrophthalic anhydride (85-42-7), methylhexahydrophthalic anhydride (25550-51-0), and N-methylformamide (123-39-7).

EPA Response: EPA has addressed the specific comments on the toxicity of these chemicals in the RTC document (Ref. 18), some of the more general comments are summarized and responded to here.

Comment: CleanEarth4Kids.org (Ref. 13) cited information on seven of the chemicals that included the listing of the chemicals on various lists prepared by the EU and/or classifications on such lists.

EPA Response: The commenter did not provide specific studies for EPA to consider but rather cited most of the same organizational determinations cited in the TURI petition as evidence that these chemicals met the EPCRA section 313(d)(2) listing criteria which EPA has already considered.

The fact that an organization has placed a chemical on a list (such as the European Commission: Candidate List of Substances of Very High Concern for Authorization) or made some determination as to its toxicity under their regulations or criteria does not necessarily mean that the chemical meets the EPCRA section 313(d)(2) listing criteria. Classifications such as “Presumed Human Reproductive Toxicant” are made under the criteria of another regulatory program and do not necessarily mean that there are data sufficient to establish that a chemical meets the EPRCA section 313(d)(2) criteria. As discussed in the RTC document, to the extent possible, EPA has reviewed the available data for such classifications and did not find sufficient information to support listing any additional chemicals. Some of these lists cite concerns for skin, eye and respiratory dangers which may indicate a concern for acute human health effects. For a chemical to be listed under EPCRA section 313(d)(2)(A) based on its acute human health effects, EPA would need to determine that the chemical “can reasonably be anticipated to cause significant adverse acute human health effects at concentration levels that are reasonably likely to exist beyond facility site boundaries as a result of continuous, or frequently recurring, releases.”

Comment: Earthjustice (Ref. 14) stated that EPA misinterpreted or ignored relevant health effects information, unlawfully concluded that there is inadequate evidence to support listing a chemical because of a lack of chronic animal toxicity studies and did not follow Congress's direction that EPA must also base its listing decisions on “appropriately designed and conducted epidemiological or other population studies,” “laboratory tests” and other analyses based on “generally accepted scientific principles.” The commenter stated that EPA cannot lawfully determine that inadequate evidence exists to support listing without rationally analyzing all of these sources for chemicals under review, including available case studies and analogue data, and utilizing read-across methodologies. The commenter stated that EPA failed to provide an adequate explanation of its proposed decision to deny part of the TURI Petition, as EPCRA requires. The commenter stated that the proposed rule includes only the conclusory assertion that “EPA has determined that the available data for nine chemicals” addressed in the TURI Petition “are not sufficient for EPA to find that the chemicals meet the EPCRA section 313 listing criteria for human health or ecological effects.” The commenter stated that the references cited in support of EPA's conclusions are technical summaries of the human and ecological toxicity studies reviewed by EPA staff, but that neither the memos nor the proposed rule explain why the evidence for each chemical is inadequate to establish that the chemical “is known to cause or can reasonably be anticipated to cause” chronic adverse health effects in humans or significant adverse effects on the environment.

EPA Response: EPA disagrees with the commenters assertions that EPA did not conduct an appropriate review of the toxicity for those chemicals that EPA did not propose to list or explain why the data were insufficient to support any of the EPCRA section 313(d)(2) criteria. Section 313(d)(2) of EPCRA provides that a chemical may be added [to the TRI] if the Administrator determines, in his judgment, that there is sufficient evidence to establish that the chemical is know to cause or can reasonably be anticipated to cause significant adverse acute human health effects or reasonably anticipated to cause adverse effects such as cancer, reproductive effects, neurological disorders, mutagenic effects, and other chronic illnesses EPA included memos (Refs. 5 and 6) in the docket for this rulemaking that addressed these chemicals and provided a summary of the available relevant toxicity data and a conclusion that such data were not sufficient to support listing the chemical under any of the EPCRA section 313(d)(2) criteria. In responding to the TURI petition, EPA conducted a thorough literature search for data relevant to the chemicals named in the petition and the criteria described in EPCRA section 313(d)(2).

In preparing its hazard assessment, EPA conducts a broad review of available data and determines which studies should be included in the assessment. For example, when reviewing the available toxicity data, EPA does not include in its hazard assessment studies that do not provide sufficient information to determine whether a chemical causes a toxic effect that meets the EPCRA section 313(d)(2) criteria. For example, occupational studies and case reports often do not provide sufficient data to determine the doses causing adverse effects, or whether other factors contributed to the observed effects. If available, epidemiological or other population studies can be considered, but often they may not contain sufficient information to determine whether a chemical meets the listing criteria.

In addition, for EPA to be able to rely on a given study, EPA must be able to determine whether the toxic effects observed in are acute or chronic health effects, as this distinction has a significant impact on the information required to support the addition of a chemical to the TRI. The EPCRA section 313(d)(2)(A) listing criteria for acute human health effects contains a requirement that potential exposures must be considered.

In order to list under the acute human health effects criteria, EPA must determine that the effects are significant adverse acute human health effects, the concentration levels that would be of concern, and releases are reasonably likely to exist beyond facility site boundaries that would result in concentration levels of concern. If it is unclear from the available data whether the observed effects are acute or chronic ( e.g., epidemiological or occupational studies that lack sufficient details), then EPA may not be able to use the data to support listing.

EPCRA section 313(d) provides that the Administrator may add a chemical to the subsection (c) list at any time if the Administrator determines, in their judgment, that there is sufficient evidence to establish the criteria in EPCRA section 313(d)(2)(A), (B), or (C). The statute thus gives the Administrator discretion to determine what constitutes sufficient evidence to demonstrate these criteria have been met. It further states that such determinations shall be based on “generally accepted scientific principles or laboratory tests, or appropriately designed and conducted epidemiological or other population studies available to the Administrator” (emphasis added). The use of the word “or” in section 313(d)(2) establishes that a determination could be made on just one of the identified types of data/information. Moreover, the fact that a study on a particular chemical exists, does not mean that it contains information relevant to a listing determination. To list a chemical under the criteria of EPCRA section 313(d)(2)(A) or (B) for human health effects the statutory language requires that EPA be able to support a conclusion that “The chemical is known to cause or can reasonably be anticipated to cause in humans” significant adverse acute human health effects or at least one of the listed chronic human health effects. The Agency must determine which studies and data are relevant and evaluate their scientific merits. If EPA determines that a given study does not include sufficient information, for example on whether the effects considered are chronic or acute, the doses causing the effects, the severity of the effects or whether other chemicals were also present, it may determine that further evaluation of the study is not warranted.

EPCRA section 313(e), in turn, governs the scope of the Agency's obligation to respond to petitions to add or delete a chemical from the TRI. Specifically, it provides that the Administrator shall take one of the following actions in response to a petition to add or delete a chemical from the list: (A) Initiate a rulemaking to add or delete the chemical to the list, in accordance with subsection (d)(2) or (d)(3); or (B) Publish an explanation of why the petition is denied.

EPA stated in the proposed rule that the available data for the chemicals not being listed was not sufficient for EPA to find that the chemicals met the EPCRA section 313 listing criteria for human health or ecological effects. It further stated that it was therefore not proposing to add those chemicals to the TRI. EPA also added two memos (Refs. 5 and 6) to the docket providing additional information regarding its review of the chemicals identified in the TURI petition that EPA was not proposing to add to the TRI. Those memos supported EPA's decision not to propose adding 9 of the chemicals to the TRI. Further support and rationale for EPA's decision is provided the RTC document (Ref. 18).

It is important to note that the petitioner requested the addition of 6 chemicals based on the EPCRA section 313(d)(2)(C) criteria. However, the explicit language of EPCRA section 313(e)(1) only allows any person to “petition the Administrator to add or delete a chemical from [the TRI] on the basis of the criteria in subparagraph (A) or (B) of subsection (d)(2).” In other words, it allows any person to request that a chemical be added or deleted from the TRI list only on the basis of the human health criteria in EPCRA section 313(d)(2)(A) and (B). EPCRA does not provide an avenue for petitions to add chemicals to TRI based on the criteria in subsection (d)(2)(C). The petitioners' request to add certain chemicals to the TRI list based on them meeting the criteria in paragraph (d)(2)(C) was an impermissible request. Nevertheless, to thoroughly assess the overall merits of listing these chemicals, EPA conducted an analysis of the available toxicity data and proposed to add four of the chemicals to the TRI. EPA determined that it was not appropriate to propose adding the other two of these chemicals cyclododecane and 2,3-dinitrotoluene to the TRI.

EPA has reviewed the information provided by the commenters with regard to the five specific chemicals for which commenters assert EPA ignored evidence regarding chronic human health effects that would justify their addition to TRI and with regard to the three chemicals for which commenters assert EPA ignored evidence of mutagenic effects. As discussed in detail in the RTC document (Ref. 18), EPA concludes that based on currently available data none of the eight chemicals addressed by the commenter meet the EPCRA section 313(d)(2) listing criteria.

In addition to Earthjustice (Ref. 14), TURI (Ref. 17) suggested that other factors or criteria may be useful and appropriate to consider for listing decisions. The commenter suggested that while toxicity data are lacking for certain chemicals, substantial information can be gained by considering analogs and that using read-across data may be an appropriate approach in these cases. The commenter stated that in addition, it essential to take account of information available from case reports, epidemiological studies, and mechanistic data, even when chronic animal studies are unavailable.

EPA Response: EPA agrees that using analogs and read-across data can be useful but in order to do that information about what structural features are important to the toxicity need to be understood. Just because two chemicals have similar structures does not always mean they will have similar toxic endpoints at similar doses. EPA also agrees that case reports, epidemiological studies, and mechanistic data can provide useful information about potential toxicity, however, under the EPCRA section 313(d)(2)(B) listing criteria that data must be sufficient to conclude that “The chemical is known to cause or can reasonably be anticipated to cause in humans” chronic human health effects. In addition, as EPA has previously explained and cited in the proposed rule (Ref. 2), in making determinations under EPCRA section 313(d)(2) EPA considers the severity of the effects and the dose/concentration at which the effects occur. Case reports, epidemiological studies, and mechanistic data don't always provide sufficient information to reach a conclusion about a chemical's acute or chronic human health effects.

The commenters Household & Commercial Products Association (Ref. 12); Fragrance Creators Association and American Cleaning Institute (Ref. 10); and U.S. Small Business Administration Office of Advocacy (Ref. 16) provided comments on EPA's economic analysis for the proposed rule. The commenters suggested that EPA's economic analysis for the proposed rule underestimated the impacts that would result from lowering the reporting threshold for HHCB. These commenters requested that EPA revise its economic analysis based on more recent data including the 2020 Chemical Data Reporting (CDR) rule (Ref. 48), the Final Lists of Manufacturers Subject to Fees for the 20 High Priority Substances Undergoing TSCA Risk Evaluations (Ref. 49) and the Site Emission Survey of Fragrance Formulation Compounders and Product Manufacturers Using HHCB Information to Support the TSCA Risk Evaluation (Ref. 50).

EPA Response: When developing the economic analysis for this final rule (Ref. 3), EPA reviewed currently available data on HHCB manufacture and import, including the sources identified by the commenters, to determine if and how to update the economic analysis to provide the best estimates of reporters and reporting burden for HHCB. Specifically, EPA reviewed the 2020 CDR data (Ref. 48), the Final Lists of Manufacturers Subject to Fees for the 20 High Priority Substances Undergoing TSCA Risk Evaluations (Ref. 49) and the Site Emission Survey of Fragrance Formulation Compounders and Product Manufacturers Using HHCB Information to Support the TSCA Risk Evaluation (Ref. 50). In addition, EPA updated wage rates to 2021 dollars to better estimate costs of reporting.

With respect to the CDR data, EPA did not find that the data were significantly different from the previous 2016 CDR data to warrant any update as the impact on the estimates made by EPA would be inconsequential. Overall production of HHCB remained the same and most of the importers (no companies reported domestic production of HHCB under either the 2016 or 2020 CDR reporting) remained the same. In fact, fewer importers reported to CDR in 2020 than did in 2016. Similarly, numbers of downstream processers and users, which form the basis for EPA's estimates of numbers of reporters and reports for the final rule, were largely the same although the identity of some importers differed.

EPA also reviewed information from the final list of HHCB manufacturers (including importers) responsible for payment of fees under TSCA and included additional HHCB facilities in its estimates of facilities that would report under this final rule as a result. This resulted in six additional reporters because the companies had either been previously identified by the economic analysis for the proposed rule (Ref. 51) or are operating in NAICS codes that are not subject to TRI reporting.

Finally, EPA also reviewed the Site Emission Survey of Fragrance Formulation Compounders and Product Manufacturers Using HHCB Information to Support the TSCA Risk Evaluation prepared for the Fragrance Creators' Association. As the commenter notes, one of the respondents to the survey indicated that downstream processors and users was in excess of 500. EPA did not find that the results of the survey itself were useful in estimating exact numbers of downstream users and formulators. Many respondents failed to provide an estimate of downstream users and processors, and it is not possible to determine if the respondents also reported under CDR, which is the main data source for the economic analysis. However, EPA did interpret the data as indicative of more potential reporters of HHCB than estimated in the economic analysis for the proposed rule and made adjustments in the economic analysis for the final rule to increase the estimated number of reporters of HHCB from 237 facilities to 1,072 (Ref. 3).

EPA is finalizing the addition of 12 chemicals to the EPCRA section 313 list of toxic chemicals. Based on EPA's review of the available toxicity data, EPA has determined that the 12 chemicals can reasonably be anticipated to cause either adverse chronic human health effects at moderately low to low doses and/or environmental effects at low concentrations. EPA has determined that the data show that these 12 chemicals have moderately high to high human health toxicity and/or are highly toxic to aquatic organisms. Therefore, EPA has determined that the evidence is sufficient for listing the 12 chemicals on the EPCRA section 313 toxic chemicals list pursuant to EPCRA section 313(d)(2)(B) and/or (C). The 12 chemicals EPA is adding to the EPCRA section 313 chemical list are listed here by name and CASRN.

In addition, EPA has determined that the available bioaccumulation and persistence data for HHCB support a classification of HHCB as a PBT chemical. Therefore, consistent with EPA's established policy for PBT chemicals (see Ref. 7), EPA is establishing a 100-pound reporting threshold for HHCB and including it under 40 CFR 372.28 Lower thresholds for chemicals of special concern.

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

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

This action does not contain any new information collection requirements that require additional approval by OMB under the PRA, 44 U.S.C. 3501 et seq. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control numbers 2070-0212 and 2050-0078.

Currently, the facilities subject to the reporting requirements under EPCRA section 313 and PPA section 6607 may use either EPA Toxic Chemicals Release Inventory Form R (EPA Form 9350-1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 9350-2), as appropriate under 40 CFR part 372. OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control No. 2070-0212 (EPA Information Collection Request (ICR) No. 2613), which includes an estimated burden of 35.7 hours for submitters of Form R and 21.9 hours for submitters of Form A, and those related to trade secret designations under OMB Control No. 2050-0078 (EPA ICR No. 1428), which includes an estimated average burden of 9.7 hours per response. EPA estimates that this action would result in an additional 1,342 reports being filed annually, and that the costs of this action will be approximately $6,660,633 in the first year of reporting and approximately $3,172,080 in the subsequent years. See Unit I.E. and Ref. 3.

Under the PRA, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information, unless it displays a currently valid OMB control number. The OMB control numbers are displayed either by publication in the Federal Register or by other appropriate means, such as on the related collection instrument or form, if applicable. The display of OMB control numbers for certain EPA regulations is consolidated 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, 5 U.S.C. 601 et seq. The small entities subject to the requirements of this action are small businesses ( i.e., manufacturing facilities); no small governments or small organizations are expected to be affected by this action. The Agency has determined that of the 1,322 entities estimated to be impacted by this action, 1,283 are small entities. All 1,283 small entities affected by this action are estimated to incur annualized cost impacts of less than 1%. Thus, this action is not expected to have a significant adverse economic impact on a substantial number of small entities. A more detailed analysis of the impacts on small entities is located in EPA's economic analysis (Ref. 3).

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action is not subject to the requirements of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. EPA did not identify any small governments that would be impacted by this action. EPA's economic analysis indicates that the total cost of this action is estimated to be $6,660,633 in the first year of reporting (Ref. 3).

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999) because it will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Thus, Executive Order 13132 does not apply to this action.

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

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

This action is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866 and has not otherwise been designated as a significant energy action by the Administrator of the Office of Information and Regulatory Affairs.

This rulemaking does not involve technical standards under the NTTAA section 12(d), 15 U.S.C. 272.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color) and low-income populations.

Though this action does not address human health or environmental conditions, it does increase access to information available to the public (including to minority and low-income populations) and improves transparency of how certain facilities are managing EPCRA section 313 toxic chemicals. Reporting forms submitted pursuant to TRI reporting requirements provide information on releases and other waste management activities conducted by the reporting facilities. By requiring reporting on these additional chemicals, this action will be providing communities across the U.S. (including minority and low-income populations) with access to data which they may use to assess potential exposure to these additional chemicals and seek to lower exposures and consequently reductions in potential chemical risks. This information can also be used by government agencies and others to identify potential risks, set priorities, and take appropriate steps to reduce potential risks to human health and the environment. Therefore, EPA believes that this action will have not have a disproportionately high and adverse human health or environmental effect on minority populations, low-income populations, and indigenous peoples. To the contrary, EPA believes that this action will provide utility in the assessment of potential impacts on minority populations (people of color) and low-income populations.

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

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

Why we need to publish a rule. Under the Act, a species warrants listing if it meets the definition of an endangered species (in danger of extinction throughout all or a significant portion of its range) or a threatened species (likely to become endangered within the foreseeable future throughout all or a significant portion of its range). If we determine that a species warrants listing, we must list the species promptly and designate the species' critical habitat to the maximum extent prudent and determinable. In 2015, we listed the northern long-eared bat as a threatened species under the Act, but we have since determined that the northern long-eared bat meets the Act's definition of an endangered species; therefore, we are reclassifying the species as an endangered species. We published a not-prudent determination for critical habitat for the northern long-eared bat on April 27, 2016 (81 FR 24707). Listing a species as an endangered or threatened species can be completed only by issuing a rule through the Administrative Procedure Act rulemaking process (5 U.S.C. 551 et seq. ).

What this document does. This rule reclassifies the northern long-eared bat ( Myotis septentrionalis ) from a threatened species to an endangered species under the Endangered Species Act (Act). It also removes the northern long-eared bat's species-specific rule issued under section 4(d) of the Act, because such rules apply only to species listed as threatened species under the Act.

The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of any of five factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. We have determined that the foremost stressor impacting the northern long-eared bat is white nose syndrome (WNS; Factor C).

Please refer to the proposed rule to reclassify the northern long-eared bat as an endangered species (87 FR 16442; March 23, 2022) for a detailed description of previous Federal actions concerning this species.

A species status assessment (SSA) team prepared an SSA report for the northern long-eared bat. The SSA team was composed of Service biologists, in consultation with other species experts. The SSA report represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the species.

In accordance with our joint policy on peer review published in the Federal Register on July 1, 1994 (59 FR 34270), and our August 22, 2016, memorandum updating and clarifying the role of peer review of listing actions under the Act, we solicited independent scientific review of the information contained in the SSA report. As discussed in the proposed rule, we sent the SSA report to five independent peer reviewers and received three responses. The peer reviews can be found at https://regulations.gov Docket No. FWS-R3-ES-2021-0140. In preparing the proposed rule, we incorporated the results of these reviews, as appropriate, into the SSA report, which was the foundation for the proposed rule and this final rule.

To comply with the January 4, 2012, Office of Management and Budget (OMB) memo title, Clarifying Regulatory Requirements: Executive Summaries and the Department of the Interior's Departmental Handbook on Preparing Federal Register Documents, we added an executive summary to this rule.

During the public comment period, we received comments from several public commenters and one State commenter expressing concerns that the Service was not able to identify actions that would not likely result in a violation of section 9 of the Act (16 U.S.C. 1531 et seq. ). After evaluating all the information we received during the public comment period and other available information, we created a list of actions that are not likely to result in a violation of section 9 of the Act, if these activities are carried out in accordance with existing regulations and permit requirements. The provided list is not comprehensive and does not absolve any individual or organization from legal liability if a northern long-eared bat is taken. Although we have determined take is unlikely, any take resulting from the actions listed below under Available Conservation Measures will still result in a violation of section 9 of the Act.

We updated the number of States and Canadian provinces with confirmed or suspected presence of Pseudogymnoascus destructans ( Pd ) to 43 States and 8 provinces (including States in the range of the northern long-eared bat) in the Summary of Biological Status and Threats section. The presence of Pd has expanded further into these areas since the March 23, 2022 proposed rule for the northern long-eared bat published.

In our March 23, 2022, proposed rule (87 FR 16442), we requested that all interested parties submit written comments on the proposal by May 23, 2022. We also contacted appropriate Federal and State agencies, scientific experts and organizations, and other interested parties and invited them to comment on the proposal. A newspaper notice inviting general public comment was published in the USA Today. We conducted a public informational meeting and a public hearing on April 7, 2022. All substantive information we received during the comment period has either been incorporated directly into this final determination or is addressed below.

As discussed in Peer Review above, we received comments from three peer reviewers. We reviewed their comments for substantive issues and new information regarding the information contained in the SSA report. The peer reviewers generally concurred with our methods and conclusions and provided additional information, clarifications, and suggestions to improve the final SSA report. We incorporated peer reviewer comments into the final SSA report as appropriate.

(1) Comment: One commenter noticed an error in the SSA report's table 4.2. We described the scope of wind energy impacts as “Pervasive,” when it should in fact be “Large.”

Our Response: We have corrected this error and will make available an updated version of the SSA report at https://www.regulations.gov under Docket No. FWS-R3-ES-2021-0140 when this final rule publishes. The error does not change the overall outcome of the analysis where the current impact from wind is “Medium.”

(2) Comment: Two commenters felt that, in calculating wind energy's impacts, our SSA report appeared to assume that the species composition of northern long-eared bat in “all-bat” fatalities from wind remained constant over time even though the report acknowledges this to be biologically unlikely and is contradicted by a robust set of real-world data.

Our Response: We explored developing pre- and post-WNS species composition rates (the percent of all wind energy-related bat fatalities that are northern long-eared bat); however, there was no statistically significant difference in northern long-eared bat species composition rates pre- and post-WNS, likely due to a small sample size. Although we are able to detect differences in pre- and post-WNS species composition rates in other bat species (tricolored bat ( Perimyotis subflavus ) and little brown bat ( Myotis lucifugus ), these species have larger data sets. We acknowledge that constant species composition rates for northern long-eared bat may be biologically unlikely; however, the best available science at this time shows constant rates pre- and post-WNS.

One of the commenters provided a different species composition rate for consideration during the public comment period but did not provide the dataset used to calculate the differing rate nor the methods and results used to calculate this alternate rate. It is possible that this different species composition rate would result in the wind impact changing from medium to low in the species status assessment. We will update our SSA report for the northern long-eared bat if we receive substantive new data in the future. However, we are not able to compare our results to the commenter's results because their dataset, methodologies, analytical approach, and inclusion criterion were not available to us. Even if the impact of wind on the northern long-eared bat is low, we would likely list the species as an endangered species because the status is primarily driven by WNS.

(3) Comment: A commenter stated that they did not think it was reasonable to assume northern long-eared bats remain a constant percentage of bat fatalities at wind farms rangewide.

Our Response: We evaluated wind-related mortality across the range of the northern long-eared bat in the United States and did not detect a difference in fatality rate by region. However, we used different bat fatality rates for the United States and Canada because we had different fatality rates between the two countries. We were able to detect differences in fatality rates by region for the other two species (tricolored bat and little brown bat), which have larger data sets than the northern long-eared bat. The commenter provided alternate values to those used in the SSA but did not provide the underlying data or the technical memo describing the methods or results, so we were unable to verify these alternative values.

(4) Comment: One commenter stated that the Service's assumptions and demographic modeling tool results differ drastically from real-world experience. The commenter says the contradictory, real-world results found in the Service's calculation for wind energy impacts to northern long-eared bat in Iowa, as shown in figure 4.7 of the SSA report. The commenter noted that no northern long-eared bat mortality has been documented at wind facilities in Iowa, post-WNS. The commenter stated that this an example of how the Service's results differ dramatically from real-world results.

Our Response: In response to this comment, we updated figure 4.7 in the SSA report to more accurately show where the model predicts bat fatality will occur. The previous figure included wind turbine locations beyond the northern long-eared bat's migration range from known hibernacula, while the caption explained that the mortality depicted in the figure included locations that were not incorporated into the model. We have revised the figure to include locations and mortality that were incorporated into the model only. To the commenter's specific point about Iowa, the updated figure continues to depict some mortality at Iowa wind facilities given their proximity to known northern long-eared bat hibernacula in neighboring States. Detection probability associated with post-construction mortality monitoring is typically low and always under 1; thus, the reported number of mortalities are likely an underestimate of the actual number of northern long-eared bats killed by wind turbines. For these reasons, we determined that the fatality rate used in our model is reasonable and supported by the best available science.

(5) Comment: Another commenter felt that the Service did not fully explain the methods used to arrive at “no detectable difference” conclusion between pre- and post-WNS species composition rates at wind facilities; therefore, our decision was not clear.

Our Response: We compared pre- and post-WNS composition rates for three bat species in separate SSAs using the same analytical framework. Only the northern long-eared bat had no detectable difference due to limited data for the species. We explain more fully our process below.

Northern long-eared bat percent species composition is very small to start (0.2 percent). As such, declines in percent species composition will necessarily be small. As a result, the difference in the total amount of take (killed bats) pre- and post-WNS will be small; however, this does not mean the take will be insignificant. Furthermore, northern long-eared bat data are very limited and thus erratic. For example, northern long-eared bat post-WNS percent species composition varies from 0.2 percent pre-WNS to 0.09 percent during the invasion stage and increases to 0.4 percent in the epidemic stage (where we would expect to see the highest decline in percent species composition to 0 percent in the establishment stage). However, we would expect percent species composition to decline over the invasion, epidemic, and establishment stages. Given the limited pre- and post-WNS data sample sizes and subsequent inconclusive results and the small number of bats killed overall, the most efficient and defensible approach was to consolidate the pre- and post-WNS data ( i.e., assume no change in percent species composition) for the northern long-eared bat (rather than further derive pre- and post-WNS values from even smaller sample sizes). Given the above, the data were too limited to calculate a pre- and post-WNS percent species composition value. Instead, we used all data to calculate a single percent species composition value.

(6) Comment: A few commenters stated that they believe the Service relied on an insufficient peer review that is contrary to agency policy. The commenters contended that the Service had only the northern long-eared bat SSA report peer reviewed but should have had the other bat SSA reports peer reviewed as well. Some commenters also expressed concern that the analysis presented in the northern long-eared bat report was not publicly available or peer reviewed; therefore, the Service did not rely on the best available data.

Our Response: The Service's peer review policy states that we will solicit review of, and comment on, such listing and recovery actions from three or more objective and independent reviewers with expertise relevant to the scientific questions. In general, we will attempt to solicit from the reviewer whether: (1) We have assembled and considered the best available scientific and commercial information relevant to our decision; (2) our analysis of this information is correct and properly applied to our decisions; and (3) our scientific conclusions are reasonable in light of the information.

To the commenter's point, we solicited peer review from five (more than the required three) independent peer reviewers for the northern long-eared bat SSA report as per the requirement of the guidance. We evaluated three bat species concurrently using the same analytical approach; however, we developed individual reports for each species, and each report was peer reviewed by a separate set of peer reviewers.

Additionally, the supplementary analytical reports mentioned by the commenter that were not publicly available at the time of peer review have become publicly available since the time that the proposed rule published (87 FR 16442; March 23, 2022). The analyses used in support of the northern long-eared bat SSA report have also been independently peer reviewed since that time (though not required by our peer review policy). The reports were published by the U.S. Geological Survey and followed their Fundamental Science Practices for peer review. This process included receiving peer review from two independent peer reviewers for each chapter of the reports. Accordingly, we have exceeded the requirements of the Service's peer review guidelines and policies.

(7) Comment: Some commenters believe there has been no significant status change since the northern long-eared bat was listed as threatened in 2015 and that maintaining the threatened status is more appropriate.

Our Response: The status of the northern long-eared bat has changed since we listed the species as a threatened species under the Act (see 80 FR 17974; April 2, 2015), and it now meets the Act's definition of an endangered species. The primary threat affecting northern long-eared bats continues to be WNS, and the disease has spread significantly since 2015, at which time it was present in approximately 60 percent of the species' range and in 25 of the 37 States in the U.S. range of the species. As WNS spreads, its impact on northern long-eared bats is severe. WNS caused estimated population declines of 97-100 percent across 79 percent of northern long-eared bat's range and WNS is now likely present in every State within the U.S. range of the northern long-eared bat (Cheng et al. 2021, entire; Service 2022, pg. 34; see figure 1, below). WNS is likely to affect bats across 100 percent of the northern long-eared bat's range by the end of the decade. As a result, we are finalizing the listing for the northern long-eared bat as an endangered species.

(8) Comment: Several commenters encouraged the Service to conduct a more extensive literature review and incorporate more threats to individual bats into the northern long-eared bat SSA report. They provided citations for relevant literature not included in the report.

Our Response: We have reviewed the literature provided by commenters and incorporated this information into the SSA report, where appropriate. The purpose of an SSA is to present the best available scientific information regarding a species' status that focuses on the likelihood that the species will sustain populations into the future. The SSA is not designed to conduct an exhaustive literature review on all aspects of the species' life history. As a result, we did not incorporate all information in the SSA regarding individual actions that may result in the harm or loss of a single bat; instead, we focused on science that elucidates what is happening to the species at the population and species level to inform our determination regarding the danger of extinction for the species.

(9) Comment: Several commenters stated that hibernacula survey data are too unreliable to determine the species' status because northern long-eared bats are often overlooked in winter surveys due to their cryptic nature, and that instead, the Service should base its listing decision on summer survey data. Further, some commenters stated that this means that the Service was not basing its decision on the best available data.

Our Response: Northern long-eared bats are often difficult to observe during winter hibernacula surveys due to their tendency to roost deep in cracks and crevices within hibernacula. Despite the difficulties in observing or counting northern long-eared bats, hibernacula survey counts are regularly relied on since they are consistently available over time. Winter counts are conducted in mid- to late winter when bats are expected to be predominantly inactive and occupying known locations. Surveying known locations regularly allows for accurate observation of trend data over time. Across the eastern half of North America, where many bat species aggregate (including the northern long-eared bat) during hibernation, counts of bats during hibernation provide the best available data for estimating changes in abundance related to the invasion and progression of WNS (Frick et al., 2010, 2015; Turner et al., 2011; Langwig et al., 2012; Thogmartin et al., 2012 as cited in Cheng et al. 2021, pp. 1588-1589) For these reasons, we conclude that hibernacula surveys are considered the best available data for cave-dwelling bats. However, the SSA made use of several forms of “summer data” in acoustic call (mobile and stationary) and mist-net data in our analysis (Service 2022, entire). Together, these data represent the best scientific and commercial data available to us.

(10) Comment: The North Dakota Game and Fish Department requested that the Service consider a recently finalized report (Gillam 2021, entire) that recommends the range of the northern long-eared bat in North Dakota be modified to only include the badlands habitats of extreme western North Dakota. The final report also states that the most appropriate categorization of this species is rare in western North Dakota and absent in the remainder of the State. The North Dakota Department of Agriculture (NDDA), the North Dakota Public Service Commission (NDPSC) and several North Dakota commenters also echoed these comments. The NDDA and NDPSC indicate that scattered woodlands comprise less than 1.8 percent of the total lands in North Dakota, while the remaining 98.2 percent of the State is non-wooded lands and does not contain any suitable or potentially suitable habitat for the northern long-eared bat.

Our Response: We thank the commenters for providing the recently completed Gillam (2021, entire) report. Although the report provides recent bat data, we determined that the limited number of survey sites does not provide sufficient information for us to assess Statewide occupancy for the northern long-eared bat. The methods used in the report are not designed to determine presence/probable absence for individual species, such as northern long-eared bat. It is unclear if the acoustic detectors used in the survey were deployed in areas with potential suitable habitat for northern long-eared bat and if specific habitat requirements for northern long-eared were considered in the selection of individual mist-net sites. Mist-net locations were selected only in the western part of the State, as the author stated that eastern North Dakota is a very difficult area to capture bats due to a lack of known roosts and the predominance of agriculture, which is primarily open and lacks natural flyways in which bats can be effectively captured using mist nets.

However, Haugen et al. (2009, p. 16) considered forests to be more abundant in eastern North Dakota than in the western half of the State, as conditions become less favorable to the west. The report's author states that “given issues with distinguishing the calls of this species from other Myotis species” in the State, these results “support the finding that this species is rare to absent” in North Dakota. However, it is also possible that there were northern long-eared bat calls that were missed by the acoustic identification software, as a high number of high-frequency calls that could possibly have been northern long-eared bats were recorded at several locations. Further, it is unclear if the qualitative analysis was conducted on those calls classified as northern long-eared bat calls or high frequency. To conclusively determine presence/probable absence of the northern long-eared bat, we recommend use of the rangewide Indiana bat and northern long-eared bat survey guidelines ( https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines ). Overall, we do not find that this single study provides conclusive evidence of absence of the northern long-eared bat in the eastern portion of North Dakota or Statewide.

We also reviewed the North Dakota Forest Service Forest Action Plan presented by NDDA and NDPSC. Northern long-eared bats predominantly are found in forest habitat (outside of hibernation), but when foraging they have also been observed in other habitat, such as over small forest clearings and water and along roads (van Zyll de Jong 1985, p. 94). In areas where forested habitat is scattered, such as North Dakota, remaining patches of habitat are increasingly important for the species where it is still present. We are currently developing a comprehensive current range map for the northern long-eared bat, which will incorporate the best available information on habitat feature requirements for the species. This map will be subject to revision over time as the quality of our scientific information improves.

(11) Comment: The Kansas Department of Wildlife and Parks (KDWP) commented that since the northern long-eared bat's range is known to occur in only a small portion of the State, the KDWP requests that Kansas be exempt from the endangered species status and maintain the species' threatened status with the current 4(d) rule remaining in effect throughout the State.

Our Response: The Service has found that the northern long-eared bat meets the Act's definition of an endangered species, rather than a threatened species, throughout all of its range. Therefore, it is not possible for a portion of the species' range to maintain threatened species status with the current 4(d) rule remaining in effect.

(12) Comment: Several commenters requested that the Service identify activities for which take is not reasonably certain to occur. Several State commenters (Massachusetts Division of Fisheries and Wildlife and Iowa Department of Natural Resources) requested guidance on how activities, such as habitat management, habitat restoration, and forest management, can continue in a streamlined manner. These commenters all expressed their desire for regulatory predictability and the need for the Service to provide a list of activities that are likely to result in a violation of Section 9 of the Act and a list of activities that are not likely to result in a violation of section 9 in the Act (which the commenters referred to as “no-take guidance”).

Our Response: We recognize the need expressed from commenters to provide regulatory predictability by identifying those activities for which take is not reasonably certain to occur. Due to the northern long-eared bat's extensive range with a variety of habitat conditions, we are unable to provide a comprehensive list of activities that would not be considered to result in a violation of section 9 of the Act. However, we have added a condensed list of activities that are not likely to result in a violation of section 9 of the Act, if these activities are carried out in accordance with existing regulations and permit requirements (see Available Conservation Measures, below).

Further, we continue to develop tools to allow projects compatible with the species' conservation to move forward. We are developing streamlining tools and guidance to help project proponents identify what types of activities may result in “take” under the Act. When available, these resources will be accessible on the Service's northern long-eared bat website ( https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis ). One tool in development intended to streamline consultation is the rangewide northern long-eared bat determination key (DKey). The DKey will address many project scenarios in which adverse effects to the species would be unlikely. The DKey will help streamline section 7 consultations for Federal agencies and their designated non-Federal representatives and will help proponents of non-Federal actions determine whether their action may cause incidental take of the northern long-eared bat.

(13) Comment: Many commenters requested the Service pursue programmatic section 7 consultations under the Act and cited as an example the Federal Highway Administration (FHWA), Federal Railroad Administration, and Federal Transit Administration's section 7 rangewide consultation for Indiana bat and northern long-eared bat.

Our Response: We are fortunate to have experience in developing streamlined consultations under the Act and compliance processes for this and other listed bat species. The Service will look to build on those example programmatic consultations and to work proactively with other Federal agencies to develop other similar streamlined consultations to ensure efficiency in compliance with the requirements in the Act.

(14) Comment: Commenters encouraged the Service to develop regional or industry-wide habitat conservation plans (HCPs) with associated incidental take permits (ITPs) or general conservation plans (GCPs) to avoid potential delays to projects. Commenters also encouraged the Service to accept financial contributions toward research into preventing and reversing the effects of white-nose syndrome as a valid option for compensatory mitigation in HCPs.

Our Response: We recommend applying for an ITP when incidental take is reasonably certain to occur. For some non-Federal activities, there may not be reasonable certainty of take for northern long-eared bats. The decision to pursue a permit rests with the applicant based on their environmental risk assessment. The Service continues to develop tools and templates to streamline regulatory processes (see our response to (12) Comment, above). The Service has developed a short-term HCP template for wind facility impacts to northern long-eared bats and Indiana bats. State or regional forestry HCPs have been issued or are in development for Missouri, Pennsylvania, Minnesota, Michigan, and Wisconsin. A regional GCP is in development for projects in the Northeast Region. We will continue to work with industry in developing effective mitigation measures for the northern long-eared bat.

The latest information on these tools is available on our northern long-eared bat website: https://www.fws.gov/species/northern-long-eared-bat-myotis-septentrionalis.

(15) Comment: Commenters expressed concerns over the Service's rangewide Indiana bat and northern long-eared bat survey guidelines and recommended that the Service separate survey guidelines for the Indiana bat and northern long-eared bat. Also, commenters recommended that the Service consider identifying “block clearance” zones (area that is free of value to northern long-eared bats) within the species' range.

Our Response: The team that developed the rangewide Indiana bat and northern long-eared bat survey guidelines (guidelines) considered the best available information in developing survey recommendations for both the northern long-eared bat and Indiana bat. The Service's white paper (Niver et al. 2014, entire) and 2018 addendum (Niver et al. 2018, entire) outline the methods used to determine the minimum Indiana bat level of effort (LOE). Our 2022 addendum (Armstrong et al. 2022, entire) provides the rationale for the northern long-eared bat minimum LOE for acoustic and mist-net surveys (previously we deferred to LOE used for the Indiana bat). The guidelines take into consideration the differences between the two species' ranges and habitat requirements, and they provide separate recommendations for each species for survey level of effort and survey equipment placement. See https://www.fws.gov/library/collections/range-wide-indiana-bat-and-northern-long-eared-bat-survey-guidelines for more information. We may consider identifying “block clearance” zones as suggested. We may identify areas where take is unlikely to occur as areas with extensive surveys that demonstrate the absence of northern long-eared bat and in areas with no suitable habitat (see definition in SSA report (Service 2022, Chapter 2) and guidelines); however, the northern long-eared bat is a highly mobile species, which presents challenges to confirming absence from large “blocks” of suitable habitat.

(16) Comment: One commenter stated that the Service did not rely on the best available data in the SSA by not fully considering the impact of WNS in each portion of the species' range, particularly in the mid- to southern Atlantic Coast where the species may remain viable. Also, this and other commenters state that the SSA did not fully consider the benefit of positive actions, such as habitat management, in the analysis of threats to the species.

Our Response: The SSA assessed the current and future impacts to the species from WNS, not only rangewide but separately for each representation unit ( i.e., areas of unique adaptive diversity) throughout the range. Five representation units were identified in the SSA: Eastern Hardwoods, Southeast, Midwest, Subarctic, and East Coast. All current and future hibernacula abundances and probability of persistence either have already declined or are projected to decline precipitously throughout all representation units, including the East Coast unit, which includes the mid- to southern Atlantic Coast portion of the species' range.

As for considering all positive actions in the assessment of influences on the species, we considered all relevant potential influences on the species (positive and negative), and we included in our analysis only those that were ecologically significant at the population level or species level and for which we had adequate qualitative or quantitative information (WNS, wind energy mortality, effects from climate change, habitat loss, and conservation efforts).

(17) Comment: Several commenters sought clarification to ensure that specific activities or projects will not constitute harassment or harm or both of potential (summer) roosting northern long-eared bats.

Our Response: For information on impacts to northern long-eared bats from specific activities or projects, we recommend contacting your respective field office(s) where the activity or project will occur for further guidance (see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D ).

(18) Comment: One commenter recommended that the final rule state that any threats or stresses to cave-dwelling bats from the operation of offshore wind energy have not been documented.

Our Response: For offshore wind development, assessment of potential impacts to bats is complicated due to a broader lack of data on bat use of offshore environments. North American bats have been observed offshore along the Atlantic coast, mainly within the extent of the continental shelf, although there are also several observations of bats found farther offshore. Most observations are of migratory species ( e.g., hoary bat ( Aeorestes cinereus ), eastern red bat ( Lasiurus borealis ), silver-haired bat ( Lasionycteris noctivagans )), with records of Myotis species, tricolored bats, and big brown bats being relatively rare. It is possible that individual northern long-eared bats may be killed by wind turbines offshore. However, at this time, data are lacking to project the potential for substantive impacts of offshore wind development on populations of northern long-eared bats.

(19) Comment: One commenter stated they were opposed to listing the bat as an endangered species because of the restrictions that will be placed on farmers and ranchers. They were concerned that the listing would affect a significant amount of land and practices that are otherwise beneficial to animal and plant species. The commenter expressed that listing the northern long-eared bat would create hardship for food producers when they did not cause the issue ( i.e., white nose syndrome).

Our Response: We appreciate the commenters' concerns. The Act does not allow us to consider these impacts from a listing, when making a determination that a species meets the definition of a threatened or endangered species. When a species is listed as endangered, the species receives protections that are outlined in section 9 of the Act. These protections include a prohibition of take of the listed species. Take means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. Ranching and farming activities are not prohibited under section 9 of the Act, unless they result in take of the northern long-eared bat.

We understand there may be concern about the effect of listing the northern long-eared bat as an endangered species under the Act. We encourage any landowners with a listed species present on their property and who think they carry out activities that may negatively impact that listed species to work with the Service. We can help those landowners determine whether a habitat conservation plan (HCP) or safe harbor agreement (SHA) may be appropriate for their needs. These plans or agreements provide for the conservation of the listed species while providing the landowner with a permit for incidental take of the species during the course of otherwise lawful activities.

(20) Comment: Several commenters stated that they believed the definition of “take” had been amended and the Service should explain that the revised “take” definition recognizes that actual death or injury of a protected animal is necessary for a violation of section 9 of the Act. To support their argument, commenters point to the definition of harm in our regulations (see 50 CFR 17.3), which states that “harm” means an act which actually kills or injures wildlife. Such act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding or sheltering.

Our Response: The Act defines “take” as to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect or to attempt to engage in any such conduct (16 U.S.C. 1532(19)). The Act's definition of “take” has been supplemented by the Service with regulatory definitions of the terms “harm” and “harass,” and these terms have been redefined several times. As the commenters stated, “harm” means an act which actually kills or injures wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering (see 50 CFR 17.3). “Harass” is defined in our regulations (see 50 CFR 17.3) as an intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns which include, but are not limited to, breeding, feeding, or sheltering. Therefore “take” is broader than just “harm” and includes other actions besides those that result in death or injury of a northern long-eared bat.

(21) Comment: Several commenters stated that the Service should state that forest management activities that comply with the existing 4(d) rule are not likely to cause take.

Our Response: When this final rule goes into effect (see DATES , above), the species-specific rule issued under section 4(d) of the Act (“4(d) rule”) that was associated with the northern long-eared bat's threatened species status will be null and void and will be removed from the Code of Federal Regulations. The 4(d) rule for the northern long-eared bat did not prohibit take that may occur during certain tree removal activities in certain locations, provided the activities complied with the conservation measures in the 4(d) rule. Although the 4(d) rule did not prohibit this take, the Service did not determine that take is not likely to occur during such activities. Many of the actions excepted by the 4(d) rule may actually cause take, so we are unable to do what the commenter requested. For example, it is possible that tree removal activities could result in take if an unknown but occupied roost tree is cut down while northern long-eared bats are present. If any private entity is concerned that they may be engaging in an activity that will result in take of a northern long-eared bat, they should coordinate with their respective Service field office.

(22) Comment: Several commenters argued that the proposed reclassification rule did not satisfy the “best scientific and commercial data available” and a commenter provided alternative results to parts of our analysis using a different dataset.

Our Response: We find that we did comply with this standard. We collected data and information during a multi-month data collection period and throughout the SSA process. The Service considered and incorporated all data relevant to our analysis. The Service coordinated with Federal agencies, Tribal nations, 47 States, academia, and many nongovernmental organizations during the SSA process. No information that we received was overlooked. The Service used multiple data sets ( e.g., hibernacula count, mist-net captures, mobile and stationary acoustic data) in its modeling effort and the report was reviewed by independent peer reviewers and many experts selected from across the range of the species. No one data stream was prioritized or weighted more heavily than another. We also conducted a qualitative analysis of the threats considered in the SSA. All data submitted to the Service (multiple analyses and data streams) provided the scientific bedrock for this decision. Although one commenter provided alternative results to our analysis, the commenter did not provide us the underlying data they used; therefore, we could not fully evaluate their analysis. Therefore, we considered the best scientific and commercial data available when determining that the northern long-eared bat meets the definition of an endangered species.

(22) Comment: One commenter was concerned with the effect of the listing on wildlife control officers, private citizens, or both with regard to actions that may be classified as “take” when conducting bat removal or exclusion activities in buildings or other artificial structures. Specifically, the commenter mentioned concern about the cost, feasibility, or both of identifying whether bats being considered for exclusion were northern long-eared bats, whether exclusions can occur if northern long-eared bats are present, and whether northern long-eared bats can be submitted for disease testing in accordance with State/local Department of Health guidelines.

Our Response: The reclassification of the northern long-eared bat to an endangered species will not prevent citizens from removing bats from dwellings or other structures, but additional coordination with the Service may be needed. The Act's implementing regulations include a take exception for the defense of human life (see 50 CFR 17.21(c)(2)). The regulations require that any person taking, including killing, endangered wildlife in the defense of human life under this exception must report that take as set forth at 50 CFR 17.21(c)(4). It is important to note that Federal regulations do not supersede State or local laws that are more restrictive than those mentioned here. Please consult your local Service field office ( https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D ) or State wildlife conservation agency with any questions or concerns.

When the presence of a bat or bat colony is not imminently endangering human safety, we recommend contacting the local Service field office for assistance. We encourage the bat removal to be conducted safely and humanely by a trained professional, such as a wildlife or pest exclusion company or a State-certified bat rehabilitator. Additionally, we recommend the White-nose Syndrome Response Team's acceptable management practices (AMPs) for nuisance wildlife control operators (available at https://www.whitenosesyndrome.org/mmedia-education/acceptable-management-practices-for-bat-control-activities-in-structures-a-guide-for-nuisance-wildlife-control-operators ). The AMPs were developed in concert with wildlife control operators, State and Federal agencies, private conservation organizations, and the Centers for Disease Control. The AMPs are recommended for use with all structure-dwelling bat species, regardless of their conservation status. Again, these recommendations do not supersede or replace any existing, valid State or local government laws regarding the handling of bats in homes and artificial structures.

(23) Comment: Several commenters pointed out several potential stressors (for example, hibernacula collapse and vandalism, pesticide use, disease (other than WNS), and road related mortalities) to the northern long-eared bat that were not analyzed in the SSA.

Our Response: We considered all relevant population- and species-level potential stressors to the species (positive and negative) and only those for which we had substantial qualitative or quantitative information (WNS, wind energy mortality, effects from climate change, and habitat loss) were included our analysis. We did not include every known source of mortality to individuals of the species.

(24) Comment: Some commenters requested that the Service delay the effective date of the final rule to allow more time for coordination and preparations for the effect of reclassifying the northern long-eared bat and removing its species-specific 4(d) rule.

Our Response: We have set an effective date of 60 days after this rule publishes so that the Service can finalize consultation tools for the northern long-eared bat ( e.g., a determination key and an interim consultation framework). A delay in effective date will have little to no effect on the northern long-eared bat because it will still be protected under the previous final listing rule. Additionally, the species will be hibernating throughout most of its range during this time and we anticipate few projects occurring between this final rule publication and the bat's active season in 2023.

(25) Comment: One commenter requested that emergency work ( e.g., hazard tree removal, storm restoration), that was allowed under the 4(d) rule, should continue to be allowed.

Our Response: A 4(d) rule is a tool provided by the Act to allow for flexibility in the Act's implementation and to tailor prohibitions to those that make the most sense for protecting and managing at-risk species. This rule, which may be applied only to species listed as threatened, directs the Service to issue regulations deemed “necessary and advisable to provide for the conservation of threatened species.” The Act does not allow application of 4(d) rules for species listed as endangered; thus, the 4(d) rule will be nullified.

However, Section 7 regulations recognize that a Federal action agency's response to an emergency may require expedited consultation and such provisions are provided at 50 CFR 402.05.

We recommend coordinating with your respective Service field office (see https://www.fws.gov/our-facilities?program=%5B%22Ecological%20Services%22%5D ) as soon as practicable after the emergency is under control.

A thorough review of the taxonomy, life history, and ecology of the northern long-eared bat is presented in the SSA report (Service 2022, entire).

The northern long-eared bat is a wide-ranging bat species found in 37 States (Alabama, Arkansas, Connecticut, Delaware, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Vermont, Virginia, West Virginia, Wisconsin, and Wyoming), the District of Columbia, and 8 Canadian provinces. The species typically overwinters in caves or mines and spends the remainder of the year in forested habitats. As its name suggests, the northern long-eared bat is distinguished by its long ears, particularly as compared to other bats in its genus, Myotis. The bat is medium to dark brown on its back, with dark brown ears and wings, and tawny to pale-brown fur on its ventral side. Its weight ranges from approximately 5 to 8 grams (0.2 to 0.3 ounces). Female northern long-eared bats produce a maximum of one pup per year; therefore, loss of one pup results in missing one year of recruitment for a female.

The individual, population-level, and species-level needs of the northern long-eared bat are summarized below in tables 1 through 3. For additional information, please see the SSA report (Service 2022, chapter 2).

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

The baseline General, Reserve, and Harpoon category quotas are 587.9 mt, 29.5 mt, and 48.7 mt respectively. The General category baseline quota is further suballocated to different time periods. Relevant to this action, the baseline subquota for the December time period is 30.6 mt. On December 23, 2021 (86 FR 72857), NMFS transferred 19.5 mt of BFT quota from the December 2022 subquota time period to the January through March 2022 subquota time period, resulting in an adjusted subquota of 9.4 mt for the December 2022 time period. This adjusted subquota was subsequently adjusted to 11.1 mt via a final rulemaking that adjusted the overall quota (87 FR 33049, June 1, 2022).

To date for 2022, NMFS has published several actions that adjusted the Reserve and Harpoon category quotas, including the allowable carryover of underharvest from 2021 to 2022 (87 FR 5737, February 2, 2022; 87 FR 33049, June 1, 2022; 87 FR 43447, July 21, 2022; 87 FR 54910, September 8, 2022; 87 FR 60938, October 7, 2022). The current adjusted Reserve and Harpoon category quotas are 61.2 mt and 78.7 mt, respectively. Per § 635.27(a)(5), the Harpoon category fishery closed for the year on September 5, 2022 (87 FR 54912, September 9, 2022). At that time, 2.3 mt of the Harpoon category quota remained unharvested.

Under § 635.27(a)(9), NMFS has the authority to transfer quota among fishing categories or subcategories after considering the determination criteria provided under § 635.27(a)(8). This section focuses on the various calculations involved in transferring quotas; the consideration of the determination criteria can be found below after this section.

To date, preliminary landings data indicate that the General category landed 836.8 mt through November 30, 2022. This amount exceeds the cumulative adjusted quota available through November 30 (818.3 mt) by 18.5 mt (836.8 mt−818.3 mt = 18.5 mt).

As stated above, the adjusted Reserve category quota is 61.2 mt. The quota in the Reserve category is held in reserve for inseason or annual adjustments and research. Under § 635.24(a)(7), NMFS may allocate any portion of the Reserve category quota for inseason or annual adjustments to any fishing category quota. Transferring 55.2 mt from the Reserve category would account for the 18.5 mt accrued overharvest from the prior time periods. This transfer would result in 36.7 mt being available for the General category December subquota time period (55.2 mt−18.5 mt = 36.7 mt). Transferring 55.2 mt out of the Reserve category would leave 6 mt in the Reserve category (61.2 mt−55.2 mt = 6 mt), which could be used to account for any BFT mortalities associated with research.

Additionally, preliminary landings data indicate that the Harpoon category landed 76.4 mt of the 78.7 mt adjusted Harpoon category quota before closing. Because the Harpoon category closes on November 15 of each year (§ 635.24(a)(5)) and closed this year on September 5, 2022 (87 FR 54912, September 9, 2022), the remaining quota of 2.3 mt (78.7 mt−76.4 mt = 2.3 mt) is available and could be used by the General category. Transferring 2.3 mt out of the Harpoon category would result in an adjusted Harpoon category quota of 76.4 mt.

Given the current adjusted quota for the December time period is 11.1 mt, these transfers from the Reserve and Harpoon categories would result in an adjusted December subquota of 50.1 mt (11.1 mt + 36.7 mt + 2.3 mt = 50.1 mt). The transfers also would result in adjusted quotas for the Reserve and Harpoon categories of 6 mt and 76.4 mt, respectively.

As described below, NMFS has considered all of the relevant determination criteria and their applicability to this inseason quota transfer. Given these considerations, after transferring a total of 57.5 mt (55.2 mt from the Reserve category quota and 2.3 mt from the Harpoon category quota), the adjusted General category December 2022 subquota will be 50.1 mt, the adjusted Reserve category quota will be 6 mt, and the adjusted Harpoon category quota will be 76.4 mt. The General category fishery will remain open until December 31, 2022, or until the adjusted General category quota is reached, whichever comes first.

In making these transfers, NMFS considered, among other things, the following.

Regarding the usefulness of information obtained from catches in the particular category for biological sampling and monitoring of the status of the stock (§ 635.27(a)(8)(i)), biological samples collected from BFT landed by General category fishermen continue to provide NMFS with valuable parts and data for ongoing scientific studies of BFT age and growth, migration, and reproductive status. Additional opportunity to land BFT in the General category would support the continued collection of a broad range of data for these studies and for stock monitoring purposes.

NMFS also considered the catches of the General category quota to date and the likelihood of closure of that segment of the fishery if no adjustment is made (§ 635.27(a)(8)(ii) and (ix)). As described above, preliminary landings data indicate that the General category has landed 836.8 mt through November 30, which exceeds the cumulative adjusted quota available through November 30 by 18.5 mt. While the General category December time period subquota has not yet been exceeded, without a quota transfer at this time, based on catch rates in the last 3 years in comparison to the current available quota (11.1 mt), NMFS anticipates it would likely need to close the General category fishery very early in December. Once the fishery is closed, participants would have to stop BFT fishing activities even though commercial-sized BFT remain available in the areas where General category permitted vessels operate and U.S. BFT quota is available. Transferring quota from the Reserve and Harpoon categories would provide limited additional opportunities to harvest the U.S. BFT quota while avoiding exceeding it.

Regarding the projected ability of the vessels fishing under the General category quota to harvest the additional amount of BFT quota transferred before the end of the fishing year (§ 635.27(a)(8)(iii)), NMFS considered General category landings over the last several years and landings to date this year. Landings are highly variable and depend on access to commercial-sized BFT and fishing conditions, among other factors. NMFS anticipates that General category participants will be able to harvest transferred BFT quota by the end of the subquota time period and end of the fishing year. Thus, this quota transfer would allow fishermen to take advantage of the availability of BFT on the fishing grounds and provide a reasonable opportunity to harvest the available U.S. BFT quota.

NMFS also considered the estimated amounts by which quotas for other gear categories of the fishery might be exceeded (§ 635.27(a)(8)(iv)) and the ability to account for all 2022 landings and dead discards. In the last several years, total U.S. BFT landings have been below the available U.S. quota such that the United States has carried forward the maximum amount of underharvest allowed by ICCAT from one year to the next. NMFS recently took such an action to carry over the allowable 127.3 mt of underharvest from 2021 to 2022 (87 FR 33049, June 1, 2022). NMFS will need to account for 2022 landings and dead discards within the adjusted U.S. quota, consistent with ICCAT recommendations, and anticipates having sufficient quota to do that.

NMFS also considered the effects of the transfer on the BFT stock and the effects of the transfer on accomplishing the objectives of the 2006 Atlantic Consolidated FMP (§ 635.27(a)(8)(v) and (vi)). This transfer would be consistent with established quotas and subquotas, which are implemented consistent with ICCAT recommendations (established in Recommendation 21-07), ATCA, and the objectives of the 2006 Consolidated HMS FMP and amendments. In establishing these quotas and subquotas and associated management measures, ICCAT and NMFS considered the best scientific information available, objectives for stock management and status, and effects on the stock. This quota transfer is in line with the established management measures and stock status determinations. Another principal consideration is the objective of providing opportunities to harvest the available General category quota without exceeding the annual quota, based on the objectives of the 2006 Consolidated HMS FMP and amendments, including to achieve optimum yield on a continuing basis and to optimize the ability of all permit categories to harvest available BFT quota allocations (related to § 635.27(a)(8)(x)). Specific to the General category, this includes providing opportunities equitably across all time periods.

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

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

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

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing prior notice and opportunity for public comment on the quota transfer for the December 2022 time period is impracticable. The General category fishery is underway, there was an exceedance of prior subquota time periods. While the December subquota has not yet been exceeded, NMFS anticipates that it will need to close the General category in December even with the transfer. Delaying the action is contrary to the public interest, not only because it would likely result in a premature General category closure and associated costs to the fishery, but also administrative costs due to further agency action needed to re-open the fishery after quota is transferred. The delay would preclude the fishery from harvesting BFT that are available on the fishing grounds and that might otherwise become unavailable during a delay. This action does not raise conservation and management concerns. Transferring quota from the Reserve and Harpoon categories to the General category does not affect the overall U.S. BFT quota, and available data show the adjustment would have a minimal risk of exceeding the ICCAT-allocated quota. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

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