I. Background

On June 1, 2022, DOE published a final rule amending DOE's clothes washer test procedures (“June 2022 Final Rule”). 87 FR 33316. The June 2022 Final Rule amended provisions in DOE's test procedure prescribed at title 10 of the Code of Federal Regulations (“CFR”) part 430, subpart B, appendix J2 (“appendix J2”); established a new test procedure at 10 CFR part 430, subpart B, appendix J (“appendix J”); and amended provisions in DOE's test method for measuring the moisture absorption and retention characteristics of new lots of energy test cloth, which is used in testing clothes washers, at 10 CFR part 430, subpart B, appendix J3 (“appendix J3”). DOE is issuing this rule to correct certain technical errors and omissions in the June 2022 Final Rule, specifically appendices J, J2, and J3 of 10 CFR part 430, and to assist regulated entities with compliance efforts.

As established in the June 2022 Final Rule, section 4 of appendix J defines the four energy components (HE T , ME T , DE T , and E TLP )  1 comprising the energy efficiency metric. For clothes washers with multiple water fill control systems, each of these four components yields a different result for each type of water fill control system and therefore must be calculated separately for each control type and then averaged, with the average value used for the final calculations in section 4, as directed by section 3.2.3.5 of appendix J. Specifically, section 3.2.3.5 of appendix J specifies that if a clothes washer allows user selection among multiple water fill control systems, all water fill control systems must be tested and, for each one, each energy consumption and water consumption value as set forth in section 4 of appendix J must be calculated and averaged across the water fill control systems. The average value is then used in the final calculations in section 4 of appendix J. But, in the June 2022 Final Rule, the Department inadvertently omitted E TLP from the list of variables used to calculate energy consumption in section 3.2.3.5 of appendix J. DOE is correcting that omission by adding E TLP to the parenthetical list of energy consumption parameters in section 3.2.3.5 of appendix J.

In the June 2022 Final Rule, DOE made a typographical error in section 3.3 of appendix J, stating that testing is to be performed “on each wash/rinse temperature selection available in the energy test cycle was [ sic ] defined in section 2.12.1 of this appendix.” 87 FR 33390. In this document, DOE corrects the word “was” to “as” in section 3.3 of appendix J.

In the June 2022 Final Rule, DOE expanded Table 5.1 of appendix J2; however, the expanded table did not re-print with the two established notes  2 at the end of the table. 87 FR 33402-33403. These two notes have been incorporated in Table 5.1 since the table's inclusion in appendix J2. Additionally, DOE did not propose their removal during the rulemaking process. The regulatory instruction provided for this amendment in the June 2022 Final Rule resulted in the inadvertent removal of the notes from Table 5.1 of appendix J2. This document corrects the omission by adding the two notes at end of the revised table.

In the regulatory text of the June 2022 Final Rule, the title and the column headings of new Table 8.7 of appendix J3 were mis-printed. The title of Table 8.7 inadvertently included an extra line break before the variable name provided in parentheses, i.e., “(RMC standard ).” To simplify the table heading, DOE is removing the variable name in parentheses in the title of Table 8.7. Additionally, the column headers for Table 8.7 list the water soak temperature and the spin times used to develop the values presented in the table. In the regulatory text of the June 2022 Final Rule, the spin time column headers were listed in the wrong order. 87 FR 33405. This document corrects the order of the headings in Table 8.7 of appendix J3.

Because this final rule simply corrects errors and omissions in the text without making substantive changes, the changes addressed in this document are technical in nature.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the June 2022 Final Rule remain unchanged for this final rule's technical corrections. These determinations are set forth in the June 2022 Final Rule and are adopted here. 87 FR 33316, 33375-33379.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b), DOE finds that there is good cause to not issue a separate notice to solicit public comment on those technical corrections contained in this document. Issuing a separate notice to solicit public comment would be impracticable, unnecessary, and contrary to the public interest. As explained above, the corrections in this document do not affect the substance of the June 2022 Final Rule or any of the conclusions reached in support of the final rule. Additionally, given the final rule is a product of an extensive administrative record with numerous opportunities for public comment, DOE finds additional comment on the technical corrections is unnecessary. Therefore, providing prior notice and an opportunity for public comment on correcting objective, typographical errors and omissions that do not change the substance of the test procedure serves no useful purpose.

Further, this rule correcting typographical errors and omissions makes non-substantive changes to the test procedure in the June 2022 Final Rule. As such, this final rule is not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d) otherwise applicable to rules that make substantive changes.

This document of the Department of Energy was signed on December 16, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, U.S. Department of Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE corrects part 430 of chapter II, subchapter D, of title 10 of the Code of Federal Regulations by making the following correcting amendments:

Table of Contents I. Synopsis of the Final Determination II. Introduction A. Authority B. Background III. General Discussion and Rationale A. Test Procedures B. General Comments C. Equipment Classes and Scope of Coverage D. Final Determination 1. Significant Conservation of Energy 2. Technological Feasibility 3. Economic Justification IV. Procedural Issues and Regulatory Review A. Review Under Executive Order 12866 and 13563 B. Review Under the Regulatory Flexibility Act C. Review Under the Paperwork Reduction Act of 1995 D. Review Under the National Environmental Policy Act of 1969 E. Review Under Executive Order 13132 F. Review Under Executive Order 12988 G. Review Under the Unfunded Mandates Reform Act of 1995 H. Review Under the Treasury and General Government Appropriations Act, 1999 I. Review Under Executive Order 12630 J. Review Under the Treasury and General Government Appropriations Act, 2001 K. Review Under Executive Order 13211 L. Review Under the Information Quality Bulletin for Peer Review M. Congressional Notification V. Approval of the Office of the Secretary I. Synopsis of the Final Determination

The Energy Policy and Conservation Act, Public Law 94-163 (42 U.S.C. 6291-6317, as codified), as amended (“EPCA”), 1 authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C  2 of EPCA, established the Energy Conservation Program for Certain Industrial Equipment. (42 U.S.C. 6311-6317) Such equipment includes CWAFs, which are the subject of this final determination. 3 (42 U.S.C. 6311(J))

Pursuant to EPCA, DOE is triggered to consider amending the energy efficiency standards for certain types of commercial and industrial equipment, including the equipment at issue in this document, whenever the American Society of Heating, Refrigerating, and Air Conditioning Engineers (“ASHRAE”) amends the standard levels or design requirements prescribed in ASHRAE Standard 90.1, “Energy Standard for Buildings Except Low-Rise Residential Buildings” (“ASHRAE Standard 90.1”). Under a separate provision of EPCA, DOE is required to review the existing energy conservation standards for those types of covered equipment subject to ASHRAE Standard 90.1, at a minimum, every six years after issuance of any final rule establishing or amending a standard (42 U.S.C. 6313(a)(6)(A)-(C)). DOE is conducting this review of the energy conservation standards for CWAFs under EPCA's six-year-lookback authority. (42 U.S.C. 6313(a)(6)(C))

For this final determination, DOE considered CWAFs subject to the current Federal energy conservation standards specified in the Code of Federal Regulations (“CFR”) at 10 CFR 431.77. The current standards were adopted in a direct final rule published in the Federal Register on January 15, 2016 (“January 2016 final rule”), through which DOE, in relevant part, adopted amended CWAF standards for which compliance is required beginning on January 1, 2023. 81 FR 2420, 2529. DOE has determined that there is significant uncertainty regarding whether more-stringent CWAF standards would be economically justified at this time, a matter which the Department discusses in more detail in section III.D of this document. Therefore, DOE has determined that the energy conservation standards for CWAFs do not need to be amended because there is not clear and convincing evidence that amended standards would be economically justified, as required by EPCA to establish a more-stringent standard. (42 U.S.C. 6313(a)(6)(A)(ii)(II))

The following section briefly discusses the statutory authority underlying this final determination, as well as the historical background relevant to the establishment of energy conservation standards for CWAFs.

EPCA, Public Law 94-163 (42 U.S.C. 6291-6317, as codified), among other things, authorizes DOE to regulate the energy efficiency of a number of consumer products and certain industrial equipment. Title III, Part C of EPCA, added by Public Law 95-619, Title IV, section 441(a) (42 U.S.C. 6311-6317, as codified), established the Energy Conservation Program for Certain Industrial Equipment, which sets forth a variety of provisions designed to improve energy efficiency. This equipment includes CWAFs, the subject of this document. (42 U.S.C. 6311(J))

The energy conservation program under EPCA consists essentially of four parts: (1) testing, (2) labeling, (3) the establishment of Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA include definitions (42 U.S.C. 6311), energy conservation standards (42 U.S.C. 6313), test procedures (42 U.S.C. 6314), labeling provisions (42 U.S.C. 6315), and the authority to require information and reports from manufacturers (42 U.S.C. 6316).

Federal energy conservation requirements for covered equipment established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6316(a) and 42 U.S.C. 6316(b); 42 U.S.C. 6297) DOE may, however, grant waivers of Federal preemption in limited circumstances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under EPCA. (42 U.S.C. 6316(b)(2)(D), which incorporates the preemption waiver provisions of 42 U.S.C. 6297(d))

EPCA prescribed initial mandatory energy conservation standards for CWAFs. (42 U.S.C. 6313(a)(4)) In doing so, EPCA established Federal energy conservation standards that generally corresponded to the levels in the ASHRAE Standards 90.1 in effect on October 24, 1992 ( i.e., ASHRAE Standard 90.1-1989).

In overview, if ASHRAE Standard 90.1 is amended with respect to the standard levels or design requirements applicable under that standard for certain commercial equipment, including CWAFs, not later than 180 days after the amendment of the standard, DOE must publish in the Federal Register for public comment an analysis of the energy savings potential of amended energy efficiency standards. (42 U.S.C. 6313(a)(6)(A)(i)) DOE must adopt amended energy conservation standards at the new efficiency level in ASHRAE Standard 90.1, unless DOE determines that there is clear and convincing evidence to support a determination that the adoption of a more-stringent efficiency level as a uniform national standard would produce significant additional energy savings and be technologically feasible and economically justified. 4 (42 U.S.C. 6313(a)(6)(A)(ii))

If DOE decides to adopt, as a uniform national standard, the efficiency levels specified in the amended ASHRAE Standard 90.1, DOE must establish such standard not later than 18 months after publication of the amended industry standard. (42 U.S.C. 6313(a)(6)(A)(ii)(I)) However, if DOE determines, supported by clear and convincing evidence, that a more-stringent uniform national standard would result in significant additional conservation of energy and is technologically feasible and economically justified, then DOE must establish the more-stringent standard not later than 30 months after publication of the amended ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(A)(ii)(II) and (B)(i))

EPCA also requires that every six years DOE shall evaluate the energy conservation standards for each class of certain covered commercial equipment, including CWAFs, and publish either a notice of determination that the standards do not need to be amended, or a notice of proposed rulemaking (“NOPR”) that includes new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(i)) EPCA further provides that, not later than three years after the issuance of a final determination not to amend standards, DOE must publish either a notification of determination that standards for the equipment do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6313(a)(6)(C)(iii)(II))

A determination of whether amended energy conservation standards are needed must be based on the same considerations as if it were adopting a standard that is more stringent than an amendment to ASHRAE Standard 90.1. (42 U.S.C. 6313(a)(6)(C)(i)(II); 42 U.S.C. 6313(a)(6)(A)-(B)) DOE must make the analysis on which a determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6313(a)(6)(C)(ii)) Further, there must be clear and convincing evidence that a determination that more-stringent standards would: (1) result in significant additional conservation of energy, (2) be technologically feasible, and (3) be economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A))

DOE is publishing this final determination in satisfaction of the six-year-lookback review requirement in EPCA, having determined that DOE lacks clear and convincing evidence that amended standards for CWAFs would be economically justified.

In a final rule published in the Federal Register on October 21, 2004 (“October 2004 final rule”), DOE codified energy conservation standards for CWAFs equal to those established in EPCA ( i.e., a thermal efficiency (“TE”) of 80 percent for gas-fired CWAFs, and a TE of 81 percent for oil-fired CWAFs). 69 FR 61916, 61941. The standards established in the October 2004 final rule are the same as DOE's current CWAF standards for CWAFs manufactured before January 1, 2023. 10 CFR 431.77.

As noted previously, DOE most recently amended the energy conservation standards for CWAFs in the January 2016 final rule, which requires compliance beginning on January 1, 2023. 81 FR 2420 (Jan. 15, 2016).

Since publication of the January 2016 final rule, ASHRAE published two updated versions of ASHRAE Standard 90.1, one in 2016 (“ASHRAE Standard 90.1-2016”) and another in 2019 (“ASHRAE Standard 90.1-2019”). The CWAF standards adopted in the January 2016 final rule ( i.e., the standards which take effect on and after the January 1, 2023 compliance date) are more stringent than the minimum efficiency levels for CWAFs in ASHRAE Standard 90.1-2016. ASHRAE Standard 90.1-2019 updated the minimum efficiency levels for CWAFs to align with those adopted by DOE in the January 2016 final rule. 5 Because ASHRAE Standard 90.1-2016 and ASHRAE Standard 90.1-2019 did not contain minimum efficiency levels more stringent than the current Federal standards for CWAFs, DOE was not triggered to examine amended standards for this equipment under 42 U.S.C. 6313(a)(6)(A). 6 As a result, despite these intervening ASHRAE actions, the Federal standards for CWAFs are those set forth in the January 2016 final rule and codified in DOE's regulations at 10 CFR 431.77.

More specifically, for gas-fired CWAFs manufactured starting on January 1, 1994, until January 1, 2023, TE at the maximum rated capacity ( i.e., rated maximum input) must be not less than 80 percent. For gas-fired CWAFs manufactured starting on January 1, 2023, the TE at the maximum rated capacity must be not less than 81 percent. For oil-fired CWAFs manufactured starting on January 1, 1994, until January 1, 2023, the TE at the maximum rated capacity must be not less than 81 percent. For oil-fired CWAFs manufactured starting on January 1, 2023, the TE at the maximum rated capacity must be not less than 82 percent. 10 CFR 431.77.

In the January 2016 final rule, DOE rejected more-stringent standards on the basis that benefits of energy savings, emission reductions, and the estimated monetary value of the emissions reductions would be outweighed by the economic burden on many consumers, negative net present value (“NPV”) of consumer benefits, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in industry net present value (“INPV”). 81 FR 2420, 2522 (Jan. 15, 2016).

In support of its present review of the CWAF energy conservation standards, DOE initially published in the Federal Register a request for information (RFI) on May 12, 2020 (May 2020 RFI), which identified various issues on which DOE sought comment, data, and information to inform its determination of whether the current Federal standards need to be amended. 85 FR 27941. After considering comments received in response to the RFI, DOE published in the Federal Register a notice of proposed determination on April 26, 2022 (“April 2022 NOPD”), which proposed not to amend the standards for CWAFs. 87 FR 24455. In the April 2022 NOPD, DOE tentatively determined that the current CWAF market conditions are not significantly different now than projected in the January 2016 final rule, and that any analysis of increased standards for CWAFs would not result in a significantly different economic outcome from the January 2016 final rule. As such, DOE determined that it lacks clear and convincing evidence that amended energy conservation standards for CWAFs would be economically justified. Id at 87 FR 24465.

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

A parenthetical reference at the end of a comment quotation or paraphrase provides the location of the item in the public record. 7

DOE developed this final determination after a review of the CWAF market, including product literature and product listings in the DOE Compliance Certification Management System (CCMS) database. DOE also considered comments, data, and information from interested parties that represent a variety of interests. This document addresses issues raised by these commenters.

EPCA sets forth generally applicable criteria and procedures for DOE's adoption and amendment of test procedures. (42 U.S.C. 6314(a)) As a general matter, manufacturers of covered ASHRAE equipment must use these test procedures to certify to DOE that their equipment complies with energy conservation standards and to quantify the efficiency of their equipment. (42 U.S.C. 6316(b); 42 U.S.C. 6296) DOE's current energy conservation standards for CWAFs are expressed in terms TE in percent. ( See 10 CFR 431.77) The applicable test procedure for CWAFs is found at 10 CFR 431.76, “Uniform Test Method for Measurement of Energy Efficiency of Commercial Warm Air Furnaces.”

On February 25, 2022, DOE published a NOPR in the Federal Register that proposed to update the CWAF test procedure (“February 2022 TP NOPR”). 87 FR 10726. In the February 2022 TP NOPR, DOE proposed to adopt the latest versions of the industry test standards that are currently incorporated by reference, to make minor revisions to the CWAF test procedure to clarify how to test certain equipment, 8 and to establish a new metric—Thermal Efficiency Two (“TE2”). The proposed TE2 metric would, unlike the current TE metric, account for heat loss through the CWAF cabinet ( i.e., jacket losses) and performance at a minimum fire rate ( i.e., part-load). Id. at 87 FR 10729-10730. However, DOE proposed to make use of the TE2 metric and test procedure optional until such time as compliance with amended energy conservation standards based on TE2 is required, should DOE adopt such standards. Id. at 87 FR 10735.

In response to the April 2022 NOPD, NEEA and the Joint Advocates recommended that DOE should consider the potential energy savings that would result from analyzing new CWAF standards based on an updated test procedure and metric. (NEEA, No. 34 at pp. 1-2; Joint Advocates, No. 31 at pp. 1-2) NEEA also recommended that DOE evaluate the energy savings that would result from amending the CWAF test procedure to incorporate aspects of CSA Standard P.8-2022, “Thermal efficiencies of industrial and commercial gas-fired package furnaces” (“CSA P.8-2022”), which includes a test procedure that assesses CWAF performance based on the not only the CWAF, but also accounts for features within a commercial unitary air conditioner (“CUAC”) that the commenter stated would affect CWAF performance ( e.g., total enclosure insulation, low-leak dampers, and energy recovery). 9 (NEEA, No. 34 at pp. 2-5) Additionally, NEEA and the Joint Advocates asserted that accounting for the technology options in CSA P.8-2022 could result in significant energy savings, and that obtaining this energy savings would be technologically feasible and economically justified. (NEEA, No. 34 at p. 3; Joint Advocates, No. 31 at p. 2) Specifically, NEEA argued that although the effects of these technologies are not accounted for in the TE metric, DOE should look into the energy savings associated with them before adopting a final test procedure, because assessing the energy savings of these technology options help to justify adding them to the test procedure. (NEEA, No. 34 at p. 3) NEEA also presented data showing the potential energy savings based improvements in enclosure insulation, damper leakage, and energy recovery. Id. NEEA stated that the technologies that achieve this level of energy savings are readily available on the market today, and, therefore, are technologically feasible. (NEEA, No. 34 at p. 4) NEEA also asserted that these technologies may have lower incremental costs and, therefore, may be economically justified. (NEEA, No. 34 at pp. 4-5) To support its conclusion, NEEA presented preliminary results from a benefit-cost analysis being conducted in partnership with the Northwest Power and Conservation Council that shows the benefit-cost ratios for low-leak dampers and increased insulation. Id.

DOE acknowledges there could be potential for additional energy savings, if DOE were to consider technologies that would improve efficiency as measured by TE2 or by an amended test procedure that incorporates aspects of CSA P.8-2022 that are not included in the current TE metric. However, DOE notes that as currently proposed, the TE2 test procedure for CWAFs does not address the technologies that NEEA has identified, and that rulemaking is still ongoing. DOE received similar comments in response to the February 2022 TP NOPR and will address those comments as part of that rulemaking. Therefore, DOE is declining to analyze energy conservation standards (denominated in terms of TE) in light of such technologies at this time, because an amended TE standard level would not be impacted by whether such technologies would be used in CWAFs. Should DOE ultimately decide to amend the CWAF test procedure to include the technologies NEEA has identified or to finalize the TE2 metric and should sufficient TE2 performance data become available, DOE could consider energy savings based on such technologies in a subsequent review of CWAF energy conservation standards.

In the April 2022 NOPD, DOE requested comment on its proposed determination that the existing energy conservation standards for CWAFs do not need to be amended. 87 FR 24455, 24465 (April 26, 2022).

DOE received comments from AHRI, the CA IOUs, and Lennox supporting DOE's proposed determination. (AHRI, No. 29 at p. 1, CA IOUs, No. 32 at p. 1, Lennox, No. 30 at pp. 1-2) Specifically, AHRI stated that there have not been significant changes in the CWAF market that would warrant an amended energy conservation standard that would be both technically feasible and economically justified. (AHRI, No. 29 at p. 1) Additionally, Lennox commented that since the time of the January 2016 final rule market conditions, including manufacturer costs and costs to improve CWAF efficiency have worsened since the 2016 final rule. Lennox also argued that implementing more-stringent standards at this time would be premature because DOE's 2023 CWAF standards have not yet taken effect, and under the statute, any new CWAF standards could not take effect until 2029. (Lennox, No. 30 at p. 2) AHRI and Lennox also agreed with DOE's tentative conclusion in the April 2022 NOPD that raising the TE standards would likely result in a condensing standard, and these commenters asserted that there are technological problems associated with implementing condensing operation for CWAFs that would add significant burden to manufacturers if such a standard were to be adopted. (AHRI, No. 29 at p. 1; Lennox, No. 30 at p. 1)

NEEA disagreed with DOE's proposed determination. (NEEA, No. 34 at p. 1) As discussed in section III.A of this document, NEEA asserted that DOE should consider the energy savings of technology options that are not captured by the current CWAF test procedure and metric. (NEEA, No. 34 at p. 2) Additionally, NEEA recommended that DOE should update its energy use analysis to account for changes in the CWAF market since 2016. (NEEA, No. 34 at pp. 7-8) NEEA stated that DOE's 2016 analysis was based on the Commercial Building Stock Energy Consumption Survey (CBECS 2003); however, since the publication of that survey, a new CBECS 2018 has been published. NEEA also recommended that DOE should seek new shipment data to account for changing trends in the market. Id.

In response to NEEA, DOE reiterates that its analysis for this final determination was based on the existing TE metric, as updates to the required test method as would be needed to account for additional technologies that NEEA identified are not yet adopted. The CWAFs test procedure rulemaking is currently ongoing. Further, it would be premature to evaluate energy conservation standards in terms of a new metric without sufficient data on equipment performance according to any potential new metric. As a result, DOE has concluded that further consideration of TE2 is not appropriate at this time and is better suited for consideration in a future review of CWAF standards, if TE2 were to be finalized and sufficient performance data becomes available.

In response to NEEA's suggestion that DOE seek new shipment data to account for the changing market, DOE notes that it sought feedback on its approach to estimating shipments and/or shipments data in the May 2020 RFI. 85 FR 27941, 27953 (May 12, 2020). Subsequently, in the April 2022 NOPD, DOE considered several comments related to shipments, and the Department ultimately concluded that given the mature market, the expectation that most shipments will be at the baseline level in 2023, and lack of any anticipated increase in equipment lifetime, DOE did not expect the shipments estimates and no-new-standards distributions from the January 2016 final rule to have changed significantly for CWAFs. 87 FR 24455, 24464 (April 26, 2022). After a careful review, DOE has not obtained any new or additional information regarding shipments, and, therefore, maintains the conclusion regarding CWAF shipments set forth in the April 2022 NOPD for this final determination. Regarding NEEA's recommendation to conduct an updated analysis that relies on CBECS 2018, as stated in the April 2022 NOPD, while the previous analysis relied on CBECS 2003, CWAF energy consumption was adjusted for projected decreases in heating degree days between CBECS 2003 and the compliance year. 10 87 FR 24455, 24463 (April 26, 2022). DOE also noted that the main driver of CWAF energy consumption in the January 2016 final rule was the building heating load, which is based on the reported space heating energy consumption of buildings with a furnace in CBECS 2003, and that the previous analysis was not based on full-load hours or perimeter conditions. Id. As such, and given the fact that DOE has determined that the characteristics of the CWAF market are largely the same as when analyzed for the January 2016 final rule, DOE does not anticipate the energy use to have changed sufficiently so as to drive a different outcome, as compared to that in the January 2016 final rule.

As discussed further in section III.D of this document, DOE has determined that it lacks clear and convincing evidence to show that the potential amended standard levels considered would be economically justified. To satisfy the statutory requirements to consider more-stringent standards, DOE must support by clear and convincing evidence that such standards are economically justified, in addition to being technologically feasible and to likely result in significant additional energy savings. Therefore, although DOE could update its analysis to further investigate aspects of energy savings and shipments, the Department finds that doing so would not change DOE's rationale supporting its decision to not amend the existing CWAF standards at this time.

EPCA and DOE define a “warm air furnace” as a self-contained oil- or gas-fired furnace designed to supply heated air through ducts to spaces that require it and includes combination warm air furnace/electric air conditioning units but does not include unit heaters and duct furnaces. (42 U.S.C. 6311(11)(A); 10 CFR 431.72) A “commercial warm air furnace” is further defined in DOE's regulations as a warm air furnace that is industrial equipment, and that has a capacity (rated maximum input) of 225,000 British thermal units (“Btu”) per hour or more. 10 CFR 431.72.

In the April 2022 NOPD, DOE responded to a comment from NEEA  11 that requested that DOE consider updating the definition for CWAF to account for different operating characteristics, different functions, or use cases in order to reduce uncertainty as to the applicable energy conservation standard and test procedure and to provide more comprehensive coverage. 87 FR 24455, 24459 (April 26, 2022). In response NEEA's comment, DOE stated that the codified definition of “warm air furnace” at 10 CFR 431.72 matches EPCA's definition of a “warm air furnace” at 42 U.S.C. 6311(11)(A), and that, therefore, the current CWAF definition is appropriately aligned with the definition in EPCA and adequately covers CWAFs. As such, DOE determined that no amendments to the regulatory definitions for “commercial warm air furnace” or “warm air furnace” are needed. Id.

In response to the April 2022 NOPD, NEEA again recommended that DOE update the definition of a CWAF to allow DOE to develop a metric that would include the effects of both the CWAF and the CUAC with which it is packaged. (NEEA, No. 34 at pp. 6-7) NEEA further stated that it does not see a limitation in EPCA's or DOE's definition of a CWAF that prevents DOE from expanding the definition to cover the entire CUAC and suggested that this was the intent of the EPCA definition. Specifically, NEEA noted that the EPCA defines a warm air furnace as “self-contained,” “designed to supply heated air through ducts,” and “includes combination warm air furnace/electric air conditioning units,” which NEEA argued suggests that the intent was to cover CUACs. Id.

DOE disagrees with NEEA that the intent of the “warm air furnace” definition found in EPCA is to include CUACs under the coverage of the CWAF definitions. As previously noted, EPCA's definition of a “warm air furnace” definition clearly states that a warm air furnace “is a self-contained oil or gas-fired furnace,” which DOE views as a product that is distinct from a CUAC. DOE notes that EPCA lists warm air furnaces and various types of commercial air conditioners as separate types of covered equipment at 42 U.S.C. 6311(1) and that EPCA defines “commercial package air conditioning and heating equipment” ( i.e., CUAC) separately from “warm air furnace.” (See 42 U.S.C. 6311(8)(A) and (11)(A)) While EPCA states that a warm air furnace “includes combination warm air furnace/electric air conditioning units,” DOE has determined that this is referring to the fact that a CWAF may be installed within an CUAC, which is an attempt to clarify that CWAFs can be standalone units or installed as part of packaged systems. This interpretation is consistent with how DOE has historically treated and regulated CWAFs and packaged systems.

NEEA also stated that DOE should consider expanding the coverage of CWAFs to include three-phase furnaces with capacities less than 225,000 Btu/h. (NEEA, No. 34 at p. 6) As discussed in the April 2022 NOPD, DOE tentatively determined not to take such action because: (1) such units make up a very small portion of the market (roughly 2 percent), and (2) all of such units meet or exceed the current CWAF standards and the majority meet or exceed the 2023 standards. 87 FR 24455, 24460 (April 26, 2022). NEEA argued that because these types of CWAFs make up about 2 percent of the total CWAF market, there is still a significant opportunity for energy savings, because the CWAF market is large. (NEEA, No. 34 at p. 6) Additionally, NEEA stated that because the majority of the market already meets or exceeds the 2023 standards, the additional burden to manufacturers to redesign such units to meet the 2023 standards is likely to be small. Finally, NEEA argued that DOE has energy conservation standards for three-phase VRFs with a capacity less than 65,000 btu/h even though there are currently no shipments of such units, so the commenter asserted that following this precedent, DOE should establish energy conservation standards for three-phase CWAFs with an input capacity less than 225,000 Btu/h, because such products have thousands of shipments. Id.

DOE has decided not to consider energy conservation standards for three-phase CWAFs with a capacity less than 225,000 Btu/h in this rulemaking. DOE disagrees with NEEA that there is a significant opportunity for energy savings. While 2 percent of the overall CWAF market can account for a significant amount of energy use, as previously stated, all three-phase furnaces with capacities less than 225,000 btu/h meet or exceed the current CWAF standards, and the majority already meet the 2023 standards. Therefore, significant energy savings for such units (assuming DOE expanded the CWAF definition to include them) would only be achieved if DOE were to increase CWAF standards, which for the reasons explained in section III.D of this document, DOE is declining to do in this rulemaking.

After carefully considering the comments on the April 2022 NOPD and the available data and information, DOE has determined that the energy conservation standards for CWAFs do not need to be amended, for the reasons explained in the paragraphs immediately following.

As previously discussed, EPCA specifies that for any commercial and industrial equipment addressed under 42 U.S.C. 6313(a)(6)(A)(i), including CWAFs, DOE may prescribe an energy conservation standard more stringent than the level for such equipment in ASHRAE Standard 90.1 only if “clear and convincing evidence” shows that a more-stringent standard would result in significant additional conservation of energy and is technologically feasible and economically justified. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) The “clear and convincing” evidentiary threshold applies both when DOE is triggered by ASHRAE action and when DOE conducts a six-year-lookback rulemaking, with the latter being the basis for the current proceeding. DOE addresses each of these statutory criteria in turn.

EPCA mandates that DOE consider whether amended energy conservation standards for CWAFs would result in result in significant additional conservation of energy. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II))

As discussed in the April 2022 NOPD, DOE acknowledges that more-stringent standards for CWAFs have the potential to result in significant additional conservation of energy. 87 FR 24455, 24464 (April 26, 2022). In the January 2016 final rule, DOE estimated that establishing a condensing standard ( i.e., 92-percent thermal efficiency) for gas-fired and oil-fired CWAFs would result in 2.1 quads of primary energy savings compared to a no-new-standards case over the lifetime of the CWAF (2019 through 2048). 81 FR 2420, 2508 (Jan. 15. 2016). However, as discussed in section III.D.3 of this document, DOE has determined that it lacks clear and convincing evidence to show that the potential amended standard levels considered would be economically justified.

EPCA mandates that DOE consider whether amended energy conservation standards for CWAFs would be technologically feasible. (42 U.S.C. 6313(a)(6)(C)(i); 42 U.S.C. 6313(a)(6)(A)(ii)(II)) As initially explained in the April 2022 NOPD, there have previously been CWAF models on the market at efficiencies above the current minimum standard levels and above the levels adopted in the January 2016 final rule, and DOE has previously analyzed several of those levels as potential national standard levels. 87 FR 24455, 24465 (April 26, 2022). This indicates that more-stringent energy conservation standards could be technologically feasible. However, DOE also noted in the April 2022 NOPD that it was not aware of any CWAF models on the market that exceeded the minimum standards that were adopted in the January 2016 final rule. Id. Currently, DOE is not aware of any gas-fired CWAF models, and is only aware of one oil-fired CWAF model line on the market that exceeds the minimum standards that were adopted in the January 2016 final rule. 12

In the January 2016 final rule, DOE concluded that energy conservation standards at levels requiring condensing operation (trial standard level (“TSL”) 5) would not be economically justified, due to the economic burden on most consumers, the negative NPV of consumer benefits using a 7-percent discount rate, and the impacts on manufacturers, including the conversion costs and profit margin impacts that could result in a large reduction in INPV. 81 FR 2420, 2522 (Jan. 15, 2016). In examining the current market, DOE has found that market conditions are largely the same as at the time of the January 2016 final rule.

Given the similar market size and in consideration of stakeholder comments, DOE has determined that the manufacturing costs and manufacturer impacts would not be significantly different now than projected in the January 2016 final rule. In addition, DOE has determined that installation costs would be similar to those estimated in the previous analysis, and that energy cost savings would not increase as compared to the previous analysis, as updated Annual Energy Outlook ( AEO ) projections of energy prices show declining prices in comparison to the projections in AEO 2015, which were used for the January 2016 final rule. For these reasons, DOE has determined that any analysis of more-stringent thermal efficiency standard levels for CWAFs would not result in a significantly different economic outcome from the January 2016 final rule, and that as such, it lacks clear and convincing evidence that more-stringent standard levels for CWAFs would be economically justified.

DOE notes that the determination that it lacks clear and convincing evidence is specific to this rulemaking. DOE will evaluate its ability to reach clear and convincing evidence on a case-by-case basis.

Executive Order (“E.O.”) 12866, “Regulatory Planning and Review,” 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), requires agencies, to the extent permitted by law, to: (1) propose or adopt a regulation only upon a reasoned determination that its benefits justify its costs (recognizing that some benefits and costs are difficult to quantify); (2) tailor regulations to impose the least burden on society, consistent with obtaining regulatory objectives, taking into account, among other things, and to the extent practicable, the costs of cumulative regulations; (3) select, in choosing among alternative regulatory approaches, those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity); (4) to the extent feasible, specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt; and (5) identify and assess available alternatives to direct regulation, including providing economic incentives to encourage the desired behavior, such as user fees or marketable permits, or providing information upon which choices can be made by the public. DOE emphasizes as well that E.O. 13563 requires agencies to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible. In its guidance, the Office of Information and Regulatory Affairs (“OIRA”) in the Office of Management and Budget (“OMB”) has emphasized that such techniques may include identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes. For the reasons stated in the preamble, this regulatory action is consistent with these principles.

OMB has determined that this final determination does not constitute a “significant regulatory action” under section 3(f) of E.O. 12866. Accordingly, this action was not subject to review under E.O. 12866 by OIRA at OMB.

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

The Small Business Administration (SBA) considers a business entity to be a small business, if, together with its affiliates, it employs less than a threshold number of workers specified in 13 CFR part 121. The equipment covered by this final determination are classified under North American Industry Classification System (“NAICS”) code 333415, 13 “Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing.” In 13 CFR 121.201, the SBA sets a threshold of 1,250 employees or fewer for an entity to be considered as a small business for this category.

DOE has conducted a focused inquiry into small business manufacturers of the equipment covered by this rulemaking. The Department used available public information to identify potential small manufacturers. DOE accessed its Compliance Certification Database (“CCD”)  14 to identify a list of companies that manufacture the CWAFs covered by this final determination. Using these sources, DOE identified a total of eight distinct manufacturers of CWAFs. DOE screened out companies that do not meet the definition of a “small business” or are foreign-owned and operated. Of these manufacturers, DOE identified one small, domestic manufacturer as a potential small business.

DOE reviewed this final determination under the provisions of the Regulatory Flexibility Act and the policies and procedures published on February 19, 2003. Because DOE is not amending standards for CWAFs in this final determination, DOE certifies that this final determination will not have a significant economic impact on a substantial number of small entities. Accordingly, DOE has not prepared an IRFA or FRFA for this final determination. DOE has transmitted this certification and supporting statement of factual basis to the Chief Counsel for Advocacy of the Small Business Administration for review under 5 U.S.C. 605(b).

This final determination, which determines that amended energy conservation standards for CWAFs are unneeded under the applicable statutory criteria, imposes no new informational or recordkeeping requirements. Accordingly, OMB clearance is not required under the Paperwork Reduction Act. (44 U.S.C. 3501 et seq. )

DOE is analyzing this action in accordance with the National Environmental Policy Act of 1969 (“NEPA”) and DOE's NEPA implementing regulations (10 CFR part 1021). DOE's regulations include a categorical exclusion for actions which are interpretations or rulings with respect to existing regulations. 10 CFR part 1021, subpart D, appendix A4. DOE has determined that this final determination qualifies for categorical exclusion A4 because it is an interpretation or ruling in regard to an existing regulation and otherwise meets the requirements for application of a categorical exclusion. See 10 CFR 1021.410. Therefore, DOE has determined that promulgation of this final determination is not a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA, and does not require an environmental assessment or an environmental impact statement.

E.O. 13132, “Federalism,” 64 FR 43255 (August 10, 1999), imposes certain requirements on Federal agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. The Executive order requires agencies to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and to carefully assess the necessity for such actions. The Executive order also requires agencies to have an accountable process to ensure meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications. On March 14, 2000, DOE published a statement of policy describing the intergovernmental consultation process it will follow in the development of such regulations. 65 FR 13735. DOE has examined this final determination and has determined that it would not have a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. EPCA governs and prescribes Federal preemption of State regulations as to energy conservation for the equipment that is the subject of this final determination. States can petition DOE for exemption from such preemption to the extent, and based on criteria, set forth in EPCA. (42 U.S.C. 6316(a) and (b); 42 U.S.C. 6297) As this final determination would not amend the standards for CWAFs, there is no impact on the policymaking discretion of the States. Therefore, no further action is required by E.O. 13132.

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

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

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

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

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

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

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

This final determination, which does not amend energy conservation standards for CWAFs, is not a significant regulatory action under Executive Order 12866. Moreover, it would not have a significant adverse effect on the supply, distribution, or use of energy, nor has it been designated as such by the Administrator at OIRA. Therefore, it is not a significant energy action, and accordingly, DOE has not prepared a Statement of Energy Effects.

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

In response to OMB's Bulletin, DOE conducted formal peer reviews of the energy conservation standards development process and the analyses that are typically used and has prepared a Peer Review report pertaining to the energy conservation standards rulemaking analyses. 15 Generation of this report involved a rigorous, formal, and documented evaluation using objective criteria and qualified and independent reviewers to make a judgment as to the technical/scientific/business merit, the actual or anticipated results, and the productivity and management effectiveness of programs and/or projects. Because available data, models, and technological understanding have changed since 2007, DOE has engaged with the National Academy of Sciences (NAS) to review DOE's analytical methodologies to ascertain whether modifications are needed to improve the Department's analyses. DOE is in the process of evaluating the resulting December 2021 NAS report. 16

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

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

This document of the Department of Energy was signed on December 16, 2022, by Francisco Alejandro Moreno, Acting Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Background and Description of the Joint Final Rule

The Agencies' CRA regulations establish CRA performance standards for small and intermediate small banks. The CRA regulations define small and intermediate small banks by reference to asset-size criteria expressed in dollar amounts, and they further require the Agencies to publish annual adjustments to these dollar figures based on the year-to-year change in the average of the CPI-W, not seasonally adjusted, for each 12-month period ending in November, with rounding to the nearest million. 12 CFR 228.12(u)(2) and 345.12(u)(2). This adjustment formula was first adopted for CRA purposes by the Board, the Office of the Comptroller of the Currency (OCC), and the FDIC on August 2, 2005, effective September 1, 2005. 70 FR 44256 (Aug. 2, 2005). At that time, the Agencies noted that the CPI-W is also used in connection with other Federal laws, such as the Home Mortgage Disclosure Act. See 12 U.S.C. 2808; 12 CFR 1003.2. On March 22, 2007, and effective July 1, 2007, the former Office of Thrift Supervision (OTS), the agency then responsible for regulating savings associations, adopted an annual adjustment formula consistent with that of the other Federal banking agencies in its CRA rule previously set forth at 12 CFR part 563e. 72 FR 13429 (Mar. 22, 2007).

Pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), 1 effective July 21, 2011, CRA rulemaking authority for Federal and state savings associations was transferred from the OTS to the OCC, and the OCC subsequently republished, at 12 CFR part 195, the CRA regulations applicable to those institutions. 2 In addition, the Dodd-Frank Act transferred responsibility for supervision of savings and loan holding companies and their non-depository subsidiaries from the OTS to the Board, and the Board subsequently amended its CRA regulation to reflect this transfer of supervisory authority. 3

The OCC has determined that it will adjust the asset-size criteria for institutions that are subject to OCC-issued CRA regulations, including national banks and Federal and state savings associations, by a means separate from this rulemaking process.

The threshold for small banks was revised most recently in December 2021 and became effective January 1, 2022. 86 FR 71813 (Dec. 20, 2021). The current CRA regulations provide that banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.384 billion are small banks. Small banks with assets of at least $346 million as of December 31 of both of the prior two calendar years and less than $1.384 billion as of December 31 of either of the prior two calendar years are intermediate small banks. 12 CFR 228.12(u)(1) and 345.12(u)(1). This joint final rule revises these thresholds.

During the 12-month period ending November 2022, the CPI-W increased by 8.60 percent. As a result, the Agencies are revising 12 CFR 228.12(u)(1) and 345.12(u)(1) to make this annual adjustment. Beginning January 1, 2023, banks that, as of December 31 of either of the prior two calendar years, had assets of less than $1.503 billion are small banks. Small banks with assets of at least $376 million as of December 31 of both of the prior two calendar years and less than $1.503 billion as of December 31 of either of the prior two calendar years are intermediate small banks. The Agencies also publish current and historical asset-size thresholds on the website of the Federal Financial Institutions Examination Council at https://www.ffiec.gov/cra/.

Under 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA), an agency may, for good cause, find (and incorporate the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.

The amendments to the regulations to adjust the asset-size thresholds for small and intermediate small banks result from the application of a formula established by a provision in the respective CRA regulations that the Agencies previously published for comment. See 70 FR 12148 (Mar. 11, 2005), 70 FR 44256 (Aug. 2, 2005), 71 FR 67826 (Nov. 24, 2006), and 72 FR 13429 (Mar. 22, 2007). As a result, §§ 228.12(u)(1) and 345.12(u)(1) of the Agencies' respective CRA regulations are amended by adjusting the asset-size thresholds as provided for in §§ 228.12(u)(2) and 345.12(u)(2).

Accordingly, the Agencies' rules provide no discretion as to the computation or timing of the revisions to the asset-size criteria. For this reason, the Agencies have determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary.

The effective date of this joint final rule is January 1, 2023. Under 5 U.S.C. 553(d)(3) of the APA, the required publication or service of a substantive rule shall be made not less than 30 days before its effective date, except, among other things, as provided by the agency for good cause found and published with the rule. Because this rule adjusts asset-size thresholds consistent with the procedural requirements of the CRA rules, the Agencies conclude that it is not substantive within the meaning of the APA's delayed effective date provision. Moreover, the Agencies find that there is good cause for dispensing with the delayed effective date requirement, even if it applied, because their current rules already provide notice that the small and intermediate small asset-size thresholds will be adjusted as of December 31 based on 12-month data as of the end of November each year.

The Regulatory Flexibility Act (RFA) does not apply to a rulemaking when a general notice of proposed rulemaking is not required. 5 U.S.C. 603 and 604. As noted previously, the Agencies have determined that it is unnecessary to publish a general notice of proposed rulemaking for this joint final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) states that no agency may conduct or sponsor, nor is the respondent required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Agencies have determined that this final rule does not create any new, or revise any existing, collections of information pursuant to the Paperwork Reduction Act. Consequently, no information collection request will be submitted to the OMB for review.

Section 302 of the Riegle Community Development and Regulatory Improvement Act of 1994 (RCDRIA) (12 U.S.C. 4802) requires that each Federal banking agency, in determining the effective date and administrative compliance requirements for new regulations that impose additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), consider, consistent with principles of safety and soundness and the public interest, any administrative burdens that such regulations would place on depository institutions, including small depository institutions, and customers of depository institutions, as well as the benefits of such regulations. 4 In addition, new regulations and amendments to regulations that impose additional reporting, disclosures, or other new requirements on IDIs generally must take effect on the first day of a calendar quarter that begins on or after the date on which the regulations are published in final form. 5

Because the final rule does not impose additional reporting, disclosure, or other requirements on IDIs, section 302 of RCDRIA does not apply. Nevertheless, the requirements of section 302 of RCDRIA, and the administrative burdens and benefits of the final rule, were considered as part of the overall rulemaking process.

For purposes of Congressional Review Act, the OMB makes a determination as to whether a final rule constitutes a “major” rule. 6 If a rule is deemed a “major rule” by the OMB, the Congressional Review Act generally provides that the rule may not take effect until at least 60 days following its publication. 7

The Congressional Review Act defines a “major rule” as any rule that the Administrator of the Office of Information and Regulatory Affairs of the OMB finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 8 As required by the Congressional Review Act, the FDIC will submit the final rule and other appropriate reports to Congress and the Government Accountability Office for review.

For the reasons set forth in the common preamble, the Board of Governors of the Federal Reserve System amends part 228 of chapter II of title 12 of the Code of Federal Regulations as follows:

For the reasons set forth in the common preamble, the Federal Deposit Insurance Corporation amends part 345 of chapter III of title 12 of the Code of Federal Regulations to read as follows:

The Bureau is amending the regulation text and official interpretations for Regulation Z, which implements TILA, to update the dollar amounts of various thresholds that it must adjust annually to reflect the annual percentage change in the CPI as published by the Bureau of Labor Statistics (BLS). Specifically, for open-end consumer credit plans under TILA, the threshold that triggers requirements to disclose minimum interest charges will remain unchanged at $1.00 in 2023. For HOEPA loans, the adjusted total loan amount threshold for high-cost mortgages in 2023 will be $24,866. The adjusted points-and-fees dollar trigger for high-cost mortgages in 2023 will be $1,243. For qualified mortgages (QMs) under the General QM loan definition in § 1026.43(e)(2), the thresholds for the spread between the annual percentage rate (APR) and the average prime offer rate (APOR) in 2023 will be: 2.25 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $124,331; 3.5 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $74,599 but less than $124,331; 6.5 or more percentage points for a first-lien covered transaction with a loan amount less than $74,599; 6.5 or more percentage points for a first-lien covered transaction secured by a manufactured home with a loan amount less than $124,331; 3.5 or more percentage points for a subordinate-lien covered transaction with a loan amount greater than or equal to $74,599; or 6.5 or more percentage points for a subordinate-lien covered transaction with a loan amount less than $74,599. For all categories of QMs, the thresholds for total points and fees in 2023 will be 3 percent of the total loan amount for a loan greater than or equal to $124,331; $3,730 for a loan amount greater than or equal to $74,599 but less than $124,331; 5 percent of the total loan amount for a loan greater than or equal to $24,866 but less than $74,599; $1,243 for a loan amount greater than or equal to $15,541 but less than $24,866; and 8 percent of the total loan amount for a loan amount less than $15,541. 1

Sections 1026.6(b)(2)(iii) and 1026.60(b)(3) of Regulation Z implement sections 127(a)(3) and 127(c)(1)(A)(ii)(II) of TILA. Sections 1026.6(b)(2)(iii) and 1026.60(b)(3) require creditors to disclose any minimum interest charge exceeding $1.00 that could be imposed during a billing cycle. These provisions also state that, for open-end consumer credit plans, the Bureau shall calculate the minimum interest charge thresholds annually using the CPI that was in effect on the preceding June 1; the Bureau uses the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for this adjustment. 2 If the cumulative change in the adjusted minimum value derived from applying the annual CPI-W level to the current amounts in §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) has risen by a whole dollar, the Bureau will increase the minimum interest charge amounts set forth in the regulation by $1.00. The Bureau bases its 2023 adjustment analysis on the CPI-W index in effect on June 1, 2022, as reported by BLS on May 11, 2022. 3 As a result, the adjustment reflects the percentage change in the CPI-W from April 2021 to April 2022. The adjustment analysis accounts for an 8.9 percent increase in the CPI-W from April 2021 to April 2022. This increase in the CPI-W when applied to the current amounts in §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) does not trigger an increase in the minimum interest charge threshold of at least $1.00, and the Bureau, therefore, is not amending §§ 1026.6(b)(2)(iii) and 1026.60(b)(3).

Section 1026.32(a)(1)(ii) of Regulation Z implements section 1431 of the Dodd-Frank Act, 4 which amended the HOEPA points-and-fees coverage test. Under § 1026.32(a)(1)(ii)(A) and (B), in assessing whether a transaction is a high-cost mortgage due to points and fees the creditor is charging, the applicable points-and-fees coverage test depends on whether the total loan amount is for $20,000 or more, or for less than $20,000. Section 1026.32(a)(1)(ii) provides that the Bureau recalculate this threshold amount annually using the CPI index in effect on the preceding June 1; the Bureau uses the CPI-U for this adjustment. 5 The Bureau bases the 2023 adjustment on the CPI-U index in effect on June 1, 2022, as reported by BLS on May 11, 2022. As a result, the adjustment reflects the percentage change in the CPI-U from April 2021 to April 2022, which is an increase of 8.3 percent. The adjustment to $24,866 here reflects the 8.3 percent increase in the CPI-U index from April 2021 to April 2022 rounded to the nearest whole dollar amount for ease of compliance.

Under § 1026.32(a)(1)(ii)(B), the HOEPA points-and-fees threshold is the lesser of 8 percent of the total loan amount or $1,000. Section 1026.32(a)(1)(ii)(B) provides that the Bureau will recalculate the dollar amount threshold annually using the CPI index in effect on the preceding June 1; the Bureau uses the CPI-U for this adjustment. The Bureau bases the 2023 adjustment on the CPI-U index in effect on June 1, 2022, as reported by BLS on May 11, 2022. As a result, the adjustment reflects the percentage change in CPI-U from April 2021 to April 2022, which is an increase of 8.3 percent. The adjustment to $1,243 here reflects the 8.3 percent increase in the CPI-U index from April 2021 to April 2022 rounded to the nearest whole dollar amount for ease of compliance.

The Bureau's Regulation Z implements sections 1411 and 1412 of the Dodd-Frank Act, which generally require creditors to make a reasonable, good-faith determination of a consumer's ability to repay any consumer credit transaction secured by a dwelling and establishes certain protections from liability under this requirement for QMs.

On December 10, 2020, the Bureau issued a final rule amending the General QM loan definition in § 1026.43(e)(2). 6 The final rule established pricing thresholds in § 1026.43(e)(2)(vi)(A) through (F) based on the spread of a loan's APR compared to the APOR for a comparable transaction as of the date the interest rate is set. To satisfy the General QM loan definition, a loan's APR must be below the applicable pricing threshold and must satisfy other requirements in § 1026.43(e)(2). Specifically, under § 1026.43(e)(2)(vi), a covered transaction is a QM if the APR does not exceed the APOR for a comparable transaction as of the date the interest rate is set by: 2.25 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $110,260 (indexed for inflation); 3.5 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $66,156 (indexed for inflation) but less than $110,260 (indexed for inflation); 6.5 or more percentage points for a first-lien covered transaction with a loan amount less than $66,156 (indexed for inflation); 6.5 or more percentage points for a first-lien covered transaction secured by a manufactured home with a loan amount less than $110,260 (indexed for inflation); 3.5 or more percentage points for a subordinate-lien covered transaction with a loan amount greater than or equal to $66,156 (indexed for inflation); or 6.5 or more percentage points for a subordinate-lien covered transaction with a loan amount less than $66,156 (indexed for inflation). 7 The rule states that the Bureau will adjust the loan amounts in § 1026.43(e)(2)(vi) annually on January 1 by the annual percentage change in the CPI-U that was in effect on the preceding June 1. 8

Regulation Z also contains points and fees limits applicable to all categories of QMs. Under § 1026.43(e)(3)(i), a covered transaction is not a QM if the transaction's total points and fees exceed: 3 percent of the total loan amount for a loan amount greater than or equal to $100,000 (indexed for inflation); $3,000 (indexed for inflation) for a loan amount greater than or equal to $60,000 (indexed for inflation) but less than $100,000 (indexed for inflation); 5 percent of the total loan amount for loans greater than or equal to $20,000 (indexed for inflation) but less than $60,000 (indexed for inflation); $1,000 (indexed for inflation) for a loan amount greater than or equal to $12,500 (indexed for inflation) but less than $20,000 (indexed for inflation); or 8 percent of the total loan amount for loans less than $12,500 (indexed for inflation). Section 1026.43(e)(3)(ii) provides that the Bureau will recalculate the limits and loan amounts in § 1026.43(e)(3)(i) annually for inflation using the CPI-U index in effect on the preceding June 1.

The Bureau bases the 2023 adjustment to the loan amounts applicable to the pricing thresholds for the General QM loan definition and the points and fees limits for all categories of QM on the CPI-U index in effect on June 1, 2022, as reported by BLS on May 11, 2022. As a result, the adjustment reflects the percentage change in CPI-U from April 2021 to April 2022, which is an increase of 8.3 percent. The 2023 adjustment  9 adopted here reflects an 8.3 percent increase in the CPI-U index for this period rounded to whole dollars for ease of compliance.

The minimum interest charge amounts for §§ 1026.6(b)(2)(iii) and 1026.60(b)(3) will remain unchanged at $1.00 for the year 2023. Accordingly, the Bureau is not amending these sections of Regulation Z.

Effective January 1, 2023, for purposes of determining under § 1026.32(a)(1)(ii) the points-and-fees coverage test under HOEPA to which a transaction is subject, the total loan amount threshold figure is $24,866, and the adjusted points-and-fees dollar trigger under § 1026.32(a)(1)(ii)(B) is $1,243. If the total loan amount for a transaction is $24,866 or more, and the points-and-fees amount exceeds 5 percent of the total loan amount, the transaction is a high-cost mortgage. If the total loan amount for a transaction is less than $24,866, and the points-and-fees amount exceeds the lesser of the adjusted points-and-fees dollar trigger of $1,243 or 8 percent of the total loan amount, the transaction is a high-cost mortgage. The Bureau is amending comments 32(a)(1)(ii)-1 and -3, which list the adjustments for each year, to reflect for 2023 the new points-and-fees dollar trigger and the new loan amount dollar threshold, respectively.

Effective January 1, 2023, to satisfy § 1026.43(e)(2)(vi) under the General QM loan definition, the annual percentage rate may not exceed the average prime offer rate for a comparable transaction as of the date the interest rate is set by the following amounts: 2.25 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $124,331; 3.5 or more percentage points for a first-lien covered transaction with a loan amount greater than or equal to $74,599 but less than $124,331; 6.5 or more percentage points for a first-lien covered transaction with a loan amount less than $74,599; 6.5 or more percentage points for a first-lien covered transaction secured by a manufactured home with a loan amount less than $124,331; 3.5 or more percentage points for a subordinate-lien covered transaction with a loan amount greater than or equal to $74,599; or 6.5 or more percentage points for a subordinate-lien covered transaction with a loan amount less than $74,599. Accordingly, the Bureau is amending comment 43(e)(2)(vi)-3, which lists the adjustments for each year, to reflect the new dollar threshold amounts for § 1026.43(e)(2)(vi)(A) through (F).

Effective January 1, 2023, a covered transaction is not a qualified mortgage if, pursuant to § 1026.43(e)(3), the transaction's total points and fees exceed 3 percent of the total loan amount for a loan amount greater than or equal to $124,331; $3,730 for a loan amount greater than or equal to $74,599 but less than $124,331; 5 percent of the total loan amount for loans greater than or equal to $24,866 but less than $74,599; $1,243 for a loan amount greater than or equal to $15,541 but less than $24,866; or 8 percent of the total loan amount for loans less than $15,541. The Bureau is amending comment 43(e)(3)(ii)-1, which lists the adjustments for each year, to reflect the new dollar threshold amounts for 2023.

The Administrative Procedure Act does not require notice and opportunity for public comment if an agency finds that notice and public comment are impracticable, unnecessary, or contrary to the public interest. 10 Pursuant to this final rule, the Bureau adds comments 32(a)(1)(ii)-1.ix, 32(a)(1)(ii)-3.ix, 43(e)(2)(vi)-3.ii, and 43(e)(3)(ii)-1.ix to update the exemption thresholds. The amendments in this final rule are technical and non-discretionary, as they merely apply the method previously established in Regulation Z for determining adjustments to the thresholds. For these reasons, the Bureau has determined that publishing a notice of proposed rulemaking and providing opportunity for public comment are unnecessary. The amendments, therefore, are adopted in final form.

The Safety and Soundness Act requires FHFA to establish several annual housing goals for both single-family and multifamily mortgages purchased by the Enterprises. 1 The achievement of the annual housing goals is one measure of the extent to which the Enterprises are meeting their public purposes, which include “an affirmative obligation to facilitate the financing of affordable housing for low- and moderate-income families in a manner consistent with their overall public purposes, while maintaining a strong financial condition and a reasonable economic return.”  2

Since 2010, FHFA has established annual housing goals for Enterprise purchases of both single-family and multifamily mortgages by rulemaking, consistent with the requirements of the Safety and Soundness Act. FHFA's most recent final rule amending the housing goals regulation was issued in December 2021 and established benchmark levels for the single-family housing goals for 2022 through 2024 and benchmark levels for the multifamily housing goals for 2022 only. 3 On August 18, 2022, FHFA issued a proposed rule that proposed a new methodology and benchmark levels for the multifamily housing goals for 2023 and 2024. 4

If, after publication of the final rule establishing the multifamily housing goals for 2023 and 2024, FHFA determines that any of the multifamily housing goals or subgoals should be adjusted in light of market conditions to ensure the safety and soundness of the Enterprises, or for any other reason, FHFA will take any steps that are necessary and appropriate to adjust the goal(s) such as reducing the benchmark level(s) through the processes in the existing regulation.

FHFA may also take other actions consistent with the Safety and Soundness Act and the Enterprise housing goals regulation based on new information or developments that occur after publication of the final rule. For example, under the Safety and Soundness Act and the Enterprise housing goals regulation, FHFA may reduce the benchmark levels in response to an Enterprise petition for any of the single-family or multifamily housing goals or subgoals in a particular year based on a determination by FHFA that: (1) market and economic conditions or the financial condition of the Enterprise require a reduction; or (2) efforts to meet the goal or subgoal would result in the constraint of liquidity, over-investment in certain market segments, or other consequences contrary to the intent of the Safety and Soundness Act or the purposes of the Enterprises' charter acts. 5

The Safety and Soundness Act and the Enterprise housing goals regulation also take into consideration the possibility that achievement of a particular housing goal or subgoal may or may not have been feasible for an Enterprise to achieve. If FHFA determines that a housing goal or subgoal was not feasible for an Enterprise to achieve, then the statute and regulation provide for no further enforcement of that housing goal or subgoal for that year. 6 If FHFA determines that an Enterprise failed to meet a housing goal or subgoal and that achievement of the housing goal or subgoal was feasible, then the statute and regulation provide FHFA with discretionary authority to require the Enterprise to submit a housing plan describing the specific actions the Enterprise will take to improve its housing goals or subgoals performance.

The actions described in this section provide FHFA some flexibility to respond to new information or developments that occur after publication of the final rule. As proposed, the new methodology for establishing the benchmarks in the final rule sets the levels as a percentage of goal-eligible units backing mortgages acquired by each Enterprise, 7 which could reduce the likelihood that FHFA will be required to modify the benchmark levels in response to unexpected market developments after publication of the final rule.

On September 6, 2008, FHFA placed each Enterprise into conservatorship. Although the Enterprises remain in conservatorship at this time, they continue to have the mission of supporting a stable and liquid national market for residential mortgage financing. FHFA has continued to establish annual housing goals for the Enterprises and to assess their performance under the housing goals each year during conservatorship.

FHFA published a Notice of Proposed Rulemaking (NPRM or proposed rule) in the Federal Register on August 18, 2022, that proposed a new methodology for measuring the Enterprise multifamily housing goals. Rather than measuring the multifamily housing goals based on an absolute number of affordable units in multifamily properties financed by mortgages purchased by the Enterprises, FHFA proposed using percentages of affordable units in multifamily properties financed by mortgages purchased by the Enterprises. The NPRM also proposed specific benchmark levels for each of the multifamily housing goals. The public comment period for the proposed rule ended on October 17, 2022.

Overview. FHFA received 77 comment letters from organizations and members of the public in response to the proposed rule. Comment letters were submitted by both Fannie Mae and Freddie Mac, as well as nonprofit organizations, policy advocacy organizations, and trade associations representing lenders, homebuilders, and other mortgage market participants. FHFA received one joint letter from two policy organizations focused on renters and one letter signed by 35 housing and community development organizations. FHFA also received 64 comment letters from members of the public and organizations which were part of a letter-writing campaign concerned about the high cost of rent and the lack of tenant protections.

FHFA has reviewed and considered all of the comment letters received in response to the NPRM. A number of those letters raised issues that are unrelated to the housing goals or are beyond the scope of the proposed rule. As a result, those issues are not addressed in this final rule. Specific provisions of the proposal and comments received in response to those provisions are discussed below.

Change in methodology for measuring the multifamily goals. Although not all of the comment letters received in response to the NPRM addressed the proposed change in methodology, those that did supported the proposed change. The Enterprises, trade organizations, policy advocacy organizations, and one member of the supported the proposed methodology change, stating that it would be more responsive to market conditions, offer flexibility for the Enterprises, and enable the Enterprises to maintain a focus on affordability while facilitating their ability to provide necessary liquidity.

Although not opposed to the proposed change, a trade association representing homebuilders stressed the importance of preserving the Enterprises' countercyclical role and expressed concern that the proposed methodology could potentially result in a decline in the absolute number of affordable units acquired by each Enterprise.

The Safety and Soundness Act provides that the Director shall, by regulation, establish a single annual goal, by either unit or dollar volume, of purchases by each Enterprise of mortgages on multifamily housing that finance dwelling units affordable to low-income families. 8 FHFA has established the multifamily housing goals based on a specific number of units each year since 2010. However, the volume of Enterprise multifamily purchases has varied considerably from year to year due to a variety of market and economic conditions. Changing to a percentage-based methodology will better reflect the market and economic conditions the Enterprises encounter in acquiring mortgages. Percentage-based multifamily goals will require that the Enterprises continue to support the affordable segment of the market in years where their multifamily mortgage acquisitions increase, while ensuring that the goals remain feasible in years where the Enterprise multifamily mortgage acquisitions are lower.

FHFA notes that setting the multifamily goal benchmark levels as the percentage share of all goal-eligible units backing mortgages acquired by the Enterprise that are affordable units is consistent with the statutory requirement that the multifamily housing goal be based on unit or dollar volume. While the Safety and Soundness Act defines the single-family housing goals and multifamily housing goals using different terms, the difference is focused on the single-family housing goals being based on mortgages and the multifamily housing goals being based on units or dollar volume. FHFA does not interpret the difference between the single-family and multifamily housing goals to prohibit using percentages for the multifamily housing goals. Setting the multifamily housing goals as a minimum percentage also aligns the multifamily goals more closely with the statutory factors that FHFA is required to consider in setting the multifamily housing goals. Those factors include consideration of national multifamily mortgage credit needs and the size of the multifamily mortgage market for housing affordable to low-income and very low-income families. Because market conditions can change significantly each year, it is difficult to identify in advance a specific number of units for the multifamily housing goals that would be ambitious yet feasible for the Enterprises. Percentage-based multifamily housing goals address this difficulty and are intended to ensure the Enterprises appropriately support the housing finance market while fulfilling their affordable housing mission requirements each year.

Therefore, FHFA is adopting as final the percentage-based methodology for measuring the multifamily goals as set forth in the proposed rule. The new methodology will not affect FHFA's ability to track, report, and verify data on multifamily units backing mortgages purchased by the Enterprises, including data on affordable units by income level. FHFA will continue to closely monitor Enterprise performance on the multifamily housing goals and trends in the multifamily market in general.

Multifamily benchmark levels. Both Enterprises and groups representing bankers, mortgage bankers, and lenders expressed support for the proposed benchmark levels for all three of the multifamily housing goals. However, a trade association representing homebuilders, a policy advocacy organization representing housing finance agencies, and 35 housing and community development nonprofits urged FHFA to raise the proposed benchmark levels to be in line with, or higher than, the Enterprises' recent performance. A policy advocacy organization maintained that the proposed benchmark levels should be higher given the tremendous demand for affordable housing and the need to ensure that the Enterprises fulfill their countercyclical role during economic downturns. This commenter further argued that higher benchmark levels would better align with FHFA's recent focus on increasing Enterprise support for affordable housing. One comment letter, endorsed by 35 housing and community development organizations, supported the change in methodology but recommended setting the benchmark levels above recent Enterprise performance. Section IV below provides additional detail on the benchmark levels set in this final rule.

Conservatorship Scorecard Cap. Comment letters from Fannie Mae, a trade organization representing mortgage bankers, and two policy advocacy organizations representing renters discussed the interaction between the multifamily benchmark levels and the Conservatorship Scorecard Cap. Although some comments were beyond the scope of the proposed rule, FHFA took the comments into consideration in finalizing the Conservatorship Scorecard Cap for 2023. 9 FHFA notes that the methodology adopted in the final rule for measuring the multifamily housing goals sets the goals as percentages rather than number of units and was designed to better harmonize the requirements of the housing goals and the Conservatorship Scorecard Cap, which is one of the objectives discussed by these organizations.

Multifamily data. Two policy advocacy organizations representing renters requested that FHFA study and publish findings on various issues related to the multifamily market. FHFA notes that both the Enterprises and the Agency regularly publish performance data on the Enterprises' multifamily acquisitions, including in the Annual Housing Activities Reports and Annual Mortgage Reports produced by the Enterprises in March each year, the Annual Housing Report published by FHFA in October each year, and in FHFA's preliminary and final determination letters on the Enterprises' annual housing goals performance, all of which are posted to the FHFA website. However, FHFA plans to continue to identify ways to improve and enhance its ability to share multifamily research and analysis with the public.

Other issues. A number of commenters raised concerns that went beyond the scope of the proposed rule. For example, FHFA received numerous comments focused on a variety of renter issues and concerns. One comment letter signed by 35 housing and community development organizations urged FHFA to consider ways to address issues such as displacement and substandard living conditions for low-income tenants and tenants of color. The comment letter provided recommendations for underwriting, tracking, and evaluating the affordability of rental units, as well as holding landlords accountable for the needs of their tenants. FHFA notes in regard to this comment that the Safety and Soundness Act requires FHFA to determine affordability for purposes of the housing goals based on whether the rent level is at or below 30 percent of the maximum income level for the relevant category, adjusted for unit size. 10 FHFA also received 64 comment letters from members of the public and organizations concerned about the high cost of rent and the lack of tenant protections for renters. The comment letters were submitted as part of a letter-writing campaign organized by an advocacy group. The commenters cited the tenant protections that were offered during the COVID-19 pandemic as part of the Enterprise forbearance programs as positive actions taken by FHFA. These letters specifically urged FHFA to regulate rents for all federally-backed mortgages in order to support sustainable, affordable housing. FHFA recognizes the significant issues that families face in finding affordable rental housing and in remaining secure in the face of economic uncertainty. Section IV below includes additional discussion of these affordability challenges. FHFA also has met with stakeholders to discuss these issues and will continue working to identify ways that FHFA and the Enterprises can support renters across the country.

The Safety and Soundness Act requires FHFA to establish annual multifamily housing goals for purchases by each Enterprise of mortgages on multifamily housing that finance dwelling units affordable to low-income and very low-income families. In accordance with the Safety and Soundness Act, the final rule establishes the multifamily housing goals for 2023 and 2024 based on the percentage of affordable units in multifamily properties financed by mortgages purchased by the Enterprise.

The final rule establishes the benchmark levels for the multifamily goal and subgoals for 2023 and 2024 as follows:

The final rule does not make any changes to the requirements for determining which multifamily mortgage purchases are counted, or not counted, as those requirements continue to be defined in the existing housing goals regulation. The Enterprises will continue to report on the number of multifamily units acquired each year, including data on units that are affordable to low-income households, very low-income households, and low-income households in small multifamily properties. The Enterprise housing goals regulation defines a small multifamily property as a property with 5 to 50 units. In order to meet each of the multifamily goals, each Enterprise will be required to ensure that the percentage of units that are affordable meets or exceeds the applicable benchmark level.

While the final rule does not change the requirements for determining which multifamily mortgages are eligible to be counted towards the goals, the final rule makes technical revisions to § 1282.15 to reflect the new methodology. As in the proposed rule, the final rule revises § 1282.15(c) to express the percentage of affordable units in multifamily properties financed by mortgages purchased by the Enterprises in terms of a defined numerator and denominator. As revised, § 1282.15(c) mirrors the description of the single-family housing goals that currently exists in § 1282.15(a), which already measures the single-family housing goals as percentages. FHFA did not receive comments on these specific revisions in the proposed rule.

In addition, as in the proposed rule, the final rule amends § 1282.15(e)(3) to clarify the treatment of rental units with missing affordability information. Under the existing regulation, an Enterprise is permitted to estimate the affordability of such units, up to a maximum of 5 percent of the total number of rental units in properties securing multifamily mortgages purchased by the Enterprise in the current year. Rental units with missing affordability information are not counted for purposes of the multifamily housing goals to the extent that the number of such units exceeds the nationwide maximum of 5 percent. Rental units also are excluded if it is not possible to estimate the affordability of such units. The final rule clarifies that under the new methodology, any units with missing affordability information in excess of the 5 percent nationwide maximum will be excluded from the numerator of the multifamily goals but will be included in the denominator. This treatment is consistent with the objective to encourage the Enterprises to obtain affordability information whenever possible. The final rule excludes rental units with missing affordability information from both the numerator and the denominator if it is not possible to estimate the affordability of such units. This treatment reflects the fact that the availability of information needed to estimate affordability is outside the Enterprises' control.

In establishing benchmark levels for the multifamily housing goals for 2023 and 2024, FHFA has considered the statutory factors set forth in section 1333(a)(4) of the Safety and Soundness Act. The statutory factors are:

1. National multifamily mortgage credit needs and the ability of the Enterprises to provide additional liquidity and stability for the multifamily mortgage market;

2. The performance and effort of the Enterprises in making mortgage credit available for multifamily housing in previous years;

3. The size of the multifamily mortgage market for housing affordable to low-income and very low-income families, including the size of the multifamily markets for housing of a smaller or limited size;

4. The ability of the Enterprises to lead the market in making multifamily mortgage credit available, especially for multifamily housing affordable to low-income and very low-income families;

5. The availability of public subsidies; and

6. The need to maintain the sound financial condition of the Enterprises. 11

FHFA considered each of these required statutory factors in setting the benchmark levels for the multifamily housing goals. The analysis below describes trends in the overall multifamily mortgage market as they apply to setting the final benchmark levels. Additional analyses of the trends in the overall multifamily mortgage market can be found in the proposed rule. 12

Overall economic outlook. Many factors impact the affordable housing market as a whole, and changes to any one of them could significantly affect the ability of the Enterprises to meet the housing goals. FHFA will continue to monitor the affordable housing market and take these factors into account when considering the feasibility of the goals.

On November 2, 2022, the Federal Reserve noted that despite recent strong job gains and a low unemployment rate, inflation remains elevated. 13 The Federal Reserve noted that the invasion of Ukraine by Russia and related events are causing additional upward pressure on inflation and affecting global economic activity. In an effort to achieve maximum employment and inflation of 2 percent in the long run, the Federal Open Market Committee (FOMC) raised its target range for the federal funds rate to 3.75 percent to 4 percent, with plans to increase the target range further as appropriate until its goals are achieved. 14

Interest rates are very important determinants of mortgage market trajectory. Moody's November 2022 consensus forecast projects that 30-year fixed-rate mortgage interest rates will rise from an annual average rate of 3.0 percent in 2021 to 5.4 percent in 2022, then rise even further to 6.4 percent in 2023, before declining to 5.4 percent in 2024. 15 As of December 1, 2022, the weekly average rate for a 30-year fixed-rate mortgage was 6.49 percent. 16 Moody's forecast also projects that the unemployment rate will rise from 3.7 percent in 2022 to 4.3 percent in 2023, and to 4.5 percent in 2024. In addition, Moody's projects a slight decline in per capita disposable nominal income from $56,100 in 2021 to $55,800 in 2022, before rising to $61,300 by 2024. Furthermore, Moody's forecast estimates that the annual average inflation rate will decline from a projected 40-year high of 8.1 percent in 2022 to 2.5 percent in 2024. The year-over-year inflation rate for October 2022 was 7.7 percent. 17

Multifamily mortgage market. FHFA's consideration of the multifamily mortgage market addresses the size of and competition within the market, as well as the subset of the market that is affordable to low-income and very low-income renters. In October 2022, the Mortgage Bankers Association (MBA) forecast that multifamily mortgage originations would decline by 7 percent from the 2021 record of $487 billion to $455 billion in 2022, then to $451 billion in 2023. 18 However, the MBA also noted that while this forecast is based on their baseline economic forecast, the outlook is currently uncertain and further declines in multifamily mortgage originations could not be ruled out. 19

Affordability in the multifamily mortgage market. In October 2022, the Urban Institute stated that the affordable housing market had changed dramatically in the past year, with both rents and home prices rising more than 13 percent and interest rates more than doubling relative to a year earlier. 20 The Joint Center for Housing Studies of Harvard University's (JCHS) State of the Nation's Housing Report 2022 found that year-over-year rent growth in the professionally managed segment of the apartment market surged to a record 11.6 percent at the end of 2021, and stayed high at the beginning of 2022. 21 In comparison, the average annual rent increase in the pre-pandemic years of 2015-2019 was 3.2 percent. 22

The Safety and Soundness Act requires FHFA to determine affordability for purposes of the Enterprise housing goals based on a family's rent and utility expenses not exceeding 30 percent of AMI. 23 The JCHS Report describes the growing presence of cost-burdened renters, particularly among low-income and very low-income households. 24 A household is considered cost-burdened if they are spending more than 30 percent of their income on housing, or severely cost-burdened if they are spending more than 50 percent of their income on housing. The Report shows that the share of cost-burdened renters across all income segments rose from 43.6 percent in 2019 to 46.2 percent in 2020. 25 The Report also shows that 82.6 percent of renters earning less than $15,000 and 77.9 percent of renters earning between $15,000 and $29,999 were cost-burdened in 2020. The share of cost-burdened renters earning between $30,000 and $44,999 increased the most, rising approximately 9.0 percent—from 49.2 percent in 2019 to 58.3 percent in 2020. 26

The JCHS Report also notes the significant rise in new rental supply. The Report notes that in 2021, multifamily starts reached 474,000 units, the highest since the mid-1980s,

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2013-05-13, Amendment 39-17385 (78 FR 17080, March 20, 2013) (AD 2013-05-13). AD 2013-05-13 applied to certain RRD BR700-710 series turbofan engines. AD 2013-05-13 required replacing the affected fuel pump splined couplings. The FAA issued AD 2013-05-13 to prevent failure of the engine and loss of the airplane.

The NPRM published in the Federal Register on September 26, 2022 (87 FR 58289). The NPRM was prompted by EASA AD 2022-0033, dated March 03, 2022 (EASA AD 2022-0033) (referred to after this as “the MCAI”), issued by EASA, which is the Technical Agent for the Member States of the European Union. EASA AD 2022-0033 states that since the certification of the BR700-710 engines, several changes have been made to the TLM by the manufacturer, introducing new and more restrictive instructions, including the replacement of the fuel pump splined coupling. EASA AD 2022-0033 expands the applicability to include BR700-710D5-21 model turbofan engines and specifies accomplishing the actions in the TLM.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1234.

In the NPRM, the FAA proposed to expand the applicability to include BR700-710D5-21 model turbofan engines. In the NPRM, the FAA also proposed to require accomplishing the actions specified in EASA AD 2022-0033, described previously, except for any difference or exceptions identified in the NPRM. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received one comment from an anonymous commenter that supported the NPRM without change.

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

The FAA reviewed EASA AD 2022-0033, which describes actions for operators to revise the ALS of their existing approved AMP in accordance with the manufacturer's revised TLM, as applicable to each engine model. EASA AD 2022-0033 also describes actions for performing inspections, replacing life limited parts, and performing corrective actions for any finding of discrepancy as referenced in the TLM.

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

The FAA also reviewed RRD Non-Modification Service Bulletin (NMSB) BR700-72-A900509, Revision 5, dated March 07, 2022. This service information revises previous versions of this NMSB because the specified procedures have been incorporated into the applicable TLM.

The FAA also reviewed Rolls-Royce TLM T-710-1BR, Revision 70, for engine model BR700-710A1-10; TLM T-710-2BR, Revision 67, for engine model BR700-710A2-20; TLM T-710-4BR, Revision 40, for engine model BR700-710C4-11 (each dated October 13, 2021); and TLM T-710-8BR, Revision 18, for engine model BR700-710D5-21 (undated). This service information specifies thresholds for certain standard equipment; critical, sensitive, and unclassified parts; and life limited parts. This service information also specifies the replacement threshold for the fuel pump vespel coupling (fuel pump splined coupling).

The FAA estimates that this AD affects 2,050 engines installed on airplanes of U.S. Registry. The FAA estimates that 1,350 engines installed on airplanes of U.S. Registry have already performed the initial replacement of the fuel pump splined coupling.

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.

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

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

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

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

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

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

The FAA published a final rule for Docket No. FAA-2022-1472 in the Federal Register (87 FR 74505; December 6, 2022), to update the ARP for the Manchester, NH airport. Subsequent to publication, the FAA determined that the ARP longitude geographic coordinate was in error. This rule corrects that error by changing the references from “long. 71°45′39″ W” to “long. 71°26′09″ W”. This is an editorial change only to match the FAA's National Airspace System Resource database information.

Class C airspace areas are published in paragraph 4000 of FAA Order 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class C airspace listed in this document will be published subsequently in FAA Order JO 7400.11.

The reference to the Manchester ARP longitude coordinate published in the Federal Register of December 6, 2022 (87 FR 74505), FR Doc. 2022-26458, is corrected as follows:

1. On page 74506, in column 2, under the heading “The Rule” revise “The “Manchester Airport” name is changed to “Manchester Boston Regional Airport”, to match the Airport Master Record database, and the ARP geographic coordinates are updated from “lat. 42°56′00″ N, long. 71°26′16″ W” to “at. 42°55′58″ N, long. 71°45′39″ W” to read “The “Manchester Airport” name is changed to “Manchester Boston Regional Airport”, to match the Airport Master Record database, and the ARP geographic coordinates are updated from “lat. 42°56′00″ N, long. 71°26′16″ W” to “lat. 42°55′58″ N, long. 71°26′09″ W.”

2. On page 74506, in column 3, under the heading “ANE NH C Manchester, NH [Amended]” revise “Manchester Boston Regional Airport, NH (Lat. 42°55′58″ N, long. 71°45′39″ W)” to read “Manchester Boston Regional Airport, NH (Lat. 42°55′58″ N, long. 71°26′09″ W)”.

Congress, pursuant to 49 U.S.C. 44718, mandated that the Secretary of Transportation require the public to provide notice to FAA of “the construction, alteration, establishment, or expansion, or the proposed construction, alteration, establishment, or expansion, of a structure or sanitary landfill when the notice will promote (1) safety in air commerce; (2) the efficient use and preservation of the navigable airspace and of airport traffic capacity at public-use airports; or (3) the interests of national security, as determined by the Secretary of Defense.” Moreover, under that section, the Secretary is required to conduct an aeronautical study to decide the extent of any adverse impact on the safe and efficient use of the airspace, facilities, or equipment if the Secretary decides that constructing or altering a structure may result in an obstruction of the navigable airspace, an interference with air or space navigation facilities and equipment or the navigable airspace, or, after consultation with the Secretary of Defense, an adverse impact on military operations and readiness. FAA codified these requirements in Title 14 of the Code of Federal Regulations (14 CFR) part 77 and identified the form and manner in which a person must submit notice.

In 2011, FAA published a notice of policy and request for information (Notice) stating its policy on the application of 14 CFR part 77 to temporary AWES. 1 The Notice also contained a request for information from AWES developers and the public on these systems so that FAA can comprehensively analyze AWES and evaluate the potential impacts of their long-term integration into the National Airspace System (NAS).

The Notice stated that the Obstruction Evaluation process under part 77 applies to any new forms of wind gathering devices, including temporary AWES proposals. 2 This allowed the FAA to gather data about these devices while the technology continued to develop. 3 The notice explained that anyone proposing to conduct temporary airborne testing of AWES for data collection purposes must comply with part 77, including the requirement in section 77.13(a)(1) that requires notice of any construction or alternation of more than 200 feet above ground level (AGL).

Airborne wind energy (AWE) is the conversion of wind energy into electricity using tethered flying devices. 4 An Airborne Wind Energy System (AWES) is a temporary or permanent structure, which consists of a self-supported airborne system tethered to a ground station, with an airborne or ground-mounted drivetrain used to convert kinetic energy in the wind to mechanical power for purpose of generating electricity. The tethered aspect of AWE provides the opportunity to harvest stronger and more consistent wind found at higher altitudes. 5

While many AWES are similar in concept (designed to harvest kinetic wind and create consumable power), the technology and individual components, specifically the aloft portion, differ dramatically. Regardless of entity-specific design and potential resemblance between designs, each AWES possesses different attributes. Due to different attributes and impacts on NAS, FAA concluded that it must study each proposed AWES deployment on a case-by-case basis to analyze the surrounding aviation environment and ensure aviation safety.

In the Notice, FAA identified concerns regarding AWES operations in the NAS, ( e.g., conspicuity to aircraft via marking and lighting), desired operational airspace volumes, potential impact on various NAS facilities ( e.g., communication, navigation, and surveillance), and overall safety. These concerns remain relevant to FAA's management of a safe and efficient NAS for all users.

In addition to operational concerns, FAA also recognized the various design concepts AWES developers use for individual AWES components. These varying concepts include the components that keep the system aloft, the power-generating equipment, the energy-transferring equipment, the maneuvering controls, and the physical and operational dimensions. Given the variation in potential AWES design, operations, and technologies, FAA requested information from the industry in the Notice. Examples of information requested included design concepts and safety mechanisms; the type, material composition, and physical dimensions of mechanical devices employed to keep the system aloft; and long-term plans for this system. FAA also requested information to determine if proponents could comply with existing marking and lighting requirements and to discern how an AWES will be conspicuous to the flying public.

In response to the Notice, FAA received 20 comments during the comment period. Eight comments came from individuals and 10 comments came from major organizations or industry stakeholders. Six of the ten major organization or industry stakeholder commenters were from companies developing various types of AWES (Altaeros Energies, Inc., EnerKite GmbH, Highest Wind, LLC, Makani Power Inc., SkySails GmbH, and Windlift, LLC); two were from organizations or associations representing the wind energy industry (Airborne Wind Energy Consortium (AWEC) and Airborne Wind Energy Industry Association (AWEIA)); and, two were from associations representing the aviation industry (Experimental Aircraft Association (EAA) and National Agricultural Aviation Association (NAAA)). Of the 18 comments, 11 supported FAA's AWES policy and 7 opposed the policy. Of the seven comments that either wholly opposed AWES operations or supported change to enable safe AWES operations, four supported traditional marking and lighting per FAA Advisory Circular (AC) 70/7460-1, Obstruction Marking and Lighting, 6 and two expressed support for part 77 notice and analysis. Additionally, 13 of the 20 comments received provided additional recommendations.

FAA summarizes and addresses those comments responsive to the Notice. 7

1. Proposed system designs. While specific designs vary, based on comments received from industry, FAA finds general consistency in a three-part design with an aloft portion attached to a ground station via a mooring cable, tether, or similar device. Altaeros Energies' aloft portion is an inflatable shell filled with helium; EnerKite and SkySails' is similar to a textile kite; Highest Wind's concept resembles an autogyro; and Makani and Windlift plan for a wing made from lightweight rigid or flexible fabric wings, respectively.

The material used for the tether or similar device varies across system designs, e.g., carbon fiber, interwoven copper cable, or polyethylene (Dyneema TM ) fibers. These designs incorporate control of the aloft portion to maximize wind energy capture from either the ground station or from a segment of the aloft system, e.g., a module suspended below the canopy. The aloft portion of some proposed (called fly-gen) systems are generally static, generating electricity aloft and transferring it to the ground station, while other proposed (called ground-gen) systems use a winching system to generate electricity within the ground station. The size of the aloft portion varies within models from singular companies and across companies, with Highest Wind's test article a smaller size than their planned operational model. Additionally, some ground stations incorporate a mobile design to enable ease of transport and portable use.

2. Airspace, operational, and safety considerations. Many industry comments provided conceptual discussions of their systems and indicated that the companies remain in the testing phase. Based on the nature of the aloft portion's need to move (while tethered to a fixed ground station) for electricity generation and the stated desired altitudes for harvesting wind energy, the systems have different desired operational airspace volumes.

While comments focused on operational altitude, four commenters submitted diagrams that also considered the lateral airspace aspect, e.g., operations to 2,000 feet AGL at a 30-degree altitude requires a lateral distance of 3,500 feet. Some commenters integrated safety or buffer zones into their proposed airspace plan to depict the area needed to mitigate the safety risk to other airspace users and persons and property on the ground.

Altaeros completed testing below 200 feet AGL and all industry commenters expressed interest in either testing or sustained operations below 2,500 feet AGL. Five commenters expressed their desire to conduct uninterrupted testing during the day and at night over a period of days or months to replicate a realistic operational environment. As of 2011, SkySails tested aboard vessels at sea.

EAA believed that the deployment of AWES systems above 500 feet AGL will have an adverse effect on recreational and general aviation flight safety operations. EAA and other commenters suggested conducting initial tests or data collection in established prohibited and/or restricted areas before allowing AWES access to the rest of the NAS. One non-AWES industry commenter remarked that creating more special use airspace is invasive to an already crowded NAS. Another commenter expressed concern about potential conflict between AWES and other aircraft and suggested AWES deployments at the same altitude as existing terrain.

Companies planned to test and operate in either single configurations or in small ( e.g., 3-5 units) or large ( e.g., 300 units) farms on land or offshore. Highest Wind asserted that they can find willing private landowners underlying Class G airspace, where there is virtually zero air traffic below 3,000 feet AGL, to host testing. Additionally, Highest Wind requested that FAA “designate a specific number of no-fly zones up to 2,000 feet AGL over private lands” for testing and development purposes to reduce any burden of marking and lighting. NAAA stated that AWES deployments could render blocks of farmland untreatable by air, as aerial crop protection pilots would avoid the entire AWES “cone of flight” considering the shifting location and angle of an AWES due to wind variations. An aerial application (part 137) flying service commenter opposed AWES and believes they are a safety risk to agricultural and general aviation. The commenter stated that the amount of affected airspace would severely disrupt aviation.

A pilot expressed safety concerns about the ability of an AWES' aloft portion to remain attached to the ground station in adverse weather and the length of time it takes to return the aloft portion to the surface. Industry commenters provided numerous proposed safety methods specific to their system design and its capabilities. Altaeros commented that they rely on established aerostat practices and that their device has a valve to quickly and safely lower the device during an emergency, e.g., tether failure. EnerKite stated that its system has weak links, a pyrotechnical cutter, and soft wings to minimize any safety risk. Highest Wind commented that their system's “anti-collision lights and on-board alarm” comprise their safety considerations. Makani commented that their system is unique from other obstructions and its aloft portion can transition to a stationary hover and land within minutes in case of an emergency or, in case of a tether failure, land the aloft portion at a pre-determined point. SkySails commented that it intends to mark and light its system and, if the aloft system escapes its mooring, the aloft portion will sink to the ground. Additionally, SkySails' system has internal systems to monitor performance and recover the aloft portion as needed due to an emergency and suggested charting AWES to enhance safety. Windlift commented that their system can either quickly retrieve the aloft portion (reel in at 10 meters per second) or fly the aloft portion toward the ground (30 meters per second) to bring the aloft device below 500 feet AGL in less than 6 seconds.

3. Marking and lighting compliance. Sixteen comments mentioned the risk to aviation safety and 13 comments mentioned either marking or lighting—the primary methods that enhance an obstacle's conspicuity for a pilot to see and avoid. Comments ranged from providing full support of FAA's marking and lighting schemes to suggestions of alternative means based on the inability to comply with traditional marking and lighting due to system design.

EAA supported adequate marking and lighting controls for AWES equal to that required for other obstacles. NAAA expressed safety concerns with AWES, specifically the ability of pilots operating at low levels to see and avoid the tether. NAAA explained that a thin AWES tether may prove indistinguishable from the background depending on the time of day and weather conditions and recommended a strobe light on each individual structure and lighting on the tether. To NAAA, properly marked and visible obstructions are a life or death issue for low-level operators. An experienced general aviation pilot expressed AWES safety concerns based on low-level accidents involving MET towers and the difficulty pilots may have seeing an AWES during the day and at night. A part 137 commenter added that aircraft commonly operate safely at altitudes less than a proposed AWES operation and a pilot could mistake the aloft portion of an AWES as another aircraft disregarding the possibility of a tether and inviting disaster. This commenter also stated that the airfoil of AWES would need to be painted and lit and that the tether would need high-visibility strobes positioned at regular intervals to achieve a visual effect.

AWEC proposed a high-intensity light on the airborne portion of the system, flashing at regular intervals at a fixed altitude or flashing at the top and bottom of the (circular) flight path. AWEC proposed to not mark or light the tether, claiming tether drag will prevent an AWES system from achieving desired levels of performance.

Altaeros proposed lighting the structure using a high-intensity blinking light on top of the aloft portion, glow lighting or illumination of the aloft portion from the inside, or one or more spotlights aimed from the ground. Altaeros supported lighting the aerostat and not the tether.

EnerKite's proposed system has brightly colored wings that can have red markings to increase conspicuity. EnerKite commented that decreased weight and movement of the system are substantial factors in system efficiency, thus rendering large obstacle marking infeasible. Additionally, EnerKite stated that flags generate considerable drag and complicate the dynamic extension and retraction of the system. EnerKite stated their system's movement at variable tether lengths also increases conspicuity and proposed the construction of a nearby obstacle with traditional marking and lighting for further enhancement. EnerKite indicated their ability to illuminate the wing from the ground or the nearby obstacle.

Highest Wind commented that current marking requirements in AC 70/7460-1 are overly burdensome and existing lighting requirements would make their system commercially and technically infeasible. Highest Wind asserted that AWES needs the development of new lights with half the weight, size, and energy requirements of those available when FAA published the Notice. Highest Wind also stated they planned to provide an anti-collision light on the flying vehicle to make it conspicuous to pilots in all weather conditions and expressed that marking the tether would be very difficult to achieve. From a testing perspective, Highest Wind desired to test in areas free of aviation then re-visit the marking and lighting requirement.

Makani commented they intended to paint the wing white, in a manner similar to wind turbine blades, and proposed an option of adding light-emitting diode (LED) lights to the wing tips similar to those used on light aircraft. Makani explained that tether marking encumbers the tether and endangers the system during launching and landing. Therefore, Makani proposed to not mark or light the tether and instead mark the wing and ground station. Makani commented their prototype, at the time FAA published in its Notice, could not comply with current part 77 lighting requirements due to the mass and drag of the lights. However, Makani anticipated the utilization of lighting onboard the aloft portion that flashes at the top and bottom of each loop, emulating the appearance of a stationary radio tower and making the obstacle conspicuous to pilots. In an AWES farm setting, Makani proposed to light the wings in the manner of a traditional wind farm, with lights on the wings at the perimeter of the farm and on wings that are high spots.

SkySails said they could partly comply with marking and lighting requirements but did not provide any specific information. SkySails stated their system will be conspicuous to the flying public with the canopy made of yellow-colored fabric illuminated between sunset and sunrise at the center and wingtips by a spotlight situated on top of the control pod (suspended below the canopy). SkySails commented that if the illumination of the kites and registration in air traffic charts is not sufficient, wind farm arrays could be marked by tethered balloons placed on the outlines of the array. Balloons and mooring lines of the balloons will be marked and lighted according to existing requirements. SkySails did not comment on the policy, other than to provide specifics on their system.

Windlift commented they are fully committed to working with FAA and NAS users to ensure aviation safety during the development of their systems but did not specifically comment on the policy. Windlift commented that their fabric wings can have bright colors embedded with reflective elements to maximize visibility. During night operations, Windlift's proposed system planned to use a conductive cable strung with the tether or a battery to power lights. Windlift commented that tether marking is a challenge to system performance due to increased drag and placing multiple flags within 75 feet of the aloft portion could provide a visual signal of the tether for pilots. Windlift proposed the use of LED lights instead of lights with more weight.

A 2021 Department of Energy (DOE) report discusses U.S. locations where there is an increase in average wind speed with altitude up to approximately 300 meters (985 feet), above which the wind speed profile becomes mostly flat up to 500 meters (1640 feet). 8 DOE finds that most AWES will operate below 500 meters. Aloft portions of an AWES, including the tether or similar device connecting it to a ground station, above 499 feet AGL would be in airspace available to general aviation and must be readily identifiable so a pilot can see and avoid it. As part of FAA's aeronautical study conducted under part 77 and the process defined in FAA Order JO 7400.2, FAA may include marking and lighting recommendations in its determination.

Advisory Circular 70/7460-1 describes the FAA's standards for marking and lighting structures to promote aviation safety. Based on individual AWES characteristics, FAA may require marking and lighting applicable to specific systems to ensure visibility during varying weather conditions or night operations. FAA continues to research and test alternative marking and lighting for use by all components of an AWES (to include the aloft portion and the tether or similar device). Once the FAA identifies an acceptable standard, it may include it in AC 70/7460-1. Additionally, FAA must evaluate each AWES and issue a technical note approving the system's marking and lighting prior to a proposed AWES deployment and part 77 analysis.

As part of the part 77 evaluation, FAA will coordinate the proposal with potentially impacted air traffic control (ATC) facilities for local analysis, as required. If FAA determines the need for local coordination, each affected facility performs an operational safety analysis of the potential effects or risks of AWES operations to local air traffic. This analysis may also include AWES-specific considerations, e.g., the aloft portion separating from the ground station or the duration required to recover the aloft portion to the ground station. If the local ATC facility discovers additional safety hazards, FAA may convene a local Safety Risk Management (SRM) panel to complete a safety analysis and document its findings in an SRM document. The SRM panel's findings could affect FAA's final determination. Additionally, FAA-issued final determinations for AWES proposals may include conditions for marking and lighting to ensure the structure is visible to aircraft operating in proximity to an AWES.

Based on feedback received in response to the Notice, the FAA concludes that AWES may affect navigable airspace. As of the effective date of this policy statement, the FAA amends the policy set forth in the Notice and will consider part 77 applications for all AWES, including permanent and operational systems. Those entities proposing construction of an AWES that exceeds the parameters in section 77.9 ( e.g., an AWES constructed at more than 200 feet AGL at its site) must file advance notice with FAA.

FAA receipt of part 77 notices of proposed construction from all AWES will enable the continued development of this emerging technology while allowing FAA to study the potential impacts of each individually proposed AWES on the safety and integrity of the NAS. Further, this action ensures inclusion of AWES information in the FAA's publicly searchable obstruction database. 9

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the typed of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for Part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

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

Accordingly, pursuant to the authority delegated to me, Title 14, CFR part 97, is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

The Entity List (supplement No. 4 to part 744 of the EAR (15 CFR parts 730-774)) identifies entities for which there is reasonable cause to believe, based on specific and articulable facts, that the entities have been involved, are involved, or pose a significant risk of being or becoming involved in activities contrary to the national security or foreign policy interests of the United States, pursuant to § 744.11(b). The EAR impose additional license requirements on, and limit the availability of, most license exceptions for exports, reexports, and transfers (in-country) where a listed entity is a party to the transaction. The license review policy for each listed entity is identified in the “License Review Policy” column on the Entity List, and the impact on the availability of license exceptions is described in the relevant Federal Register document that added the entity to the Entity List. The Bureau of Industry and Security (BIS) places entities on the Entity List pursuant to part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and makes all decisions to remove or modify an entry by unanimous vote.

The agencies represented on the ERC determined to modify Private Military Company `Wagner' on the Entity List, under the destination of Russia. This entry is modified by adding one address, two additional aliases, and a footnote 3 designation. A footnote 3 designation means that an entity has been determined to be a Russian or Belarusian `military end user.' This entity was originally added to the Entity List on June 22, 2017, for having been determined by the U.S. Government to be acting contrary to the national security or foreign policy interests of the United States under § 744.11. (82 FR 28405) This entry is being modified because the entity was determined to be a Russian military end user under § 744.21 of the EAR. Licenses for this entity will now be reviewed under a policy of denial for all items subject to the EAR apart from food and medicine designated as EAR99, which will be reviewed on a case-by-case basis. The license requirements under this entry also extend to any export, reexport and transfer (in-country) to the entity wherever located worldwide.

For the changes being made in this final rule, shipments of items removed from eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR) as a result of this regulatory action that were en route aboard a carrier to a port of export, reexport, or transfer (in-country), on December 21, 2022, pursuant to actual orders for export, reexport, or transfer (in-country) to or within a foreign destination, may proceed to that destination under the previous eligibility for a License Exception or export, reexport, or transfer (in-country) without a license (NLR).

On August 13, 2018, the President signed into law the John S. McCain National Defense Authorization Act for Fiscal Year 2019, which included the Export Control Reform Act of 2018 (ECRA) (50 U.S.C. 4801-4852). ECRA provides the legal basis for BIS's principal authorities and serves as the authority under which BIS issues this rule.

1. This rule has been determined to be not significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to or be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications and commodity classifications, and carries a burden estimate of 29.4 minutes for a manual or electronic submission for a total burden estimate of 33,133 hours. Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule.

3. This rule does not contain policies with federalism implications as that term is defined in Executive Order 13132.

4. Pursuant to section 1762 of the Export Control Reform Act of 2018, this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking, opportunity for public participation, and delay in effective date.

5. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

In the Federal Register of Wednesday, December 15, 2022 (87 FR 765590), appearing on page 76567, in FR Doc. 2022-27040, the following correction is made:

1. On page 76567, in the third column, in the fifth sentence of the third paragraph under IV. Summary and Conclusions, “[DATE OF PUBLICATION IN THE FEDERAL REGISTER ]” is corrected to read “January 17, 2023”.

Legal Authority

Under the Controlled Substances Act (CSA), each controlled substance is classified into one of five schedules based upon its potential for abuse, its currently accepted medical use in treatment in the United States, and the degree of dependence the drug or other substance may cause. 1 The initial schedules of controlled substances established by Congress are found at 21 U.S.C. 812(c) and the current list of scheduled substances is published at 21 CFR part 1308.

Pursuant to 21 U.S.C. 811(a)(2), the Attorney General may, by rule, “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the Drug Enforcement Administration (DEA). 2

The CSA provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General on the petition of any interested party. 3 This action was initiated by a petition to remove fenfluramine from the list of scheduled controlled substances of the CSA, and is supported by, inter alia, a recommendation from the Assistant Secretary for Health of the Department of Health and Human Services (HHS) and an evaluation of all relevant data by DEA. This action removes the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule IV controlled substances, on persons who handle or propose to handle fenfluramine.

Fenfluramine (chemical name: N -ethyl-α-methyl-3-(trifluoromethyl)phenethylamine), including its salts, isomers, and salts of such isomers, has been controlled under 21 CFR 1308.14(d) as a schedule IV substance of the CSA since June 15, 1973. 4 On September 25, 2019, Zogenix, Inc. (Zogenix; the Sponsor) submitted to the Food and Drug Administration (FDA) a New Drug Application (NDA) for Fintepla (fenfluramine), for the treatment of seizures associated with Dravet syndrome (DS) in patients two years of age and older. FDA approved the NDA on June 25, 2020, with the labelling listing fenfluramine as a schedule IV controlled substance.

On October 18, 2018, Zogenix submitted to DEA a petition requesting that fenfluramine be removed from schedule IV of the CSA. The petition complied with the requirements of 21 CFR 1308.43(b) and DEA accepted the petition for filing on November 13, 2018.

On July 19, 2022, DEA published a notice of proposed rulemaking (NPRM) to remove fenfluramine from the schedules of the CSA. 5 The NPRM provided an opportunity for interested persons to file a request for a hearing in accordance with DEA regulations by August 18, 2022. No requests for such a hearing were received by DEA. The NPRM also provided an opportunity for interested persons to submit comments on the proposal on or before August 18, 2022.

DEA received one comment on the NPRM to remove fenfluramine from control.

Opposition to rulemaking: One commenter opposed decontrol of fenfluramine, however the comment was at times ambiguous. The commenter seemed to be concerned about children using fenfluramine illicitly and the potential harm related to the combined use with a stimulant, specifically noting the fenfluramine-phentermine (“fen-phen”) combination and noting “Stimulants+Psychedelics=Psychosis.”

DEA Response: DEA acknowledges the commenter's concerns about relative harm, especially related to children. DEA notes FDA approved Fintepla (fenfluramine) on June 25, 2020, for the treatment of DS in patients two years of age and older. Currently Fintepla is the only FDA-approved drug product with fenfluramine. HHS considered the harms the fenfluramine-phentermine combination produced in their April 2021 scientific and medical evaluation, which was provided to DEA as part of this rulemaking process, pursuant to 21 U.S.C. 811(b).

DEA notes that the combination historically produced serious cardiac effects, not psychological effects. The FDA-approved labeling for Fintepla indicates that patients must be enrolled in the Fintepla risk evaluation and mitigation strategy (REMS) program and undergo cardiac monitoring before, during, and after treatment with Fintepla to monitor for serious heart valve changes or high blood pressure in the arteries of the lungs. The FDA-required REMS program for Fintepla, including ongoing cardiac monitoring, would still be applicable under the FDA rules even after fenfluramine is decontrolled by DEA.

Based on FDA's scientific and medical review of the eight factors and findings related to the substance's abuse potential, legitimate medical use, and dependence liability, HHS recommended that fenfluramine and its salts be removed from all schedules of the CSA. Pursuant to 21 U.S.C. 811(b), the recommendations of HHS shall be binding on DEA as to such scientific and medical matters and if the Secretary recommends that a drug or other substance not be controlled, DEA shall not control the drug or other substances. As stated in the NPRM, after careful review of all relevant data including HHS' scientific and medical evaluation and scheduling recommendation, DEA is therefore promulgating this final rule to remove fenfluramine, including its salts, isomers, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible, from control under the CSA.

Based on consideration of the comment, and the rationale set forth in the NPRM, the Administrator finds that fenfluramine does not meet the requirements for inclusion in any schedule. As such, DEA is removing fenfluramine, including its salts, isomers, and salts of such isomers whenever the existence of such salts, isomers, and salts of isomers is possible, from control under the CSA.

In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures done “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for removing a drug or other substance from the list of controlled substances. Such actions are exempt from review by the Office of Management and Budget pursuant to section 3(d)(1) of Executive Order (E.O.) 12866 and the principles reaffirmed in E.O. 13563.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This rulemaking does not have federalism implications warranting the application of E.O. 13132. This rule does not have substantial direct effects on the States, on the relationship between the Federal government and the States, or the distribution of power and responsibilities among the various levels of government.

This rule does not have tribal implications warranting the application of E.O. 13175. This rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has reviewed this rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to remove fenfluramine from the list of schedules of the CSA. This action will remove regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances for handlers and proposed handlers of fenfluramine. Accordingly, it has the potential for some economic impact in the form of cost savings.

Fenfluramine as a pharmaceutical product (Fintepla) is currently available and marketed in the U.S. Because fenfluramine is currently a schedule IV drug, all legal handling of fenfluramine is currently done under appropriate DEA license. In such instances, DEA's knowledge of its registrant population forms the basis for estimating the number of affected entities and small entities that are affected by this rulemaking. There are currently 40 unique registrations authorized to handle fenfluramine specifically, as well as a number of registered analytical labs that are authorized to handle schedule IV controlled substances generally. From review of entity names, DEA estimates these 40 registrations represent 27 entities. Some of these entities are likely to be small entities. However, since DEA does not have information of registrant size and the majority of DEA registrants are small entities or are employed by small entities, DEA estimates a maximum of 27 entities are small entities. Therefore, DEA conservatively estimates as many as 27 small entities are affected by this final rule. However, because this rule would remove fenfluramine from regulatory controls of the CSA, it is likely to result in some cost savings. Any person planning to handle fenfluramine will realize cost savings in the form of saved DEA registration fees, and the elimination of physical security, recordkeeping, and reporting requirements. Because of these factors, DEA projects that this rule will not result in a significant economic impact on a substantial number of small entities.

The Administrative Procedure Act requires the publication of a substantive rule to be made not less than 30 days before its effective date. 6 However, this requirement need not apply for “a substantive rule which . . . relieves a restriction.”  7 Therefore, DEA makes this rule effective immediately upon publication.

In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501 et seq., DEA has determined that this action would not result in any Federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any 1 year.” Therefore, neither a Small Government Agency Plan nor any other action is required under UMRA of 1995.

This rule is not a major rule as defined by the Congressional Review Act (CRA), 5 U.S.C. 804. However, pursuant to the CRA, DEA is submitting a copy of the final rule to both Houses of Congress and to the Comptroller General.

For the reasons set out above, 21 CFR part 1308 is amended to read as follows:

This document of the Drug Enforcement Administration was signed on December 12, 2022, by Administrator Anne Milgram. That document with the original signature and date is maintained by DEA. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DEA Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of DEA. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

Under the Oil Pollution Act of 1990 (OPA 90) (33 U.S.C. 2701, et seq. ), the responsible parties for any vessel (other than a public vessel) or facility from which oil is discharged, or which poses a substantial threat of discharge of oil, into or upon the navigable waters or the adjoining shorelines or the exclusive economic zone of the United States are strictly liable, jointly and severally, under 33 U.S.C. 2702 (a) and (b), for the removal costs and damages that result from such incident. 1 Under 33 U.S.C. 2704 (a), the responsible parties' liability with respect to OPA 90 and any one incident is limited, subject to certain exceptions specified in 33 U.S.C. 2704 (c).

In the instances when a limit of liability applies, the Oil Spill Liability Trust Fund (“the Fund”) is available to compensate the OPA 90 removal costs and damages incurred by the responsible parties and third-party claimants in excess of the applicable limit of liability. The statutory limits of liability for vessels and three types of facilities are set forth in OPA 90: (1) Onshore facilities, (2) deepwater ports, and (3) offshore facilities other than deepwater ports. In addition, to prevent the real value of the OPA 90 statutory limits of liability from depreciating over time as a result of inflation, and to preserve the “polluter pays” principle, OPA 90 requires that the limits of liability be adjusted “not less than every 3 years” to reflect significant increases in the Consumer Price Index (CPI). 2

The Coast Guard is responsible for adjusting the limits of liability for vessels, deepwater ports, and onshore facilities. The Department of the Interior's Bureau of Ocean Energy Management (BOEM) is responsible for adjusting the limits of liability for offshore facilities. Regarding vessels and deepwater ports, the Coast Guard adjusted the limits of liability in 2009 (74 FR 31357), 3 , in 2015 (80 FR 72342), and in 2019 (84 FR 39970). Regarding onshore facilities, the Coast Guard adjusted the limits of liability twice, in 2015 (80 FR 72342) and in 2019 (84 FR 39970), after the President issued Executive Order 13638, which restated and simplified the delegations in Executive Order 12777, section 4, and vested the authority to make CPI adjustments to the onshore facility statutory limit of liability in “the Secretary of the Department in which the Coast Guard is operating.” The Secretary of the Department of Homeland Security (DHS) delegated that authority to the Coast Guard. Regarding offshore facilities, BOEM published a final rule and adjusted the limits of liability for offshore facilities in 2018 (83 FR 2540) from $133,650,000 to $137,659,500.

The Coast Guard is promulgating this rule pursuant to the provisions of Title I of OPA 90, Executive Order 12777, as amended, and Coast Guard regulations in Title 33 of the Code of Federal Regulations (CFR) part 138, subpart B—OPA 90 Limits of Liability (Vessels, Deepwater Ports and Onshore Facilities). Under 5 U.S.C. 553(b)(B), the Coast Guard has good cause for issuing this final rule without notice or comment. Generally, Section 553 “gives affected parties an opportunity to participate in agency decision making early in the process, when the agency is more likely to consider alternative ideas.”  4 However, prior notice and comment is unnecessary “where a minor or merely technical amendment in which the public is not particularly interested” arises. 5 Prior notice and comment is also unnecessary when the good cause inquiry is “confined to those situations in which the administrative rule is a routine determination, insignificant in nature and impact, and inconsequential to the industry and to the public.”  6 Courts have further held that notice and comment procedures are unnecessary where Congress requires an agency to perform a nondiscretionary ministerial act. 7 In this instance, a proposed rule is unnecessary because the adjustment in the limit of liability is a routine determination mandated by statute, and is therefore nondiscretionary for the Coast Guard. The calculation of the liability limits is ministerial in nature. Furthermore, the methodology for determining the amount is defined in the Coast Guard's regulations, and the regulations in 33 CFR 138.240(a) provide that inflation adjustments to the limits of liability for vessels, deepwater ports, and onshore facilities will be implemented through final rulemaking. 8 The preambles of the NPRM and the final rule for the 2015 inflation adjustment (at 79 FR 49205 and 80 FR 72342) together provide the full legislative and regulatory history for the OPA 90 limit of liability inflation adjustments.

The Coast Guard is issuing this final rule to update the OPA 90 limits of liability for vessels, deepwater ports, and onshore facilities, as set forth in 33 CFR part 138, subpart B, to reflect significant increases in the CPI since the limits were last adjusted. OPA 90 requires adjustments to the limits of liability not less than every 3 years to reflect significant increases in the CPI. The method for calculating these adjustments is set forth in 33 CFR 138.240.

This final rule provides these periodic inflation adjustments to the limits of liability to reflect changes in the CPI since the limits were last adjusted for inflation in 2019 (84 FR 39970). As provided in 33 CFR 138.240, we calculate limit of liability adjustments, using the Consumer Price Index—All Urban Consumers, Not Seasonally Adjusted, U.S. City Average, All Items, 1982-84=100 (CPI-U) values published by the Bureau of Labor Statistics (BLS), as follows—

1. Formula to calculate the percent change in the Annual CPI-U:

2. Formula to derive the new limit of liability, applying the percent change in the Annual CPI-U:

For this update, we used the 2021 Annual CPI-U value of 270.970 as the “current period” value, which is the most recent Annual CPI-U published by the BLS. 9 The Coast Guard used the 2018 Annual CPI-U value of 251.107 as the “previous period” value, which was the Annual CPI-U used as the “current period” value when the limits of liability were last adjusted in 2019. Applying the formula in Item 1 above, we have determined that there was a 7.91 percent increase in the Annual CPI-U since the OPA 90 limits of liability for vessels, deepwater ports, and onshore facilities were last adjusted. Table 1 below shows the previous and new limits of liability derived by applying the percent increase using the formula in Item 2 above.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on these statutes or Executive orders.

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

This rule has not been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget. A regulatory analysis (RA) follows.

This final rule is an update to the limit of liability for vessels, deepwater ports, and onshore facilities under OPA 90. This rule does not increase the regulatory burden on regulated entities when measured in constant or real dollars. This final rule simply maintains the value of the limit of liability set by OPA 90 by updating the limit of liability for inflation, as required by OPA 90 in 33 U.S.C. 2704(d)(4).

This final rule increases the limits of liability under OPA 90 for vessels, deepwater ports, and onshore facilities by 7.91 percent. The Coast Guard does not expect Certificate of Financial Responsibility guarantor insurance premiums for vessels to increase as a result of this rule. This final rule will only affect vessels, deepwater ports, and onshore facilities that have an OPA 90 incident that exceeds their existing limit of liability. The Coast Guard estimates that this final rule will affect, at most, three vessels per year. We estimate that the rule could also affect one deepwater port and one onshore facility over a 10-year period. In such a case, the maximum amount of additional liability will represent a maintenance of the value of the limits of liability set by OPA 90.

This rulemaking ensures that the OPA 90 limits of liability keep pace with inflation as required by OPA 90 (33 U.S.C. 2704(d)(4)). This final rule requires responsible parties to internalize inflation, thereby benefitting the public, because the appropriate amount of removal costs and damages are borne by the responsible party. The liability risk will not shift from the responsible party to the public and the Fund. This helps preserve the “polluter pays” principle as intended by Congress and preserves the Fund for its other authorized uses. Absent CPI adjustments, a responsible party gains an advantage not intended by OPA 90. Without inflation incorporated into the determination of the applicable limit of liability, the responsible party ultimately pays a reduced percentage of the total incident costs. Hence, this final rule ensures that the limits of liability are adjusted according to inflation and remain constant over time.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule will have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.

The Regulatory Flexibility Act does not apply when notice and comment rulemaking is not required. This rule is not preceded by a notice of proposed rulemaking (NPRM). Therefore, it is exempt from the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Furthermore, this rulemaking is statutorily mandated. Pursuant to established procedure in 33 CFR 138.240(a), an NPRM is unnecessary. Therefore, the Coast Guard has determined that a Regulatory Flexibility Analysis does not apply to this rulemaking.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247).

This rule calls for no new or revised collection of information under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3520.

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

This final rule makes necessary adjustments to the OPA 90 limits of liability to reflect significant increases in the CPI. Nothing in this final rule affects the preservation of State authorities under 33 U.S.C. 2718, including the authority of any State to impose additional liability or financial responsibility requirements with respect to discharges of oil within such State. Therefore, this final rule has no implications for federalism.

The Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. The Coast Guard invites anyone who believes this rule has implications for federalism under Executive Order 13132 to contact the person listed in the FOR FURTHER INFORMATION section of this preamble.

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

This rule will not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (Civil Justice Reform), to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This rule is not an economically significant rule and will not create an environmental risk to health or risk to safety that might disproportionately affect children.

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

We have analyzed this rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

We have analyzed this rule under Department of Homeland Security Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. This rule is categorically excluded under paragraph L53 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Paragraph L53 pertains to congressionally mandated regulations designed to improve or protect the environment. This rule adjusts the limits of liability for vessels, deepwater ports, and onshore facilities to reflect significant increases in the CPI using the methodology established in 33 CFR 138.40(a) and mandated by statute.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 138 as follows:

On January 1, 2021, the William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 (Pub. L. 116-283) (Authorization Act) was enacted. Section 8343 (134 Stat. 4710) calls for the Coast Guard to conduct a two-year pilot program to establish and implement a process to establish safety zones to address special activities in the U.S. Exclusive Economic Zone (EEZ). 1 These special activities include space activities  2 carried out by United States (U.S.) citizens. Terms used to describe space activities, including launch, reentry site, and reentry vehicle, are defined in 51 U.S.C. 50902, and in this document.

The Coast Guard has long monitored space activities impacting the maritime domain and taken actions to ensure the safety of vessels and the public as needed during space launch  3 operations. In conducting this activity, the Coast Guard engages with other government agencies, including the Federal Aviation Administration (FAA) and National Aeronautics and Space Administration (NASA), and private space operators, including Space Exploration Technologies Corporation (SpaceX). This engagement is necessary to ensure statutory and regulatory obligations are met to ensure the safety of launch operations and waterway users.

During this engagement, the Coast Guard was informed of space reentry vehicles and recovery operations in the U.S. EEZ. Section 50902 of 51 U.S.C. defines “reentry vehicle” as a vehicle designed to return from Earth orbit or outer space to Earth, or a reusable launch vehicle designed to return from Earth orbit or outer space to Earth, substantially intact. SpaceX, a U.S. company, identified five reentry sites  4 within the U.S. EEZ of the Coast Guard District Seven area of responsibility (AOR) expected to be used for the splashdown and recovery of reentry vehicles. All these sites are off the coast of Florida (FL) and Georgia (GA)—three are located in the Atlantic Ocean and two are located in the Gulf of Mexico.

On August 4, 2022, the Coast Guard published a temporary final rule (TFR)  5 in the Federal Register establishing five temporary safety zones for the safe splashdown and recovery of reentry vehicles launched by SpaceX in support of NASA missions. See 33 CFR 165.T07-0289. These temporary regulations expire on December 31, 2022.

On October 21, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) in the Federal Register titled, “Safety Zones in Reentry Sites; Jacksonville, Daytona, Cape Canaveral, Tampa, and Tallahassee, Florida.”  6 In the NPRM, we stated the purpose of the rulemaking was to create five temporary safety zones off the coast of FL and GA that would ensure the protection of vessels and waterway users in the U.S. Exclusive Economic Zone (EEZ)  7 from the potential hazards created by reentry vehicle splashdowns  8 and recovery operations, and the safe recovery of reentry vehicles and personnel involved in reentry services. 9 The NPRM invited comments on the proposed rule. During the comment period that ended November 21, 2022, we received four comment submissions.

With this TFR, the Coast Guard is ensuring the five temporary safety zones created by this TFR are in place for the safe reentry vehicle splashdown and recovery of reentry vehicles missions launched by SpaceX in support of NASA missions, and privately chartered missions during the remaining period of the pilot program, from January 1, 2023, through February 4, 2024.

The Coast Guard is issuing this rule under section 8343 of the Authorization Act. The Seventh District Commander has determined there are potential hazards in the U.S. EEZ created by reentry vehicle splashdowns and recovery operations, and the safe recovery of reentry vehicles and personnel involved in reentry services. The purpose of this rule is to ensure safety of vessels, reentry vehicles, personnel involved in reentry services and the navigable waters in the safety zone, whenever a splashdown occurs.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register because this rule is needed to ensure there is no lapse in coverage when the existing regulations in § 165.T07-0289 expire on December 31, 2022. Delaying the effective date of this rule would be impracticable and contrary to the public interest because the Cargo Resupply Mission 26 (CRS-26) is scheduled to splashdown in early January 2023, and the rule needs to be effective before the splashdown occurs. Delaying the enforcement of this rule to allow a 30-day effective period would inhibit the Coast Guard's ability to fulfill its mission to ensure the protection of vessels and waterway users in the U.S. EEZ from the potential hazards created by reentry vehicle splashdowns and recovery operations, and the safe recovery of reentry vehicles and personnel involved in reentry services.

As noted above, we received four comment submissions on our NPRM that published in the Federal Register on October 21, 2022. The commenters expressed concerns regarding commercial fisheries and related economic impacts, potential environmental impacts, and the Coast Guard's notification process. These issues are discussed below.

Several commenters asked whether the Coast Guard had engaged with the National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS); inquired whether the reentry vehicle splashdown and recovery operations complied with the National Environmental Policy Act (NEPA); requested further analyses on the potential releases of hazardous substances by reentry vehicles; and inquired about the potential impacts to the marine environment and commercial fisheries stocks.

While the Coast Guard did not engage NOAA NMFS, the Coast Guard prepared a preliminary Record of Environmental Consideration (REC) at the NPRM stage and a final REC for this rulemaking stage (see section F. Environment in this document). These reviews aided the Coast Guard in determining that fisheries stocks would not be impacted. Furthermore, this rulemaking involves the creation of temporary safety zones that will only be activated periodically for relatively short time periods. In most cases the safety zones will be activated for four hours or less, therefore any impact on fisheries stocks would be insignificant.

As discussed in the environmental section of our NPRM and in this document, the Coast Guard determined this rulemaking is categorically excluded (CATEX)  10 under NEPA from undergoing a detailed environmental analysis in an Environmental Assessment or Environmental Impact Statement because the activities have been determined to normally not have the potential, individually or cumulatively, to have a significant effect on the human environment. Reentry vehicle splashdown activities are licensed by the FAA. During the FAA licensing process, and in various rulemakings and related environmental reviews promulgated by the FAA, many of the issues related to fishery and environmental concerns were addressed. Most notably, the FAA completed an extensive Environmental Assessment (FAA EA) in July of 2020. 11 In that EA, the FAA consulted with the U.S. Fish and Wildlife Service (USFWS) and the NMFS. The Coast Guard is establishing these temporary safety zones to ensure the protection of vessels and waterway users in the U.S. EEZ from the potential hazards created by reentry vehicle splashdowns and recovery operations, and the safe recovery of reentry vehicles and personnel involved in reentry services.

Three commenters expressed concerns about the economic impact on commercial vessels of various sizes and types, the economic impact on small fishing businesses, along with other impacts on recreational vessels due to closures for reentry or recovery operations. This rulemaking will not have a significant impact on any type of commercial or recreational fishing vessel activity because all vessels would be able to transit around the activated temporary safety zone, during the recovery, and the recovery would be relatively short in duration. The activated temporary safety zone will typically be enforced for approximately four hours, and no more than eight hours in extremely extenuating circumstances. The Coast Guard is taking significant actions to minimize, to the extent possible, the impact on commercial and recreational waterway use. Ultimately the Coast Guard deems the benefits and needs for the creation of the five temporary safety zones, to provide protection to vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations while providing for the safe recovery of reentry vehicles, and any personnel involved in reentry services, to exceed the indirect impacts on the entities the commenters noted.

Several commenters expressed concerns about public notification. While it is not necessary to modify the rule's regulatory text, additional explanation of the intended notification methods is merited. Four commenters suggested expanding the means to notify fisherman beyond the proposed Broadcast Notice to Mariners (BNM) on VHF-FM 16, and/or Marine Safety Information Bulletins (MSIB) to optimize notification to commercial and recreational fishing vessels. The Coast Guard will continue to provide proper notification to all marine transportation system users through available platforms to maintain timely and current information with regards to space launch and recovery operations. If waterway users are concerned, they will not be able to get this information in a timely manner, or they will not see the notices or broadcasts the Coast Guard distributes and publishes, they have the ability sign up for email updates on the Coast Guard's Navigation Center's website. 12

Three commenters requested that reentry safety zones be clearly identified on digital navigation or Automatic Identification System (AIS) charts for all waterway users to have access to, to reduce the need to input coordinates each time a notification is issued. The Coast Guard is evaluating different options to provide mariners with an efficient way including, plotting the temporary safety zones in the NOAA charts and AIS broadcasts.

Two commenters inquired about how they would be notified when the temporary safety zones are enforced. Upon notification of a reentry vehicle's reentry, the Coast Guard would activate all five temporary safety zones to serve as a cautionary warning that a reentry vehicle could splashdown in one of the five temporary safety zones during the specified time period. However, only one of the five temporary safety zones will be enforced for the window of time of the reentry vehicle splashdown and recovery. Once the Coast Guard receives confirmation from NASA or SpaceX, where the reentry vehicle will splashdown, usually within 24 hours of the reentry vehicle splashdown, the public will be notified that only one of the five temporary safety zones will be enforced, all other temporary safety zones will be deactivated. The notification of enforcement that the Coast Guard publishes in the Federal Register will set out the specific times that the one temporary safety zone will be closed (enforced), and it will typically be no more than six hours. This will allow the Coast Guard to ensure the activated temporary safety zone is cleared prior to the reentry vehicle's reentry. After the Coast Guard receives notification that the reentry vehicle's recovery operation is complete, the temporary safety zone enforcement will be deactivated, and mariners will be notified of the deactivation via VHF-FM Channel 16.

The Coast Guard identified in an internal review that the Jacksonville reentry site, as provided by NASA and SpaceX, straddles the border of the Jacksonville COTP zone and the Savannah COTP zone. The coordinates of the Jacksonville reentry site safety zone itself has not changed. Moving forward, the COTP Savannah will follow the same notification procedures as the COTP Jacksonville, and the COTP St. Petersburg, at least as it pertains to the portion of the safety zone that falls under the Savannah COTP zone. The only change in regulatory text to this rule, from the proposed rule in the NPRM, is the addition of the Captain of the Port of Savannah to the definition of Captain of the Port.

When discussing all these issues it is important to reiterate that all these safety zones are part of a pilot program, and this is a newly established authority for the Coast Guard. This means, all these processes are new, and part of a larger Coast Guard initiative to establish how to best regulate these types of issues. With every recovery operation, the Coast Guard seeks to further streamline the process, and make it more efficient for the public, and those operating reentry vehicles because at the end of the pilot program the Coast Guard is required to brief the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Commerce, Science, and Transportation of the Senate. 13

With this TFR, the Coast Guard is ensuring that the five temporary safety zones created by this TFR are in place for the safe reentry vehicle splashdown and recovery of reentry vehicles launched by SpaceX in support of NASA and privately chartered missions from January 1, 2023, through February 4, 2024.

The temporary safety zones are in the U.S. EEZ within the Coast Guard District Seven AOR offshore of Jacksonville, Daytona, and Cape Canaveral, FL, in the Atlantic Ocean, and Tampa and Tallahassee, FL, in the Gulf of Mexico. The rule prohibits U.S.- flagged vessels from entering any of the safety zones unless authorized by the District Commander, a Coast COTP, or a designated representative. Because the safety zones are within the U.S. EEZ, only U.S.-flagged vessels will be subject to enforcement. However, all foreign-flagged vessels are encouraged to remain outside the safety zones.

Three of the five temporary safety zones are located off the coast of FL and GA in the Atlantic Ocean in the following areas: (1) Approximately 65 nautical miles (NM) northeast from Jacksonville; (2) 29 NM northeast from Daytona; and (3) 17 NM east from Port Canaveral. The remaining two temporary safety zones are located off the coast of FL in the Gulf of Mexico in the following areas: (1) Approximately 58 NM northwest from Tampa Bay; and (2) 43 NM south from Tallahassee. The Jacksonville, Daytona, Cape Canaveral, and Tampa safety zones have an approximate area of 256 square miles, and are diamond shaped with the top point of the diamond pointing to the North. The Tallahassee safety zone is approximately 59 square miles in size and is triangular in shape. The Tallahassee safety zone, as provided by NASA and SpaceX, is the same size and shape as the other four safety zones; however, only a portion of the safety zone is within the jurisdiction of the Seventh Coast Guard District, so only the 59 square miles is included in this rule. The remaining portion of the safety zone falls within the Coast Guard District Eight AOR.

The coordinates for the safety zones are based on the furthest north, east, south, and west points of the reentry vehicles splashdown and are determined from data and modeling by SpaceX and NASA. The coordinates take into account the trajectories of the reentry vehicles coming out of orbit, the potential risk to the public, and the proximity to medical facilities that meet NASA requirements. The specific coordinates for the five temporary safety zones are presented in the regulatory text at the end of this document.

To the extent feasible, the District Commander, COTP, 14 or designated representative will inform the public of the activation of the five temporary safety zones by Notice of Enforcement (NOE) published in the Federal Register at least two days before the reentry vehicle splashdown. The NOE will identify the approximate date(s) during which a reentry vehicle splashdown and recovery operations will occur. The District Commander, or the COTP Savannah, and COTP Jacksonville will issue the NOEs for the safety zone located in Jacksonville. The District Commander, or COTP Jacksonville will issue the NOEs for the safety zone located in Daytona, and Cape Canaveral, FL. The District Commander or COTP St. Petersburg will issue the NOEs for the safety zones located Tampa and Tallahassee, FL.

To the extent possible, twenty-four hours before a reentry vehicle splashdown and recovery operations, the District Commander, COTP, or designated representative will inform the public whether one of the five safety zones will remain activated (subject to enforcement) until announced by BNM on VHF-FM channel 16, and/or MSIB (as appropriate) that the safety zone is no longer subject to enforcement. The specific temporary safety zone to be enforced will be based on varying mission and environmental factors, including atmospheric conditions, sea state, weather, and orbital calculations.

The MSIB will include the geographic coordinates of the activated safety zone, a map identifying the location of the activated safety zone, and information related to potential hazards associated with a reentry vehicle splashdown and recovery operations associated with space activities, including marine environmental and public health hazards, such the release of hydrazine and other potential oil or hazardous substances.

When the safety zone is activated, the District Commander, COTP, or designated representative will be able to restrict U.S.-flagged vessel movement including but not limited to transiting, anchoring, or mooring within the safety zone to protect vessels from hazards associated with space activities. The activated safety zone will ensure the protection of vessels and waterway users from the potential hazards created by reentry vehicle splashdowns and recovery operations. This includes protection during the recovery of a reentry vehicle, and the protection of personnel involved in reentry services and space support vessels. 15

After a reentry vehicle splashdown, the District Commander, COTP, or designated representative will grant general permission to come no closer than 3 NM within the activated safety zone from any reentry vehicle or space support vessel engaged in the recovery operations. The recovery operations are expected to last approximately one hour. That should allow for sufficient time to let any potential toxic materials clear the reentry vehicle, recovery of the reentry vehicle by the space support vessel, and address any potential medical evacuations for any personnel involved in reentry services that were onboard the reentry vehicle.

Once a reentry vehicle and any personnel involved in reentry services are removed from the water and secured onboard a space support vessel, the District Commander, COTP, or designated representative would issue a BNM on VHF-FM channel 16 announcing the activated safety zone is no longer subject to enforcement. A photograph of a reentry vehicle and space support vessel expected to use the reentry sites are available in the docket.

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

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

This regulatory action determination is based on the size, location, duration, and scope of the temporary safety zones. The temporary safety zones are limited in size and location to only those areas where reentry vehicles splashdown and recovery operations occur. The safety zones are limited in scope, as vessel traffic would be able to safely transit around the activated safety zone which will only impact a small part of the U.S. EEZ within the Atlantic Ocean and Gulf of Mexico. This rule involves the establishment of five temporary safety zones which will be activated two days before a reentry vehicle splashdown and recovery operations. Twenty-four hours before a reentry vehicle splashdown, the Coast Guard will inform the public whether any of the five temporary safety zones will remain activated. If one of the safety zones remains activated, the safety zone will be enforced for approximately four hours prior to a reentry vehicle splashdown and remain activated until announced by Broadcast Notice to Mariners on VHF-FM channel 16, and/or Marine Safety Information Bulletin (as appropriate) that the safety zone is no longer subject to enforcement. After the reentry vehicle splashdown, general permission will be granted to come no closer than 3 NM within the activated safety zone. There is a danger associated with fumes from the reentry vehicle after it has splashed down. Once a reentry vehicle and any personnel involved in reentry services are removed from the water and secured onboard a space support vessel, the activated safety zone will no longer be subject to enforcement. The activated safety zone will ensure the protection of vessels and waterway users from the potential hazards created by a reentry vehicle splashdown and recovery operations and the recovery of a reentry vehicle, personnel involved in reentry services, and space support vessel.

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

The safety zones are only expected to last a few hours from reentry vehicle splashdown to recovery. Vessels will be able to transit around the activated safety zone location during these recoveries. We do not anticipate any significant economic impact resulting from activation of the safety zones.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity, and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES ) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Public Law 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of five temporary safety zones which would be activated two days before a reentry vehicle splashdown and recovery operations. Twenty-four hours before a reentry vehicle splashdown, one of the five temporary safety zones would remain activated. If one of the safety zones remains activated, the safety zone will be enforced for approximately four hours prior to a reentry vehicle splashdown and remain activated until announced by BNM on VHF-FM channel 16, and/or MSIB (as appropriate) that the safety zone is no longer subject to enforcement. After a reentry vehicle splashdown, general permission would be granted to come no closer than 3 NM within the activated safety zone. Once a reentry vehicle and any personnel involved in reentry services are removed from the water and secured onboard a space support vessel, the activated safety zone would no longer be subject to enforcement. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impracticable and contrary to the public interest since immediate action is needed to minimize potential danger to the public during the event. Any delay in the effective date of this rule could prevent this community event from occurring or present a safety risk to people and vessels in the vicinity of the fireworks display. The Coast Guard will issue a broadcast notice to mariners to advise mariners of the zone and on-scene Coast Guard assets will provide notice to mariners.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule could prevent this community event from occurring or present a safety risk to people and vessels in the vicinity of the fireworks display.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Prince William Sound (COTP) has determined that potential hazards associated with the New Year's fireworks display will be a safety concern for anyone within a 150-yard radius of the fireworks launch site at Sea Otter Point. The safety zone is necessary to provide notice of the hazards presented by the fireworks display in order to achieve the goal of enhancing the safety of people and vessels attending the event in the navigable waters in the vicinity of the fireworks launching site.

This rule establishes a safety zone from 9:50 p.m. through 10:45 p.m. on December 31, 2022. The safety zone will cover all navigable waters within 150 yards of the locations where the fireworks will be launched at Sea Otter Point. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone would impact a small designated area of Port Valdez for a duration less than 1 hour. Vessel traffic is rare and normally low for this time of year at the Port of Valdez. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting approximately one hour that will prohibit entry within 150 yards of the launching site at Sea Otter Point, located near the entrance of the Small Boat Harbor in Port of Valdez, AK. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01.

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

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

Throughout this document, “we,” “us,” and “our” refer to the EPA.

The EPA is publishing this final rule approving the SDCAPCD's proposed title V program revisions without prior proposal because we consider it to be a noncontroversial action and anticipate no adverse comments. However, elsewhere in this issue of the Federal Register publication, the EPA is simultaneously publishing a proposal that will also serve as a public notice of San Diego's proposed title V program revisions pursuant to title 40 of the Code of Federal Regulations (CFR), section 70.4(i).

The CAA Amendments of 1990 include title V, which requires states to develop an operating permits program that meets the Federal criteria codified in 40 CFR part 70. The title V program requires certain sources of air pollution to obtain Federal operating permits from their respective states. These Federal operating permits improve enforcement and compliance by consolidating all applicable Federal requirements into one federally enforceable document. Before states can issue title V permits, the EPA must approve their programs as amendments to appendix A of part 70. States may submit revisions to their approved programs for EPA approval.

Title V of the CAA applies to “major stationary sources” as defined in title I, part D of the Act. 40 CFR 70.2 and 40 CFR 51.165(a)(1)(iv)(A) base the definition of “major stationary source” on the nonattainment classification of the area where the source is located. Table 1 shows the attainment/non-attainment/unclassifiable status for the applicable national ambient air quality standards (NAAQS) within the District's jurisdictional boundary. As shown in Table 1, SDCAPCD's jurisdiction is classified as Severe-15 nonattainment for the 2008 and 2015 8-hour ozone NAAQS. 1 The area is designated attainment/unclassifiable for all other NAAQS. See 40 CFR 81.305.

The emission thresholds above which a title V operating permit is required pursuant to 40 CFR 70.3(a) and 40 CFR 51.165(a)(1)(iv)(A)(1) and (2) are shown in Table 2.

Pursuant to 40 CFR 70.4(i), either the EPA or the state may initiate a title V program revision “when the relevant Federal or State statutes or regulations are modified or supplemented.” It is the responsibility of the state to keep the EPA apprised of any proposed modifications to its basic statutory or regulatory authority or procedures. Revision of a state program shall be accomplished as follows:

(a) The state submits a modified program description, Attorney General's statement (if necessary for expanded or additional authority), or other documents as the EPA determines to be necessary. 40 CFR 70.4(i)(2)(i).

(b) After the EPA receives a proposed program revision, it will publish a notice of the proposed change in the Federal Register and provide for a public comment period of at least 30 days. 40 CFR 70.4(i)(2)(ii).

(c) The Administrator shall approve or disapprove program revisions based on the requirements of 40 CFR part 70 and the Act. 40 CFR 70.4(i)(2)(iii).

(d) The EPA must publish a notice of approval in the Federal Register for any substantial program revisions. 40 CFR 70.4(i)(2)(iv).

(e) Approval of nonsubstantial revisions may be given by a letter from the Administrator to the Governor or a designee. 40 CFR 70.4(i)(2)(iv).

(f) A program revision shall become effective upon the approval of the Administrator. 40 CFR 70.4(i)(2)(iv).

Table 3 lists the rules submitted as part of the SDCAPCD's title V program revisions and the dates they were adopted by the District and submitted by the California Air Resources Board (CARB), which is the governor's designee for California rule submittals. 2

SDCAPCD revised the definition of “complete application” in Rule 1401 to incorporate Rule 1418, 3 “Action on Applications,” Section (a): Completeness Determination, by reference.

Additionally, SDCAPCD revised the definition of a major stationary source in Rule 1401, Section (c)(26), to incorporate Rule 20.1, 4 “New Source Review—General Provisions,” Section (c)(30), “Federal Major Stationary Source” by reference. Rule 20.1 contains the definition of a “Federal Major Stationary Source” pursuant to 40 CFR 70.2, Definitions, “Major source.”

The EPA finds that the revised definition of a “complete application” aligns with the applicable 40 CFR part 70 elements. The referenced portion of Rule 1418 outlines the components needed to deem an application complete in accordance with the requirements listed in 40 CFR 70.7(a).

The EPA also finds that the revised definition of a “Major Stationary Source” in SDCAPCD Rule 1401, Section (c)(26), is in accordance with the definition listed in 40 CFR part 70.2. As explained in Section II of this Notice, SDCAPCD's jurisdiction is classified as Severe nonattainment for ozone and designated attainment or unclassifiable for all the other NAAQS. Under the definition of “major stationary source” in 40 CFR 70.2, sources with emission rates equal to or greater than 25 tons of NO X or VOC per year that are located in Severe ozone nonattainment areas constitute major sources. Since Table 20.1—5b of SDCAPCD's Rule 20.1 lists these emission rate values in its definition of “Federal Major Stationary Source,” revised Rule 1401 references the appropriate emissions rates for the San Diego Air Basin based on the EPA's ozone nonattainment classifications.

All of the other revisions to Rule 1401 involve clarifying specific citations to rules that were already incorporated by reference in the previous version of the rule that was adopted on August 13, 2003.

As authorized in 40 CFR 70.4(i), the EPA is fully approving the submitted revisions because we find the proposed changes to Rule 1401 align with 40 CFR part 70 program elements. Rule 1401 refers to the correct VOC and NO X emission thresholds appropriate for a Severe ozone nonattainment area. Therefore, the proposed changes are approvable as title V program revisions. We do not anticipate adverse comments, so we are finalizing this action without proposing it in advance. However, in the Proposed Rules section of this Federal Register , we are simultaneously proposing approval of the same submitted rule. If we receive adverse comments on the proposed revisions by January 23, 2023, we will publish a timely withdrawal in the Federal Register to notify the public that the direct final approval will not take effect. The EPA would then address all public comments in a subsequent final rule based on the proposed action. If we do not receive timely adverse comments, this direct final approval will be effective without further notice on December 23, 2022. Pursuant to section 307(b)(1) of the Act, judicial review of this final agency action may be sought by filing a petition for review in the United States Court of Appeals for the appropriate circuit within 60 days of publication in the Federal Register . We do not plan to open a second comment period on this action, so any parties interested in commenting should do so at this time.

Under the CAA, the Administrator may approve a state title V program submittal that complies with the provisions of the Act and applicable Federal regulations; 40 CFR 70.4(i). Thus, in reviewing title V program submittals, the EPA's role is to approve state choices, provided they meet the criteria of the CAA and the criteria, standards, and procedures defined in 40 CFR part 70.

For that reason, this action:

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

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

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

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

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

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

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

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

• The state did not evaluate environmental justice considerations as part of its title V program revision submittal. There is no information in the record inconsistent with the stated goals of Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples (59 FR 7629, February 16, 1994).

In addition, this action is not approved to apply in Indian country, as defined at 18 U.S.C. 1151, or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. Therefore, this 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. The 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).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 21, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Statutory authority at 5 U.S.C. 5702(b), as implemented at FTR § 301-30 and §§ 301-70.500 through 509, provide the requirements for emergency travel expense reimbursement, including under what conditions an employee may receive reimbursement for travel expenses in emergency situations, what travel expenses are allowed, and what the limitations are for payment of travel expenses. FTR Bulletin 23-04 reminds agencies that they may determine, consistent with case law, that events related to childbirth that occur while on TDY and en route relocation travel may be considered an “incapacitating illness or injury” for the purposes of emergency travel expense reimbursement. As with any situation involving interruption of travel due to illness or injury, each situation should be evaluated by the agency involved based upon the information available and agency policy to determine eligibility for reimbursement of emergency travel expenses enumerated at FTR § 301-30.4.

GSA Bulletin FTR 23-04 can be viewed in its entirety at https://www.gsa.gov/ftrbulletins.

The fishery for coastal migratory pelagic fish in the Gulf includes king mackerel, Spanish mackerel, and cobia, and is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and Atlantic Region (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils, and is implemented by NMFS under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.

All weights for the Gulf migratory group of king mackerel (Gulf king mackerel) described in this temporary rule apply as either round or gutted weight.

The commercial ACL, which is equivalent to the commercial quota, for Gulf king mackerel is divided into separate ACLs (quotas) for hook-and-line and run-around gillnet gear. The use of run-around gillnets for king mackerel is restricted to the Gulf southern zone. The Gulf southern zone includes the EEZ off Collier and Monroe Counties in south Florida. The Gulf southern zone encompasses an area of the EEZ south of a line extending due west from the boundary of Lee and Collier Counties on the southwest coast of Florida, and south of a line extending due east from the boundary of Monroe and Miami-Dade Counties on the southeast coast of Florida (50 CFR 622.369(a)(1)(iii)).

For the 2021-2022 fishing season, the commercial gillnet quota for Gulf king mackerel was 575,400 lb (260,997 kg). Regulations at 50 CFR 622.8(b) and 622.388(a)(1)(i) require NMFS to close any component of the king mackerel commercial sector when its respective quota has been reached, or is projected to be reached, by filing a notification with the Office of the Federal Register. On March 2, 2022, NMFS determined that the 2021-2022 commercial gillnet quota had been reached, and closed the commercial gillnet component for the remainder of the 2021-2022 fishing year (87 FR 11596, March 2, 2022).

NMFS' most recent landings data for the 2021-2022 fishing year indicate that the commercial gillnet component exceeded its 575,400-lb (260,997-kg) quota by 18,962 lb (8,601 kg). The AM specified in 50 CFR 622.388(a)(1)(iii) states if commercial landings of king mackerel caught by run-around gillnet gear exceed the commercial gillnet ACL, then NMFS will reduce the commercial gillnet ACL in the following fishing year by the amount of the ACL overage.

The fishing season for run-around gillnet gear is currently closed from July 1, 2022, through January 16, 2023, and will open at 6 a.m. local time on January 17, 2023. The 2022-2023 fishing year continues through June 30, 2023. On December 7, 2022, NMFS published a final rule implementing Framework Amendment 11 under the FMP (87 FR 74989). The final rule increased the catch limits for Gulf king mackerel, including the commercial quota for harvest by gillnet gear. Effective January 6, 2023, the king mackerel commercial gillnet component quota for the 2022-2023 fishing year will be 671,328 lb (304,509 kg).

Consistent with the AM, NMFS reduces the 2022-2023 commercial gillnet quota by the amount of the 2021-2022 commercial gillnet ACL overage to 634,222 lb (287,678 kg). If king mackerel commercial gillnet landings do not exceed the ACL in the 2022-2023 fishing year, then in the 2023-2024 fishing year, the component's commercial quota will be 671,328 lb (304,509 kg) as specified in 50 CFR 622.384(b)(1)(iii)(B).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 622.388(a)(1)(iii), which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, because prior notice and opportunity for public comment on this temporary rule is unnecessary. Such procedure is unnecessary because the rule that implemented the commercial ACL and the associated AM for the commercial ACL reduction has already been subject to public notice and comment, and all that remains is to notify the public of the commercial ACL reduction.

Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102 and final 2022 allocations were published on December 23, 2021 (86 FR 72859).

The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan (FMP), as published in the Federal Register on December 17, 1993 (58 FR 65936), provided a mechanism for transferring summer flounder commercial quota from one state to another. Two or more states, under mutual agreement and with the concurrence of the NMFS Greater Atlantic Regional Administrator, can transfer or combine summer flounder commercial quota under § 648.102(c)(2). The Regional Administrator is required to consider three criteria in the evaluation of requests for quota transfers or combinations: The transfer or combinations would not preclude the overall annual quota from being fully harvested; the transfer addresses an unforeseen variation or contingency in the fishery; and the transfer is consistent with the objectives of the FMP and the Magnuson-Stevens Fishery Conservation and Management Act. The Regional Administrator has determined these three criteria have been met for the transfer approved in this notification.

North Carolina is transferring 19,458 lb (8,826 kg) to Virginia through mutual agreement of the States. This transfer was requested to repay landings made by an out-of-state permitted vessel under a safe harbor agreement. The revised summer flounder quotas for 2022 are: North Carolina, 3,314,881 lb (1,503,605 kg) and Virginia, 2,805,674 lb (1,272,632 kg).

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR 648.162(e)(1)(i) through (iii), which was issued pursuant to section 304(b), and is exempted from review under Executive Order 12866.