[Federal Register Volume 88, Number 8 (Thursday, January 12, 2023)]
[Notices]
[Pages 2093-2097]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-00500]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OECA-2022-0981; FRL-10417-01-OECA]


Public Comment on EPA's National Enforcement and Compliance 
Initiatives for Fiscal Years 2024-2027

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of public comment period.

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SUMMARY: The Environmental Protection Agency (EPA) is soliciting public 
comment and recommendations on the National Enforcement and Compliance 
Initiatives (NECIs) for fiscal years 2024-2027 (formerly called 
``National Compliance Initiatives''). The EPA focuses enforcement and 
compliance resources on the most serious and widespread environmental 
problems by developing and implementing national program initiatives. 
The initiatives currently underway, modifications to these existing 
initiatives, as well as potential new initiatives under consideration 
are described in the SUPPLEMENTARY INFORMATION section of this 
document, with additional descriptions and data on the current 
initiatives available on our website: http://www.epa.gov/enforcement/national-compliance-initiatives.

DATES: Comments must be received on or before March 13, 2023.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OECA-2022-0981 by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Mail: U.S. Environmental Protection Agency, EPA Docket 
Center, OECA, Docket, Mail Code 28221T, 1200 Pennsylvania Avenue NW, 
Washington, DC 20460.
     Hand Delivery or Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. for this rulemaking. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. For detailed instructions on sending comments and additional 
information on the rulemaking process, see the ``Public Participation'' 
heading of the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Michele McKeever, Chief, National 
Planning and Measures Branch, Office of Enforcement and Compliance 
Assurance, Mail Code: M2221A, Environmental Protection Agency, 1200 
Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-
3688; fax number: 202-564-0027; email address: 
[email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' refer to the EPA.

Table of Contents

I. Written Comments
II. What are EPA's National Enforcement and Compliance Initiatives?
III. On what is the EPA requesting comment?
IV. What are the current FY 2020-2023 National Compliance 
Initiatives?
V. What are the potential initiatives under consideration for FY 
2024-2027?
    A. Existing Initiatives
    B. Proposed NECIs
    C. Public Comments
VI. Can the deadline for comments be extended?

I. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OECA-2022-
0981, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov any information you 
consider to be Confidential Business Information (CBI), Proprietary 
Business Information (PBI),

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or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. The EPA 
will generally not consider comments or comment contents located 
outside of the primary submission (i.e., on the web, cloud, or other 
file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA 
public comment policy; information about CBI, PBI, or multimedia 
submissions; and general guidance on making effective comments.

II. What are EPA's National Enforcement and Compliance Initiatives?

    EPA selects national initiatives every four years to focus 
resources on serious and widespread environmental problems where 
federal enforcement can make a difference. The primary objective of 
these initiatives is to protect human health and the environment by 
holding polluters accountable and compelling regulated entities to 
return to compliance. While formal enforcement remains the key tool to 
address serious environmental problems and significant violations, as 
well as create general deterrence, EPA also uses a variety of 
compliance assurance tools to achieve this objective. To reflect this 
comprehensive approach, EPA has changed the name from National 
Compliance Initiatives to National Enforcement and Compliance 
Initiatives (NECIs).
    In selecting initiatives for the FY 2024-2027 cycle, EPA will use 
the following three criteria to evaluate the existing and proposed new 
initiatives: (1) the need to address serious and widespread 
environmental issues and significant violations impacting human health 
and the environment, particularly in overburdened and vulnerable 
communities; (2) areas where federal enforcement can help ensure 
national consistency, promote a level playing field, and achieve 
compliance; and (3) alignment with the Agency's Strategic Plan.
    EPA aims to align all existing and proposed NECIs with two 
overarching Strategic Plan goals: Goal 1: Tackle the Climate Crisis and 
Goal 2: Take Decisive Action to Advance Environmental Justice. 
Specifically, EPA has incorporated climate resiliency considerations 
where appropriate in the current initiatives, and as discussed below, 
we are proposing a new NECI that would focus specifically on mitigating 
climate change by reducing non-compliance with applicable requirements, 
such as the Clean Air Act and American Innovation and Manufacturing 
Act. Promoting environmental justice, on the other hand, is not 
specific to any one program or statute; it is a core principle of all 
of our enforcement and compliance work. Therefore, rather than 
proposing a separate Environmental Justice NECI, we have fully 
incorporated environmental justice considerations into every existing 
and proposed NECI as we seek to reduce environmental harm in vulnerable 
and overburdened communities.

III. On what is the EPA requesting comment?

    The EPA's Office of Enforcement and Compliance Assurance is 
soliciting public comment and recommendations on the NECIs to be 
undertaken by EPA over the four-year period of fiscal years 2024-2027. 
Specifically, EPA is collecting comment on which of the current 
national initiatives should continue into the FY 2024-2027 cycle, as is 
or modified, or be returned to the standard or ``core'' enforcement 
program at the end of FY 2023. Initiatives returned to the core program 
will continue to be addressed by enforcement and compliance assurance 
measures as appropriate. In addition, the EPA specifically invites 
comment on two potential new NECIs and two other areas under 
consideration for further evaluation as potential NECIs. The public 
also is invited to propose other areas for consideration as a NECI. 
This notice is an agency planning document and does not impose any 
legally binding requirements on any outside parties.

IV. What are the current FY 2020-2023 National Compliance Initiatives?

    EPA has six initiatives underway from the FY 2020-2023 cycle. These 
initiatives are:
    Creating Cleaner Air for Communities by Reducing Excess Emissions 
of Harmful Pollutants. This initiative, started in FY 2020, addresses 
the adverse health and environmental effects from exceedances of the 
National Ambient Air Quality Standards (NAAQS) for ozone to which 
sources of volatile organic compounds (VOCs) contribute, as well as 
health impacts on communities from emissions of hazardous air 
pollutants (HAPs). People living in non-attainment areas or in 
communities that are near sources of HAPs may face significant risks to 
their health and environment. Sources emitting VOCs may contribute to 
non-attainment or may adversely affect the attainment status of an 
area. VOCs are a key component in the formation of ground-level ozone 
(a constituent of photochemical smog) and secondary organic aerosols, 
both of which may impact ecosystems and can cause adverse health 
effects. HAPs are pollutants that are known or suspected to cause 
cancer or other serious health effects.
    Stopping Aftermarket Defeat Devices for Vehicles and Engines. This 
initiative, begun in FY 2020, focuses on stopping the manufacture, 
sale, and installation of defeat devices on vehicles and engines used 
on public roads as well as on nonroad vehicles and engines. Numerous 
companies manufacture and sell hardware and software specifically 
designed to defeat required emissions controls on vehicles and engines. 
Illegally-modified vehicles and engines contribute substantial excess 
pollution that harms public health and impedes efforts to attain air 
quality standards. EPA estimates that emissions increase significantly 
when emissions controls are fully deleted. For example, if the 
emissions controls are deleted from a diesel truck, NOX 
increases by ~310%, NMHC increases by ~1,140%, CO increases by ~120% 
and PM increases by ~40%.
    Reducing Hazardous Air Emissions from Hazardous Waste Facilities. 
The Agency began this initiative in 2017 with the goal of ensuring that 
treatment, storage, and disposal facilities and large quantity 
generators, many of which are in vulnerable or overburdened 
communities, comply with Resource Conservation and Recovery Act 
requirements to control organic air emissions. Widespread air emissions 
are associated with the improper management of hazardous waste. These 
emissions can include constituents known or suspected to cause cancer, 
birth defects, or that seriously impact the environment. In addition, 
leaks from these facilities can contribute to nonattainment with the 
NAAQS for ozone.
    Reducing Risks of Accidental Releases at Industrial and Chemical 
Facilities. This initiative, which began in 2016, seeks to decrease the 
likelihood of chemical accidents and ensure that thousands of 
facilities nationwide, many of which are in vulnerable or overburdened 
communities, comply with section 112(r) of the CAA and the Chemical 
Accident Prevention regulations, also known as the Risk Management 
Program. EPA regulates facilities that manufacture, use, store, or 
otherwise handle a listed chemical in a process at or above an 
established

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threshold quantity. A broader statutory obligation under CAA section 
112(r)(1), the General Duty Clause (GDC), applies to all stationary 
sources with regulated substances or other extremely hazardous 
substances, regardless of the quantity of chemical involved. 
Catastrophic accidents at these facilities--historically about 150 each 
year--can result in fatalities and serious injuries, evacuations, and 
harm to human health and the environment.
    Reducing Significant Non-Compliance in the National Pollutant 
Discharge Elimination System (NPDES) Program. This initiative, which 
began in FY 2020, undertaken in collaboration with the NPDES states, 
seeks to reduce the number of facilities in significant non-compliance 
(SNC) with their NPDES permits. Compliance with NPDES permits is 
critical to protecting our nation's waters. Improving surface water 
quality protects public health and reduces potential pollution impacts 
on drinking water supplies, aquatic life and public enjoyment of 
fishable and swimmable waters. SNC-level violations can include 
effluent limit exceedances, failure to submit required monitoring 
reports, and failure to meet schedule requirements. These SNC-level 
effluent violations pose a significant threat to public health and the 
environment, resulting in higher and more harmful concentrations of 
bacteria, disease-causing pathogens, and high amounts of other 
pollutants, such as sediment, oil and grease, chemicals, nutrients, and 
metals.
    Reducing Non-Compliance with Drinking Water Standards at Community 
Water Systems. This initiative, which began in FY 2020, seeks to ensure 
that the approximately 50,000 regulated drinking water systems that 
serve water to residents year-round, referred to as Community Water 
Systems (CWSs), comply with the Safe Drinking Water Act. In FY 2018, 
40% of the nation's CWSs violated at least one drinking water standard. 
In addition, there were monitoring and reporting violations at more 
than 30% of CWSs, and health-based violations at 7% of CWSs. The EPA 
works with states, tribes, territories, local governments, and the 
regulated community to ensure delivery of safe water to communities by 
carrying out shared responsibilities and creating a more effective 
drinking water enforcement program nationally.
    Additional information on these initiatives is available online at: 
http://www.epa.gov/enforcement/national-compliance-initiatives.

V. What are the potential initiatives under consideration for FY 2024-
2027?

A. Existing Initiatives

    For the six current initiatives from the FY 2020-2023 cycle, EPA is 
soliciting input on whether we should continue, modify, or conclude the 
initiative and return it to the ``core'' or standard enforcement 
program. As noted above, initiatives returned to the core enforcement 
program will continue to be addressed by the Agency even though they 
are no longer national initiatives. The EPA is planning to continue the 
following four existing initiatives into the FY 2024-2027 cycle:
    1. Creating Cleaner Air for Communities by Reducing Excess 
Emissions of Harmful Pollutants. The EPA plans to continue this 
initiative for the FY 2024-2027 cycle, with a focus on processes for 
which widespread noncompliance continues to be identified: flares, 
storage tanks, wastewater treatment, and incineration/combustion. In 
addition, continuing this initiative can further the EPA Strategic Plan 
goals of advancing environmental justice and addressing climate change 
by prioritizing inspections at sources impacting vulnerable or 
pollution-burdened communities and by achieving pollutant reductions 
with the co-benefit of reducing emissions of methane which contributes 
to climate change. For example, FY 2021 enforcement actions resulted in 
a reduction of approximately 6.7 million pounds of VOCs and HAPs and 
over 15.7 million pounds of methane reduced.
    2. Reducing Risks of Accidental Releases at Industrial and Chemical 
Facilities. The EPA plans to continue this initiative for the FY 2024-
2027 cycle because EPA has found that many regulated facilities still 
are not adequately managing the risks they pose or ensuring the safety 
of their facilities to protect surrounding communities. The EPA plans 
to continue this initiative with a focus on enforcement responses to 
catastrophic accidents and integrating the Strategic Plan goals of 
advancing environmental justice and addressing climate change by 
increasing inspections in vulnerable and overburdened areas, such as 
fenceline communities, and considering vulnerability of facilities to 
natural hazards and climate change as criteria when selecting 
facilities for inspection. In addition, the GDC requirements cannot be 
delegated to states, tribes, or territories, and while RMP regulations 
may be delegated, EPA remains the sole enforcement authority in all but 
nine states.
    3. Reducing Significant Non-Compliance in the National Pollutant 
Discharge Elimination System (NPDES) Program. EPA plans to continue 
this initiative for the FY 2024-2027 cycle, with a focus on assuring 
the worst effluent violators are addressed and on reducing the effluent 
violation component of the SNC rate (during the FY 2020-2023 cycle of 
this initiative, EPA and the states together cut the national SNC rate 
in half, to 9.0%, focused on reducing missing data and improving data 
quality; however, a large number of facilities continue to have 
effluent violations). While focusing on addressing the worst effluent 
SNC violators, the initiative would be expanded to include municipal 
permittees that are covered under a general permit, as unlawful 
discharges from facilities with a general permit can cause significant 
adverse impacts to communities, particularly overburdened communities. 
Approximately 30% of facilities with SNC-level effluent violations are 
located in communities with potential environmental justice concerns. 
In addition, this initiative proposes to seek remedies in enforcement 
actions to advance climate resiliency, where appropriate. Therefore, 
this initiative can further the Strategic Plan goals of advancing 
environmental justice and addressing climate change. There are 
approximately 46,000 major and minor individually NPDES-permitted 
facilities in the country. Providing coordinated, national leadership 
under a national initiative enables EPA and the states to work together 
to achieve progress on reducing SNC-level effluent violations.
    4. Reducing Non-Compliance with Drinking Water Standards at 
Community Water Systems. EPA plans to continue this initiative for the 
FY 2024-2027 cycle because while EPA, working with the states, has made 
considerable progress in improving Safe Drinking Water Act (SDWA) 
compliance, further improvement in compliance is needed. In FY 2022, 
EPA conducted 140 inspections at community water systems serving more 
than 3 million users. Enforcement actions by EPA and states, 
territories, and tribes with primacy that reduced the risks of 
potential drinking water violations for 900,000 people. In the last 
year, however, nearly 22.5 million people still consumed water provided 
by a CWS with at least one health-based violation. The most common 
health-based violations are violations of the Lead and Copper Rule, the 
Disinfection Byproducts Rule, and the Ground Water Rule. Therefore, the 
EPA plans to

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continue this initiative with a focus on these rules. In addition, this 
initiative can further the EPA Strategic Plan goals of advancing 
environmental justice and addressing climate change. Specifically, 
opportunities to advance environmental justice are extensive as 
overburdened communities, including those in Indian country, often face 
SDWA compliance challenges. This initiative would seek to increase the 
number of inspections at systems serving overburdened communities and 
ensuring that communities know about health-based violations and steps 
to take to protect their health. In addition, the initiative would 
consider climate change resiliency by ensuring compliance with SDWA 
section 1433, which requires CWSs serving more than 3,300 people to 
develop risk and resilience assessments and emergency response plans 
which must include the risks posed by climate change and natural 
hazards on the infrastructure of the system.
    The EPA proposes to return the following two current initiatives to 
the standard ``core'' enforcement program:
    1. Reducing Toxic Air Emissions from Hazardous Waste Facilities. 
This initiative succeeded in significantly raising the visibility and 
awareness of the RCRA organic air emissions standards among both 
regulators and the regulated community. The Agency began this 
initiative in 2017, and has concluded 362 addressing actions, including 
101 enforcement cases, and has prevented the release of over 120 
million pounds of total air pollutants to the environment. Almost all 
of these pollutant reductions were from facilities located in 
overburdened communities, providing a direct environmental benefit to 
nearby populations. In addition to taking enforcement actions against 
hazardous waste Treatment, Storage, and Disposal Facilities (TSDFs) and 
Large Quantity Generators to compel compliance, EPA also worked with 
states and industry to provide training with the goal of improving 
compliance going forward. EPA will continue efforts to build state 
capacity in this program. Accordingly, the Agency proposes to return 
work in this area to the core program at the end of FY 2023.
    2. Stopping Aftermarket Defeat Devices for Vehicles and Engines. 
Since the inception of the NCI in FY 2020, EPA has resolved 
approximately 130 cases, addressing over 460,000 violations. In FY 2022 
alone, EPA concluded 41 cases with over $19 million in civil penalties. 
The Agency has made significant progress on this initiative, addressed 
serious violations through enforcement actions reducing pollution and 
improving air quality, and raised awareness of the concerns. 
Accordingly, the Agency proposes to return work in this area to the 
core program in at the end of FY 2023.

B. New NECIs

    The EPA specifically invites comment on two potential new NECIs and 
two other areas under consideration for further evaluation as potential 
NECIs. As noted above, we have developed the proposed NECIs in 
alignment with the EPA Strategic Plan's emphasis on tackling the 
climate crisis and promoting environmental justice. We therefore are 
proposing a new NECI focused on climate change mitigation, while 
seeking opportunities to enhance climate resiliency in other NECIs, 
where appropriate. Promoting environmental justice, on the other hand, 
is a core element of all enforcement and compliance work and we are 
incorporating those considerations in every NECI--existing ones that we 
propose to retain as well as proposed new initiatives--as we seek to 
reduce public health impacts and environmental harm in vulnerable and 
overburdened communities.
    The two potential new NECIs are described as follows:
    1. Mitigating Climate Change. A potential climate NECI would seek 
to combat climate change through a focus on reducing non-compliance 
with the illegal import, production, use, and sale of 
hydrofluorocarbons (HFCs) pursuant to the American Innovation and 
Manufacturing Act of 2020 (AIM Act); excess emissions from sources 
within certain industrial sectors, including municipal solid waste 
landfills and oil and natural gas production facilities; as well as 
non-compliance with other requirements such as mobile source, fuels, 
and methane regulations. Climate change poses substantial risk to 
public health and safety, water resources, agriculture, infrastructure, 
and ecosystems. Addressing climate change using EPA's available 
compliance and enforcement tools is critical to EPA's mission of 
protecting human health and the environment, particularly protecting 
populations that may be especially vulnerable to the effects of climate 
change, including those in overburdened, underserved, and economically 
distressed communities. Although EPA has sought to incorporate climate 
considerations in the current initiatives, with a particular focus on 
climate resiliency, this NECI would focus on achieving the Agency's 
climate mitigation goals in order to reduce climate disruption and the 
increases in global temperatures that are likely to occur without 
enforcement of the Agency's climate mitigation regulations.
    2. Addressing PFAS Contamination. A potential PFAS NECI would focus 
on implementing the commitments to action made in EPA's 2021-2024 Per- 
and Poly-fluoroalkyl substances (PFAS) Strategic Roadmap (https://www.epa.gov/system/files/documents/2021-10/pfas-roadmap_final-508.pdf). 
In the Roadmap, EPA committed to holding polluters and other 
responsible parties accountable for their actions, ensuring that they 
assume responsibility for characterization and remediation efforts and 
prevent future releases of PFAS. Many communities and ecosystems are 
exposed to PFAS in drinking water, surface water, groundwater, soils, 
sediment, air, and through product exposures. Exposure to PFAS can lead 
to adverse human health effects and has been identified as an urgent 
public health and environmental issue facing communities across the 
nation. Current peer-reviewed scientific studies have shown that 
exposure to certain levels of PFAS may lead to reproductive effects 
such as decreased fertility, developmental effects or delays in 
children, and increased risk of some cancers, including prostate, 
kidney, and testicular cancers. A PFAS NECI initially would focus on 
identifying the extent of PFAS exposures that pose a threat to human 
health and the environment and pursuing responsible parties for those 
exposures. Where appropriate, EPA would work with its State partners on 
this initiative and seek to supplement PFAS enforcement work already 
performed by many State regulators. To the extent that PFAS cleanup 
efforts occur under CERCLA, EPA will develop a CERCLA enforcement 
discretion and contribution protection settlement policy regarding PFAS 
contamination. For example, EPA intends to focus enforcement efforts on 
PFAS manufacturers whose actions result in the release of significant 
amounts of PFAS into the environment, and on federal facilities that 
may be a significant source of PFAS contamination. EPA does not intend 
to pursue entities where equitable factors do not support assigning 
CERCLA responsibility.
    The EPA also seeks comment on two additional areas for further 
consideration for possible development as NECIs. Both topics are 
significant enforcement priorities for the Agency but resource 
constraints limit the number of NECIs that the Agency can pursue:
    1. Reducing Exposure to Lead. The EPA has existing efforts to 
tackle lead contamination in all environmental

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media. Exposure to lead is one of the country's most pressing 
environmental and human health concerns. Americans can be exposed to 
lead via lead-based paint, drinking water, soil, and air emissions. 
Ongoing exposures to lead in the environment present a health risk to 
many people nationwide, especially in communities overburdened by 
pollution, which are disproportionately communities of color and low-
income communities. Some of these exposures result from non-compliance 
with laws designed to reduce or eliminate exposure and enforcement can 
play a key role in addressing this non-compliance. EPA's Lead Strategy 
(https://www.epa.gov/lead/final-strategy-reduce-lead-exposures-and-disparities-us-communities, at Objective E) sets forth a comprehensive 
strategy to implement its wide range of authorities to address 
noncompliance, obtain cleanups, deter future violations, and mitigate 
harm using available resources. EPA seeks comment on whether, in 
addition to the existing Lead strategy, we should identify our lead 
enforcement commitments as a new NECI.
    2. Addressing Coal Combustion Residuals (CCR). EPA has on-going 
efforts to address noncompliance with RCRA regulations for the safe 
disposal of CCRs, commonly known as coal ash, from coal-fired power 
plants. There are approximately 300 CCR facilities nationwide, 
comprised of 772 CCR units (239 CCR landfills and 533 CCR surface 
impoundments). However, these facilities are not evenly distributed 
throughout the country; approximately 45% are located in eight states 
(IA, IL, KY, MI, MO, NC, and TX). Most CCR impoundments and landfills 
are unlined, allowing metals and other contaminants to leach into 
groundwater. The impact or harm to human health and environment from 
CCR noncompliance is significant and can occur through direct exposure 
to impoundment wastewater or consumption of contaminated drinking 
water. EPA seeks comment on the idea of a CCR-focused NECI to reduce 
noncompliance in this sector.

C. Public Comments

    The EPA will consider all comments to these proposals as it moves 
forward in the decision-making process. Additionally, the public is 
invited to propose any other areas for consideration as NECIs. 
Information in support of this Notice of Public Comment is available 
online at: http://www.epa.gov/enforcement/national-compliance-initiatives.

VI. Can the deadline for comments be extended?

    EPA must receive public comments on potential NECIs by March 13, 
2023 in order to complete consideration of public comment, issue a 
selection memo, and begin development of implementation strategies 
prior to the beginning of the FY 2023-2027 cycle.

Lawrence E. Starfield,
Acting Assistant Administrator, Office of Enforcement and Compliance 
Assurance.
[FR Doc. 2023-00500 Filed 1-11-23; 8:45 am]
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