Table of Contents I. Statutory and Regulatory Background II. Overview of Final Rule III. Adjustments by Component A. Cybersecurity and Infrastructure Security Agency B. U.S. Customs and Border Protection C. U.S. Immigration and Customs Enforcement D. U.S. Coast Guard E. Transportation Security Administration IV. Administrative Procedure Act V. Regulatory Analyses A. Executive Orders 12866 and 13563 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act D. Paperwork Reduction Act VI. Signing Authority I. Statutory and Regulatory Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74 section 701 (Nov. 2, 2015)) (2015 Act). 1 The 2015 Act amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (28 U.S.C. 2461 note) to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Act required agencies to: (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through issuance of an interim final rule (IFR) and (2) make subsequent annual adjustments for inflation. Through the “catch-up” adjustment, agencies were required to adjust the maximum amounts of civil monetary penalties to more accurately reflect inflation rates.

For the subsequent annual adjustments, the 2015 Act requires agencies to increase the penalty amounts by a cost-of-living adjustment. The 2015 Act directs OMB to provide guidance to agencies each year to assist agencies in making the annual adjustments. The 2015 Act requires agencies to make the annual adjustments no later than January 15 of each year and to publish the adjustments in the Federal Register .

Pursuant to the 2015 Act, DHS undertook a review of the civil penalties that DHS and its components administer. 2 On July 1, 2016, DHS published an IFR adjusting the maximum civil monetary penalties with an initial “catch-up” adjustment, as required by the 2015 Act. 3 DHS calculated the adjusted penalties based upon nondiscretionary provisions in the 2015 Act and upon guidance that OMB issued to agencies on February 24, 2016. 4 The adjusted penalties were effective for civil penalties assessed after August 1, 2016 (the effective date of the IFR), whose associated violations occurred after November 2, 2015 (the date of enactment of the 2015 Act). On January 27, 2017, DHS published a final rule making the annual adjustment for 2017. 5 On April 2, 2018, DHS made the 2018 annual inflation adjustment. 6 On April 5, 2019, DHS made the 2019 annual inflation adjustment. 7 On June 17, 2020, DHS made the 2020 annual inflation adjustment. 8 On October 18, 2021, DHS made the 2021 annual inflation adjustment. 9 On January 11, 2022, DHS made the 2022 annual inflation adjustment. 10

This final rule makes the 2023 annual inflation adjustments to civil monetary penalties pursuant to the 2015 Act and pursuant to guidance OMB issued to agencies on December 15, 2022. 11 The penalty amounts in this final rule will be effective for penalties assessed after January 13, 2023 where the associated violation occurred after November 2, 2015. Consistent with OMB guidance, the 2015 Act does not change previously assessed penalties that the agency is actively collecting or has collected.

The adjusted penalty amounts will apply to penalties assessed after the effective date of this final rule. We discuss civil penalties by DHS component in Section III below. For each component identified in Section III, below, we briefly describe the relevant civil penalty (or penalties), and we provide a table showing the increase in the penalties for 2023. In the table for each component, we show (1) the penalty name, (2) the penalty statutory and or regulatory citation, (3) the penalty amount as adjusted in the 2022 final rule, (4) the cost-of-living adjustment multiplier for 2023 that OMB provided in its December 15, 2022, guidance, and (5) the new 2023 adjusted penalty. The 2015 Act instructs agencies to round penalties to the nearest $1. For a more complete discussion of the method used for calculating the initial “catch-up” inflation adjustments and a component-by-component breakdown to the nature of the civil penalties and relevant legal authorities, please see the IFR preamble at 81 FR 42987-43000.

In the following sections, we briefly describe the civil penalties that DHS and its components, the Cybersecurity and Infrastructure Security Agency (CISA), the U.S. Customs and Border Protection (CBP), the U.S. Immigration and Customs Enforcement (ICE), the U.S. Coast Guard (USCG), and the Transportation Security Administration (TSA), assess. Other components not mentioned do not impose any civil monetary penalties for 2023. We include tables at the end of each section, which list the individual adjustments for each penalty.

The Cybersecurity and Infrastructure Security Agency (CISA) administers only one civil penalty that the 2015 Act affects. That penalty assesses fines for violations of the Chemical Facility Anti-Terrorism Standards (CFATS). CFATS is a program that regulates the security of chemical facilities that, in the discretion of the Secretary, present high levels of security risk. DHS established the CFATS program in 2007 pursuant to section 550 of the Department of Homeland Security Appropriations Act of 2007 (Pub. L. 109-295). 12 The CFATS regulation is located in part 27 of title 6 of the Code of Federal Regulations (CFR). Below is a table showing the 2023 adjustment for the CFATS penalty that CISA administers.

The U.S. Customs and Border Protection (CBP) assesses civil monetary penalties under various titles of the United States Code (U.S.C.) and the CFR. These include penalties for certain violations of title 8 of the CFR regarding the Immigration and Nationality Act of 1952 (Pub. L. 82-414, as amended) (INA). The INA contains provisions that impose penalties on persons, including carriers and aliens, who violate specified provisions of the INA. The relevant penalty provisions appear in numerous sections of the INA; however, CBP has enumerated these penalties in regulation in one location—8 CFR 280.53. For a complete list of the INA sections for which penalties are assessed, in addition to a brief description of each violation, see the 2016 IFR preamble at 81 FR 42989-42990. For a complete list and brief description of the non-INA civil monetary penalties assessed by CBP subject to adjustment and a discussion of the history of the DHS and CBP adjustments to the non-INA penalties, see the 2019 annual inflation adjustment final rule preamble at 84 FR 13499, 13500 (April 5, 2019).

Below is a table showing the 2023 adjustment for the penalties that CBP administers.

U.S. Immigration and Customs Enforcement (ICE) assesses civil monetary penalties for certain employment-related violations arising from the INA. ICE's civil penalties are located in title 8 of the CFR.

There are three different sections in the INA that impose civil monetary penalties for violations of the laws that relate to employment actions: sections 274A, 274B, and 274C. ICE has primary enforcement responsibilities for two of these civil penalty provisions (sections 274A and 274C), and the Department of Justice (DOJ) has enforcement responsibilities for one of these civil penalty provisions (section 274B). The INA, in sections 274A and 274C, provides for imposition of civil penalties for various specified unlawful acts pertaining to the employment eligibility verification process (Form I-9, Employment Eligibility Verification), the employment of unauthorized aliens, and document fraud.

Because both DHS and DOJ implement the three employment-related penalty sections in the INA, both Departments' implementing regulations reflect the civil penalty amounts. For a complete description of the civil money penalties assessed and a discussion of DHS's and DOJ's efforts to update the penalties in years past, see the IFR preamble at 81 FR 42991. Below is a table showing the 2023 adjustment for the penalties that ICE administers. 13

The Coast Guard is authorized to assess 140 penalties involving maritime safety and security and environmental stewardship that are critical to the continued success of Coast Guard missions. Various statutes in titles 14, 16, 19, 33, 42, 46, and 49 of the U.S.C. authorize these penalties. Titles 33 and 46 authorize the vast majority of these penalties as these statutes deal with navigation, navigable waters, and shipping. For a complete discussion of the civil monetary penalties assessed by the Coast Guard, see the 2016 IFR preamble at 81 FR 42992.

The Coast Guard has identified the penalties it administers, adjusted those penalties for inflation, and is listing those new penalties in a table located in the CFR—specifically, Table 1 in 33 CFR 27.3. Table 1 in 33 CFR 27.3 identifies the statutes that provide the Coast Guard with civil monetary penalty authority and sets out the inflation-adjusted maximum penalty that the Coast Guard may impose pursuant to each statutory provision. Table 1 in 33 CFR 27.3 provides the current maximum penalty for violations that occurred after November 2, 2015.

The applicable civil penalty amounts for violations occurring on or before November 2, 2015, are set forth in previously published regulations amending 33 CFR part 27. To find the applicable penalty amount for a violation that occurred on or before November 2, 2015, look to the prior versions of the CFR that pertain to the date on which the violation occurred.

Table 4 below shows the 2023 adjustment for the penalties that the Coast Guard administers.

In 1990, Congress passed the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA) to provide for regular adjustments for inflation of civil monetary penalties (CMPs). As amended by the Debt Collection Improvement Act of 1996, the FCPIAA required that the head of each Federal agency review and, if necessary, adjust by regulation the CMPs assessed under statutes enforced by the agency at least once every 4 years.

On November 2, 2015, the President of the United States signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Improvements Act), which further amended the FCPIAA and requires Federal agencies to adjust their CMPs annually for inflation no later than January 15 of each year. The requirements of the 2015 Improvements Act apply to the NRC's maximum CMP amounts for (1) a violation of the Atomic Energy Act (AEA) of 1954, as amended, or any regulation or order issued under the AEA, codified in § 2.205(j) of Title 10 of the Code of Federal Regulations (10 CFR), “Civil penalties”; and (2) a false claim or statement made under the Program Fraud Civil Remedies Act, codified in § 13.3, “Basis for civil penalties and assessments.”

Pursuant to the 2015 Improvements Act, the NRC published today in the Rules section of the Federal Register the revised maximum daily base CMP, based on the percentage change in the consumer price index between October 2021 and October 2022, and codified in § 2.205. In connection with this final rule, the NRC is publishing a corresponding update to the NRC's Enforcement Policy to adjust the monetary amounts listed in Section 8.0, “Table of Base Civil Penalties.” This monetary adjustment does not include item f. since its monetary value is based on the estimated or actual cost of authorized disposal and is not calculated based on the monetary value codified in § 2.205(j). Adjustments to item f. base civil penalty amounts are being examined under a separate effort.

Accordingly, the NRC has revised its Enforcement Policy to read as follows:

This policy statement does not contain any new or amended collection of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq ). Existing collections of information were approved by the Office of Management and Budget (OMB), approval numbers 3150-0010 and 3150-0136.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This action is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has determined that it is not a “major rule” as defined by the Congressional Review Act.

Congress passed the Federal Civil Penalties Inflation Adjustment Act of 1990 (FCPIAA) to allow for regular adjustment for inflation of civil monetary penalties (CMPs), maintain the deterrent effect of such penalties and promote compliance with the law, and improve the collection of CMPs by the Federal government (Pub L. 101-410, 104 Stat. 890; 28 U.S.C. 2461 note). Pursuant to this authority, and as amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-34, 110 Stat. 1321-373), the NRC increased via rulemaking the CMP amounts for violations of the Atomic Energy Act of 1954, as amended (AEA) (codified at § 2.205 of Title 10 of the Code of Federal Regulations (10 CFR), “Civil penalties”) and Program Fraud Civil Remedies Act (codified at § 13.3, “Civil penalties and assessments”) on four occasions between 1996 and 2008. 1

On November 2, 2015, Congress amended the FCPIAA through the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Improvements Act) (Sec. 701, Pub. L. 114-74, 129 Stat. 599). The 2015 Improvements Act required that the head of each agency perform an initial “catch-up” adjustment via rulemaking, adjusting the CMPs enforced by that agency according to the percentage change in the Consumer Price Index (CPI) between the month of October 2015 and the month of October of the calendar year when the CMP amount was last established by Congress. The NRC published this catch-up rulemaking on July 1, 2016 (81 FR 43019).

The 2015 Improvements Act also requires that the head of each agency continue to adjust CMP amounts, rounded to the nearest dollar, on an annual basis. Specifically, each CMP is to be adjusted based on the percentage change between the CPI for the month of October, and the CPI for the month of October for the previous year. The NRC most recently adjusted its civil penalties for inflation according to this statutory formula on January 14, 2022 (87 FR 2310). This year's adjustment is based on the increase in the CPI from October 2021 to October 2022.

Section 234 of the AEA limits civil penalties for violations of the AEA to $100,000 per day, per violation (42 U.S.C. 2282). However, as discussed in Section I, “Background,” of this document, the NRC has increased this amount several times since 1996 per the FCPIAA, as amended. Using the formula in the 2015 Improvements Act, the $326,163 amount last established in January 2022 will increase by 7.745 percent, resulting in a new CMP amount of $351,424. This is based on the increase in the CPI from October 2021 (276.589) to October 2022 (298.012). Therefore, the NRC is amending § 2.205 to reflect a new maximum CMP under the AEA in the amount of $351,424 per day, per violation. This represents an increase of $25,261.

Monetary penalties under the Program Fraud Civil Remedies Act were established in 1986 at $5,000 per claim (Pub. L. 99-509, 100 Stat. 1938; 31 U.S.C. 3802). The NRC also has adjusted this amount (currently set at $12,537) multiple times pursuant to the FCPIAA, as amended, since 1996. Using the formula in the 2015 Improvements Act, the $12,537 amount last established in January 2022 will also increase by 7.745 percent, resulting in a new CMP amount of $13,508. Therefore, the NRC is amending § 13.3 to reflect a new maximum CMP amount of $13,508 per claim or statement. This represents an increase of $971.

As permitted by the 2015 Improvements Act, the NRC may apply these increased CMP amounts to any penalties assessed by the agency after the effective date of this final rule (January 13, 2023), regardless of whether the associated violation occurred before or after this date (Pub. L. 114-74, 129 Stat. 600; 28 U.S.C. 2461 note). The NRC assesses civil penalty amounts for violations of the AEA based on the class of licensee and severity of the violation, in accordance with the NRC Enforcement Policy, which is available under ADAMS Accession No. ML22336A179. A corresponding update to the NRC Enforcement Policy is being published today in the Rules section of the Federal Register to reflect the updated CMP amount in § 2.205.

The 2015 Improvements Act expressly exempts this final rule from the notice and comment requirements of the Administrative Procedure Act by directing agencies to adjust CMPs for inflation “notwithstanding section 553 of title 5, United States Code” (Pub. L. 114-74, 129 Stat. 599; 28 U.S.C. 2461 note). As such, this final rule is being issued without prior public notice or opportunity for public comment, with an effective date of January 13, 2023.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; 28 U.S.C. 2461 note; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 2 and 13:

In order to improve the effectiveness of CMPs and to maintain their deterrent effect, the Federal Civil Penalties Inflation Adjustment Act of 1990, 28 U.S.C. 2461 note (“the Inflation Adjustment Act”), as further amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74) (“the 2015 Act”), requires Federal agencies to adjust each CMP provided by law within the jurisdiction of the agency. The 2015 Act required agencies to adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rulemaking and to make subsequent annual adjustments for inflation, notwithstanding 5 U.S.C. 553. DOE's initial catch-up adjustment interim final rule was published June 28, 2016 (81 FR 41790), and adopted as final without amendment on December 30, 2016 (81 FR 96349). The 2015 Act also provides that any increase in a CMP shall apply only to CMPs, including those whose associated violation predated such increase, which are assessed after the date the increase takes effect.

In accordance with the 2015 Act, the Office of Management and Budget (OMB) must issue annually guidance on adjustments to civil monetary penalties. This final rule to adjust civil monetary penalties for 2023 is issued in accordance with applicable law and OMB's guidance memorandum on implementation of the 2023 annual adjustment. 1

The method of calculating CMP adjustments applied in this final rule is required by the 2015 Act. Under the 2015 Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the October Consumer Price Index for all Urban Consumers (CPI-U) preceding the date of the adjustment, and the prior year's October CPI-U. Pursuant to the aforementioned OMB guidance memorandum, the adjustment multiplier for 2023 is 1.07745. In order to complete the 2023 annual adjustment, each CMP is multiplied by the 2023 adjustment multiplier. Under the 2015 Act, any increase in CMP must be rounded to the nearest multiple of $1.

The following list summarizes DOE authorities containing CMPs, and the penalties before and after adjustment.

The 2015 Act requires that annual adjustments for inflation subsequent to the initial “catch-up” adjustment be made notwithstanding 5 U.S.C. 553.

This final rule has been determined not to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was not subject to review under that Executive order by the Office of Information and Regulatory Affairs of the Office of Management and Budget.

DOE has determined that this final rule is covered under the Categorical Exclusion found in DOE's National Environmental Policy Act regulations at paragraph A5 of appendix A to subpart D, 10 CFR part 1021, which applies to a rulemaking that amends an existing rule or regulation and that does not change the environmental effect of the rule or regulation being amended. Accordingly, neither an environmental assessment nor an environmental impact statement is required.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment. As discussed previously, the 2015 Act requires that annual inflation adjustments subsequent to the initial catch-up adjustment be made notwithstanding 5 U.S.C. 553. Because a notice of proposed rulemaking is not required for this action pursuant to 5 U.S.C. 553, or any other law, no regulatory flexibility analysis has been prepared for this final rule.

This final rule imposes no new information collection requirements subject to the Paperwork Reduction Act.

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally requires Federal agencies to examine closely the impacts of regulatory actions on State, local, and tribal governments. Section 201 excepts agencies from assessing effects on State, local or tribal governments or the private sector of rules that incorporate requirements specifically set forth in law. Because this rule incorporates requirements specifically set forth in 28 U.S.C. 2461 note, DOE is not required to assess its regulatory effects under section 201. Unfunded Mandates Reform Act sections 202 and 205 do not apply to this action because they apply only to rules for which a general notice of proposed rulemaking is published. Nevertheless, DOE has determined that this regulatory action does not impose a Federal mandate on State, local, or tribal governments or on the public sector.

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 proposed rule that may affect family well-being. This final rule 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.

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and 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. No further action is required by Executive Order 13132.

With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on executive agencies the general duty to adhere to the following requirements: (1) eliminate drafting errors and ambiguity; (2) write regulations to minimize litigation; and (3) provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 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 rule meets the relevant standards of Executive Order 12988.

The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines.

Executive Order 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 OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated 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 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 the Office of Information and Regulatory Affairs (OIRA) as a significant energy action. For any proposed 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 regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects.

As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of this final rule prior to the effective date set forth at the outset of this rulemaking. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 801(2).

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

This document of the Department of Energy was signed on December 20, 2022, by Samuel Walsh, General Counsel, 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 set forth in the preamble, DOE amends chapters II, III, and X of title 10 of the Code of Federal Regulations as set forth below.

I. Statutory and Regulatory Background

For monetary policy purposes, section 19 of the Federal Reserve Act (“Act”) imposes reserve requirements on certain types of deposits and other liabilities of depository institutions. 1 Regulation D, which implements section 19 of the Act, requires that a depository institution meet reserve requirements by holding cash in its vault, or if vault cash is insufficient, by maintaining a balance in an account at a Federal Reserve Bank (“Reserve Bank”). 2 Section 19 also provides that balances maintained by or on behalf of certain institutions in an account at a Reserve Bank may receive earnings to be paid by the Reserve Bank at least once each quarter, at a rate or rates not to exceed the general level of short-term interest rates. 3 Institutions that are eligible to receive earnings on their balances held at Reserve Banks (“eligible institutions”) include depository institutions and certain other institutions. 4 Section 19 also provides that the Board may prescribe regulations concerning the payment of earnings on balances at a Reserve Bank. 5 Prior to these amendments, Regulation D established IORB at 3.90 percent. 6

The Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 4.40 percent. The amendment represents a 0.50 percentage point increase in IORB. This decision was announced on December 14, 2022, with an effective date of December 15, 2022, in the Federal Reserve Implementation Note that accompanied the FOMC's statement on December 14, 2022. The FOMC statement stated that the Committee decided to raise the target range for the federal funds rate to 4 1/4 to 4 1/2 percent.

The Federal Reserve Implementation Note stated:

As a result, the Board is amending § 204.10(b)(1) of Regulation D to establish IORB at 4.40 percent.

In general, the Administrative Procedure Act (“APA”)  7 imposes three principal requirements when an agency promulgates legislative rules (rules made pursuant to Congressionally-delegated authority): (1) publication with adequate notice of a proposed rule; (2) followed by a meaningful opportunity for the public to comment on the rule's content; and (3) publication of the final rule not less than 30 days before its effective date. The APA provides that notice and comment procedures do not apply if the agency for good cause finds them to be “unnecessary, impracticable, or contrary to the public interest.”  8 Section 553(d) of the APA also provides that publication at least 30 days prior to a rule's effective date is not required for (1) a substantive rule which grants or recognizes an exemption or relieves a restriction; (2) interpretive rules and statements of policy; or (3) a rule for which the agency finds good cause for shortened notice and publishes its reasoning with the rule. 9

The Board has determined that good cause exists for finding that the notice, public comment, and delayed effective date provisions of the APA are unnecessary, impracticable, or contrary to the public interest with respect to these final amendments to Regulation D. The rate change for IORB that is reflected in the final amendment to Regulation D was made with a view towards accommodating commerce and business and with regard to their bearing upon the general credit situation of the country. Notice and public comment would prevent the Board's action from being effective as promptly as necessary in the public interest and would not otherwise serve any useful purpose. Notice, public comment, and a delayed effective date would create uncertainty about the finality and effectiveness of the Board's action and undermine the effectiveness of that action. Accordingly, the Board has determined that good cause exists to dispense with the notice, public comment, and delayed effective date procedures of the APA with respect to this final amendment to Regulation D.

The Regulatory Flexibility Act (“RFA”) does not apply to a rulemaking where a general notice of proposed rulemaking is not required. 10 As noted previously, the Board has determined that it is unnecessary and contrary to the public interest to publish a general notice of proposed rulemaking for this final rule. Accordingly, the RFA's requirements relating to an initial and final regulatory flexibility analysis do not apply.

In accordance with the Paperwork Reduction Act (“PRA”) of 1995, 11 the Board reviewed the final rule under the authority delegated to the Board by the Office of Management and Budget. The final rule contains no requirements subject to the PRA.

For the reasons set forth in the preamble, the Board amends 12 CFR part 204 as follows:

The objective of this regulation is to adjust the maximum CMPs for inflation through a final rulemaking to retain the deterrent effect of such penalties.

The Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Debt Collection Improvement Act of 1996 (1996 Act) and the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (2015 Act) (collectively, 1990 Act, as amended), requires all Federal agencies with the authority to enforce CMPs to evaluate and adjust, if necessary, those CMPs each year to ensure that they continue to maintain their deterrent value and promote compliance with the law. Section 3(2) of the 1990 Act, as amended, defines a civil monetary penalty  1 as any penalty, fine, or other sanction that: (1) either is for a specific monetary amount as provided by Federal law or has a maximum amount provided for by Federal law; (2) is assessed or enforced by an agency pursuant to Federal law; and (3) is assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts. 2

The FCA imposes and enforces CMPs through the Farm Credit Act  3 and the FDPA, as amended. 4 FCA's regulations governing CMPs are found in 12 CFR parts 622 and 623. Part 622 establishes rules of practice and procedure applicable to formal and informal hearings held before the FCA, and to formal investigations conducted under the Farm Credit Act. Part 623 prescribes rules regarding persons who may practice before the FCA and the circumstances under which such persons may be suspended or debarred from practice before the FCA.

Section 5.32(a) of the Farm Credit Act provides that any Farm Credit System (System) institution or any officer, director, employee, agent, or other person participating in the conduct of the affairs of a System institution who violates the terms of an order that has become final pursuant to section 5.25 or 5.26 of the Farm Credit Act must pay a maximum daily amount of $1,000, 5 for each day such violation continues. This CMP maximum was set by the Farm Credit Amendments Act of 1985, which amended the Farm Credit Act. Orders issued by the FCA under section 5.25 or 5.26 of the Farm Credit Act include temporary and permanent cease-and-desist orders. In addition, section 5.32(h) of the Farm Credit Act provides that any directive issued under sections 4.3(b)(2), 4.3A(e), or 4.14A(i) of the Farm Credit Act “shall be treated” as a final order issued under section 5.25 of the Farm Credit Act for purposes of assessing a CMP.

Section 5.32(a) of the Farm Credit Act also states that “[a]ny such institution or person who violates any provision of the [Farm Credit] Act or any regulation issued under this Act shall forfeit and pay a civil penalty of not more than $500  6 per day for each day during which such violation continues.” This CMP maximum was set by section 423 of the Agricultural Credit Act of 1987, which was enacted in 1988 and amended the Farm Credit Act. Current inflation-adjusted CMP maximums are set forth in existing § 622.61 of FCA regulations. 7

The FCA also enforces the FDPA, as amended, which requires FCA to assess CMPs for a pattern or practice of committing certain specific actions in violation of the National Flood Insurance Program. The FDPA states that the maximum CMP for a violation of that Act is $2,000. 8 9

The 2015 Act required all Federal agencies to adjust the CMPs yearly, starting January 15, 2017.

Under Section 4(b) of the 1990 Act, as amended, annual adjustments are to be made no later than January 15. 10 Section 6 of the 1990 Act, as amended, states that any increase to a civil monetary penalty under this 1990 Act applies only to civil monetary penalties, including instances in which an associated violation predated the annual increase, which are assessed after the date the increase takes effect.

Section 5(b) of the 1990 Act, as amended, defines the term “cost-of-living adjustment” as the percentage (if any) for each civil monetary penalty by which (1) the Consumer Price Index (CPI) for the month of October of the calendar year preceding the adjustment, exceeds (2) the CPI for the month of October one year before the month of October referred to in (1) of the calendar year in which the amount of such civil monetary penalty was last set or adjusted pursuant to law. 11

The increase for each CMP adjusted for inflation must be rounded using a method prescribed by section 5(a) of the 1990 Act, as amended, by the 2015 Act. 12

If a civil monetary penalty is subject to a cost-of-living adjustment under the 1990 Act, as amended, but is adjusted to an amount greater than the amount of the adjustment required under the Act within the 12 months preceding a required cost-of-living adjustment, the agency is not required to make the cost-of-living adjustment to that CMP in that calendar year. 13

The adjustment requirement affects two provisions of section 5.32(a) of the Farm Credit Act. For the 2023 yearly adjustments to the CMPs set forth by the Farm Credit Act, the calculation required by the 2022 White House Office of Management and Budget (OMB) guidance  14 is based on the percentage by which the CPI for October 2022 exceeds the CPI for October 2021. The OMB set forth guidance, as required by the 2015 Act, 15 with a multiplier for calculating the new CMP values. 16 The 2022 OMB multiplier for the 2023 CMPs is 1.07745.

The adjustment also affects the CMPs set by the Flood Disaster Protection Act of 1973, as amended. The adjustment multiplier is the same for all FCA enforced CMPs, set at 1.07745. The maximum CMPs for violations were created in 2012 by the Biggert-Waters Act, which amended the Flood Disaster Protection Act of 1973.

The inflation-adjusted CMP currently in effect for violations of a final order occurring on or after January 15, 2022, is a maximum daily amount of $2,544. 17 Multiplying the $2,544 CMP by the 2022 OMB multiplier, 1.07745, yields a total of $2,741.03. When that number is rounded as required by section 5(a) of the 1990 Act, as amended, the inflation-adjusted maximum increases to $2,741. Thus, the new CMP maximum is $2,741, for violations that occur on or after January 15, 2023.

The inflation-adjusted CMP currently in effect for violations of the Farm Credit Act or regulations issued under the Farm Credit Act occurring on or after January 15, 2022, is a maximum daily amount of $1,151. 18 Multiplying the $1,151 CMP maximum by the 2022 OMB multiplier, 1.07745, yields a total of $1,240.14. When that number is rounded as required by section 5(a) of the 1990 Act, as amended the inflation-adjusted maximum increases to $1,240. Thus, the new CMP maximum is $1,240, for violations that occur on or after January 15, 2023.

The existing maximum CMP for a pattern or practice of flood insurance violations pursuant to 42 U.S.C. 4012a(f)(5) occurring on or after January 15, 2022, is $2,392. Multiplying $2,392 by the 2022 OMB multiplier, 1.07745, yields a total of $2,577.26. When that number is rounded as required by section 5(a) of the 1990 Act, as amended, the new maximum assessment of the CMP for violating 42 U.S.C. 4012a(f)(5) is $2,577. Thus, the new CMP maximum is $2,577, for violations that occur on or after January 15, 2023.

The 1990 Act, as amended, gives Federal agencies no discretion in the adjustment of CMPs for the rate of inflation. Further, these revisions are ministerial, technical, and noncontroversial. For these reasons, the FCA finds good cause to determine that public notice and an opportunity to comment are impracticable, unnecessary, and contrary to the public interest pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), and adopts this rule in final form.

Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), the FCA hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities. Each of the banks in the System, considered together with its affiliated associations, has assets and annual income in excess of the amounts that would qualify them as small entities. Therefore, System institutions are not “small entities” as defined in the Regulatory Flexibility Act.

For the reasons stated in the preamble, part 622 of chapter VI, title 12 of the Code of Federal Regulations is amended to read as follows:

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2022-1664; Project Identifier MCAI-2022-01585-R” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Kristi Bradley, Program Manager, COS Program Management Section, Operational Safety Branch, Compliance & Airworthiness Division, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email kristin.bradley@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2022-0251-E, dated December 14, 2022 (EASA AD 2022-0251-E), to correct an unsafe condition on Airbus Helicopters Model EC 130 T2 helicopters with modification 079809 incorporated in production.

This AD was prompted by a report of a crack in the tailboom. During the preceding flight, the pilot experienced a humming sound and vibrations in the pedals. A subsequent balancing of the tail rotor drive shaft revealed an excessive vibration level. The FAA is issuing this AD to address an excessive vibration level on the tail rotor drive shaft, which could result in failure of the tail rotor drive shaft and subsequent loss of yaw control of the helicopter.

You may examine EASA AD 2022-0251-E in the AD docket at regulations.gov under Docket No. FAA-2022-1664.

EASA AD 2022-0251-E requires repetitively checking the balancing of the tail rotor drive shaft by measuring the vibration level. Depending on the results, EASA AD 2022-0251-E requires contacting Airbus Helicopters to obtain approved instructions, accomplishing those instructions, and reporting the results to Airbus Helicopters. Lastly, EASA AD 2022-0251-E prohibits installing certain part-numbered tail rotor drive shafts on any helicopter unless its requirements are met.

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 the ADDRESSES section.

The FAA reviewed Airbus Helicopters Emergency Alert Service Bulletin No. EC130-05A042, Revision 0, dated December 14, 2022. This service information specifies procedures for measuring the vibration level on the tail rotor drive shaft and reporting the results to Airbus Helicopters.

The FAA also reviewed AMM Task 65-11-01,5-1A, Adjustment—Balancing of the tail rotor drive line (with the STEADY Control tuning equipment)—Tail Drive Line POST MOD 079809 and AMM Task 65-11-01,5-1B, Adjustment—Balancing of the tail rotor drive shaft (with the VIBREX 2000 adjustment equipment)—Tail Drive Line POST MOD 079809, both Update 2 and dated July 3, 2022. This service information specifies procedures for measuring the vibration level on the tail rotor drive shaft, analyzing the results, and balancing the tail rotor drive line or shaft.

These helicopters have been approved by EASA and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with the European Union, EASA, its technical representative, has notified the FAA of the unsafe condition described in its AD. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other helicopters of the same type design.

This AD requires accomplishing the actions specified in EASA AD 2022-0251-E, described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and discussed under “Differences Between this AD and the EASA AD.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, EASA AD 2022-0251-E is incorporated by reference in this FAA final rule. This AD, therefore, requires compliance with EASA AD 2022-0251-E in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this AD. Using common terms that are the same as the heading of a particular section in EASA AD 2022-0251-E does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2022-0251-E. Service information referenced in EASA AD 2022-0251-E for compliance will be available at regulations.gov under Docket No. FAA-2022-1664 after this final rule is published.

EASA AD 2022-0251-E requires tail rotor drive shaft checks, whereas this AD requires tail rotor drive shaft inspections because those actions must be accomplished by persons authorized under 14 CFR 43.3. Depending on the results of the vibration check, EASA AD 2022-0251-E specifies contacting Airbus Helicopters to obtain approved instructions and accomplishing those instructions, whereas this AD requires accomplishing corrective action in accordance with a method approved by the FAA, EASA, or Airbus Helicopters' EASA Design Organization Approval. For inspection results of more than 1.4 inch per second, this AD requires reporting those results to Airbus Helicopters before further flight, whereas EASA AD 2022-0251-E is unclear about reporting that information. For inspection results of 1.4 or less inch per second, EASA AD 2022-0251-E specifies to report results within 14 days, whereas this AD requires reporting those results within 10 days.

The FAA considers this AD interim action. If final action is later identified, the FAA might consider further rulemaking then.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies foregoing notice and comment prior to adoption of this rule because the tail rotor drive shaft is critical to the control of a helicopter and a failure of the tail rotor drive shaft could occur during any phase of flight without previous indication. The FAA also has no information pertaining to how quickly the condition may propagate to failure. In light of this and, depending how many hours the helicopter has accumulated, for some operators the initial inspection must be accomplished before further flight. For other operators, the initial inspection must be accomplished before accumulating 50 total hours time-in-service or within three months, whichever occurs first, which is shorter than the time necessary for the public to comment and for publication of the final rule. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forego notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 9 helicopters of U.S. Registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Inspecting the tail rotor drive shaft takes about 4 work-hours for an estimated cost of $340 per helicopter and $3,060 for the U.S. fleet, per inspection cycle. Reporting information to the manufacturer takes about 1 work-hour for an estimated cost of $85 per helicopter for each report.

The corrective action that may be needed as a result of the inspection could vary significantly from helicopter to helicopter. The FAA has no data to determine the costs to accomplish the corrective action or the number of helicopters that may require corrective action.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

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

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

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

For the reasons discussed, I certify that this AD:

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

(2) Will not affect intrastate aviation in Alaska.

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to Leonardo S.p.a. Model A109, A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters, modified by STC SR01812LA with A109 Float (with/without Liferafts System) DART Aerospace 634.4100 Kit Series part number (P/N) 634.4101, 634.4102, 634.4103, 634.4104, 634.4106, or 634.4107 with float assembly P/N 644.0501, 644.0502, 644.0503, 644.0504, 644.0505, or 644.0506 installed. The NPRM published in the Federal Register on July 12, 2022 (87 FR 41263).

The NPRM was prompted by a report, received by the FAA, of two forward floats not deploying after an inadvertent activation. It was discovered that the plunger assembly caused the forward floats to not deploy. Further investigation revealed that a design change of the plunger assembly in 2009 inadvertently changed the position of the bushing from a press fit to a threaded fit. The dimensions for the threaded fit were preventing the bushing from fully clearing the ball bearings when bottoming out on the solenoid on the valve assemblies. The plunger assembly is contained within the float assembly and reservoir assembly. An emergency float kit consists of float assemblies, reservoir assemblies, and additional components. These emergency float kits (634.4100 Kit Series) are installed on Leonardo S.p.a. Model A109, A109A, A109A II, A109C, A109E, A109K2, A109S, and AW109SP helicopters modified by STC SR01812LA. In the NPRM, the FAA proposed to require repairing or replacing affected float assemblies with a method approved by the Manager, Los Angeles ACO Branch, FAA. The FAA is issuing this AD to address the unsafe condition on these products.

The FAA received a comment from one commenter, Bristow Group Inc. (VTOL). The following presents the comment received on the NPRM and the FAA's response to the comment.

Bristow Group Inc. (VTOL) requested clarification regarding if credit will be given for previous compliance with DART SB2021-05.

The FAA agrees to allow credit for the accomplishment of DART Aerospace Service Bulletin SB2021-05, Revision N/C, dated December 6, 2021, provided those actions were accomplished prior to the effective date of this AD. Accordingly, the FAA has added the Credit for Previous Actions paragraph in this final rule.

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

The FAA reviewed DART Aerospace Service Bulletin SB2021-05, Revision N/C, dated December 6, 2021. This service bulletin specifies replacing certain serial-numbered float assemblies or, if the serial number is not listed in the service bulletin, contacting DART to verify effectivity. The service bulletin also provides procedures for removing the float assemblies from the helicopter, discharging the reservoirs, shipping the float assemblies, and re-installing the float assemblies.

The FAA also reviewed DART Aerospace Instructions for Continued Airworthiness ICA109-1, Rev. U, dated October 27, 2020. This service information provides description, operation, disassembly, inspection, assembly, repair, and testing instructions as well as an illustrated parts list for emergency float kits and emergency float with life raft kits.

The FAA estimates that this AD affects 25 helicopters of U.S. registry. Labor rates are estimated at $85 per work-hour. Based on these numbers, the FAA estimates the following costs to comply with this AD.

Replacing each float assembly takes about 4 work-hours for an estimated cost of $340 per helicopter and up to $8,500 for the U.S. fleet. The FAA has received no definitive data that would enable the FAA to provide parts cost estimates for the required actions; however, according to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators. The FAA does not control warranty coverage for affected operators. As a result, the FAA has included all known costs in the cost estimate.

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates listed airport names and the associated ARP geographic coordinates for those airports and amends the airspace description header information by changing the airspace title.

Class C airspace areas are designed to improve air safety by reducing the risk of midair collisions in high volume airport terminal areas and to enhance the management of air traffic operations in that area. While amending Class D and Class E airspace areas in the vicinity of Niagara Falls and Buffalo, NY, the FAA identified that the Greater Buffalo International Airport and Lancaster Airport names and associated ARP geographic coordinates required updating in the Greater Buffalo International Airport Class C airspace description. Additionally, the FAA identified a technical amendment to the Greater Buffalo International Airport airspace description header information necessary to change the title of the Class C airspace area to reflect city and state instead of the airport name the airspace is designated around.

This action updates the airport names and ARP geographic coordinates for both airports to match the FAA's NASR database information and changes the title of the Class C airspace area to comply with FAA Order JO 7400.2 airspace legal description guidance.

Class C airspace areas are published in paragraph 4000 of FAA Order JO 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.

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

This action amends 14 CFR part 71 by amending the Greater Buffalo International Airport, NY, Class C airspace description to update the Greater Buffalo International Airport and Lancaster Airport names and associated ARP geographic coordinates. This action also makes a technical amendment to the airspace description header by changing the airspace title.

The “Greater Buffalo International Airport” name is changed to “Buffalo Niagara International Airport” and the “Lancaster Airport” name is changed to “Buffalo-Lancaster Regional Airport”. Additionally, the ARP geographic coordinates for the Buffalo Niagara International Airport are changed from “lat. 42°56′26″ N, long. 78°43′56″ W” to “lat. 42°56′26″ N, long. 78°43′50″ W” and the ARP geographic coordinates for the Buffalo-Lancaster Regional Airport are changed from “lat. 42°55′20″ N, long. 78°36′44″ W” to “lat. 42°55′19″ N, long. 78°36′43″ W”. Lastly, the airspace title in the airspace description header is changed from “Greater Buffalo International Airport, NY” to “Buffalo, NY”. The airport name and ARP geographic coordinates updates are made to coincide with the FAA's NASR database information. The airspace title technical amendment is made to comply with airspace legal description guidance contained in FAA Order JO 7400.2.

This action does not affect the boundaries, altitudes, or operating requirements of the airspace. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

FAA Order JO 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action making technical amendments to the Buffalo, NY, Class C airspace description qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this airspace action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. 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. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends airspace in Manassas, VA, to support IFR operations in the area. This update is administrative change and does not change the airspace boundaries or operating requirements.

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

This amendment to 14 CFR part 71 amends the Class D airspace and Class E surface airspace at Manassas Regional Airport/Harry P. Davis Field, Manassas, VA., by updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database. In addition, this action makes the editorial changes replacing the term Notice to Airmen with Notice to Air Missions and replacing the term Airport/Facility Directory with Chart Supplement.

This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

FAA Order JO 7400.11, Airspace Designations and Reporting Points is published yearly and effective on September 15.

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 is non-controversial and unlikely to result in adverse or negative comments. 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. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

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

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

I. The Portable Fuel Container Safety Act of 2020

The PFCSA  1 requires the Commission to promulgate, not later than 30 months after December 27, 2020, a final rule to require flame mitigation devices in portable fuel containers that impede the propagation of flame into the container. 15 U.S.C. 2056d(b)(1), (2). However, the Commission is not required to promulgate a final rule for a class of portable fuel containers within the scope of the PFCSA if the Commission determines at any time that:

• There is a voluntary standard for flame mitigation devices for those containers that impedes the propagation of flame into the container;

• The voluntary standard is or will be in effect not later than 18 months after the date of enactment of the PFCSA ( i.e., June 27, 2022); and

• The voluntary standard is developed by ASTM International or such other standard development organization that the Commission determines to have met the intent of the PFCSA.

The PFCSA requires the Commission to promulgate a final rule to require flame mitigation devices on portable fuel containers by June 27, 2023. 15 U.S.C. 2056d(b)(1). The PFCSA provides an exception to the rulemaking requirement if the Commission determines that a voluntary standard for a class of portable fuel containers has requirements for flame mitigation devices that impede the propagation of flames into the container. 15 U.S.C. 2056d(b)(3)(A). The Commission must publish any such determination in the Federal Register , and the requirements of such a voluntary standard “shall be treated as a consumer product safety rule.” 15 U.S.C. 2056d(b)(3)(B) and (b)(4).

The PFCSA does not define the term “flame mitigation device.” However, ASTM F3429, Standard Specification for Flame Mitigation Devices Installed in Disposable and Pre-Filled Flammable Liquid Containers, defines a “flame mitigation device” as “a device or feature attached to, installed in, or otherwise integral to, a container that is expected to inhibit the propagation of an external flame into the container.” A common type of flame mitigation device used with portable fuel containers is a flame arrestor (also known as flame arrester or flash arresting screen). A flame arrestor is a screen that quenches and cools a flame so that it cannot pass through the flame arrestor. Other examples of flame mitigation devices include, but are not limited to, expanded metal mesh, screens, bladders, pinhole restrictors, and pumps.

The PFCSA defines the term “portable fuel container” to mean any container or vessel (including any spout, cap, and other closure mechanism or component of such container or vessel or any retrofit or aftermarket spout or component intended or reasonably anticipated to be for use with such container):

• Intended for flammable liquid fuels with a flash point less than 140 degrees Fahrenheit, including gasoline, kerosene, diesel, ethanol, methanol, denatured alcohol, or biofuels;

• That is a consumer product with a capacity of 5 gallons or less; and

• That the manufacturer knows or reasonably should know is used by consumers for transporting, storing, and dispensing flammable liquid fuels.

Some examples of portable fuel containers include portable gasoline containers and containers for cigarette lighter fluid, charcoal lighter fluid, and liquid fireplace fuel (such as firepot fuel). Products that store substances like liquified petroleum gas (“LP gas,” commonly called “propane”) are not within scope of the statutory definition of “portable fuel containers” because these substances are only liquid at high pressure, and when exposed to ambient conditions, readily vaporize.

The principal hazards that flame mitigation devices protect against are flame jetting and container rupturing. “Flame jetting,” as defined in ASTM F3429, is a “phenomenon where an external ignition source causes a sudden ignition within a liquid container that directionally propels burning vapor and liquid from the mouth of the container.” Container rupturing is similar to flame jetting, except the burning vapor and liquid exit through a rupture in the container. The injury potential associated with each hazard is the same, severe burns and possible death. Flame jetting typically injures people other than the person holding the container, while container rupturing typically injures the person holding the container. In this notice, references to flame jetting also include container rupturing.

The PFCSA allows the Commission to separate portable fuel containers into different classes. 15 U.S.C. 2056d(b)(3)(A). CPSC staff evaluated the specifications for many portable fuel containers and recommends separating portable fuel containers into two classes: containers sold pre-filled, and containers sold empty. Below are staff's descriptions and assessments under the PFCSA of the relevant portable fuel container voluntary standards for containers sold pre-filled, and containers sold empty, which together, encompass all known classes of portable fuel containers. A more detailed description of staff's assessment of the voluntary standards is available in staff's memorandum. 2

Containers sold pre-filled are likely to be discarded by the consumer once the contents (the flammable liquid fuel) are completely used; whereas containers sold empty are specifically designed to be reused. Pre-filled containers and empty containers are used differently and have different product lifespans. The differences also mean that the flame mitigation devices will be subjected to different conditions that can affect performance over time, and therefore, requirements differ for pre-filled versus empty containers. For example, pre-filled containers, such as those used for charcoal lighter fluid, can be squeezed easily, and therefore, are likely to create a larger vacuum force pulling external flames into the container.

Portable fuel containers sold pre-filled are within the scope of ASTM F3429/F3429M-20, Standard Specification for Performance of Flame Mitigation Devices Installed in Disposable and Pre-Filled Flammable Liquid Containers. ASTM lists the standard as a dual standard in inch-pound (F3429 designation) and metric (F3429M designation) units. Both designations of the standard are substantively identical except for the inch-pound vs metric units used in the standard. ASTM F3429/F3429M was first published in 2020 and has not been revised since publication of the standard. The standard was developed by the ASTM F15.72 subcommittee for Pre-Filled Containers of Flammable and Combustible Liquids.

The standard requires two performance tests of the container's flame mitigation devices. The first is an endurance test, in which the container is subjected to an external and stationary 2.5-inch flame at the mouth of the container for 30 seconds. The second test is a flashback test, in which the container is subjected to an external flash fire near the container mouth. The container passes each test if the contents of the container do not catch fire or otherwise ignite in each of five consecutive trials. The two tests demonstrate that the flame mitigation device impedes the propagation of two different types of ignition sources, a stationary flame and a moving flame.

Portable fuel containers sold empty, such as gas cans, are designed to receive fuel from a service station pump for transfer later into a fuel-powered product, such as a lawnmower. They are designed to be used in this manner many times and to hold flammable liquids for long periods, over large temperature variations.

Safety cans are portable fuel containers sold empty that the U.S. Occupational Safety and Health Administration (OSHA) generally regulates for use in the workplace. OSHA requires spring-loaded or self-closing openings and flash-arresting screens on safety cans, 29 CFR 1926.155(l). OSHA also requires that safety cans be approved by a nationally recognized testing laboratory (NRTL), 29 CFR 1926.155(a). The OSHA requirements do not specify to which standard an NRTL must test the safety can. Safety cans tend to be more expensive than typical gas cans but are available for purchase by consumers at many physical and online retailers.

Portable fuel containers sold empty for general consumer use are within the scope of ASTM F3326-21, Standard Specification for Flame Mitigation Devices on Portable Fuel Containers. “Portable Fuel Containers,” as used in the title of ASTM F3326, refers to containers that meet the scope of ASTM F852, Standard Specification for Portable Gasoline, Kerosene, and Diesel Containers for Consumer Use. ASTM F3326 was initially published in 2019 and has been revised twice. The current version of the standard is ASTM F3326-21.

ASTM F3326 requires a performance test of the container's flame mitigation devices after the container is exposed to several use-and-abuse tests. Use-and-abuse tests are designed to ensure a flame mitigation device still functions after simulating normal use and reasonably foreseeable abuse of the container over time. The flame mitigation device performance test demonstrates that the container prevents a flame traveling at five meters per second from igniting the contents of the container in each of five consecutive trials. The test also demonstrates that the flame mitigation device impedes the propagation of a rapidly travelling flame front into the container.

Portable fuel containers that are sold empty and meet the OSHA requirements for safety cans are within the scope of ANSI/CAN/UL/ULC 30:2022 (UL 30:2022), Standard for Safety Metallic and Nonmetallic Safety Cans for Flammable and Combustible Liquids. UL 30:2022 is a voluntary standard that covers various requirements for safety cans, including requirements for flame mitigation devices. The standard is under the jurisdiction of UL Standard Technical Panel (STP) 30. The current version of the standard, UL 30:2022, was published in 2022, and it has been in effect since April 29, 2022.

Section 18 of UL 30 has two performance test options. The first option is to subject the safety can mouth to an external and stationary 2.5-inch flame for 30 seconds. The safety can pass the test if the interior content of the safety can does not catch fire or otherwise ignite in each of five consecutive trials. The second performance test option is used for safety cans that have a flame arrestor. In this performance test, a 7.5-inch flame is balanced on one side of the flame arrestor as a fuel-air mixture passes through. The flame arrestor fails if the flame crosses the flame arrestor and ignites the fuel-air mixture. CPSC staff advises that compliance to section 18 of UL 30:2022 would meet the OSHA requirement for a “flash arresting screen.” 29 CFR 1926.155(l).

On May 24, 2022, the Commission published a notice of availability seeking public comment on a CPSC staff draft document, “Voluntary Standards Evaluation Under the Portable Fuel Container Safety Act of 2020,” which provided staff's initial assessment and recommendations to the Commission regarding whether the relevant voluntary standards qualify for the exception from the rulemaking requirement under the PFCSA. 87 FR 31540. Six comments were submitted in response to the request for comments. The comments generally supported staff's recommendations and did not suggest any other voluntary standards the Commission should consider when making a determination under the PFCSA, or any class of portable fuel containers that the referenced voluntary standards fail to address. A brief summary of the comments and staff's responses is provided below.

Comment: The Portable Fuel Container Manufacturers Association (PFCMA) supports CPSC staff's recommendation to require that products meet the three staff-recommended voluntary standards, as applicable. The PFCMA concurs with CPSC staff's assessment that the voluntary standards meet the requirements of the PFCSA. The PFCMA notes that each of the referenced standards was developed in collaboration with industry, consumer safety advocates, and CPSC experts. Consequently, the PFCMA indicates that the standards promote practical approaches to mitigating the risk of flame-jetting for each application. The PFCMA states that its members have been compliant with the relevant voluntary standards for several years.

Comment: Zippo Manufacturing Company (ZMC) states that it supports CPSC staff's recommendation to require pre-filled portable fuel containers to meet ASTM F3429. ZMC recommends that CPSC refer to the list found in ASTM F3429 when listing “other” flame mitigation devices. The commenter states that the ASTM standard specifies that “other examples of [flame mitigation devices] include, but are not limited to, expanded metal mesh, screens, bladders, pinhole restrictors, and pumps.”

Response: Staff included in its briefing memorandum the examples of flame mitigation devices listed in ASTM F3429/F3429M-2020, which include, but are not limited to, expanded metal mesh, screens, bladders, pinhole restrictors, and pumps.

Comment: Calumet Specialty Products Partners, L.P.'s Performance Brand business unit indicates that it did not object to the Commission requiring pre-filled portable fuel containers to meet ASTM F3429/F3429M-20, but they request a delayed effective date of December 31, 2023, due to supply chain delays, testing delays, and time needed to design flame mitigation devices. The commenter also provides technical suggestions for potential future development of ASTM F3429/F3429M-20.

SolvChem, Inc., also requests additional time to comply with the voluntary standard, requesting an effective date of January 2024, for three reasons: (1) time needed to develop the devices; (2) time needed to test the devices to the standard; and (3) time needed to purchase the tooling and equipment necessary to produce the devices. This commenter asserts that tooling and equipment lead times are at an all-time high, with some lead times expected to be 6 months to a year. The commenter clarifies that the purchase of tooling and equipment must occur after the development and approval of any potential device.

Response: Under the PFCSA, a voluntary standard that the Commission determines meets the requirements of the rulemaking exception under PFCSA “shall be treated as a consumer product safety rule promulgated under section 2058 of this title beginning on the date which is the later of” either “180 days after publication of the Commission's determination” or “the effective date contained in the voluntary standard.” 15 U.S.C. 2056d(b)(4). Here, the later date is 180 days after publication of the Commission's determinations. Therefore, the relevant voluntary standards will be effective pursuant to the PFCSA 180 days after publication of the Commission's determinations in this document. We note that the voluntary standard referred to by the commenter has been in place since 2020.

Comment: R.B. Howes & Co. Inc., asks whether “additives” would be considered a “fuel.” The commenter understands that, based on its reading of CPSC staff's voluntary standards evaluation for the PFCSA, the provisions apply to fuels with a flash point below 140 degrees Fahrenheit. The commenter states that it manufactures diesel fuel additives, which, it asserts, are not fuels and have flash points above the 140-degree Fahrenheit threshold. However, the commenter states that it is unclear whether additives with flash points within the scope of the PFCSA would be exempted from the requirements, and therefore, requests clarification.

Similarly, an anonymous commenter asks for the Commission to define “liquid fuels.” This commenter indicates that they represent a contract manufacturer of various chemical products. The commenter understands that, based on their reading of CPSC staff's voluntary standards evaluation for the PFCSA, the provisions would apply only to fuels and not “fuel-adjacent products,” such as fuel additives. The commenter requests a definition for “liquid fuels” so that businesses have clarity.

Response: The PFCSA defines “portable fuel containers” as products “intended for flammable liquid fuels with a flash point less than 140 degrees Fahrenheit, including gasoline, kerosene, diesel, ethanol, methanol, denatured alcohol, or biofuels.” 15 U.S.C. 2056d(b)(8)(A). Fuels generally are considered substances that can be burned to release energy, and liquids with a flash point below 140 degrees Fahrenheit are, by the definition of flash point, capable of being burned at that temperature. Staff assessed all known flammable liquid fuels with a flash point less than 140 degrees as part of the evaluation of the voluntary standards under the PFCSA. Accordingly, while classification of a particular container for purposes of the PFCSA is case-specific, as a general matter, when a liquid with a flash point less than 140 degrees Fahrenheit is intended to be used as, or in, a fuel mixture to support combustion, it is a fuel under the definition of “portable fuel containers” as indicated in the PFCSA.

As noted in section I of this document, under the PFCSA, the Commission is not required to promulgate a final rule if the requirements for an exception are met for a class of portable fuel containers within the scope of the PFCSA. 15 U.S.C. 2056d(b)(3).

Portable fuel containers sold pre-filled and portable fuel containers sold empty are together subject to three voluntary standards. Based on CPSC staff's assessment and recommendations regarding the three voluntary standards, and consideration of the comments submitted, the Commission makes the following determinations  3 regarding ASTM F3429/F3429M-20, ASTM F3326-21, and section 18 of UL 30:2022 under section 2056d(b)(3)(A) of the PFCSA.

The Commission determines that for portable fuel containers sold pre-filled, ASTM F3429/F3429M-20, Standard Specification for Performance of Flame Mitigation Devices Installed in Disposable and Pre-Filled Flammable Liquid Containers, meets the requirements of the exception to rulemaking under the PFCSA. ASTM F3429/F3429M-20 contains effective performance requirements for flame mitigation devices in portable fuel containers that impede the propagation of flame into the container; the standard was in effect before June 27, 2022; and the standard was developed by ASTM International. See 15 U.S.C. 2056d(b)(3)(A). Based on these findings, the Commission determines that rulemaking is not required under the PFCSA for portable fuel containers sold pre-filled, because ASTM F3429/F3429M-20 meets the requirements of the PFCSA.

The Commission determines that for portable fuel containers sold empty, ASTM F3326-21, Standard Specification for Flame Mitigation Devices on Portable Fuel Containers, meets the requirements of the exception to rulemaking under the PFCSA. ASTM F3326-21 contains effective performance requirements for flame mitigation devices in portable fuel containers that impede the propagation of flame into the container; the standard was in effect before June 27, 2022; and the standard was developed by ASTM International. 15 U.S.C. 2056d(b)(3)(A). Based on these findings, the Commission determines that rulemaking is not required under the PFCSA for portable fuel containers sold empty, because ASTM F3326-21 meets the requirements of the PFCSA.

The Commission determines that for safety cans sold empty, ANSI/CAN/UL/ ULC 30:2022, Standard for Safety Metallic and Nonmetallic Safety Cans for Flammable and Combustible Liquids, meets the requirements of the exception to rulemaking under the PFCSA. Section 18 of UL 30:2022 contains effective performance requirements for flame mitigation devices in safety cans that impede the propagation of flame into the container; the standard was in effect before June 27, 2022; and the standard was developed by UL, which, like ASTM International, is an ANSI-accredited standards developer and is experienced in the development of consumer product voluntary standards. 15 U.S.C. 2056d(b)(3)(A). Based on these findings, the Commission determines that rulemaking is not required under the PFCSA for portable fuel containers that are safety cans sold empty, because section 18 of UL 30:2022 meets the requirements of the PFCSA.

The Commission is publishing this notice of Commission determinations in the Federal Register , as required under section 2056d(b)(3)(B) of the PFCSA. The three portable fuel container voluntary standards will become effective as mandatory consumer product safety rules on July 12, 2023. 15 U.S.C. 2056d(b)(4). The Commission may in the future issue a direct final rule to incorporate the voluntary standards into the Code of Federal Regulations.

Under the PFCSA, because the Commission has determined that the three voluntary standards discussed above, collectively covering the two known classes of portable fuel containers, meet the requirements for the exception to the rulemaking requirement, the requirements of those voluntary standards shall be treated as consumer product safety rules promulgated under section 9 of the CPSA (15 U.S.C. 2058), beginning on the date that is the later of 180 days after publication of the Commission's determination, or the effective date contained in the voluntary standard. 15 U.S.C. 2056d(b)(4). In this instance, the publication of this notice is the later of the two possible statutory dates. Therefore, portable fuel containers manufactured after July 12, 2023 must comply with the requirements of either ASTM F3429/F3429M-20, ASTM F3326-21, or section 18 of UL 30:2022, as applicable. Specifically, portable fuel containers sold pre-filled are required to comply with the requirements of ASTM F3429/F3429M-20. Portable fuel containers sold empty (that are not safety cans) are required to comply with the requirements of ASTM F3326-21. Safety cans are required to meet the requirements of either ASTM F3326-21 or section 18 of UL 30:2022.

Section 14(a) of the CPSA requires that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, must be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program. 15 U.S.C. 2063(a)(1). Under the PFCSA, because of the Commission's determinations, ASTM F3429/F3429M-20, ASTM F3326-21, and section 18 of UL 30:2022, are considered consumer product safety rules under the CPSA. Therefore, portable fuel containers manufactured after July 12, 2023, are subject to the testing and certification requirements of section 14(a)(1) of the CPSA.

ASTM F3429/F3429M-20, ASTM F3326-21, and UL 30:2022 are available to the public for review, free of charge, as described below.

For free-of-charge, read-only online access to ASTM F3429/F3429M-20:

• Access ASTM's CPSC reading room at: http://www.astm.org/cpsc.htm.

• Search for ASTM F3429.

Note: In the future, read-only access to the standard may move to ASTM's Reading Room at: https://www.astm.org/products-services/reading-room.html.

For free-of-charge, read-only online access to ASTM F3326-21:

• Access ASTM's CPSC reading room at: http://www.astm.org/cpsc.htm.

• Search for ASTM F3326.

Note: in the future, read-only access to the standard may move to ASTM's Reading Room at: https://www.astm.org/products-services/reading-room.html.

For free-of-charge, read-only online access to ANSI/CAN/UL/ULC 30:2022:

• Access UL's Standards Sale Site at: http://shopulstandards.com.

• Click “Browse and Buy Standards,” and search for UL 30.

• Click “Digital View,” and sign in, or create a user account.

ASTM F3429/F3429M-20, ASTM F3326-21, and ANSI/CAN/UL/ULC 30:2022 are also available to review in person through CPSC's Office of the Secretary, 4330 East West Highway, Bethesda, MD 20814.

On November 2, 2015, Congress enacted the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, sec. 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (collectively, the “Prior Inflation Adjustment Act”), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment Act required agencies to (1) adjust the level of civil monetary penalties with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation no later than January 15 of each year.

On July 1, 2016, the Department published an IFR that established the initial catch-up adjustment for most civil penalties that the Department administers and requested comments. See 81 FR 43430 (DOL IFR). On January 18, 2017, the Department published the final rule establishing the 2017 Annual Adjustment for those civil monetary penalties adjusted in the DOL IFR. See 82 FR 5373 (DOL 2017 Annual Adjustment). On July 1, 2016, the U.S. Department of Homeland Security (DHS) and the U.S. Department of Labor (DOL) (collectively, “the Departments”) jointly published an IFR that established the initial catch-up adjustment for civil monetary penalties assessed or enforced in connection with the employment of temporary nonimmigrant workers under the H-2B program. See 81 FR 42983 (Joint IFR). On March 17, 2017, the Departments jointly published the final rule establishing the 2017 Annual Adjustment for the H-2B civil monetary penalties. See 82 FR 14147 (Joint 2017 Annual Adjustment). The Joint 2017 Annual Adjustment also explained that DOL would make future adjustments to the H-2B civil monetary penalties consistent with DOL's delegated authority under 8 U.S.C. 1184(c)(14), Immigration and Nationality Act section 214(c)(14), and the Inflation Adjustment Act. See 82 FR 14147-48. On January 2, 2018, the Department published the final rule establishing the 2018 Annual Adjustment for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. See 83 FR 7 (DOL 2018 Annual Adjustment). On January 23, 2019, the Department published the final rule establishing the 2019 Annual Adjustment for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. See 84 FR 213 (DOL 2019 Annual Adjustment). On January 15, 2020, the Department published the final rule establishing the 2020 Annual Adjustment for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. See 85 FR 2292 (DOL 2020 Annual Adjustment). On January 14, 2021, the Department published the final rule establishing the 2021 Annual Adjustment for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. See 86 FR 2964 (DOL 2021 Annual Adjustment). On January 14, 2022, the Department published the final rule establishing the 2022 Annual Adjustment for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. See 87 FR 2328 (DOL 2022 Annual Adjustment). The DOL 2022 Annual Adjustment also included the first annual adjustments for a newly enacted civil monetary penalty regarding retention of tips under the Fair Labor Standards Act (FLSA) and a newly established civil monetary penalty regarding whistleblower protections under the high-wage components of the labor value content requirements of the United States-Mexico-Canada Agreement Implementation Act (USMCA).

This rule implements the 2023 annual inflation adjustments, as required by the Inflation Adjustment Act, for civil monetary penalties assessed or enforced by the Department, including H-2B civil monetary penalties. The Inflation Adjustment Act provides that the increased penalty levels apply to any penalties assessed after the effective date of the increase. Pursuant to the Inflation Adjustment Act, this final rule is published notwithstanding Section 553 of the APA.

This rule is not significant under Executive Order 12866.

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

The Department has undertaken a thorough review of civil penalties administered by its various components pursuant to the Inflation Adjustment Act and in accordance with guidance issued by the Office of Management and Budget. 1

The Department first identified the most recent penalty amount, which is the amount established by the 2022 annual adjustment as set forth in the DOL 2022 Annual Adjustment published on January 14, 2022.

The Department is required to calculate the annual adjustment based on the Consumer Price Index for all Urban Consumers (CPI-U). Annual inflation adjustments are based on the percent change between the October CPI-U preceding the date of the adjustment, and the prior year's October CPI-U; in this case, the percent change between the October 2022 CPI-U and the October 2021 CPI-U. The cost-of-living adjustment multiplier for 2023, based on the Consumer Price Index (CPI-U) for the month of October 2022, not seasonally adjusted, is 1.07745. 2 In order to compute the 2023 annual adjustment, the Department multiplied the most recent penalty amount for each applicable penalty by the multiplier, 1.07745, and rounded to the nearest dollar.

As provided by the Inflation Adjustment Act, the increased penalty levels apply to any penalties assessed after the effective date of this rule. 3 Accordingly, for penalties assessed after January 15, 2023, whose associated violations occurred after the applicable dates listed below, the higher penalty amounts outlined in this rule will apply. The tables below demonstrate the penalty amounts that apply:

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the Department consider the impact of paperwork and other information collection burdens imposed on the public. The Department has determined that this final rule does not require any collection of information.

The Inflation Adjustment Act provides that agencies shall annually adjust civil monetary penalties for inflation notwithstanding section 553 of the APA. Additionally, the Inflation Adjustment Act provides a nondiscretionary cost-of-living formula for annual adjustment of the civil monetary penalties. For these reasons, the requirements in sections 553(b), (c), and (d) of the APA, relating to notice and comment and requiring that a rule be effective 30 days after publication in the Federal Register , are inapplicable.

Executive Order 12866 requires that regulatory agencies assess both the costs and benefits of significant regulatory actions. Under the Executive Order, a “significant regulatory action” is one meeting any of a number of specified conditions, including the following: having an annual effect on the economy of $100 million or more; creating a serious inconsistency or interfering with an action of another agency; materially altering the budgetary impact of entitlements or the rights of entitlement recipients; or raising novel legal or policy issues.

The Department has determined that this final rule is not a “significant” regulatory action and a cost-benefit and economic analysis is not required. This regulation merely adjusts civil monetary penalties in accordance with inflation as required by the Inflation Adjustment Act, and has no impact on disclosure or compliance costs. The benefit provided by the inflationary adjustment to the maximum civil monetary penalties is that of maintaining the incentive for the regulated community to comply with the laws enforced by the Department, and not allowing the incentive to be diminished by inflation.

Executive Order 13563 directs agencies to assess all 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, reducing costs, harmonizing rules, and promoting flexibility to minimize burden.

The Inflation Adjustment Act directed the Department to issue the annual adjustments without regard to section 553 of the APA. In that context, Congress has already determined that any possible increase in costs is justified by the overall benefits of such adjustments. This final rule makes only the statutory changes outlined herein; thus there are no alternatives or further analysis required by Executive Order 13563.

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), imposes certain requirements on Federal agency rules that are subject to the notice and comment requirements of the APA, 5 U.S.C. 553(b). This final rule is exempt from the requirements of the APA because the Inflation Adjustment Act directed the Department to issue the annual adjustments without regard to section 553 of the APA. Therefore, the requirements of the RFA applicable to notices of proposed rulemaking, 5 U.S.C. 603, do not apply to this rule. Accordingly, the Department is not required to either certify that the final rule would not have a significant economic impact on a substantial number of small entities or conduct a regulatory flexibility analysis.

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. This Final Rule will not result in such an expenditure. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

Section 18 of the Occupational Safety and Health Act of 1970 (OSH Act) (29 U.S.C. 667) requires Occupational Safety and Health Administration (OSHA)-approved State Plans to have standards and an enforcement program that are at least as effective as Federal OSHA's standards and enforcement program. OSHA-approved State Plans must have maximum and minimum penalty levels that are at least as effective as Federal OSHA's, per section 18(c)(2) of the OSH Act. See also 29 CFR 1902.4(c)(2)(xi); 1902.37(b)(12). State Plans are required to increase their penalties in alignment with OSHA's penalty increases to maintain at least as effective penalty levels.

State Plans are not required to impose monetary penalties on state and local government employers. See § 1956.11(c)(2)(x). Six (6) states and one territory have State Plans that cover only state and local government employees: Connecticut, Illinois, Maine, Massachusetts, New Jersey, New York, and the Virgin Islands. Therefore, the requirements to increase the penalty levels do not apply to these State Plans. Twenty-one states and one U.S. territory have State Plans that cover both private sector employees and state and local government employees: Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico, South Carolina, Tennessee, Utah, Vermont, Virginia, Washington, and Wyoming. They must increase their penalties for private-sector employers.

Other than as listed above, this final rule does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Accordingly, Executive Order 13132, Federalism, requires no further agency action or analysis.

This final rule does not have “tribal implications” because it 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. Accordingly, Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, requires no further agency action or analysis.

For the reasons set out in the preamble, 20 CFR chapters VI and VII, 29 CFR subtitle A and chapters V, XVII, and XXV, 30 CFR chapter I, and 41 CFR chapter 50 are amended as follows.

Upon request, FDA has classified the digital therapy device to reduce sleep disturbance for psychiatric conditions as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (see 21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate device by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 (Pub. L. 105-115) established the first procedure for De Novo classification. Section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144) modified the De Novo application process by adding a second procedure. A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA is required to classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see section 513(f)(2)(B)(i) of the FD&C Act). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application to market a substantially equivalent device (see section 513(i) of the FD&C Act, defining “substantial equivalence”). Instead, sponsors can use the less-burdensome 510(k) process, when necessary, to market their device.

On May 27, 2020, FDA received NightWare, Inc's request for De Novo classification of the NightWare Kit (Apple iPhone, Apple Watch, Apple iPhone Charging Cable, Apple Watch Charging Cable). FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on November 6, 2020, FDA issued an order to the requester classifying the device into class II. In this final order, FDA is codifying the classification of the device by adding 21 CFR 882.5705. 1 We have named the generic type of device digital therapy device to reduce sleep disturbance for psychiatric conditions, and it is identified as a prescription device that is intended to provide stimulation using a general purpose computing platform to reduce sleep disturbance in patients who experience this symptom due to psychiatric conditions such as nightmare disorder or post-traumatic stress disorder.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

At the time of classification, digital therapy devices to reduce sleep disturbance for psychiatric conditions are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met.

The Agency has determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). The collections of information in 21 CFR part 860, subpart D, regarding De Novo classification have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; the collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 820, regarding quality system regulation, have been approved under OMB control number 0910-0073; and the collections of information in 21 CFR parts 801, regarding labeling, have been approved under OMB control number 0910-0485.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 882 is amended as follows:

Background TTB Authority

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), codified in the United States Code at 27 U.S.C. 205(e), authorizes the Secretary of the Treasury (the Secretary) to prescribe regulations relating to the labeling of containers of alcohol beverages that will prohibit consumer deception and provide the consumer with adequate information as to the identity and quality of the product contained therein.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, as codified at 6 U.S.C. 531(d). In addition, the Secretary has delegated certain administrative and enforcement authorities to TTB through Treasury Department Order 120-01.

The TTB regulations in 27 CFR part 5 implement those provisions of section 105(e) of the FAA Act as they pertain to distilled spirits.

TTB's regulations at 27 CFR 5.24 prohibit the release of bottled distilled spirits from customs custody for consumption unless the person removing the distilled spirits has obtained and is in possession of a Certificate of Label Approval (COLA) covering the product. The bottles must bear labels identical to the labels appearing on the face of the certificate, or labels with changes authorized by TTB. The TTB regulations at 27 CFR 5.22 also generally prohibit the bottling or removal of distilled spirits from a distilled spirits plant unless the proprietor possesses a COLA covering the labels on the bottle.

The TTB regulations establish standards of identity for distilled spirits products and categorize these products according to various classes and types. See 27 CFR part 5, subpart I. As defined in 27 CFR 5.141(a), the term “class” refers to a general category of spirits. Subpart I sets out the various classes of distilled spirits, such as whisky, rum, gin, and brandy. As used in § 5.141(a), the term “type” refers to a subcategory within a class of spirits. For example, “Cognac” and “Pisco” are types of brandy, and “Cachaça” is a type of rum.

The TTB labeling regulations at 27 CFR 5.63(a)(2) require that the class, type, or other appropriate designation appear on the distilled spirits labels. If a class or type does not appear on the label, 27 CFR 5.156 and 5.166 require that such products be designated in accordance with trade and consumer understanding thereof, or, if no such understanding exists, with a distinctive or fanciful name appearing in the same field of vision as a statement of composition.

“Singani” is a term recognized by the Plurinational State of Bolivia (Bolivia) as a designation for an alcohol beverage product that is distilled from grape wine or grape pomace and produced in certain delimited parts of Bolivia. Under current TTB distilled spirits labeling regulations, Singani products are generally classified as brandies. TTB's regulations at 27 CFR 5.145(a) provide that “brandy” is a spirit distilled from the fermented juice, mash, or wine of fruit, or from the residue thereof. For this purpose, brandy must be distilled at less than 95 percent alcohol by volume (190° proof) and be bottled at not less than 40 percent alcohol by volume (80° proof). Under § 5.145(b), brandies generally must be labeled with their applicable type name as specified in the regulations, or, if the brandy does not conform to a specified type, must be labeled as “brandy” followed immediately by a truthful and adequate statement of composition.

Section 5.145(c) sets out the specific types of brandy and the standards for each type. As described by petitioners Singani 63, Inc. (Singani 63) and Bolivia, Singani may meet the criteria of several of these types of brandy, such as “fruit brandy” under § 5.145(c)(1) or “pomace brandy” (including “grappa brandy”) under § 5.145(c)(9), depending on the amount of pomace used.

Section 5.145(c)(1) states that fruit brandy derived solely from grapes and stored for at least 2 years in oak containers must be designated as “grape brandy” or “brandy.” That regulation also generally requires that such grape brandy must be labeled as “immature grape brandy” or “immature brandy” if it has been stored in oak barrels for fewer than two years. However, this labeling requirement does not apply to other types of brandy derived from grapes specified in § 5.145(c). The Bolivian standards submitted by petitioners contain no minimum aging requirements, and petitioners' submissions suggest that, unlike many grape brandies, Singani is generally not aged in wood. Under current TTB regulations, a Singani product classified as a grape brandy under paragraph (c)(1) would need to be labeled as an immature brandy unless it was aged in oak barrels for at least two years.

According to information submitted by the petitioners, under the standards set forth by Bolivia, certain categories of Singani may have a minimum alcohol content by volume of as low as 35 percent (70° proof). However, under § 5.145(a), all brandy must be bottled at not less than 40 percent alcohol by volume (80° proof). Thus, under TTB's current regulations, only Singani products bottled at a minimum of 40 percent alcohol by volume (80° proof) may be labeled as any type of brandy specifically defined under the standard of identity in § 5.145(c). A Singani product bottled at less than 40 percent alcohol by volume (80° proof) could be labeled as a “diluted” brandy in accordance with Ruling 75-32 of the Bureau of Alcohol, Tobacco and Firearms (TTB's predecessor agency), or as a distilled spirits specialty product bearing a statement of composition and fanciful name as required under §§ 5.156 and 5.166. Possible statements of composition for such a specialty product could include “spirits distilled from grapes” or “grape spirits.”

TTB received a petition from Singani 63, a distilled spirits importer, dated November 18, 2014, proposing that TTB amend its regulations to recognize Singani as a type of brandy that is a distinctive product of Bolivia. In support of this petition, Bolivia submitted letters to TTB in December 2015 and January 2017. Singani 63 also submitted a letter to TTB in June 2017 that provided additional information related to the petition.

In the petition, Singani 63 stated that TTB's recognition of Singani as a distinctive product would benefit consumers by informing them that the product was produced and labeled in compliance with Bolivia's laws. It also asserted that Singani is a product that is distinct from other types of brandy. Furthermore, both Singani 63 and Bolivia indicated that Bolivia had established a legal standard for Singani as an exclusively Bolivian product.

In response to these submissions, TTB issued letters in February and October 2017, in which TTB addressed the petitioner's request for rulemaking and identified several deficiencies in the petition and its supporting documents. Accordingly, TTB did not undertake rulemaking at that time to amend its regulations as proposed in Singani 63's petition.

TTB subsequently received a joint petition from Singani 63 and Bolivia in November 2018, again proposing that TTB recognize Singani as a type of brandy that is a distinctive product of Bolivia. The 2018 joint petition contained additional information in support of its regulatory proposal, including official translations of Bolivian laws and decrees governing the production of Singani.

Following discussions between officials of Bolivia and the Office of the U.S. Trade Representative (USTR), and after consultations between USTR and TTB, USTR and Bolivia's Ministry of Foreign Affairs exchanged letters on January 6, 2020. The exchange of letters agreed upon a procedure that could potentially lead each party to recognize as distinctive certain distilled spirits products produced in the other party's territory.

The exchange of letters provides that the United States shall endeavor to publish a Notice of Proposed Rulemaking to promulgate a regulation that would provide that Singani is a type of brandy that is a distinctive product of Bolivia. The exchange of letters further provides that if, following this proposed rule, the United States publishes a final rule announcing the promulgation of a regulation establishing Singani as a type of brandy that is a distinctive product of Bolivia, then Bolivia shall, within thirty (30) days thereafter, recognize Bourbon Whiskey and Tennessee Whiskey as distinctive products of the United States. Following such recognition, Bolivia shall prohibit the sale within Bolivia of any product as Bourbon Whiskey, or Tennessee Whiskey, if it has not been manufactured in the United States in accordance with the laws and regulations of the United States governing the manufacture of Bourbon Whiskey and Tennessee Whiskey. These protections also apply to products spelled as “Bourbon Whisky” or “Tennessee Whisky.” The publication of this final rule activates Bolivia's obligations under the exchange of letters agreement.

The Bolivian decrees and regulations submitted with the 2018 joint petition establish that Bolivia defines “Singani” as a brandy product of Bolivia. Of the Bolivian decrees and regulations submitted, Bolivian Standard NB 324001 contains the most specific standards for Singani. Among other requirements, NB 324001 requires that Singani be obtained exclusively by distillation of wines made of Vitis vinifera grapes produced at a minimum altitude of 1,600 meters above sea level, prepared, distilled, and bottled in traditional “zones of origin” at a minimum altitude of 1,600 meters above sea level. NB 324001 lists several different categories of Singani, some of which have more specific requirements, such as requiring the product to be made from Muscat of Alexandria grapes specifically. NB 324001 classifies Singani in the group “Brandies and liquors.”

In a prior rulemaking, TTB distinguished Singani from Pisco, which is a type of grape brandy manufactured in Peru or Chile in accordance with the laws and regulations of those countries. In 2013, TTB updated its labeling regulations to add Pisco as a type of brandy that is manufactured only in Peru and Chile. In regard to brandy produced in Bolivia, TTB determined that it would not recognize Pisco as a type of brandy produced in that country. See T.D. TTB-113 (78 FR 28739, May 16, 2013). TTB stated that Bolivia maintains standards for Singani but not for Pisco, and cited other evidence suggesting that Pisco and Singani are different products.

On August 25, 2021, TTB published Notice No. 205 in the Federal Register , proposing to amend the regulations setting forth the standards of identity for distilled spirits (86 FR 47429). Specifically, TTB proposed amending § 5.22(d), now § 5.145, which lays out the standard of identity for brandy, to include Singani as a type of brandy that is a distinctive product of Bolivia. TTB also asserted that evidence suggests that the generally recognized geographical limits of the Singani-producing areas do not extend beyond certain delimited “zones of production” located exclusively in Bolivia.

Since the publication of Notice No. 205, TTB has published T.D. TTB-176, Modernization of the Labeling and Advertising Regulations for Distilled Spirits and Malt Beverages (see the Federal Register , February 9, 2022, 87 FR 7526). In T.D. TTB-176, TTB finalized a reorganization of 27 CFR part 5, including amendments to improve clarity and readability, incorporate current policy into the current regulations, and adopt certain liberalizing changes. Where necessary, TTB has updated regulatory citations and text in this document to reflect the changes in T.D. TTB-176.

In Notice No. 205, TTB proposed to recognize Singani as a type of brandy derived from grapes that is manufactured in Bolivia in compliance with the laws and regulations of Bolivia governing the manufacture of Singani for consumption in that country. Under the proposed rule, the product could simply be labeled as “Singani” without the term “brandy” appearing on the label, in the same way that products with the type designations “Cognac” or “Pisco” are not required to bear the broader class designation “brandy.”

TTB noted that the Bolivian standard allows products designated as Singani to have an alcohol content ranging from 35 to 45 percent alcohol by volume (70° to 90° proof), while TTB's standard of identity for brandy requires all brandy products to have a minimum alcohol content of 40 percent by volume (80° proof). TTB therefore proposed to exempt Singani from the general minimum bottling proof requirement for brandy (now in § 5.145(a)) to allow Singani to be bottled at not less than 35 percent alcohol by volume (70° proof) in accordance with the laws and regulations of Bolivia.

In addition, TTB proposed to exempt Singani from the requirement that grape brandies (as currently defined in § 5.145(c)(1)) be labeled with the word “immature” if they have been stored in oak containers for less than two years. TTB noted that Bolivian standards do not require that Singani be aged and explained that the same exemption applies to other types of brandy derived from grapes (specifically neutral brandy, pomace brandy, marc brandy, grappa brandy, Pisco, Pisco Perú, and Pisco Chileno).

In Notice No. 205, TTB stated that the proposed change to the regulations would revoke by operation of regulation any COLAs that specify “Singani” as the brand name or fanciful name, or as part of the brand name or fanciful name, of distilled spirits products that are not products of Bolivia. However, TTB also noted that it had searched its COLA database, and that the results of the search did not show any approved labels that used the term “Singani” as the brand name or fanciful name, or as part of the brand name or fanciful name, for distilled spirits produced outside Bolivia.

TTB received nine comments in response to Notice No. 205. All comments appear on “ Regulations.gov ,” the Federal Rulemaking portal, at http://www.regulations.gov, in Docket No. TTB-2021-0008. The nine comments came from on-premise retailers (2), members of the general public (2), trade associations (2), one anonymous commenter, the Embassy of Bolivia, and Singani 63. All nine commenters supported TTB's proposal to recognize Singani as a distinctive product of Bolivia in the United States.

Based on a review of the comments, TTB has determined that it will finalize the proposal to recognize Singani as a distinctive product of Bolivia. As discussed further below, TTB is modifying one aspect of its proposal as it pertains to the minimum bottling proof for Singani.

The two on-premise retailers (Ivy Mix and Alex Day) both stated that the distinctive product designation would help consumers and bartenders understand Singani in relation to other brandy products, and they each submitted published books they wrote, “Cocktail Codex” (Day, Fauchald, Kaplan and Darby, 2018) and “Spirits of Latin America” (Mix and Carpenter, 2020), both of which described Singani in detail.

A comment from a member of the public located in Bolivia (Carlos Paz) and the comment from the anonymous commenter similarly agreed that the designation would help U.S. consumers understand this distilled spirit and its distinctiveness compared to other brandy products. The anonymous commenter also included a 109-page document purporting to be a list of individuals who supported recognition of Singani as its own category as part of an online petition. The other member of the public (Dominick O'Neal) agreed that the Bolivian standards for brandy production are unique, and also mentioned that the reciprocal nature of the exchange of letters agreement would allow this rulemaking to benefit distilled spirits in the United States as well.

Petitioners Singani 63 and the Embassy of Bolivia also submitted comments in support of the proposal. Singani 63 summarized the elements that make Singani distinctive among distilled spirits products, and the Embassy of Bolivia highlighted the extent to which Singani is part of Bolivia's cultural heritage.

Both trade associations that commented, the National Association of Beverage Importers (NABI) and the Distilled Spirits Council of the United States (DISCUS), also lent their support to the proposal to add Singani as a type of brandy that is a distinctive product of Bolivia, although DISCUS's support came with certain reservations regarding the proposed minimum bottling proof requirement for Singani, as discussed below. DISCUS confirmed that neither DISCUS nor its member companies are aware of any Singani production outside Bolivia.

TTB did not receive any comments alerting us to any COLAs that would be revoked by operation of regulation if the proposed rule were to be adopted as a final rule.

Three commenters responded to TTB's specific invitation for comments on the proposal to authorize a minimum bottling proof of 35 percent alcohol by volume (70° proof) for Singani, which is lower than the minimum bottling proof of 40 percent alcohol by volume (80° proof) required for brandy generally.

Two of these commenters (NABI and Dominick O'Neal) supported TTB's proposal to authorize a lower minimum bottling proof for Singani, arguing that the lower bottling proof requirement reinforces the uniqueness of Singani as a category. NABI also asserted that allowing Singani imports with a bottling proof standard that complied with the Bolivian legal standard, even while falling below TTB's minimum requirement for brandy generally, would benefit consumers by ensuring that they receive a product that is “fully true to its heritage in the country of origin[.]”

NABI also argued that aligning the U.S. and Bolivian minimum bottling proof standards for Singani would reduce the regulatory burden on importers, who would no longer have to manage inventory controls to prevent lower proof Singani from reaching the U.S. market. NABI also expressed its concern that requiring Singani bottled at an alcohol by volume content less than 40 percent (80° proof) to be labeled as “diluted” is inconsistent with the standard in the country of origin. Finally, while acknowledging that other distilled spirits products fall outside the scope of the proposed rulemaking, NABI opined that other distinctive distilled spirits products would benefit from similar treatment, including Tequila.

In contrast, DISCUS disagreed with TTB's proposal to allow Singani products to have a lower bottling proof than other brandy products. DISCUS argued that this proposal was inconsistent with TTB's general minimum bottling proof for brandies. DISCUS also noted that TTB's labeling regulations require other geographically distinctive products, such as Tequila, Cachaça, Mezcal, Pisco Peru, and Pisco Chileno, to be bottled at a minimum of 40 percent alcohol by volume (80° proof).

Based on a review of the comments, TTB has decided that it will not proceed with the proposal to authorize a minimum bottling proof of 35 percent alcohol by volume (70° proof) for Singani at this time. Instead, TTB will authorize a minimum bottling proof of 40 percent alcohol by volume (80° proof), which is consistent with the minimum bottling proof requirements for brandy generally and for other geographically distinctive products currently recognized under TTB regulations, such as Tequila, Cachaça, Mezcal, Pisco Peru, and Pisco Chileno.

TTB recognizes that exempting Singani from the minimum bottling proof requirements for brandy would promote consistency with Bolivian rules that allow a lower minimum bottling proof for certain categories of Singani. However, authorizing such an exception for Singani would not be consistent with the minimum bottling proof rules that apply to all other brandies under the TTB regulations. In addition, as referenced in Notice No. 205 and in comments from NABI and DISCUS, the TTB regulations have not previously authorized bottling proofs for other types of products that are below the minimum bottling proof prescribed for the product's class designation, even when a foreign standard permits a lower proof. Accordingly, TTB will consider whether to address exceptions to minimum bottling proofs for Singani and other distinctive products in a possible future rulemaking.

After careful review of the comments discussed above and consideration of the terms of the 2020 exchange of letters between the United States and Bolivia, TTB has determined that it is appropriate to adopt the regulatory amendments proposed in Notice No. 205, with necessary technical changes to reflect the subsequent amendments to TTB's distilled spirits labeling regulations published in T.D. TTB-176, and with changes to the proposed minimum bottling proof requirement as discussed above. This final rule therefore amends the standards of identity in § 5.145(c) to add Singani as a specific type of brandy derived from grapes that is manufactured in Bolivia in compliance with the laws and regulations of Bolivia governing the manufacture of Singani for consumption in that country. For this purpose, Singani only includes products bottled at not less than 40 percent alcohol by volume (80° proof), which is the minimum bottling proof required for brandies in general. Singani bottled at less than 40 percent alcohol by volume (80° proof) would need to be labeled as “Diluted” Singani, or as a distilled spirits specialty product bearing a statement of composition and fanciful name. Because Bolivian standards do not require Singani to be aged, this final rule does not require Singani to be labeled as “immature” or to be labeled with any age statement.

This amendment to the TTB regulations revokes by operation of regulation any COLA that uses the term “Singani” as a designation for a distilled spirits product that was not manufactured in Bolivia in accordance with the laws and regulations of Bolivia governing the manufacture of Singani for consumption in that country. TTB has searched its COLA database and does not believe that this rulemaking will affect any existing labels. TTB also solicited comments on whether this rulemaking would affect any existing labels, and TTB did not receive any comments indicating any adverse impact.

TTB will continue to allow the use of the terms “Singani” as additional information on labels of products that are currently designated as “brandy” as long as the products in question meet the new regulatory standards for designation as “Singani.” Once the final rule goes into effect, future labels of such products may be designated as Singani without the use of the designation “brandy” on the label.

Pursuant to the requirements of the Regulatory Flexibility Act (5 U.S.C. chapter 6), TTB certifies that this final rule will not have a significant economic impact on a substantial number of small entities. The final rule amends the standards of identity for brandy in TTB's regulations at 27 CFR 5.145(c) and makes conforming edits in other sections of part 5. It does not impose or otherwise cause any new reporting, recordkeeping, or other administrative requirements. TTB does not believe this rulemaking will affect any existing labels for distilled spirits products, and TTB did not receive any comments indicating that this rulemaking would affect any existing labels. Therefore, no regulatory flexibility analysis is required.

This final rule is not a significant regulatory action as defined in Executive Order 12866. Therefore, a regulatory assessment is not required.

Trevar D. Kolodny of the Regulations and Rulings Division, Alcohol and Tobacco Tax and Trade Bureau, drafted this final rule.

For the reasons discussed in the preamble, TTB amends 27 CFR part 5 as follows:

The Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), Public Law 101-410, 104 Stat. 890, 28 U.S.C. 2461 note, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, section 701, 129 Stat. 584, requires the regular adjustment and evaluation of civil monetary penalties to maintain their deterrent effect and helps to ensure that penalty amounts imposed by the Federal Government are properly accounted for and collected. A “civil monetary penalty” is defined in the Inflation Adjustment Act as any penalty, fine, or other such sanction that is: (1) For a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The Inflation Adjustment Act, as amended, requires agencies to adjust civil monetary penalties by the inflation adjustment described in section 5 of the Inflation Adjustment Act. The amended Inflation Adjustment Act also provides that any increase in a civil monetary penalty shall apply only to civil monetary penalties, including those whose associated violation predated such an increase, which are assessed after the date the increase takes effect.

The Inflation Adjustment Act, as amended, provides that the inflation adjustment does not apply to civil monetary penalties under the Internal Revenue Code of 1986 or the Tariff Act of 1930.

The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the Federal Alcohol Administration Act (FAA Act) pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Order 120-01.

The FAA Act contains the Alcoholic Beverage Labeling Act (ABLA) of 1988, Public Law 100-690, 27 U.S.C. 213-219a, which was enacted on November 18, 1988. Section 204 of the ABLA, codified in 27 U.S.C. 215, requires that a health warning statement appear on the labels of all containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States, as well as on containers of alcoholic beverages that are manufactured, imported, bottled, or labeled for sale, distribution, or shipment to members or units of the U.S. Armed Forces, including those located outside the United States.

The health warning statement requirement applies to containers of alcoholic beverages manufactured, imported, or bottled for sale or distribution in the United States on or after November 18, 1989. The statement reads as follows:

Section 204 of the ABLA also specifies that the Secretary of the Treasury shall have the power to ensure the enforcement of the provisions of the ABLA and issue regulations to carry them out. In addition, section 207 of the ABLA, codified in 27 U.S.C. 218, provides that any person who violates the provisions of the ABLA is subject to a civil penalty of not more than $10,000, with each day constituting a separate offense.

Most of the civil monetary penalties administered by TTB are imposed by the Internal Revenue Code of 1986, and thus are not subject to the inflation adjustment mandated by the Inflation Adjustment Act. The only civil monetary penalty enforced by TTB that is subject to the inflation adjustment is the penalty imposed by the ABLA at 27 U.S.C. 218.

The TTB regulations implementing the ABLA are found in 27 CFR part 16, and the regulations implementing the Inflation Adjustment Act with respect to the ABLA penalty are found in 27 CFR 16.33. This section indicates that, in accordance with the ABLA, any person who violates the provisions of this part is subject to a civil penalty of not more than $10,000. Further, pursuant to the provisions of the Inflation Adjustment Act, as amended, this civil penalty is subject to periodic cost-of-living adjustments. Accordingly, any person who violates the provisions of 27 CFR part 16 is subject to a civil penalty of not more than the amount listed at https://www.ttb.gov/regulation_guidance/ablapenalty.html. Each day constitutes a separate offense.

To adjust the penalty, § 16.33(b) indicates that TTB will provide notice in the Federal Register and at the website mentioned above of cost-of-living adjustments to the civil penalty for violations of 27 CFR part 16.

In this document, TTB is publishing its yearly adjustment to the maximum ABLA penalty, as required by the amended Inflation Adjustment Act.

As mentioned earlier, the ABLA contains a maximum civil monetary penalty. For such penalties, section 5 of the Inflation Adjustment Act indicates that the inflation adjustment is determined by increasing the maximum penalty by the cost-of-living adjustment. The cost-of-living adjustment means the percentage increase (if any) between the Consumer Price Index for all-urban consumers (CPI-U) for the October preceding the date of the adjustment and the prior year's October CPI-U.

The CPI-U in October 2021 was 276.589, and the CPI-U in October 2022 was 298.012. The rate of inflation between October 2021 and October 2022 was therefore 7.745 percent. When applied to the current ABLA penalty of $22,979, this rate of inflation yields a raw (unrounded) inflation adjustment of $1,779.72355. Rounded to the nearest dollar, the inflation adjustment is $1,780, meaning that the new maximum civil penalty for violations of the ABLA will be $24,759.

The new maximum civil penalty will apply to all penalties that are assessed after January 13, 2023. TTB has also updated its web page at https://www.ttb.gov/regulation_guidance/ablapenalty.html to reflect the adjusted penalty.

Electronic Availability

This document and additional information concerning OFAC are available from OFAC's website ( www.treas.gov/ofac ).

Section 4 of the Federal Civil Penalties Inflation Adjustment Act (1990 Pub. L. 101-410, 104 Stat. 890; 28 U.S.C. 2461 note), as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, 129 Stat. 599, 28 U.S.C. 2461 note) (the FCPIA Act), requires each federal agency with statutory authority to assess civil monetary penalties (CMPs) to adjust CMPs annually for inflation according to a formula described in section 5 of the FCPIA Act. One purpose of the FCPIA Act is to ensure that CMPs continue to maintain their deterrent effect through periodic cost-of-living based adjustments.

OFAC has adjusted its CMPs eight times since the Federal Civil Penalties Inflation Adjustment Act Improvements Act went into effect on November 2, 2015: an initial catch-up adjustment on August 1, 2016 (81 FR 43070, July 1, 2016); an additional initial catch-up adjustment related to CMPs for failure to comply with a requirement to furnish information, the late filing of a required report, and failure to maintain records (“recordkeeping CMPs”) that were inadvertently omitted from the August 1, 2016 initial catch-up adjustment on October 5, 2020 (85 FR 54911, September 3, 2020); and annual adjustments on February 10, 2017 (82 FR 10434, February 10, 2017); March 19, 2018 (83 FR 11876, March 19, 2018); June 14, 2019 (84 FR 27714, June 14, 2019); April 9, 2020 (85 FR 19884, April 9, 2020); March 17, 2021 (86 FR 14534, March 17, 2021); and February 9, 2022 (87 FR 7369, February 9, 2022).

The method of calculating CMP adjustments applied in this final rule is required by the FCPIA Act. Under the FCPIA Act and the Office of Management and Budget guidance required by the FCPIA Act, annual inflation adjustments subsequent to the initial catch-up adjustment are to be based on the percent change between the Consumer Price Index for all Urban Consumers (“CPI-U”) for the October preceding the date of the adjustment and the prior year's October CPI-U. As set forth in Office of Management and Budget Memorandum M-23-05 of December 15, 2022, the adjustment multiplier for 2023 is 1.07745. In order to complete the 2023 annual adjustment, each current CMP is multiplied by the 2023 adjustment multiplier. Under the FCPIA Act, any increase in CMP must be rounded to the nearest multiple of $1.

OFAC imposes CMPs pursuant to the penalty authority in five statutes: the Trading With the Enemy Act (50 U.S.C. 4301-4341, at 4315) (TWEA); the International Emergency Economic Powers Act (50 U.S.C. 1701-1706, at 1705) (IEEPA); the Antiterrorism and Effective Death Penalty Act of 1996 (18 U.S.C. 2339B) (AEDPA); the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901-1908, at 1906) (FNKDA); and the Clean Diamond Trade Act (19 U.S.C. 3901-3913, at 3907) (CDTA).

The table below summarizes the existing and new maximum CMP amounts for each statute.

In addition to updating these maximum CMP amounts, OFAC is also updating two references to one-half the IEEPA maximum CMP from $165,474 to $178,290, and is adjusting the recordkeeping CMP amounts found in OFAC's Economic Sanctions Enforcement Guidelines in appendix A to 31 CFR part 501. The table below summarizes the existing and new maximum CMP amounts for OFAC's recordkeeping CMPs.

The FCPIA Act expressly exempts this final rule from the notice and comment requirements of the Administrative Procedure Act by directing agencies to adjust CMPs for inflation “notwithstanding section 553 of title 5, United States Code” (Pub. L. 114-74, 129 Stat. 599; 28 U.S.C. 2461 note). As such, this final rule is being issued without prior public notice or opportunity for public comment, with an effective date of January 13, 2023.

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply.

This rule is not a significant action as defined in section 3.f. of Executive Order 12866 of September 30, 1993, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993).

The Paperwork Reduction Act does not apply because this rule does not impose information collection requirements that would require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

For the reasons set forth in the preamble, OFAC amends 31 CFR chapter V as follows:

This document and additional information concerning OFAC are available on OFAC's website: www.treas.gov/ofac.

On January 28, 2019, OFAC issued GLs 12 and 13 to authorize certain transactions otherwise prohibited by Executive Order (E.O.) 13850 of November 1, 2018, “Blocking Property of Additional Persons Contributing to the Situation in Venezuela” (83 FR 55243, November 2, 2019). Subsequently, OFAC issued five further iterations of GL 13 which extended the duration and modified the scope of the authorization: on June 6, 2019, OFAC issued GL 13A which superseded GL 13; on June 26, 2019, OFAC issued GL 13B, which superseded GL 13A; on August 5, 2019, OFAC issued GL 13C, which superseded GL 13B; on October 17, 2019, OFAC issued GL 13D, which superseded GL 13C; and on April 3, 2020, OFAC issued GL 13E, which superseded GL 13D. On November 22, 2019, OFAC incorporated the prohibitions of E.O. 13850, as well as any other Executive orders issued pursuant to the national emergency declared in Executive Order 13692 of March 8, 2015, into the Venezuelan Sanctions Regulations, 31 CFR part 591. Each GL was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. The text of these GLs is provided below.

(a) Except as provided in paragraphs (c) and (d) of this general license, all transactions and activities prohibited by Executive Order 13850 that are ordinarily incident and necessary to the purchase and importation into the United States of petroleum and petroleum products from PdVSA or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest are authorized through 12:01 a.m. eastern daylight time, April 28, 2019.

(b) Except as provided in paragraphs (c) and (d) of this general license, all transactions and activities prohibited by Executive Order 13850 that are ordinarily incident and necessary to the wind down of operations, contracts, or other agreements, including the importation into the United States of goods, services, or technology not authorized in paragraph (a) of this general license, involving PdVSA or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest and that were in effect prior to January 28, 2019 are authorized through 12:01 a.m. eastern standard time, February 27, 2019.

(c) Except as authorized by Venezuela General Licenses 7, 8, 11, or 13, any payment to or for the direct or indirect benefit of a blocked person that is ordinarily incident and necessary to give effect to a transaction authorized in paragraph (a) of this general license must be made into a blocked, interest-bearing account located in the United States in accordance with 31 CFR part 591.

(d) This general license does not authorize:

(1) The divestiture or transfer of any debt, equity, or other holdings in, to, or for the benefit of the blocked persons identified above;

(2) The exportation or reexportation of any diluents from the United States to Venezuela, PdVSA, or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest;

(3) Any transactions or dealings with ALBA de Nicaragua (ALBANISA) or any entity in which ALBANISA owns, directly or indirectly, a 50 percent or greater interest; or

(4) Any transactions or dealings otherwise prohibited by Executive Order 13850 of November 1, 2018, Executive Order 13835 of May 21, 2018, Executive Order 13827 of March 19, 2018, Executive Order 13808 of August 24, 2017, Executive Order 13692 of March 8, 2015, or any part of 31 CFR chapter V, or any transactions or dealings with any blocked person other than the blocked persons identified in paragraph (a) of this general license.

(a) Except as provided in paragraph (c) of this general license, all transactions and activities prohibited by Executive Order 13850, where the only Petróleos de Venezuela, S.A. (PdVSA) entities involved are Nynas AB or any of its subsidiaries, are authorized through 12:01 a.m. eastern daylight time, July 27, 2019.

(b) Except as authorized by Venezuela General License 11, any payment to or for the direct or indirect benefit of a blocked person other than Nynas AB or any of its subsidiaries that is ordinarily incident and necessary to give effect to transactions authorized in paragraph (a) of this general license and that come into the possession or control of any U.S. person must be placed into a blocked, interest-bearing account located in the United States in accordance with 31 CFR 591.203.

(c) This general license does not authorize:

(1) Any exportation or reexportation of any goods, services, or technology, directly or indirectly, by U.S. persons, wherever located, or from the United States, to PdVSA or any entity owned 50 percent or more, directly or indirectly, by PdVSA, other than Nynas AB or any of its subsidiaries, or to any other blocked persons;

(2) Any transaction that is otherwise prohibited under Executive Order 13850 of November 1, 2018, Executive Order 13835 of May 21, 2018, Executive Order 13827 of March 19, 2018, Executive Order 13808 of August 24, 2017, Executive Order 13692 of March 8, 2015, or any part of 31 CFR chapter V, or any transactions or dealings with any blocked person other than the transactions described in paragraph (a) of this general license; or

(3) The unblocking of any property blocked pursuant to any part of 31 CFR chapter V, except as authorized by paragraph (a).

This document and additional information concerning OFAC are available on OFAC's website: www.treas.gov/ofac.

On November 26, 2022, OFAC issued GLs 8K and 41 to authorize certain transactions otherwise prohibited by the Venezuela Sanctions Regulations, 31 CFR part 591. Each GL was made available on OFAC's website ( www.treas.gov/ofac ) when it was issued. GL 8K was issued on November 26, 2022 and has an expiration date of May 26, 2023. GL 41 was issued on November 26, 2022 and automatically renews on the first day of each month and is valid for a period of six months from the effective date of GL 41 or the date of any subsequent renewal of GL 41, whichever is later. The text of these GLs is provided below.

(a) Except as provided in paragraphs (c) and (d) of this general license, all transactions and activities prohibited by Executive Order (E.O.) 13850 of November 1, 2018, as amended by E.O. 13857 of January 25, 2019, or E.O. 13884 of August 5, 2019, each as incorporated into the Venezuela Sanctions Regulations, 31 CFR part 591 (the VSR), that are ordinarily incident and necessary to the limited maintenance of essential operations, contracts, or other agreements, that: (i) are for safety or the preservation of assets in Venezuela; (ii) involve PdVSA or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest; and (iii) were in effect prior to July 26, 2019, are authorized through 12:01 a.m. eastern daylight time, May 26, 2023, for the following entities and their subsidiaries (collectively, the “Covered Entities”):

• Halliburton

• Schlumberger Limited

• Baker Hughes Holdings LLC

• Weatherford International, Public Limited Company

(b) Except as provided in paragraph (d) of this general license, all transactions and activities prohibited by E.O. 13850, as amended, or E.O. 13884, each as incorporated into the VSR, that are ordinarily incident and necessary to the wind down of operations, contracts, or other agreements in Venezuela involving PdVSA or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest, and that were in effect prior to July 26, 2019, are authorized through 12:01 a.m. eastern daylight time, May 26, 2023, for the Covered Entities.

(c) Paragraph (a) of this general license does not authorize:

(1) The drilling, lifting, or processing of, purchase or sale of, or transport or shipping of any Venezuelan-origin petroleum or petroleum products;

(2) The provision or receipt of insurance or reinsurance with respect to the transactions and activities described in paragraph (c)(1) of this general license;

(3) The design, construction, installation, repair, or improvement of any wells or other facilities or infrastructure in Venezuela or the purchasing or provision of any goods or services, except as required for safety;

(4) Contracting for additional personnel or services, except as required for safety; or

(5) The payment of any dividend, including in kind, to PdVSA, or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest.

(d) This general license does not authorize:

(1) Any transactions or dealings related to the exportation or reexportation of diluents, directly or indirectly, to Venezuela;

(2) Any loans to, accrual of additional debt by, or subsidization of PdVSA, or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest, including in kind, prohibited by E.O. 13808 of August 24, 2017, as amended by E.O. 13857, and incorporated into the VSR; or

(3) Any transactions or activities otherwise prohibited by the VSR, or any other part of 31 CFR chapter V, or any transactions or activities with any blocked person other than the blocked persons identified in paragraphs (a) and (b) of this general license.

(e) Effective November 26, 2022, General License No. 8J, dated May 27, 2022, is replaced and superseded in its entirety by this General License No. 8K.

(a) Except as provided in paragraph (b) of this general license, all transactions ordinarily incident and necessary to the following activities for or related to the operation and management by Chevron Corporation or its subsidiaries (“Chevron”) of Chevron's joint ventures in Venezuela (collectively, the “Chevron JVs”) involving Petróleos de Venezuela, S.A. (PdVSA) or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest, that are prohibited by Executive Order (E.O.) 13850, as amended by E.O. 13857, or E.O. 13884, each as incorporated into the Venezuela Sanctions Regulations, 31 CFR part 591 (the VSR), are authorized:

(1) Production and lifting of petroleum or petroleum products produced by the Chevron JVs, and any related maintenance, repair, or servicing of the Chevron JVs;

(2) Sale to, exportation to, or importation into the United States of petroleum or petroleum products produced by the Chevron JVs, provided that the petroleum and petroleum products produced by the Chevron JVs are first sold to Chevron;

(3) Ensuring the health or safety of personnel or the integrity of operations or assets of the Chevron JVs in Venezuela; and

(4) Purchase and importation into Venezuela of goods or inputs related to the activities described in paragraphs (a)(1)-(3) of this general license, including diluents, condensates, petroleum, or natural gas products.

(b) This general license does not authorize:

(1) The payment of any taxes or royalties to the Government of Venezuela;

(2) The payment of any dividends, including a dividend in kind, to PdVSA, or any entity in which PdVSA owns, directly or indirectly, a 50 percent or greater interest;

(3) The sale of petroleum or petroleum products produced by or through the Chevron JVs for the exportation to any jurisdiction other than the United States;

(4) Any transaction involving an entity located in Venezuela that is owned or controlled by an entity located in the Russian Federation;

(5) Any expansion of the Chevron JVs into new fields in Venezuela beyond what was in place on January 28, 2019; or

(6) Any transactions otherwise prohibited by the VSR, including transactions involving any person blocked pursuant to the VSR other than the blocked persons described in paragraph (a) of this general license, unless separately authorized.

(c) This authorization automatically renews on the first day of each month and is valid for a period of six months from the effective date of General License No. 41 or the date of any subsequent renewal of General License No. 41, whichever is later.

The Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, codified at 28 U.S.C. 2461, note, as amended, requires agencies to annually adjust the level of CMPs for inflation to improve their effectiveness and maintain their deterrent effect. Section 2461 requires that not later than July 1, 2016, and not later than January 15 of every year thereafter, the head of each agency must adjust each CMP within its jurisdiction by the inflation adjustment set forth therein. The inflation adjustment is determined by increasing the maximum CMP or the range of minimum and maximum CMPs, as applicable, for each CMP by the cost-of-living adjustment, rounded to the nearest multiple of $1. The cost-of-living adjustment is the percentage (if any) for each CMP by which the Consumer Price Index (CPI) for the month of October preceding the date of the adjustment exceeds the CPI for the month of October in the previous calendar year.

The initial catch up adjustments for inflation to the DoD's CMPs were published as an interim final rule in the Federal Register on May 26, 2016 (81 FR 33389-33391) and became effective on that date. The interim final rule was published as a final rule without change on September 12, 2016 (81 FR 62629-62631), effective that date. The revised methodology for agencies for 2017 and each year thereafter provides for the improvement of the effectiveness of CMPs to maintain their deterrent effect. The DoD is adjusting the level of all civil monetary penalties under its jurisdiction by the Office of Management and Budget (OMB) directed cost-of-living adjustment multiplier for 2023 of 1.07745 prescribed in OMB Memorandum M-23-05, “Implementation of Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015.” The DoD's 2023 adjustments for inflation to CMPs apply only to those CMPs, including those whose associated violation predated such adjustment, which are assessed by the DoD after the effective date of the new CMP level.

Pursuant to 5 U.S.C. 553(b)B, there is good cause to issue this rule without prior public notice or opportunity for public comment because it would be impracticable and unnecessary. The Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Section 2461) requires agencies, effective 2017, to make annual adjustments for inflation to CMPs notwithstanding 5 U.S.C. 553. Additionally, the methodology used, effective 2017, for adjusting CMPs for inflation is established in statute, with no discretion provided to agencies regarding the substance of the adjustments for inflation to CMPs. The DoD is charged only with performing ministerial computations to determine the dollar amount of adjustments for inflation to CMPs. Accordingly, prior public notice and an opportunity to comment are not required for this rule. For the same reasons, there is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date.

Further, there are no significant costs associated with the regulatory revisions that would impose any mandates on the DoD, Federal, State or local governments, or the private sector. Accordingly, prior public notice and an opportunity for public comment are not required for this rule. The benefit of this rule is the DoD anticipates that civil monetary penalty collections may increase in the future due to new penalty authorities and other changes in this rule. However, it is difficult to accurately predict the extent of any increase, if any, due to a variety of factors, such as budget and staff resources, the number and quality of civil penalty referrals or leads, and the length of time needed to investigate and resolve a case.

These Executive Orders direct agencies to assess all 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, distribute impacts, and equity). These Executive Orders also emphasize the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated “not significant”, under section 3(f) of Executive Order 12866. Accordingly, this rule has not been reviewed by the OMB under these Executive Orders.

The Congressional Review Act, 5 U.S.C. 801 et seq., 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. A major rule may take effect no earlier than 60 calendar days after Congress receives the rule report or the rule is published in the Federal Register , whichever is later. This rule is not a major rule, as defined by 5 U.S.C. 804(2).

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532) requires agencies to assess anticipated costs and benefits before issuing any rule the mandates of which require spending in any year of $100 million in 1995 dollars, updated annually for inflation. This rule will not mandate any requirements for State, local, or tribal governments, nor will it affect private sector costs.

The Under Secretary of Defense (Comptroller) certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require DoD to prepare a regulatory flexibility analysis.

The Paperwork Reduction Act was enacted to minimize the paperwork burden for individuals; small businesses; educational and nonprofit institutions; Federal contractors; State, local and tribal governments; and other persons resulting from the collection of information by or for the Federal government. The Act requires agencies obtain approval from the OMB before using identical questions to collect information from ten or more persons. This rule does not impose reporting or recordkeeping requirements on the public.

Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a rule that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has Federalism implications. This final rule will not have a substantial effect on State and local governments.

It has been determined that this rule will not have a substantial effect on Indian tribal governments. This rule does not impose substantial direct compliance costs on one or more Indian tribes, preempt tribal law, or effect the distribution of power and responsibilities between the Federal government and Indian tribes.

Accordingly, 32 CFR part 269 is amended as follows.