Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2022-09-06, Amendment 39-22026 (87 FR 29654, May 16, 2022; corrected May 23, 2022 (87 FR 31123)) (AD 2022-09-06). AD 2022-09-06 applied to certain Airbus SAS Model A350-941 and -1041 airplanes. AD 2022-09-06 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2022-09-06 to address hazardous or catastrophic airplane system failures. AD 2022-09-06 specifies that accomplishing the revision required by that AD terminates certain requirements of AD 2019-20-01, Amendment 39-19754 (84 FR 55495, October 17, 2019) (AD 2019-20-01).

The NPRM published in the Federal Register on December 9, 2022 (87 FR 75522). The NPRM was prompted by AD 2022-0127, dated June 28, 2022, issued by the European Union Aviation Safety Agency, which is the Technical Agent for the Member States of the European Unions (EASA AD 2022-0127) (referred to after this as the MCAI). The MCAI states that new and/or more restrictive tasks and limitations were introduced for Airbus A350 airplanes.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1577.

In the NPRM, the FAA proposed to continue to require the actions in AD 2022-09-06 and to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2022-0127. The FAA is issuing this AD to address hazardous or catastrophic airplane system failures.

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

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

The FAA reviewed EASA AD 2022-0127. This service information specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2021-0208, dated September 15, 2021, which the Director of the Federal Register approved for incorporation by reference as of June 21, 2022 (87 FR 29654, May 16, 2022; corrected May 23, 2022 (87 FR 31123)).

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 estimates that this AD affects 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2022-09-06 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all GEAC H75-100, H75-200, H80, H80-100, H80-200, H85-100, and H85-200 model turboprop engines. The NPRM published in the Federal Register on October 24, 2022 (87 FR 64175). The NPRM was prompted by AD 2022-0008, dated January 19, 2022, issued by the European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union (referred to after this as the MCAI). The MCAI states that the airworthiness limitations for H series engine models, which are approved by EASA, are currently defined and published in the ALS of the GEAC EMM. These instructions have been identified as mandatory for continued airworthiness. Failure to accomplish these instructions could result in an unsafe condition. The MCAI explains that recently GEAC published a revision to the ALS, introducing updated coefficients for the calculation of the cyclic life and safe life for the main shaft.

In the NPRM, the FAA proposed to require revising the ALS of the existing EMM and the operator's existing approved maintenance or inspection program, as applicable, to incorporate the updated coefficients and recalculate the cycles accumulated on critical parts. An owner/operator (pilot) holding at least a private pilot certificate may revise the ALS of the existing EMM, and the owner/operator must enter compliance with the applicable paragraphs of the AD into the aircraft records in showing compliance with this AD in accordance with 14 CFR 43.9(a) and 14 CFR 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439. This is an exception to the FAA's standard maintenance regulations. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1302.

The FAA received no comments on the NPRM or on the determination of the costs.

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

The FAA reviewed the ALS of the GEAC EMM, Part No: 0983402, Rev. 22, dated December 18, 2020. This service information provides updated coefficients for the calculation of the cyclic life and safe life for the main shaft.

The FAA estimates that this AD affects 33 engines installed on airplanes of U.S. registry.

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

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

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

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

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

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

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

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

EASA, which is the Technical Agent for the Member States of the European Union, has issued a series of ADs, with the most recent being EASA Emergency AD 2022-0182-E, dated August 30, 2022 (EASA AD 2022-0182-E), to correct an unsafe condition for all serial-numbered Leonardo S.p.A. Helicopters Model AB139 and AW139 helicopters. EASA AD 2022-0182-E defines the “affected part” as TRDB part number (P/N) 3G6430V00151, P/N 3G6430V00152, and P/N 3G6430V00153, the “affected TRA” as TRA P/N 3G6730V00731 and P/N 3G6730V00732, and the “affected assembly” as sliding control assembly P/N 3G6430A02531.

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 AB139 and AW139 helicopters. The NPRM published in the Federal Register on November 10, 2022 (87 FR 67840). The NPRM was prompted by a report of a damaged TRDB. According to EASA, after an investigation, it was determined that the TRDB had been removed from a sliding control assembly and reinstalled on another sliding control assembly, even though Aircraft Maintenance Programme procedures do not allow reinstallation of a removed TRDB. The NPRM proposed to require accomplishing the actions specified in EASA AD 2022-0182-E.

The FAA received no comments on the NPRM or on the determination of the costs.

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 has notified the FAA about the unsafe condition described in its AD. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these helicopters.

EASA AD 2022-0182-E requires repetitively inspecting certain affected parts, and depending on the results, replacing the affected part with a serviceable part, and for certain conditions, replacing the affected TRA or sliding control assembly, as defined therein. EASA AD 2022-0182-E also requires replacing affected parts with serviceable parts at specified thresholds. Lastly, EASA AD 2022-0182-E prohibits the installation of certain TRDBs or sliding control assemblies on any helicopter.

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 also reviewed Leonardo Helicopters Emergency Alert Service Bulletin No. 139-725, Revision A, dated August 9, 2022 (EASB 139-725 Rev A). EASB 139-725 Rev A specifies procedures for inspecting for rotation between the trunnion and pitch control rod, and applying slippage marks; inspecting the visible areas of the TRDB (including seals) for wear, damages, corrosion, particles, grease leakage, grease leakage particles (including magnetic/metallic particles), and roughness in its movement; and accomplishing a TRDB operational test. Finally, EASB 139-725 Rev A specifies procedures for replacing a TRDB and TRA, discarding the removed TRDB, and sending certain photos and information to Leonardo S.p.A.

The FAA estimates that this AD affects 80 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 TRDB takes up to about 12 work-hours and parts cost about $100 for an estimated cost of up to $1,120 per helicopter and $89,600 for the U.S. fleet, per inspection cycle. If required, replacing a TRDB takes about 3 additional work-hours and parts cost about $2,100, for an estimated cost of $2,355 per helicopter. Replacing a TRA takes about 2 additional work-hours and parts cost about $42,802, for an estimated cost of $42,972 per helicopter. Alternatively, replacing the sliding control assembly takes about 6 work-hours and parts cost about $11,500, for an estimated cost of $12,010 per helicopter.

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

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

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

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

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

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

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

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

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

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on November 4, 2022 (87 FR 66623). The NPRM was prompted by AD 2022-0157, dated August 4, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0157) (also referred to as the MCAI). The MCAI states that reports have been received from the manufacturer of the APU, the engine LP SOV, and the APU ISOV of potential FOD contamination of the TRV, which was generated by a quality escape during the manufacturing assembly process. Results of the technical investigation determined that FOD in the TRV may lead to a fuel leakage through the valve. This condition, if not detected and corrected, could, in case of an APU or engine fire, contribute to an uncontrolled fire, possibly resulting in loss of control of the airplane.

In the NPRM, the FAA proposed to require replacement of affected APU LP SOVs, an inspection to detect fuel leaks of affected engine LP SOVs and APU ISOVs, and applicable corrective actions, as specified in EASA AD 2022-0157. The NPRM also proposed to prohibit installation of affected parts. The FAA is issuing this AD to address potential FOD contamination, which could lead to a fuel leak. The unsafe condition, if not addressed, could result in an APU or engine fire and contribute to an uncontrolled fire, possibly resulting in loss of control of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1407.

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

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

The FAA reviewed EASA AD 2022-0157, which specifies procedures for replacement of affected APU LP SOVs with serviceable parts, a special detailed inspection of affected engine LP SOVs and APU ISOVs for discrepancies (leaks), and replacement of discrepant engine LP SOVs and APU ISOVs with serviceable parts. EASA AD 2022-0157 also prohibits installation of an affected APU LP SOV, engine LP SOV, or APU ISOV. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 69 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of any required actions. The agency has no way of determining the number of aircraft that might need on-condition actions:

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2022-09-03, Amendment 39-22023 (87 FR 29030, May 12, 2022) (AD 2022-09-03). AD 2022-09-03 applied to certain Airbus SAS Model A350-941 and -1041 airplanes. AD 2022-09-03 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2022-09-03 to address the potential failure of certain life-limited parts, which could result in reduced structural integrity of the airplane.

The NPRM published in the Federal Register on November 9, 2022 (87 FR 67575). The NPRM was prompted by AD 2022-0124, dated June 28, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0124) (referred to after this as the MCAI). EASA AD 2022-0124 superseded EASA AD 2021-0206 (which corresponds to FAA AD 2022-09-03). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to continue to require the actions in AD 2022-09-03. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2022-0124. The FAA is issuing this AD to address the potential failure of certain life-limited parts, which could result in reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1408.

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

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

The FAA reviewed EASA AD 2022-0124, which specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2021-0206, dated September 15, 2021, which the Director of the Federal Register approved for incorporation by reference as of June 16, 2022 (87 FR 29030, May 12, 2022).

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

The FAA estimates that this AD affects 30 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2022-09-03 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

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

Electronic Availability

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

On August 5, 2019, OFAC issued GLs 23, 24, 25, and 28 authorizing certain transactions otherwise prohibited by Executive Order (E.O.) 13884 of August 5, 2019, “Blocking Property of the Government of Venezuela” (84 FR 38843). GL 28 expired on September 4, 2019.

Also on August 5, 2019, OFAC issued GL 26, authorizing certain transactions otherwise prohibited by the Venezuela Sanctions Regulations, 31 CFR part 591, E.O. 13692 of March 8, 2015, “Blocking Property and Suspending Entry of Certain Persons Contributing to the Situation in Venezuela” (80 FR 12747), and other E.O.s issued pursuant to the national emergency declared in E.O. 13692.

Also on August 5, 2019, OFAC issued GL 27, authorizing certain transactions otherwise prohibited by E.O. 13692, E.O. 13850 of November 1, 2018, “Blocking Property of Additional Persons Contributing to the Situation in Venezuela” (83 FR 55243); and E.O. 13884.

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 paragraph (b), U.S. depository institutions, U.S.-registered brokers or dealers in securities, and U.S.-registered money transmitters are authorized to process funds transfers involving the Government of Venezuela that are necessary for the operating expenses or other official business of third-country diplomatic or consular missions in Venezuela.

(b) This general license does not authorize any transaction that is otherwise prohibited by E.O. of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835 of May 21, 2018, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857 of January 25, 2019, or any part of 31 CFR chapter V.

(a) Except as provided in paragraph (c) of this general license, all transactions involving the Government of Venezuela incident to the receipt and transmission of telecommunications are authorized.

(b) Except as provided in paragraph (c) of this general license, all transactions of common carriers involving the Government of Venezuela incident to the receipt or transmission of mail and packages between the United States and Venezuela are authorized.

(c) This general license does not authorize any transaction that is otherwise prohibited by Executive Order (E.O.) of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835 of May 21, 2018, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857 of January 25, 2019, or any part of 31 CFR chapter V, or any transactions or dealings with any blocked person other than the Government of Venezuela persons described in paragraphs (a) and (b) of this general license.

(a) Except as provided in paragraph (b) of this general license, the exportation or reexportation, directly or indirectly, from the United States or by U.S. persons, wherever located, to or involving the Government of Venezuela of services, software, hardware, and technology incident to the exchange of communications over the internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, blogging, web hosting, and domain name registration services, that would otherwise be prohibited by Executive Order (E.O.) of August 5, 2019, is authorized.

(b) This general license does not authorize any transaction that is otherwise prohibited by E.O. of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835 of May 21, 2018, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857 of January 25, 2019, or any part of 31 CFR chapter V, or any transactions or dealings with any blocked person other than the Government of Venezuela persons described in paragraph (a) of this general license.

(a) Emergency medical services. The provision and receipt of nonscheduled emergency medical services prohibited by 31 CFR part 591, Executive Order (E.O.) of August 5, 2019, or E.O. 13850, E.O. 13835, E.O. 13827, E.O. 13808, or E.O. 13692, each as amended by E.O. 13857 of January 25, 2019, or any further Executive orders relating to the national emergency declared in E.O. 13692, are authorized.

(b) Other medical services. (1) Except as provided in paragraph (b)(2) of this general license, the provision of medical services involving the Government of Venezuela prohibited by E.O. of August 5, 2019 is authorized.

(2) Paragraph (b)(1) of this general license does not authorize any transaction or dealing otherwise prohibited by E.O. 13850, E.O. 13835, E.O. 13827, E.O. 13808, or E.O. 13692, each as amended by E.O. 13857, or any part of 31 CFR chapter V, or any transactions or dealings with any blocked person other than the persons described in paragraph (b)(1) of this general license.

(a) Except as provided in paragraph (c), all of the following transactions in connection with a patent, trademark, copyright or other form of intellectual property protection in the United States or Venezuela that would otherwise be prohibited by Executive Order (E.O.) 13692 or E.O. 13850, each as amended by E.O. 13857 of January 25, 2019, or E.O. of August 5, 2019, are authorized:

(1) The filing and prosecution of any application to obtain a patent, trademark, copyright, or other form of intellectual property protection;

(2) The receipt of a patent, trademark, copyright, or other form of intellectual property protection;

(3) The renewal or maintenance of a patent, trademark, copyright, or other form of intellectual property protection; and

(4) The filing and prosecution of any opposition or infringement proceeding with respect to a patent, trademark, copyright, or other form of intellectual property protection, or the entrance of a defense to any such proceeding.

(b) This general license authorizes the payment of fees to the United States Government or the Government of Venezuela, and of the reasonable and customary fees and charges to attorneys or representatives within the United States or Venezuela, in connection with the transactions authorized in paragraph (a) of this general license. Payment effected pursuant to the terms of this paragraph may not be made from a blocked account.

(c) This general license does not authorize any transaction that is otherwise prohibited by E.O. of August 5, 2019, or E.O. 13850, E.O. 13835 of May 21, 2018, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692, each as amended by E.O. 13857, or any part of 31 CFR chapter V.

(a) Except as provided in paragraph (b) of this general license, all transactions and activities prohibited by Executive Order (E.O.) of August 5, 2019 that are ordinarily incident and necessary to the wind down of operations, contracts, or other agreements involving the Government of Venezuela that were in effect prior to August 5, 2019 are authorized through 12:01 a.m. eastern daylight time, September 4, 2019.

(b) This general license does not authorize:

(l) Any debit to an account of the Government of Venezuela on the books of a U.S. financial institution; or

(2) Any transactions or dealings otherwise prohibited by E.O. of August 5, 2019, or E.O. 13850 of November 1, 2018, E.O. 13835 of May 21, 2018, E.O. 13827 of March 19, 2018, E.O. 13808 of August 24, 2017, or E.O. 13692 of March 8, 2015, each as amended by E.O. 13857 of January 25, 2019, 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).

We did not publish a notice of proposed rulemaking for this rule. Under Title 5 of the United States Code (U.S.C.), Section 553(b)(A), the Coast Guard finds that this final rule is exempt from notice and public comment rulemaking requirements because these changes involve rules of agency organization, procedure, or practice. In addition, the Coast Guard finds that notice and comment procedures are unnecessary for this final rule under 5 U.S.C. 553(b)(B), as this rule consists of only technical and editorial corrections and these changes will have no substantive effect on the public. Under 5 U.S.C. 553(d)(3), the Coast Guard finds that, for the same reasons, good cause exists for making this final rule effective upon publication in the Federal Register .

This final rule, which becomes effective on February 16, 2023, makes technical and editorial corrections throughout titles 33 and 46 of the Code of Federal Regulations (CFR). These changes are necessary to update authority citations, correct errors, update contact information, and make other non-substantive amendments that improve the clarity of the CFR. This rule does not create or change any substantive requirements.

This final rule is issued under the authority of 5 U.S.C. 552(a) and 553; 14 U.S.C. 102 and 503; Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.3; and authorities listed at the end of this rule for each CFR part this rule amends.

The Coast Guard periodically issues technical, organizational, and conforming amendments to existing regulations in titles 33 and 46 of the CFR. These technical amendments provide the public with accurate and current regulatory information, but do not change the effect of any Coast Guard regulations on the public.

This rule updates the authority citations in 33 CFR parts 101, 104, 105, 106, 117, 162, and 174 and 46 CFR parts 1, 96, 160, 161, 162, 163, 173, and 178. Specifically, this rule implements the updates to DHS Delegation No. 00170.1, Revision No. 01.3 in 33 CFR parts 101, 104, 105, 106, 117, 162, and 174 and 46 CFR parts 1, 96, 160, 161, 162, 163, 173, and 178. It also reflects the repeal of 46 U.S.C. 5115 by removing that section from the authority citation for 46 CFR part 163. And this rule removes the repealed 46 U.S.C. 4104 from the authority citation for 46 CFR part 162.

In § 5.9, this rule updates the website at which the public may obtain copies of the Auxiliary Manual (Commandant Instruction M16790.1(series)) and the Auxiliary Operations Policy Manual (Commandant Instruction M16798.3(series)). This rule revises the web address in this section to “ https://www.dcms.uscg.mil/directives.”

In §§ 70.01-1 and 70.05-20, this rule updates an outdated cross-reference from 33 CFR part 68 to 33 CFR part 118. This reflects the redesignation of 33 CFR part 68 (governing bridge lighting and other signals). On June 11, 1975, the Coast Guard determined that all bridge regulations be grouped in 33 CFR chapter I, subchapter J, “Bridges,” so 33 CFR part 68 was redesignated as 33 CFR part 118.

In § 80.135, this rule updates a reference to “Canal Breakwater Light 4” in the demarcation lines set by the Convention on the International Regulations for Preventing Collisions at Sea, 1972 for the Atlantic Coast from Hull, MA, to Race Point, MA. The reference now reads as “Canal Breakwater Light 6” to match the marker that was redesignated by the project to realign the Aids to Navigation channel.

In §§ 101.105 and 101.510, this rule updates references to Navigation and Vessel Inspection Circular (NVIC) 09-02. This rule replaces “change 2” in § 101.105 and “change 3” in § 101.510 with “series” to ensure that the public will always be directed to the most current version of this circular (which is currently on change 5). This rule also updates the link for the website that the public can use to obtain this or other NVICs.

In §§ 104.267, 105.257, and 106.262, this rule replaces the outdated link provided for the Coast Guard's Homeport website, “ http://homeport.uscg.mil” with the new link, “ https://homeport.uscg.mil.”

In § 105.400, this rule removes irrelevant language that contained a broken website link for submitting facility security plans electronically. The link provided did not direct the user to a functioning web page, so both the link and the sentence containing it were removed.

In § 115.60(b)(2), this rule modernizes the language to include email addresses and more closely align regulations with the requirements for public meetings in 40 CFR 1506.6(b)(3). This rule also clarifies the Coast Guard's options for publishing and posting notices of public meetings.

In § 117.237(b)(2), this rule updates the phone number of the Harrisburg, PA Dispatcher's Office to “470-463-1102.”

In § 117.664, this rule corrects the misspelled “Rainer” to “Ranier.”

In § 162.75(b)(5)(vi), this rule updates the phone number for the Captain of the Port, New Orleans to “504-365-2200 or 504-365-2545.”

In Table 5 to § 165.801, this rule replaces “Riverfront Marketing Group” in line 3 with “Go 4th New Orleans” to maintain consistency with a sponsor's submission on form CG-4423, Application for Approval of Marine Event.

In § 165.1334, this rule corrects “BSU” to “Base” in the section heading to reflect the proper name of the listed Coast Guard base.

In § 174.31(c), this rule removes the words “The payment” and adds the words “Proof of payment” to clarify and align with the wording in 46 U.S.C. 12307(2).

In § 1.01-10(e)(1), this rule replaces the text to reflect changes brought on by the 2018 Organization Modification Request (OMR). The 2018 OMR resulted in changes in which offices are responsible for specific functions, created the Coast Guard's Flag State Control Division (CG-CVC-4), and eliminated the Coast Guard's Human Element and Ship Design Division (CG-ENG-1). This rule's revision of § 1.01-10(e)(1) better defines the Coast Guard Office of Design and Engineering Standards (CG-ENG) and align the functional statement with CG-ENG's Strategic Business Plan.

In § 96.07-5(a), this rule replaces “shall” with “must” to fix a grammatical inaccuracy and to follow Federal plain language guidelines.

In §§ 160.051-5(a), 160.076-11(a), 160.077-5(a), 160.115-5(a), 160.132-5(a), 160.133-5(a), 160.135-5(a), 160.151-5(a), 160.156-5(a), 160.170-5(a), and 160.176-4(a), this rule removes outdated instructions and replaces it with updated locations, websites, and email addresses. These changes conform to the Office of the Federal Register's requirements for writing “incorporation by reference” sections.

In §§ 161.010-4(a), 162.017-6(a), 162.018-8(a), and 162.050-7(a), this rule corrects a mistake from a previous rulemaking and replaces “submitting the VSP electronically” with “electronic submittals.” “VSP” means “vessel security plan,” which is unrelated to approving floating electric water light, safety relief valve, pressure-vacuum valve, or pollution prevention equipment. In these same sections, this rule also updates the Uniform Resource Locator (URL) for submitting vessel security plans electronically to read as “ https://www.uscg.mil/HQ/MSC.”

In § 173.095(b) and (d), this rule updates the equation. The way that the equation is written in the CFR, it is unclear whether the quantity “(P×D)” is to be multiplied by 2/3 or raised to the power of 2/3 , so this rule corrects “ 2/3 ” to “^ 2/3 ”. The public regularly contacted the Marine Safety Center requesting clarification on how to calculate the equation. This rule clarifies that the quantity (P×D) is to be raised to the power of 2/3 .

In § 178.450(a), this rule corrects the typo “Basis Drainage” to “Basic Drainage” to help clear confusion for readers and to match the rest of the text, which uses “Basic Drainage.”

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

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

One additional Executive order was published to promote the goals of Executive Order 13610 (Identifying and Reducing Regulatory Burdens). Executive Order 13610 aims to modernize the regulatory systems and to reduce unjustified regulatory burdens and costs on the public.

The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. A regulatory analysis follows.

This rule involves non-substantive technical amendments and internal agency practices and procedures; it will not impose any additional costs. The technical amendments in this rule fit into categories that involve (1) correcting inadvertent typographical errors in the CFR; (2) modifying existing language in the CFR by addition or subtraction to improve the readability or clarity of regulations; (3) removing irrelevant information, such as expired regulatory provisions or cancelled reference material, and replacing outdated regulatory information with current information where applicable; and (4) revising office contact information and mailing addresses. The Coast Guard does not expect that there will be any additional costs conferred on the public or the Federal Government because none of the technical and editorial changes included in this rule will change existing regulatory requirements. A summary of these amendments by category and by CFR title and section are presented below in table 1.

The unquantified benefits of the non-substantive technical amendments are increased accuracy of regulatory information by correcting erroneous information, and improved readability and clarity of regulations by removing redundant or confusing language and by removing expired or cancelled provisions that are no longer relevant. In addition, correcting technical items such as office contact details and location coordinates will improve the ability to reference and contact the correct entities.

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

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

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

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

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

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

We have analyzed this rule under DHS Management Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble. This rule is categorically excluded under paragraph L54 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev 1. Paragraph L54 pertains to regulations which are administrative or procedural, such as those updating addresses or establishing application procedures. This rule involves making non-substantive technical, organizational, and conforming amendments to existing Coast Guard regulations to keep our regulations up-to-date and accurate.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 5, 70, 80, 101, 104, 105, 106, 115, 117, 162, 165, and 174 and 46 CFR parts 1, 96, 160, 161, 162, 163, 173, and 178 as follows:

Pursuant to section 111 of title 38 United States Code (U.S.C.), VA provides beneficiary travel benefits to eligible individuals who need to travel in connection with vocational rehabilitation, counseling required by the Secretary pursuant to chapter 34 or 35 of Title 38, U.S.C., or for the purpose of examination, treatment, or care. Regulations governing beneficiary travel benefits provided by the Veterans Health Administration (VHA) are in part 70 of title 38 Code of Federal Regulations (CFR). Under part 70, VA has established limiting criteria to pay for a “special mode of transportation” when that travel is medically required, the beneficiary is unable to defray the cost of that transportation, and VHA approved the travel in advance or the travel was undertaken in connection with a medical emergency. See 38 CFR 70.2 (defining the term “[s]pecial mode of transportation”), and 38 CFR 70.4(d) (establishing criteria for approval of special mode travel).

On November 5, 2020, VA proposed amending its beneficiary travel regulations to implement the discretionary authority in 38 U.S.C. 111(b)(3)(C), which permits VA to pay the lesser of the actual charge for ambulance transportation or the amount determined by the Centers for Medicare and Medicaid (CMS) Medicare Part B Ambulance Fee Schedule (hereafter referred to the CMS ambulance fee schedule) established under section 1834(l) of the Social Security Act (42 U.S.C. 1395m(l)), unless VA has entered into a contract for that transportation. Additionally, VA proposed to establish a payment methodology for other types of special modes of transportation, including wheelchair and stretcher van services, which would be used while VA collects data for the purpose of developing a new payment methodology. See 85 FR 70551. We provided a 60-day comment period that ended on January 4, 2021, and we received six comments, five of which were substantive comments. Those five comments all raised similar concerns to 38 CFR 70.30(a)(4) introductory text and (a)(4)(i) and (ii) as proposed, related to using the CMS ambulance fee schedule or the posted rates from each State. We first clarify one aspect of the regulation for the commenters in general, and then address more specific concerns of the individual commenters as applicable (we note that we refer to issues raised by a “commenter” or “commenters” below). Based on the summary and responses below, we adopt the proposed rule as final with two nonsubstantive changes.

After the close of the comment period, VA received several Congressional letters that expressed some concerns also raised in comments. At Congress' request, VA also attended four meetings with members of Congress and their staff between December 20, 2022, and December 22, 2022, during which VA outlined the terms of the proposed rule.

At the outset of our responses, we note that we read the commenters' assertions to rely on the assumption that the proposed rule would create a scenario where VA in all cases will shift from paying billed charges to instead paying amounts derived from the CMS ambulance fee schedule. We first clarify that § 70.30(a)(4)(i) as proposed would only provide that VA pay the lesser of actual charges or the rates determined under the CMS ambulance fee schedule if VA has not otherwise entered into a contract with a vendor of special mode transportation (to include ambulance transport) as provided in § 70.30(a)(4) as proposed. Therefore, VA's payment of rates as determined under the CMS ambulance fee schedule, to the extent they would be lesser than actual charges under § 70.30(a)(4)(i) as proposed, is only enabled if VA has not otherwise entered into a contract under § 70.30(a)(4) as proposed. If VA enters into a contract under § 70.30(a)(4), such contract could provide for an agreed rate that may be different than the CMS ambulance fee schedule. Therefore, it is not an accurate assumption that in all cases VA will pay rates that result from the CMS ambulance fee schedule. We make this clarification so that our additional responses below can be understood in that context.

One commenter asserted that VA using Medicare rates for ambulance transports is a bad idea because those rates are below what it actually costs to transport patients, and subsequently that VA would receive horrible service and veterans would suffer. Further, the commenter asserted that if a patient is not Medicare covered or is under the age of 65, the rates for ambulance transports should be higher, and that each hospital (we assume the commenter was referring to each VA medical facility) should instead enter into contracts with agreed upon rates.

Regarding the assertion that Medicare rates are inadequate to cover the actual costs of ambulance transport, we do not make changes from the proposed rule. Congress granted VA the discretion in 38 U.S.C. 111(b)(3)(C) to use the CMS ambulance fee schedule as part of VA's methodology to calculate ambulance payments, ostensibly finding such schedule to be sufficient. Further, in its most recent ambulance report, the Medicare Payment Advisory Commission (MedPAC), www.medpac.gov, found that, in aggregate, Medicare ambulance margins were adequate, and VA has no cause or expertise to challenge that finding. Regarding the assertion that VA's use of the CMS ambulance fee schedule would result in bad service for VA and veterans, VA is not aware of, and the commenter did not provide evidence to demonstrate that veterans are currently receiving preferential treatment from ambulance providers by virtue of VA paying billed charges or that such preferential treatment would stop were VA to pay CMS ambulance fee schedule rates in the absence of a contract. Additionally, that assertion would assume that ambulance carriers and operators do not apply their professional certification or other standards and ethics in all cases regardless of whether an individual is a veteran, which VA does not believe to be the case. VA has no reason to doubt that the same level of ambulance services would be provided regardless of the payment source or amount of payment for ambulance services.

Regarding the assertion that there should be higher rates paid for ambulance for individuals who are not covered by Medicare or who are below the age of 65, we do not make any changes from the proposed rule. VA does not adopt multiple rate structures or schedules that are dependent on age or other health insurance coverage as VA health care benefits are not private insurance. Rather, VA benefits are created by statute and administered by regulations, through which VA pays for certain services provided to individuals who meet the administrative eligibility and other clinical criteria, without regard to factors such as age. Regarding the assertion that VA medical facilities should contract for adequate rates, we do not make any changes from the proposed rule and reiterate from our responses above that VA will retain the authority in this final rule to enter into contracts with ambulance providers and pay the agreed-upon negotiated rate. We make no changes to the regulation based on this comment.

One commenter, a provider of air ambulance transport, asserted that VA's proposed change to use the CMS ambulance fee schedule would hinder their ability to continue to serve rural areas because the CMS ambulance fee schedule reimburses less than 50 percent of their operational costs, which would cause a loss of several millions of dollars for their company and would impact the rest of emergency air medical services provided throughout the United States. This commenter further asserted that, although they have submitted comments to CMS to review and adjust air ambulance rates under the CMS ambulance fee schedule, such adjustments have not occurred in a manner to keep up with increased costs in providing this transport. The commenter opined that this lack of adjustment in CMS ambulance fee schedule rates, combined with the effects that COVID-19 has had in increasing transport costs and deteriorating their payer mix, make their provision of services less sustainable.

Regarding the commenter's assertions that the rates determined under the CMS ambulance fee schedule are inadequate and would hinder their ability to serve rural areas, and that CMS should adjust their ambulance fee schedule in any particular manner, we are not making any changes from the proposed rule. VA cannot modify or increase the CMS ambulance fee schedule rates. We further reiterate that § 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation (to include air ambulance transport), and the terms of that contract would govern the payment rates for such transport. Such contracts could provide for a different rate as agreed, in the event that VA determined it may be justified based on local considerations, such as for rural areas, or to include any additional consideration of difficulties presented during the COVID-19 pandemic. Regarding the assertion that changes in the final rule to permit VA to pay the lesser or the billed charges or the CMS ambulance fee schedule rates would have a detrimental effect on their business we do not make changes from the proposed rule but rely on the Regulatory Flexibility Act section of the proposed rule where VA has estimated there will not be a significant economic impact on vendors of ambulance services because the potential impact per vendor has been estimated to be less than 1 percent of their annual reported receipts, using North American Industry Classification System (NAICS) Code 62910. Therefore, in addition to the ability for ambulance providers to contract with VA for potentially different rates under the final rule, VA has analyzed that any potential effect on ambulance providers would not be significant. We make no changes to the regulation based on this comment.

One commenter, also a provider of air ambulance transport, more specifically asserted that indexing government reimbursement to the CMS ambulance fee schedule was a gross miscalculation that is poorly timed, as this fee schedule is flawed and cutting reimbursement rates during a global pandemic is unconscionable. This commenter urged that, rather than cutting reimbursements for air ambulance care for veterans, VA should work with the Department of Health and Human Services (HHS) to reform the CMS ambulance fee schedule to bring rates closer to actual costs of providing the service. We do not make any changes to the rule as proposed based on this comment. We restate from our responses above that we believe VA's use of this schedule is appropriate. Regarding the assertion that it is poor timing for VA to implement this change during the COVID-19 pandemic, we reiterate that § 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation to provide for different rates as VA determines may be justified based on local considerations (for instance, to address any difficulties due to the COVID-19 pandemic). Regarding the assertion that CMS should adjust their ambulance fee schedule in any particular manner, or that VA should engage with HHS to reform this schedule, we do not make changes from the proposed rule as those subjects are beyond the scope of the proposed rule.

One commenter, a trade association representing providers of air ambulance services, offered more specific data regarding the background of air ambulance transport in support of establishing actual costs, as well as background on the establishment of the CMS ambulance fee schedule in support of the assertion that the schedule has not been adjusted appropriately to keep up with actual costs. This commenter also more specifically asserted that, should VA move to parity with the CMS ambulance fee schedule, the cost of uncompensated care will only increase, furthering the increased costs shifted to commercial payors or, should those costs not be covered, leading to the increased closure of air ambulance bases, which would increasingly impact low-volume rural areas and other areas with a higher portion of Medicare and Medicaid beneficiaries, as well as VA beneficiaries. This commenter also expressed concern that any effort by the government to limit payments during the global health crisis presented by COVID-19 may be disastrous and have far-reaching consequences for the healthcare and emergency medical systems. Ultimately, this commenter urged VA to delay the implementation of this proposal and revisit the proposed changes only after appropriate data has been collected and analyzed by CMS to determine a fair reimbursement rate, and to otherwise delay any decision to limit payments to providers until the end of the COVID-19 pandemic.

We do not make any changes from the proposed rule based on this commenter's assertions. Regarding the assertions that CMS rates are inadequate, we restate that Congress granted VA the discretion in 38 U.S.C. 111(b)(3)(C) to use the CMS ambulance fee schedule as part of VA's methodology to calculate ambulance payments (ostensibly finding such schedule to be sufficient), and VA has no cause to question the most recent MedPAC report finding that Medicare ambulance margins were adequate.

Regarding the assertion that VA should delay implementation of § 70.30(a)(4) until more data can be collected by CMS to adjust their ambulance fee schedule, the comment alluded to “recent legislation passed by Congress” that “will create a federal database of air ambulance costs which we hope will allow for CMS to modernize the current” ambulance fee schedule. We believe the comment may be referencing provisions of title I (No Surprises Act) and title II (Transparency) of Division BB of the Consolidated Appropriations Act (CAA), 2021 (Pub. L. 116-260). We are aware of a notice of proposed rulemaking published on September 16, 2021 (86 FR 51730), that would implement certain provisions of title I (No Surprises Act) and title II (Transparency) of Division BB of the CAA. Among other things, this proposed rule would increase transparency by requiring group health plans and health insurance issuers in the group and individual markets, and Federal Employee Health Benefits carriers, to submit certain information about air ambulance services to the Secretaries of Health and Human Services (HHS), Labor, and the Treasury, and the Director of the Office of Personnel Management, as applicable, and by requiring providers of air ambulance services to submit certain information to the Secretaries of HHS and Transportation. The information submitted under this proposed rule will include specific elements outlined in law that are necessary for HHS, along with the Department of Transportation, to develop a comprehensive public report on air ambulance services. VA does not have a clear understanding as to how this public report would be used, or whether HHS or CMS may use the report or any product of the required reporting under the proposed rule to determine (as we believe is suggested by the commenter) whether changes to the ambulance fee schedule are warranted.

Because VA does not have a sense of whether changes to the CMS ambulance fee schedule could be pending as suggested by the commenter, VA will not delay the implementation of this final rule until such time as any changes to CMS ambulance rates may occur. We note that because VA is referencing the CMS fee schedule in general in this regulation and not the specific amount that is currently established in the CMS fee schedule, any changes to the CMS rates will be automatically applicable without the need for future rulemaking. VA will, however, delay the effective date of this final rule until February 16, 2024, to ensure that ambulance providers have adequate time to adjust to VA's new methodology for calculating ambulance rates. Such adjustment could include ambulance providers entering into negotiations with VA to contract for payment rates different than those under the CMS fee schedule.

Regarding the assertion that VA should delay implementation of § 70.30(a)(4) until the end of the COVID-19 pandemic, VA is not in a position to know when that time may be, although as stated above VA will delay the implementation of the final rule to provide additional time for vendors of special mode transportation who are concerned with the CMS fee schedule to enter into a contract with VA. Such contracts could provide for a different rate, in the event that VA determined different rates may be justified based on local considerations (to include any additional difficulties presented during the COVID-19 pandemic, or for rural areas as the commenter asserted such areas could be disproportionately affected).

One commenter asserted that some of the information presented in the proposed rule would make it more difficult for patients to access transportation assistance, and specifically opposed the payment methodology in proposed § 70.30(a)(4) for travel by modes other than ambulance. The commenter noted that the problem with this methodology was that the resulting rates (given that they were available for each State) are often quoted as lower than what the actual transportation cost may be. The commenter further inquired as to what happens with any remaining balance, and whether the patient is responsible for the payment of transportation services. Ultimately, the commenter asserted that there needed to be further clarification regarding this methodology for modes of transportation other than ambulance, and that VA should continue to pay for the total cost of non-ambulance transport until more data can be collected and another proposed rule submitted regarding a different methodology.

Regarding the assertions of the commenter that the quoted rates per State for non-ambulance transports are lower than actual costs of such transportation, we do not make any changes from the proposed rule. Similar to our responses regarding adequacy of rates for ambulance transport, we believe it is reasonable and appropriate to rely on posted rates as available per State. Using the rates posted by States ensures consistency and predictability for how much VA will pay to vendors in each State. Section 70.30(a)(4) as proposed would provide VA the option to enter into a contract with a vendor of special mode transportation (to travel by modes other than ambulance under § 70.30(a)(4)(ii) as proposed), and the terms of that contract would govern the payment rates for such transport. Such contracts could provide for a different rate in the event that VA determines that may be justified based on local considerations. We further note that, based on the Regulatory Flexibility Act section of proposed rule, VA has estimated there will not be a significant economic impact on non-ambulance vendors within NAICS Code 621999 (All Other Miscellaneous Ambulatory Health Care Services) or NAICS Code 485991 (Special Needs Transportation) because VA estimates that over 99 percent of its payments to vendors potentially covered within these NAICS Codes are made pursuant to a contract.

Regarding the commenter's inquiry related to billing by non-ambulance providers of veterans for any remaining balance after VA payment for the transport, over 99 percent of these non-ambulance transports are paid for by VA under contract, and the terms of such contracts indicate that payment by VA constitutes payment in full and extinguishes any liability on the part of the individual transported. For the remaining 1 percent of non-ambulance providers that we estimate are not covered by a contract, we do not have knowledge that such providers bill veterans for any remaining balance after receipt of VA's payment. However, if VA becomes aware of such billing of veterans for any remaining balance, we could propose an additional regulatory revision to address that issue in a future rulemaking. We do not make any changes from the proposed rule.

Regarding the commenter's request that VA delay implementation of the methodology for non-ambulance transports until more data can be collected, we will be delaying implementation of the final rule until February 16, 2024, and additional data will be obtained once this rule is implemented. We stated in the proposed rule that after utilizing this methodology for an initial 90 calendar day period after this rule becomes final in the Federal Register , VA will analyze the payments made to vendors for travel by modes other than ambulance and determine whether we have enough payment data ( e.g., arithmetic average of actual charges, locality rates, or posted rates) to develop a new payment methodology. If VA determines that it has enough payment data, then VA will develop a payment methodology using the lowest possible rate. If VA does not have enough payment data to create a new methodology after the initial 90 calendar day period, then VA would continue to collect data for as many 90 calendar day intervals as VA would deem necessary to gather sufficient payment data, which we do not anticipate exceeding 18 months from the effective date of the final rule. Subsequently, VA would propose a new methodology for travel by modes other than ambulance in a separate rulemaking in the Federal Register .

VA makes technical changes not based on comments. The first is to move the last sentence from § 70.30(a)(4) as proposed to instead be placed in § 70.30(a)(4)(ii)(B), which occurs after § 70.30(a)(4)(ii)(A)( 3 ) (§ 70.30(a)(4)(ii)(C) as proposed). The new language in § 70.30(a)(4)(ii)(B) will provide that the term “posted rate” refers to the applicable Medicaid rate for the special mode transport in the State or States where the vendor is domiciled or where transport occurred (“involved States”). And, in the absence of a posted rate for an involved State, VA will pay the lowest among the available posted rates or the vendor's actual charge. This is not a substantive change, but rather moving language into one location so that all interpretation of the meaning of the term “posted rate” in § 70.30(a)(4)(ii) is located in one place.

Second, we are amending the language to capitalize the word “State” in the regulations affected by the proposed rule to be consistent with how VA capitalizes the word “State” throughout our regulations.

Based on the rationale set forth in the proposed rule and in this document, we are adopting the provisions of the proposed rule as final with the changes noted above.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at https://www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. VA estimates that this final rule will potentially impact 2,979 small entities within NAICS Code 621910 (Ambulance Services), which represents 97 percent of the total entities covered by NAICS Code 621910. However, VA assumes that all entities within NAICS Code 621910 would bear VA's cost avoidance equally. The per entity burden is estimated to be less than 1 percent of preliminary receipts for all entities in NAICS Code 621910.

VA does not believe the impact on vendors within NAICS Code 621999 (All Other Miscellaneous Ambulatory Health Care Services) or NAICS Code 485991 (Special Needs Transportation) will be significant because we do not typically pay for non-contract wheelchair or stretcher van services. Because VA estimates that over 99 percent of its payments to vendors potentially covered within NAICS Codes 621999 and 485991 are made pursuant to a contract, less than 1 percent of small entities within these NAICS Codes are estimated to be impacted by this final rule. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule will have no such effect on State, local, and tribal governments, or on the private sector.

This final rule contains no provisions constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521).

The catalog of Federal Domestic Assistance numbers and titles affected by this document are 64.040,VHA Inpatient Medicine (C, D), 64.041, VHA Outpatient Specialty Care (C), 64.042, VHA Inpatient Surgery (C), 64.043, VHA Mental Health Residential (C), 64.044, VHA Home Care (C), 64.045, VHA Outpatient Ancillary Services (C), 64.046, VHA Inpatient Psychiatry (C), 64.047, VHA Primary Care (C), 64.048, VHA Mental Health clinics (C), 64.049, VHA Community Living Center (C), 64.050, VHA Diagnostic Care (C).

Pursuant to the Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as 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).

Denis McDonough, Secretary of Veterans Affairs, approved this document on February 6, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 70 as follows:

Table of Contents I. Relevant Statutory Requirements II. Background III. Basis and Purpose of Final Rules I. Relevant Statutory Requirements

Section 3652(e)(1) of title 39 of the United States Code requires the Commission to prescribe the content and form of the public reports that the Postal Service files with the Commission. 39 U.S.C. 3652(e)(1). In doing so, the Commission must attempt to provide the public with timely information that is adequate to allow it to assess the lawfulness of Postal Service rates, should attempt to avoid unnecessary or unwarranted Postal Service effort and expense, and must endeavor to protect the confidentiality of commercially sensitive information. See id. The Commission may initiate proceedings to improve the quality, accuracy, or completeness of Postal Service reporting whenever it determines that the service performance data have become significantly inadequate, could be significantly improved, or otherwise require revision as necessitated by the public interest. 39 U.S.C. 3652(e)(2).

Additionally, section 3692 directs the Postal Service to develop and maintain a publicly available online “dashboard” that provides weekly service performance data for Market Dominant products and mandates that the Commission provide reporting requirements for this Postal Service dashboard as well as “recommendations for any modifications to the Postal Service's measurement systems necessary to measure and publish the performance information” located on the dashboard. 39 U.S.C. 3692(b)(2), (c). The Postal Service is also authorized to provide certain nonpostal services to the public and other Governmental agencies and consequently required to periodically report the quality of service for these nonpostal services. See 39 U.S.C. 3703-3705.

Pursuant to 39 U.S.C. 503, 3652, 3653, 3692 and 3705, the Commission initiated Docket No. RM2022-7 to update the service performance reporting requirements codified in 39 CFR part 3055 and make the aforementioned additions for dashboard and nonpostal product reporting. On April 26, 2022, the Commission issued Order No. 6160, proposing several modifications to the reporting requirements, providing an opportunity for interested persons to comment, and appointing a Public Representative. 1 Included among these suggested modifications were proposals to require the Postal Service to report average actual days to delivery and point impact data, information regarding the performance for each national operating plan target, and data about mail excluded from measurement. Order No. 6160 at 5-6. The Commission also solicited comments on how best to effectuate the statutes requiring the Postal Service to report on nonpostal products and implement a performance dashboard. Id. at 6-8.

The Commission received a wide range of comments in response to Order No. 6160, both discussing the suggested revisions and proposing additional amendments to the reporting requirements. In response, on September 21, 2022, the Commission issued Order No. 6275, revising the previously-proposed reporting requirements, presenting the requirements as draft regulations, and providing another opportunity for interested persons to comment. 2 Again, the Commission received a variety of comments in response.

After reviewing the commenters' suggestions and analysis, the Commission issues the following revisions to the rules proposed in Order No. 6275. Most rules have not been changed substantively; those that have are addressed below.

First, proposed § 3055.2(m)—which relates to required annual reporting on the Postal Service's Site-Specific Operating Plan (SSOP)—is revised to state that the Postal Service must provide a description of each SSOP, including operation completion time performance for each SSOP measurement category.

Second, proposed § 3055.21—which specifies the annual service performance reporting requirements for the Postal Service—is revised so that proposed § 3055.21(b) specifies that the Postal Service need not identify point impact data for USPS Marketing Mail Every Door Direct Mail or USPS Marketing Mail Destination Delivery Unit Entry Saturation Flats.

Third, proposed § 3055.25—which describes the reporting requirements for nonpostal services—is revised to specify that the Postal Service provide the measure of the quality of service for nonpostal service products annually. Additionally, paragraph (b) is added to specify that the Postal Service may report service performance in a qualitative manner where the quality of nonpostal service itself cannot be measured using on-time service performance. Paragraph (c) is also added to specify that quality of service performance for interagency agreements shall be reported for the program as a whole. Paragraph 3055.25(d) is added to set an effective date for nonpostal services reporting as the beginning of FY 2024.

Fourth, proposed § 3055.30—which describes the Postal Service's periodic service performance reporting obligations—is revised to reflect the fact that the Postal Service is not required to report on a quarterly basis for nonpostal services. As previously-proposed, the existing text is revised to indicate that reporting is not required where exempted by the Commission.

Fifth, proposed § 3055.31—which describes the contents of the Postal Service's Quarterly Report on service performance—is revised so that paragraph (g) states that the Postal Service must provide a description of each SSOP, including operation completion time performance for each SSOP measurement category.

Sixth, the proposed addition of § 3055.70 described in Order No. 6275—which required quarterly reporting for nonpostal services—is withdrawn.

Seventh, proposed § 3055.102—which details the specific requirements for the Postal Service's Public Performance Dashboard—is revised to indicate that the Postal Service is not required to report ZIP Code-level data. Proposed § 3055.102 is also revised to indicate that a query initiated by a user will provide District-level (rather than ZIP Code-level) results. Proposed § 3055.102(d) is revised to indicate that National scores need only date back to FY 2021, and Area and District scores need only date back to FY 2022. Proposed § 3055.102(f), (g), and (i) are revised to specify that processing scores are required for identifiable Political Mail, identifiable Election Mail, and identifiable Nonprofit Mail. Paragraph (j) is also added to require the Postal Service to distinguish non-political NPMM from Political Mail and Election Mail that is sent via NPMM. Paragraph (k) is added to specify that the point impact data for the top ten root causes of on-time service performance failures is required at the Postal Administrative Area and National levels, but not for Nonprofit Mail. Paragraph (o) is added to require the Postal Service to include with the Dashboard an explanation of the underlying methodology and data. Paragraph (p) is added to provide reporting deadlines for certain data on the Dashboard.

Finally, proposed § 3055.103—which describes the format for the data in the Postal Service's Public Performance Dashboard—is revised to specify that the Postal Service shall provide the results of user-initiated queries on the Public Performance Dashboard in a machine-readable format.

For the reasons stated in the preamble, the Commission amends 39 CFR part 3055 as follows:

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

Section 110(a)(1) of the CAA requires each state to submit to the EPA, within three years after the promulgation of a primary or secondary NAAQS or any revision thereof, a SIP revision that provides for the implementation, maintenance, and enforcement of such NAAQS.

Section 110(a)(2) of the CAA contains the infrastructure SIP requirements, which generally relate to the information, authorities, compliance assurances, procedural requirements, and control measures that constitute the “infrastructure” of a state's air quality management program. These infrastructure SIP requirements (or “elements”) required by section 110(a)(2) are as follows:

• Section 110(a)(2)(A): Emission limits and other control measures.

• Section 110(a)(2)(B): Ambient air quality monitoring/data system.

• Section 110(a)(2)(C): Program for enforcement of control measures and regulation of new and modified stationary sources.

• Section 110(a)(2)(D)(i): Interstate pollution transport.

• Section 110(a)(2)(D)(ii): Interstate pollution abatement and international air pollution.

• Section 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local and regional government agencies.

• Section 110(a)(2)(F): Stationary source monitoring and reporting.

• Section 110(a)(2)(G): Emergency episodes.

• Section 110(a)(2)(H): SIP revisions.

• Section 110(a)(2)(J): Consultation with government officials, public notification, prevention of significant deterioration (PSD), and visibility protection.

• Section 110(a)(2)(K): Air quality modeling and submittal of modeling data.

• Section 110(a)(2)(L): Permitting fees.

• Section 110(a)(2)(M): Consultation/participation by affected local entities.

Two elements identified in section 110(a)(2) are not governed by the three-year submittal deadline of section 110(a)(1) and are therefore not addressed in this action. These two elements are: (i) section 110(a)(2)(C), to the extent it refers to permit programs required under part D (nonattainment new source review (NSR)), and (ii) section 110(a)(2)(I), pertaining to the nonattainment planning requirements of part D. As a result, this action does not address requirements for the nonattainment NSR portion of section 110(a)(2)(C) or the whole of section 110(a)(2)(I).

On January 15, 2013, the EPA promulgated a revised primary NAAQS for PM 2.5 , triggering a requirement for states to submit infrastructure SIPs by December 15, 2015. The revised standard lowered the annual PM 2.5 NAAQS to 12.0 micrograms per cubic meter (μg/m 3 ) to provide increased protection against health effects associated with long- and short-term exposures (including premature mortality, increased hospital admissions and emergency department visits, and development of chronic respiratory disease). 1

The NDEP made a submittal addressing the infrastructure SIP requirements for the 2012 PM 2.5 NAAQS on December 11, 2015 (“Nevada's Infrastructure SIP Submittal”). 2 It included separate sections for Clark County  3 and Washoe County. 4 We refer to each individual section as that agency's or County's portion of the submittal. In accordance with CAA section 110(k)(1)(B), Nevada's Infrastructure SIP Submittal became complete by operation of law on June 11, 2016.

On October 20, 2022, we proposed to approve and partially approve Nevada's Infrastructure SIP Submittal for the requirements of the following sections of the CAA:  5

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C) (in part): Program for enforcement of control measures (full approval), and regulation of new stationary sources (approval for Clark County only) and minor sources (full approval).

• 110(a)(2)(D) (in part): Interstate Pollution Transport.

o 110(a)(2)(D)(i)(I)—significant contribution to a nonattainment area (prong 1).

o 110(a)(2)(D)(i)(I)—interference with a maintenance area (prong 2).

o 110(a)(2)(D)(i)(II) (in part)—interference with PSD (prong 3) (approval for Clark County only).

o 110(a)(2)(D)(ii) (in part)—interstate pollution abatement (approval for Clark County only) and international air pollution.

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency episodes.

• 110(a)(2)(H): SIP revisions.

• 110(a)(2)(J) (in part): Consultation with government officials, public notification (conditional approval for NDEP and Washoe County, approval for Clark County), and PSD and visibility protection (approval for Clark County only).

• 110(a)(2)(K): Air quality modeling and submission of modeling data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

As part of our proposed action of Nevada's Infrastructure SIP Submittal, we proposed approval of several state regulations into the Nevada SIP. Two provisions, NAC 445B.1349 and NAC 445B.1355, define “PM 2.5 emissions” and “PM 10 emissions,” respectively, to include vapors that can condense to form PM 2.5 and PM 10 . Three provisions are revisions to NAC 445B.2203, NAC 445B.2207, and NAC 445B.22096 and replace the term “emissions of PM 10 ” with “PM 10 emissions,” Finally, NAC 445B.22097 revises the State annual PM 2.5 emissions standard from 15.0 µg/m 3 to 12.0 µg/m 3 to be consistent with the 2012 PM 2.5 NAAQS.

The EPA proposed to conditionally approve of the portions of the NDEP and Washoe County Infrastructure SIP Submittals addressing the public notification requirements of CAA section 110(a)(2)(J) for the 2012 PM 2.5 NAAQS.

The EPA proposed to partially disapprove Nevada's Infrastructure SIP Submittal with respect to the following infrastructure SIP requirements:

• 110(a)(2)(C) (in part): Regulation of new and modified stationary sources (disapproval for the NDEP and Washoe County).

• 110(a)(2)(D)(i)(II) (in part): interference with PSD (prong 3) (disapproval for the NDEP and Washoe County).

• 110(a)(2)(D)(ii) (in part): interstate pollution abatement (disapproval for the NDEP and Washoe County).

• 110(a)(2)(J) (in part): PSD (disapproval for the NDEP and Washoe County).

Although the NDEP and Washoe County portions of the SIP remain deficient with respect to PSD requirements, the EPA noted that the proposed disapproval, if finalized, would have no consequences, as both agencies implement the Federal PSD program at 40 CFR 52.21 for all regulated NSR pollutants, pursuant to delegation agreements with the EPA.

We proposed to retain the Priority I classification for the Las Vegas Intrastate and Northwest Nevada Intrastate Air Quality Control Regions (AQCR) and reclassify the Nevada Intrastate AQCR to Priority III. Priority I regions are required to have SIP approved emergency episode plans, also called contingency plans. We proposed to exempt the Northwest Nevada Intrastate AQCR, which includes areas regulated by the NDEP and Washoe County, from this requirement pursuant to 40 CFR 51.152(d)(1) due to the AQCR's attainment status.

The EPA did not propose action on the interstate transport visibility requirements of 110(a)(2)(D)(i)(II), which is also called Prong 4 of the interstate transport requirements. On August 12, 2022, NDEP and Clark County withdrew the Prong 4 element in the Nevada's Infrastructure SIP Submittal and submitted a revised Prong 4 element with the State's Regional Haze Plan for the 2nd Planning Period. 6 The EPA intends to act on the revised Prong 4 element when we act on Nevada's Regional Haze Plan for the 2nd Planning Period.

The EPA's proposed action provided a 30-day public comment period that ended on November 16, 2020. During this period, the EPA received three separate anonymous comments. The full text of all three comments is available in the docket for this rulemaking.

One commenter stated that the rulemaking was a good idea but noted that Reno had bad air quality a few months ago and suggested that stricter air quality standards would improve air quality. After reviewing the comment, the EPA has determined that the comment is supportive of our action and does not necessitate a substantive response. However, we also note that the purpose of infrastructure SIP submittals is to provide for the implementation, maintenance, and enforcement of each primary or secondary NAAQS. The requirement to develop control measures to improve air quality typically occurs as part of the EPA's nonattainment plan review under Part D of title I of the CAA when an area is not attaining the NAAQS. 7 Here, however, the entire State of Nevada is designated attainment for the 2012 PM 2.5 NAAQS and our action has merely evaluated whether the state meets CAA “infrastructure” requirements under section 110(a)(2) of the Act.

Another commenter recommended that the EPA hold states accountable for not meeting air quality standards and suggested a causal link between political party affiliation and death rates among young people. After reviewing the comment, the EPA has determined that the comment fails to raise issues germane to our proposed finding that the State of Nevada largely meets the infrastructure SIP requirements of section 110(a)(2) of the Act, which only evaluated the State's ability to implement, maintain, and enforce the 2012 PM 2.5 NAAQS. Therefore, we have determined that this comment does not necessitate a response, and the EPA will not provide a specific response to the comment in this document.

The final comment recommended that the Federal Government impose strict air quality standards on the State of Utah and proposed a variety of measures the State of Utah should take to improve environmental quality. After reviewing the comment, the EPA has determined that the comment fails to raise issues germane to our proposed finding that the State of Nevada largely meets the infrastructure SIP requirements of section 110(a)(2) of the Act, which only evaluated the State's ability to implement, maintain, and enforce the 2012 PM 2.5 NAAQS. Therefore, we have determined that this comment does not necessitate a response, and the EPA will not provide a specific response to the comment in this document.

Under CAA section 110(a), we are partially approving and partially disapproving Nevada's Infrastructure SIP submittal for the 2012 PM 2.5 NAAQS. Specifically, we are fully approving the submittal for the requirements of CAA sections:

• 110(a)(2)(A): Emission limits and other control measures.

• 110(a)(2)(B): Ambient air quality monitoring/data system.

• 110(a)(2)(C) (in part): Program for enforcement of control measures (full approval), and regulation of new stationary sources (approval for Clark County only) and minor sources (full approval).

• 110(a)(2)(D) (in part): Interstate Pollution Transport.

○ 110(a)(2)(D)(i)(I)—significant contribution to a nonattainment area (prong 1).

○ 110(a)(2)(D)(i)((I)—interference with a maintenance area (prong 2).

○ 110(a)(2)(D)(i)(II) (in part)—interference with PSD (prong 3) (approval for Clark County only) and visibility transport (prong 4) (deferred).

○ 110(a)(2)(D)(ii) (in part)—interstate pollution abatement (approval for Clark County only) and international air pollution.

• 110(a)(2)(E): Adequate resources and authority, conflict of interest, and oversight of local governments and regional agencies.

• 110(a)(2)(F): Stationary source monitoring and reporting.

• 110(a)(2)(G): Emergency episodes.

• 110(a)(2)(H): SIP revisions.

• 110(a)(2)(J) (in part): Consultation with government officials, public notification (conditional approval for NDEP and Washoe County, approval for Clark County), and PSD and visibility protection (approval for Clark County only).

• 110(a)(2)(K): Air quality modeling and submission of modeling data.

• 110(a)(2)(L): Permitting fees.

• 110(a)(2)(M): Consultation/participation by affected local entities.

The EPA is taking final action to conditionally approve of the portions of the NDEP and Washoe County portions of Nevada's Infrastructure SIP Submittal addressing the public notification requirements of CAA section 110(a)(2)(J) for the 2012 PM 2.5 NAAQS.

We are taking final action to disapprove Nevada's Infrastructure SIP Submittal with respect to the following infrastructure SIP requirements:

• 110(a)(2)(C) (in part): Regulation of new and modified stationary sources (disapproval for the NDEP and Washoe County).

• 110(a)(2)(D)(i)(II) (in part): interference with PSD (prong 3) (disapproval for the NDEP and Washoe County).

• 110(a)(2)(D)(ii) (in part): interstate pollution abatement (disapproval for the NDEP and Washoe County).

• 110(a)(2)(J) (in part): PSD (disapproval for the NDEP and Washoe County).

Although the NDEP and Washoe County portions of the SIP remain deficient with respect to PSD requirements, this final disapproval action has no consequences, as both agencies implement the Federal PSD program at 40 CFR 52.21 for all regulated NSR pollutants, pursuant to delegation agreements with the EPA.

In this final action, the EPA is also approving in the Nevada SIP revisions to the Nevada Administrative Code (NAC). The EPA is approving into the SIP two new provisions, NAC 445B.1349 and NAC 445B.1355, to define “PM 2.5 emissions” and “PM 10 emissions” to include vapors that can condense to form PM 2.5 and PM 10 . In addition, the EPA is approving revisions to NAC 445B.2203, NAC 445B.2207, and NAC 445B.22096 and replace the term “emissions of PM 10 ” with “PM 10 emissions.” Finally, the EPA is approving into the Nevada SIP NAC 445B.22097 to revise the State annual PM 2.5 emissions standard from 15.0 µg/m 3 to 12.0 µg/m 3 to be consistent with the 2012 PM 2.5 NAAQS. These new and updated provisions strengthen the SIP or clarify certain terms in the SIP, as discussed in the proposed rule, and meet the requirements of CAA sections 110(a)(2), 110(l), and 193. Therefore, the EPA is approving the submitted new and revised rules into the Nevada SIP as proposed.

This final rule retains the classification of the Las Vegas Intrastate and Northwest Nevada Intrastate AQCRs as Priority I for emergency episodes and reclassifies the Nevada Intrastate AQCR to Priority III. This approval also exempts the Northwest Nevada Intrastate AQCR, which includes areas regulated by the NDEP and Washoe County, from the emergency episode plan requirement pursuant to 40 CFR 51.152(d)(1) due to the AQCR's attainment status.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference as described in Section III.B. and set forth below in the amendments to 40 CFR part 52. The EPA has made, and will continue to make, these documents available through https://www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action does not impose an information collection burden under the PRA because this action does not impose additional requirements beyond those imposed by state law.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities beyond those imposed by state law.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by state law. Accordingly, no additional costs to State, local, or tribal governments, or to the private sector, will result from this action.

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

This action does not have tribal implications, as specified in Executive Order 13175, because the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction and will not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because it does not impose additional requirements beyond those imposed by state law.

This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

Section 12(d) of the NTTAA directs the EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. The EPA believes that this action is not subject to the requirements of section 12(d) of the NTTAA because application of those requirements would be inconsistent with the CAA.

The state did not evaluate environmental justice considerations as part of its SIP submittal. There is no information in the record inconsistent with the stated goals of E.O 12898 of achieving environmental justice for people of color, low-income populations, and indigenous peoples.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 17, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

The revisions and additions read as follows:

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

On October 14, 2022 (87 FR 62337) (herein referred to as the proposed rule), the EPA proposed to approve a SIP revision submitted by the California Air Resources Board (CARB) on February 13, 2020 consisting of certain state regulations (known as the Innovative Clean Transit (ICT) regulation) adopted to transition California public transit bus fleets to zero-emission technologies by 2040 and thereby to provide reductions in NO X and PM emissions to support regional air quality plans and improve air quality along public transit routes. Table 1 lists the specific sections of Title 13, Division 3, Chapter 1, Article 4.3 of the California Code of Regulations (CCR) that comprise the ICT regulation.

On August 11, 2022, CARB supplemented the February 13, 2020, SIP submission by submitting certain additional definitions codified in the CCR or California Health & Safety Code (CH&SC) that are relied upon in the ICT regulation. The specific definitions submitted on August 11, 2022, are listed in table 2.

On pages 62339-62341 of our proposed rule, we described how we evaluated the ICT regulation and how we determined that the regulation meets all applicable CAA requirements. In short, we determined that:

• CARB provided adequate public notice of a comment period and a hearing on the draft ICT regulation prior to adoption and submission to the EPA, and thereby complied with the applicable procedural requirements for SIP revisions under the CAA section 110(l) and 40 CFR 51.102;

• CARB has adequate legal authority to implement the ICT regulation because state law so provides; and because the requirements relate to transit bus purchases directed at public transit agencies ( i.e., not private fleet operators), the regulations are not preempted under the CAA; and because CARB is not otherwise prohibited by any provision of federal or state law from carrying out the regulation;

• The regulation includes all of the elements necessary to provide for practical enforceability, including clear applicability and exemption provisions, requirements that are sufficiently specific so that the persons affected by the regulation are fairly on notice as to what the requirements and related compliance dates are, and recordkeeping and reporting provisions, and thereby establish an enforceable control measure as required under CAA section 110(a)(2)(A);

• The ICT regulation is an outgrowth of a committal measure for further deployment of zero-emission bus (ZEB) technologies in the public transit sector that was adopted by CARB in the 2016 State SIP Strategy, and the ICT regulation would achieve incremental emissions reductions needed to attain the NAAQS, particularly in the South Coast and San Joaquin Valley air quality planning areas. Thus, we found that the ICT regulation would not interfere with reasonable further progress (RFP), attainment or any other applicable CAA requirement for the purposes of CAA section 110(l); and

• The ICT regulation would require only one additional person-year for developing a reporting system and updating fleet information prior to initial reporting in 2020, assisting transit agencies with compliance and annual reporting, and thus CARB has adequate personnel and funding to carry out the ICT regulation.

For additional detail on the SIP submission itself, and our evaluation, please see our proposed rule.

The EPA's proposed rule provided for a 30-day comment period. The EPA received a total of seven comment letters in response to the proposed rule. Four of the comment letters express general support for our proposed action. The three other comment letters include objections to our proposed action: (1) a comment letter from the Center for Community Action and Environmental Justice (CCAEJ);  5 (2) a comment letter from the American Fuel & Petroleum Manufacturers (AFPM); and (3) a comment letter from an individual member of the public. All the comments letters can be found in the docket for this rulemaking. In the paragraphs below, we summarize the comments and provide responses for the three comment letters that include objections to our proposed action.

CCAEJ Comment #1: CCAEJ submits these comments in support of the EPA's proposed approval of the ICT regulation. CCAEJ strongly supports ZEBs as an air quality and environmental justice solution in the Inland Empire and in other communities. However, a recent ICT regulation implementation update disclosed the financial challenges facing transit agencies to fully transition to 100 percent ZEBs as required by the regulation.

CCAEJ has concerns that transit agencies will seek to avoid the transition to ZEBs by claiming financial infeasibility. Accordingly, CCAEJ calls on the EPA to partially disapprove the ICT regulation due to the unenforceability of the exemption for “financial hardship.” The Clean Air Act requires that measures are enforceable, and the EPA should require CARB to amend the regulation to ensure enforceability. The financial hardship exemption at 13 Cal. Code Regs. § 2023.4(c)(5) lacks enforceability. The exemption provision requires the CARB Executive Officer to grant a transit agency an exemption if the agency meets certain criteria. 13 Cal. Code Regs. § 2023.4(a). A transit agency may claim the financial hardship exemption request when the transit agency adopts a resolution declaring a “fiscal emergency.” Cal. Code Reg. § 2023.4(c)(5)(B)(1). This exemption is not enforceable. A transit agency can claim the exemption by adopting nothing more than a resolution declaring a “fiscal emergency.” 13 Cal. Code Regs. § 2023.4(c)(5)(B)(1). However, the ICT regulation does not define “fiscal emergency.” See 13 Cal. Code Regs. § 2023(b). And CARB has not submitted any other regulations that define “fiscal emergency” to the EPA for approval into the SIP. See 87 FR at 62338 and Table 2. The ICT regulation further requires no supporting documentation for the resolution to justify the undefined “fiscal emergency.” See 13 Cal. Code Regs. § 2023.4(c)(5)(B)(1). A transit agency, relying on this provision, could adopt a simple resolution finding a fiscal emergency without any supporting documentation and without reference to any enforceable standard for what constitutes a “fiscal emergency.” This provision begs for abuse and could allow transit agencies to avoid the regulation's purchase mandate for claimed fiscal emergencies. Without a defined standard and supporting documentation, citizens and the EPA will be unable to hold transit agencies accountable for their duty to purchase ZEBs.

EPA response to CCAEJ Comment #1: The EPA does not have the authority to disapprove the exemption for “financial hardship” but approve the rest of the ICT regulation because the exemption is not severable from the rest of the regulation, and because the EPA cannot render a SIP more stringent than intended by the state through a partial SIP approval. 6 This principle was first established in the Seventh Circuit Court of Appeal's decision in Bethlehem Steel, a case in which the EPA approved a state opacity limitation but disapproved the allowance for violations of the limitation for a certain number of minutes within a 24-hour period. 7 The court held that the EPA cannot, in the guise of a partial approval, remove words of limitation and thereby make the regulation stricter than the state had intended. 8 If the EPA determines that a stricter rule is required, then the CAA provides that the EPA must disapprove the state regulation and promulgate a Federal Implementation Plan (FIP) in its place. In this instance, too, the EPA is not authorized to approve the ICT regulation but disapprove the financial hardship exemption included therein because doing so would make the regulation stricter than the state had intended. Moreover, we believe the ICT regulation need not be made stricter by removal of this exemption to meet applicable CAA requirements.

In addition, we do not view the “financial hardship” exemption as making the ICT regulation unenforceable. We agree that the provision does not have a specific definition for the term “fiscal emergency,” but the EPA believes that the requirements for public process and involvement will serve to assure that a public transit agency would not assert a fiscal emergency inappropriately or for purposes of invoking the exemption except when actually necessary. With respect to the specific provisions regarding fiscal emergencies, we note that the ICT regulation specifies that, to claim the exemption, a transit agency would need to declare a fiscal emergency under a resolution by a transit agency's governing body following a public hearing. 9 Moreover, under California law, a public hearing conducted by a public transit agency to consider declaration of a fiscal emergency will be governed by the Brown Act, which as a general matter requires California public agencies to conduct their business publicly. 10 Under the Brown Act, such a hearing will be subject to minimum requirements regarding posting of notice of the hearing, posting of agendas and providing opportunities for public comment. 11 As such, the public will have knowledge of, and the opportunity to participate in, the decision by a transit agency to declare a fiscal emergency. Given the procedure safeguards established in the Brown Act, we do not expect public transit agencies to abuse the financial hardship exemption to unduly delay the process under the ICT regulation for full transition to zero-emission buses.

However, while, we do not view the financial hardship exemption as making the ICT regulation unenforceable, we do agree that the exemption, if granted frequently, could delay the expected schedule for full transition to ZEBs and delay the timing of the associated emissions reductions. As discussed further below in the EPA response to CCAEJ Comment #2, we expect that CARB will take into account the actual transition to ZEBs and related emissions reductions in future updates to the EMFAC model, and the EPA will assess the accuracy of emissions projections reflecting emissions reductions from the ICT regulation when the Agency takes action on SIP submissions of regional air quality plans.

CCAEJ Comment #2: Given several exemptions provided in the ICT regulation, the financial challenges of implementation, and CARB's claim that the regulation will achieve zero NO X and PM 2.5 emissions, the EPA should not grant full SIP credit. CARB has claimed significant reductions from the ICT regulation, including 100% reductions by 2045. The EPA should only grant partial SIP credit because the regulation allows for transit agencies to claim several exemptions and continue to purchase internal combustion engine buses. A transit agency may claim exemptions for delays in ZEB infrastructure, when ZEBs cannot meet daily mileage needs, when ZEBs do not have adequate gradeability performance, when a ZEB for the applicable weight class is not available, and for financial hardship provided the agency demonstrates that the agency cannot offset the initial capital costs of ZEBs and associated infrastructure. Given these offramps for transit agencies, and the recent implementation update showing the substantial financial challenges transit agencies face with implementation beyond the initial 25 percent target, the EPA should decline to grant full SIP credit.

EPA response to CCAEJ Comment #2: While, in the proposed rule, the EPA acknowledged CARB's estimates for the reductions associated with the ICT regulation, 12 the EPA is not approving a specific numerical credit for the ICT regulation in this rulemaking. The emissions reductions associated with the ICT regulation are reflected in the most recently-approved version of CARB's on-road motor vehicle emissions model, EMFAC2021, and in the EPA-approved adjustment factors for the previous version of the model, EMFAC2017. 13

CARB updates its EMFAC model every three or four years and each successive version reflects update vehicle mixes and vehicle types and also changes in circumstances that affect assumptions regarding emissions reductions from regulatory initiatives such as the ICT regulation. Thus, if the transition to ZEBs in public transit fleets proves to be slower than assumed by EMFAC2021 and the adjustment factors to EMFAC2017, then CARB will take that circumstance into account in updating the model. The EPA, for its part, will assess the accuracy of emissions projections reflecting emissions reductions from the ICT regulation when the Agency takes action on SIP submissions, such as RFP and attainment demonstrations, that rely on emissions estimates made using EMFAC2021 or EMFAC2017 (with the adjustment factors).

Moreover, at this time, we do not find that CARB's emission reduction projections for the transition to zero emission buses under the ICT regulation are overly optimistic. First, at the CARB Board hearing on September 22, 2022, CARB reported that, based on the reported data for year 2021, California transit agencies collectively have 510 zero-emission buses in fleet and an addition 424 ZEBs on order, which is a total increase of over 250 zero-emission buses compared to year 2020. 14 Second, CARB reports that funding has been awarded for nearly 750 additional zero-emission buses to be ordered. 15 When the ICT regulation was proposed, CARB had estimated that, by 2027, approximately 1,350 zero-emission bus purchases would be required to comply with the regulation, 16 but that number of bus purchases has already been surpassed when taking into account the number of zero-emission buses in service, or on order, or for which funding has been awarded. As such, we expect the anticipated emissions reductions estimated by CARB due to the ICT regulation and reflected in EMFAC to be achieved at least through the end of this decade. Beyond 2030, there is greater uncertainty as to the emissions reductions from the ICT regulation, but as noted above, future updates to the EMFAC model will take into account updated forecasts for the transition to zero-emission buses by the various public transit agencies.

AFPM Comment #1: The Clean Air Act provides states with a limited authority to establish emissions standards for government-owned fleets; however, that authority is constrained by the statute. In litigation challenging an earlier set of fleet regulations in California, 17 the Ninth Circuit Court of Appeals explained the limitations to the provisions of CAA section 209(a). Although states are free to set more stringent standards for state-owned fleets, the ICT regulation fails to respect these statutory limits. The ICT regulation that the EPA is proposing to approve as part of the California SIP are not emissions standards because they are not performance standards, but rather a mandate to purchase an increasing percentage of specific technologies, and only vehicles powered by electricity or fuel cells qualify. The regulation is not applied uniformly to all vehicles in the class and, therefore, is not a standard.

EPA response to AFPM Comment #1: States do not derive their authority to set emission standards under the CAA, rather they do so pursuant to their respective state law authority. However, CAA section 209(a) prohibits states and political subdivisions from adopting or attempting to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines. As set forth in AFPM Comment #3 and EPA's response, the ICT regulation is an emission standard that would generally be preempted by section 209(a). The EMA decision noted by AFPM was the result of remand from the United States Supreme Court to the United States District Court and then on appeal to the Ninth Circuit. 18 The Supreme Court noted: “The criteria referred to in § 209(a) relate to the emission characteristics of a vehicle or engine. To meet them the vehicle or engine must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions. This interpretation is consistent with the use of `standard' throughout Title II of the CAA (which governs emissions from moving sources) to denote requirements such as numerical emission levels with which vehicles or engines must comply, e.g., 42 U.S.C. 7521(a)(3)(B)(ii), or emission-control technology with which they must be equipped, e.g., 42 U.S.C. 7521(a)(6).”  19 The EPA need not decide whether CARB's ICT zero-emission technology requirements are performance requirements or design technology requirements, as either relates to the emission characteristics of the vehicle and is designed to address emissions from the vehicle. Further, the commenter provides no authority for the claim that a requirement is only a “standard” if it applies uniformly. As addressed by the Supreme Court in Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist, a set of rules that require a specific emission performance be met (among a broader list of emission-certified vehicles) by fleet purchasers will still be considered a standard under section 209(a). 20

Lastly, we acknowledge that, in our proposed rule on page 62340, we stated that, in adopting the ICT regulation, CARB has not adopted or attempted to enforce a “standard” relating to the control of emissions from new motor vehicles for the purposes of CAA section 209(a). However, in so stating, we did not mean that the ICT regulation does not establish an emission standard in the sense considered preempted by the Supreme Court, but rather, that, because the requirements only apply to purchases by public entities, the regulation is not preempted under CAA section 209(a). This is discussed further in AFPM Comment #3 and EPA's response thereto.

AFPM Comment #2: In the EMA case, the Ninth Circuit found “nothing to indicate a congressional intent to bar states from choosing to use their own money to acquire or use vehicles that exceed the federal standards.” However, the California standards do not exceed federal standards. California (and the EPA) has not shown that the ICT standards will reduce life-cycle greenhouse gas, PM 2.5, or NO X emissions. California has not conducted any analysis that compares the costs and benefits of alternative options, such as using the same amount of funding on new diesel or CNG busses that would speed progress towards NAAQS attainment compared to EV purchase requirements and may yield more significant reductions in life-cycle greenhouse gas. Such an analysis is particularly relevant because electric buses routinely do not operate on long bus routes and travel fewer miles per bus compared to diesel and CNG busses. California also needs to evaluate the significant increase in PM 2.5 emissions associated with the higher tire wear from heavier electric buses.

EPA response to AFPM Comment #2: First, we disagree that the ICT regulation does not exceed federal standards. The ICT regulation establishes more stringent numerical emission requirements that are beyond those established under other state or federal regulations applicable to emissions from buses. 21 In other words, the requirements under the ICT regulation do not supplant or replace any existing emission control requirements applicable to buses.

Second, we evaluate emissions impacts associated with SIP revisions, such as the ICT regulation, under CAA section 110(l), which prohibits EPA approval of SIP revisions that would interfere with any applicable requirement concerning attainment or RFP or any other applicable requirement of the CAA. In this regard, we note that CARB conducted an environmental analysis of the proposed ICT regulation that evaluated the emissions changes under the proposed regulations relative to several alternative scenarios included the “Business-as-Usual” (BAU) scenario. The BAU scenario represents the projected emission reductions under the current level of compliance with the Fleet Rule for Transit Agencies. 22 Relative to the BAU scenario, CARB concluded that the tailpipe emissions of NO X and PM 2.5 would be lower under the proposed ICT regulation  23 as would well-to-wheel greenhouse gas (GHG) emissions. 24 CARB's environmental analysis acknowledges that the proposed ICT regulation would place additional demand on the existing electricity grid; however; the ICT regulation would be implemented in conjunction with other statewide regulatory programs aimed at improving the State's per capita energy consumption, decreasing reliance on fossil fuels, and increasing reliance of renewable energy sources. 25 In light of CARB's environmental analysis, we find sufficient evidence that the ICT regulation would result in net emissions reductions of NO X and PM 2.5 , and that, as such, approval of the ICT regulation as a SIP revision would not interfere with attainment or RFP of any NAAQS, or any other applicable requirement of the CAA. Moreover, as noted in the proposed rule, 26 the ICT regulation is an outgrowth of a committal measure for further deployment of zero-emission bus technologies in the public transit sector that was adopted by CARB in the 2016 State SIP Strategy, and for that reason also, we find that the ICT regulation is consistent with CAA section 110(l) and would not interfere with attainment, RFP or any other applicable requirement of the CAA.

Third, California is not obligated to conduct any analysis that compares the costs and benefits of alternative options, such as using the same amount of funding on new diesel or CNG busses. Such considerations are not relevant to the EPA's review of SIP submissions under CAA section 110. The EPA's role is to review and approve state choices if they meet applicable CAA requirements. See 42 U.S.C. 7410(k) and 40 CFR 52.02(a); see also Union Elec. Co. v. EPA, 427 U.S. 246, 256-266 (1976) (holding that the EPA may not disapprove a state implementation plan that meets the requirements of CAA section 110(a)(2) on the basis of technological or economic infeasibility). In this instance, perhaps the state could have chosen an alternative to the gradual transition to a zero-emissions fleet for public transit buses, but the approach the state ultimately selected through adoption of the ICT regulation meets all applicable CAA requirements, and that is a sufficient basis for the EPA to approve the ICT regulation as a SIP revision under CAA section 110.

Lastly, with respect to PM emissions from tire wear, we first note that tire wear is caused by contact between tires and the road surface, with the rate of tire wear dependent on a variety of factors, including the roughness of the road surface; activity factors such as route and style of driving, and seasonal influences; and vehicle characteristics, such as weight, suspension, steering geometry, and tire material and design. 27 Moreover, most of the PM emissions from tire wear are coarse particles, i.e., larger than particles considered PM 10 or PM 2.5 . The EPA estimates that approximately 8.0 percent and 1.2 percent of tire wear PM emissions are emitted as PM 10 and PM 2.5 , respectively. 28 While the various factors that influence tire wear are known, the current state of knowledge does not provide a basis to quantify the relationship between tire wear and vehicle weight within the various regulatory classes of vehicles. As such, the EPA's most recent version of the Agency's mobile source estimation model, MOVES3, 29 applies the same tire wear emission rate for all vehicle fuel types (gasoline, diesel, flex-fuel, CNG or electric) within a MOVES regulatory class. 30 Thus, while the hypothetical incremental increase in PM emissions from heavier buses (due to the weight of batteries) as suggested by AFPM cannot reasonably be quantified, there is no evidence (and AFPM provides no evidence) to suggest that the incremental increase would result in PM emissions in great enough quantities to offset the documented decrease in tailpipe PM 2.5 emissions. 31

AFPM Comment #3: California's new rule is a purchase mandate for which California has not sought a waiver from the EPA, as required prior to their inclusion in a SIP submittal to the EPA. In the above-referenced litigation, upon its remand to the 9th Circuit, the Supreme Court rejected California's argument that their rules did not need an EPA waiver and “escape[d] pre-emption under § 209(a) . . . because they address the purchase of vehicles, rather than their manufacture or sale.” The Court held that “standard-enforcement efforts that are proscribed by § 209 can be directed to manufacturers or purchasers.” Engine Mfrs. Assn. v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004). The Court remanded the case back to the 9th Circuit for further proceedings consistent with its opinion, which stated that it is “likely that at least certain aspects of the Fleet Rules are preempted.”

The reason that the California rules do not qualify as being excluded from the waiver requirements is that they are not a “state proprietary action.” Such an exception can only be applied to the efficient procurement of needed goods and services that also lack the effect of broader social regulation. On the contrary, California's rules mandate the inefficient procurement of goods for the purpose of implementing broader social regulation. The inefficiency of California's rule is clear because if California instead required the same amount of money to be invested in more cost-effective and proven bus technology, such as new diesel buses and new CNG buses, instead of electric buses and all of the associated costs to install and interconnect charging equipment, California would achieve greater emission reductions and achieve the NAAQS in a more expeditious timeframe than its so-called `Clean Transit' regulations in the proposed SIP. California must seek a waiver, and must receive approval from the EPA, prior to including its bus purchase mandates in a SIP submittal to the EPA.

EPA response to AFPM Comment #3: In this comment, AFPM refers to a Ninth Circuit decision, Engine Mfrs. Assn. v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031 (9th Cir. 2007) (referred to herein by its full name or as EMA ), issued in the wake of the Supreme Court's decision in Engine Mfrs. Assn. v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004). In EMA, the Ninth Circuit held that the market participant doctrine applied to preemption under CAA section 209(a) and that fleet rules governing procurement decisions by state and local governments fell within scope of market participant doctrine and thus were saved from CAA preemption. 32 The ICT regulation is not subject to preemption under CAA section 209(a), and CARB does not need a waiver under CAA section 209(b) for the ICT regulation to enforce the regulation. Further, nothing in CAA section 209(a) could be read as barring states from using their purchasing power for motor vehicles with more stringent standards than federal standards. Such a reading “would also run afoul of [CAA section 116's] express reservation to the states of primary authority over and responsibility for controlling air pollution.”  33 In any event, the ICT regulation is analogous to the fleet rules that were the subject of the EMA decision to the extent they apply to fleets of vehicles purchased by the government for government purposes, which in this case is public transit services.

APFM counters that the ICT regulation does not qualify as an exception to CAA section 209(a) preemption under the market participant doctrine because the “exception can only be applied to the efficient procurement of needed goods and services that also lack the effect of broader social regulation,” and “California's rules mandate the inefficient procurement of goods for the purpose of implementing broader social regulation.” However, APFM's formulation of the exception under the market participant doctrine conflates the two different circumstances cited by the Ninth Circuit in EMA under which state action qualifies as “proprietary,” and thus saved from preemption, as opposed to “regulatory,” and thus subject to preemption. 34 In the first circumstance, state action is considered proprietary where the action essentially reflects the governmental entity's own interest in its efficient procurement of needed goods and services, as measured by comparison with the typical behavior of private parties in similar circumstances. 35 Under these circumstances, the market participant doctrine protects comprehensive state policies from preemption so long as the type of state action is essentially proprietary. 36 Under the second circumstance, state action is considered proprietary where the state action may not reflect the efficient procurement of needed good and services but is so limited in scope as to lack to effect of broader social regulation. 37

In this instance, we find that the state action through the ICT regulation is proprietary in that it reflects the State of California's own interest in the efficient procurement of needed goods and services. Engine Mfrs. Assn v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1046 (9th Cir. 2007) (“That a state or local governmental entity may have policy goals that it seeks to further through its participation in the market does not preclude the doctrine's application, so long as the action in question is the state's own market participation.”) Like the fleet rules that were the subject of EMA, one purpose of the ICT regulation is to reduce air pollution, and “efficient procurement” must be viewed with an eye toward “procurement that serves the state's purposes—which may include purposes other than saving money—just as private entities serve their purposes by taking into account factors other than price in their procurement decisions.”  38 In the case of the ICT regulation, the purposes include more than just reducing air pollution, and include reducing energy consumption and leading zero-emissions technology in the heavy-duty vehicle sector. 39 Engine Mfrs. Assn v. S. Coast Air Quality Mgmt. Dist., 498 F.3d 1031, 1046 (9th Cir. 2007) (“ `Efficient' does not merely mean `cheap.' In context, `efficient procurement' means procurement that serves the state's purposes—which may include purposes other than saving money—just as private entities serve their purposes by taking into account factors other than price in their procurement decisions.”) In light of these state purposes, the ICT regulation's requirement for purchase of zero-emission buses, rather than diesel buses or CNG buses, can properly be characterized as “efficient procurement” of needed goods and services and thus is not preempted under CAA section 209(a) under the market participant doctrine.

Individual Member of the Public Comment #1: While generally supportive, the commenter remains concerned about whether the reduction in emissions from buses will increase costs to run the buses.

EPA response to Individual Member of the Public Comment #1: In developing the ICT regulation, CARB too was concerned about the potential for increased costs to transit agencies affecting transit service, and thus, included in the regulation a number of provisions intended to provide the transit agencies with flexibility in meeting the requirements of the regulation and reduce the potential for impacts to transit service. Among the built-in flexibilities are a phase-in schedule and exemptions that would be granted by CARB under certain specific circumstances. The exemptions are broadly available, and the criteria for granting them are clearly set forth in the regulatory text.

Under section 110(k)(3) of the CAA, and for the reasons given above, we are taking final action to approve a SIP revision submitted by CARB on February 3, 2020 that includes certain sections of title 13 of the California Code of Regulations that comprise the Innovative Clean Transit regulation and that was supplemented by CARB on August 11, 2022 with certain definitions relied upon by the regulation. Tables 1 and 2 above list the regulations and related supplemental definitions we are approving in this action. We are approving the SIP revision because the regulation fulfills all relevant CAA requirements. This final action incorporates by reference the regulation and related supplemental definitions into the federally enforceable SIP for the State of California.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of one section of the California Health and Safety Code and certain sections of titles 13 and 17 of the California Code of Regulations described in the amendments to 40 CFR part 52 set forth below which pertain to the transition of California public transit bus fleets to zero-emission technologies by 2040. Therefore, these materials have been approved by the EPA for inclusion in the State implementation plan, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation. 40 The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and/or at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

Executive Order 12898 (59 FR 7629 (February 16, 1994)) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health effects of their programs, policies, and activities on minority populations and low-income populations in the United States. The EPA notes that, in adopting the ICT regulation, the state found that it furthers state environmental justice goals by transitioning to clean transportation modes in low-income and disadvantaged communities and does not disproportionately impact people of any race, culture, or income. 41 We agree that, by transitioning to clean transportation modes in low-income and disadvantaged communities, the ICT regulation will serve to reduce adverse human health effects in all communities and thereby help to achieve environmental justice.

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 17, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. ( See section 307(b)(2)).

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

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

Under § 635.28(a)(1), NMFS files a closure action with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. Retaining, possessing, or landing BFT under that quota category is prohibited on or after the effective date and time of a closure notice for that category until the opening of the relevant subsequent quota period or until such date as specified.

The current baseline quota for the General category is 710.7 metric tons (mt). The General category baseline quota is suballocated to different time periods. Relevant to this action, the baseline subquota for the January through March time period is 37.7 mt. As a result of a prior adjustment, the adjusted subquota for the January through March time period is 58.2 mt (88 FR 786, January 5, 2023).

To date, reported landings for the General category January through March subquota time period total approximately 60.6 mt. Based on these landings, NMFS has determined that the adjusted 2023 subquota of 58.2 mt has been reached and exceeded. Therefore, retaining, possessing, or landing large medium or giant ( i.e., measuring 73 inches (185 cm) curved fork length or greater) BFT by persons aboard vessels permitted in the Atlantic Tunas General category and HMS Charter/Headboat permitted vessels (while fishing commercially) must cease at 11:30 p.m. local time on February 14, 2023. This action applies to Atlantic Tunas General category (commercial) permitted vessels and HMS Charter/Headboat permitted vessels with a commercial sale endorsement when fishing commercially for BFT and is taken consistent with the regulations at § 635.28(a)(1). The General category will automatically reopen June 1, 2023, for the June through August 2023 subquota time period.

Fishermen aboard General category permitted vessels and HMS Charter/Headboat permitted vessels may catch-and-release and tag-and-release BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at https://www.fisheries.noaa.gov/resource/outreach-and-education/careful-catch-and-release-brochure/.

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

After the fishery reopens on June 1, depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the Federal Register . In addition, fishermen may call the Atlantic Tunas Information Line at 978-281-9260, or access www.hmspermits.noaa.gov, for updates on quota monitoring and inseason adjustments.

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

The Assistant Administrator for NMFS (AA) finds that pursuant to 5 U.S.C. 553(b)(B), it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons. Specifically, the regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. Providing for prior notice and an opportunity to comment is impracticable and contrary to the public interest. This fishery is currently underway and, based on landings information, delaying this action could result in BFT landings further exceeding the adjusted January through March 2023 General category subquota. Taking this action does not raise conservation and management concerns. NMFS notes that the public had an opportunity to comment on the underlying rulemakings that established the U.S. BFT quota and the inseason adjustment criteria.

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