This document announces that, on February 27, 2023, OMB approved, for a period of three years, the information collection requirements contained in the Commission's Report and Order, FCC 22-51, published at 87 FR 57645, September 21, 2022. The OMB Control Number is 3060-1053. The Commission publishes this notice as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Cathy Williams, Federal Communications Commission, via email: Cathy.Willilams@fcc.gov. Please include the OMB Control Number, 3060-1053, in your correspondence. The Commission will also accept your comments via the internet if you send them to PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received OMB approval on February 27, 2023, for the information collection requirements contained in the Commission's rules at §§ 64.611 and 64.615.

Under 5 CFR 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-1053.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1053.

OMB Approval Date: February 27, 2023.

OMB Expiration Date: February 28, 2026.

Title: Misuse of internet Protocol Captioned Telephone Service (IP CTS); Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123.

Form Number: N/A.

Respondents: Business or other for-profit.

Number of Respondents and Responses: 186,012 respondents; 672,819 responses.

Estimated Time per Response: 0.1 hours (6 minutes) to 40 hours.

Frequency of Response: Annual, every five years, monthly, and ongoing reporting requirements; Recordkeeping requirements; Third party disclosure requirements.

Obligation to Respond: Required to obtain or retain benefits. The statutory authority for the information collection requirements is found at Sec. 225 [47 U.S.C. 225] Telecommunications Services for Hearing-Impaired Individuals; The Americans with Disabilities Act of 1990, (ADA), Public Law 101-336, 104 Stat. 327, 366-69, enacted on July 26, 1990.

Total Annual Burden: 339,781 hours.

Total Annual Cost: $72,000.

Needs and Uses: On August 1, 2003, the Commission released Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67, Declaratory Ruling, 68 FR 55898, September 28, 2003, clarifying that one-line captioned telephone voice carry over (VCO) service is a type of telecommunications relay service (TRS) and that eligible providers of such services are eligible to recover their costs from the Interstate TRS Fund (Fund) in accordance with section 225 of the Communications Act.

On July 19, 2005, the Commission released Telecommunication Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CC Docket No. 98-67 and CG Docket No. 03-123, Order, 70 FR 54294, September 14, 2005, clarifying that two-line captioned telephone VCO service, like one-line captioned telephone VCO service, is a type of TRS eligible for compensation from the Fund.

On January 11, 2007, the Commission released Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket No. 03-123, Declaratory Ruling, 72 FR 6960, February 14, 2007, granting a request for clarification that internet Protocol (IP) captioned telephone relay service (IP CTS) is a type of TRS eligible for compensation from the Fund.

On August 26, 2013, the Commission issued Misuse of internet Protocol Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, Report and Order, 78 FR 53684, August 30, 2013, to regulate practices relating to the marketing of IP CTS, impose certain requirements for the provision of this service, and mandate registration and certification of IP CTS users.

On June 8, 2018, the Commission issued Misuse of internet Protocol Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, Report and Order and Declaratory Ruling, 83 FR 30082, June 27, 2018 ( 2018 IP CTS Modernization Order ), to facilitate the Commission's efforts to reduce waste, fraud, and abuse and improve its ability to efficiently manage the IP CTS program through regulating practices related to the marketing of IP CTS, generally prohibiting the provision of IP CTS to consumers who do not genuinely need the service, permitting the provision of IP CTS in emergency shelters, and approving the use of automatic speech recognition to generate captions without the assistance of a communications assistant.

On February 15, 2019, the Commission issued Misuse of internet Protocol Captioned Telephone Service; Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities, CG Docket Nos. 13-24 and 03-123, Report and Order, and Order, 84 FR 8457, March 8, 2019 ( 2019 IP CTS Program Management Order ), requiring the submission of IP CTS user registration information to the telecommunications relay service (TRS) User Registration Database (Database) so that the Database administrator can verify IP CTS users to reduce the risk of waste, fraud, and abuse in the IP CTS program.

On June 30, 2022, the Commission issued Telecommunications Relay Services and Speech-to-Speech Services for Individuals with Hearing and Speech Disabilities; Structure and Practices of the Video Relay Service Program; Misuse of internet Protocol Captioned Telephone Service, CG Docket Nos. 03-123, 10-51, and 13-24, Report and Order, published at 87 FR 57645, September 21, 2022 ( Registration Grace Period Order ), allowing IP CTS and Video Relay Service (VRS) providers to provide compensable service to a new user for up to two weeks after submitting the user's information to the Database if the user's identity is verified within that period, in order to offer more efficient service to IP CTS and VRS users without risk of waste, fraud, and abuse to the Fund.

The programmatic changes in information collection burdens that apply to VRS due to the Registration and Grace Period Order will be addressed separately in modifications to information collection No. 3060-1089.

I. Background

The Federal Housing Administration (FHA) was established by Congress in 1934 to improve nationwide housing standards, to provide employment and stimulate industry, to improve conditions with respect to home mortgage financing, to prevent speculative excesses in new mortgage investment, and to eliminate the necessity for costly second mortgage financing. 1 HUD's regulations for Title II FHA single family forward mortgage insurance are codified in 24 CFR part 203. These regulations address mortgagee eligibility requirements and underwriting procedures, contract rights and obligations, and the mortgagee's servicing obligations. These regulations also address a mortgagee's obligations to offer loss mitigation options when a mortgagor defaults on a loan, as provided in 24 CFR 203.501.

Over time, HUD has expanded and revised the regulations regarding the loss mitigation options that mortgagees are required to consider utilizing including special forbearance, recasting of mortgages, partial claims, pre-foreclosure sales, deeds in lieu of foreclosure, and assumptions as ways to mitigate losses to the Mutual Mortgage Insurance Fund. 2 In 1996, the Balanced Budget Downpayment Act, I (Pub. L. 104-99, approved January 26, 1996) amended sections 204 and 230 of the National Housing Act to provide that HUD may pay insurance benefits to a mortgagee to recompense the mortgagee for its actions to provide an alternative to the foreclosure of a mortgage that is in default. These actions may include special forbearance, loan modification, and/or deeds in lieu of foreclosure, all upon terms and conditions as the mortgagee shall determine in the mortgagee's sole discretion, within guidelines provided by HUD. 3 In response, HUD promulgated an interim final rule (61 FR 35014, July 3, 1996), followed by a final rule (62 FR 60124, November 6, 1997) adding loss mitigation options to 24 CFR part 203. One of these options allows mortgagees to modify a mortgage for the purpose of changing the amortization provisions and recasting the total unpaid amount due for a term not exceeding 360 months from the date of the modification. 4

On April 1, 2022, HUD published for public comment a proposed rule to amend 24 CFR 203.616, which allows a mortgagee to modify a mortgage for the purpose of changing the amortization provisions by recasting the total unpaid amount due for a new term, by replacing the maximum of 360 months with a new maximum of 480 months. 5 The proposed rule sought to allow mortgagees to provide a 40-year loan modification to support HUD's mission of fostering homeownership by assisting more borrowers with retaining their homes after a default episode while mitigating losses to FHA's Mutual Mortgage Insurance (MMI) Fund.

The proposed rule recognized that a lower monthly payment is key to bringing the mortgage current, preventing imminent re-default, and ultimately retaining their home and continuing to build wealth through homeownership. The proposed rule also recognized that this option would be particularly beneficial to borrowers impacted by the COVID-19 pandemic, including those who may re-default in the future after having received a loss mitigation option under COVID-19 policies. Finally, the proposed rule recognized that, while the 40-year mortgage remains rare, it has become more commonly recognized in the mortgage industry, including by the Government Sponsored Enterprises (GSEs), Fannie Mae and Freddie Mac.

In response to public comments as discussed further below, and in further consideration of issues addressed at the proposed rule stage, HUD is publishing this final rule without change from the proposed rule.

HUD recognizes that, since the proposed rule was published, interest rates have increased. An increase in interest rates may decrease the effectiveness of a modification in providing significant payment reduction, because the modified loan may be at a higher interest rate than the original loan. While rising interest rates may keep the 40-year loan modification from providing significant payment reduction, HUD believes that rising interest rates make the 40-year loan modification more critical in circumstances where the 30-year loan modification does not sufficiently decrease the monthly payment to an amount that the borrower could afford to retain their home. As a result, HUD believes that this rule will provide a critical home retention tool for borrowers as interest rates change over the long term.

HUD received twenty comments in response to the proposed rule. The public comments are discussed in three categories: support for the proposed rule, opposition to the proposed rule, and suggested revisions and additions to the proposed rule.

Commenters stated that a 40-year loan modification option would be a valuable tool, providing significant relief for struggling borrowers. Commenters said that extended maximum loan terms allow lenders to further reduce monthly mortgage payments, assisting borrowers in retaining their homes and avoiding foreclosure. A commenter said borrowers who re-default after utilizing other loss mitigation methods (such as a partial claim) have few options for retaining their homes. Commenters said that the current 30-year term maximum loan modifications are sometimes insufficient to provide affordable monthly payments for defaulting borrowers. A commenter said that 40-year loan terms could reduce borrowers' need to file partial claims, reducing the likelihood that borrowers will have an additional lien on their property. This commenter also said that in some cases, extending the terms of loan modifications may be the only option to prevent borrowers in default from losing their homes.

Commenters said that current adverse market conditions increase the importance of creating additional tools to help struggling borrowers. Commenters said that many borrowers are currently in some form of delinquency. A commenter said there has been a recent increase in the number of foreclosures on FHA loans caused by the end of the foreclosure moratorium. Commenters noted that the current rising interest rate environment makes it more difficult for FHA lenders to meet target payment levels with 30-year loan modifications because the refinanced mortgage would be subject to a higher interest rate and therefore higher monthly payments. A commenter said that this is particularly true for borrowers who recently originated or refinanced their loans at recent historically low interest rates.

HUD Response: HUD appreciates the support for this effort and agrees with these commenters. These commenters identified many of the reasons HUD is moving forward with this rule.

Commenters said that 40-year loan modifications could help borrowers build wealth through homeownership by keeping borrowers in their homes. Commenters said that homeownership is a long-term means of building wealth. A commenter said that borrowers' credit is greatly harmed by foreclosure, often preventing foreclosed borrowers from regaining homeownership in the future.

HUD Response: HUD agrees with these commenters. The longer term of the modified loan will lead to lower monthly mortgage payments than a 30-year term modification, which will allow more borrowers to retain their homes and all the benefits that accompany homeownership, including long-term wealth building. Although a shorter term loan allows for quicker wealth accumulation, the use of a 40-year loan modification may be the single option allowing the borrower to retain their home. Thus, the 40-year loan modification will allow these borrowers to retain the wealth they have already accrued and allow them to continue to build wealth, albeit at a slower pace, by retaining their home—instead of losing their home.

Commenters said that 40-year loan modifications could help homeowners negatively affected by the COVID-19 pandemic. Commenters said that the COVID-19 pandemic caused many homeowners to struggle with their mortgage payments, particularly those who experienced pandemic-related job loss or disruption. A commenter also said that 40-year loan modifications could benefit borrowers who re-default after completing a COVID-19 Loss Mitigation Recovery Option. Another commenter said that the proposed rule would ameliorate negative impacts on struggling homeowners in the post-pandemic environment.

HUD Response: HUD agrees with these commenters. The unprecedented nature of the COVID-19 pandemic caused many borrowers to utilize a loss mitigation option to bring their mortgage current after becoming delinquent or utilizing a forbearance. As a result, many borrowers have used much of their Partial Claim allotment or have received a loan modification at historically low interest rates. If a borrower impacted by COVID-19 who brought their mortgage current experiences a future default episode, they will likely have fewer loss mitigation options available. Therefore, a 40-year loan modification will be critical in helping those borrowers achieve an affordable monthly mortgage payment in the event of a future default episode or natural disaster.

A commenter said that 40-year loan modifications would promote financial inclusion. Commenters said that 40-year loan modifications would be particularly helpful for individuals with low and moderate incomes, especially those living in regions with high home prices. Commenters said that first-time homebuyers could benefit from 40-year loan modifications, especially given the lack of entry level housing and rising home sale prices. Commenters said that mortgagors who had lost their jobs were more likely to need reductions in their monthly payments. A commenter said that homeowners facing long-term hardships would also benefit. Another commenter said the proposed rule would help ordinary families and their communities. Another commenter described the proposed rule as a win for everyone.

A commenter said that the proposed rule supports equity. This commenter said that the proposed rule would positively impact American Indians and Alaska Natives, who had higher levels of job loss during the pandemic than other racial groups and who tend to be less financially literate and experience higher foreclosure rates. Another commenter said that 40-year loan modifications would benefit Black and Hispanic borrowers who are more likely than White borrowers to be in forbearance, need loss mitigation, or be delinquent on their loans.

A commenter said that the simplicity of a 40-year loan recast is beneficial to borrowers who have lower financial literacy and who may have less ability to evaluate risk and choose among financial courses of action. This commenter said that negotiating with a bank's servicing agent can be confusing or adversarial for borrowers. This commenter also said that American Indians, Alaska Natives, and individuals who are Black are more likely to benefit from simplified loss mitigation policies because they may have lower financial literacy than other racial groups.

HUD Response: HUD agrees that this rule, for all the reasons identified by these commenters, will promote financial inclusion and equity through sustained homeownership. It will provide a useful home retention tool for borrowers including low-to-moderate income borrowers, first-time homeowners, borrowers of color, and borrowers from underserved neighborhoods and communities, particularly in a rising interest rate environment.

According to internal data from HUD's Single Family Data Warehouse, as of September 30, 2022, borrowers who identify as Black are in default at much higher rates than other borrowers. Borrowers who identify as Black make up 15.86 percent of FHA's total portfolio, but 22.46 percent of mortgages in default. The race and ethnicity of all other borrowers in default, including Native Americans and Hispanics, are roughly proportional to the racial and ethnic breakdown of the total FHA portfolio. Therefore, the 40-year loan modification that will help borrowers retain their homes by extending the term of their mortgage to help reduce monthly mortgage payments will especially help Black borrowers who are presently in default at disproportionate rates.

The Regulatory Impact Analysis (RIA) that accompanied the proposed rule reviewed the impacts of the rule on equity and found: “The loan modification policy is intended to promote equity by preserving the housing wealth of lower income households.” The RIA reviewed studies over whether there have been differences in loss mitigation by race or ethnicity and noted that the findings vary. Ultimately, the RIA concluded: “Evidence supports that the 40-year term would be implemented fairly to advance the economic interests of all protected classes.”

Commenters said that the foreclosure mitigation effects of 40-year loan modifications would support the stability of the housing market, allowing the housing market to thrive and benefiting the economy as a whole. A commenter said that foreclosures harm the home values of adjacent properties, increasing the likelihood of additional future foreclosures in the area. This commenter said these vicious cycles of home price deterioration can be pervasive in low-income neighborhoods.

HUD Response: HUD agrees that introducing the 40-year loan modification will help reduce foreclosures and thereby reduce the secondary effects of foreclosure, such as neighborhood blight. Given the rising interest rate environment, the longer term of a loan modification will be particularly critical in helping borrowers retain their homes after a default episode. By helping reduce foreclosures, this rule will help stabilize the housing market especially during a period of potential economic instability. The RIA cited various studies looking at the impact of foreclosures on the immediate housing market, which found that property sales located within 300 feet of a foreclosed property experience about a 1 percent discount per foreclosure and that the absolute impact of neighboring foreclosures is greater for lower-priced properties. When implemented as part of HUD's Single Family loss mitigation program, this loss mitigation tool will help more borrowers retain their homes and continue to build their communities.

Commenters said the proposed rule would align loss mitigation policies between different regulators. Commenters said that the Federal National Mortgage Association (Fannie Mae), the Federal Home Loan Mortgage Corporation (Freddie Mac), the Government National Mortgage Association (Ginnie Mae), the National Credit Union Association, the U.S. Department of Agriculture, the Government-Sponsored Enterprise (GSEs), the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency already support various 40-year loan modification programs. A commenter said that the effective use of 40-year loan term modifications by Fannie Mae and Freddie Mac demonstrate the merit of the proposed rule change.

Commenters said aligning loss mitigation policies between different regulators is good public policy. A commenter said that aligning loss mitigation policies is a long-standing industry priority. Another commenter said that aligning loss mitigation policies creates operational ease for mortgage servicers. Commenters said that allowing 40-year loan modifications would create parity among lenders by providing borrowers who have FHA-insured mortgages with the same options available to borrowers whose mortgages are backed by other financial institutions. A commenter said that parity among all lenders is necessary for the housing finance system.

Commenters said that standardizing loss mitigation policies would make federal regulations more consistent, more predictable, and easier to understand. A commenter said that consistent program terms help loan servicers communicate and educate consumers on the available loss mitigation options.

HUD Response: HUD agrees with these comments. Once implemented, this rule will provide borrowers with the ability to extend the term of their modified mortgage to 480 months, similar to what is offered by other federal agencies and the GSEs. This will also ensure that borrowers are not disadvantaged compared to non-FHA-insured mortgages.

Commenters said that 40-year loan modifications could help mitigate losses to FHA's Mutual Mortgage Insurance (MMI) Fund. A commenter noted that the MMI Fund reimburses FHA lenders' foreclosure losses, transferring losses from FHA lenders to the MMI Fund. Another commenter said mitigating losses to the MMI Fund would increase liquidity for FHA lenders.

Commenters said that allowing 40-year term loan modifications for FHA-insured loans would incentivize more credit unions to become FHA lenders. A commenter said that the significant amount of staff expertise and specialization necessary to become an FHA lender is a barrier to credit unions providing FHA-insured loans. This commenter also said that the proposed rule's alignment of FHA requirements with other federal regulators' policies would significantly ease the burden of achieving FHA eligibility and increase the participation of community-based financial institutions in FHA programs. Another commenter said that federal credit unions could offer 40-year loan modifications if the proposed rule is adopted because the National Credit Union Administration already authorizes federal credit unions to make FHA-insured mortgages with terms of up to 40 years. This commenter also said that state laws in Massachusetts, New Hampshire, and Delaware would allow state-chartered credit unions to modify FHA-insured mortgages to 40-year terms. Commenters said that having the option to provide 40-year loan modifications for FHA-insured loans would allow credit unions to better serve their members.

HUD Response: HUD agrees that the 40-year loan modification would reduce risk of losses to the MMI Fund, thereby strengthening HUD's ability to provide access to homeownership to low-to-moderate income borrowers and first-time homeowners in accordance with HUD's overall mission.

HUD values the work of credit unions and their service to underserved borrowers. HUD is pleased that credit unions will be able to provide 40-year loan modifications in line with HUD's requirements as a loss mitigation option for borrowers.

Commenters said that the proposed 40-year term modifications are commendable because they further HUD's mission of creating strong, sustainable, inclusive communities and quality affordable homes for all. A commenter said the proposed rule demonstrates that HUD is proactively providing borrowers with additional support and helping them keep their homes. Commenters also said that the lower-income, struggling mortgagors who would most likely benefit from the proposed rule are the types of borrowers the FHA was created to assist.

HUD Response: HUD appreciates the support from commenters and continually reviews and evaluates options to assist borrowers while safeguarding the MMI Fund.

Commenters said that the benefits of the proposed rule outweighed the potential that 40-year loan terms would slow the equity building process, increase borrowing costs, and increase the chances that a homebuyer will go “underwater” when home values decline. A commenter said that it is more important for defaulting borrowers to retain their homes than to build equity quickly, especially if there is no other option to prevent foreclosure. Another commenter said that as long as the equity requirement is sufficient, there is no reason not to allow a longer payback. A commenter said that the length of a 40-year loan was less of a concern for young homebuyers, who could still pay the loan in full by the time they retire. Another commenter said that, while 40-year loans have downsides, they could allow struggling borrowers a chance to pursue their dreams of homeownership.

HUD Response: HUD agrees with these commenters. There are potential downsides to all loss mitigation options, which have to be weighed against the benefits. For borrowers who would be eligible for a 40-year loan modification, this option is intended to be the last tool utilized to help borrowers retain their home.

A commenter said that home prices are governed by the monthly payments made by mortgagors and that adding ten years of additional payments for the same homes would cause prices to rise over time. Another commenter said that the free market should regulate the housing market and that the private sector would not provide the type of loans HUD proposes because the higher interest rates would offset any savings. A commenter said federal policies have already created too much debt, endangering the banking system and society. Another commenter said the proposed rule would only be keeping a housing bubble propped up to boost tax revenue.

Commenters said that blocking foreclosures reduces the supply of available houses and causes the remaining housing supply to be overvalued. Commenters said that the proposed rule would only provide temporary relief to borrowers in exchange for reducing the supply of affordable housing. A commenter said the rule would be saving the less prudent at the expense of the responsible. This commenter said that an 18-month forbearance was more than enough time for people to get back on their feet and save.

HUD Response: HUD appreciates this feedback and recognizes the complexity of this issue. The Department of Veterans Affairs (VA) and the GSEs already offer a 40-year loan modification; therefore, by taking this step, FHA is aligning with VA and the GSEs to provide FHA-borrowers with a similar option. The high cost of housing across the country is the result of multiple inter-related causes and 40-year loan modifications offered by VA and the GSEs have not been shown to cause higher housing prices. Moreover, rising interest rates may result in the need for loan modification with a longer term to help borrowers keep their homes. The 40-year loan modification, once implemented, will further help stabilize neighborhoods and avoid neighborhood blight.

Regarding the comment that an 18-month forbearance was more than enough time for people to get back on their feet and save; although this was true for some borrowers, many other borrowers did seek loss mitigation assistance after their forbearance to help bring their mortgage current and to provide a more affordable monthly payment. HUD does not anticipate that all borrowers in default would be given a 40-year loan modification. For borrowers who can afford to bring their mortgage current and make their monthly mortgage payments through a different loss mitigation option, such as with a 30-year loan modification, a 40-year loan modification would not be required.

Commenters said struggling borrowers would be better off losing their homes and stabilizing their finances through other means. A commenter said that defaulting borrowers would likely not end up making their payments, even with the extended loan terms. Commenters suggested that borrowers use bankruptcy to write off debts and start over with a clean slate. A commenter said that, even if borrowers make their payments, a 40-year term is so long that borrowers would become permanently indebted.

HUD Response: HUD appreciates this feedback. However, based on HUD's analysis of mortgage performance after loss mitigation and the rising interest rate environment, the 40-year modification will assist many borrowers in retaining their home through a more affordable monthly mortgage payment. FHA's existing standard loss mitigation options rely on a review of the borrower's income to determine affordability. When the 40-year loan modification is incorporated into FHA's standard loss mitigation policy, HUD will adjust the requirements for this review to ensure that mortgagees' use of this tool is targeted for where it will be most effective to respond to each borrower's specific circumstances and to help borrowers avoid foreclosure.

HUD believes that, generally, borrowers who could avoid foreclosure through loss mitigation would benefit much more from loss mitigation than from declaring bankruptcy, which is a drastic measure with long-lasting consequences. However, HUD notes that loss mitigation is optional, and a borrower may choose to decline loss mitigation assistance.

Additionally, borrowers would not be permanently locked into a 40-year term. The average life of an FHA-insured mortgage is approximately seven years. After time, borrowers generally either refinance or sell their home. HUD anticipates that, in most cases, borrowers who take advantage of the 40-year modification will not retain the mortgage for the full 40-year term.

Commenters suggested that HUD approve an option for the FHA to insure 40-year term mortgages from origination. Commenters said that 40-year terms at origination could provide homebuyers with more affordable monthly payments and more flexibility to find a mortgage that fits their needs. A commenter said that many credit unions have demonstrated that 40-year loan terms can enable borrowers to enter loans with more affordable monthly payments. Commenters suggested that allowing 40-year terms from loan origination would particularly benefit young and lower-income homebuyers by providing access to longer amortization. A commenter also said that offering 40-year terms at loan origination could help close the racial homeownership gap.

A commenter said that allowing 40-year loan terms at origination would not affect the stability of the housing finance system. This commenter said that loans are less risky for lenders when borrowers have affordable mortgage payments. This commenter also said that borrowers who enter 40-year loans could later refinance for shorter terms to reduce the total amount of interest paid and build equity faster.

HUD Response: HUD appreciates these comments; however, HUD does not have statutory authority to provide 40-year mortgages at origination and is therefore not considering that option as part of this rulemaking.

A commenter suggested that the existing loss mitigation structure should not be eliminated and that 40-year loan modifications should not replace 30-year modifications as the standard. This commenter said that many borrowers can afford payments with a 30-year loan modification and that these borrowers would build home equity more quickly and pay less interest with a shorter loan term. Commenters suggested that FHA lenders calculate loan terms flexibly to address each borrower's unique circumstances. A commenter suggested that FHA lenders should evaluate the array of possible modification terms to balance additional interest costs and slower equity building with the need for immediate payment relief. Another commenter suggested that HUD and the FHA should narrowly tailor their guidance around 40-year loan modifications to ensure that FHA lenders incrementally extend loan terms beyond 360 months only as necessary to achieve affordability and home retention for borrowers.

HUD Response: HUD appreciates the feedback and agrees that the 40-year loan modification should not replace the 30-year loan modification, but that both should be used by mortgagees where they would best assist the borrower in retaining their home and reducing risks to FHA'S MMI Fund. Where HUD added a 40-year loan modification with partial claim into the COVID-19 Recovery Modification, the 40-year modification is only utilized when the 30-year modification cannot achieve the target payment. Similarly, HUD will evaluate the most appropriate use for the 40-year modification as it drafts its guidance for utilization of 40-year modifications as part of FHA's standard loss mitigation tools. HUD will also take these comments into consideration as it drafts that guidance.

A commenter supported the proposed rule but said that high interest rates reduce the effectiveness of extended loan terms to lower monthly payments. This commenter noted that the current COVID-19 waterfall target is a 25 percent principal and interest (P&I) reduction and said that a loan with a 4.50 percent note rate and twenty-six years remaining would fail to reach a 25 percent P&I reduction with a 40-year modification that uses the maximum amount of principal deferral. The commenter further said that if interest rates continue to rise, the ability of loan providers to achieve payment reduction goals through 40-year term loan modification will decrease.

This commenter said that current adverse market conditions such as increasing interest rates and continued COVID-related hardship require further steps to provide payment relief to struggling homeowners. This commenter suggested that HUD should allow borrowers to access their statutory maximum partial claims to achieve affordable payments. This commenter noted that, currently, HUD does not allow borrowers to use their full partial claim to address COVID-19 hardship. The commenter suggested that the additional partial claim capacity could be used to defer principal and generate an additional 4 to 6 percentage points of payment reduction. The commenter also suggested that HUD should combine extended term modifications with a partial claim to help achieve affordable monthly payments for borrowers who have a remaining partial claim amount.

Commenters also suggested that HUD should not increase and should consider reducing or waiving annual mortgage insurance premiums (MIP) for all loss mitigation programs. A commenter suggested that MIP reductions could help provide affordable monthly payments for borrowers if high interest rates prevented a 40-year term loan modification from achieving payment reduction goals.

This commenter suggested that reducing the MIP for some borrowers would not harm the MMI Fund. The commenter noted that reducing MIP will cut revenue for the MMI Fund, but suggested that the further reductions in monthly payments could prevent additional foreclosures, offsetting the lost MIP revenue. This commenter also said that MIP reductions could be targeted only to borrowers at the highest risk of foreclosure. The commenter suggested that HUD work with industry stakeholders to develop an efficient and feasible process for servicers to reduce the MIP.

This commenter also suggested that HUD should set the maximum interest rate for new 40-year modification terms at 25 basis points above Freddie Mac's Primary Mortgage Market Survey (PMMS) and not the current 50 basis points. The commenter said that adding 50 basis points onto an already high PMMS rate would limit the payment relief HUD can offer. The commenter said that a reduction of 25 basis points properly balances the marketplace's needs with the needs of borrowers. This commenter estimated that such a reduction would provide an additional 2 to 3 percentage points of payment relief.

HUD Response: HUD appreciates this feedback. HUD agrees that high interest rates will reduce the ability of the extended loan term to provide such significant payment relief. However, the 40-year modification will still be effective in the higher interest rate environment in helping borrowers achieve greater payment reduction than they would achieve from a 30-year modification. This difference may help borrowers retain their homes, who might not be able to do so with a 30-year modification.

HUD continues to review all possible options and changes to policies and procedures for mortgagees to assist borrowers in retaining their homes and to be a responsible steward of the MMI Fund. This rule does not preclude HUD from making additional changes or providing additional options for mortgagees to use with struggling borrowers. This rule enables HUD to exercise its statutory authority to allow for the 40-year loan modification to be used in the future as one of FHA's loss mitigation tools or in combination with others. Further guidance about how this will be implemented inside of HUD's loss mitigation program will be published in HUD policy.

A commenter suggested that 40-year terms should be available for the Home Affordable Modification Program (FHA-HAMP) and Presidentially Declared Major Disaster Areas (PDMDA) modification programs (either with or without a partial claim) to achieve target payments. This commenter recommended that FHA introduce a term of up to 40 years into standard FHA-HAMP and PDMDA waterfalls outlined in the FHA Single Family Housing Policy Handbook (Handbook 4000.1), Section III, Servicing and Loss Mitigation, in a future policy update.

HUD Response: This rule enables HUD to exercise its statutory authority to allow for the 40-year loan modification to be used as one of FHA's loss mitigation tools or in combination with others. This rule allows HUD to use this authority in FHA-HAMP and in modifications for borrowers impacted by disasters. Further guidance about how this will be implemented within HUD's loss mitigation program will be published in HUD policy, and HUD will take these comments into consideration in this context. This rule does not preclude HUD from making additional changes or making additional options available for mortgagees to use with struggling borrowers.

A commenter supported the proposed rule but said there might not be sufficient liquidity to support 40-year loan modifications. This commenter said that the ability to deliver a modification with an extended term into a Ginnie Mae pool is a necessary condition for servicer participation in a 40-year modification program. This commenter also said that, although Ginnie Mae introduced a designated security for extended term modifications in October 2021, there is limited data and loan volume to demonstrate a deep and liquid securitization market for these pools. This commenter suggested that the FHA and Ginnie Mae should ensure secondary market certainty, including multi-issuer pools for extended term modification, before finalizing the proposed rule change.

HUD Response: Although Ginnie Mae previously did not have a secondary market for longer term modifications, Ginnie Mae's pool for modified mortgages that are over 360 months, up to and including 480 months, was established in October 2021 and is currently available for future loan modifications. FHA waited for the creation of an appropriate Ginnie Mae pool before proposing establishing 40-year modifications to ensure that these modified mortgages will continue to benefit from Ginnie Mae securitization. Ginnie Mae is closely monitoring the pool and its sustainability. FHA and Ginnie Mae work closely together to ensure the viability of their programs.

A commenter suggested two additions for Table 6, Summary of Economic Impacts posted in the Regulatory Impact Analysis (“RIA”) prepared for the proposed rule. This commenter suggested adding “No tax liability on mortgage debt canceled as part of a loan modification” as a benefit to borrowers. This commenter said the lack of tax liability resulted from the most recent extension of The Mortgage Debt Relief Act of 2007 through December 31, 2025. This commenter said that this addition would help ensure that Native Americans who may have lower financial literacy know that a loan modification will not result in a large additional tax bill.

Under the Equity Considerations section, this commenter suggested adding “Mitigation of disproportionate impact of COVID-19 pandemic on Native American jobless rate and economic status.” This commenter said that this addition would demonstrate the proposed rule's positive impact on equity by highlighting how it will reduce the odds that Native Americans will suffer disproportionately from the effects of COVID-19.

HUD Response: HUD appreciates the feedback but believes that these suggested changes to the RIA would be outside the scope of the RIA. While HUD agrees that the tax relief for debt forgiveness as part of loss mitigation is a valuable tool in loss mitigation, this rule does not itself involve principal reductions, debt forgiveness, or cancellation of the mortgage debt. Modifying a loan to extend its term is not debt cancellation and therefore cannot be added to the listed benefits of the rule.

Regarding equity considerations, HUD agrees, as discussed in the Equity Impacts section of the proposed rule's RIA, that American Indians and Alaska Natives are among the underserved groups who will disproportionately benefit from the rule. The Equity Considerations column in Table 6 of the proposed rule's RIA presented a generalized summary. The proposed rule is not limited to the COVID-19 pandemic—it is intended to assist borrowers with FHA-insured mortgages who are experiencing financial hardship due to negative life events or economic conditions, whose existing mortgages are in default or imminent default.

A commenter suggested that HUD further engage with industry stakeholders to help determine how to integrate 40-year terms into the permanent loss mitigation waterfall. Another commenter suggested that the FHA should use the “drafting table” to solicit comments on the FHA guidance that will implement the final rule.

HUD Response: HUD regularly considers feedback from the public and stakeholders including industry partners and advocacy groups on changes to policies and procedures, implementation, and additional concerns. HUD looks forward to continuing to engage with stakeholders to ensure that the best outcomes for borrowers can be achieved.

Pursuant to Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.

This rule was determined to be a “significant regulatory action” because it is likely to have an annual effect on the economy of $100 million or more. This rule will increase available loss mitigation options for borrowers and enable more borrowers to avoid foreclosure and remain in their homes. HUD also anticipates that this will have a positive effect on the FHA MMI Fund by lowering defaults. The docket file is available for public inspection on http://www.regulations.gov and in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW, Room 10276, Washington, DC 20410-0500. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the docket file by calling the Regulations Division at 202-402-3055 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech and communication disabilities. To learn more about how to make an accessible telephone call, please visit: https://www.fcc.gov/consumers/guides/telecommunications-relay-service-trs.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The change of this rule will be limited to requiring mortgagees to consider and, where appropriate, utilize an extended term limit. Mortgagees are already required to consider mortgage modification so this change should not have an economic impact on mortgagees. If there is an economic effect on mortgagees, it would fall equally on all mortgagees. Further, HUD anticipates that allowing an additional loss mitigation tool will have a net positive economic impact on mortgagees by decreasing the number of defaults and therefore the costs associated with those defaults. Accordingly, the undersigned certifies that the rule will not have a significant economic impact on a substantial number of small entities.

A Finding of No Significant Impact (FONSI) with respect to the environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). The FONSI is available through the Federal eRulemaking Portal at http://www.regulations.gov. The FONSI is also available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Room 10276, Department of Housing and Urban Development, 451 Seventh Street SW, Washington, DC 20410-0500.

Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either: (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This proposed rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order.

Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) (UMRA) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.

For the reasons discussed in the preamble, HUD amends 24 CFR part 203 as follows:

Background

The final regulations (TD 9970) that are the subject of this correction is under sections 5000A, 6055 and 6056 of the Internal Revenue Code.

Accordingly, 26 CFR part 301 is corrected by making the following correcting amendment:

The Coast Guard will enforce special local regulations in 33 CFR 100.801 Table 3, Line 4, for the Port Neches Riverfest boat races display from 2 p.m. through 6 p.m. on May 5, 2023, and from 8:30 a.m. through 6 p.m. on May 6 and May 7, 2023. This action is being taken to provide for the safety of life on navigable waterways during this three-day event. Our regulations for marine events within the Eighth Coast Guard District, § 100.801, specifies the location of the safety zone for the Riverfest boat races which encompasses a portions of the Neches River adjacent to Port Neches Park. During the enforcement period, as reflected in § 100.801, Table 3, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or designated representative.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of the enforcement periods via Local Notice to Mariners, Marine Safety Information Bulletin and Vessel Traffic Service Advisory.

I. Table of Abbreviations BNM Broadcast Notice to Mariners CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security EEZ Exclusive Economic Zone FAA Federal Aviation Administration FL Florida FR Federal Register MSIB Marine Safety Information Bulletin NASA National Aeronautics and Space Administration NM Nautical Mile NPRM Notice of Proposed Rulemaking RNA Regulated Navigation Area § Section U.S. United States U.S.C. United States Code II. Background Information and Regulatory History

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

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

The Coast Guard has an existing permanent regulated navigation area (RNA) that prevents vessels from operating in the waters adjacent to the Cape Canaveral launch area; however, that area only extends to the limits of the territorial seas. 3 With this temporary final rule, the Coast Guard is establishing a temporary safety zone in the Atlantic Ocean in the U.S. EEZ that will abut the existing RNA near Cape Canaveral, FL. The Coast Guard intends to activate the existing RNA in 33 CFR 165.775 concurrently with the temporary safety zone established by this rule for the launch of the Terran I rocket.

The Terran 1 will be the first launched rocket of the Terran Program. Rockets built by Realitivity Space for the Terran program are constructed using a novel 3D printing technology that has never been successfully employed in the United States. While the Terran rocket has conducted tests of its engines, it has not yet been launched into low earth orbit. Therefore, this launch presents a higher risk profile than with a typical launch. Based on these factors it has been determined that the best way to reduce risk is to establish this temporary safety zone abutting the established RNA in § 165.775.

Once the Terran I rocket has been launched, the Coast Guard will notify the public through a Broadcast Notice to Mariners (BNM) that any remaining safety zone enforcement times and dates are no longer needed.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. This safety zone must be established by March 7, 2023, in order to protect vessels and waterway users from the potential hazards associated with the launch of the Terran I rocket.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the rule's objectives of ensuring the protection of vessels and waterway users in the U.S. EEZ from the potential hazards created by the launch operation.

The Coast Guard is issuing this rule under section 8343 of the Authorization Act. The Seventh District Commander has determined that there are potential hazards in the U.S. EEZ created by the launch of the Terran I rocket. The purpose of this rule is to ensure safety of vessels and waterway users before, during, and after the scheduled launch.

This rule establishes a temporary safety zone that will be subject to enforcement starting on March 7, 2023, through March 13, 2023, from 10 a.m. to 4 p.m. each day, until the Terran-1 rocket is launched. Once the Terran I rocket has been launched, the Coast Guard will notify the public that the temporary safety zone has been cancelled, through a Broadcast Notice to Mariners (BNM).

This temporary safety zone will cover certain navigable waters in the path of the rocket being launched from Cape Canaveral, FL. The safety zone will cover approximately 650 square miles, and is roughly shaped like an elongated trapezoid. It will directly abut the RNA established in § 165.775. U.S.-flagged vessels will be prohibited from entering the temporary safety zone unless authorized by the District Commander of the Seventh Coast Guard District or a designated representative. Foreign- flagged vessels are encouraged to remain outside the safety zone. The coordinates of the safety zone are provided in the regulatory text, and a map will be provided in the docket.

No U.S. flagged vessel or person will be permitted to enter the safety zone without obtaining permission from the District Commander or a designated representative.

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

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

This regulatory action determination is based on the size, location, duration, and scope of the temporary safety zone. The temporary safety zone is limited in size and location to only to the areas where Terran I rocket launch may pose a danger to vessels outside the RNA. The temporary safety zone is limited in scope, as vessel traffic will be able to safely transit around the zone. The safety zone is expected to be enforced for approximately 8 hours. After the launch has been completed, and there is no longer any danger to vessels from the Terran I rocket, the Coast Guard will notify waterway users and vessels that the safety zone is no longer subject to enforcement. The safety zone will ensure the protection of vessels and waterway users from the potential hazards created by the launch of the Terran I rocket.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves enforcement of a safety zone for approximately 5 or 6 hours during the duration of the rocket launch of the Terran I rocket. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

As noted in paragraph (c) of § 165.506, the enforcement period(s) for each safety zone identified in paragraph (h) of this section is subject to change, and the enforcement period announced here differs from the enforcement period noted in Table 3 to paragraph (h). The Coast Guard will enforce the safety zone in 33 CFR 165.506 for Norfolk's 41st Annual Independence Day Fireworks regulated area from 9:30 p.m. to 9:50 p.m. on July 4, 2023. This action is being taken to provide for the safety of life on navigable waterways during this 20-minute event. Our regulation for marine events within the Fifth Coast Guard District, § 165.506, specifies the location of the regulated area which encompasses portions of the Elizabeth River and Town Point Reach. During the enforcement periods, entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Virginia.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

Skanska-Corman-McLean, Joint Venture notified the Coast Guard that it will be conducting demolition of the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge. Although the original notice provided a different set of dates, the demolition is now set to occur from 12:01 a.m. on March 13, 2023 to 11:59 p.m. on March 29, 2023. The bridge is located on the Potomac River, at mile 43.3, between Charles County, MD and King George County, VA. Demolition of the segment of the old bridge over waters that include the steel truss sections between Piers 7 and 13 (including the main span over the Federal navigational channel) requires the use of explosives, and debris removal and hydrographic surveying equipment.

In response to information originally provided by the demolition contractor, on November 8, 2022, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Potomac River, Between Charles County, MD and King George County, VA (87 FR 67430). The NPRM indicated that the safety zone would occur from February 1, 2023 through February 17, 2023, stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this demolition. During the comment period that ended December 8, 2022, we received 3 comments. A fourth comment was received on December 9, 2022 from the demolition contractor that prompted the Coast Guard to publish a Supplemental NPRM (SNPRM) indicating that the safety zone would occur from March 1, 2023 through March 17, 2023, and to the west of the Federal channel. During the comment period for the SNPRM, a fifth comment was received on January 26, 2023 from the demolition contractor indicating that the demolition work would occur between March 13, 2023 and March 29, 2023, the dates used in this Temporary Final Rule.

On February 17, 2023, the demolition contractor notified the Coast Guard that they were requesting traffic to be halted in the area originally identified and along the Federal channel, as well, for brief periods (during actual detonations) for safety reasons. In response, we are promulgating this final regulation to include an “Area 3” which will encompass the entire Federal channel. This “Area 3” will only be enforced on one day in between March 13, 2023 and March 29, 2023, for a short duration with law enforcement assets on scene.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication of the final dates and areas in the Federal Register . Delaying the effective date of this rule to provide notice of changes necessitated by changes in the demolition contractor's actual plans would be impracticable because immediate action is needed to respond to the potential safety hazards associated with explosive demolition of the bridge.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Maryland-National Capital Region (COTP) has determined that potential hazards associated the demolition and removal of the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge would be a safety concern for anyone within or near the Federal navigation channel. The purpose of this rule is to ensure safety of vessels and the navigable waters within or near the Federal navigation channel at the old Governor Harry W. Nice/Senator Thomas “Mac” Middleton Memorial (US-301) Bridge before, during, and after the scheduled event.

As noted above, we received 4 comments on our NPRM published November 8, 2022 as well as 1 more comment following the SNPRM published January 3, 2023. Three comments expressed support of the rulemaking and the Coast Guard concurs. Two comments were submitted by the demolition contractor requesting changes to the proposed rule. The first comment submitted from the demolition contractor was to inform the Coast Guard that there had been a change to the scheduled date and location sequence in which the demolition will occur. The second comment submitted from the demolition contractor was noted that the portion of the bridge to be demolished is between Pier 7 and Pier 13, and not Pier 8 and Pier 13 as initially described. Additionally, the commenter indicated that the demolition will occur on March 13, 2023 through March 29, 2023 rather than March 1, 2023 through March 17, 2023. We confirmed this updated information with the demolition contractor and have revised the regulatory text to reflect these changes.

This rule establishes a safety zone from 12:01 a.m. on March 13, 2023, to 11:59 p.m. on March 29, 2023. The safety zone will cover the following areas:

Area 1. All navigable waters of the Potomac River, encompassed by a line connecting the following points beginning at 38°21′51.57″ N, 076°59′14.53″ W, thence south to 38°21′41.35″ N, 076°59′12.33″ W, thence west to 38°21′37.90″ N, 076°59′38.25″ W, thence north to 38°21′48.14″ N, 076°59′40.45″ W, and east back to the beginning point, located between Charles County, MD and King George County, VA.

Area 2. All navigable waters of the Potomac River, within 1,500 feet of the explosives barge located in approximate position 38°21′21.47″ N, 076°59′45.40″ W.

Area 3. All navigable waters of the Potomac River, encompassed by a line connecting the following points beginning at 38°21′48.14″ N, 076°59′40.45″ W, thence south to 38°21′37.90″ N, 076°59′38.25″, thence west to 38°21′41.40″ N, 076°59′22.80″ W, thence north to 38°21′51.00″ N, 076°59′22.80″ W, and east back to the beginning point, located between Charles County, MD and King George County, VA.

The duration of the zone is intended to ensure the safety of the vessels and these navigable waters before, during, and after the scheduled demolition and debris removal. Except for the marine equipment and vessels operated by Skanska-Corman-McLean, Joint Venture, or its subcontractors, no vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The term designated representative also includes an employee or contractor of Skanska-Corman-McLean, Joint Venture for the sole purpose of designating and establishing safe transit corridors, to permit passage into or through the safety zone, or to notify vessels and individuals that they have entered the safety zone and are required to leave.

The COTP will notify the public that the safety zone will be enforced by all appropriate means to the affected segments of the public, in accordance with 33 CFR 165.7(a). Such means of notification will include, but are not limited to, Broadcast Notice to Mariners. Vessels or persons violating this rule are subject to the penalties set forth in 46 U.S.C. 70036 and 46 U.S.C. 70052.

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

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

This regulatory action determination is based on the size, location and time of year of the safety zone. The temporary safety zone is approximately 1200 yards in width and 350 yards in length. This safety zone will impact a small designated area of the Potomac River for 17 total days, but we anticipate that there would be no vessels that are unable to conduct business. Excursion vessels and commercial fishing vessels are not impacted by this rulemaking. Excursion vessels do not operate in this area, and commercial fishing vessels are not impacted because of their draft. Some towing vessels may be impacted, but bridge project personnel have been conducting outreach throughout the project in order to coordinate with those vessels. This safety zone will be established outside the normal recreational boating season for this area, which occurs during the summer season. Additionally, vessel traffic, including recreational vessels, not required to use the navigational channel will be able to safely transit around the safety zone. Such vessels may be able to transit to the east or the west of the Federal navigation channel, as similar vertical clearance and water depth exist under the next bridge span to the east and west. Moreover, the Coast Guard will issue Local Notice to Mariners and a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 17 days that will prohibit entry within a portion of the Potomac River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

As noted in paragraph (c) of § 165.506, the enforcement period(s) for each safety zone in paragraph (h) of this section are subject to change, and the enforcement period announced here differs from the enforcement period noted in Table 3 to paragraph (h). The Coast Guard will enforce the safety zone in 33 CFR 165.506 for Ocean Park Civic League regulated area from 9 p.m. to 10 p.m. on July 1st, 2023, which is the first Saturday in July. This action is being taken to provide for the safety of life on navigable waterways during this 1-hour event. Our regulation for marine events within the Fifth Coast Guard District, § 165.506, specifies the location of the regulated area for the Ocean Park Civic League which encompasses portions of the Chesapeake Bay. During the enforcement periods, entry of vessels or persons into this zone is prohibited unless specifically authorized by the Captain of the Port Virginia.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

The Coast Guard will enforce safety zone regulations in 33 CFR 165.801 Table 3, Line 1, for the Port Neches Riverfest fireworks display from 8:30 p.m. through 10 p.m. on May 6, 2023, or in the event of rain, on May 7, 2023. This action is being taken to provide for the safety of life on navigable waterways during before, during, and after a pyrotechnics display. Our annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones, § 165.801, specifies the location of the safety zone for the Riverfest fireworks display which encompasses a 500-yard radius around the fireworks barge anchored on the Neches River in approximate position 29°59′51″ N 093°57′06″ W (NAD83). During the enforcement period, as reflected in § 165.801, Table 3, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or designated representative.

In addition to this notice of enforcement in the Federal Register , the Coast Guard plans to provide notification of the enforcement periods via Local Notice to Mariners, Marine Safety Information Bulletin and Vessel Traffic Service Advisory.

The Great Lakes St. Lawrence Seaway Development Corporation (GLS) and the St. Lawrence Seaway Management Corporation (SLSMC) of Canada, under international agreement, jointly publish and presently administer the St. Lawrence Seaway Regulations and Rules (Practices and Procedures in Canada) in their respective jurisdictions. Under agreement with the SLSMC, the GLS is amending the joint regulations by updating the Regulations and Rules in various categories. The changes update the following sections of the Regulations and Rules: Condition of Vessels, Seaway Navigation, Radio Communications, Dangerous Cargo, General. These changes are to clarify existing requirements in the regulations.

Regulatory Notices: Privacy Act: Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://www.Regulations.gov.

The joint regulations will become effective in Canada on March 22, 2023. For consistency, because these are joint regulations under international agreement, and to avoid confusion among users of the Seaway, the GLS finds that there is good cause to make the U.S. version of the amendments effective on the same date.

This regulation involves a foreign affairs function of the United States and therefore, Executive Order 12866 does not apply and evaluation under the Department of Transportation's Regulatory Policies and Procedures is not required.

I certify that this regulation will not have a significant economic impact on a substantial number of small entities. The St. Lawrence Seaway Regulations and Rules primarily relate to commercial users of the Seaway, the vast majority of whom are foreign vessel operators. Therefore, any resulting costs will be borne mostly by foreign vessels.

This regulation does not require an environmental impact statement under the National Environmental Policy Act (49 U.S.C. 4321, et seq. ) because it is not a major federal action significantly affecting the quality of the human environment.

The Corporation has analyzed this rule under the principles and criteria in Executive Order 13132, dated August 4, 1999, and has determined that this proposal does not have sufficient federalism implications to warrant a Federalism Assessment.

The Corporation has analyzed this rule under Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48) and determined that it does not impose unfunded mandates on State, local, and tribal governments and the private sector requiring a written statement of economic and regulatory alternatives.

This regulation has been analyzed under the Paperwork Reduction Act of 1995 and does not contain new or modified information collection requirements subject to the Office of Management and Budget review.

Accordingly, the Great Lakes St. Lawrence Seaway Development Corporation is amending 33 CFR part 401 as follows:

On January 23, 2023, the Postal Service published a notice of proposed rulemaking (88 FR 3944-3945) to clarify the standards for mailing currency. The proposed standards required commercial cash deposits over $500.00 be sent using Registered Mail® service. In response to the proposed rule, the Postal Service received comments from nine commenters.

Comment: All commenters, four in part, requested an extension of the effective date, with varying timeframes, stating that they need additional time to make alternate arrangements for their cash deposits.

Response: The Postal Service agrees and believes that extending the effective date from March 1, 2023, to April 30, 2023, is a commercially reasonable amount of time.

Comment: Three commenters requested an increase of the $500.00 threshold for mailing cash deposits with Registered Mail service to $1,000.00 or $2,000.00.

Response: The Postal Service has decided to maintain the $500.00 threshold requiring cash deposits be mailed with Registered Mail service. In March 2022 the OIG recommended that the Postal Service conduct a cost-benefit analysis of the deposit by mail concept. Through this analysis, the Postal Service determined that a $500.00 threshold was appropriate to provide customers with additional security controls while mitigating employee safety and theft risk.

Comment: One commenter included a request to make an exemption for seasonal mailers. When cash deposits by mail do not occur throughout the year, the expense of alternate deposit arrangements is higher, putting these businesses at a competitive disadvantage.

Response: The Postal Service recognizes that some customers may be seasonal, however most customers conduct these types of transactions throughout the year. To issue a seasonal exception, would create operational and processing complexities which could produce security and service risks. This could also pose unintended impacts on the registered mail product.

While not specifically addressed in the comments, there appeared to be some confusion on the term “commercial cash deposits.” As a result, the Postal Service is providing a clarification by stating “commercial cash transactions.”

The Postal Service is revising subsection 503.2.1 to require commercial cash transactions over $500.00 be sent using Registered Mail® service.

In addition, the Postal Service is adding new subsection 601.1.3, Mailing Currency, to provide clarity in the mailing of currency including the requirement to send a commercial cash transaction over $500.00 as Registered Mail.

The DMM requirements in subsection 601.1.3 in the proposed rule provided “mailers must not use any USPS-provided packaging” ( i.e., expedited packaging supplies) for commercial cash deposits over $500.00. The Postal Service is extending this requirement to read any commercial cash transaction regardless of amount.

The Postal Service believes this revision will provide customers with a safe and secure service for their mailing needs.

The Postal Service adopts the following changes to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations.

We will publish an appropriate amendment to 39 CFR part 111 to reflect these changes.

Accordingly, 39 CFR part 111 is amended as follows:

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

On September 12, 2022, EPA proposed to approve SIP revisions submitted by the State of Missouri, on November 29, 2016, and March 7, 2019 (87 FR 55739). In that proposal, we also proposed to determine that the SIP revision corrects the deficiency with respect to Missouri that we identified in our June 12, 2015 action entitled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (“2015 SSM SIP call”) (80 FR 33839, June 12, 2015). The reasons for our proposed approval and determination are stated in the proposed action (87 FR 55739, September 12, 2022) and are not restated here. The public comment period for our proposed approval and determination ended on October 12, 2022. During the comment period, EPA received comments from one entity and responds to those comments in section IV of this document.

The EPA is taking final action to approve Missouri's revisions to 10 CSR 10-6.220, Restriction of Emissions of Visible Air Contaminants, in the Missouri SIP. The EPA received two SIP revision submissions related to this state rule from the Missouri Department of Natural Resources (MoDNR) on November 29, 2016, and March 7, 2019. On September 12, 2022, the EPA published a notice of proposed rulemaking (NPRM) proposing to approve Missouri's submissions (87 FR 55739). The full text of Missouri's requested rule changes as well as EPA's analysis of the changes can be found in the NPRM and technical support document (TSD), which is included in the docket for this action.

In its November 29, 2016, submission, MoDNR requested to remove the provision that was identified by EPA as being substantially inadequate to meet CAA requirements in EPA's 2015 SSM SIP Action. As explained in our NPRM, EPA finds that removal of this provision is consistent with EPA's policy outlined in the 2015 SSM SIP Action and sufficiently addresses the deficiencies identified by the 2015 SSM SIP Call.

In addition to the removal of the identified SSM deficiency, MoDNR, in both the 2016 and 2019 submissions, also requested revisions related to opacity monitoring requirements and exemptions from the opacity limits and recordkeeping and reporting requirements of 10 CSR 10-6.220 for certain source types. Specifically, MoDNR exempted specific, limited, emission units regulated by stricter federal and state regulations. MoDNR also provided an exemption for certain emission units that do not have the capability of exceeding the emission limits of the rule.

Missouri provided a demonstration pursuant to CAA section 110(l) to ensure the rule revisions, including the added exemptions, do not interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the Act. Specifically, Missouri demonstrates that sources being exempted from the state opacity limit generally are either subject to an equivalent or more stringent limit in federal or state law or are physically incapable of exceeding the state opacity limit and therefore exempting these sources from the state opacity limit will not result in a net emissions change. Based on EPA's review of Missouri's section 110(l) demonstration and our analysis of these changes as discussed below and more fully described in the NPRM and TSD in the docket for this rule, EPA finds these revisions will result in no net emissions change and no change to status quo air quality. For these reasons, EPA finds the revisions will not interfere with attainment or maintenance of the National Ambient Air Quality Standards (NAAQS) or other CAA requirements consistent with CAA section 110(l).

MoDNR also added an alternative test method and made other administrative wording changes such as adding rule specific definitions. For the reasons explained in the NPRM, TSD, and this document, EPA finds these edits are consistent with CAA requirements, therefore EPA is approving the revisions to 10 CSR 10-6.220 as requested by Missouri.

The State submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The State provided public notice on the November 29, 2016, SIP revision from June 1, 2016, to August 4, 2016, and held a public hearing on July 28, 2016. During the public comment period, the State received seven comments from five sources, consisting primarily of supportive or clarifying comments from industry groups. The State addresses the comments in its submittal included in the docket for this proposal. The State provided public notice on the March 7, 2019, SIP revision from August 1, 2018, to October 4, 2018, and held a public hearing on September 27, 2018. During the public comment period, the State received nine comments, seven of which were from EPA. The State addresses the comments in its submittal. Further discussion of the state responses to comments received is included in the TSD and the state submittal documents in the docket. In addition, as explained above and in the TSD, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The public comment period on the EPA's proposed rule opened September 12, 2022, the date of its publication in the Federal Register and closed on October 12, 2022. During this period, EPA received one comment letter from the Sierra Club.

Comment 1: The commenter supports EPA's proposed approval of Missouri's removal of 10 CSR 10-6.220(3)(C) as satisfying EPA's 2015 SSM SIP Call to Missouri and requests EPA to act quickly to approval removal of this provision from the Missouri SIP.

Response 1: EPA appreciates the supportive comment and as part of today's action is finalizing approval of removal of this deficient provision consistent with the commenter's request.

Comment 2: The commenter expresses concern with Missouri's expansion of the exemption for internal combustion engines. The commenter states EPA previously expressed concern with this change and argues the state did not adequately support the change nor address EPA's concerns. The commenter argues EPA's rationale for proposed approval of this expanded exemption is insufficient. Specifically, the commenter argues reliance on federal mobile source regulations is insufficient because the federal regulations are outdated and only apply to new engines. The commenter asserts that old, dirty engines continue to pollute along roads and highways, disproportionately affecting people of color. The commenter then references the State of Nevada's opacity standard as an example state opacity program that could limit visible emissions from certain vehicles. For these reasons, the commenter requests EPA not approve the proposed exemption for internal combustion engines or that EPA conditionally approve the revisions, provided the state removes the internal combustion exemption no later than one year after EPA's approval.

Response 2: First, in response to the commenter's claim that Missouri did not address EPA's comment on this exemption, this is in reference to Missouri's 2019 SIP revision. The change to this exemption was included in Missouri's 2016 SIP revision. Therefore, in Missouri's 2019 SIP revision, as referenced by commenter, Missouri explained that this exemption was not being changed, public comment was not solicited for this change and therefore Missouri did not make changes as a result of EPA's comment on this provision in the 2019 SIP revision. When this exemption was revised and proposed for public comment during Missouri's 2016 SIP revision, EPA did comment requesting Missouri add supportive information to the TSD, which Missouri responded to and addressed as part of the 2016 SIP revision. EPA discussed this information in the proposed rule and associated TSD included in the docket for this action.

As fully described in EPA's proposed rule and TSD in the docket for this action and as referenced by the commenter, the opacity limits currently in the Missouri SIP only apply to non-stationary internal combustion (IC) engines in the St. Louis and Kansas City metropolitan areas and the requested revision would expand the exemption to all internal combustion engines throughout the state. As the commenter references, the state explains the limits were first adopted in the 1960's to address emissions from older and less efficient vehicles and fuels. Since that time, EPA has enacted more stringent requirements and limits for newer model year vehicles and cleaner fuels and the vehicle population has continued to turnover to newer and cleaner vehicles.

As further explained in the NPRM and TSD, EPA's approval of this revision is consistent with CAA section 110(l) because the revision will not increase net emissions of criteria pollutants or their precursors. The primary basis for this determination is that the sources subject to the state opacity limit, for which Missouri is expanding this exemption in section (1)(A), continue to be subject to more stringent federal requirements. Therefore, sources that are in compliance with the more stringent federal requirements will not exceed the state opacity limit. Therefore, those sources subject to the federal requirements will not have a net increase in emissions. EPA's judgment that such SIP revisions do not “interfere” with attainment of the NAAQS is consistent with the plain and ordinary meaning of the statute, its structure, and EPA's past practice in conducting analyses under section 7410( l ). The CAA, 42 U.S.C. 7410( l ), provides, in relevant part that “[t]he Administrator shall not approve a revision of a plan if the revision would interfere with any applicable requirement concerning attainment.” For over fifteen years, EPA has interpreted section 7410( l ) as permitting approval of a SIP revision as long as “emissions in the air are not increased,” thereby preserving “status quo air quality.” Kentucky Resources Council, Inc. v. EPA, 467 F.3d 986, 991, 996 (6th Cir. 2006); see also Indiana v. EPA, 796 F.3d 803, 806 (7th Cir. 2015) (same); Alabama Environmental Council v. EPA, 711 F.3d 1277, 1292-93 (11th Cir. 2013) (same); Galveston-Houston Association for Smog Prevention v. EPA, 289 F. Appendix 745, 754 (5th Cir. 2008) (hereinafter “ GHASP ”) (same). EPA implements this interpretation of section 7410( l ) by approving SIP revisions if they do not result in a change to status quo air quality and thereby will not interfere with attainment or other CAA requirements. In doing so, “the level of rigor needed for any CAA [section 7410( l )] demonstration will vary depending on the nature and circumstances of the revision.” See EPA final rule 86 FR 48908, 48910; 86 FR 60172. Where EPA anticipates that a SIP revision may increase emissions, it typically requires that a state either (1) submit air quality analysis to demonstrate that the revision would not interfere with any applicable requirement or (2) substitute equivalent or greater emissions reductions in order to preserve status quo air quality. See 86 FR 48910; 86 FR 60172; see also Ky. Res. Council, 467 F.3d at 995 (denying petition challenging under section 7410( l ) SIP revision approval where the revision would not increase net emissions). However, where the SIP revision does not relax or remove any pollution controls—and therefore does not involve an increase in emissions—such requirements are unnecessary, because there is no reason to believe that such a SIP revision will interfere with any applicable requirement concerning attainment, or, in other words, there is no reason to believe that such a SIP revision would make air quality worse. See 86 FR 48911; 86 FR 60173; see also WildEarth Guardians v. EPA, 759 F.3d 1064, 1074 (9th Cir. 2014). EPA applied the same interpretation of section 7410( l ) in proposing to approve Missouri's SIP revision. Specifically, because the expanded exemption in section (1)(A) does relax the stringency of state rule 10-6.220, Missouri and EPA evaluated whether this expanded exemption would result in a net change to emissions or change in status quo air quality. As described previously, EPA agrees with Missouri's assertion that due to the continued implementation of the current federal requirements, which are the controlling requirements for this source sector rather than the state opacity limit, this revision will not result in increased net emissions or a change to status quo air quality.

To the commenter's point that the EPA's currently implemented heavy-duty diesel regulations are outdated, the currently implemented heavy-duty vehicle regulations established stringent PM emission standards beginning with model year 2007 vehicles and engines. 1 Therefore, all new heavy-duty vehicles and engines sold since then have been required to comply with those stringent emission standards for PM. On December 20, 2022, EPA finalized more stringent emission standards for PM from heavy-duty vehicles and engines, beginning with model year 2027. 2 Similarly, EPA has issued stringent PM emissions standards for various types of nonroad equipment and engines such as construction equipment and locomotives. 3 EPA is not obligated to issue federal regulations on a specific time schedule and further, the state cannot be held responsible for EPA's regulations addressing emissions from this source sector becoming outdated in the commenter's opinion. The CAA provides EPA with the authority to regulate emissions from mobile source emissions, such as those from cars, trucks and various types of nonroad equipment and engines. 4 Congress has generally preempted states from setting mobile source emissions standards. Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 938 (9th Cir. 2011) (citing 42 U.S.C. 7543(a)). States such as Missouri do not have the authority to regulate mobile source emissions or fuels directly and per Missouri law may not adopt rules that are more stringent than federal law. In its demonstration, the state also referred to its vehicle emissions inspections in the St. Louis Metropolitan Area to ensure light-duty vehicle emissions control equipment is functioning properly (10 CSR 10-5.381 On-Board Diagnostics Motor Vehicle Emission Inspection), and regulations limiting heavy duty diesel vehicle idling in both Kansas City and St. Louis Metropolitan Areas (10 CSR 10-2.385 and 5.385 Control of Heavy Duty Diesel Vehicle Idling Emissions).

Additionally, there are many voluntary programs being implemented by EPA and states that are targeted at replacing older diesel engines with new cleaner engines or retrofitting older diesel engines to reduce particulate matter emissions. For example, through the Diesel Emissions Reduction Act (DERA) EPA continues to provide millions of dollars of grant funding per year to state, local, and tribal air agencies as well as directly to nonprofit organizations through competitive grant opportunities to replace older diesel engines with new cleaner models. 5 Specifically, previously awarded national competitive DERA grants included projects to replace school buses, trucks, and commercial marine engines with new cleaner versions in both of these metropolitan areas. 6 Another example of a program that targets replacement of older diesel engines include the Volkswagen trust fund, which accounts for a major investment in Missouri, up to $41 million by 2027 awarded to Missouri-specific projects to mitigate emissions from diesel engines in Missouri. 7 While these are voluntary programs and therefore not federally enforceable, and EPA is thus not relying on these programs for its section 110(l) analysis, the replacements and upgrades funded through these programs have played a major role and will continue to result in real reductions of emissions in local communities including the Kansas City and St. Louis metropolitan areas.

To the commenter's point about Nevada's opacity program, EPA agrees that states have this discretion to enforce opacity limits either through regularly required inspections or through roadside pullover programs in their state, however it is not in the scope of this rulemaking action to prescribe how Missouri could potentially alter its rulemaking and enforcement of opacity limits in the future. At issue, is the question of whether this rule revision will result in a net emissions increase. As described in the proposed rule and TSD, EPA finds that the information provided by the state and available to EPA supports the conclusion that this revision will not result in a net emissions increase and therefore will not interfere with attainment or other CAA requirements.

Finally, to the commenter's point about disproportionate impacts from older diesel engines on people of color, in section I.C. of the final rule “Control of Air Pollution from New Motor Vehicles: Heavy-Duty Engine and Vehicle Standards” EPA states that, “Our consideration of environmental justice literature indicates that people of color and people with low income are disproportionately exposed to elevated concentrations of many pollutants in close proximity to major roadways.”  8 EPA includes additional discussion of the available literature in sections II.C and II.D. of that final rule. 9

For these reasons, EPA continues to find that this rule revision to expand the exemption to all IC engines in the state will result in no net emissions change in these areas and therefore will not interfere with attainment or maintenance of the NAAQS or any other CAA requirements.

To further respond to the commenter's concern, EPA reviewed available emissions data for these areas, from the most recent complete national emissions inventory (NEI) for 2017. In that inventory, we evaluated what percentage of the total particulate matter (PM 10 ) emissions in these areas are from the mobile source sector and more specifically from onroad mobile sources. All emissions data referenced here is included in the spreadsheet titled, “2017 NEI MO PM Emissions Data” included in the docket for this action. The key comparisons as shown in Table 1 are contained in the summary tab while the other tabs contain the full datasets.

Table 1 shows the total PM 10 emissions for the Missouri portion of each metropolitan area as well as the percentage attributable to the mobile source sector and the percentage attributable to onroad mobile sources. The mobile source category includes onroad, nonroad, airport, watercraft and rail source categories. The mobile source category accounts for 1.3% and 3.0% of total PM emissions in the Missouri portions of Kansas City and St. Louis, respectively. The onroad mobile source category includes sources such as heavy duty trucks, transit and school buses. And onroad mobile sources account for 0.9% and 2.2% of total PM emissions in the Missouri portions of Kansas City and St. Louis, respectively. As shown in the table, emissions from onroad mobile sources, including diesel engines, account for a relatively small percentage of overall PM emissions in these areas.

As discussed above and as more fully described in the NPRM and TSD, in reviewing Missouri's requested rule revisions, EPA evaluated all available relevant information including information provided by the state. Based on EPA's review of that information, EPA finds that Missouri's revision to section (1)(A) of state rule 10-6.220, would not result in a net change to emissions or a change in status quo air quality and therefore will not interfere with attainment of the NAAQS or any other applicable requirements, consistent with CAA section 110(l).

Comment 3: The commenter expresses concern with Missouri's addition of an exemption for emission units burning certain fuels. The commenter questions whether AP-42 factors accurately estimate emissions from these fuels. The commenter then argues that while these fuels may generally have lower visible emissions, they may have the potential to emit levels of other pollutants that contribute to opacity.

Response 3: First, with respect to the added section (1)(L) in 10-6.220, EPA continues to find that the units burning the listed fuels are not physically capable of exceeding the state rule opacity limit as demonstrated by Missouri. For this reason, this rule revision will result in no net emissions change and subsequently no change to status quo air quality. Therefore, as explained in response to comment 2, will not interfere with attainment or maintenance or any other CAA requirement consistent with CAA section 110(l). Further, the EPA disagrees with the commenter's assertion that EPA's “Compilation of Air Pollutant Emissions Factors,” also known as AP-42, does not accurately estimate emissions associated with combustion of these fuels. As referenced by the commenter, Missouri includes the calculation used to estimate potential emissions associated with combustion of these fuels and references the appropriate sections of the publicly available AP-42 information maintained by EPA. Through these calculations, the state demonstrates that units combusting the fuels covered by this provision are not physically capable of emitting greater than the 20% opacity limits of the state rule. Further, the state calculations show that the maximum expected percent opacity emissions are at least 25% below the 20% state rule opacity limit ( i.e., cannot exceed 15% opacity) and in most cases at least 50% below the 20% state rule opacity limit ( i.e., cannot exceed 10% opacity) to allow for a reasonable margin of safety in the estimations. For these reasons, EPA continues to find that exempting units that combust only the gaseous fuels listed by Missouri in section (1)(L) of state rule 10-6.220 will result in no net emissions change and therefore will not interfere with attainment or maintenance of the NAAQS or any other CAA requirements, consistent with CAA section 110(l).

Comment 4: The commenter expresses concern with Missouri's added exemption for units subject to an equivalent or more restrictive emission limit under 10 CSR 10-6.075 or any federally enforceable permit. The commenter argues that Missouri did not satisfactorily support this added exemption with a demonstration for EPA to review. The commenter further argues that this exemption violates the Act's SIP revision requirements and EPA's SSM SIP Call policy by allowing sources to be exempt on a case-by-case basis outside the SIP revision process which the commenter argues could also limit the public's ability to participate in the public review process. For these reasons, the commenter requests EPA not approve this exemption or alternately conditionally approve, provided Missouri removes this added exemption no later than one year after EPA's approval.

Response 4: As referenced in Missouri's submittals, the statewide opacity rule was consolidated from several area-specific rules which were originally promulgated in the late 1960's and early 1970's, prior to the enactment of the Clean Air Act. The opacity limits established in 10 CSR 10-6.220 were carried over from these early rules and apply to all sources of visible emissions in Missouri, including a vast array of air pollution sources. These air pollution sources are also subject to federal or state regulations with stricter emission limits and more comprehensive requirements. This has created redundancies in air pollution regulation and duplicative requirements. Missouri's basis for revising this rule was to remove the less stringent requirements on sources and thereby remove duplicative monitoring, reporting and recordkeeping (MRR) requirements to allow sources to focus on compliance with the more stringent requirements that are not being impacted by this rulemaking. Contrary to commenter's assertion, Missouri did provide support for this rule revision in the technical support document included in the submittal for the 2019 revision on page 12 of 38 in the document with Docket ID # EPA-R07-OAR-2022-0746-0008. The state explains that State rule 10 CSR 10-6.075 Maximum Achievable Control Technology Regulations incorporates by reference the delegable federal subparts of 40 CFR part 63 National Emission Standards for Hazardous Air Pollutants for Source Categories. These federal Maximum Achievable Control Technology (MACT) regulations are source-specific and establish detailed requirements tailored to numerous processes and operations emitting hazardous air pollutants. The state goes on to note that many sources and emission units subject to stringent opacity and PM limits under 40 CFR part 63 are also subject to 10 CSR 10-6.220 due to the broad applicability of the opacity rule. The state further explains that since the opacity limits in 10 CSR 10-6.220 are less stringent than those specified in numerous subparts incorporated in 10 CSR 10-6.075, it is appropriate to add an exemption for emission units subject to an equivalent or stricter emission limit under 10 CSR 10-6.075 or a federally enforceable permit condition. The state concludes by stating the addition of this exemption to the opacity rule will eliminate regulatory overlap, simplify the Title V permit application process, streamline permit conditions, and decrease permit review time.

As the commenter points out, Missouri provided a thorough demonstration correlating PM and opacity emissions to show limits for certain sources are indeed stricter than the state rule limit and EPA reviewed this demonstration as explained in the proposed rule and associated TSD. This correlation demonstration was necessary because the state was comparing different types of emission limits, specifically opacity and PM limits. For the “equivalent or more restrictive emission limit” that Missouri includes in this provision, EPA interprets this as a direct comparison between limits involving the same pollutant and same unit of measure. Specifically, EPA interprets this revision as allowing an exemption from the state rule opacity limits only when a limit is very clearly equivalent or more stringent in all cases such that the limits would in fact be duplicitous and that such an exemption be accompanied by a clear comparison demonstrating the stringency of the limits in order to support an exemption from the less stringent limit. This evaluation of stringency must clearly show that when the source complies with the more stringent requirement, the source can be considered to be in compliance with the less stringent requirement. Further, as discussed in the NPRM, in order for a limit to be equivalent or more stringent than the state opacity limit it must be continuous in nature and not allow for exemptions for periods of SSM given EPA's approval through this action to remove section (3)(C) from state rule 10-6.220 as discussed in our response to comment 1.

With EPA's approval and Missouri's implementation of this provision, sources would still be subject to the more stringent limit but no longer be subject to the less stringent limit and its associated MRR requirements. And as stated in our proposed rule and TSD and as referenced by the commenter, exemption from a less stringent limit while continuing to be required to comply with an equivalent or more stringent limit would indeed result in no net emissions change and subsequently no change to status quo air quality as a result of the rule revision. Further, the only material change would be the removal of the MRR requirements associated with the less stringent limit thereby removing unnecessary duplicative requirements.

Missouri also added provisions in sections (1)(J) and (1)(M) of 10-6.220 which, as further discussed in EPA's TSD included in the docket for this action, exempt sources from the state opacity rule that are also subject to specific National Emissions Standards for Hazardous Air Pollutants (NESHAP) regulations which require the covered sources to comply with more stringent emissions limits than the state opacity limits. Missouri's reference to state rule 10-6.075 in section (1)(P) of 10-6.220 is intended to encompass the other MACT and NESHAP regulations that Missouri has accepted delegation for through this state rule. Those MACT and NESHAP regulations incorporated by reference in 10-6.075 include emissions limits set by EPA for certain source categories. Similar to the provisions in sections (1)(J) and (1)(M), section (1)(P) relies on EPA's more stringent requirements for the relevant source categories in order to be exempt from the state opacity limit provided it is indeed shown to be less stringent. This intention is further supported by Missouri's response to comments from EPA (comment and response #2 on page 26 of 38 in Missouri's 2019 submittal in the docket for this action). Specifically, the state's intention in adding this exemption for sources subject to 10-6.075, and the MACT and NESHAP requirements that are incorporated by reference through this state rule, is to exempt emissions units subject to equivalent or more stringent emission limits contained in these federal regulations under 40 CFR part 63 for which Missouri has accepted delegation without explicitly listing each NESHAP or federal regulation as a separate provision under the applicability section in 10-6.220. This method of referring to 10-6.075 where the MACT and NESHAP requirements are incorporated by reference, and for which Missouri has accepted delegation, is a reasonable way of streamlining requirements for impacted sources while maintaining that the most stringent or controlling limit and associated MRR requirements continue to apply.

For these reasons, EPA continues to find there will be no net emissions change and subsequently no change to status quo air quality associated with this revision and therefore, as described at length in our response to comment 2, this revision would not interfere with attainment or other CAA requirements.

Second, EPA disagrees with the commenter's assertion that approval of this exemption would be inconsistent with the Act's SIP revision requirements and EPA's SSM SIP Call policy. First, EPA's action on Missouri delegations and acceptance of enforcement authority for federal regulations, including 10 CSR 10-6.075, is also subject to 40 CFR 51.102 requiring EPA's public notice and comment process. EPA last granted Missouri's delegation authority for 10 CSR 10-6.075, among other rules, on June 1, 2018 (83 FR 25382).

In order for additional source categories subject to MACT and NESHAP regulations that are not already included in 10-6.075 to be exempted from the opacity limits of 10-6.220, Missouri must update 10-6.075 through the normal state rulemaking process, including public notice and comment and submittal to EPA for action. Only after EPA's delegation to the state of the implementation and enforcement authority of the relevant requirements for any newly added source categories could these sources then be eligible for exemption from the opacity limits of 10-6.220 pending the evaluation of stringency showed the delegated limits incorporated in 10-6.075 were indeed equivalent or more stringent than the opacity limits of 10-6.220. Delegation confers primary responsibility for implementation and enforcement of the listed standards to the respective state air agency. However, EPA also retains the concurrent authority to enforce the standards so granting delegation to a state does not affect EPA's ability to enforce a standard nor does it prohibit the ability for citizens to file lawsuits under Clean Air Act § 304, 42 U.S.C. 7604. Additionally, through the second clause of this provision, Missouri clarifies this revision is limited to federally enforceable permits which are subject to Missouri's SIP approved permitting program which also includes public notice and comment requirements. Further, EPA has an oversight role in permitting and has the ability to review and influence via comment permits which will be relied upon to exempt a source from the state rule opacity limit. EPA also retains authority and discretion pursuant to CAA section 110(k)(5) to require states to revise previously approved SIP provisions if EPA becomes aware that they do not meet CAA requirements. Finally, this revision does not violate EPA's SSM SIP Policy because as described in EPA's NPRM and above, in order to be considered equivalent or more stringent the emissions limit must be continuous in nature and not include exemptions for periods of SSM.

For these reasons, EPA continues to find there will be no net emissions change associated with this revision and for the reasons described in Response to Comment 2, the revision would therefore not interfere with attainment or maintenance of the NAAQS or any other CAA requirements, consistent with CAA section 110(l).

The EPA is taking final action to approve the revisions to 10 CSR 10-6.220 as requested by Missouri in submissions dated November 29, 2016 and March 7, 2019.

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The state did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. While EPA did not perform an area-specific EJ analysis for purposes of this action, due to the nature of the action being taken here, i.e., to remove an exemption for excess emissions during periods of SSM and add exemptions for sources subject to equivalent or more stringent limits, as explained in this preamble, the preamble to the proposed rule, and the technical support document in this docket, this action is expected to have a neutral to positive impact on air quality. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This action approves revisions to a Missouri state rule concerning visible emissions. As explained in this preamble, the preamble to the proposed rule, and technical support document, EPA finds the revisions will result in no net emissions change and subsequently no change to status quo air quality. Therefore, we expect that this action will not interfere with attainment or maintenance of the NAAQS, reasonable further progress, or other CAA requirements. For these reasons, this action is not expected to have a disproportionately high or adverse human health or environmental effects on a particular group of people.

In this document, 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 the Missouri Regulation, 10 CSR 10-6.220, state effective March 30, 2019, which regulates visible air contaminant emissions from certain sources throughout the state. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the Clean Air Act (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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

• This action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The basis for this determination is contained in section VI of this action, “Environmental Justice Considerations.”

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

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

• 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 May 8, 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)).

For the reasons stated in the preamble, the EPA amends 40 CFR part 52 as set forth below:

I. Background

Eastman Chemical Company (Eastman) petitioned TDEC to adopt revised permit conditions applicable to its Kingsport, Tennessee facility with an alternative monitoring option for this large non-EGU, along with corresponding revised recordkeeping and reporting conditions. This petition resulted in the issuance of the permit for Eastman included as part of TDEC's SIP submittal. The changes allow Eastman to address the NO X SIP Call's requirements for enforceable limits on ozone season NO X mass emissions through alternative monitoring and reporting methodologies. The August 11, 2021, source-specific SIP revision submitted by TDEC contains the permit provisions that TDEC modified to specifically address the alternative monitoring provisions allowed under the NO X SIP Call and requests conditional approval of those provisions into the SIP.

Through a notice of proposed rulemaking (NPRM), published on January 11, 2023 (88 FR 1533), EPA proposed to conditionally approve into Tennessee's SIP Tennessee Air Pollution Control Board operating permit No. 077509 for Eastman, state effective on August 11, 2021, to provide alternative NO X monitoring and reporting for Natural Gas-Fired Boilers 25-29 (PES B-253-1) at this facility in accordance with 40 CFR 51.121(i). TDEC requests that this approval be conditioned on Tennessee's commitment to modify the provisions at Chapter 1200-03-27.12(11) to specify allowable non-Part 75 permissible alternative monitoring and reporting methodologies for large industrial non-EGUs subject to the NO X SIP Call, such as the alternative monitoring and reporting provisions in permit No. 077509. The details of Tennessee's submission, as well as the background and EPA's rationale for conditionally approving the changes, are described in more detail in the January 11, 2023, NPRM. Comments on the January 11, 2023, NPRM were due on or before February 10, 2023.

EPA received three sets of supportive comments on the NPRM and one set of adverse comments, all from members of the general public. 1 EPA summarizes and responds to the set of adverse comments below.

Comment: The commenter claims that the State's proposal regarding alternative monitoring and reporting requirements is “vague” and “harmful” and would set a “dangerous precedent” by establishing “conditions beneath already lax federal regulations” that would enable states and industry to “seek a carve-out for a particular law instead of complying with rules designed to provoke compliance with good neighbor provisions.” According to the commenter, this approach would allow the establishment of standards “that could not register a problem if it occurred or give the company permission to develop lax, uninformed, and purposefully negligent reporting and monitoring requirements.”

Response: EPA disagrees with the commenter. As discussed in the January 11, 2023, NPRM, EPA revised its NO X SIP Call rules at 40 CFR 51.121 in 2019 to make Part 75 monitoring, recordkeeping, and reporting optional for subject sources, such that a SIP may establish alternative monitoring for NO X SIP Call budget units if the SIP containing the alternative meets the general requirements of 40 CFR 51.121(f)(1) and (i)(1). These general requirements ensure that alternative monitoring is sufficient to determine whether sources are in compliance with the NO X SIP Call budgets. Tennessee utilized this flexibility in modifying Eastman's air permit to allow for alternative monitoring and in submitting that permit to EPA for incorporation into its SIP. The permit conditions contain clear and specific alternative monitoring provisions that EPA described in detail in the NPRM, and the SIP revision containing those provisions satisfies 40 CFR 51.121. More specifically, the level of detail and monitoring rigor required by 40 CFR part 75, Appendices D and E (as an alternative to the methodologies in 40 CFR 75.12 and 40 CFR 75.17) are adequate to ensure that Eastman is in compliance with its source-specific allocation of Tennessee's NO X SIP Call budget. 2 Compliance with the NO X monitoring provisions within 40 CFR part 75, Appendices D and E is required by Condition 2 of Tennessee Air Pollution Control Board operating permit No. 077509, which is being conditionally approved into Tennessee's SIP.

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, and as discussed in Section I of this preamble and the January 11, 2023, NPRM, EPA is finalizing the incorporation by reference of Tennessee Air Pollution Control Board operating permit No. 077509 for Eastman, state effective on August 11, 2021, into the Tennessee SIP. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by 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 in the next update to the SIP compilation. 3

EPA is taking final action to conditionally approve Tennessee Air Pollution Control Board operating permit No. 077509 for Eastman, state effective August 11, 2021, for incorporation into the Tennessee SIP. These changes were submitted by Tennessee on August 11, 2021. As discussed in more detail in the January 11, 2023 NPRM, these changes to Tennessee's SIP are approved subject to the condition that Tennessee meets its commitment to submit a SIP revision modifying the provisions of TAPCR 1200-03-27.12(11) to specify permissible non-Part 75 alternative monitoring and reporting methodologies, as allowed under 40 CFR 51.121(i)(1) and (4), by 12 months from the date of this final approval. If the State fails to submit this revision on or before 12 months from the date of final approval of this action, the conditional approval will become a disapproval pursuant to CAA section 110(k)(4).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. This action merely conditionally 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

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

The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 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).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

I. Background

In accordance with the Clean Air Act (CAA or Act), EPA is approving the Macon Area LMP for the 1997 8-hour ozone NAAQS, adopted by Georgia EPD on October 12, 2021, and submitted by Georgia EPD as a revision to the Georgia SIP on October 20, 2021. On April 30, 2004, the Macon Area was designated as nonattainment for the 1997 8-hour ozone NAAQS, effective June 15, 2004. See 69 FR 23858 (April 30, 2004). Subsequently, in 2007 the Macon Area was redesignated to attainment for the 1997 8-hour ozone NAAQS with EPA's approval of the first 10-year maintenance plan, which was designed to keep the Area in attainment through 2017. See 72 FR 53432 (September 19, 2007). The Macon Area LMP is designed to maintain the 1997 8-hour ozone NAAQS within the Macon Area through the end of the second 10-year portion of the maintenance period beyond redesignation.

EPA is finalizing approval of the plan because it meets all applicable requirements under CAA sections 110 and 175A. As a general matter, the Macon Area LMP relies on the same control measures and contingency provisions to maintain the 1997 8-hour ozone NAAQS during the second 10-year portion of the maintenance period as the maintenance plan submitted by Georgia EPD for the first 10-year period.

In a notice of proposed rulemaking (NPRM) published on December 28, 2022 (87 FR 79830), EPA proposed to approve the Macon Area LMP because the State made a showing, consistent with EPA's prior LMP guidance, that the Macon Area ozone concentrations are well below the 1997 8-hour ozone NAAQS and have been historically stable and that the Area has met all other maintenance plan requirements. The details of Georgia's submission, as well as EPA's rationale, are explained further in the December 28, 2022, NPRM. Comments on the December 28, 2022, NPRM were due on or before January 27, 2023. No adverse comments were received on the December 28, 2022, NPRM.

In accordance with sections 110(k) and 175A of the CAA, and for the reasons set forth in the NPRM, EPA is finalizing approval of the Macon Area LMP for the 1997 8-hour ozone NAAQS, as submitted by Georgia EPD on October 20, 2021. EPA is finalizing approval of the Macon Area LMP because it includes an acceptable update of various elements of the 1997 8-hour ozone NAAQS Maintenance Plan approved by EPA for the first 10-year period (including emissions inventory, assurance of adequate monitoring and verification of continued attainment, and contingency provisions) and retains the relevant provisions of the SIP. EPA also finds that the Macon Area qualifies for the LMP option and that the Area's LMP adequately demonstrates maintenance of the 1997 8-hour ozone NAAQS through documentation of monitoring data showing maximum 1997 8-hour ozone levels well below the NAAQS and continuation of existing control measures. EPA believes that the Area's 1997 8-Hour Ozone LMP is sufficient to provide for maintenance of the 1997 8-hour ozone NAAQS in the Macon Area over the second 10-year maintenance period, through 2027, and thereby satisfies the requirements for such a plan under CAA section 175A(b).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. 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 information collection burdens under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

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

• Does not contain any unfunded mandates 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

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

This SIP revision is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 8, 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).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as follows:

Preamble acronyms and abbreviations. Throughout this preamble the use of “we,” “us,” or “our” is intended to refer to the EPA. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

Background information. On March 7, 2022, the EPA proposed revisions to the Wood Preserving Area Sources NESHAP based on our TR. In this action, we are finalizing decisions and revisions for the rule. We summarize comments we received regarding the proposed rule and provide our responses in this preamble. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket (docket ID No. EPA-HQ-OAR-2021-0133).

Organization of this document. The information in this preamble is organized as follows:

Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the appropriate NESHAP. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action will also be available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at: https://www.epa.gov/stationary-sources-air-pollution/wood-preserving-area-sources-national-emission-standards-hazardous. Following publication in the Federal Register , the EPA will post the Federal Register version and key technical documents at this same website.

Additional information is available at https://www.epa.gov/stationary-sources-air-pollution/wood-preserving-area-sources-national-emission-standards-hazardous. This information includes a summary of the NESHAP, links to the various regulatory actions for the source category, and other related documents.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the Court) by May 8, 2023. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, WJC South Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401 et seq. ). Section 112(d)(6) requires the EPA to review standards promulgated under CAA section 112(d) and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years following promulgation of those standards. This is referred to as a “technology review” and is required for all standards established under CAA section 112(d) including generally available control technology (GACT) standards that apply to area sources. 1 This action finalizes the 112(d)(6) technology review for the Wood Preserving Area Sources area source NESHAP.

Several additional CAA sections are relevant to this action as they specifically address regulation of hazardous air pollutant (HAP) emissions from area sources. Collectively, CAA sections 112(c)(3), (d)(5), and (k)(3) are the basis of the Area Source Program under the Urban Air Toxics Strategy, which provides the framework for regulation of area sources under CAA section 112.

Section 112(k)(3)(B) of the CAA requires the EPA to identify at least 30 HAP that pose the greatest potential health threat in urban areas with a primary goal of achieving a 75 percent reduction in cancer incidence attributable to HAP emitted from stationary sources. As discussed in the Integrated Urban Air Toxics Strategy (64 FR 38706, 38715, July 19, 1999), the EPA identified 30 HAP emitted from area sources that pose the greatest potential health threat in urban areas, and these HAP are commonly referred to as the “30 urban HAP.”

Section 112(c)(3), in turn, requires the EPA to list sufficient categories or subcategories of area sources to ensure that area sources representing 90 percent of the emissions of the 30 urban HAP are subject to regulation. The EPA implemented these requirements through the Integrated Urban Air Toxics Strategy by identifying and setting standards for categories of area sources including the Wood Preserving Area Sources source category that is addressed in this action.

CAA section 112(d)(5) provides that for area source categories, in lieu of setting maximum achievable control technology (MACT) standards (which are generally required for major source categories), the EPA may elect to promulgate standards or requirements for area sources “which provide for the use of generally available control technology or management practices [GACT] by such sources to reduce emissions of hazardous air pollutants.” In developing such standards, the EPA evaluates the control technologies and management practices that reduce HAP emissions that are generally available for each area source category. Consistent with the legislative history, we can consider costs and economic impacts in determining what constitutes GACT.

GACT standards were set for the Wood Preserving Area Sources source category in 2007. As noted above, this action finalizes the required CAA 112(d)(6) technology review for that source category.

The EPA promulgated the Wood Preserving Area Sources NESHAP on July 16, 2007 (72 FR 38864). The standards are codified at 40 CFR part 63, subpart QQQQQQ. The Wood Preserving Area Sources industry consists of facilities that use either a pressurized or thermal treatment process to impregnate wood with chemicals that provide long-term resistance to attack by fungi, bacteria, insects, or marine borers. Some of the products produced by the wood preserving industry include posts, cross ties, switch ties, utility poles, round timber pilings, lumber for aquatic applications, and fire-retardant lumber products.

More than 95 percent of all treated wood is preserved through pressurized processes. Almost all pressurized wood preservation processes use a closed treating cylinder or retort. A retort is an airtight pressure vessel, typically a long horizontal cylinder, used for the pressure impregnation of wood products with a liquid preservative. In a thermal treatment process, the wood is exposed to the preservative in an open vessel. The wood is immersed between separate tanks containing heated and cold preservative, which are either oil-borne or waterborne. Alternatively, thermal treated wood may be immersed in one tank that is first heated then allowed to cool. During the hot bath, the expansion of air in the wood forces some air out and improves the penetration of preservatives. In the cold bath, air in the wood contracts, creating a partial vacuum, and atmospheric pressure forces more preservative into the wood.

There are three general classes of wood preservatives: (a) oils, such as creosote and petroleum solutions of pentachlorophenol (PCP) and copper naphthenate, (b) waterborne salts that are applied as water solutions, such as chromated copper arsenate (CCA), and (c) light organic solvents, which serve as carriers for synthetic insecticides. Over the past few decades, the wood preserving industry has undergone several changes related to the types of preservatives used for certain applications and the associated emissions. Of the variety of wood preservatives being used today, some contain HAP while others do not.

Per 40 CFR 63.11428, the NESHAP is applicable to any wood preserving operation located at an area source that emits HAP. However, the urban HAP for which the source category was listed are arsenic, chromium, methylene chloride, and dioxins (72 FR 16652). As such, the Wood Preserving Area Sources NESHAP only applies to operations with the potential to emit these four urban HAP. Three wood preservatives, PCP, CCA, and ammoniacal copper zinc arsenate (ACZA), contain at least one of the urban HAP. The HAP PCP contains trace concentrations of dioxins, which are an urban HAP. The urban HAP arsenic and chromium are contained in CCA. The urban HAP arsenic is contained in ACZA. The EPA is not aware of any facilities currently using a wood preservative containing the urban HAP methylene chloride. No methylene chloride emissions were reported in the 2019 Toxic Release Inventory (TRI) and the EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) does not currently identify the use of methylene chloride as a wood preservative. Altogether, the source category covered by the GACT standards currently includes 322 facilities. The EPA estimates that 177 of the 322 Wood Preserving Area Sources use a wood preservative containing an urban HAP and are therefore subject to the GACT standards. The remaining area sources use wood preservatives that do not contain HAP or use creosote, which contains the HAP naphthalene.

The GACT standards require any facility using a pressure treatment process to use a retort or similarly enclosed vessel for the preservative treatment. Facilities using a thermal treatment process are required to use process treatment tanks equipped with air scavenging systems to capture and control air emissions. In addition, all facilities must prepare and operate according to a management practice plan to minimize air emissions, including emissions from process tanks and equipment ( e.g., retorts, other enclosed vessels, thermal treatment tanks), storage, handling, and transfer operations. These standards are required to be documented in a management practices plan. See 40 CFR 63.11430(c).

On March 7, 2022, the EPA published a proposed rule in the Federal Register for the Wood Preserving Area Source NESHAP, 40 CFR part 63, subpart QQQQQQ, that took into consideration the TR analyses. In the proposed rule, we proposed no changes to the standards as a result of the TR. The EPA proposed minor editorial and formatting changes to Table 1 in the Wood Preserving Area Sources NESHAP which outlines the applicability of CAA General Provisions (see docket ID EPA-HQ-OAR-2021-0133-0017 for Redline Version of 40 CFR part 63, subpart QQQQQQ Showing Proposed Changes).

This action finalizes the EPA's determinations pursuant to the TR provisions of CAA section 112 for the Wood Preserving Area Sources source category. This action also finalizes other changes to the NESHAP, including minor editorial and formatting changes to Table 1 in the Wood Preserving Area Sources NESHAP.

We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the GACT standards for this source category. Therefore, this final rule does not make any revisions to the GACT standards under CAA section 112(d)(6).

This action also finalizes, as proposed, minor editorial and formatting changes to the Wood Preserving Area Sources NESHAP Table 1, which outlines the applicability of CAA General Provisions. The notice of proposed rulemaking described the changes to the Subpart QQQQQQ Table 1, and a redline strikeout version of the Subpart QQQQQQ Table 1 showing proposed changes was available in the docket (see docket ID EPA-HQ-OAR-2021-0133-0017). This action finalizes the changes as detailed in that document.

This action finalizes technical corrections to the NESHAP for Surface Coating of Wood Building Products. As described in the March 7, 2022, proposal, changes are necessary because the NESHAP for Surface Coating of Wood Building Products contains a reference to an Occupational Safety and Health Administration (OSHA) provision that has since been removed.

For each issue, this section provides a description of what we proposed and what we are finalizing for the issue, the EPA's rationale for the final decisions and amendments, and a summary of comments and responses.

Based on our TR described in the March 7, 2022, proposal (87 FR 12633), we found no developments in practices, processes, or control technologies that necessitate revisions to the standards for the Wood Preserving Area Sources NESHAP (40 CFR part 63, subpart QQQQQQ).

After considering the comments received on the proposed rule and given that commenters did not identify any new practices, processes, and control technologies to further reduce emissions of arsenic, chromium, dioxins, or methylene chloride, the EPA has decided that no changes to the TR are necessary. Therefore, the EPA is finalizing its findings in the proposed rule that revisions to the emission standards for the Wood Preserving Area Sources NESHAP are not warranted under CAA section 112(d)(6).

Two comments were received on the proposed rulemaking. To access these comments in the docket for the proposed rule, see Docket ID No. EPA-HQ-OAR-2021-0133-0022 and EPA-HQ-OAR-2021-0133-0021.

Comment: A commenter acknowledged that EPA regulations minimize emissions of the urban HAP (arsenic, chromium, dioxins, and methylene chloride) but expressed concern regarding the health impacts associated with long-term exposure. The commenter stated that the EPA's determination that there was no cost-effective measure to further reduce emissions failed to consider the human health costs related to the bioaccumulation of HAP in surrounding environments and the secondary exposure to people beyond those directly affected at the source. The commenter suggested that the EPA consider natural and sustainable ways of preserving wood that do not incorporate synthetic chemicals and referenced an article on the complex nanostructure of cicada wings. The article, last updated in 2021, indicates that the surface of cicada wings is comprised of microscopic “nanopillars” and is naturally coated with waxy substances that repel water, dirt, and bacteria. The author of the article writes that scientists are currently exploring ways to design and manufacture nanoscale surfaces that possess these properties.

Response: The TR did not identify any generally available non-synthetic methods of wood preserving, and the commenter did not provide any direct information identifying an industrial-scale natural method of treating wood that would produce long-term resistance to attack by fungi, bacteria, insects, or marine borers for use as posts, cross ties, switch ties, utility poles, round timber pilings, lumber for aquatic applications, and fire-retardant wood products. The EPA did not identify any natural wood preserving methods that imitate the nanostructure of cicada wings and their ability to repel water, dirt, and bacteria.

Comment: A commenter opposed the proposal on the basis that there should be stronger standards to protect populations of concern. The commenter stated that although air quality would not be negatively impacted by the proposed action, it would also not improve it for populations of concern. The commenter restated results from our demographic analysis and pointed out that people of lower socioeconomic status and minorities are being exposed to emissions at a higher rate than other populations. The commenter noted that if arsenic levels are high enough, it can negatively impact the environment. The commenter requested that the EPA reevaluate the proposed decision.

Response: This action implements CAA section 112(d)(6), which requires the EPA to review standards promulgated under CAA section 112(d) and revise them “as necessary (taking into account developments in practices, processes, and control technologies).” The TR and neither commenter identified any cost-effective developments in practices, processes, and control technologies for wood preserving facilities that would further reduce emissions beyond the management practice and reporting requirements that currently exist in the rule. As the commenter noted, the proposal would not negatively impact air quality. The EPA notes that reducing emissions of urban air toxics has been a priority for EPA since the passage of the Clean Air Act Amendments in 1990. There have been significant reductions in urban air toxics because of EPA regulations, including the Wood Preserving Area Sources NESHAP, and enforcement actions. The EPA expects compliance with the Wood Preserving Area Sources NESHAP has reduced and will continue to reduce the effects of emissions on populations in proximity to wood preserving facilities, including in communities potentially overburdened by pollution. For more information on our analysis of environmental justice, see Section VI.F.

Based on the TR and after evaluating all comments received on the TR, we determined that no changes to the review are necessary. Therefore, pursuant to CAA section 112(d)(6), we are finalizing the TR as proposed.

In the March 7, 2022, proposal (87 FR 12633), we proposed minor editorial and formatting changes to Table 1 to Subpart QQQQQQ of Part 63 for the Wood Preserving Area Sources NESHAP listing the applicable general provisions. The notice of proposed rulemaking described the changes and a redline strikeout version of Table 1 showing proposed changes was available in the docket.

In the final rule, the EPA is making the revisions to Table 1 to Subpart QQQQQQ of Part 63 for the Wood Preserving Area Sources NESHAP as described in the proposal published on March 7, 2022.

No comments were received on the proposed changes to Table 1 to Subpart QQQQQQ of Part 63 for the Wood Preserving Area Sources source category.

No comments were received regarding the proposed changes to Table 1 to Subpart QQQQQQ of Part 63 for the Wood Preserving Area Sources source category. Therefore, those changes are being finalized as proposed.

In the March 7, 2022, proposal (87 FR 12633), we proposed technical corrections to the NESHAP for Surface Coating of Wood Building Products. The proposed technical corrections were necessary because the NESHAP for Surface Coating of Wood Building Products contains a reference to an OSHA provision that has changed. The EPA proposed to amend 40 CFR 63.4741(a)(1)(i) and (a)(4), which describe how to determine the mass fraction of organic HAP in each material used, to remove references to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4). The reference to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) is intended to specify which compounds must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. The EPA is eliminating this reference because OSHA revised its hazard communication standard in 2012 and completely removed 29 CFR 1910.1200(d)(4) from the CFR (58 FR 17574, March 26, 2012). Consequently, the NESHAP for Surface Coating of Wood Building Products cross-references a regulatory citation that no longer exists. The EPA proposed to replace these references to OSHA-defined carcinogens and 29 CFR 1910.1200(d)(4) with a new table explicitly included in the regulatory text (proposed as Table 7 to 40 CFR part 63, subpart QQQQ) of those organic HAP that must be included in calculating the total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. The proposed redline strikeout regulatory edits that would be necessary to incorporate the changes were included in the docket.

The EPA is finalizing the technical corrections to the NESHAP for Surface Coating of Wood Building Products as proposed.

No comments were received on the proposed technical corrections to the NESHAP for Surface Coating of Wood Building Products.

No comments were received on the proposed technical corrections to the NESHAP for Surface Coating of Wood Building Products. Therefore, the technical corrections to the NESHAP for Surface Coating of Wood Building Products are being finalized as proposed.

Approximately 322 area source wood preserving facilities in the United States are subject to 40 CFR part 63, subpart QQQQQQ. Approximately 177 of those facilities use or are permitted to use a wood preservative containing arsenic, chromium, dioxins, or methylene chloride, and therefore must comply with the management practice requirements.

Because we are not revising the standards for Wood Preserving Area Sources, we do not anticipate any quantifiable air quality impacts as a result of the final action.

We expect that the action will have minimal cost impacts for Wood Preserving Area Sources. In the March 7, 2022, proposed rule we estimated a one-time cost of $270 per facility (in 2019 dollars) associated with an affected facility reviewing the rule. Because the EPA is finalizing the rule as proposed, there are no changes to this cost estimate.

Economic impact analyses focus on changes in market prices and output levels. If changes in market prices and output levels in the primary markets are significant enough, impacts on other markets may also be examined. Both the magnitude of costs needed to comply with a final rule and the distribution of these costs among affected facilities can have a role in determining how the market will change in response to a final rule. Because the costs associated with the final revisions are minimal, no significant economic impacts are anticipated as a result of the final amendments. As presented in the March 7, 2022, proposed rule, the total cost associated with this action is estimated to be approximately $87,000. This estimate is based on the one-time cost of $270 per facility with 322 facilities estimated to be subject to the regulation.

The final amendments to the Wood Preserving Areas Sources NESHAP are limited to editorial and technical corrections to Table 1 at the end of the regulation listing the applicable part 63 General Provisions. These changes improve the accuracy and clarity of the rule.

Executive Order 12898 directs the EPA to identify the populations of concern who are most likely to experience unequal burdens from environmental harms; specifically, minority populations ( i.e., people of color), low-income populations, and Indigenous peoples (59 FR 7629, February 16, 1994). Additionally, Executive Order 13985 is intended to advance racial equity and support underserved communities through Federal government actions (86 FR 7009, January 20, 2021). The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.” In recognizing that people of color and low-income populations often bear an unequal burden of environmental harms and risks, the EPA continues to consider ways of protecting them from adverse public health and environmental effects of air pollution.

To examine the potential for any EJ issues that might be associated with the source category, we performed a demographic analysis at proposal, and have determined that the data and affected facilities did not change as a result of public comments. Therefore, the analysis from the proposed rule is still applicable for this final action. The results of the demographic analysis can be found in section IV(F) of the proposed rule's preamble (see 87 FR 12633, March 7, 2022). The analysis included an assessment of individual demographic groups of the populations living within 5 km and within 50 km of the facilities. We then compared the data from the analysis to the national average for each of the demographic groups. The results show that for populations within 5 km of the 322 existing facilities, the following demographic groups were above the national average: African American (21 percent versus 12 percent nationally), Hispanic/Latino (21 percent versus 19 percent nationally), and people living below the poverty level (18 percent versus 13 percent nationally). The results show that for populations within 50 km of the 322 existing facilities, the percent African American population was above the national average (14 percent versus 12 percent nationally). The methodology and the results of the demographic analysis are presented in a technical report, “Analysis of Demographic Factors for Populations Living Near Wood Preserving Area Sources,” available in the docket for this action (Docket ID No. EPA-HQ-OAR-2021-0133).

Given that the EPA is not revising the standards for Wood Preserving Area Sources, we do not anticipate any quantifiable air quality impacts as a result of the final action. The final amendments are limited to editorial and technical corrections to Table 1 at the end of the regulation listing the applicable part 63 General Provisions. These changes improve the accuracy and clarity of the rule. We note that wood preservatives containing the urban HAP arsenic, chromium, methylene chloride, and dioxin (a trace contaminant in PCP) either have been significantly reduced, are in the process of being phased out, or have been phased out completely since this source category was listed (see Docket ID No. EPA-HQ-OAR-2021-0133-0016 Technology Review for the Wood Preserving Area Sources NESHAP, page 6, and Docket ID No. EPA-HQ-OPP-2014-0653 Pentachlorophenol Final Registration Review Decision).

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 concern an environmental health risk or safety risk.

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 any new information collection burden under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0598. This action does not include any new reporting or recordkeeping requirements and therefore does not impose an information collection burden.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are small businesses. The Agency has determined that all small entities affected by this action, estimated to be 173 entities, may experience an impact of less than 0.7 percent of revenues, with approximately 91 percent of these entities estimated to experience a potential impact of less than 0.1 percent of revenues. Details of the analysis were presented in the spreadsheet titled RFA_Analysis_Wood_2022_Final.xlsx, which is found in the docket.

This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. While this action creates an enforceable duty on the private sector, the cost does not exceed $100 million or more.

This action does not have federalism implications in relation to Executive Order 13132. 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. None of the Wood Preserving Area Sources that have been identified as being affected by this action are owned or operated by tribal governments. However, we determined that 145 tribes were located near a Wood Preserving Area Source facility. Consistent with the EPA Policy on Coordination and Consultation with Indian Tribes, the EPA offered tribal leadership the opportunity for government-to-government consultation with no response.

This action is not subject to Executive Order 13045 because the EPA does not believe the environmental health risks or safety risks addressed by this action present a disproportionate risk to children.

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

This action does not involve any technical standards.

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

The demographic analysis presented in Section V.F. of this preamble provides information on the demographic characteristics ( e.g., race, ethnicity, income) of the populations living near wood preserving facilities but does not provide information on health or environmental effects from these sources. From the demographic analysis, EPA determined that for populations living within 5 km of wood preserving facilities the percentage of residents who are African American, Hispanic/Latino, or living below the poverty level are higher than the nationwide average (see section IV.F. of 87 FR 12633, March 7, 2022).

Because percentages of people of color and low-income individuals living near wood preserving facilities are higher than nationwide averages, the EPA acknowledges that the human health or environmental conditions that exist prior to this action have the potential to result in disproportionate and adverse human health or environmental effects on people of color, low-income populations, and/or Indigenous peoples. However, we note that wood preservatives containing the urban HAP arsenic, chromium, methylene chloride, and dioxin (a trace contaminant in PCP) either have been significantly reduced, are in the process of being phased out, or have been phased out completely since this source category was listed. This action is not likely to change any potential existing disproportionate effects on people of color, low-income populations and/or Indigenous peoples because we are not amending existing emission standards in the Wood Preserving Area Sources NESHAP and are finalizing minor editorial and formatting changes as discussed earlier in this preamble.

The information supporting this Executive Order review is contained in a technical report, Analysis of Demographic Factors for Populations Living Near National Emission Standard for Hazardous Air Pollutants: Technology Review for Wood Preserving Area Sources (see Docket ID No. EPA-HQ-OAR-2021-0133-0020) and is discussed in section V.F of this final rule.

This action is subject to the CRA, and the EPA will submit a rule report for this action to each House of the Congress and to the Comptroller General of the United States. Neither of the NESHAP amended by this action constitute a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons set out in the preamble, title 40, chapter I, part 63 of the Code of Federal Regulations is amended as follows:

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

On January 11, 2023, the EPA proposed to grant a request by the State of California to reclassify the Riverside County (Coachella Valley), CA ozone nonattainment (“Coachella Valley”) area from Severe-15 to Extreme for the 2008 ozone NAAQS. 1 Our January 11, 2023 proposed rule provides background information on the EPA's promulgation of the 2008 ozone NAAQS and the area designations and classifications for the 2008 ozone NAAQS.

The proposed rule describes CARB's requests for reclassification of the Coachella Valley from Severe-15 to Extreme for the 2008 ozone NAAQS and the basis for our proposed approval of the requests. The proposed rule also describes the Extreme area requirements applicable to the Coachella Valley nonattainment area following the EPA's approval of the voluntary reclassification requests and proposes a deadline of no later than 18 months from the effective date of reclassification for submittal of revisions to the Coachella Valley portion of the California SIP that address the Extreme ozone nonattainment area requirements. The proposed rule further describes the EPA's proposal to continue to limit the duration of our approval of the budgets in the 2016 Coachella Valley Ozone SIP until we find revised budgets developed for the Extreme area plan to be adequate. 2 Lastly, the proposed rule clarifies that this action would not reclassify any areas of Indian country within the Coachella Valley. Please see the proposed rule for further detail concerning these topics.

Today, we are taking final action to grant CARB's requests to reclassify the Coachella Valley nonattainment area to Extreme nonattainment for the 2008 ozone NAAQS. Pursuant to the reclassification, the Coachella Valley nonattainment area will be required to attain the 2008 ozone NAAQS as expeditiously as practicable, but no later than July 20, 2032. We are also taking final action to establish a schedule of no later than 18 months from the effective date of this final action for CARB to submit SIP revisions addressing Extreme area requirements for the Coachella Valley and to submit revisions to the title V operating permit rules for the Coachella Valley. Lastly, we are finalizing our action to continue to limit the duration of our approval of the budgets in the 2016 Coachella Valley Ozone SIP until we find revised budgets developed for the Extreme area plan to be adequate. As explained in the proposal, this action does not reclassify any areas of Indian country within the Coachella Valley.

The EPA's proposed action provided a 30-day public comment period. During this period, the EPA received two comments from private individuals. The full text of these comments is available in the docket for this rulemaking.

The first commenter generally supported our proposed action and indicated that the action will help to improve air quality by setting stricter standards for the region. We acknowledge the commenter's support of the EPA's proposed action and agree that reclassification of the area is appropriate for reasons cited by the commenter. As described below, we are finalizing the action as proposed.

The second commenter also supported the rulemaking action and asked that the EPA, if it has the authority to do so, insert additional requirements that further limit road transportation within the airshed or require the expansion of zero-emission public-transit networks within the Coachella Valley to further offset and reduce transportation emissions. The commenter also asserted that the state should be prohibited from issuing any new construction and/or operating permits for title V sources and other regulated stationary sources in the Coachella Valley. The EPA appreciates the commenter's support for the proposed action. While the measures suggested in the comment are outside of the scope of this rulemaking action and outside of the scope of the EPA's statutory authority, we note that the purpose of the reclassification action is to require CARB and the local air district to develop more stringent control measures to improve air quality under part D of title I of the CAA. The commenter may wish to raise ideas regarding specific control measures during the state plan development process.

Pursuant to CAA section 181(b)(3), the EPA is granting a request by the State of California to reclassify the Coachella Valley ozone nonattainment area from Severe-15 to Extreme for the 2008 ozone NAAQS. Upon reclassification, the Coachella Valley will be required to attain the 2008 ozone NAAQS as expeditiously as practicable, but no later than July 20, 2032.

In connection with the reclassification, and pursuant to our general CAA section 301(a) authority, the EPA is establishing a deadline of no later than 18 months from the effective date of this action for the submittal of SIP revisions addressing the Extreme area requirements applicable to the Coachella Valley nonattainment area. 3 We are also establishing 18 months from the effective date of this action as the deadline for the submittal of any corresponding revisions, or certifications, as appropriate, to the NSR and title V program rules that apply in the affected area. 4 Lastly, we are finalizing our action to continue to limit the duration of our approval of the motor vehicle emissions budgets in the 2016 Coachella Valley Ozone SIP until we find revised budgets developed for the Extreme area plan to be adequate.

This action does not reclassify any areas of Indian country. Under the EPA's Consultation Policy, the EPA consults on a government-to-government basis with federally recognized tribal governments when the EPA's actions and decisions may affect tribal interests. 5 The EPA is currently undergoing this consultation process and any proposed reclassification of tribal lands will be addressed in a future rulemaking action.

With this action, we are updating the designation table at 40 CFR 81.305 to identify the new attainment classification for state lands within the Coachella Valley nonattainment area. We are also updating the table to revise the listing for the “Cabazon Band of Mission Indians” to specify the “Cabazon Band of Cahuilla Indians,” which reflects the tribe's current federally recognized name. 6

Under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011), this final action is not a “significant regulatory action” and therefore is not subject to Executive Order 12866. With respect to lands under state jurisdiction, voluntary reclassifications under CAA section 181(b)(3) are based solely upon requests by the state, and the EPA is required under the CAA to grant them. These actions do not, in and of themselves, impose any new requirements on any sectors of the economy. In addition, because the statutory requirements are clearly defined with respect to the differently classified areas, and because those requirements are automatically triggered by reclassification, reclassification does not impose a materially adverse impact under Executive Order 12866. For these reasons, this final action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

In addition, I certify that this final action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) and that this final action 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), because the EPA is required to grant requests by states for voluntary reclassifications, and such reclassifications in and of themselves do not impose any federal intergovernmental mandate, and because tribes are not subject to implementation plan submittal deadlines that apply to states as a result of reclassifications.

This final action also does not have tribal implications 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, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898, “Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, Feb. 16, 1994), directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. The EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

The air agency did not evaluate environmental justice considerations as part of its reclassification request; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

This final action also does not have federalism implications because it does not have substantial direct effects on the states, on the relationship between the national government and the states, nor on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This final action does not alter the relationship or the distribution of power and responsibilities established in the CAA.

This final action also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because the EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of Executive Order 13045 has the potential to influence the regulation.

As this final action establishes a deadline for the submittal of CAA required plans and information, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This final action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

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 May 8, 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) of the CAA.)

For the reasons stated in the preamble, the EPA amends part 81, chapter I, title 40 of the Code of Federal Regulations as follows:

This is a synopsis of the Federal Communications Commission's (Commission) Report and Order, adopted March 1, 2023 and released March 1, 2023. The full text of this Commission decision is available online at https://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The A season allowance of the 2023 Pacific cod total allowable catch (TAC) apportioned to catcher vessels using trawl gear in the Western Regulatory Area of the GOA is 1,607 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2023 Pacific cod TAC apportioned to catcher vessels using trawl gear in the Western Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 1,607 mt and is setting aside the remaining 0 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA.

While this closure is effective, the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion, and would delay the closure of Pacific cod by catcher vessels using trawl gear in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of March 2, 2023.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.