This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Order No. 930 as amended (7 CFR part 930), regulating the handling of tart cherries grown in the states of Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. Part 930 (referred to as “the Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and is comprised of producers and handlers of tart cherries operating within the area of production, and a public member.

The Agricultural Marketing Service (AMS) is issuing this rule in conformance with Executive Orders 12866 and 13563. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

This rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the Order now in effect, tart cherry handlers are subject to assessments. Funds to administer the Order are derived from such assessments. The assessment rate established herein will be applicable to all assessable tart cherries for the 2022-23 crop year, and continue until amended, suspended, or terminated.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling.

This final rule increases the assessment rate for the 2022-23 and subsequent fiscal periods from $0.00575 to $0.0075 per pound of tart cherries. This rule also increases the portion of the assessment rate allocated to research and promotion from $0.00275 to $0.0055 per pound and decrease the portion allocated to administrative expenses from $0.003 to $0.002 per pound.

The Order authorizes the Board, with the approval of AMS, to formulate an annual budget of expenses and collect assessments from handlers to administer the program. The members of the Board are familiar with the Board's needs and with the costs for goods and services in their local area and can formulate an appropriate budget and assessment rate. The assessment rate is formulated and discussed in a public meeting, and all directly affected persons have an opportunity to participate and provide input.

For the 2020-21 and subsequent fiscal periods, the Board recommended, and AMS approved, an assessment rate that would continue in effect from fiscal period to fiscal period unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other information available to AMS.

The Board met on September 8, 2022, and unanimously recommended 2022-23 expenditures of $1,667,000 and an assessment rate of $0.0075 per pound, of which $0.0055 is for research and promotion expenses, and $0.002 is for administrative expenses. In comparison, last year's budgeted expenditures were $1,086,500. The assessment rate of $0.0075 is $0.00175 higher than the rate currently in effect.

The Board recommended increasing the assessment rate to allow for more spending on health benefits research, increased spending on promotion, and to add funds to Board reserves, which have been depleted due to reduced production in previous seasons. The production during the 2022-23 fiscal period was 242,352,172 pounds, an increase from the 172,354,783 pounds produced the previous year. However, at the current assessment rate, assessment income would equal $1,393,525, which does not meet the Board's anticipated expenditures of $1,667,000. By increasing the assessment rate by $0.00175, assessment income would be $1,817,641. This amount should provide sufficient funds to meet 2022-23 anticipated expenses.

Major expenditures recommended by the Board for the 2022-23 year include $850,000 for promotion, $250,000 for health benefits research, and $200,000 for salaries. Budgeted expenses for these items in 2021-22 were $600,000, $0, and $258,000, respectively.

The assessment rate recommended by the Board was derived by reviewing anticipated expenses, production of tart cherries, and the level of funds in reserve. The 2022-23 crop produced 242,352,172 pounds of tart cherries, which should provide $1,817,641 in assessment income (242,352,172 pounds multiplied by $0.0075). However, the Board anticipates that due to approved exemptions and loss adjustments, the actual income from assessments will be closer to $1,784,641. Income derived from handler assessments at the rate established by this rule, along with reserve funds and interest income, should be adequate to cover budgeted expenses. Funds in the reserve (currently about $262,732) are expected to be kept within the maximum permitted by the Order (approximately one fiscal period's expenses as authorized in § 930.42).

The assessment rate will continue in effect indefinitely unless modified, suspended, or terminated by AMS upon recommendation and information submitted by the Board or other available information.

Although this assessment rate will be in effect for an indefinite period, the Board will continue to meet prior to or during each fiscal period to recommend a budget of expenses and consider recommendations for modification of the assessment rate. Dates and times of Board meetings are available from the Board or AMS. Board meetings are open to the public and interested persons may express their views at these meetings. AMS evaluates Board recommendations and other available information to determine whether modification of the assessment rate is needed, and further rulemaking would be undertaken as necessary. The Board's 2022-23 budget and those for subsequent fiscal periods will be reviewed and, as appropriate, approved by AMS.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this rule on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.

There are approximately 400 tart cherry growers in the production area and approximately 40 handlers subject to regulation under the Order. The Small Business Administration (SBA) standard for small agricultural producers applicable to tart cherries is annual receipts of less than $3,500,000 (Other Noncitrus Fruit Farming, NAICS 111339). Small agricultural service firms are defined as those having annual receipts of less than $34,000,000 (NAICS 115114, Postharvest Crop Activities) (13 CFR 121.201). 1

The National Agricultural Statistics Service (NASS) reported that the 2021-22 value of the tart cherry crop for processed utilization was approximately $83 million. Production utilized for processing was 171.0 million pounds and the season average grower price for processed tart cherries was $0.485 per pound. Dividing the crop value by the estimated number of producers (400) yields an estimated average annual receipts per producer of $207,500 ($83 million divided by 400 producers). This is well below the SBA threshold for small producers.

An estimate of the season average price per pound received by handlers for processed tart cherries was derived from USDA's purchases of dried tart cherries for feeding programs in the 2021-2022 season at an average price of $4.70 per pound. The dried cherry price was converted to a raw product equivalent price of $0.94 per pound at an industry recognized ratio of five to one. Multiplying this price by 2021 total processed utilization of 171.0 million pounds results in an estimated handler-level tart cherry value of $160.7 million. Dividing this figure by the number of handlers ($160.7 million divided by 40 handlers) yields estimated average annual receipts per handler of approximately $4 million, which is well below the SBA threshold of $34 million for small agricultural service firms. Assuming a normal distribution, the majority of producers and handlers of tart cherries may be classified as small entities.

This final rule increases the assessment rate established for the Board and collected from handlers for the 2022-23 and subsequent fiscal periods from $0.00575 to $0.0075 per pound of tart cherries. This change also increases the portion of the assessment rate allocated to research and promotion from $0.00275 to $0.0055 per pound and decreases the portion allocated to administrative expenses from $0.003 to $0.002 per pound. The Board unanimously recommended 2022-23 expenditures of $1,667,000 and the assessment rate of $0.0075 per pound. The assessment rate of $0.0075 is $0.00175 higher than the current rate. The 2022-23 crop produced 242,352,172 pounds of tart cherries, which should provide $1,817,641 in assessment income (242,352,172 pounds multiplied by $0.0075). However, the Board anticipates that due to approved exemptions and loss adjustments the actual income from assessments will be closer to $1,784,641. Income derived from handler assessments and funds from the Board's authorized reserve, should be adequate to cover budgeted expenses.

Major expenditures recommended by the Board for the 2022-23 year include $850,000 for promotion, $250,000 for health benefits research, and $200,000 for salaries. Budgeted expenses for promotion and salaries in 2021-22 was $600,000 and $258,000, respectively. There were no budgeted expenses for health benefits research in 2021-2022.

The Board voted to increase the assessment rate to allow for more spending on health benefits research, increased spending on promotion, and to add funds to Board reserves, which have been depleted due to reduced production in previous seasons. At the current assessment rate of $0.00575 and with the 2022-23 crop production at 242,352,172 pounds, assessment income would equal $1,393,525 ($0.00575 multiplied by 242,352,172), an amount insufficient to cover the Committee's anticipated expenditures of $1,667,000. By increasing the assessment rate by $0.00175, assessment income would be approximately $1,817,641 ($0.0075 multiplied by 242,352,172). This amount, along with interest income, and funds from the reserve, should provide sufficient funds to meet 2022-23 anticipated expenses.

Prior to arriving at this budget and assessment rate, the Board considered the level of production, projected expenditures, and the amount in the authorized reserve. The Board discussed alternatives, including maintaining the current assessment rate of $0.00575. However, leaving the assessment unchanged would not generate sufficient revenue to meet Board expenses for the 2022-23 fiscal period. Consequently, the Board determined that the assessment rate should be increased to $0.0075 per pound to generate sufficient revenue to meet expenses. Therefore, the Committee rejected the idea of maintaining the current assessment rate.

A review of historical information and preliminary information pertaining to the upcoming season indicates the producer price for the 2022-23 season should be approximately $0.23 per pound of tart cherries. The assessment rate of $0.0075 per pound represents 3.26 percent of the $0.23 revenue for the 2021-22 fiscal period as a percentage of total producer revenue ($0.0075 divided by $0.23 multiplied by 100).

This rule increases the assessment obligation imposed on handlers. While assessments impose additional costs on handlers, the costs are minimal and uniform on all handlers, and some of the costs may be passed on to growers. However, these costs are expected to be offset by the benefits derived by the operation of the Order.

The Board's meeting was widely publicized throughout the tart cherry industry, and all interested persons were invited to attend the meeting and participate in Board deliberations on all issues. Like all Board meetings, the September 8, 2022, meeting was a public meeting and all entities, both large and small, were able to express views on this issue. In addition, interested persons were invited to submit comments on the proposed rule, including the regulatory and informational impacts of this action on small businesses.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by the OMB and assigned OMB No. 0581-0177, Tart Cherries Grown in Michigan, New York, Pennsylvania, Oregon, Utah, Washington, and Wisconsin. No changes in those requirements would be necessary because of this rule. If any changes become necessary, they would be submitted to OMB for approval.

This rule does not impose any additional reporting or recordkeeping requirements on either small or large tart cherry handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

A proposed rule concerning this action was published in the Federal Register on February 24, 2023 (88 FR 11822). Copies of the proposed rule were also mailed or sent via email to all tart cherry handlers. A copy of the proposed rule was made available through the internet by AMS via https://www.regulations.gov. A 30-day comment period ending March 27, 2023, was provided for interested persons to respond to the proposal.

No comments were received. Accordingly, no changes have been made to the rule as proposed.

A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: https://www.ams.usda.gov/rules-regulations/moa/small-businesses. Any questions about the compliance guide should be sent to Richard Lower at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section.

After consideration of all relevant material presented, including the information and recommendations submitted by the Board and other available information, AMS has determined that this rule tends to effectuate the declared policy of the Act.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 930 as follows:

On May 2, 2023 (88 FR 27397), the NRC published a direct final rule amending its regulations in part 72 of title 10 of the Code of Federal Regulations to revise the TN Americas LLC, NUHOMS® EOS Dry Spent Fuel Storage System listing within the “List of approved spent fuel storage casks” to include Amendment No. 3 to Certificate of Compliance No. 1042.

Amendment No. 3 revises the certificate of compliance to: add three new heat load zone configurations (HLZCs) for the EOS-89BTH Dry Shielded Canister (DSC) with increased heat load up to 1.7 kW per fuel assembly, which reduces the minimum cooling time to 1 year; add a variable-lead thickness EOS-TC125 for transfer with the EOS-89BTH DSC; add ATRIUM 11 fuel as an allowable content in the EOS-89BTH DSC and rerun the limiting GNF2 and ABB-10-C cases to reduce the statistical uncertainties and increase the enrichment limits; update the criticality evaluation to allow short-loading the EOS-89BTH DSC with less than 89 fuel assemblies to increase the enrichment limits; revise the technical specifications (TS) to allow for phased array automated ultrasonic testing and to utilize a single pass high amperage gas tungsten arc weld or multipass gas tungsten arc weld on the outer top cover plate; revise the TS to reduce EOS-37PTH HLZC 1 and 2 time limit for transfer to eight hours; incorporate a method to determine new loading patterns based on the maximum allowable heat load per DSC and per location specified in the TS and move all HLZCs and time limits for transfer for the EOS-89BTH DSC transferred in the EOS-TC125 from the technical specifications to Updated Final Safety Analysis Report (UFSAR) Chapter 2; waive the fabrication pressure test requirement for the single bottom forging EOS-DSCs; and make minor changes to TS and UFSAR for consistency among DSC types and terminology clarification. Amendment No. 3 also revises the certificate of compliance with three scope changes including: UFSAR revisions associated with transfer cask lifting heights and consideration of severe weather; UFSAR revisions associated with maintaining water in the annulus; and design changes to the Matrix Loading Crane.

In the direct final rule, the NRC stated that if no significant adverse comments were received, the direct final rule would become effective on July 17, 2023. The NRC did not receive any comments on the direct final rule. Therefore, this direct final rule will become effective as scheduled.

The NRC's fee regulations are primarily governed by two laws: (1) the Independent Offices Appropriation Act, 1952 (IOAA) (31 U.S.C. 9701), and (2) the Nuclear Energy Innovation and Modernization Act (NEIMA) (42 U.S.C. 2215). The IOAA authorizes and encourages Federal agencies to recover, to the fullest extent possible, costs attributable to services provided to identifiable recipients. Under NEIMA, the NRC must recover, to the maximum extent practicable, approximately 100 percent of its annual budget, less the budget authority for excluded activities. Under section 102(b)(1)(B) of NEIMA, “excluded activities” include any fee-relief activity as identified by the Commission, generic homeland security activities, waste incidental to reprocessing activities, Nuclear Waste Fund activities, advanced reactor regulatory infrastructure activities, Inspector General services for the Defense Nuclear Facilities Safety Board, research and development at universities in areas relevant to the NRC's mission, and a nuclear science and engineering grant program. In fiscal year (FY) 2023, the fee-relief activities identified by the Commission are consistent with prior fee rules, which are listed in Table 1—Excluded Activities.

Under NEIMA, the NRC must use its IOAA authority first to collect service fees for NRC work that provides specific benefits to identifiable recipients (such as licensing work, inspections, and special projects). The NRC's regulations in part 170 of title 10 of the Code of Federal Regulations (10 CFR), “Fees for Facilities, Materials, Import and Export Licenses, and Other Regulatory Services Under the Atomic Energy Act of 1954, as Amended,” explain how the agency collects service fees from specific beneficiaries. Because the NRC's fee recovery under the IOAA (10 CFR part 170) will not equal 100 percent of the agency's total budget authority for the fiscal year (less the budget authority for excluded activities), the NRC also assesses “annual fees” under 10 CFR part 171, “Annual Fees for Reactor Licenses and Fuel Cycle Licenses and Materials Licenses, Including Holders of Certificates of Compliance, Registrations, and Quality Assurance Program Approvals and Government Agencies Licensed by the NRC,” to recover the remaining amount necessary to comply with NEIMA.

The NRC is issuing this FY 2023 final fee rule based on the Consolidated Appropriations Act, 2023 (the enacted budget). The final fee rule reflects a total budget authority in the amount of $927.2 million, which is an increase of $39.5 million from FY 2022. As explained previously, certain portions of the NRC's total budget authority for the fiscal year are excluded from NEIMA's fee-recovery requirement under section 102(b)(1)(B) of NEIMA. Based on the FY 2023 enacted budget, these exclusions total $137.0 million, which is an increase of $6.0 million from FY 2022. These excluded activities consist of $97.1 million for fee-relief activities, $23.8 million for advanced reactor regulatory infrastructure activities, $13.4 million for generic homeland security activities, $1.2 million for waste incidental to reprocessing activities, and $1.5 million for Inspector General services for the Defense Nuclear Facilities Safety Board. Table I summarizes the excluded activities for the FY 2023 final fee rule. The FY 2022 amounts are provided for comparison purposes.

After accounting for the exclusions from the fee-recovery requirement and net billing adjustments ( i.e., for FY 2023 invoices that the NRC estimates will not be paid during the fiscal year, less payments received in FY 2023 for prior-year invoices), the NRC must recover approximately $790.6 million in fees in FY 2023. Of this amount, the NRC estimates that $195.0 million will be recovered through 10 CFR part 170 service fees and approximately $595.6 million will be recovered through 10 CFR part 171 annual fees. Table II summarizes the fee-recovery amounts for the FY 2023 final fee rule using the FY 2023 enacted budget and takes into account the budget authority for excluded activities and net billing adjustments. For all information presented in the following tables in this final rule, individual values may not sum to totals due to rounding. Please see the work papers, available as indicated in the “Availability of Documents” section of this document, for actual amounts.

In FY 2023, the explanatory statement associated with the Consolidated Appropriations Act, 2023 included direction for the NRC to use $16.0 million in prior-year unobligated carryover funds for the University Nuclear Leadership Program. Consistent with the requirements of NEIMA, the NRC does not assess fees in the current fiscal year for any carryover funds because fees are calculated based on the budget authority enacted for the current fiscal year. Fees were already assessed in the fiscal year in which the carryover funds were appropriated. The FY 2022 amounts are provided for comparison purposes.

The NRC uses a professional hourly rate to assess fees under 10 CFR part 170 for specific services it provides. The professional hourly rate also helps determine flat fees (which are used for the review of certain types of license applications). This rate is applicable to all activities for which fees are assessed under §§ 170.21 and 170.31.

The NRC's professional hourly rate is derived by adding budgeted resources for (1) mission-direct program salaries and benefits, (2) mission-indirect program support, and (3) agency support (corporate support and the Inspector General (IG)). The NRC then subtracts certain offsetting receipts and divides this total by the mission-direct full-time equivalent (FTE) converted to hours (the mission-direct FTE converted to hours is the product of the mission-direct FTE multiplied by the estimated annual mission-direct FTE productive hours). The only budgeted resources excluded from the professional hourly rate are those for mission-direct contract resources, which are generally billed to licensees separately. The following shows the professional hourly rate calculation:

For FY 2023, the NRC is increasing the professional hourly rate from $290 to $300. The 3.4 percent increase in the professional hourly rate is primarily due to increase in budgeted resources of approximately $34.1 million. The increase in budgeted resources is primarily due to the 4.6 percent increase in salaries and benefits to support Federal pay raises for NRC employees. The anticipated decline in the number of mission-direct FTE compared to FY 2022 also contributed to the increase in the professional hourly rate. The professional hourly rate is inversely related to the mission-direct FTE amount; therefore, as the number of mission-direct FTE decrease, the professional hourly rate may increase. The number of mission-direct FTE declined by approximately 24, primarily due to: (1) the closure of the Palisades Nuclear Plant (Palisades); and (2) a reduction in resources for development of the operating reactors licensing action infrastructure for process improvements and special projects.

The FY 2023 estimate for annual mission-direct FTE productive hours is 1,551 hours, which is an increase from 1,510 hours in FY 2022. This estimate, also referred to as the “Productive Hours Assumption,” reflects the average number of hours that a mission-direct employee spends on mission-direct work in a given year. This estimate, therefore, excludes hours charged to annual leave, sick leave, holidays, training, and general administrative tasks. Table III shows the professional hourly rate calculation methodology. The FY 2022 amounts are provided for comparison purposes.

The NRC is amending the flat application fees it charges in its schedule of fees in § 170.31 to reflect the revised professional hourly rate of $300. The NRC charges these fees to applicants for materials licenses and other regulatory services, as well as to holders of materials licenses. The NRC calculates these flat fees by multiplying the average professional staff hours needed to process the licensing actions by the professional hourly rate for FY 2023. As part of its calculations, the NRC analyzes the actual hours spent performing licensing actions and estimates the five-year average of professional staff hours that are needed to process licensing actions as part of its biennial review of fees. These actions are required by section 205(a) of the Chief Financial Officers Act of 1990 (31 U.S.C. 902(a)(8)). The NRC performed this review for the FY 2023 fee rule and will perform this review again for the FY 2025 fee rule. The biennial review adjustments and the higher professional hourly rate of $300 is the primary reason for the increase in flat application fees. Additional information can be found in the work papers.

In order to simplify billing, the NRC rounds these flat fees to a minimal degree. Specifically, the NRC rounds these flat fees (up or down) in such a way that ensures both convenience for its stakeholders and minimal effects due to rounding. Accordingly, fees under $1,000 are rounded to the nearest $10, fees between $1,000 and $100,000 are rounded to the nearest $100, and fees greater than $100,000 are rounded to the nearest $1,000.

The flat fees are applicable for certain materials licensing actions (see fee categories 1.C. through 1.D., 2.B. through 2.F., 3.A. through 3.S., 4.B. through 5.A., 6.A. through 9.D., 10.B., 15.A. through 15.L., 15.R., and 16 of § 170.31). Applications filed on or after the effective date of the FY 2023 final fee rule will be subject to the revised fees in the final rule. Since international activities are an excluded activity, fees are not assessed for import and export licensing actions under 10 CFR parts 170 and 171.

The NRC is assessing a generic low-level waste (LLW) surcharge of $4.023 million. Disposal of LLW occurs at commercially-operated LLW disposal facilities that are licensed by either the NRC or an Agreement State. Four existing LLW disposal facilities in the United States accept various types of LLW. All are located in Agreement States and, therefore, are regulated by an Agreement State, rather than the NRC. The NRC allocates this surcharge to its licensees based on data available in the U.S. Department of Energy's (DOE) Manifest Information Management System (MIMS). This database contains information on total LLW volumes disposed of by four generator classes: academic, industrial, medical, and utility. The ratio of waste volumes disposed of by these generator classes to total LLW volumes disposed over a period of time is used to estimate the portion of this surcharge that will be allocated to the power reactors, fuel facilities, and the materials users fee classes. The materials users fee class portion is adjusted to account for the large percentage of materials licensees that are licensed by the Agreement States rather than the NRC.

The LLW surcharge amounts have changed since publication of the proposed fee rule. The DOE updated MIMS with 2023 data; as a result of the update, the LLW surcharge for operating power reactors decreased from $3.556 million to $3.496 million; and the LLW surcharge increased from $0.370 million to $0.418 million for fuel facilities and from $0.097 to $0.109 million for materials users.

Table IV shows the allocation of the LLW surcharge and its allocation across the various fee classes.

In accordance with SECY-05-0164, “Annual Fee Calculation Method,” the NRC rebaselines its annual fees every year. “Rebaselining” entails analyzing the budget in detail and then allocating the FY 2023 budgeted resources to various classes or subclasses of licensees. It also includes updating the number of NRC licensees in its fee calculation methodology. The NRC is revising its annual fees in §§ 171.15 and 171.16 to recover approximately 100 percent of the NRC's FY 2023 enacted budget (less the budget authority for excluded activities and the estimated amount to be recovered through 10 CFR part 170 fees). Table V shows the rebaselined fees for FY 2023 for a sample of licensee categories. The FY 2022 amounts are provided for comparison purposes.

The work papers that support this final rule show in detail how the NRC allocates the budgeted resources and calculates the fees for each class of licensees.

Paragraphs a. through h. of this section describe the budgeted resources allocated to each class of licensees and the calculations of the rebaselined fees. For more information about detailed fee calculations for each class, please consult the accompanying work papers for this final rule.

The NRC will collect $510.7 million in annual fees from the operating power reactors fee class in FY 2023, as shown in Table VI. The FY 2022 operating power reactors fees are shown for comparison purposes.

In comparison to FY 2022, the FY 2023 annual fee for the operating power reactors fee class is increasing primarily due to the following: (1) an increase in budgeted resources; (2) a decrease in 10 CFR part 170 estimated billings; and (3) an increase in the 10 CFR part 171 billing adjustment. These components are discussed in the following paragraphs.

The budgeted resources for the operating power reactors fee class increased primarily as a result of an increase in the fully-costed FTE rate compared to FY 2022 due to an increase in salaries and benefits. The increase in the fully-costed FTE rate is offset by a reduction in FTEs associated with workload changes, including but not limited to the following: (1) the closure of Palisades; (2) delays to planned new reactor design and licensing applications; (3) a reduction in resources for the development of operating reactors licensing action infrastructure for process improvements and special projects. In addition, there was a reduction in contract support resources for baseline inspections in the reactor safety program, which are now being performed in-house.

The annual fee is increasing due to a reduction in the 10 CFR part 170 estimated billings resulting from: (1) a decrease in hours associated with the closure of Palisades and (2) delays to planned new reactor design and licensing applications, topical reports, and white papers.

The annual fee increase is also affected by these contributing factors: (1) an increase in the10 CFR part 171 billing adjustment (moving from a credit to a surcharge) due to the timing of invoices issued in FY 2022, and (2) an increase in the generic transportation surcharge due to an increase in the overall budgeted resources for certificates of compliance (CoCs) for the operating power reactors fee class.

The fee-recoverable budgeted resources are divided equally among the 93 licensed operating power reactors, including the anticipated assessment of annual fees for Vogtle Electric Generating Plant, Unit 3, and results in an annual fee of $5,492,000 per reactor. Additionally, each licensed operating power reactor will be assessed the FY 2023 spent fuel storage/reactor decommissioning annual fee of $261,000 (see Table VII and the discussion that follows). The combined FY 2023 annual fee for each operating power reactor is $5,753,000.

Section 102(b)(3)(B)(i) of NEIMA established a cap for the annual fees charged to operating reactor licensees; under this provision, the annual fee for an operating reactor licensee, to the maximum extent practicable, shall not exceed the annual fee amount per operating reactor licensee established in the FY 2015 final fee rule (80 FR 37432; June 30, 2015), adjusted for inflation. The NRC included an estimate of the operating power reactors fee class annual fee in Appendix C, “Estimated Operating Power Reactors Annual Fee,” of the FY 2023 Congressional Budget Justification (CBJ) (NUREG-1100, Volume 38) to increase transparency for stakeholders. The NRC developed this estimate based on the staff's allocation of the FY 2023 CBJ to fee classes under 10 CFR part 170, and allocations within the operating power reactors fee class under 10 CFR part 171. The fee estimate included in the FY 2023 CBJ assumed 94 operating power reactors in FY 2023 and applied various data assumptions from the FY 2021 final fee rule. Based on these allocations and assumptions, the operating power reactors annual fee included in the FY 2023 CBJ was estimated to be $5.2 million, approximately $0.5 million below the FY 2015 operating power reactors annual fee amount adjusted for inflation of $5.7 million. The assumptions made between budget formulation and the development of this final rule have changed, including the change in the number of operating power reactors from 94 to 93. Nonetheless, the FY 2023 annual fee of $5,492,000 remains below the FY 2015 operating power reactors annual fee amount, as adjusted for inflation.

In FY 2016, the NRC amended its licensing, inspection, and annual fee regulations to establish a variable annual fee structure for light-water small modular reactors (SMRs) (81 FR 32617; May 24, 2016). Under the variable annual fee structure, an SMR annual fee would be assessed as a function of its bundled licensed thermal power rating. Currently, there are no operating SMRs; therefore, the NRC will not assess an annual fee in FY 2023 for this type of licensee.

The NRC will collect $32.1 million in annual fees from 10 CFR part 50 and 10 CFR part 52 power reactor licensees, and from 10 CFR part 72 licensees that do not hold a 10 CFR part 50 license or a 10 CFR part 52 combined license, to recover the budgeted resources for the spent fuel storage/reactor decommissioning fee class in FY 2023, as shown in Table VII. The FY 2022 spent fuel storage/reactor decommissioning fees are shown for comparison purposes.

In comparison to FY 2022, the FY 2023 annual fee for the spent fuel storage/reactor decommissioning fee class is increasing primarily due to the following: (1) an increase in the budgeted resources and (2) a decrease in the 10 CFR part 170 estimated billings. These components are discussed in the following paragraphs.

The budgeted resources for the spent fuel storage/reactor decommissioning fee class increased primarily due to the following: (1) an increase in the fully-costed FTE rate compared to FY 2022 due to an increase in salaries and benefits; (2) an increase in licensing and oversight activities for one additional power reactor in decommissioning; and (3) an increased number of power reactors transitioning to accelerated decommissioning schedule status. This increase in the budgeted resources is offset by a decline in contract support due to the completion of research activities related to accident tolerant fuel (ATF), the assessment of gross ruptures in high burnup fuel, and standardized computer analysis for licensing evaluation code verification and validation.

The 10 CFR part 170 estimated billings for the spent fuel storage/reactor decommissioning fee class decreased primarily due to the following: (1) a reduction in hours and contract support associated with the staff's review of applications for renewals, amendments, exemptions, and inspections for independent spent fuel storage installation (ISFSI) licenses and dry cask storage CoCs; (2) the completion of the safety and environmental review of the Holtec HI-STORE consolidated interim storage facility application; (3) the completion of the staff's review of the Interim Storage Partners consolidated interim storage facility application and issuance of the license; (4) the completion of decommissioning transition activities for the Duane Arnold Energy Center and the site entering a period of dormancy; (5) the termination of the licenses for La Crosse Boiling Water Reactor and Humboldt Bay Nuclear Power Plant; and (6) the decrease in decommissioning licensing and inspection activities at multiple sites.

The annual fee increase is also affected by an increase in the generic transportation surcharge due to an increase in the generic transportation budgeted resources.

The required annual fee recovery amount is divided equally among 123 licensees, resulting in a FY 2023 annual fee of $261,000 per licensee.

The NRC will collect $19.7 million in annual fees from the fuel facilities fee class in FY 2023, as shown in Table VIII. The FY 2023 fuel facilities fees are shown for comparison purposes.

In comparison to FY 2022, the FY 2023 annual fee for the fuel facilities fee class is increasing primarily due to the increase in budgeted resources. This increase is offset by an increase in 10 CFR part 170 estimated billings as discussed in the following paragraphs.

The budgeted resources for the fuel facilities fee class increased primarily as a result of an increase in the fully-costed FTE rate compared to FY 2022 due to an increase in salaries and benefits. In addition, the budgeted resources increased to support the following: (1) licensing actions related to enrichment and manufacturing of high-assay low-enrichment uranium fuel, advanced reactor fuel, and ATF; (2) the staff's review of a new fuel facility application; (3) cyber security activities; (4) restart activities for the Honeywell

Authority for This Rulemaking

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

This rulemaking is promulgated under the authority described in Subtitle VII, part A, subpart III, section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design and operation of transport category airplanes.

This final rule amends two sections of title 14, Code of Federal Regulations (14 CFR), part 25.

First, the rule amends § 25.841, “Pressurized cabins,” for airplanes equipped with cabin pressurization systems intended for operations at airports with elevations at or above 8,000 feet. The FAA considers airports with elevations greater than 8,000 feet as “high elevation airports.” Section 25.841(a) still requires that cabin pressure altitudes do not exceed 8,000 feet under normal operating conditions, while the revisions allow cabin pressure altitudes to exceed 8,000 feet during takeoff and landing at high elevation airports. In addition, changes to § 25.841(b)(6) allow applicants to increase the threshold for activation of cabin pressure altitude warnings to altitudes above 10,000 feet, to prevent nuisance warnings to the flightcrew during takeoff and landing at high elevation airports.

Second, this rule amends § 25.1447, “Equipment standards for oxygen dispensing units,” for airplanes equipped with passenger oxygen systems intended for operations into or out of airports with elevations above 13,000 feet. The revisions to § 25.1447(c)(5) allow applicants to raise the automatic presentation altitude for oxygen masks located throughout the passenger cabin to altitudes above 15,000 feet while operating out of or into airports with elevations exceeding 13,000 feet.

This final rule affects manufacturers, modifiers, and operators of transport category airplanes. The amendments to §§ 25.841 and 25.1447 eliminate the burden on applicants and the FAA that results from the processing of project-specific equivalent level of safety (ELOS) findings and grants of exemption that are currently necessary for the FAA to approve the designs of cabin pressurization systems and oxygen dispensing units on airplanes intended to be used for operations into or out of high elevation airports.

Current FAA regulations require that the cabin pressure altitude on transport category airplanes remain at or below 8,000 feet in normal operating conditions, and that supplemental oxygen be automatically presented to passengers before the cabin pressure altitude reaches 15,000 feet. While these standards provide an acceptable level of safety for normal operating conditions, they can hinder or conflict with operations at high elevation airports.

To enable such operations, applicants develop specialized design modifications that often cannot comply with cabin pressurization and supplemental oxygen requirements in FAA regulations. In order to approve such modifications and enable operation into high elevation airports, the FAA typically must make and document an ELOS finding. The FAA must typically also grant an exemption from the automatic oxygen mask presentation requirements for operations into or out of airports with elevations at or above 13,000 feet.

Transport airplane operators currently utilize seven airports in the United States that have an elevation between 8,000 and 10,000 feet. While no airports in the U.S. supporting transport airplane operations are at an elevation higher than 10,000 feet, the FAA is aware of at least five airports in other parts of the world that support transport airplane operations and are at elevations that exceed 13,000 feet. Therefore, it is for operations at these airports that applicants seek either an ELOS or an exemption in order to obtain certification of cabin pressurization and oxygen systems.

Current regulatory requirements for cabin pressurization systems of transport category airplanes are contained in § 25.841(a) and (b). Section 25.841(a) requires cabin pressurization systems to maintain the interior cabin pressure so that the maximum cabin pressure altitude does not exceed 8,000 feet. While an airplane is operating on the ground before takeoff or after landing, however, the interior cabin pressure must be equal to the outside ambient air pressure, or airport pressure altitude. Otherwise, should the need for an emergency evacuation arise, the pressure differential between interior cabin and airport pressure altitude may be too high to allow cabin attendants to open the doors. For airports above 8,000 feet, the regulatory requirement of § 25.841(a) to equip the airplane to keep its cabin pressure altitude from exceeding 8,000 feet, and the practical requirement for cabin pressure altitude to equal the airport pressure altitude for takeoff and landing, are in direct conflict. This creates a need for specialized design modifications and certification approaches to accommodate these operations.

When a transport category airplane takes off from an airport with an elevation below 8,000 feet, its cabin pressure altitude does not normally exceed 8,000 feet. The cabin pressure nominally starts at the ambient pressure altitude of the airport, and gradually increases as the airplane climbs until the cabin pressure altitude stabilizes at an altitude not exceeding 8,000 feet.

However, when a transport category airplane takes off from an airport with an elevation at or above 8,000 feet, the cabin pressure altitude necessarily exceeds 8,000 feet. The cabin pressure starts at the airport's ambient pressure altitude at 8,000 feet or greater, and then, if it is equipped with a system that complies with § 25.841(a), decreases until it is not more than 8,000 feet. During the time between takeoff and the point when cabin pressure altitude reaches 8,000 feet, the airplane's pressurization system is not in compliance with the regulation. Similarly, when a transport category airplane is landing at a high elevation airport, the interior cabin pressure altitude will initially be at or below 8,000 feet, as required by § 25.841(a), and then rise as the airplane descends, until the interior cabin pressure altitude is the same as the ambient pressure altitude at the airport. Since the maximum cabin pressure altitude of 8,000 feet is exceeded to accommodate the operation into a high elevation airport, the cabin pressurization system would again briefly not comply with the 8,000 foot limit in § 25.841(a).

Furthermore, § 25.841(b)(6) requires a warning indication at the pilot or flight engineer station to indicate when the safe or preset pressure differential and cabin pressure altitude limits are exceeded. As described in § 25.841(b)(6), appropriate warning markings on the cabin pressure differential indicator meet the warning requirement for pressure differential limits, and an aural or visual signal (in addition to cabin altitude indicating means) meets the warning requirement for cabin pressure altitude limits, if they warn the flightcrew when the cabin pressure altitude exceeds 10,000 feet. To support high elevation airport operations and avoid nuisance alerts, airplane designers incorporate modifications to raise the cabin pressure altitude at which the cabin pressure high altitude warning indication occurs.

Currently, when an airplane designer applies to the FAA for certification of an airplane with a cabin pressurization system intended for operations at high elevation airports, the cabin pressurization and cabin pressure altitude warning systems cannot meet the design standards in § 25.841(a) and (b)(6). To obtain FAA approval of such designs, the airplane designer will typically include compensating elements that provide an equivalent level of safety to that intended by the regulations. 1 For the design standards provided by § 25.841(a) and (b)(6), the FAA has found that compensating factors such as the flightcrew's use of oxygen and minimizing the time that the cabin pressure altitude may be above 8,000 feet can provide an ELOS during high elevation airport operations. The FAA documents its finding in a memorandum that communicates the agency's rationale to the public. 2 Processing an ELOS finding ( i.e., evaluating the request, analyzing the design, making the determination, and creating the memorandum) creates an administrative burden on both the applicant and the FAA during the certification process.

Section 25.1447(c)(1) requires airplanes certified for operations above 30,000 feet to include oxygen dispensing equipment that is automatically presented to each of the airplane's occupants in the event of depressurization, before the cabin pressure altitude reaches 15,000 feet. To avoid unnecessary presentations of the supplemental oxygen equipment and the maintenance costs of servicing the system afterward, applicants typically incorporate design features to temporarily raise the automatic presentation altitude for oxygen masks during high elevation airport operations. Currently, applicants whose designs incorporate these features must submit a petition for an exemption from § 25.1447(c)(1). 3 This creates an administrative burden for both applicants who develop the petition and the FAA in the evaluation and analysis of each petition.

The FAA published an NPRM (84 FR 13565) on April 5, 2019, that proposed to amend §§ 25.841, “Pressurized cabins,” and 25.1447, “Equipment standards for oxygen dispensing units.” The FAA proposed these revisions to provide design standards for cabin pressurization systems and oxygen dispensing equipment on transport category airplanes intended for operation at airports with elevations at or above 8,000 feet, also referred to in this preamble as “high elevation airports.”

In the NPRM, the FAA proposed adding new § 25.841(c), as an exception to § 25.841(a), for systems designed to support operations at high elevation airports. Proposed § 25.841(c) would have allowed the airplane's cabin pressure altitude to be equal to or less than the airport elevation while the airplane is at or below 25,000 feet, provided the cabin pressurization system is designed to minimize the time that passenger cabin occupants would be exposed to cabin pressure altitudes exceeding 8,000 feet in flight.

The FAA also proposed adding new § 25.841(d) as an exception to § 25.841(b)(6). This would have allowed an applicant to change the threshold for the cabin pressure altitude warning indication from 10,000 feet to either 15,000 feet or 2,000 feet above the airport elevation, whichever is greater, when operating into or out of a high elevation airport and the airplane is at or below 25,000 feet. The FAA proposed 2,000 feet above the airport elevation in order to allow for system flexibility while maintaining a level of safety consistent with previously issued ELOS determinations.

In the NPRM, the FAA also proposed to add new § 25.1447(c)(5) as an exception to § 25.1447(c)(1) to allow approval of passenger cabin oxygen dispensing units that automatically deploy at 15,000 feet, or 2,000 feet above the airport elevation, whichever is greater, during operations into or out of high elevation airports. Similarly, the FAA proposed a variation of 2,000 feet above the airport elevation to allow for system flexibility while maintaining a level of safety consistent with previously-issued exemptions and to harmonize with European Union Aviation Safety Agency (EASA) guidance.

The revisions proposed in the NPRM intended to eliminate administrative tasks and analyses associated with the preparation and processing of ELOS determinations and exemptions to accommodate transport category airplane operations at high elevation airports, without compromising safety. The FAA invited comments to the proposal, and the comment period closed on June 4, 2019.

The FAA received ten sets of comments. Three commenters were airplane manufacturers: Boeing, Bombardier, and Embraer. The Aerospace Industries Association and the General Aviation Manufacturers Association (AIA/GAMA) commented collectively. One civil aviation authority, the Transport Canada Civil Aviation Authority (TCCA), provided comment. Three individuals commented, and three Health Sciences majors submitted a collective comment.

The majority of the comments from industry were requests to revise regulatory text for clarification and consistency. An individual also described the need to make clear distinctions and utilize consistent terminology. Another individual supported the economic cost savings, but requested further information on new airplane designs. The three Health Sciences majors opposed the proposed regulation because they stated that the health risks of flying into high elevation airports outweigh the economic benefits. Another commenter recommended not approving high elevation operations and proposed the removal of airports located at elevations greater than 7,500 feet for safety and environmental reasons. A detailed discussion of the comments and resulting regulatory changes is provided in section III.

AIA/GAMA and Boeing suggested that the FAA develop and publish an Advisory Circular (AC) on high elevation airport operations to provide specific guidance on how to design cabin pressurization systems to minimize the amount of time that passenger cabin occupants are exposed to higher cabin pressure altitudes, to reduce the risk of hypoxia. The FAA is providing additional discussion of this topic in this final rule and does not consider it necessary to publish separate guidance.

The FAA has made changes to this final rule in response to comments made by the public. Some of the changes are to terminology to improve clarity, while other changes are in response to technical comments related to design of cabin pressurization systems. Summaries of the comments and the FAA's responses are grouped by category in the following subsections.

Six commenters recommended that the FAA use the term “cabin pressure altitude” in the regulatory language and preamble, in lieu of the term “cabin pressure” as used in the NPRM including proposed changes to § 25.841. “Cabin pressure” is a measurement of pressure, typically pounds per square inch, while “cabin pressure altitude” is an equivalent measurement expressed in height above sea level, typically feet. The FAA agrees that the suggested change would promote clarity and consistency, and in this final rule uses “cabin pressure altitude” instead of “cabin pressure” when referring to the condition in the airplane cabin.

Section 25.841(a) limits the cabin pressure altitude to not more than 8,000 feet at the maximum operating altitude of the airplane under normal operating conditions. In the NPRM, the FAA proposed revising § 25.841(a) to remove the phrase “at the maximum operating altitude of the airplane.” As discussed in the NPRM, the FAA did not intend § 25.841(a) to imply that the cabin pressure altitude could exceed 8,000 feet under normal operating conditions provided the airplane was below the maximum operating altitude.

In response to the NPRM, TCCA asked if the FAA would update any advisory materials to clarify the intent of the term “under normal operating conditions.” The FAA does not intend to update or add any advisory materials for this rulemaking and notes that the term “normal operating conditions” currently in § 25.841(a) is not being changed by this rule. As the term relates to § 25.841(a), the FAA considers normal operating conditions to mean that the cabin pressurization system is operating normally, rather than under some alternative mode due to system failure. The FAA considers operating at the maximum operating altitude of the airplane a normal operating condition. In the context of this rulemaking, the FAA also considers operations into or out of a high elevation airport a normal operating condition.

In the NPRM, the FAA proposed changes to § 25.841(a) related to operations at airports with elevations exceeding 8,000 feet. When issuing the NPRM, the FAA did not consider airports that may be planned or under construction which would exceed an elevation of 15,000 feet. AIA/GAMA and Boeing requested that the FAA add an exception to § 25.841(a) to account for probable pressurization failures that could occur while operating at airports with elevations exceeding 15,000 feet. When operating at such airports, a probable pressurization system failure could occur while the cabin pressure altitude is above 15,000 feet, and the airplane pressurization system would not comply with current § 25.841(a). The commenters suggested that the FAA should also consider the effects of probable failures of a cabin pressurization system during operations into or out of airports with elevations that exceed 15,000 feet.

The FAA agrees with the commenters. Under normal operating conditions into or out of airports with elevations near 15,000 feet, the cabin pressure altitude is likely to be near or above 15,000 feet for short durations. The FAA still considers any probable failure of the cabin pressurization system during this timeframe to be a system failure, even if the airplane's cabin pressure altitude is already above 15,000 feet due to operation at the airport. The closer the airplane is to the airport, the closer the cabin pressure altitude will be to the airport pressure altitude. If the cabin pressure altitude were already above 13,000 feet while the airplane is near the high elevation airport, a probable cabin pressurization failure would not result in significant changes in cabin pressure altitude that would increase passenger risk of hypoxia. The FAA is therefore adding in this final rule an exception to § 25.841(a)(1) to allow certification of systems despite probable cabin pressurization system failures  4 resulting in cabin pressure altitudes which exceed 15,000 feet. In the event of such failures, new § 25.841(c)(1) specifies that the cabin pressure altitude cannot exceed either 15,000 feet or 2,000 feet above the airport elevation, whichever is higher. These exceptions accommodate operations into or out of airports with elevations near 15,000 feet.

In the NPRM, the FAA proposed new § 25.841(c)(1) to allow cabin pressure altitude during operations at high elevation airports to be equal to or less than the airport elevation provided the airplane is at or below 25,000 feet.

AIA/GAMA, Boeing, Bombardier, and TCCA suggested removing the proposed restriction of this allowance to altitudes at or below 25,000 feet, due to concerns over passenger discomfort that may result from the rapid changes in cabin pressure altitude that might occur with systems designed to meet this restriction. They noted that the restriction would limit design options and could inadvertently result in designs that employ rapid increases in cabin pressure altitude in excess of those typically necessary to accommodate operations into high elevation airports.

The commenters cited a scenario that assumed an average airplane descent rate of 2,500 ft/min, which results in a descent time of approximately four minutes from 25,000 feet to an airport with an elevation of 15,000 feet. Assuming an initial cabin pressure altitude of 8,000 feet when the airplane descends through 25,000 feet, the pressurization systems would begin commanding the cabin pressure altitude to increase to reach the airport elevation of 15,000 feet in this timeframe. This results in a cabin pressure altitude ascent rate in excess of 1,000 ft/min. A similar cabin pressure altitude descent rate would be required during the climb phase after takeoff from a 15,000-foot elevation airport.

While this rate of cabin pressure altitude change would meet the FAA's objective to minimize the time the cabin pressure altitude is above 8,000 feet, the FAA acknowledges that rapid changes in pressure could cause passenger discomfort, and injury to the eardrum, if the pressure difference between the middle and outer ear continues to rapidly increase. As discussed by the commenters, typical operations utilize a change in cabin pressure altitude on average around 500 ft/min. Although using a slower airplane descent or ascent rate may be a viable option for some high elevation airport operations, it is not always possible at some high elevation airports due to surrounding terrain, and may cause issues for air traffic control and flight planning.

For these reasons, the FAA agrees with the commenters, and in this final rule has revised proposed § 25.841(c)(1) to eliminate the restriction that the cabin pressure altitude may only be above 8,000 feet while the airplane is at or below 25,000 feet, when undertaking operations at high elevation airports. This decision is consistent with ELOS determinations made by the FAA in which the proposed design required the flightcrew to configure the cabin pressurization system for high elevation airport operations while the airplane was at the top of descent, rather than at or below 25,000 feet.

Conversely, three Health Sciences majors collectively expressed concern with increased health risks to passengers at cabin pressure altitudes above 8,000 feet. Another individual recommended not approving high elevation airport operations, and removal of airports over 7,500 feet for safety and to “reduce development in these fragile zones.” The group of three individuals suggested that the potential health risks outweigh the economic benefits to the airline industry from the proposed regulations. They noted that the flying public might not be aware of potential health issues associated with low cabin air pressure, and under this new rule may be less able to make fully informed choices about the potential risks posed to them by flying. They filed information concerning the health risks of high cabin pressure altitudes and the effects of hypoxia on primarily elderly and infants.

The FAA acknowledges the possibility of increased health risks to some passengers exposed to cabin pressure altitudes above 8,000 feet for extended periods of time. However, this rulemaking is only applicable to airplane designs and systems seeking approval for operations at high elevation airports, not all airplane designs. For some passengers, there may be increased health risks with flight in general because their blood oxygen saturation may reach levels considered hypoxic during exposure to typical cabin pressure altitudes experienced during flight. The FAA has sponsored research on this subject  5 to enhance the awareness of the public and medical communities of these risks. The FAA expects that passengers travelling to high elevation airports do so intentionally and accept the potential health risks of visiting or living at high altitude. Areas surrounding these high elevation airports are sufficiently inhabited that the need for airplane service has arisen. High elevation airports allow transportation to areas that may otherwise be difficult to reach. Air travel to these areas allows for easier transportation of not only people, but also supplies such as medical equipment and other cargo.

Since travel to these areas is necessary, the FAA is adopting, as proposed, the condition in § 25.841(c)(2) that the system minimize the time that the cabin pressure altitude is above 8,000 feet. The FAA expects that the cabin pressurization system design will automatically control the cabin pressure altitude once descent into the high elevation airport is initiated, to ensure that the cabin pressure altitude is equal to the pressure altitude at the airport when the airplane lands. As such, the FAA expects the cabin pressure altitude to be above 8,000 feet for no more than 15 to 20 minutes during most high elevation airport operations. For example, assuming a constant airplane descent rate of 2,500 ft/min, a descent from 40,000 feet to an airport elevation of 15,000 feet would take approximately 10 minutes. Assuming a constant change in cabin pressure altitude of 500 ft/min, a change in cabin pressure altitude from 8,000 feet to 15,000 feet would take approximately 14 minutes. The FAA recognizes that many variables are associated with flights into or out of specific high elevation airports, so descent rates and cabin pressure altitude changes will vary. However, in accordance with § 25.841(c)(2), the design must minimize the time that the cabin pressure altitude may be above 8,000 feet during high elevation airport operations. The FAA's intent is that manufacturers optimize the airplane flight manual procedures and cabin pressurization system to minimize the time that the cabin pressure altitude is above 8,000 feet to safely support high elevation airport operations.

Section 25.841(b)(6) requires a warning indication at the pilot or flight engineer station to indicate when the safe or preset pressure differential and cabin pressure altitude limits are exceeded. The FAA did not propose any changes to this section, but TCCA recommended clarifying it by replacing “warning indication at the pilot or flight engineer station” with “warning indication at the flightcrew station.” The purpose of that requirement is to provide warning to the flightcrew at the appropriate time, not to prescribe a location within the flight deck to receive such a warning. Therefore in this final rule the FAA has revised § 25.841(b)(6) to require a warning indication for the flightcrew when the safe or preset pressure differential or cabin pressure altitude limit is exceeded.

The NPRM proposed adding new § 25.841(d) as an exception to § 25.841(b)(6) to allow for changes to the threshold for activation of the cabin pressure high altitude warning alert from 10,000 feet, so that it is provided at either 15,000 feet or 2,000 feet above the airport elevation, whichever is greater, when the airplane is operating at a high elevation airport and at or below 25,000 feet. Because of multiple comments, the FAA has revised the structure of § 25.841(d) from what was proposed in the NPRM. The FAA revised the introductory paragraph of § 25.841(d), as detailed below, to accommodate the varied nature of the designs of cabin pressure altitude warning systems. The NPRM proposed in § 25.841(d)(1), that if the threshold for activation of the cabin pressure high altitude warning is shifted above 10,000 feet, an alert is provided to the flightcrew. This final rule moved the requirement to § 25.841(d)(2) and, as explained in more detail below, revised it to refer to an indication rather than an alert. In this context, the cabin pressure high altitude warning alert is referring to the system that provides warning to the flight crew that the safe or pre-set cabin pressure altitude has been exceeded. Section 25.841(d)(2) in this final rule requires that indication is provided to the flight crew when the cabin pressure high altitude warning alert is shifted above 10,000 feet.

The FAA received multiple requests that the FAA not adopt the proposed condition that the activation altitude for the cabin pressure high altitude warning alert could only be raised above 10,000 feet once the airplane was at or below 25,000 feet. In response, the FAA has revised § 25.841(d)(1) to include the following alternative conditions for when the activation altitude for the cabin pressure high altitude warning alert can be raised.

As previously discussed, the NPRM proposed adding new § 25.841(d) as an exception to § 25.841(b)(6). This would have allowed for adjustment to the cabin pressure high altitude warning alert to be provided at 15,000 feet, or 2,000 feet above the airport elevation, whichever is greater, when the airplane is operating into or out of a high elevation airport and at or below 25,000 feet. AIA/GAMA, Boeing, and TCCA requested that the FAA clarify § 25.841(d) to explain that the cabin pressure high altitude warning alert should be provided at cabin pressure altitudes “up to” 15,000 feet or 2,000 feet above the airport elevation. The exception proposed in the NPRM would have allowed for certification of a system that raised the activation threshold for the cabin pressure high altitude warning alert from the 10,000 feet in the current rule, to 15,000 feet. However, that proposal would not have accommodated designs where the cabin pressure high altitude warning alert could vary as a function of airport elevation and activate at some point between 10,000 and 15,000 feet. As described by the commenters, some cabin pressure high altitude warning systems are a function of the pressure altitude data entered into the flight computer and not an analog pressure switch. For these types of systems, the cabin pressure high altitude warning system may have a unique setting that varies as a function of pressure altitude rather than a simple step up from 10,000 feet to 15,000 feet. The FAA does not intend for applicants to change the cabin pressure high altitude warning system unless it is necessary to prevent nuisance warnings during operations into or out of high elevation airports. As a result, in this final rule § 25.841(d) allows the cabin pressure high altitude warning alert to be triggered at elevations “up to” 15,000 feet or 2,000 feet above the airplane's maximum takeoff and landing altitude, whichever is greater, when operating into or out of a high elevation airport.

AIA/GAMA and Boeing also requested that the FAA revise § 25.841(d) to allow the cabin pressure high altitude warning alert to activate at up to 15,000 feet or within 2,000 feet of the airplane's maximum takeoff and landing altitude during high elevation airport operations, rather than 2,000 feet above the airport elevation. For example, high elevation airports in Tibet have a maximum pressure altitude of approximately 15,400 feet; therefore, an airplane operating into this area would need to have a cabin pressure high altitude warning alert activated before the cabin pressure altitude reaches 17,400 feet to avoid a nuisance warning. If the same airplane were used for operations into an airport with an elevation of 14,000 feet, the cabin pressure high altitude warning alert would need to be provided before the cabin pressure altitude reached 16,000 feet. As such, the rule proposed in the NPRM would require either a system specifically designed for each airport, or a system that could change the cabin pressure high altitude warning alert as a function of the pressure altitude at the airport. The commenters also noted that there is still a large portion of the airplane fleet which utilizes an analog pressure switch to activate the cabin pressure altitude warning alert, and therefore implementing a variable system is either not possible or would be extremely costly to implement for derivative airplane models.

The FAA agrees with the commenters and revised § 25.841(d) to state that when operating into or out of airports with elevations exceeding 8,000 feet, the cabin pressure altitude warning alert may be provided up to 15,000 feet, or 2,000 feet above the airplane's maximum takeoff and landing altitude, whichever is greater. For reference, the maximum takeoff and landing altitude is defined in the applicable flight manual as an operational limitation of the airplane. This change to the final rule will accommodate various designs of the cabin pressure altitude warning system and prevent unnecessary warning alerts while still including provisions intended to maintain an acceptable level of safety during operations into and out of high altitude airports. The provision in § 25.841(d)(1) is intended to minimize the time that the cabin pressure altitude is above 8,000 feet as well as minimize the time that the cabin altitude warning alert for the flight crew is shifted above 10,000 feet. Section 25.841(d)(2) requires indication to the flight crew that the altitude for the cabin pressure altitude warning system alert has been changed for high altitude operations. Section 25.841(d)(3) requires one of two different methods intended to protect the flight crew from the effects of hypoxia during high altitude airport operations. The first option requires an additional alert to notify the flight crew when to don oxygen in accordance with their applicable operating regulations. Such a system, if installed, provides the same intended function as the cabin altitude warning alert. The second option is to have approved procedures in the airplane flight manual that would require at least one pilot to don oxygen when the cabin pressure altitude warning alert is shifted for high altitude operations. Such provisions are consistent with previously issued ELOS determinations depending on the specific aircraft design that was being considered.

As previously discussed, the FAA is not adopting the condition, originally proposed for § 25.841(c)(1), that the cabin pressure altitude of the airplane may only be above 8,000 feet during operations into or out of high elevation airports while the airplane is at or below 25,000 feet. In the NPRM, the FAA also proposed § 25.841(d), which would have allowed the cabin pressure high altitude warning alert to be activated at cabin pressure altitudes above 10,000 feet during high elevation airport operations provided the airplane was at or below 25,000 feet. AIA/GAMA, Boeing, and TCCA suggested raising or eliminating the 25,000 foot operating condition on the increased activation altitude for the cabin pressure high altitude warning alert when the cabin pressurization system is configured either automatically or by the flightcrew for high elevation airport operations, to avoid potential nuisance alerts during descent. The FAA agrees with the commenters. When the cabin pressurization system is configured for high elevation airport operations, either manually by the flightcrew or automatically as dictated by the design, during descent the cabin pressure altitude may reach 10,000 feet before the airplane passes 25,000 feet. Such a condition may unnecessarily activate the cabin pressure high altitude warning alert certified to existing regulations. In this final rule, the FAA has therefore revised § 25.841(d) to remove the condition that the activation altitude for the cabin pressure high altitude warning alert could only exceed 10,000 feet while the airplane was at or below 25,000 feet.

In addition, in this final rule, the FAA adds § 25.841(d)(1) to require that during landing, the activation altitude for the cabin pressure high altitude warning alert may not be changed to exceed 10,000 feet before the start of descent into the high elevation airport. Following takeoff from a high elevation airport, the cabin pressure altitude warning must be reset to 10,000 feet, either automatically or manually by the flightcrew, before beginning cruise operation. Both requirements ensure that the cabin pressure high altitude warning alert remains at 10,000 feet during cruise while allowing operational flexibility during climb out of and descent into high elevation airports. This is consistent with ELOS determinations that the FAA has made, approving systems for which the cabin pressure high altitude warning alert is changed to exceed 10,000 feet for high elevation airport operations once the aircraft enters descent, rather than below 25,000 feet.

AIA/GAMA and Boeing also requested that the FAA revise the condition requiring a flightcrew alert that the activation altitude for the cabin pressure high altitude warning has shifted to above 10,000 feet in proposed § 25.841(d)(1) to refer to an “indication” system instead of an “alert” system. As described in the preamble for § 25.1322, amendment 25-131 (75 FR 67209, November 2, 2010) (§ 25.1322), the word “alert” describes a flight deck indication meant to attract the attention of the flightcrew and identify a non-normal operational or airplane system condition. For high elevation airport operations, the alert originally proposed in § 25.841(d)(1) was for a normal operating condition, not for a non-normal condition. Thus, requiring that an alert be provided for a normal operating condition is not appropriate.

The FAA agrees with the commenters, and this final rule revises § 25.841(d) to refer to an indication system rather than an alert system. Revised § 25.841(d)(2) requires an indication to be provided to the flightcrew that the activation altitude for the cabin pressure high altitude warning alert has shifted above 10,000 feet cabin pressure altitude. The FAA considers the required indication to be in support of normal operations and flightcrew action may not necessarily be required. However, depending on which certification method in § 25.841(d)(3) the applicant follows, flight procedures may still require the pilot to don oxygen when the indication denotes that the cabin pressure high altitude warning has shifted above 10,000 feet cabin pressure altitude.

In the NPRM, the FAA proposed that § 25.841(d)(2) require that if the system shifts the cabin pressure high altitude warning above 10,000 feet automatically, it must also alert the flightcrew to take action should the automatic shift function fail. AIA/GAMA, Boeing, and Bombardier suggested removal of this additional alert. The commenters suggested that such an alert is unnecessary and the need to provide crew alerts is already addressed through compliance with §§ 25.1309(c) and 25.1322.

The FAA agrees with the commenters. For any system that an applicant proposes to reconfigure for high elevation airport operations, § 25.1309 would be applicable and require the applicant to conduct a hazard analysis that includes system failure. The FAA is not adopting the proposal that § 25.841(d)(2) require an additional alert to the flightcrew. An additional alert may or may not be necessary depending on the hazard analysis that must still be conducted in accordance with § 25.1309.

The NPRM proposed adding § 25.1447(c)(5) as an exception to § 25.1447(c)(1) to allow approval of passenger cabin oxygen dispensing units that are automatically presented at 15,000 feet or within 2,000 feet of the airport elevation, whichever is higher, provided the airplane is being operated at altitudes at or below 25,000 feet. This change was meant to relieve applicants and the FAA from the burden of preparing and processing exemptions from the passenger oxygen mask automatic presentation altitude requirement in § 25.1447(c)(1). During operations into some high elevation airports, increasing the cabin pressure altitude at which passenger cabin oxygen dispensing units are automatically presented is required in order to avoid unnecessary presentations.

AIA/GAMA and Boeing requested that new § 25.1447(c)(5) allow automatic oxygen mask presentations at up to 15,000 feet or within 2,000 feet of the airplane's maximum takeoff and landing altitude, rather than within 2,000 feet of the airport elevation. They noted that many in-production airplanes, which an applicant may seek to certify for operation at high elevation airports, utilize an analog pressure switch to automatically deploy the oxygen masks. Implementing a variable system is either not possible or would be extremely costly to implement on airplanes with this type of design, according to the commenters. AIA/GAMA, Boeing, and Bombardier commented that the proposed rule would have required either an automatic oxygen mask presentation system unique for each airport, or a system that would automatically change the oxygen mask presentation altitude as a function of the airport elevation. In addition, landing at a high elevation airport, which is below the airplane's maximum certified takeoff and landing altitude, will have a negligible difference between when masks might be automatically presented due to a sudden loss of cabin pressure, and when the airplane lands. The FAA agrees with the commenters, and § 25.1447(c)(5) allows automatic oxygen mask presentations at up to 15,000 feet or within 2,000 feet of the airplane's maximum takeoff and landing altitude, to accommodate the variation in design and potential unnecessary presentation of the oxygen masks.

In addition, AIA/GAMA and Boeing suggested that the FAA not adopt the requirement proposed in the NPRM that the passenger oxygen mask presentation altitude could only be reset during high elevation operations when the airplane is below 25,000 feet. As discussed by the commenters, not allowing the flightcrew to reset the oxygen mask presentation altitude until the airplane is below 25,000 feet creates additional crew workload, which could be avoided if the airplane is allowed to be configured at the top of descent. Reduction in crew workload during the critical descent phase allows the crew to focus on other tasks. The FAA agrees with the commenters and § 25.1447(c)(5) omits the condition proposed in the NPRM that the oxygen mask presentation altitude only be revised when the airplane is at or below 25,000 feet.

In the discussion of § 25.1447(c)(5) in the NPRM, the FAA proposed raising the automatic presentation altitude for passenger oxygen masks during operations into all airports above 8,000 feet. However, the intent of this rulemaking, in part, is to eliminate the need for processing exemptions to § 25.1447(c)(1) to avoid nuisance oxygen mask presentations while operating at airports with elevations that would otherwise cause oxygen mask presentations. When operating into airports with elevations at or below 13,000 feet, the automatic presentation altitude for the oxygen masks could still be below 15,000 feet, the required presentation altitude in § 25.1447(c)(1), and avoid inadvertent oxygen mask presentations. As a result, the FAA has not granted exemptions to the automatic oxygen mask presentation requirements in § 25.1447(c)(1) for airplanes proposed to be approved for operations at airports with elevations at or below 13,000 feet. As a result of all related comments, § 25.1447(c)(5), as adopted in this final rule, states that when operating into or out of airports with elevations above 13,000 feet, the dispensing units providing the required oxygen flow must be automatically presented to the occupants within 2,000 feet of the airplane's maximum takeoff and landing altitude.

In addition, an individual commenter described various operational considerations that should be made by operators when operating into high elevation airports, such as the potential need to provide oxygen to passengers that may need it while the airplane is on the ground or when cabin pressure altitudes are above 8,000 feet. The FAA agrees that there are many operational issues to consider when operating into and out of high elevation airports. However, this rulemaking is limited to approval of new airplane type designs with cabin pressurization systems and oxygen systems intended for operations into and out of high elevation airports. Operational considerations are outside the scope of this rulemaking activity.

The FAA also received comments to revise specific preamble text of the NPRM. The specific preamble text from the NPRM is not restated in this final rule, so specific editorial suggestions to the preamble text of the NPRM are not applicable. No changes were made to this final rule in this regard.

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), direct that each Federal agency shall adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $177 million using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, FAA has determined that this final rule (1) has benefits that justify its costs; (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended; (3) will not have a significant economic impact on a substantial number of small entities; (4) will not create unnecessary obstacles to the foreign commerce of the United States; and (5) will not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified previously. These analyses are summarized below.

Currently, the FAA processes ELOS memorandums to document ELOS findings when an airplane manufacturer or modifier requests certification of airplane cabin pressurization systems used for operations into or out of airports with elevations at or above 8,000 feet. The FAA also processes exemptions to the automatic oxygen mask presentation requirements for operations into or out of airports with elevations at or above 13,000 feet. The final rule will eliminate the need to continue performing the administrative tasks and analyses associated with the processing of an ELOS or exemption to accommodate operations at high elevation airports for transport category airplanes without compromising safety.

This final rule will result in small quantifiable cost savings. The FAA issues on average four ELOS findings and two exemptions per year related to high elevation airports, devoting between 20 to 100 engineering hours for each ELOS or exemption processed. The FAA estimates industry organizations seeking certification expend the same range of engineering hours for each ELOS and exemption processed. Using the loaded wage rate of $83.86 for aerospace engineer, 6 the FAA estimates the total annual cost savings of this final rule could range from $20,126 to $100,632 for both industry and FAA.

As a result, this rulemaking will reduce the cost of airplane certification without reducing the current level of safety. The expected outcome will be a minimal economic impact resulting in a small regulatory burden relief. The FAA requested comments with supporting justification about the FAA determination of minimal economic impact. No such comments were received. Therefore, the FAA has determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, as amended, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide range of small entities, including small businesses, and not-for-profit organizations.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The final rule relieves the industry from requesting that the FAA make a determination that an ELOS exists for certification of airplane cabin pressurization systems used for operations into or out of airports with elevations at or above 8,000 feet above sea level. This final rule also relieves industry from petitioning for exemptions to the automatic oxygen mask presentation requirements for operations into and out of airports with elevations above 13,000 feet above sea level. This expected outcome will be a minimal economic impact with small burden relief and savings for any small entity affected by this rulemaking action.

If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this final rulemaking will not result in a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation. Therefore, the final rule is in compliance with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $177 million using the most current (2022) Implicit Price Deflator for the Gross Domestic Product. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. The FAA has determined that there is no new requirement for information collection associated with this final rule.

(1) In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA's policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has found no differences with these final regulations.

(2) European Union Aviation Safety Agency (EASA) certification requirements related to oxygen dispensing units in CS 25.1447(c)(1) are similar to those in § 25.1447(c)(1). In amendment 18 of Certification Specifications and Acceptable Means of Compliance for Large Aeroplanes, CS-25, 7 the EASA describes an acceptable means of compliance (AMC) in AMC 25.1447(c)(1). Specifically, AMC 25.1447(c)(1) states: “The design of the automatic presentation system should take into account that when the landing field altitude is less than 610 m (2,000 feet) below the normal preset automatic presentation altitude, the automatic presentation altitude may be reset to landing field altitude plus 610 m (2,000 feet).” Thus, the FAA's change to § 25.1447 is consistent with guidance provided by EASA.

(3) EASA has not published advisory material to accommodate operations into or out of high elevation airports in consideration of the cabin pressure altitude and warning requirements in CS 25.841.

FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 of Order 1050.1F and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, “Federalism.” The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 8 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 9 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this proposed rule.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the Executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will not effect on international regulatory cooperation.

An electronic copy of a rulemaking document may be obtained by using the internet—

1. Search the Federal eRulemaking Portal ( www.regulations.gov );

2. Visit the FAA's Regulations and Policies web page at www.faa.gov/regulations_policies/; or

3. Access the Government Printing Office's web page at www.GovInfo.gov.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to https://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's 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.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document, may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 25 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Artesia Municipal Airport, Artesia, NM, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-0614 in the Federal Register (88 FR 21138; April 10, 2023) proposing to amend the Class E airspace at Artesia, NM. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile (decreased from a 7-mile) radius of Artesia Municipal Airport, Artesia, NM; removes all extensions as they are no longer required; and updates the geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E surface airspace, the Class E airspace designated as an extension to a Class C surface area, and the Class E airspace extending upward from 700 feet above the surface, and establishes Class E airspace designated as an extension to a Class E surface area at Dane County Regional Airport/Truax Field, Madison, WI, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-0914 in the Federal Register (88 FR 22931; April 14, 2023) proposing to amend the Class E airspace at Madison Dane County Regional Airport-Truax Field, WI, and establish Class E airspace at Madison, WI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in paragraphs 6002, 6003, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71:

Modifies the Class E surface area at Dane County Regional Airport/Truax Field, Madison, WI, by removing all of the extensions contained within the airspace legal descriptions as they will be incorporated into new Class E airspace designated as an extension to a Class E surface area to comply with FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; replaces the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”; modifies the header from “Madison Dane County Regional Airport-Truax Field, WI” to “Madison, WI” to comply with changes to FAA Order JO 7400.2N; and updates the name of Dane County Regional Airport/Truax Field (previously Dane County Regional Airport-Truax Field) and the geographic coordinates of Dane County Regional Airport/Truax Field and Waunakee Airport, Waunakee, WI, to coincide with the FAA's aeronautical database;

Modifies the Class E airspace designated as an extension to a Class C surface area at Dane County Regional Airport/Truax Field by removing the extension north of the airport as it is no longer required; modifies the extension southeast of the airport to within 2.4 miles each side of the Madison VORTAC 130° radial (previously 134° bearing from the Dane County Regional Airport-Truax Field) extending from the 5-mile radius of Dane County Regional Airport/Truax Field to 7 miles southeast of the Madison VORTAC (previously Dane County Regional Airport-Truax Field); modifies the extension northwest of the airport to within 2.4 miles each side of the Madison VORTAC 319° radial (previously 358° bearing from the Dane County Regional Airport-Truax Field) extending from the 5-mile radius of Dane County Regional Airport/Truax Field to 7 miles northwest of the Madison VORTAC (previously Dane County Regional Airport-Truax Field); replaces the outdated terms “Notice to Airmen” with “Notice to Air Missions” and “Airport/Facility Directory” with “Chart Supplement”; modifies the header from “Madison Dane County Regional Airport-Truax Field, WI” to “Madison, WI” to comply with changes to FAA Order JO 7400.2N; and updates the name of Dane County Regional Airport/Truax Field (previously Dane County Regional Airport-Truax Field) and the geographic coordinates of Dane County Regional Airport/Truax Field and Waunakee Airport, Waunakee, WI, to coincide with the FAA's aeronautical database;

Establishes Class E airspace designated as an extension to a Class E surface area at Dane County Regional Airport/Truax Field within 2.4 miles each side of the Madison VORTAC 130° radial extending from the 5-mile radius of Madison Dane County Regional Airport/Truax Field to 7 miles southeast of the Madison VORTAC; and within 2.4 miles each side of the Madison VORTAC 319° radial extending from the 5-mile radius of Madison Dane County Regional Airport/Truax Field to 7 miles northwest of the Madison VORTAC excluding that airspace within a 1.5-mile radius of Waunakee Airport;

And modifies the Class E airspace extending upward from 700 feet above the surface to within a 7.5-mile (decreased from an 8.8-mile) radius of Dane County Regional Airport/Truax Field; removes the extension south of the airport as it is no longer required; adds an extension within 2 miles each side of the 029° bearing from the airport extending from the 7.5-mile radius to 13.7 miles north of the airport; adds an extension within 1 mile each side of the 316° bearing from the airport extending from the 7.5-mile radius to 11 miles northwest of the airport; and updates the names and geographic coordinates of Dane County Regional Airport/Truax Field (previously Dane County Regional Airport-Truax Field) and Middleton Municipal Airport/Morey Field (previously Morey Airport), Middleton, WI, to coincide with the FAA's aeronautical database; and removes the cities associated with the airports in the header to comply with changes to FAA Order JO 7400.2N.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it removes Class E airspace in A.P. Hill, VA, as all instrument approaches have been canceled for A.P. Hill AAF.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-0854 in the Federal Register (88 FR 21127; April 10, 2023), proposing to remove Class E airspace extending upward from 700 feet above the surface for A.P. Hill AAF, A.P. Hill, VA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 annually. This document amends the current version of that order, FAA Order JO 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next FAA Order JO 7400.11 update.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by removing Class E airspace extending upward from 700 feet above the surface for A.P. Hill AAF, A.P. Hill, VA, as instrument approaches no longer exist for this airport.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends the Class E airspace extending upward from 700 feet above the surface at Panola County Airport-Sharpe Field, Carthage, TX, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-0333 in the Federal Register (88 FR 21144; April 10, 2023) proposing to amend the Class E airspace at Carthage, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication, the FAA discovered that the geographic coordinates had been incorrectly published. This correction is administrative and does not impact the airspace as proposed.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.7-mile (decreased from a 7-mile) radius of Panola County Airport-Sharpe Field, Carthage, TX; removes the city associated with the airport in the airspace legal description to comply with changes to FAA Order JO 7400.2N, Procedures for Handling Airspace Matters; and updates the name (previously Panola County-Sharpe Field) and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class E airspace in Elberton, GA, to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-0720 in the Federal Register (88 FR 21134; April 10, 2023), proposing to amend Class E airspace for Elbert County-Patz Field Airport, Elberton, GA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Subsequent to publication, the FAA found that the city name was inadvertently included in the second line of the airspace description. This action removes the city name, leaving only Elbert County-Patz Field Airport, GA.

Class E airspace designations are published in Paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class E airspace extending upward from 700 feet above the surface for Elbert County-Patz Field Airport, Elberton, GA, to accommodate area navigation (RNAV) global positioning system (GPS) standard instrument approach procedures (SIAPs) serving this airport. The existing radius is increased to 8 miles (previously 6.3-miles). This action also updates the airport's geographic coordinates to coincide with FAA's database. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

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

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at H.A. Clark Memorial Field, Williams, AZ, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2022-1444 in the Federal Register (87 FR 74048; December 2, 2022) proposing to establish Class E airspace at Williams, AZ. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received.

Mr. Wally Roberts commented that he believes the proposed Class E airspace to be excessive when compared to other Class E airspace in the area, which are usually a five to seven mile radius similar to Valle Airport north of Clark Memorial Field. The following response is provided.

FAA Order JO 7400.2N, Procedures for Handling Airspace Matters, requires that rising terrain be taken into consideration when evaluating airspace requirements. Clark Memorial Field is surrounded by rising terrain ( e.g., the peaks at 7,644 feet to the south; 7,725 feet to the north; 9,256 to the south; and 9,389 to the northeast) that must be taken into consideration and additional transitional airspace provided to allow aircraft climb above the terrain while remaining in the transitional airspace. Accordingly, the FAA proposed a radius for Clark Memorial Field that is larger than other airports that do not have significant rising terrain, including Valle Airport.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 20-mile radius of H.A. Clark Memorial Field, Williams, AZ.

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class E airspace extending upward from 700 feet above the surface at Goliad NOLF, Berclair, TX, to support instrument flight rule operations at this airport.

The FAA published an NPRM for Docket No. FAA-2023-0947 in the Federal Register (88 FR 22933; April 14, 2023) proposing to establish Class E airspace at Berclair, TX. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received supporting the proposal. No response is provided.

Class E airspace designations are published in paragraph 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 establishes Class E airspace extending upward from 700 feet above the surface within a 7-mile radius of Goliad NOLF, Berclair, TX.

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

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

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

PBGC's regulation on Allocation of Assets in Single-Employer Plans (29 CFR part 4044) prescribes actuarial assumptions—including interest assumptions—for valuing benefits under terminating single-employer plans covered by title IV of the Employee Retirement Income Security Act of 1974 (ERISA). The interest assumptions in the regulation are also published on PBGC's website ( https://www.pbgc.gov ).

PBGC uses the interest assumptions in appendix B to part 4044 (“Interest Rates Used to Value Benefits”) to determine the present value of annuities in an involuntary or distress termination of a single-employer plan under the asset allocation regulation. The assumptions are also used to determine the value of multiemployer plan benefits and certain assets when a plan terminates by mass withdrawal in accordance with PBGC's regulation on Duties of Plan Sponsor Following Mass Withdrawal (29 CFR part 4281).

The third quarter 2023 interest assumptions will be 5.24 percent for the first 20 years following the valuation date and 4.58 percent thereafter. In comparison with the interest assumptions in effect for the second quarter of 2023, these interest assumptions represent no change in the select period (the period during which the select rate (the initial rate) applies), a decrease of 0.14 percent in the select rate, and a decrease of 0.51 percent in the ultimate rate (the final rate).

PBGC has determined that notice of, and public comment on, this rule are impracticable, unnecessary, and contrary to the public interest. PBGC routinely updates the interest assumptions in appendix B of the asset allocation regulation each quarter so that they are available to value benefits. Accordingly, PBGC finds that the public interest is best served by issuing this rule expeditiously, without an opportunity for notice and comment, and that good cause exists for making the assumptions set forth in this amendment effective less than 30 days after publication to allow the use of the proper assumptions to estimate the value of plan benefits for plans with valuation dates early in the third quarter of 2023.

PBGC has determined that this action is not a “significant regulatory action” under the criteria set forth in Executive Order 12866.

Because no general notice of proposed rulemaking is required for this amendment, the Regulatory Flexibility Act of 1980 does not apply. See 5 U.S.C. 601(2).

In consideration of the foregoing, 29 CFR part 4044 is amended as follows:

I. Table of Abbreviations CFR Code of Federal Regulations 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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because publishing an NPRM would be impractical due to the date the event is taking place. It is impracticable to publish an NPRM because we must establish this safety zone by June 23, 2023, and lacks sufficient time to provide a reasonable comment period and to consider those comments before issuing the rule.

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 impracticable and contrary to the public interest due to the date the event is taking place. Delaying the effective date of this rule would be impracticable and contrary to public interest because we must establish the safety zone by June 23, 2023, in order to protect personnel, vessels, and the marine environment from the potential safety hazards associated with the high speed power vessel racecourse event occurring on that date.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Upper Mississippi River (COTP) has determined that potential hazards associated with Great Lakes Watercross Race, on June 23, 2023, will be a safety concern for anyone within the marked area of the racecourse. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while the race is being conducted.

This rule establishes a safety zone from 7:30 a.m. through 6:30 p.m. each day on June 23 to June 25, 2023. The safety zone will cover all navigable waters within the Great Lakes Watercross Race, on the Upper Mississippi River, between Mile Markers 635 to 636 east of Island number one hundred seventy-two. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the race is conducted. No vessel or person will be permitted to transit the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the limited duration and narrowly tailored geographic areas of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimal impact. In addition, normal marine traffic will be minimally impacted as race official will be to pass traffic between races. The navigation channel west of Island number one hundred seventy-two will not be impacted by the safety zone and will remain open. The vessels desiring to transit through or around the temporary safety zone may do so upon express permission from the COTP or the COTP's designated representative.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting from 7:30 a.m. to 6:30 p.m. that will prohibit entry between Mile Markers 635-636 east of Island number one hundred seventy-two. 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:

This Notice of Enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). The Coast Guard will enforce a safety zone in 33 CFR 165.939 for the Cape Vincent French Festival Fireworks regulated area from 9:15 p.m. through 10:30 p.m. on July 8, 2023. This action is being taken to provide for the safety of life on navigable waterways during this event. Our regulation for marine events within the Ninth Coast Guard District, § 165.939, specifies the location of the regulated area for the French Festival Fireworks which encompasses portions of the St. Lawrence River. During the enforcement period as reflected in § 165.939, if you are the operator of a vessel in the regulated area you must comply with directions from the Coast Guard Safety Zone Coordinator or any Official Patrol displaying a Coast Guard ensign.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via the Broadcast Notice to Mariners.

Section 532(a) of the Uruguay Round Agreements Act (URAA) (Pub. L. 103-465, 108 Stat. 4809 (1994)) amended 35 U.S.C. 154 to provide that the term of a patent ends on the date that is 20 years from the filing date of the application, or the earliest filing date for which a benefit is claimed under 35 U.S.C. 120, 121, or 365(c). The URAA also contained provisions, codified at 35 U.S.C. 154(b), for patent term extension due to certain examination delays. Under the patent term extension provisions of 35 U.S.C. 154(b) as amended by the URAA, an applicant is entitled to patent term extension for delays due to interference (which has since been replaced by derivation proceedings), secrecy orders, or successful appellate review. See 35 U.S.C. 154(b) (1995). The Office implemented the patent term extension provisions of the URAA in a final rule published in April of 1995. See Changes To Implement 20-Year Patent Term and Provisional Applications, 60 FR 20195 (Apr. 25, 1995).

The American Inventors Protection Act of 1999 (AIPA) (Pub. L. 106-113, 113 Stat. 1501, 1501A-552 through 1501A-591 (1999)) further amended 35 U.S.C. 154(b) to include additional bases for patent term extension (which is characterized as “patent term adjustment” in the AIPA). Original utility and plant patents issuing from applications filed on or after May 29, 2000, may be eligible for patent term adjustment if issuance of the patent is delayed due to one or more of the enumerated administrative delays listed in 35 U.S.C. 154(b)(1). Specifically, under the patent term adjustment provisions of 35 U.S.C. 154(b) as amended by the AIPA, an applicant is entitled to patent term adjustment for the following reasons: (1) if the Office fails to take certain actions during the examination and issue process within specified time frames (35 U.S.C. 154(b)(1)(A)); (2) if the Office fails to issue a patent within three years of the actual filing date of the application (35 U.S.C. 154(b)(1)(B)); and (3) for delays due to interference (and now for delays due to derivation proceedings), secrecy orders, or successful appellate review (35 U.S.C. 154(b)(1)(C)). See 35 U.S.C. 154(b)(1). However, the AIPA sets forth a number of conditions and limitations on any patent term adjustment accrued under 35 U.S.C. 154(b)(1). Specifically, 35 U.S.C. 154(b)(2)(C) provides, in part, that “[t]he period of adjustment of the term of a patent under [35 U.S.C. 154(b)(1)] shall be reduced by a period equal to the period of time during which the applicant failed to engage in reasonable efforts to conclude prosecution of the application,” and that “[t]he Director shall prescribe regulations establishing the circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude processing or examination of an application” (35 U.S.C. 154(b)(2)(C)(i) and (iii)). The Office implemented the patent term adjustment provisions of 35 U.S.C. 154(b) as amended by the AIPA, including setting forth circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude processing or examination of an application, in a final rule published in September of 2000. See Changes To Implement Patent Term Adjustment Under Twenty-Year Patent Term, 65 FR 56365 (Sept. 18, 2000) (AIPA patent term adjustment final rule). The regulations establishing the circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude processing or examination of an application and the resulting reduction of any patent term adjustment are set forth in 37 CFR 1.704(c)(1) through (14).

This final rule revises the patent term adjustment regulations at 37 CFR 1.704 establishing the circumstances that constitute a failure of an applicant to engage in reasonable efforts to conclude the prosecution (processing or examination) of an application and any resulting reduction of patent term adjustment. These regulations include a “safe harbor” in 37 CFR 1.704(d), which provides that a paper containing only an information disclosure statement in compliance with 37 CFR 1.97 and 1.98 will not be considered a failure to engage in reasonable efforts to conclude the prosecution (processing or examination) of the application under 37 CFR 1.704(c)(6), (8), (9), or (10) if accompanied by the required statement. The “safe harbor” in 37 CFR 1.704(d) also provides that a request for continued examination, in compliance with 37 CFR 1.114, with no submission other than an information disclosure statement, in compliance with 37 CFR 1.97 and 1.98, will not be considered a failure to engage in reasonable efforts to conclude the prosecution (processing or examination) of the application under 37 CFR 1.704(c)(12) if accompanied by the required statement. The 37 CFR 1.704(d) “safe harbor” requires a statement that each item of information contained in the information disclosure statement: (1) was first cited in any communication from a patent office in a counterpart foreign or international application or from the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than 30 days prior to the filing of the information disclosure statement; or (2) is a communication that was issued by a patent office in a counterpart foreign or international application or by the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than 30 days prior to the filing of the information disclosure statement. 37 CFR 1.704(d)(1).

This final rule specifically revises 37 CFR 1.704(d) to include a new paragraph (d)(3) requiring applicants to submit the statement, under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), on Office form PTO/SB/133 using the appropriate document code (PTA.IDS). The Office makes the patent term adjustment determination indicated in the patent with a computer program that uses the information recorded in the Office's patent application data repository, except when an applicant requests reconsideration pursuant to 37 CFR 1.705. See AIPA patent term adjustment final rule, 65 FR at 56381. When an applicant uses the Office form and document code, the patent term adjustment computer program will be able to determine when the statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), has been filed in the application.

Applicants who submit their own statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), without using the Office form or the appropriate document code will need to request reconsideration of the patent term adjustment under 37 CFR 1.705(b) for the information disclosure statement to not be considered a failure to engage in reasonable efforts to conclude the prosecution (processing or examination) of the application. The Office conducts a manual redetermination of patent term adjustment in response to a request for reconsideration of the patent term adjustment. See Revisions To Implement the Patent Term Adjustment Provisions of the Leahy-Smith America Invents Act Technical Corrections Act, 79 FR 27755, 27757 (May 15, 2014). The redetermination of patent term adjustment will be based on the Office's manual review of the statement under 37 CFR 1.704(d)(1). A manual review of the statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), is necessary when an applicant does not use Office form PTO/SB/133.

The Office has reviewed a sampling of statements under 37 CFR 1.704(d)(1) that were independently submitted without the use of Office form PTO/SB/133 and has determined that a number of those statements were deficient for failing to meet the required language of 37 CFR 1.704(d)(1). Therefore, the Office has determined that there is a need for the reconsideration procedure where the Office form PTO/SB/133 is not used.

Form PTO/SB/133 includes the patent term adjustment statement required by 37 CFR 1.704(d)(1). Specifically, the form includes the statement that “[e]ach item of information contained in the information disclosure statement was first cited in any communication from a patent office in a counterpart foreign or international application or from the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than thirty days prior to the filing of the information disclosure statement.” The form also includes the alternative statement that “[e]ach item of information contained in the information disclosure statement is a communication that was issued by a patent office in a counterpart foreign or international application or by the Office, and this communication was not received by any individual designated in 37 CFR 1.56(c) more than thirty days prior to the filing of the information disclosure statement.” Either one or both of these statements may be selected on form PTO/SB/133.

The Office has also created a particular document code (PTA.IDS) for the filing of Office form PTO/SB/133 (statement under 37 CFR 1.704(d)(1)) to facilitate the accurate electronic capture of a statement under 37 CFR 1.704(d)(1) by the Office's patent application data repository when filed using Office form PTO/SB/133. Thus, the Office's patent term adjustment computer program now determines when the Office form PTO/SB/133 has been filed concurrently with ( i.e., on the same date as) the information disclosure statement based on the application data in the Office's Patent Application Locating and Monitoring (PALM) system and will take the statement under 37 CFR 1.704(d)(1) into account when calculating patent term adjustment. The document code (PTA.IDS) is included on Office form PTO/SB/133. While the Office encourages the filing of correspondence via the USPTO patent electronic filing system, the inclusion of this document code (PTA.IDS) on the form PTO/SB/133 satisfies the “using the appropriate document code (PTA.IDS)” requirement of 37 CFR 1.704(d)(3) for statements under 37 CFR 1.704(d)(1) not submitted via the USPTO patent electronic filing system.

Use of form PTO/SB/133 and its document code (PTA.IDS) aims to: (1) ensure the accurate capture by the Office's PALM system of the presence of a statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d); and (2) eliminate the need to manually review an applicant's statement under 37 CFR 1.704(d)(1) to determine whether it is proper under 37 CFR 1.704(d)(1). Furthermore, as a result of using form PTO/SB/133 and its document code (PTA.IDS), the Office's automated process for calculating patent term adjustment will be more likely to account for the statement under 37 CFR 1.704(d)(1), thereby reducing the situations in which a request for reconsideration of patent term adjustment under 37 CFR 1.705(b) is necessary. Form PTO/SB/133 is available at www.uspto.gov/sites/default/files/documents/sb0133.pdf. The Office of Management and Budget (OMB) has determined that, under 5 CFR 1320.3(h), form PTO/SB/133 does not collect “information” within the meaning of the Paperwork Reduction Act of 1995.

Applicants may no longer use the document code PTA.IDS, which is specific to Office form PTO/SB/133, for filing a statement under 37 CFR 1.704(d)(1) unless they are using Office form PTO/SB/133. Applicants filing a statement under 37 CFR 1.704(d)(1) without Office form PTO/SB/133 may only use the document code PTA.IDS for the submission of an information disclosure statement. The presentation to the Office (whether by signing, filing, submitting, or later advocating) of form PTO/SB/133, whether by a practitioner or non-practitioner, is a certification under 37 CFR 11.18(b) that the existing text and any certification statements on the form have not been altered. The use of the document code PTA.IDS specifically for form PTO/SB/133 is a representation that the applicant is filing form PTO/SB/133 with no alterations to the text of the form.

Applicants who submit a statement under 37 CFR 1.704(d)(1) in any manner other than on Office form PTO/SB/133 will be treated as not having submitted the statement, under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d). In addition, applicants who submit a statement under 37 CFR 1.704(d)(1) on Office form PTO/SB/133 with any modification to the statement under 37 CFR 1.704(d)(1) on the form (that is, modifications to either or both of the statements indicated on the form) will be treated as not having submitted the statement, under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d). Under such circumstances, applicants will need to request reconsideration of the patent term adjustment, under 37 CFR 1.705(b) for the paper or request for continued examination, to be treated as having been filed concurrently with the statement, under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d).

The submission of a statement under 37 CFR 1.704(d)(1) does not require a fee. However, in certain cases, a fee is required for the Office to consider a statement under 37 CFR 1.704(d)(1) in a patent term adjustment determination. Specifically, the Office has provided a procedure for applicants to seek a waiver under 37 CFR 1.183 to allow for a late-filed statement under 37 CFR 1.704(d)(1). A petition under 37 CFR 1.183 provides for suspension of rules and requires the fee under 37 CFR 1.17(f). If an applicant submits an information disclosure statement within the 30-day period set forth in 37 CFR 1.704(d)(1) but does not include a statement under 37 CFR 1.704(d)(1) with the information disclosure statement, the applicant should consider filing a request for reconsideration of the patent term adjustment indicated on the patent (37 CFR 1.705(b)), along with a statement under 37 CFR 1.704(d)(1) (if not previously filed) and petition under 37 CFR 1.183 requesting that the Office consider a statement under 37 CFR 1.704(d)(1) when making the patent term adjustment determination. However, the Office will reevaluate the practice of considering such petitions under 37 CFR 1.183 now that the patent term adjustment computer program has been updated to account for submission via Office form PTO/SB/133. The Office will provide notice prior to making any changes to this procedure.

Applicants should keep in mind that a petition under 37 CFR 1.183 may only be used to request acceptance of the late-filed statement under 37 CFR 1.704(d)(1). Under no circumstances will an information disclosure statement filed more than 30 days from the applicable communication under 37 CFR 1.704(d)(1)(i) or (ii) be treated as filed within the “safe harbor” of 37 CFR 1.704(d). In addition, the 30-day period in 37 CFR 1.704(d)(1) is not extendable (see 37 CFR 1.704(d)(2)).

The following is a discussion of the amendment to 37 CFR part 1 in this final rule.

Section 1.704: Section 1.704(d) as amended in this final rule includes a new § 1.704(d)(3) requiring that the statement under § 1.704(d)(1) be submitted on a form provided by the Office (PTO/SB/133) using the appropriate document code (PTA.IDS). New § 1.704(d)(3) also provides that if the statement under § 1.704(d)(1) is not submitted on a form provided by the Office (PTO/SB/133) using the appropriate document code (PTA.IDS), the paper or request for continued examination will be treated as not accompanied by a statement under § 1.704(d)(1), unless an application for patent term adjustment in compliance with § 1.705(b) is filed, establishing that the paper or request for continued examination was accompanied by a statement in compliance with § 1.704(d)(1). New § 1.704(d)(3) provides that: (1) no changes to statements on this Office form may be made; and (2) the presentation of this form to the Office, whether by signing, filing, submitting, or later advocating, and whether by a practitioner or non-practitioner, constitutes a certification under 37 CFR 11.18(b) that the existing text and any certification statements on this form have not been altered.

This final rule contains two changes from the proposed rule. First, the final rule replaces the proposed provision that a statement under § 1.704(d)(1) must be submitted on the Office form (PTO/SB/133) or the paper or request for continued examination will be treated as not accompanied by a statement under § 1.704(d)(1), with a new provision that a statement under § 1.704(d)(1) must be submitted on the Office form (PTO/SB/133) or the paper or request for continued examination will be treated as not accompanied by a statement under § 1.704(d)(1) unless an application for patent term adjustment (§ 1.705(b)) is filed, establishing that the paper or request for continued examination was accompanied by a statement in compliance with § 1.704(d)(1). Thus, this final rule allows applicants who provided a statement under § 1.704(d)(1) not using the Office form PTO/SB/133 with an avenue to have the statement given effect when determining the patent term adjustment. Second, this final rule clarifies that the form provided by the Office (PTO/SB/133) must be submitted using the appropriate document code (PTA.IDS).

Comment 1: One commenter suggested that the Office continue the current practice of permitting an applicant to make the required safe harbor statement(s) in any paper filed on the same date as the information disclosure statement, but require the applicant to request reconsideration of the patent term adjustment under § 1.705(b) to invoke the safe harbor if form PTO/SB/133 was not used. Another commenter expressed sympathy for the purpose of the rule change but opposed it because the Office has plenty of alternative methods to educate the public in reducing errors in the certificate statement.

Response: Section 1.704(d)(3), as adopted in this final rule, requires that the statement under § 1.704(d)(1) be submitted on a form provided by the Office (PTO/SB/133) using the appropriate document code (PTA.IDS). Section 1.704(d)(3) also provides that if the applicant does not use the Office form and its document code (PTA.IDS), the paper or request for continued examination will be treated as not accompanied by a statement under § 1.704(d)(1) unless an application for patent term adjustment in compliance with § 1.705(b) is filed, establishing that the paper or request for continued examination was accompanied by a statement in compliance with § 1.704(d)(1). Moreover, the Office will provide additional information and educate the public by providing examples in which the Office deemed the statement not sufficient to comply with the requirements of § 1.704(d)(1).

Comment 2: One commenter advised the Office that the electronic form would not allow for checking both boxes, and thus they had to file two forms to address statements under each provision.

Response: In response to this comment, the Office form PTO/SB/133 has been revised so an applicant can make the statement under § 1.704(d)(1)(i) or (ii), or both §§ 1.704(d)(1)(i) and (ii).

Comment 3: Two commenters suggested that the Office consider modifying the language of the form PTO/SB/133 to address concerns about what is being asserted when both boxes on the form are checked.

Response: Sections 1.704(d)(i) and 1.704(d)(ii) are distinct conditions. When an applicant checks both boxes on form PTO/SB/133, the applicant is asserting that each cited reference meets the conditions of § 1.704(d)(1)(i) or 1.704(d)(1)(ii).

In 2011, the Office added § 1.704(d)(1)(ii) to extend the “safe harbor” provision of § 1.704(d) to embrace information first cited in a communication from the Office, as well as the communication. See Revision of Patent Term Adjustment Provisions Relating to Information Disclosure Statements, 76 FR 74700 (Dec. 1, 2011).

Comment 4: One commenter asked whether the rule change would be retroactively applied. The commenter further asked what an applicant should do if they had previously filed a statement under § 1.704(d).

Response: The changes to the rules of practice pertaining to patent term adjustment are set to go into effect on the effective date of this final rule, and are applicable to any statement under § 1.704(d) filed on or after the effective date of this final rule. The Office will apply the interim procedure for patentees to request a recalculation of their patent term adjustment determination for alleged failure to recognize that an information disclosure statement was accompanied by a safe harbor statement, by submitting a request for recalculation of patent term adjustment using Office form PTO/SB/134, for applicants who filed a statement under § 1.704(d) prior to the effective date of the change to § 1.704(d) in this final rule. See Interim Procedure for Requesting Recalculation of the Patent Term Adjustment With Respect to Information Disclosure Statements Accompanied by a Safe Harbor Statement, 83 FR 55102 (Nov. 2, 2018).

Comment 5: One commenter presented a number of scenarios and requested advice on whether an applicant could file a statement under § 1.704(d)(1) in these scenarios. The commenter also requested clarification of the definition of certain terms found in § 1.704(d)(1).

Response: The Office did not propose any changes to the statement required by § 1.704(d)(1) and is not adopting any changes to the statement required by § 1.704(d)(1) in this final rule. As such, this comment is outside the scope of this action. However, for information on the terms used in, and the application of, § 1.704(d)(1), the Office refers the commenter to the Office's guidance on patent term adjustment. Specifically, the statement required by § 1.704(d)(1) to take advantage of the “safe harbor” of § 1.704(d) is set forth in chapter 2700 of the Manual of Patent Examining Procedure (MPEP) (9th ed., rev. 7.2022, February 2023), which may be viewed or downloaded free of charge from the USPTO website at https://www.uspto.gov/MPEP and is available to search online at https://mpep.uspto.gov.

A. Administrative Procedure Act: The changes in this rulemaking involve rules of agency practice and procedure, and/or interpretive rules. See Perez v. Mortg. Bankers Ass'n, 135 S. Ct. 1199, 1204 (2015) (Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.” (citation and internal quotation marks omitted)); Nat'l Org. of Veterans' Advocates v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001) (rule that clarifies interpretation of a statute is interpretive); Bachow Commc'ns Inc. v. FCC, 237 F.3d 683, 690 (D.C. Cir. 2001) (Rules governing an application process are procedural under the Administrative Procedure Act.); Inova Alexandria Hosp. v. Shalala, 244 F.3d 342, 350 (4th Cir. 2001) (Rules for handling appeals were procedural where they did not change the substantive standard for reviewing claims.). This final rule revises 37 CFR 1.704(d) to require that the statement under 37 CFR 1.704(d)(1) be submitted on the Office form PTO/SB/133 using the appropriate document code (PTA.IDS). This final rule also provides that, if an applicant submits their own statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), an applicant will need to request reconsideration of the patent term adjustment under 37 CFR 1.705(b) for the Office to consider a statement under 37 CFR 1.704(d)(1) when making a determination of the patent term adjustment.

Accordingly, prior notice of and an opportunity for public comments on the changes in this rulemaking are not required pursuant to 5 U.S.C. 553(b) or (c), or any other law. See Perez, 135 S. Ct. at 1206 (Notice-and-comment procedures are required neither when an agency “issue[s] an initial interpretive rule” nor “when it amends or repeals that interpretive rule.”); Cooper Techs. Co. v. Dudas, 536 F.3d 1330, 1336-37 (Fed. Cir. 2008) (stating that 5 U.S.C. 553, and thus 35 U.S.C. 2(b)(2)(B), do not require notice-and-comment rulemaking for “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice” (quoting 5 U.S.C. 553(b)(A))). However, the Office chose to seek public comments before implementing the rule to benefit from the public's input.

B. Regulatory Flexibility Act: For the reasons set forth in this notice, the Senior Counsel for Regulatory and Legislative Affairs, Office of General Law, of the USPTO has certified to the Chief Counsel for Advocacy of the Small Business Administration that changes in this rule will not have a significant economic impact on a substantial number of small entities. See 5 U.S.C. 605(b).

This rulemaking does not impose any additional fees on applicants. This final rule revises 37 CFR 1.704(d) to require that the statement under 37 CFR 1.704(d)(1) be submitted on the Office form PTO/SB/133 using the appropriate document code (PTA.IDS), and to provide that if an applicant submits their own statement under 37 CFR 1.704(d)(1), as required for the “safe harbor” of 37 CFR 1.704(d), the applicant will need to request reconsideration of the patent term adjustment under 37 CFR 1.705(b) for the Office to consider a statement under 37 CFR 1.704(d)(1) when making a determination of the patent term adjustment. This new requirement only seeks to facilitate the current statement requirement, pursuant to 37 CFR 1.704(d)(1) and set forth in MPEP 2732, subsection IV, through the use of an existing Office form containing the required statement language.

For the foregoing reasons, the changes in this rule will not have a significant economic impact on a substantial number of small entities.

C. Executive Order 12866 (Regulatory Planning and Review): This rulemaking has been determined to be not significant for purposes of Executive Order 12866 (Sept. 30, 1993).

D. Executive Order 13563 (Improving Regulation and Regulatory Review): The Office has complied with Executive Order 13563 (Jan. 18, 2011). Specifically, the Office has, to the extent feasible and applicable: (1) made a reasoned determination that the benefits justify the costs of the rule; (2) tailored the rule to impose the least burden on society consistent with obtaining the regulatory objectives; (3) selected a regulatory approach that maximizes net benefits; (4) specified performance objectives; (5) identified and assessed available alternatives; (6) involved the public in an open exchange of information and perspectives among experts in relevant disciplines, affected stakeholders in the private sector, and the public as a whole, and provided online access to the rulemaking docket; (7) attempted to promote coordination, simplification, and harmonization across Government agencies and identified goals designed to promote innovation; (8) considered approaches that reduce burdens and maintain flexibility and freedom of choice for the public; and (9) ensured the objectivity of scientific and technological information and processes.

E. Executive Order 13132 (Federalism): This rulemaking does not contain policies with federalism implications sufficient to warrant preparation of a Federalism Assessment under Executive Order 13132 (Aug. 4, 1999).

F. Executive Order 13175 (Tribal Consultation): This rulemaking will not: (1) have substantial direct effects on one or more Indian tribes; (2) impose substantial direct compliance costs on Indian tribal governments; or (3) preempt tribal law. Therefore, a tribal summary impact statement is not required under Executive Order 13175 (Nov. 6, 2000).

G. Executive Order 13211 (Energy Effects): This rulemaking is not a significant energy action under Executive Order 13211 because this rulemaking is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required under Executive Order 13211 (May 18, 2001).

H. Executive Order 12988 (Civil Justice Reform): This rulemaking meets applicable standards to minimize litigation, eliminate ambiguity, and reduce burden as set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 (Feb. 5, 1996).

I. Executive Order 13045 (Protection of Children): This rulemaking does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045 (Apr. 21, 1997).

J. Executive Order 12630 (Taking of Private Property): This rulemaking will not effect a taking of private property or otherwise have taking implications under Executive Order 12630 (Mar. 15, 1988).

K. Congressional Review Act: Under the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801-808), the USPTO will submit a report containing any final rule resulting from this rulemaking and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the Government Accountability Office. The changes in this rulemaking are not expected to result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. Therefore, this rulemaking is not a “major rule” as defined in 5 U.S.C. 804(2).

L. Unfunded Mandates Reform Act of 1995: The changes set forth in this rulemaking do not involve a Federal intergovernmental mandate that will result in the expenditure by State, local, and tribal governments, in the aggregate, of $100 million (as adjusted) or more in any one year, or a Federal private sector mandate that will result in the expenditure by the private sector of $100 million (as adjusted) or more in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995. See 2 U.S.C. 1501 et seq.

M. National Environmental Policy Act of 1969: This rulemaking will not have any effect on the quality of the environment and is thus categorically excluded from review under the National Environmental Policy Act of 1969. See 42 U.S.C. 4321 et seq.

N. National Technology Transfer and Advancement Act of 1995: The requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) are not applicable because this rulemaking does not contain provisions that involve the use of technical standards.

O. Paperwork Reduction Act of 1995: The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) requires that the Office consider the impact of paperwork and other information collection burdens imposed on the public. The rules of practice pertaining to patent term adjustment and extension have been reviewed and approved by the OMB under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) under OMB control number 0651-0020. Although this final rule requires the use of Office form PTO/SB/133 when making a statement under 37 CFR 1.704(d)(1), the OMB has determined that, under 5 CFR 1320.3(h), form PTO/SB/133 does not collect “information” within the meaning of the Paperwork Reduction Act of 1995. Because the changes in this rulemaking would not affect the information collection requirements or fees associated with the information collections approved under OMB control number 0651-0020 or any other information collection, the Office is not resubmitting an information collection package to the OMB for its review and approval.

Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB control number.

P. E-Government Act Compliance: The USPTO is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes.

For the reasons set forth in the preamble, the USPTO amends 37 CFR part 1 as follows:

Throughout this document, wherever “we,” “us,” or “our” is used, it means the EPA.

On December 29, 2022, Idaho submitted a SIP revision to remove the Inspection and Maintenance (I/M) program in the Northern Ada County Carbon Monoxide (CO) area. The submission included a demonstration that the requested revision would not interfere with attainment or maintenance of any national ambient air quality standard (NAAQS) or with any other applicable requirement of the Clean Air Act (CAA). Idaho's submission also requested that the EPA remove the ordinances in Table 1 of this preamble from the Idaho SIP.

The EPA proposed to approve Idaho's SIP revision on March 30, 2023 (88 FR 19030). Subsequently, on April 21, 2023, the EPA made a correction to the docket number in the proposed rule and extended the public comment period to May 22, 2023 (88 FR 24522). An explanation of the CAA requirements, a detailed analysis of the submission, and the EPA's reasons for approval were provided in the notice of proposed rulemaking. The EPA did not receive comments on the proposed rulemaking and is taking final action to approve Idaho's December 29, 2022, submission.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. The EPA is removing the local ordinances identified in section I of this preamble from the Idaho State Implementation Plan, which is incorporated by reference under 1 CFR part 51.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 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. 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); and

• 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.

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 it will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 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.”

Idaho did not evaluate EJ considerations as part of its SIP submission; 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. 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 Executive Order 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 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 set forth in the preamble, 40 CFR part 52 is amended as follows:

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

On March 28, 2023, the EPA proposed to disapprove under the CAA, SIP submissions from the State of California that address the contingency measures requirements for the 2008 ozone NAAQS for the Sacramento Metro, California ozone nonattainment area. 1 This proposed disapproval addressed the contingency measures portions of the following two SIP submissions: the “Sacramento Regional 2008 NAAQS 8-hour Ozone Attainment and Reasonable Further Progress Plan,” submitted in 2017 (“2017 Sacramento Regional Ozone Plan”), and the Sacramento Metro portion of the “2018 Updates to the California State Implementation Plan,” submitted in 2018 (“2018 SIP Update”). In this same rulemaking, we also proposed to make a protective finding for the Sacramento Metro area under the transportation conformity rule. 2 The Sacramento Metro ozone nonattainment area consists of Sacramento and Yolo counties, and portions of El Dorado, Placer, Solano, and Sutter counties, and is regulated by the California Air Resources Board (CARB or “State”) and five local air districts (“Districts”). 3 The area has a classification of “Severe-15” for the 2008 ozone NAAQS, with an attainment date of December 31, 2024. Accordingly, the area is subject to the requirements for Severe ozone nonattainment areas, including the requirement to submit contingency measures consistent with CAA 172(c)(9) and 182(c)(9), as discussed further in Section I.C of this document.

Our proposed action includes additional information about ozone and its precursor emissions, the Sacramento Metro nonattainment area, and the CAA regulatory framework for ozone nonattainment areas, including submittal requirements established in the EPA's SIP Requirements Rule for the 2008 ozone NAAQS. 4

CARB submitted the 2017 Sacramento Regional Ozone Plan to the EPA as a revision to the California SIP on December 18, 2017, 5 and submitted the 2018 SIP Update to the EPA as a revision to the California SIP on December 11, 2018. 6 The 2018 SIP Update provides updates to prior SIP submittals for eight California nonattainment areas, including the Sacramento Metro area, in response to the decision by the U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) in Bahr v. EPA. 7 Both submittals address nonattainment area requirements for the Sacramento Metro area concerning the 2008 ozone NAAQS, including the contingency measures requirements. 8 In 2020, CARB  9 and the Districts  10 committed to supplement the contingency measures elements in the 2017 Sacramento Regional Ozone Plan and the 2018 SIP Update by adopting and submitting, within 12 months of a final conditional approval of the contingency measures element, additional contingency measures that would be triggered upon the area's failure to attain or to meet RFP.

The EPA previously approved the 2017 Sacramento Regional Ozone Plan and the 2018 SIP Update as meeting the emissions inventory, attainment demonstration, reasonable further progress, reasonable available control measures, and motor vehicle emissions budgets requirements for the 2008 ozone NAAQS for the Sacramento Metro nonattainment area. 11

Regarding the contingency measures requirements, on October 29, 2020, we proposed to conditionally approve the contingency measures element of the 2017 Sacramento Regional Ozone Plan and the 2018 SIP Update, based on the commitments by the Districts and CARB to submit the new and amended District rules to the EPA within 12 months of a final conditional approval of the contingency measures element for the Sacramento Metro area. 12 On August 26, 2021, the Ninth Circuit issued a decision in Association of Irritated Residents v. U.S. Environmental Protection Agency   13 (“ AIR v. EPA” ) which remanded the EPA's conditional approval of contingency measures for the San Joaquin Valley nonattainment area, another nonattainment area in California. Our proposed conditional approval of the contingency measures requirements for the Sacramento Metro area had relied on a similar approach as the one remanded by the court in AIR v. EPA. Based on the Ninth Circuit's decision in AIR v. EPA, we did not finalize our proposed conditional approval of the contingency measures element for the Sacramento Metro area. 14 Our March 28, 2023 proposed disapproval action  15 replaced our October 29, 2020 proposed conditional approval of the contingency measures element.

Our proposed disapproval action includes more information about CARB's submittals for the 2008 ozone NAAQS and the EPA's previous actions on these submittals. 16

Ozone nonattainment areas classified under subpart 2 of the CAA as “Serious” or above must include in their SIPs contingency measures consistent with CAA sections 172(c)(9) and 182(c)(9). Contingency measures are additional controls or measures to be implemented in the event that an area fails to make RFP or to attain the NAAQS by the attainment date. CAA section 172(c)(9) requires states with nonattainment areas to provide for the implementation of specific measures to be undertaken if the area fails to make RFP or to attain the NAAQS by the applicable attainment date. Such measures must be included in the SIP as contingency measures to take effect in any such case without further action by the state or the EPA. Similarly, CAA section 182(c)(9) requires states with an ozone nonattainment area classified as Serious or above to provide contingency measures in the event that the area fails to meet any applicable RFP milestone.

Contingency measures must be designed so as to be implemented prospectively; control measures that have already been implemented may not serve as contingency measures even if they provide emissions reductions beyond those needed for any other CAA purpose. 17 The SIP should contain trigger mechanisms for the contingency measures, specify a schedule for implementation, and indicate that the measure or measures will be implemented without significant further action by the state or the EPA. 18

As noted in Section I.B of this document and in our proposed action, the EPA previously proposed a conditional approval of the contingency measures requirements for the Sacramento Metro area, based upon commitments by the Districts and CARB to adopt and submit additional contingency measure provisions in District rules within 12 months of the final conditional approval. Because the EPA did not finalize the conditional approval, the Districts and CARB did not submit the additional contingency measure provisions. Thus, the relevant submittals before us are limited to the portions of the 2017 Sacramento Regional Ozone Plan and 2018 SIP Update that address the contingency measures requirements for the Sacramento Metro area.

These submittals provide only an analysis of surplus emissions, and do not include specific measures to be triggered upon a failure to attain or to meet an RFP milestone. As described in detail in our proposed action, this approach is inconsistent with CAA sections 172(c)(9) and 182(c)(9), in light of the Ninth Circuit's decisions in Bahr v. EPA and AIR v. EPA. For this reason, we are taking final action to disapprove these portions of the 2017 Sacramento Regional Ozone Plan and 2018 SIP Update as contingency measures for the Sacramento Metro area for the 2008 ozone NAAQS.

Our proposed action provided for a 30-day comment period, during which we received no comments.

For the reasons summarized herein and presented in more detail in the proposed action, we are taking final action to disapprove the 2017 Sacramento Regional Ozone Plan and 2018 SIP Update with respect to CAA contingency measures requirements under CAA sections 172(c)(9) and 182(c)(9) for the Sacramento Metro area for the 2008 ozone NAAQS. We are also making a protective finding under the transportation conformity rule because, notwithstanding the disapproval of the contingency measures element, the 2017 Sacramento Regional Ozone Plan, as modified by the 2018 SIP Update, reflects adopted control measures and contains enforceable commitments that fully satisfy the emissions reductions requirements for RFP and attainment for the 2008 ozone NAAQS. 19

As a consequence of this final disapproval of the contingency measures element, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months of the effective date of this action. In addition, under 40 CFR 52.35, the offset sanction in CAA section 179(b)(2) will be imposed 18 months after the effective date of this action, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction will not be imposed if the EPA determines that a subsequent SIP submission corrects the identified deficiencies before the applicable deadline.

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

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

This action does not impose an information collection burden under the PRA, because this SIP disapproval does not in-and-of itself create any new information collection burdens, but simply disapproves certain state requirements for inclusion in the SIP.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This SIP disapproval does not in-and-of itself create any new requirements but simply disapproves certain state requirements for inclusion in the SIP.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action disapproves pre-existing requirements under state or local law, and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

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

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

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this SIP disapproval does not in-and-of itself create any new regulations, but simply disapproves certain state requirements for inclusion in the SIP.

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

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

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.”

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

Neither CARB nor the Districts evaluated environmental justice considerations as part of their SIP submittals; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an environmental justice analysis and did not consider environmental justice in this action. Consideration of environmental justice 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 is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by [August 14, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

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

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

On March 29, 2023 (88 FR 18496), the EPA proposed a limited approval and limited disapproval of the following rule that was submitted for incorporation into the California SIP.

We proposed a limited approval because we determined that this rule improves the SIP and is largely consistent with the relevant CAA requirements. We simultaneously proposed a limited disapproval because some rule provisions conflict with section 110 and part D of the Act. These provisions include the following:

1. Relaxation of NO X limits for the Westinghouse W251B10 turbine in section (V)(B) has not been sufficiently justified as meeting the Reasonably Available Control Technology (RACT) requirement and was not accompanied by sufficient explanation as to why the change does not interfere with attainment of the National Ambient Air Quality Standards (NAAQS) or reasonable further progress.

Our proposed action contains more information on the basis for this rulemaking and on our evaluation of the submittal.

The EPA's proposed action provided a 30-day public comment period. During this period, we received one comment from a member of the public. The full text of this comment is available in the docket for this rulemaking. The comment does not indicate disagreement with the EPA's proposal, and instead raises two questions: how do changes to emissions of stationary gas turbines affect the output of the turbines, and what are the costs and benefits of the proposed rule change? The EPA notes that information surrounding the impact of the proposed changes to the rule, including information about economic costs and benefits and air quality impacts, are included in the District's staff report accompanying the Rule's submission, and included in the docket for this rulemaking. The EPA notes in particular, the District's analysis of energy impacts in part IX.D. of the Staff Report. 1 The District reports that “[t]he use of NO X reduction technologies would generally have some level of fuel energy penalty or may require small amounts of energy for their operation.”  2 The Staff Report provides a number of examples, and notes in particular that for selective catalytic reduction (SCR), “[t]he use of SCR results in a 0.7 percent fuel penalty.” With respect to costs and benefits, it is expected that there are a range of costs and benefits associated with units of different sizes and layouts. The District did not provide detailed calculations of cost-effectiveness for different units, but did provide some discussion of the costs and benefits of the rule in sections VI—Cost Effectiveness and IX—Impacts. The District also noted that pursuant to state law, districts with a population under 500,000, such as Eastern Kern County, are exempt from the requirement to assess socioeconomic impacts of proposed rules. 3

The comment does not raise concerns about the EPA's proposed rulemaking and does not suggest that the EPA should not finalize its action as proposed. The comment also does not indicate that the submission fails to comply with any relevant requirement of the Clean Air Act. After reviewing this comment, the EPA has determined that the comment is not adverse to our proposed finding that EKAPCD Rule 425 satisfies the requirements of CAA sections 110 and part D, which focuses the rule evaluation on enforceability, stringency, and interference with CAA requirements, and does not change our evaluation of the submitted rule.

No comments were submitted that change our assessment of the rule as described in our proposed action. Therefore, as authorized in sections 110(k)(3) and 301(a) of the Act, the EPA is finalizing a limited approval of the submitted rule. This action incorporates the submitted rule into the California SIP, including those provisions identified as deficient. As authorized under section 110(k)(3) and 301(a), the EPA is simultaneously finalizing a limited disapproval of the rule.

As a result, the EPA must promulgate a federal implementation plan (FIP) under section 110(c) unless we approve subsequent SIP revisions that correct the rule deficiencies within 24 months.

In addition, the offset sanction in CAA section 179(b)(2) will be imposed 18 months after the effective date this action, and the highway funding sanction in CAA section 179(b)(1) six months after the offset sanction is imposed. A sanction will not be imposed if the EPA determines that a subsequent SIP submission corrects the identified deficiencies before the applicable deadline.

Note that the submitted rule has been adopted by the EKAPCD, and the EPA's final limited disapproval does not prevent the local agency from enforcing it. The limited disapproval also does not prevent any portion of the rule from being incorporated by reference into the federally enforceable SIP as discussed in a July 9, 1992 EPA memo found at: https://www.epa.gov/sites/production/files/2015-07/documents/procsip.pdf.

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of EKAPCD Rule 425, Stationary Gas Turbines (Oxides of Nitrogen), amended January 11, 2018, which regulates NO X and CO for stationary gas turbine engines with ratings equal to or greater than 0.88 MW. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

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

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

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

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

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

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

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

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

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

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. 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.” 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.”

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 14, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see section 307(b)(2)).

For the reasons stated in the preamble, the Environmental Protection Agency amends part 52, chapter I, title 40 of the Code of Federal Regulations as follows:

I. General Information A. Does this action apply to me?

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Federal Register Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0493 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 14, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2022-0493, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

In the Federal Register of August 30, 2022 (87 FR 52868) (FRL-9410-04), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petitions (PP 1F8970 and 1F8971) by Syngenta Crop Protection, LLC., P.O. Box 18300, Greensboro, NC 27419. The petition requested that 40 CFR part 180 be amended by establishing tolerances for residues of the fungicide, mefenoxam, (methyl N -(2,6-dimethylphenyl)- N -(methoxyacetyl)- D -alaninate), in or on leafy greens subgroup 4-16A (except spinach) at 5 parts per million (ppm); Brassica leafy greens subgroup 4-16B at 5 ppm; Brassica head and stem vegetable crop group 5-16 at 2 ppm; stalk and stem vegetable subgroup 22A (except celtuce, florence fennel and kohlrabi) at 7 ppm; celtuce at 5 ppm; florence fennel at 5 ppm; kohlrabi at 2 ppm; leaf petiole vegetable subgroup 22B at 5 ppm; fruiting vegetables subgroup 8-10 at 1 ppm; succulent shelled pea and bean crop subgroup 6B at 0.2 ppm; cottonseed crop subgroup 20C at 0.1 ppm; and sugarcane at 0.1 ppm (PP 1F8971). That document referenced a summary of the petition prepared by Syngenta Crop Protection, LLC., the registrant, which is available in the docket, http://www.regulations.gov. Two comments were received on the notice of filing. EPA's response to these comments is discussed in Unit IV.C.

Based upon review of the data supporting the petition and in accordance with its authority under FFDCA section 408(d)(4)(A)(i), EPA is establishing the tolerances at different levels than requested. The reasons for these changes are explained in Unit IV.D.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for mefenoxam including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with mefenoxam follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections of the rule that repeat what has been previously published in tolerance rulemakings for the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemakings, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published a number of tolerance rulemakings for mefenoxam in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to mefenoxam and established tolerances for residues of that chemical. EPA is incorporating previously published sections from those rulemakings as described further in this rule, as they remain unchanged.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Mefenoxam (metalaxyl-m) is a systemic phenylamide fungicide which inhibits protein synthesis in fungi. Mefenoxam is an R-isomer enriched formulation. Metalaxyl is the racemic R/S isomer formulation. The Agency compared the available chemistry and toxicity data for mefenoxam and metalaxyl and concluded that metalaxyl data may be used in support of mefenoxam regulatory actions because the two chemicals have similar toxicity.

Specific information on the studies received and the nature of the adverse effects caused by mefenoxam as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies are discussed in Unit III.A. of the final rule published in the Federal Register of December 21, 2018 (83 FR 65541) (FRL-9985-52).

A summary of the toxicological endpoints for mefenoxam used for human health risk assessment is discussed in Unit III.B. of the final rule published in the Federal Register of December 21, 2018 (83 FR 65541) (FRL-9985-52).

Much of the exposure assessment remains the same although updates have occurred to accommodate exposures from petitioned-for tolerances. These updates are discussed in this section; for a description of the rest of the EPA approach to and assumptions for the exposure assessment, please reference Unit III.C of the December 2018 rulemaking.

1. Dietary exposure from food and feed uses. EPA's dietary exposure assessments have been updated to include the additional exposure from the petitioned-for tolerances of mefenoxam on the crops requested in this action. In evaluating dietary exposure to mefenoxam, EPA considered exposure under the petitioned-for tolerances as well as all existing mefenoxam and metalaxyl tolerances in 40 CFR 180.546 and 40 CFR 180.408, respectively.

i. Acute exposure. Quantitative acute dietary exposure and risk assessments are performed for a food-use pesticide, if a toxicological study has indicated the possibility of an effect of concern occurring as a result of a 1-day or single exposure. The acute dietary assessment is based on tolerance levels adjusted to account for all of the residues of concern and assumes 100 percent crop treated (PCT). The assessment was conducted using the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCID) Version 4.02. EPA with 2005-2010 food consumption information from the United States Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). Empirical processing factors were included where available. Otherwise, DEEM-FCID default processing factors were used.

ii. Chronic exposure. There is no increase in toxicity from the acute duration studies. Toxicity did not increase with an increase in exposure duration. Therefore, a chronic dietary POD was not selected. The acute endpoint and dietary exposure assessment are protective of potential effects from chronic duration dietary exposures.

iii. Cancer. EPA has concluded that mefenoxam does not pose a cancer risk to humans based on no evidence of carcinogenicity observed in the relevant studies. Therefore, a dietary exposure assessment for the purpose of assessing cancer risk is unnecessary.

2. Dietary exposure from drinking water. Exposure modeling for mefenoxam is not necessary because exposure estimates for metalaxyl are expected to exceed those for mefenoxam and are therefore protective. Maximum annual application rates for metalaxyl, up to 12.3 lb ai/A, were modeled. These rates are approximately twice those of mefenoxam. The maximum estimated drinking water concentrations (EDWCs) based on metalaxyl are 350 μg/L for acute exposure (which is based on surface water sources) and 135 µg/L for chronic exposure (which is based on groundwater sources).

3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure ( e.g., for lawn and garden pest control, indoor pest control, termiticides, and flea and tick control on pets). There are no uses for mefenoxam being proposed as part of this action or that have been added since the most recent risk assessment that would impact the residential (non-occupational) or residential post-application exposure and risk estimates found in the most recent risk assessment of mefenoxam; therefore, EPA relied on the previously assessed residential exposure for assessing aggregate risk.

4. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to mefenoxam and metalaxyl with any other substances and mefenoxam and metalaxyl do not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that mefenoxam and metalaxyl have a common mechanism of toxicity with other substances.

EPA continues to conclude that there are reliable data to support the reduction of the Food Quality Protection Act (FQPA) safety factor to 1X. See Unit III.D. of the December 2018 rulemaking for a discussion of the Agency's rationale for that determination.

EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the aPAD and chronic population-adjusted dose (cPAD). Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total aggregate food, water, and residential exposure to the appropriate points of departure (PODs) to ensure that an adequate margin of exposure (MOE) exists.

1. Acute risk. The acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. Using the exposure assumptions discussed in this unit for acute exposure, the acute dietary exposure from food and water is 27% of the acute population-adjusted dose (aPAD) for the general U.S. population, and 56% of the aPAD for the highest exposed population group, children 1-2 years old. Because these levels are below the Agency's level of concern (LOC) of 100% of the aPAD, the Agency concludes that aggregate exposure to mefenoxam will not pose an acute risk.

2. Chronic risk. No hazard endpoint was selected for chronic dietary exposure for mefenoxam; therefore, a chronic aggregate assessment was not warranted. However, chronic dietary exposure was estimated for inclusion in the aggregate analysis.

3. Short-term risk. Short-term aggregate exposure takes into account short-term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). Mefenoxam is currently registered for uses that could result in short-term residential exposure, and the Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-term residential exposures to mefenoxam.

Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in aggregate MOEs of 270 for children 1-2, the most highly exposed group. Because EPA's level of concern for mefenoxam is 100, which means any MOE below 100 may indicate risks of concern, this MOE is not of concern.

4. Intermediate-term risk. There are no intermediate-term residential exposures for mefenoxam, and therefore an intermediate-term aggregate exposure assessment was not warranted.

5. Aggregate cancer risk for U.S. population. Mefenoxam is classified as “not likely to be carcinogenic to humans”, therefore, EPA concludes that exposure to mefenoxam will not pose an aggregate cancer risk.

6. Determination of safety. Therefore, based on the risk assessments and information described above, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to mefenoxam residues. More detailed information on this action can be found in the document titled “Metalaxyl, Mefenoxam (Metalaxyl-M). Human Health Risk Assessment for the Petition for Amendment of Tolerances for Residues in/on Leafy Greens Subgroup, 4-16A (Except Spinach), and Brassica Leafy Greens Subgroup 4-16B; Brassica Head and Stem Vegetable Crop Group 5-16; Expansions of Crop Tolerances to Stalk and Stem Vegetable Subgroup 22A and Leaf Petiole Vegetable Subgroup 22B; Fruiting Vegetables Crop Group 8-10; Succulent Shelled Pea & Bean Subgroup 6B; and Cottonseed Crop Subgroup 20C. Establishment of an Inadvertent Tolerance for Residues in/on Sugarcane.” in docket ID number EPA-HQ-OPP-2022-0493.

For a discussion of the available enforcement analytical methods, see Unit IV.A. of the December 21, 2018, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.

While Codex has not established MRLs for mefenoxam, it has established tolerances for residues of metalaxyl. Since compliance with U.S. tolerances for mefenoxam is determined by measuring metalaxyl residues, EPA is evaluating harmonization of the mefenoxam tolerances by comparing to the metalaxyl MRLs. Codex has not established MRLs for metalaxyl for leafy greens, subgroup 4-16A; Brassica leafy greens, subgroup 4-16B; stalk and stem vegetable, subgroup 22A; leaf petiole vegetable, subgroup 22B; fruiting vegetables, group 8-10; succulent shelled pea and bean, subgroup 6B and sugarcane; thus, harmonization with Codex is not an issue for these commodities and groups/subgroups.

Codex has established MRLs for metalaxyl on several members of the Brassica head & stem vegetable, group 5-16: 2 ppm for Chinese cabbage and cauliflower (members of Brassica (cole) leafy vegetables group 5-16) and 0.5 ppm for residues in/on broccoli, cabbage, and Brussels sprouts (members of Brassica (cole) leafy vegetables group 5-16). EPA's tolerance for group 5-16 is harmonized with the higher Codex MRL for commodities in this group. Codex has an MRL for residues in/on cottonseed at 0.05 ppm while the U.S. tolerance is set at 0.1 ppm. EPA is not harmonizing since the lower tolerance level may result in residues exceeding the tolerance from application consistent with approved labeling; however, this does not create a barrier to import as the US tolerance is inclusive of the Codex MRL.

Two comments were received in response to the notice of filing. One comment was received from an anonymous commenter applauding the government's process to petition for new uses. The second comment argued against the use of mefenoxam on greens and expressed concern about the overall toxicity of pesticides. The commenter has provided no information that would support a determination that these tolerances are unsafe. Although the Agency recognizes that some individuals believe that pesticides should be banned on agricultural crops, the existing legal framework provided by FFDCA section 408 authorizes EPA to establish tolerances when it determines that the tolerance is safe. Upon consideration of the validity, completeness, and reliability of the available data as well as other factors the FFDCA requires EPA to consider, EPA has determined that these mefenoxam tolerances are safe. The commenter has provided no information supporting a contrary conclusion.

EPA is establishing the tolerance on Leafy vegetable, Crop Group 4-16 (except spinach) at 5 ppm rather than the petitioned-for Leafy Greens Subgroup 4-16A (except spinach) and Brassica Leafy Greens Subgroup 4-16B. The entire crop group 4-16 is inclusive of both subgroups. Additionally, the Agency is not establishing separate tolerances for Celtuce, Florence fennel and Kohlrabi and excepting them from Stalk and Stem Vegetable Subgroup 22A. The proposed tolerance of 7 ppm for Stalk and Stem Vegetable Subgroup 22A is greater than the proposed tolerances of 5, 5, and 2 ppm, for celtuce, Florence fennel, and kohlrabi respectively, and is therefore inclusive of these tolerances. Lastly, because the final Phase VI crop group rule has been published, the commodity definition for Succulent Shelled Pea and Bean Crop Subgroup 6B has been revised to be Vegetable, legume, bean, succulent shelled, subgroup 6-22C and Vegetable, legume, pea, succulent shelled, subgroup 6-22D. The Phase VI crop group rule was published on September 21, 2022, and was effective on November 21, 2022 (87 FR 57627) (FRL-5031-13-OCSPP).

Therefore, tolerances are established for residues of mefenoxam, [methyl N -(2,6-dimethylphenyl)- N -(methoxyacetyl)-D-alaninate], in or on Cottonseed, subgroup 20C at 0.1 ppm; Leaf petiole, subgroup 22B at 5 ppm; Leafy Vegetable, Crop Group 4-16 (except spinach) at 5 ppm; Sugarcane at 0.1 ppm; Vegetable, Brassica, head and stem, group 5-16 at 2 ppm; Vegetable, fruiting, group 8-10 at 1 ppm; Vegetable, legume, bean, succulent shelled, subgroup 6-22C at 0.2 ppm; Vegetable, legume, pea, succulent shelled, subgroup 6-22D at 0.2 ppm; Vegetable, stalk and stem, subgroup 22A at 7 ppm.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule 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 . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

USAID published a proposed rule in the Federal Register at 87 FR 22843 on April 18, 2022, to amend the AIDAR regarding contractor requirements on foreign tax reporting, conference planning, and trade and investment activities as outlined in 48 CFR parts 726, 729, 731, and 752.

Two respondents submitted public comments in response to the proposed rule. A discussion of the comments is provided as follows:

USAID reviewed the public comments in the development of the final rule; however, no changes were made as a result of the public comments received. Some administrative changes were made to revise the title of subpart 726.71 and to correct the title of §  752.226-70 to read: Trade and Investment Activities and the “Impact on U.S. Jobs” and “Workers' Rights” and to revise capitalization throughout.

Below are the Agency's responses to comments on the proposed rule.

A. Comment: One commenter (#1) indicated that some countries require that contractors withhold income tax from vendors in a manner similar to employee income tax withholding. They requested that USAID confirm that this type of withholding is exempt from the foreign tax reporting requirements in section 752.229-71.

Response: USAID cannot confirm on a blanket basis whether the vendor taxes described would be exempt as this is a fact-specific inquiry. The determination needs to be made at the country level by the Department of State based on the specific tax code. We recommend reaching out to your Contracting Officer for country-specific guidance.

B. Comment: Commenter #1 also expressed a concern that there is confusion as to when the cost of VAT or customs taxes may be allowable. They requested that the regulation be revised to be more similar to USAID's Mandatory Standard Provision for Federal assistance awards to include language that indicates that host government taxes (such as VAT) are not allowable where the Contracting Officer provides the necessary means to the contractor to obtain an exemption or refund of the taxes, and the contractor fails to take reasonable steps to obtain this exemption.

Response: The issue of foreign tax allowability is outside the scope of this rule. This rulemaking pertains to foreign tax reporting. Some foreign tax payments may need to be reported, even if allowable. Questions about allowability should be coordinated with your relevant Contracting Officer as this is a fact-specific inquiry and depends on the country of taxation. For further information, please see USAID's Procurement Executive Bulletin ( PEB) 2017-02, “Exemptions and Allowability of Host Government Taxes”.

C. Comment: A commenter (#2) requested information on how USAID/Washington will communicate to Mission Directors to renegotiate and revise procedures for exemption of reimbursement of taxes.

Response: Internal agency communications are outside of the scope of this rulemaking. However, USAID will communicate the contents of this rule through existing communications channels with missions.

D. Comment: Commenter #2 also recommended revised language in 752.229-71 to indicate “the mission controller” rather than “point of contact at the Embassy, Mission . . .” to identify where the report must be submitted.

Response: USAID appreciates the recommendation but does not believe a change is necessary. The specifics on where the reporting must be submitted will be included in each solicitation and resulting award.

A. Comment: Commenter #2 requested that the text specify that USAID is required to report to Congress on conferences as a main reason for the requirement.

Response: USAID appreciates the recommendation but does not believe a change is necessary.

B. Comment: Commenter #2 also requested clarity on what costs are associated with “costs to ensure the safety of attending government officials.”

Response: These terms and definitions come directly from OMB Memo M-12-12 (“Promoting Efficient Spending to Support Agency Operations”), as amended by OMB Memo M-17-08. OMB notes that “Conference expenses include any associated authorized travel and per diem expenses, hire of rooms for official business, audiovisual use, light refreshments, registration fees, ground transportation, and other expenses as defined by the FTR. . .The FTR provides some examples of direct and indirect conference costs included within conference expenses. See 41 CFR 301-74.2. Conference expenses should be net of any fees or revenue received by the Agency through the conference and should not include costs to ensure the safety of attending governmental officials.” (See OMB Memo M-17-08, footnote 2) USAID, in implementing these OMB memos, adopts these terms as defined in the OMB memos and Federal Travel Regulations and considers a wide array of scenarios for “costs to ensure the safety of attending government officials”. Although not exhaustive, illustrative examples include: the additional costs related to selecting a safe location with historically low crime rates and a venue offering protective services such as security guards and restrictive access technology.

C. Comment: Commenter #2 requested amending the definition of USAID employee to include “Foreign Service Limited”.

Response: USAID believes that the definition as drafted is inclusive of all USAID employees for purposes of conference planning policy—including staff hired under the Foreign Service Limited appointments.

D. Comment: Commenter #2 also indicated that the exceptions should be reviewed for compliance with any reporting under relevant appropriations.

Response: USAID acknowledges the comment and confirms that this clause has been reviewed internally to comply with relevant appropriations requirements.

E. Comment: Commenter #2 suggested deletion of paragraph (c)(4) of the clause 752.231-72 as these conferences are not funded by USAID.

Response: USAID appreciates the recommendation but does not believe a change is necessary. This section outlines a circumstance when USAID funding is not being used for the venue but is being used for costs associated with USAID employees and/or Personal Services Contractors attending or light refreshments. Although USAID is partially funding costs associated with the conference, prior approval is not required in this very specific situation to reduce burden on contractors.

F. Comment: Commenter #2 also requested clarity on whether the information outlined in (f)(1)-(6) is needed to request approval of a conference.

Response: The information required to request prior approval of a conference is outlined in section 752.231-72(f)(1) through (7). These items must be submitted.

A. Comment: Commenter #2 requested definitions for the terms “gray area”, “prohibited activity”, and “activity” generally.

Response: The Agency makes a determination whether the clause applies or not during the planning phase, in accordance with Agency policy outlined in Automated Directives System (ADS) Chapter 225 (used as a reference here). The term “gray area” is not included in the contract clause 752.226-70 and does not need to be defined. For informational purposes, contractors may review definitions and guidance of these terms as outlined in ADS 225. USAID is not establishing any new definition of “activity.” Rather, “activity” has the same meaning as used throughout the AIDAR. More specifically, an activity relates to any effort performed by the contractor within the scope of work.

B. Comment: Commenter #2 requested more clarity on the phrase “authorized by USAID” to ask who would be responsible for authorization. They referred specifically to AIDAR 752.226-70(a) which indicates that “no funds . . . may be used” unless “specifically set forth in this contract or otherwise authorized by USAID in writing”.

Response: Contractors should communicate with their Contracting Officer who will issue an approval in accordance with Agency guidance.

Executive Order (E.O.) 12866, Regulatory Planning and Review, as amended and reaffirmed by E.O. 13563, “Improving Regulation and Regulatory Review,” and E.O. 14094, “Modernizing Regulatory Review,” directs agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined “nonsignificant” under E.O. 12866. This rule is not a major rule under 5 U.S.C. 804.

USAID does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Therefore, an Initial Regulatory Flexibility Analysis has not been performed.

This rule contains information collection requirements that have been approved by the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). This information collection requirement has been assigned OMB Control Number 0412-0619, entitled “AIDAR: Foreign Tax Reporting, Conference Planning, and Trade and Investment Activities”.

For the reasons discussed in the preamble, USAID amends 48 CFR Chapter 7 as set forth below:

NMFS and the Council manage the Gulf reef fish fishery, which includes greater amberjack, under the FMP. The Council prepared the FMP and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).

On March 2, 2023, NMFS published a notice of availability for Amendment 54 and requested public comment (88 FR 13077). NMFS approved Amendment 54 on May 26, 2023. On March 10, 2023, NMFS published a proposed rule for Amendment 54 and requested public comment (88 FR 14964). The proposed rule and Amendment 54 outline the rationale for the actions contained in this final rule. A summary of the management measures described in Amendment 54 and implemented by this final rule is described below.

All weights in this final rule are in round weight unless otherwise noted.

Greater amberjack in the Gulf exclusive economic zone (EEZ) are managed as a single stock with commercial and recreational annual catch limits (ACLs) and annual catch targets (ACTs) (quotas). The allocation of the stock ACL between the commercial and recreational sectors is 27 percent commercial and 73 percent recreational and was implemented through Amendment 30A to the FMP in 2008 (73 FR 38139, July 3, 2008). In Amendment 30A, the Council initially decided to establish sector allocations based on the long-term average landings from the recreational and commercial sectors from 1981 through 2004. However, during that amendment's development, the Council noted that the early years of the time series were primarily recreational landings (84 percent of landings from 1981-1987) while the most recent years in the allocation time series (2001-2004) had increasing landings by the commercial sector (32 percent of landings from 2001-2004). Ultimately, the Council then agreed to an allocation that reassigned 2 percent of the commercial allocation to the recreational sector and established the current sector allocation.

Greater amberjack has been under a rebuilding plan since 2003. This rebuilding plan was implemented with Secretarial Amendment 2 and was expected to rebuild the stock by 2010 (68 FR 39898, July 3, 2003). In 2006, the Southeast Data, Assessment, and Review (SEDAR) 9 assessment showed that the greater amberjack stock was not recovering as previously projected. The stock continued to be overfished and was experiencing overfishing. The Council developed Amendment 30A to end overfishing and rebuild the stock by 2010, consistent with the time frame of the original rebuilding plan. In 2010, the SEDAR 9 Update was completed and indicated that the stock remained overfished and was continuing to experience overfishing. In response, the Council developed Amendment 35 to the FMP (77 FR 67574, December 13, 2012). The management measures implemented in Amendment 35 were expected to end overfishing; however, it could not be determined if the stock would meet its rebuilding schedule until a new benchmark assessment was completed. In 2014, the SEDAR 33 benchmark stock assessment was completed and showed that greater amberjack remained overfished, was experiencing overfishing as of 2012, and did not meet the rebuilding time established in Secretarial Amendment 2. In 2015, the Council developed a framework action that further reduced the sector ACLs and ACTs in an effort to end overfishing and rebuild the stock by the end of 2019 (80 FR 75432, December 2, 2015). In 2016, the SEDAR 33 Update assessment was completed and showed that greater amberjack was still overfished and undergoing overfishing as of 2015 and the stock would not be rebuilt by 2019 as previously projected. In 2017, NMFS notified the Council that the stock was not making adequate progress towards rebuilding and the Council developed a framework action to modify the rebuilding time and the catch levels. The framework action, which was implemented in 2018, reduced sector ACLs and ACTs in an effort to end overfishing and rebuild the stock by 2027 (82 FR 61485, December 28, 2017).

The SEDAR 70 assessment for Gulf greater amberjack was completed in November 2020, and indicated that the Gulf greater amberjack stock continued to be overfished and undergoing overfishing, but could rebuild by 2027 with reduced yields. NMFS informed the Council of these determinations in a letter dated April 7, 2021, and the Council began work on Amendment 54 to update the greater amberjack rebuilding plan.

The SEDAR 70 assessment used updated recreational catch and effort data from the Marine Recreational Information Program (MRIP) Access Point Angler Intercept Survey (APAIS) and Fishing Effort Survey (FES). MRIP began incorporating a new survey design for APAIS in 2013 and replaced the Coastal Household Telephone Survey (CHTS) with FES in 2018. Prior to the implementation of MRIP in 2008, recreational landings estimates were generated using the Marine Recreational Fisheries Statistics Survey (MRFSS). As explained in Amendment 54, total recreational fishing effort estimates generated from MRIP-FES are generally higher than both the MRFSS and MRIP-CHTS estimates. Although both MRIP-CHTS and MRIP-FES generate estimates measured in pounds of fish, these estimates are not directly comparable. To signify that the estimates use different scales, this rule uses the terms “MRIP-CHTS units” and “MRIP-FES units” to describe the recreational catch limits. To illustrate the difference in the survey estimates, the Southeast Fisheries Science Center (SEFSC) conducted an analysis to determine what the current greater amberjack stock ACL of 1,794,000 lb (813,745 kg) (MRIP-CHTS units) would be in MRIP-FES units. That analysis showed that greater amberjack stock ACL would be estimated at 2,930,000 lb (1,329,026 kg) (MRIP-FES units). This difference in the stock ACL is because MRIP-FES is designed to more accurately measure fishing effort, not because there was a sudden increase in fishing effort.

Based on the results of SEDAR 70, the Council's Scientific and Statistical Committee (SSC) recommended a decrease in the overfishing level (OFL) and acceptable biological catch (ABC) to end overfishing of greater amberjack and allow the stock to meet its current rebuilding time. Since these catch level recommendations assumed status quo sector allocations (27 percent commercial and 73 percent recreational), which were based in part on 1981-2004 landings estimates generated using data generated by MRFSS, the Council requested that the SEFSC provide alternative catch level projections based on sector allocation alternatives that used MRIP-FES data and several different time series: the same time series used in Amendment 30A (1981-2004); a time series that begins when commercial greater amberjack landings were identified by species and ends prior to the implementation of the current sector allocations, sector catch limits, and accountability measures (AMs) (1993-2007); and a time series that begins when commercial greater amberjack landings were identified by species and ends with the most recent data available at the time the alternatives were developed (1993-2019). The Council's SSC reviewed these alternative sector allocation analyses and affirmed its prior determination that SEDAR 70 represented, and the projections produced by the assessment are, the best scientific information available.

The commercial and recreational allocation percentages impact the catch level projections. As more of the stock ACL is allocated to the recreational sector, the proportion of recreational discards increases. The recreational discard mortality rate (10 percent) is assumed to be less than the commercial discard mortality rate (20 percent). However, the magnitude of recreational discards is considerably greater than commercial discards because there are more recreational fishermen. Generally, a fish caught and released by a recreational fishermen has a greater likelihood of survival than a fish released by a commercial fishermen because of the differences in how and where the sectors fish. However, because of the greater numbers of greater amberjack that are released by the recreational sector versus the commercial sector, the total number of discards that die from the recreational fishing exceeds those attributed to commercial fishing. This results in additional mortality for the stock and a lower projected annual yield, which results in a reduced OFL, ABC, and stock ACL. However, this is not a result of any change in how the recreational sector prosecutes the fishery but occurs because MRIP-FES estimates higher levels of fishing effort, and consequently a greater number of fish being caught, which includes discards and the associated mortality of discarding fish.

In Amendment 54, the Council recognized that maintaining the current sector allocation percentages would disproportionally impact on the recreational sector given the transition to MRIP-FES and that maintaining the current time series updated with MRIP-FES data would disproportionally impact the commercial sector by failing to account for the fact that commercial landings of greater amberjack prior to 1993 may not have been properly identified. The Council decided to adjust the allocation in Amendment 54 using the 1993-2019 time series because this represents the longest time series during which commercial greater amberjack landings have been identified by species. This results in a shift of the commercial and recreational allocation from 27 percent and 73 percent, respectively, to 20 percent and 80 percent, respectively.

The catch levels recommended by the SSC would increase the allowable harvest each year through the end of the rebuilding plan in 2027. However, the Council determined that because the greater amberjack stock has not rebuilt as expected under the current and previous rebuilding plans, a more cautious approach is necessary. Therefore, Amendment 54 and this proposed rule would adopt a constant catch strategy and modify the OFL and ABC to be 2,033,000 lb (922,153 kg) and 505,000 lb (229,064 kg), respectively. The stock ACL would be equal to the ABC.

This final rule revises the sector ACLs and ACTs for Gulf greater amberjack.

The current stock ACL for Gulf greater amberjack is equal to the ABC of 1,794,000 lb (813,745 kg), and the current sector ACLs for Gulf greater amberjack are 484,380 lb (219,711 kg) for the commercial sector and 1,309,620 lb (594,034 kg) for the recreational sector. These catch levels are based on the results of SEDAR 33 Update, which used data from MRIP-CHTS. As explained above, had the current stock ACL been derived using MRIP-FES data, it would have been 2,930,000 lb (1,329,026 kg). Amendment 54 would reduce the stock ACL for Gulf greater amberjack to 505,000 lb (229,064 kg). Applying the allocation selected by the Council in Amendment 54 results in a revised commercial ACL of 101,000 lb (45,813 kg) and a revised recreational ACL of 404,000 lb (183,251 kg).

The Council applied its ACL/ACT Control Rule using landings data for 2013-2016 to set the current commercial and recreational sector buffers between the ACL and ACT. This results in reduction in the buffer between the commercial ACL and ACT from 13 percent to 7 percent. The buffer between the recreational ACL and ACT remains at 17 percent. Applying these buffers results in a revised commercial ACT of 93,930 lb (42,606 kg) and a revised recreational ACT of 335,320 lb (152,099 kg).

The current OFL and ABC for Gulf greater amberjack are 2,167,000 lb (982,935 kg) and 1,794,000 lb (813,745 kg), respectively, and are based on the Council's SSC's recommendations from the SEDAR 33 Update, which used recreational landings estimates from MRIP-CHTS. Amendment 54 uses a constant catch OFL and ABC based on SEDAR 70 and consistent with the SSC's recommendations. The revised OFL is 2,033,000 lb (922,153 kg) and the revised ABC is 505,000 lb (229,064 kg).

The current sector allocation of the stock ACL (equal to the ABC) is 27 percent to the commercial sector and 73 percent to the recreational sector. Amendment 54 revises the Gulf greater amberjack allocation between the commercial and recreational sectors by using the average landings from 1993-2019 using MRIP-FES landings for this time series. This results in a new allocation of the Gulf greater amberjack stock ACL of 20 percent for the commercial sector and 80 percent for the recreational sector.

NMFS received 6 comments on the notice of availability for Amendment 54 and 13 comments on the proposed rule. In general, the comments supported the proposed measures to end overfishing and meet the rebuilding timeline for Gulf greater amberjack. However, some comments expressed concern about the change to MRIP-FES units and the increased percentage of the total ACL allocated to the recreational sector under the reduced catch limits. One comment stated that the Council is unconstitutional. Other comments stated the stock is fine and no catch limit reductions are needed. Some comments suggested changes to management measures that are outside the scope of the Amendment 54 and the proposed rule, such as modifying the recreational bag limit, implementing a recreational vessel limit, modifying the commercial size limit, or modifying fixed closed seasons; these comments are not addressed further.

No changes were made to this final rule as a result of public comment.

Specific comments related to Amendment 54 and the proposed rule are grouped by topic and summarized below, followed by NMFS' respective responses.

Comment 1: The Council did not follow its Allocation Review Policy, which states that “prior to each allocation review, the Council will determine the suite of ecological, biological, economic, and social factors consistent with the NMFS Allocation Review Policy to be included in the review.” Instead the Council only reviewed a presentation that identified where in Amendment 54 an allocation review took place.

Response: The Council did not follow its Allocation Review Guidelines in developing Amendment 54 because those guidelines were not applicable in this situation. As explained in the Allocation Review Guidelines, “[i]n some instances, e.g., following a stock assessment, the Council may elect to skip a formal allocation review and directly proceed with the development of an FMP amendment. In these cases, these guidelines would not apply.” That is what occurred with Amendment 54, which was developed in response to the most recent stock assessment (SEDAR 70) that indicated that the greater amberjack stock was not making adequate progress towards rebuilding. Because that stock assessment also incorporated the updated MRIP-FES recreational landings estimates, the Council also used Amendment 54 to review the sector allocations to determine whether an adjustment to the allocation was appropriate.

Comment 2: Amendment 54 is inconsistent with section 303(a)(15) of the Magnuson-Stevens Act because the OFL and ACLs include only landed fish, not both landed and discarded fish as required by the National Standard (NS) 1 (NS 1) Guidelines.

Response: Section 303(a)(15) of the Magnuson-Stevens Act requires the FMP to include ACLs, at a level such that overfishing does not a occur, and AMs. The NS 1 Guidelines define catch as including both landed fish and dead discards (50 CFR 600.310(f)(3)(i)). However, the NS 1 Guidelines also state that the ABC, on which the ACLs are based, may be expressed in terms of landings as long as estimates of bycatch and any other fishing mortality not accounted for in the landings are incorporated into the determination of ABC. The OFL, ABC, and ACLs specified in Amendment 54 are derived from SEDAR 70, which accounts for dead discards (see Sections 2.3.2 and 3.1 at https://sedarweb.org/documents/sedar-70-gulf-of-mexico-greater-amberjack-final-stock-assessment-report/ ).

Comment 3: The allocation adopted by the Council in Amendment 54 increases the risk of overfishing because of the high level of dead discards from the recreational sector.

Response: The allocation adopted by the Council in Amendment 54 does not increase the risk of overfishing. The OFLs and ABCs recommended the SSC were derived from SEDAR 70, which accounts for dead discards by both sectors, and the risk of overfishing to the stock is the same under all of the allocation alternatives considered by the Council. The alternative OFLs (shown in the Action 1 Tables in Amendment 54 (pages 13-15)) are based on a 0.5 probability of overfishing (P*). A P* of 0.5 means that there is a 50 percent chance of overfishing at that level of harvest. The alternative ABCs in Amendment 54 are substantially below the OFL alternatives and correspond to a 50 percent chance of rebuilding by 2027. Further, while the total ACL is set equal to the ABC, there is a buffer between each sector's respective ACL and ACT.

Comment 4: It is arbitrary to automatically reallocate from the commercial sector to the recreational sector based on the revised MRIP-FES landing estimates. In addition, the adjusted historical recreational landings estimates are uncertain and reservations about the data should be resolved before they are used for allocation decisions.

Response: The inclusion of the MRIP-FES landings estimates in SEDAR 70 did not result in an automatic sector reallocation. However, this change in the recreational landings estimates did prompt the Council to review the current commercial and recreational allocation to determine whether it was still appropriate. The Council conducted this review in Amendment 54 and considered four allocation alternatives: maintaining the current percentages; maintaining the time series used to set the current allocation (1981-2004) updated with MRIP-FES landings estimates; updating the time series to start when commercial greater amberjack landings began to be identified to species level and end when the current allocation was implemented (1993-2007); and updating the time series to start when commercial greater amberjack landings began to be identified to species level and end with the most recent year of data available at the time Council work on this amendment began (1993-2019). The Council determined, and NMFS agrees, that it is appropriate to update the sector allocations using the MRIP-FES adjusted data from 1993-2019 because this represented the longest time series during which commercial greater amberjack landings have been identified to the species level.

NS 2 requires that conservation and management measures be based upon the best scientific information available. NMFS has determined that Amendment 54 is consistent with NS 2 and that the MRIP-FES landings estimates represent the best scientific information available. This determination is supported by a February 2, 2023, memorandum from the SEFSC as well as the recommendations from the Council's SSC. The SEDAR 70 stock assessment incorporated landings data from the MRIP-FES survey, which is considered a better survey than the prior MRIP-CHTS survey (see https://www.fisheries.noaa.gov/recreational-fishing-data/effort-survey-improvements ). In July 2020, the Council's SSC held a workshop on calibrating MRIP-FES and MRIP-CHTS ( https://gulfcouncil.org/ssc/archive/; July 2020). The SSC examined the differences in methodology and outcomes between the fishing effort estimates produced by the different surveys. At that time, the SSC recommended that the Council wait for a stock assessment before adopting a different data unit for quota monitoring, which was done for the greater amberjack stock. As discussed in the Section 2.1 of Amendment 54 (page 15), the SSC accepted SEDAR 70 as the best scientific information available, specifically acknowledging that it utilizes MRIP-FES recreational landings estimates.

Comment 5: Amendment 54 violates NS 4 because the revised sector allocation is not fair and equitable by forcing the commercial sector to subsidize dead discards in the recreational sector. The revised allocation also fails to promote conservation by allowing for an increase in recreational dead discards, reducing overall yield, and increasing the risk of overfishing.

Response: National Standard 4 requires, in relevant part, that any allocation be fair and equitable, and reasonably calculated to promote conservation. NMFS has determined that Amendment 54 is consistent with NS 4. As explained in response to Comment 4, the Council considered four allocation alternatives and chose to update the allocation using the time series that uses the updated MRIP-FES recreational landings estimates, beginning when commercial greater amberjack landings began to be identified to species level and ending with the most recent year of data available at the time work on this amendment began (1993-2019). The Council determined, and NMFS agrees, that this results in an allocation that is fair and equitable because it accounts for both the transition to MRIP-FES and the fact that commercial landings of greater amberjack prior to 1993 may not have been properly identified to the species level.

The commercial sector is not subsidizing dead discards from the recreational sector. Recreational fishing for greater amberjack (and many other reef fish species) typically involves higher levels of discards than for the commercial sector. The allocation implemented through this final rule does result in less total annual harvest by both sectors. However, the commercial and recreational sectors have different objectives, and operate differently to achieve those objectives. Participants in the commercial sector tend to seek to maximize harvest and efficiency while participants in the recreational sector tend to seek to maximize access and opportunities. These different goals and objectives impact fishing behavior, which generally results in more discards by the recreational sector. The Council and NMFS must consider and account for these differences when determining whether an allocation fairly and equitably allocates fishing privileges and provides the greatest overall benefit to the Nation with respect to both food production and recreational opportunities. Further, the reduction that results from the shift in allocation is relatively minor. Using the new allocation results in an ABC/stock ACL of 505,000 lb (229,064 kg) while using the previous allocation would have resulted in an ABC/stock ACL of 521,000 lb (236,322 kg). The large reduction in the total allowable harvest in Amendment 54 is not a result of the shift in allocation but the result of SEDAR 70 and the determination that the stock is not making adequate progress towards rebuilding.

With respect to promoting conservation, the NS 4 Guidelines state that a conservation and management measure “may promote conservation (in the sense of wise use) by optimizing the yield in terms of size, value, market mix, price, or economic or social benefit of the product.” The revised allocation promotes wise use by considering both the biological impacts to the greater amberjack stock, and the economic and social impacts to fishery participants. The allocation and associated catch limits are consistent with the result of SEDAR 70 and the SSC's recommendations, and are expected to allow the stock to rebuild by 2027. As explained previously, the revised allocation results in a relatively minor reduction of the total yield while maintaining the historical balance between recreational access and commercial harvest. And, as explained in response to Comment 3, the risk of overfishing is the same for all of the allocation alternatives. To further reduce the risk, the seasons for the commercial and recreational sectors are determined based on the ACT, which is reduced from each sector's ACL. For the recreational sector, the Council retained the buffer between the ACL and ACT of 17 percent to better account for the uncertainty in monitoring recreational landings. Further, if recreational landings exceed the recreational ACL, the recreational ACL and ACT are reduced the following year by the amount of the recreational ACL overage. The Council also selected a constant catch reduced catch limit to be more conservative and increase the chances of meeting rebuilding.

With respect to dead discards, SEDAR 70 assumes that dead discards from the recreational sector increase as the allocation to that sector increases, but does not take into account that fishermen are able to specifically target greater amberjack and a catch and release fishery is already occurring in the recreational sector. Thus, discards are not expected to substantially increase, even under the reduced catch limits.

Comment 6: Amendment 54 violates NS 9 because the revised allocation would increase bycatch and dead discards from the recreational sector.

Response: NS 9 requires that conservation and management measures, “to the extent practicable: (1) minimize bycatch; and (2) to the extent bycatch cannot be avoided, minimize the mortality of such bycatch.” Conservation and management measures must also be consistent with the other national standards. As the National Standard Guidelines explain, several factors should be considered when determining consistency with NS 9. These factors include population effects for the bycatch species; changes in the economic, social, or cultural value of fishing activities, and non-consumptive uses of fishery resources; changes in the distribution of benefits and costs; and social effects (50 CFR 600.305(d)(3)). As explained in response to Comment 3, the impacts to the greater amberjack stock are similar under all of the allocation alternatives considered by the Council because the alternative OFLs are based on a fixed level of fishing mortality. When the inputs into the stock assessment model include more recreational harvest than previously assumed, this leads to lower OFL and ABC estimates at equilibrium. Therefore, the new allocation allows for less total harvest than the current allocation. However, the difference between the reduced ABCs under all of the action alternatives is minimal, and a substantial reduction in the total ACL is required under any of the allocation alternatives. In addition, the new allocation addresses the updated recreational landings estimates using MRIP-FES and issues with commercial reporting prior to 1993, as well as to incorporate landings data from more recent years. Given the numerous factors that the Council must consider in selecting the appropriate allocation, Amendment 54 does minimize bycatch and bycatch mortality to the extent practicable.

Comment 7: The greater amberjack stock seems healthy and, therefore, the actions in Amendment 54 are not needed.

Response: The first stock assessment of greater amberjack was completed in 2000 and indicated that the stock was overfished and undergoing fishing. The greater amberjack stock was then put under a rebuilding plan with Secretarial Amendment 2 in 2003 and has been in one ever since. Since the initial stock assessment, several more assessments have shown that greater amberjack continues to undergo overfishing and is not rebuilding as projected. SEDAR 70 was completed in October 2020, and used a terminal year of 2018. SEDAR 70 updated recreational catch and effort data from MRIP-APAIS and CHTS to FES, which collectively estimated larger catch and effort data than previously calculated for the recreational sector. The assessment concluded that greater amberjack in the Gulf was overfished and experiencing overfishing and has been overfished and undergoing overfishing almost continuously since 1980. It also indicated that a significant reduction in harvest is necessary to rebuild by the stock by 2027, the rebuilding time established by the Council in 2017. For the purposes of OFL and ABC, these projections recommended by the SSC form the basis for the allocation alternatives in Amendment 54. Amendment 54 is based on the best scientific information available that was in place at the time of its development. The Council began work on this amendment in January 2021, and took final action to submit the amendment for review and implementation during its October 2022 meeting.

Comment 8: The reduction in the total ACL will have extreme adverse economic effects on the commercial sector and associated businesses. These adverse economic effects to the commercial sector and associated businesses will be amplified by the change in the sector allocation.

Response: The economic analysis in Amendment 54 indicates that the reduction in the total ACL and change in the sector allocation will have adverse economic effects on the commercial sector. However, in combination with the action to reduce the buffer between the commercial ACL and ACT, the estimated reduction in economic profits to commercial harvesting businesses is only 1.6 percent because greater amberjack only accounts for about 1.7 percent of commercial fishing vessels' average annual revenue. Given that economic profits are approximately 38 percent of these vessels' annual average gross revenue, this reduction would not be considered extreme. In comparison, the estimated reduction in economic profits to for-hire fishing businesses as a result of the actions in Amendment 54 is much larger at more than 13 percent. Further, the reduction to the commercial ACT as a result of the actions in Amendment 54 is expected to reduce the amount of greater amberjack available for purchase by dealers and other businesses up the seafood supply chain. However, greater amberjack only accounts for about 1 percent of seafood purchases by dealers who buy greater amberjack. Therefore, the adverse economic effects to dealers and other businesses as a result of the reduction in the commercial ACT are expected to be relatively small.

Comment 9: The Council process under the Magnuson-Stevens Act violates the Appointments, Executive Vesting, and Take Care clauses of the U.S. Constitution and, as a result, this rulemaking is legally invalid. Council members are not properly appointed to their positions as officers of the United States. Because they make policy decisions for Federal fisheries management in their region, Council members are ‘principal’ or at minimum ‘inferior’ Federal officers. But because they are improperly appointed, unsupervised, and immune from removal, they hold office unlawfully and lack the Federal authority to issue Amendment 54.

Response: The commenters misunderstand the function and authority of the Council, which is neither an “unaccountable” or “illegally constituted” body. The Magnuson-Stevens Act establishes the Council structure in order for state officials, fishermen, scientists, and other stakeholders to provide important expert input on fishery management. But the Council acts as an advisory body only: authority to issue Federal regulations to implement fishery management measures that impact fishermen is vested solely in the Secretary of Commerce. This final rule implements Amendment 54, which NMFS, through delegation of authority from the Secretary, has approved as consistent with the Magnuson-Stevens Act and other applicable law. Under section 304 of the Magnuson-Stevens Act, NMFS, acting through delegated authority from the Secretary, retains significant discretion to reject Council recommendations, including the proposed regulations that the Council submitted to NMFS to implement Amendment 54.

In addition, Federal courts have held that fishery management councils are not considered Federal agencies for the purposes of the Administrative Procedure Act and that Council members are not Federal “officers” under the U.S. Constitution as suggested by the commenters. Council members do not occupy continuing positions or exercise significant authority. As simply stated by one court, fishery management councils have “no authority to do anything” because final decision-making power rests with the Secretary. In light of this lack of Federal agency status and decision making authority, the council members are not Federal officers and need not be appointed in a specific way to be consistent with the U.S. Constitution. The commenters' view that council members act as Federal officers is inaccurate; although council members are engaged in important work that helps manage regional fisheries, it is the Secretary who exercises the authority of the Magnuson-Stevens Act by promulgating the regulations that affect the commenters.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with Amendment 54, the FMP, other provisions of the Magnuson-Stevens Act, the U.S. Constitution, and other applicable law.

This final rule has been determined to be not significant for purposes of Executive Order 12866. The Magnuson-Stevens Act provides the legal basis for this final rule. No duplicative, overlapping, or conflicting Federal rules have been identified.

A final regulatory flexibility analysis (FRFA) was prepared. The FRFA incorporates the initial regulatory flexibility analysis (IRFA), a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' responses to those comments, and a summary of the analyses completed to support the action. NMFS' response to one public comment regarding the IRFA and the Executive Order 12866 analysis is in this SUPPLEMENTARY INFORMATION section of the preamble (see Comment #8 in the Comments and Responses). A copy of the full analysis is available from NMFS (see ADDRESSES ). A summary of the FRFA follows.

The objectives of this final rule are to end overfishing and rebuild the greater amberjack stock as required by the Magnuson-Stevens Act, and update existing greater amberjack catch limits and allocations to be consistent with the best scientific information available, FMP objectives, and contemporary data collection methods. All monetary estimates in the following analysis are in 2020 dollars.

This final rule revises the sector allocations of the total ACL for Gulf greater amberjack from 73 percent for the recreational sector and 27 percent for the commercial sector to 80 percent for the recreational sector and 20 percent for the commercial sector. The current OFL, ABC, and total ACL are 2.167 million lb (982,935 kg), 1.794 million lb (813,745 kg), and 1.794 million lb (813,745 kg), respectively. The recreational portion of these values are based on MRIP-CHTS data. This final rule changes the OFL and ABC to 2.033 million lb (922,153 kg) and 505,000 lb (229,064 kg), respectively, consistent with the results of the most recent stock assessment and the recommendations of the Council's SSC, and set the total ACL equal to the ABC of 505,000 lb (229,064 kg). The recreational portion of these values are based on MRIP-FES data. Applying the new sector allocations changes the recreational ACL from 1,309,620 lb (594,033 kg) in MRIP-CHTS units to 404,000 lb (183,251 kg) in MRIP-FES units and reduces the commercial ACL from 484,380 lb (219,675 kg) to 101,000 lb (45,812 kg). This final rule retains the current 17 percent buffer between the recreational ACL and ACT. As such, the recreational ACT is revised from 1,086,985 lb (493,048 kg) in MRIP-CHTS units to 335,320 lb (152,099 kg) in MRIP-FES units given the final reduction in the recreational ACL. This final rule also decreases the buffer between the commercial ACL and ACT from 13 percent to 7 percent, and thereby reduces the commercial ACT from 421,411 lb (191,148 kg) to 93,930 lb (42,606 kg) given the reduction in the commercial ACL. As a result, this final rule is expected to regulate commercial and charter vessel/headboat (for-hire) fishing businesses that harvest Gulf greater amberjack.

A valid commercial Gulf reef fish vessel permit is required in order for commercial fishing vessels to legally harvest greater amberjack in the Gulf. At the end of 2020, 837 vessels possessed a valid commercial Gulf reef fish vessel permit. However, not all vessels with a commercial Gulf reef fish permit actually harvest greater amberjack in the Gulf. From 2016 through 2020, the average number of vessels that commercially harvested Gulf greater amberjack was 201. Ownership data regarding vessels that harvest Gulf greater amberjack is incomplete. Therefore, accurately determining affiliations between these particular vessels is not currently feasible. Because of the incomplete ownership data, for purposes of this analysis, NMFS assumes each of these vessels is independently owned by a single business, which NMFS expects to result in an overestimate of the actual number of businesses directly regulated by this final rule. Thus, NMFS assumes this final rule would regulate and directly affect 201 commercial fishing businesses.

Although the changes to the recreational ACL and ACT would apply to recreational anglers, the RFA does not consider recreational anglers to be entities. Small entities include small businesses, small organizations, and small governmental jurisdictions (5 U.S.C. 601(6) and 601(3)-(5)). Recreational anglers are not businesses, organizations, or governmental jurisdictions and so they are outside the scope of this analysis (5 U.S.C. 603).

A valid charter vessel/headboat Gulf reef fish vessel permit is required in order for for-hire vessels to legally harvest greater amberjack in the Gulf. NMFS does not possess complete ownership data regarding vessels that hold charter vessel/headboat Gulf reef fish vessel permits, and thus potentially harvest greater amberjack. Therefore, accurately determining affiliations between these vessels and the businesses that own them is not currently feasible. As a result, for purposes of this analysis, NMFS assumes each for-hire vessel is independently owned by a single business, which NMFS expects to result in an overestimate of the actual number of for-hire fishing businesses regulated by this final rule.

This final rule is only expected to alter the fishing behavior of for-hire vessels that target greater amberjack in the Gulf ( i.e., the behavior of for-hire vessels that incidentally harvest greater amberjack in the Gulf is not expected to change). Therefore, only for-hire vessels that target greater amberjack in the Gulf are expected to be directly affected by this final rule. NMFS does not possess data indicating how many for-hire vessels actually harvest or target Gulf greater amberjack in a given year. However, in 2020, there were 1,289 vessels with valid charter vessel/headboat Gulf reef fish vessel permits. Further, Gulf greater amberjack is primarily targeted in waters off the west coast of Florida. Of the 1,289 vessels with valid charter vessel/headboat Gulf reef fish vessel permits, 803 were homeported in Florida. Of these permitted vessels, 62 are primarily used for commercial fishing rather than for-hire fishing purposes and thus are not considered for-hire fishing businesses. In addition, 46 of these permitted vessels are considered headboats, which are considered for-hire fishing businesses. However, headboats take a relatively large, diverse set of anglers to harvest a diverse range of species on a trip, and therefore do not typically target a particular species. Therefore, NMFS assumes that no headboat trips would be canceled, and thus no headboats would be directly affected as a result of this final rule. However, charter vessels often target greater amberjack. Of the 803 vessels with valid charter vessel/headboat Gulf reef fish vessel permits that are homeported in Florida, 695 vessels are charter vessels. A recent study reported that 76 percent of charter vessels with valid charter vessel/headboat permits in the Gulf were active in 2017 ( i.e., 24 percent were not fishing). A charter vessel would only be directly affected by this final rule if it is fishing. Given this information, the best estimate of the number of charter vessels that are likely to target Gulf greater amberjack in a given year is 528. Thus, this final rule is estimated to regulate and directly affect 528 for-hire fishing businesses.

For RFA purposes, NMFS has established a small business size standard for businesses, including their affiliates, whose primary industry is commercial fishing (50 CFR 200.2). A business primarily involved in the commercial fishing industry is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and its combined annual receipts (revenue) are not in excess of $11 million for all of its affiliated operations worldwide. From 2016 through 2020, the maximum annual gross revenue earned by a single commercial reef fish vessel during this time was about $1.73 million, while the average annual gross revenue for a vessel commercially harvesting Gulf greater amberjack was $190,612. Based on this information, all commercial fishing businesses regulated by this final rule are determined to be small entities for the purpose of this analysis.

For other industries, the Small Business Administration has established size standards for all major industry sectors in the U.S., including for-hire businesses (North American Industry Classification System (NAICS) code 487210). A business primarily involved in for-hire fishing is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has annual receipts (revenue) not in excess of $12.5 million for all its affiliated operations worldwide. NMFS does not have the necessary data to estimate the maximum annual gross revenue for all regulated charter vessels. However, the maximum annual gross revenue for a single headboat in the Gulf was about $1.38 million in 2017. On average, annual gross revenue for headboats in the Gulf is about three times greater than annual gross revenue for charter vessels. Based on this information, all for-hire fishing businesses regulated by this final rule are determined to be small businesses for the purpose of this analysis.

NMFS expects this final rule to directly affect 201 of the 837 vessels with commercial Gulf reef fish permits, or approximately 24 percent of those commercial fishing businesses. Further, this final rule is expected to directly affect 528 of the 1,227 for-hire fishing businesses with valid charter vessel/headboat permits in the Gulf reef fish fishery, or approximately 43 percent of those for-hire fishing businesses. All regulated commercial and for-hire fishing businesses have been determined, for the purpose of this analysis, to be small entities. Based on this information, this final rule is expected to affect a substantial number of small businesses.

For vessels that commercially harvest greater amberjack in the Gulf, currently available data indicates that economic profits are approximately 38 percent of annual average gross revenue. Given that their average annual gross revenue is $190,612, annual average economic profit per vessel is estimated to be approximately $72,433. The action to change the sector allocations and the total ACL would reduce the commercial ACL and thus also reduce the commercial ACT (commercial quota). The commercial quota, which is used to constrain harvest, will decrease from 421,411 lb (191,149 kg) to 87,870 lb (39,857 kg). However, average commercial landings of Gulf greater amberjack were 429,113 lb (194,642 kg) from 2015-2019. Thus, the reduction in commercial landings is expected to be 341,243 lb (154,785 kg), or 328,119 lb (148,832 kg), gutted weight. This reduction in commercial landings is not expected to increase the average ex-vessel price due to the relatively high number of substitute products ( e.g., imports, other reef fish species landed in the Gulf and South Atlantic, etc. ). Thus, assuming the average ex-vessel price of $1.92 per lb, gutted weight, from 2016-2020, annual gross revenue is expected to decrease by $629,988, and economic profit is expected to decrease by $239,395. On a per vessel basis, annual gross revenue and economic profit are expected to decrease by $3,134 and $1,191, respectively.

Based on the most recent information available, average annual economic profits are approximately $27,000 per charter vessel. The action to change the sector allocations and the total ACL revises the recreational ACL and thus also revises the recreational ACT, which is used to constrain harvest. The change to the recreational ACT is expected to change the length of the recreational fishing season. The recreational ACT reduction is expected to reduce the recreational season length from 123 days to 20 days. From 2018 through 2021, the average number of trips targeting Gulf greater amberjack by charter vessels was 14,379. The expected number of target trips under the projected season length of 20 days is 1,221 trips, and thus target trips are expected to decline by 13,158 trips. Net Cash Flow per Angler Trip (CFpA) is the best available estimate of profit per angler trip by charter vessels. CFpA on charter vessels is estimated to be $143 per angler trip. Thus, the estimated reduction in charter vessel profits from this action is expected to be about $1.882 million, or $3,564 per for-hire fishing business. Thus, economic profits are expected to be reduced by more than 13 percent on average per for-hire fishing business.

The action to reduce the buffer between the commercial ACL and ACT from 13 percent to 7 percent will increase the commercial ACT by 6,060 lb (2,749 kg), or 5,827 lb (2,643 kg), gutted weight, relative to what it would be under the action to decrease the commercial ACL. Given the significant reduction in the commercial ACL relative to recent average commercial landings, these additional pounds are expected to be harvested. The expected increase in commercial landings is expected to increase average annual gross revenue by $11,188 and thus economic profit by $4,251. On a per vessel basis, annual gross revenue and economic profit are expected to increase by $56 and $21, respectively.

Based on the action to reduce the commercial catch limits and the reduction in the buffer between the commercial ACL and ACT, the total reductions in gross revenue and economic profits for commercial fishing businesses from this rule are expected to be $618,800 and $235,144, respectively. On a per vessel basis, the total reductions in annual gross revenue and economic profit are expected to be $3,079 and $1,170, respectively. Thus, economic profits are expected to be reduced by approximately 1.6 percent on average per commercial fishing business.

Five alternatives, including the status quo, were considered for the action to revise the sector allocations, OFL, ABC, total ACL, and sector ACLs for greater amberjack in the Gulf. The first alternative, the status quo, would have retained the current allocation of the total ACL between the recreational and commercial sectors at 73 percent and 27 percent, respectively. It also would have maintained the OFL, ABC, total ACL, recreational ACL, and commercial ACL at 2.167 million lb (982,935 kg), 1.794 million lb (813,745 kg), 1.794 million lb (813,745 kg), 1,309,620 lb (594,033 kg), and 484,380 lb (219,675 kg), respectively. This alternative was not selected as it would not be based on the best scientific information available and therefore is inconsistent with National Standard 2 of the Magnuson-Stevens Act. Further, this alternative is inconsistent with the SSC's OFL and ABC recommendations.

The second alternative would have maintained the allocation of the total ACL at 73 percent recreational and 27 percent commercial. This alternative would have also revised the OFL and ABC as recommended by the SSC based on this sector allocation and the most recent stock assessment, set the total ACL equal to the ABC, and increased the OFL, ABC, total ACL, and sector ACLs each year through 2027. This alternative would be based on the best scientific information available and is consistent with the SSC's OFL and ABC recommendations. However, this alternative was not selected by the Council because it is partly based on MRFSS data, which significantly underestimates historical landings and effort in the recreational sector and thus does not accurately reflect the importance of Gulf greater amberjack to the recreational sector during the time period used as the basis for the status quo allocation ( i.e., 1981-2004).

The third alternative would have revised the allocation of the total ACL to 84 percent recreational and 16 percent commercial based on landings from the same timeframe as the status quo allocation ( i.e., 1981-2004), but using recreational landings based on MRIP-FES data. This alternative would have also revised the OFL and ABC as recommended by the SSC based on this sector allocation and the most recent stock assessment, set the total ACL equal to the ABC, and increased the OFL, ABC, total ACL, and sector ACLs each year through 2027. The Council recognized that the greater amberjack stock is overfished and has not rebuilt as expected under the current and previous rebuilding plans. This alternative was not selected by the Council because the allocation is based on years during which commercial landings of greater amberjack were not identified at the species level. In addition, the catch limits increased over time and the Council determined that a more cautious approach was warranted with respect to establishing future catch levels.

The fourth alternative would have revised the allocation of the total ACL to 78 percent recreational and 22 percent commercial based on MRIP-FES average landings during the years 1993 through 2007. This alternative would have also revised the OFL and ABC as recommended by the SSC based on this sector allocation and the most recent stock assessment, set the total stock ACL equal to the ABC, and increased the OFL, ABC, total ACL, and sector ACLs each year through 2027. The Council recognized that the greater amberjack stock is overfished and has not rebuilt as expected under the current and previous rebuilding plans. This alternative was not selected by the Council because the allocation does not include the more recent years, which reflect current participation. In addition, the catch limits would increase over time and the Council determined that a more cautious approach was warranted with respect to establishing future catch levels.

The fifth alternative would have revised the allocation of the total ACL to 80 percent recreational and 20 percent commercial based on MRIP-FES average recreational landings during the years 1993 through 2019. This alternative would have also revised the OFL and ABC as recommended by the SSC based on this sector allocation and the most recent stock assessment, set the total stock ACL equal to the ABC, and increased the OFL, ABC, total ACL, and sector ACLs each year through 2027. The Council did not select this alternative because the greater amberjack stock is overfished and has not rebuilt as expected under the current and previous rebuilding plans. Therefore, the Council determined that a more cautious approach was warranted with respect to establishing future catch levels.

Two alternatives, including the status quo, were considered for the action to decrease the buffer between the commercial ACL and ACT from 13 percent to 7 percent. The first alternative, the status quo, would have retained the current 13 percent buffer. This alternative was not selected by the Council because it is based on commercial landings data from 2013-2016 and more recent commercial landings data are available and considered to be more representative of current commercial fishing practices.

The second alternative would have reduced the buffer between the commercial ACL and ACT from 13 percent to 7 percent, but would have also reduced the recreational buffer from 17 percent to 13 percent, based on landings data from 2017-2020. This alternative was not selected by the Council because landings in 2020 were likely affected by the COVID-19 pandemic, as reflected by the lack of closures that are common in this fishery, and thus are likely not representative of typical recreational fishing practices.

Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, NMFS prepared a fishery bulletin, which also serves as a small entity compliance guide. Copies of this final rule are available from the Southeast Regional Office, and the guide, i.e., fishery bulletin, will be sent to all known industry contacts in the Gulf reef fish fishery and be posted at: https://www.fisheries.noaa.gov/tags/small-entity-compliance-guide?title=&field_species_vocab_target_id=&field_region_vocab_target_id%5B1000001121%5D=1000001121&sort_by=created. The guide and this final rule will be available upon request.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

NMFS finds good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the effective date for changes to the commercial quota and ACL specified in 50 CFR 622.39(a)(1)(v) and 622.41(a)(1)(iii). The most recent landings estimates indicate that commercial harvest of greater amberjack for this fishing year has reached the revised commercial quota and ACL implement in this final rule. The commercial AMs require NMFS to prohibit harvest of greater amberjack when commercial landings reach or are projected to reach the commercial ACT (quota) and if commercial landings exceed the commercial ACL, then during the following fishing year, both the commercial quota and the commercial ACL must be reduced by the amount of any commercial ACL overage. Commercial harvest of greater amberjack is prohibited during March, April, and May each year under 50 CFR 622.36(a), reopening on June 1. NMFS is unable to prohibit further commercial harvest under the AMs unless the reduced quota in this final rule is effective. If harvest continues during the 2023 fishing year, it is likely to result in a significant overage of the new commercial ACL, which would require NMFS to reduce the commercial quota for the 2024 fishing year. If the overage exceeds the reduced quota in this final rule, no commercial harvest of greater amberjack would be permitted in 2024. Therefore, it is necessary to have the revised commercial catch levels in this final rule effective upon publication. This will allow NMFS to implement the required AM based on the revised quota and provide commercial harvest opportunities in 2024 by limiting any required reduction in the 2024 quota. A waiver of the 30-day delay in effectiveness for the recreational quota and ACL specified in 50 CFR 622.39(a)(2)(ii) and 622.41(a)(2)(iii) is not necessary because recreational harvest is prohibited until August 1, as a result of an annual seasonal closure.

For the reasons set out in the preamble, NMFS amends 50 CFR part 622 as follows:

NMFS is specifying a 2023 catch limit of 2,000 t of longline-caught bigeye tuna for each U.S. Pacific territory. NMFS is also authorizing each territory to allocate up to 1,500 t of its 2,000 t bigeye tuna limit, not to exceed a 3,000 t total annual allocation limit among all the territories, to U.S. longline fishing vessels permitted to fish under the FEP. A specified fishing agreement with the applicable territory must identify those vessels.

NMFS will monitor catches of longline-caught bigeye tuna by the longline fisheries of each U.S. Pacific territory, including catches made by U.S. longline vessels operating under specified fishing agreements. The criteria that a specified fishing agreement must meet, and the process for attributing longline-caught bigeye tuna, will follow the procedures in 50 CFR 665.819. When NMFS projects that the fishery will reach a territorial catch or allocation limit, NMFS will, as an accountability measure, prohibit the catch and retention of longline-caught bigeye tuna by vessels in the applicable territory (if the territorial catch limit is projected to be reached), and/or vessels in a specified fishing agreement (if the allocation limit is projected to be reached).

You may find additional background information on this action in the preamble to the proposed specifications published on March 29, 2023 (88 FR 18509). Regardless of the final specifications, all other existing management measures will continue to apply in the longline fishery.

On March 29, 2023, NMFS published the proposed specifications and request for public comments (88 FR 18509); the comment period closed on April 28, 2023. NMFS received one anonymous comment supporting the specifications, suggesting an incentive program to reduce bigeye catch, and expressing concerns with overfishing of bigeye (and salmon and yellowtail), ecosystem impacts, and bycatch of juvenile tuna.

Response: There are two stocks of Pacific bigeye tuna: the Western and Central Pacific stock and the Eastern Pacific stock. According to the most recent stock assessments, neither stock is overfished or subject to overfishing. The fishery does not target or catch salmon or yellowtail and would therefore not influence stock status for these species. In developing the territorial bigeye tuna catch and allocation limits, NMFS and the Council considered a range of catch and allocation limits, taking into consideration sustainability of the stock, decisions of regional fishery management organizations, protected species bycatch, and the needs of Pacific Island fishing communities.

An incentive program to reduce bigeye tuna catch was not one of the alternatives considered. Consistent with the FEP and the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the catch and allocation limits in this action authorize an optimum level of fishing intended to both prevent overfishing and allow sustainable fishing that supplies local demand and supports the local economy, while supporting fisheries development in the U.S. territories. A program in which fishery participants are incentivized to fish below this optimum level would not meet these goals. Thus, an incentive program was not considered for this action.

NMFS monitors bycatch each fishing season. Bycatch of juvenile bigeye tuna is not a major concern, as longline fishing gear targets larger fish and juvenile bigeye are often not captured. When juvenile fish are caught they are usually returned alive. The 2023 allocation limits allow for the sustainability of the bigeye tuna stock and are consistent with the FEP, the Magnuson-Stevens Act, and other applicable laws.

No changes were made to the proposed specifications.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator (AA) has determined that this final rule is consistent with the FEP, other provisions of the Magnuson-Stevens Act, and other applicable laws.

The AA has also determined that because measures in this rule relieve a restriction, it is exempt from the otherwise-applicable requirement of a 30-day delay in the date of effectiveness, pursuant to 5 U.S.C. 553(d)(1). Consistent with Conservation and Management Measure 2021-01 adopted by the WCPFC at its December 2021 meeting, the bigeye tuna catch limit for U.S. longline fisheries in the western and central Pacific in 2023 is 3,554 t. This limit is implemented by separate rulemaking and codified at 50 CFR 300.224(a)). When NMFS projects the limit will be reached, NMFS must close the fishery for bigeye tuna in the WCPO. This rule allows U.S. vessels identified in a valid specified fishing agreement to continue fishing in the WCPO subject to the territorial limits even after NMFS closes the U.S. longline fishery for bigeye tuna.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that the proposed specifications would not have a significant economic impact on a substantial number of small entities. NMFS published the factual basis for the certification in the proposed specifications, and we do not repeat it here. NMFS received no comments relevant to this certification; as a result, a final regulatory flexibility analysis is not required, and none has been prepared.

This action is exempt from review under Executive Order 12866.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (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 2023 herring bycatch allowance specified for the rock sole, flathead sole, Alaska plaice, and other flatfish fisheries in the BSAI is 99 metric tons as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023).

The Administrator, Alaska Region, and NMFS, has determined that the 2023 herring bycatch allowance specified for the rock sole, flathead sole, Alaska plaice, and other flatfish fisheries in the BSAI has been caught. Consequently, in accordance with § 679.21(e)(7)(vi), NMFS is closing directed fishing for rock sole, flathead sole, Alaska plaice, and other flatfish by vessels using trawl gear in the three Herring Savings Areas of the BSAI. The Summer Herring Savings Area 1 is that part of the Bering Sea subarea that is south of 57°N latitude and between 162°W longitude and 164°W longitude from 1200 hours, A.l.t., June 15, 2023 through 1200 hours, A.l.t., July 1, 2023. The Summer Herring Savings Area 2 is that part of the Bering Sea subarea that is south of 56°30″N latitude and between 164°W longitude and 167°W longitude from 1200 hours, A.l.t., July 1, 2023 through 1200 hours A.l.t., August 15, 2023. The Winter Herring Savings Area is that part of the Bering Sea subarea that is between of 58° and 60°N latitude and between 172°W longitude and 175°W longitude from 1200 hours, A.l.t., September 1, 2023 through 1200 hours, A.l.t., March 1, 2024.

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 directed fishing for rock sole, flathead sole, Alaska plaice, and other flatfish by vessels using trawl gear in the Summer and Winter Herring Savings Areas of the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 9, 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.