Section 763 of the Consolidated Appropriations Act, 2021 (Pub. L. 116-260; December 27, 2020), amended the Packers and Stockyards Act, 1921, as previously amended (7 U.S.C. 181 et seq. ), by adding a new sec. 318 (7 U.S.C. 217b) establishing a statutory trust for the benefit of unpaid cash sellers of livestock. Under the new trust provisions, livestock dealers whose average annual purchases of livestock exceed $100,000 must hold all inventories of, and receivables and proceeds from, livestock purchased in cash sales in trust for the benefit of all unpaid cash sellers of livestock until the cash sellers have been paid in full. Livestock sellers lose the benefit of the trust unless they notify livestock dealers and the Secretary in writing that payment has not been received. Such notice must be provided within 30 days of the final date when payment was due, or within 15 days of notice that a dealer's payment instrument has been dishonored.

The newly added sec. 318 of the Act further provides that the dealer trust provisions apply only to cash sales, which are defined in the statute as sales in which the seller does not expressly extend credit to the buyer. Thus, livestock sellers have no claim against the trust if they have extended credit to the buyer.

Currently, § 203.15 of the Packers and Stockyards regulations outlines the process by which livestock sellers and live poultry sellers and growers preserve their interest in the packer and poultry trusts previously established under the Act (see 9 CFR 203.15). This final rule revises § 203.15, which will continue to provide for preservation of trust benefits under the packer and poultry trusts, by adding the process by which livestock sellers can preserve their interests under the new livestock dealer trust. Sections 206, 207, and 318 of the Act (7 U.S.C. 196, 197, 217b) require livestock sellers and poultry sellers or growers to notify packers, live poultry dealers, or livestock dealers and the Secretary in writing of their intent to preserve their trust benefits within 30 days of the final day on which payment was due or within 15 days of receiving notice that the packer's, live poultry dealer's, or livestock dealer's payment instrument was dishonored. Accordingly, the revised § 203.15 of the regulations outlines how sellers and growers can comply with the statutory requirement. The written notification should state that notification is to preserve trust benefits; identify both parties in the transaction; and include the date of the transaction, the date notice was received that the payment instrument was dishonored (if applicable), and the amount of money due. Written notification may be by letter, fax, email, or other electronic transmission, filed with the Packers and Stockyards Division (PSD) of the Agricultural Marketing Service (AMS). Section 203.15 of the regulations still provides that while the written notification described above is preferred, any written notice to the buyer and the Secretary that the seller has not received full payment is sufficient to meet the statutory requirement if it is given within the prescribed timeframes. Finally, § 203.15 is revised to include the statutory definition of a cash sale, meaning a sale in which the seller does not expressly extend credit to the buyer.

Section 201.200 of the regulations currently prohibits packers whose average annual livestock purchases exceed $500,000 from entering into credit agreements with livestock sellers unless the packer obtains written acknowledgement from the seller that the seller has no trust rights with respect to each particular sale under a credit agreement. Under this final rule, § 201.200 also prohibits livestock dealers whose average annual livestock purchases exceed $100,000 from entering into credit agreements with livestock sellers unless the purchasing dealer obtains written acknowledgement from the seller that the seller has no trust rights with respect to each particular sale under a credit agreement. The seller's written acknowledgment statement must further provide that the credit agreement covers a single sale, remains in effect until a specified date, or remains in effect until it is canceled in writing by either party. The seller's acknowledgement should be dated and signed by the seller. The purchasing livestock dealer is required to maintain records of the acknowledgement, as well as all other documents related to the credit agreement, for as long as required by any law or by the AMS Administrator, but for no less than two years following the expiration of the credit agreement referred to in the acknowledgment. Finally, the purchasing dealer is required to provide a copy of the acknowledgment to the seller.

Average annual livestock purchase amounts may be determined using information establishing actual yearly dealer purchases, or a dealer's purchases as stated on its most recent annual report filed pursuant to the requirements of 9 CFR 201.97. Average annual livestock purchase amounts may be determined for new dealers that have not operated for a year's time—and for dealers that have not filed an annual report in the prior two years—according to their actual livestock purchases for the current year to date, extrapolated to a yearly amount, if necessary. In general, the new requirements for livestock dealers in § 201.200 are similar to the current requirements for packers who enter into credit agreements with livestock sellers.

AMS published a proposed rule regarding this action on May 5, 2022 (87 FR 26695), and allowed 30 days for the public to submit comments on the proposal. The comment period closed June 6, 2022. AMS received six separate comments. Two comments were submitted by farm bureau federations. Three comments were submitted by livestock industry marketing associations. One comment was submitted by an association of community bankers.

Both farm bureau commenters supported establishment of the trust and the proposed rule generally, saying that the proposed regulations would benefit their members. One livestock marketing association commenter similarly supported establishment of the trust and AMS's efforts to add structure and functionality to the trust operation. One livestock marketing association commenter did not support establishment of the trust and opposed some provisions in the proposed rule. Another livestock marketing association commenter expressed concern about potential unintended consequences of the trust itself, as well as perceived shortcomings of the proposed rule. The association of community bankers opposed certain provisions of the dealer statutory trust and urged AMS to suspend rulemaking pending further industry outreach. Specific comments and AMS's responses are detailed below.

One commenter supported the proposed requirements that dealers obtain acknowledgments from sellers that sellers waive their trust rights when making credit sales and that credit agreements specify whether those agreements cover a single sale, remain in effect until a certain date, or remain in effect until cancelled. The commenter stated these requirements protect sellers against waiving their trust rights unknowingly.

AMS agrees that requiring dealers to obtain credit sales waivers and requiring such acknowledgments to specify the length of the credit agreement term can protect livestock sellers from waiving their trust rights inadvertently. AMS is making no changes to the proposed rule based on these comments.

The same commenter recommended that AMS revise the proposed definition of cash sale to mean one in which the seller does not expressly extend credit to the buyer in writing. The commenter cited case law that found “that unless the parties clearly agree in writing to a credit agreement, the transaction is a cash sale.”  1 The commenter asserted that adding “in writing” to the cash sale definition would clarify that a written extension of credit is needed for the sale to no longer be a cash sale and would make the definition of cash sale align with the requirements that the credit agreement and waiver be in writing.

AMS notes that the definition of cash sale is already established by the Act: sec. 409(b) of the Act (7 U.S.C. 228b), regarding prompt payment for livestock purchases, requires credit agreements to be in writing, and sec. 318(d) of the Act (7 U.S.C. 217b), provides that “[f]or the purpose of this section, a cash sale means a sale in which the seller does not expressly extend credit to the buyer.” Accordingly, AMS is making no changes to the proposed regulatory definition of cash sale based on this comment.

One commenter suggested that the definition of cash sale should be only those in which neither the seller nor any lender has extended credit to the buyer to purchase the seller's livestock. The commenter asserted that livestock sales ultimately involve more participants than just the buyers and sellers, and that lenders would face increased burden as they attempted to follow all the transactions involved to determine whether sales were actually cash sales.

The prompt payment and trust provisions of the Act are intended to protect livestock sellers, and do not, as currently stated, involve lenders and any relationship they may have with buyers of livestock. Under the Act and attendant regulations, lenders do not have priority over the livestock for which the dealer has borrowed money; rather the trust is designed specifically to protect livestock sellers from non-payment, including situations where a lender might take livestock or proceeds from a buyer who has not paid for the livestock. Further, as mentioned above, the cash sale definition is statutory and not open to agency revision. Accordingly, AMS is making no change to the rule as proposed based on this comment.

One commenter supported the proposed language in § 203.15 that provides what information should be submitted with a claim for a livestock seller to preserve the benefit of the dealer trust and that such a claim must be submitted to both the defaulting dealer and the Secretary. The commenter agreed that the required information properly identifies the sale for which trust benefits are being preserved and concurred with the proposal that while such information is desirable, any timely written notice informing the dealer and the Secretary that the dealer has failed to pay is sufficient to meet the notice requirement in order to preserve the seller's interest in the trust.

AMS notes that the proposed notification requirements mirror those currently in place in § 203.15 relating to the packer and live poultry dealer trusts. Accordingly, AMS is making no changes to the proposed rule based on these comments.

Two commenters stated that the proposed timeframes for notification are too long, one suggesting that trust notifications should be made no later than 10 business days from the date payment was due and/or postmarked, as per current prompt payment rules, with an additional three business days allowed after a payment instrument is dishonored. Both commenters expressed concern that the proposed rule's notification timeframes could allow for up to 45 days of “clear title” disruption and comingling of the non-paying dealer's receivables and assets. Two commenters further asserted that the proposed timeline could allow unpaid sellers to collude with non-paying dealers, allowing those dealers to operate illegally for up to 45 days from the date of the original transgression, and also allowing competitors to unknowingly sell livestock to offending dealers.

AMS notes that notification timeframes are based on the date of the transaction for which payment is not received. Later transactions do not extend the filing timeframe for earlier transactions. The proposed notification timeframes are statutory and have been established by Congress, and AMS cannot issue regulations that would conflict with the statute; as stated above, the proposed notification requirements are in accord with those currently in place in § 203.15 relating to the packer and live poultry dealer trusts. Accordingly, AMS is making no changes to the proposed rule based on these comments.

In connection with the list of registered dealers on PSD's website, two commenters suggested PSD also should be required to report trust claim notifications against dealers so all industry participants can verify not only the registration and bonding status of dealers, but also their status regarding trust claims. The commenters expressed concern about PSD's ability to maintain and publish such lists in a timely manner. Further, commenters suggested the proposed notification timelines and a lack of reliable disclosure about dealer payment defaults potentially harms other market participants. Commenters asserted there must be transparency and disclosure about dealers so that industry participants can make appropriate decisions with respect to their perceived risk.

PSD is prohibited under 9 CFR 201.96—Unauthorized disclosure of business information prohibited—from publicizing any facts or information regarding dealers' businesses without their consent. However, PSD acts quickly to initiate investigations when it receives trust notifications. PSD reviews packers', dealers', and live poultry dealers' records and determines whether other sellers have not been paid. As appropriate, PSD notifies other unpaid sellers that they may need to file trust notifications to protect their interests. Accordingly, AMS is making no changes to the proposed regulations based on these comments.

The Packers and Stockyards regulations currently require livestock dealers to register with PSD. PSD maintains and publishes the list of registered dealers on its website. One commenter pointed out that regardless of their compliance with the registration requirement, any individual engaging in the business of buying and selling livestock in commerce is a dealer, and that sellers thus retain their statutory trust rights even when a buyer fails to register as a dealer. Another commenter disagreed, saying that the trust should only be enforceable against regulated livestock dealers identified and disclosed by PSD. According to this commenter, a seller engaging in livestock trade with an unidentified and unregulated livestock buyer, or “alleged dealer,” should assume the risk of doing so when there are alternative methods of marketing livestock in a secure manner, such as through a regulated dealer or livestock market. A third commenter asserted that the proposed rule could cause many buyers to unknowingly be classified as dealers (who ostensibly do not fit the definition of “dealer” under the Act).

Section 301(d) of the Act (7 U.S.C. 201) defines the term dealer —as used in the Act—to mean “any person, not a market agency, engaged in the business of buying or selling in commerce livestock, either on his own account or as the employee or agent of the vendor or purchaser.” The courts have held that if someone is not a market agency, 2 and is engaged in the business of buying and selling in commerce livestock, their activities fall within the provision of sec. 301(d) of the Act, and that to hold otherwise would be to ignore completely the definition of a dealer as prescribed by Congress. 3 Further, sec. 318(a)(1) of the Act (7 U.S.C. 217b) specifies that “[a]ll livestock purchased by a dealer in cash sales and all inventories of, or receivables or proceeds from, such livestock sales shall be held by such dealer in trust for the benefit of all unpaid cash sellers of such livestock until full payment has been received by such unpaid cash sellers.” Only dealers whose average annual purchases of livestock do not exceed $100,000 are exempt from the dealer trust provisions (sec. 318(a)(2)).

AMS notes that the statutory trust provisions do not differentiate between registered and unregistered dealers, nor between sales to registered and unregistered dealers. AMS believes that if the regulations were to exclude unregistered dealers from trust applicability, it could entice some dealers to not register, and thereby put more sellers at risk. Accordingly, AMS is making no changes to the rule as proposed based on these comments.

One commenter objected to the definition of a dealer as one with purchases exceeding $100,000, finding the definition to be too broad and unenforceable from a regulatory standpoint. AMS clarifies that the $100,000 threshold does not alter the statutory definition of dealer, as discussed above. The $100,000 average annual purchases threshold, which is established by Congress in the amended statute, identifies which dealers are subject to the provisions of the trust and must comply with the requirement to obtain credit sales trust waiver acknowledgements from sellers. PSD is able to determine a dealer's average annual purchase amount using information provided by dealers in their annual reports, filed pursuant to the requirements of 9 CFR 201.97. PSD is also able to extrapolate average annual purchases for new dealers, or those who have not filed recent reports, using current year-to-date purchase information. The $100,000 average annual purchases threshold was established by Congress when the dealer trust was enacted, and AMS has no authority to alter or amend the statutory provision. Moreover, for the reasons cited, AMS believes the proposed requirement to be reasonably enforceable. Accordingly, AMS is making no change to the proposed regulation based on this comment.

One commenter concurred with AMS's assessment of the reporting and recordkeeping burden related to compliance with these proposed requirements, agreeing that completing each acknowledgement would take one half hour or less and that the need for such acknowledgements would likely be infrequent. The commenter observed that the required credit sales acknowledgment is consistent with existing requirements related to the packer trust. AMS notes that these requirements intentionally mirror the packer trust provisions because the industry is already familiar with the process. AMS made no changes to the proposed rule based on these comments.

Another commenter stated that AMS grossly underestimated the financial impact of the trust itself on small businesses operating as livestock sellers, markets, producers, and/or dealers. The commenter suggested AMS has not considered costs to sellers related to offering credit terms. The commenter asserted that livestock marketing agencies would be forced by dealers to extend credit and would incur additional interest costs to secure lines of credit to cover their custodial accounts. The commenter speculated further that other industry participants, such as lenders and government agencies, would incur massive legal, interest, and administrative costs.

AMS notes that the scope of the proposed rule is confined to provisions related to making timely trust claim notifications and requiring dealers to obtain credit sales trust waiver acknowledgements from sellers. AMS's cost/benefit and Regulatory Flexibility analyses, which were published in the proposed rule, evaluated only the potential burdens, costs, and benefits of effectuating the proposed provisions. Thus, comments related to the burden of effectuating the statutory trust itself—which as noted above, has already been established by Congress with the enactment of the statute—are outside the scope of the proposed rule, and AMS is making no changes to the rule as proposed based on these comments.

AMS notes that the Act regulates the business activities of livestock dealers. The trust was created to protect livestock sellers doing business with dealers. The trust is specifically intended to keep inventories of livestock and the proceeds therefrom in trust so that livestock sellers are paid.

Prior to implementing the trust, Congress instructed USDA to conduct a study on the feasibility of a dealer trust. The study, released on February 4, 2020, included input from the industry and lenders that Congress later considered when amending the Act to establish the livestock dealer statutory trust. 4 Congressional establishment of the dealer statutory trust through amendment of the Packers and Stockyards Act became effective December 27, 2020. The provisions of the proposed rule are preliminary steps to trust enforcement and include the regulations AMS deemed necessary to begin trust administration. The proposed provisions are intended to help sellers understand the conditions under which they can preserve their trust rights, and to help both sellers and dealers engaged in credit transactions understand the conditions of credit sales as they relate to trust benefits.

Three commenters expressed concern with regard to the establishment of the livestock dealer statutory trust, as well as other existing provisions of the amended Act and the regulations, such as prompt payment requirements, “clear title” of cleared livestock transactions, and definition of the term dealer. One commenter asserted that the trust was established by Congress without any meaningful or robust discussion with industry participants, who felt there was already ample protection available in the marketplace for livestock sellers operating within the guidelines of prompt payment rules. One commenter suggested that AMS suspend implementation of the proposed rule, so that AMS can conduct outreach to the affected industry and lenders, to mitigate possible unintended consequences (purportedly of the trust itself), including lower prices to producers. As noted above, USDA conducted a study which included input from the industry and lenders, that Congress later considered when amending the Act.

Comments about the establishment and merits of the trust itself, about provisions of the amended Act, or about other existing regulations are outside the scope of the proposed rule of May 5, 2022. Congress created the trust to protect livestock sellers doing business with dealers; the trust is specifically intended to keep inventories of livestock and the proceeds therefrom in trust so that livestock sellers are paid. AMS has no authority to alter or amend the statutory provisions that Congress has enacted for these purposes. Accordingly, AMS is making no changes to the rule as proposed based on those comments.

One commenter suggested that a new program to be instituted by the Federal Reserve will make it possible to transact instant interbank payments for livestock purchases. 5 The commenter stated that the proposed rule does not discuss use of an instant payment system in lieu of the dealer trust itself, nor its potential impact on information collection. The sole purpose of this rule is to delineate the process for sellers to preserve their dealer trust rights. Congress created the trust to protect livestock sellers doing business with dealers; the trust is specifically intended to keep inventories of livestock and the proceeds therefrom in trust so that livestock sellers are paid. The manner of payment is not addressed in the amendment to the statute. AMS has no authority to alter or amend the statutory provisions that Congress has enacted. Accordingly, AMS is making no changes to the rule as proposed based on those comments.

One commenter asserted that trust provisions conflict with Uniform Commercial Code (UCC) provisions regarding “clear title” on livestock transactions and lenders' liens and security interest in livestock. The application of the UCC to the statute and its operation, if any, and the question of “clear title,” cannot be addressed by AMS in this rulemaking. Congress created the trust to protect livestock sellers from non-payment; the trust is specifically intended to keep inventories of livestock and the proceeds therefrom in trust so that livestock sellers are paid. AMS has no authority to alter or amend the statutory provisions that Congress has enacted for these purposes.

The commenter further questioned whether competing buyers under UCC and trust provisions would be in a truly competitive bidding process or level playing field at public markets, because in the commenter's opinion, the trust creates a lien that interferes with clear title, and treats different classes of buyers differently. Congress, by statute, granted livestock sellers trust rights for their protection; this attendant rule to the statute only provides instructions for sellers who desire to preserve the benefit of the statutory livestock dealer trust. As stated previously, AMS cannot address what Congress has already established as the statutory trust.

One commenter expressed the opinion that according to the text of the statute, the non-paying dealer would be the trustee of the trust created under the Act. AMS notes that the statute also includes authority for USDA to replace the dealer with another person as trustee to better protect livestock sellers.

Two commenters expressed concerns about the mechanics of enforcing a dealer trust claim and the U.S. Department of Agriculture's (USDA) ability to enforce trust claims. One commenter further expressed belief that the trust and the proposed regulations may disrupt livestock markets and undermine current industry efforts to “establish true price discovery,” thereby damaging livestock producers who “are already languishing under current market conditions.” This comment appears to take issue with the establishment of the trust itself (and not the current proposed rule), which AMS cannot address. The same commenter stated there may be substantial dealer trust enforcement issues with regard to livestock transactions between members inside and outside of tribal nations. The commenter asserted that USDA has not met its burden of proof with regard to the impact and enforcement of the trust on Indian tribal nations.

The scope of the proposed rule regarding the trust already enacted by Congress is confined to provisions related to making timely trust claim notifications and requiring dealers to obtain credit sales trust waiver acknowledgements from sellers. Comments related to the existence of the statutory trust itself, or any burden of effectuating the trust are outside the scope of the proposed rule, and AMS is making no changes to the rule as proposed based on comments relating to the establishment of the trust. With regard to trust enforcement in tribal nations and without, AMS agrees that trust enforcement is important. In the development of the proposed rule, AMS determined that the proposed rule would be 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. While AMS has not yet addressed the procedure for enforcement of the dealer statutory trust itself, AMS plans to engage in future rulemaking to establish regulations for trust enforcement, and AMS intends to work with UDSA's Office of Tribal Relations and with tribal governments in the development of future trust enforcement regulations to ensure those rules address concerns such as those raised by the commenter. Forthcoming trust enforcement regulations would provide for consideration and consultation regarding trust enforcement inside and outside tribal nations.

One commenter noted that USDA's enforcement role in the dealer trust appears to be greater than its role in enforcement of the packer trust, and encouraged USDA to prioritize the establishment of dealer trust enforcement procedures so the agency is prepared to act immediately when a default occurs. AMS acknowledges that trust enforcement procedures should be established, and assures commenters that we are working on trust enforcement regulations to be proposed in the future. In that regard, AMS will endeavor to create trust enforcement regulations that provide for the most efficient enforcement response. In the meantime, PSD responds quickly to all complaints of nonpayment for livestock in order to notify sellers of their right to file trust claims and bond claims. Where appropriate, PSD brings enforcement action against violators, which could result in civil penalties and/or suspension of registration.

The proposed rule provided a 30-day comment period for public input about the proposals. One commenter submitted two requests for an extension of the public comment period. One request simply asked for additional time to file comments. The other asked for a 90-day comment period.

As explained above, the provisions of the proposed rule, while very narrow in scope, are necessary to the administration of the dealer statutory trust. They mirror the provisions related to making timely trust claim notifications under the existing packer and live poultry dealer trusts, and they mirror provisions requiring packers to obtain credit sales trust waiver acknowledgements under the packer trust. AMS believes the 30-day comment period provided was sufficient to obtain input about these relatively non-controversial proposals. Accordingly, AMS denied the requests for an extended comment period.

AMS is issuing this final rule in conformance with Executive Orders (E.O.) 12866 and 13563, which direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulations are 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, reducing costs, harmonizing rules, and promoting flexibility.

AMS believes that the livestock industry is best served by revising the existing regulation at 9 CFR 203.15 that addresses preserving packer and poultry trust benefits under the Act to include provisions related to the new livestock dealer trust. The industry is already familiar with the notification process. AMS anticipates that additional costs or the adoption of new practices related to compliance with this final rule will be minimal. Livestock sellers can use the instructions in this final rule to file notice most efficiently with dealers and AMS of their intent to preserve trust benefits. However, this final rule also provides flexibility because the revisions allow that any written notification to dealers and the Secretary within the prescribed timeframes that the seller has not received full payment for livestock will meet the statutory requirement. Furthermore, AMS believes that including the statutory definition of “cash sale” in § 203.15 can help sellers better understand the conditions under which they can preserve their trust benefits.

Regarding revisions to § 201.200, AMS believes that both buyers and sellers benefit when livestock dealers with more than $100,000 average annual purchases are required to obtain written acknowledgment from sellers that trust benefits do not extend to livestock purchases under credit terms, and to maintain all records related to such sales, including the written acknowledgement. Obtaining the written acknowledgement, as well as providing the seller with a copy of the written agreement and maintaining pertinent records, demonstrates that both parties understand the conditions of credit sales as they relate to dealer trust benefits. AMS does not expect this final rule to provide any environmental, public health, or safety benefits.

This final rule does not meet the criteria of a significant regulatory action under E.O. 12866 as supplemented by E.O. 13563. Therefore, the Office of Management and Budget (OMB) has not reviewed this rule under those orders.

Pursuant to requirements set forth in the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ), AMS has considered the economic impact of this action on small business entities.

The final rule affects dealers that purchase more than $100,000 in cattle, hogs, sheep, goats, horses, or mules annually. It also affects livestock producers, other dealers, and livestock auctions from which the dealers purchased livestock.

The Small Business Administration (SBA) defines small businesses by their North American Industry Classification System (NAICS) codes. Livestock dealers and livestock auctions would be classified as NAICS code 424520—Livestock Merchant Wholesalers, which includes all livestock dealers except dealers in horses and mules, and code 424590—Other Farm Product Raw Material Merchant Wholesalers. 6 For both classifications, SBA defined a small business as one with 100 employees or fewer. 7

Livestock dealers, including livestock auctions, are required to register and file annual reports with AMS. In 2017 and 2018, 3,015 livestock dealers purchased more than $100,000 in livestock for their own account or for the account of others. 8 Livestock dealers do not disclose the number of employees in their annual reports, but based on its familiarity with the industry, AMS estimates at most three or four firms had more than 100 employees. At least 99.8 percent would be small businesses under the SBA definition.

Producers selling livestock would be classified as NAICS codes: 12111—Beef Cattle Ranching and Farming, 112210—Hog and Pig Farming, 112410—Sheep Farming, 112420—Goat Farming, and 112920—Horses and Other Equine Production. For each producer classification, SBA defined a small business as one with $1 million or less in annual receipts. 9

The 2017 Census of Agriculture categorizes cattle producers, hog producers, sheep and lamb producers, and horse and mule producers by the size of their operation. The Census of Agriculture tables categorize producers' sales by number of head not the value of their receipts, but data from the tables enable AMS to make a rough estimate of the number of producers that would qualify as small businesses as defined by SBA.

Census of Agriculture tables indicate that 711,827 farms reported sales of cattle or calves in 2017, of which 704,776 (99 percent) produced fewer than 1,000 head, averaged less than $1 million in sales, and would be small businesses. 10 Of the 64,871 hog farms reporting sales, the 57,084 farms (88 percent) that produced fewer than 5,000 head would qualify as small businesses. 11 Of the 101,387 farms producing sheep and lambs, 101,280 (99.9 percent) would qualify as small businesses. 12 The Census of Agriculture reported 74,227 farms that sold horses. Of those, 74,065 (99.8 percent) sold fewer than 50 horses, averaged less than $1 million in sales, and would be considered small businesses. All the 10,435 farms that sold donkeys or mules were small businesses. 13 The Census did not have sales information for goat producers.

More than 99 percent of the cattle, sheep and lamb, horse, and mule producers were small businesses. Hog production was more concentrated, with only 88 percent qualifying as small businesses. As group, these livestock producers were about 98.5 percent small businesses.

The final rule includes two new provisions that affect small businesses: (1) The rule outlines how sellers can comply with the statutory requirement of providing written notification to dealers and to the Secretary if they wish to preserve their rights to the dealer trust, and (2) the rule requires dealers to obtain written acknowledgement from the seller that the seller waives their rights to the trust with respect to each particular sale under a credit agreement.

The costs of filing a trust claim would only apply to livestock sellers. There are few requirements. The cost would be the value of the time required to write and send the notification. AMS expects writing and sending the notification would require no more than a half hour of a manager's time. The U.S. Bureau of Labor Statistics estimated the average hourly wage for farmers, ranchers, and other agricultural managers to be $36.93. 14 If it takes one half hour to file the claim, filing the claim would cost $18.47.

In a review of dealer bond claims filed with AMS from October 2013 through June 2019, AMS found claims against 82 dealers from 184 claimants. 15 If sellers file trust claims at a similar rate as they have filed bond claims in the past, AMS could expect 14.5 incidents in which one or more sellers makes a valid claim against a dealer's trust each year, with an average of 2.25 claimants for each trust incident, or 33 claimants per year. At a cost of $18.47 for each claim, AMS expects annual costs to the industry to be $609.51. Since nearly all livestock producers and livestock dealers who might sell livestock to other dealers are small business entities, AMS expects that nearly all of the claimants would be small businesses.

The cost of obtaining a written waiver acknowledgement from the seller would only apply to livestock dealers. AMS provides sample wording for the acknowledgment and expects that obtaining written acknowledgment from the seller would take no more than a half hour of a dealer's time, or $18.47 for each acknowledgement.

AMS has no data on the number of dealers that purchase livestock with credit agreements, or the number of trust waiver acknowledgements dealers obtain from sellers and maintain. AMS's experience has been that the number of sellers acknowledging they waive their trust rights is relatively small. Sellers are reluctant to extend credit because they would be required to give up their rights to file trust claims or they have not had the financial resources to extend credit. With packer trusts, packers typically have not created separate trust waiver acknowledgements for each transaction. Instead, the waiver acknowledgments tend to cover a number of transactions over a period of time, limiting the number of written trust waivers required.

Regarding dealer trusts, AMS expects that relatively few sellers would enter into credit agreements requiring trust waiver acknowledgments. However, if a dealer must obtain waiver acknowledgments according to § 201.200, AMS expects that the dealer would limit the number of waiver acknowledgments by having a single waiver acknowledgment cover a number of transactions over a period of time. AMS estimates that at most, ten percent (302) of the 3,015 dealers that average annual purchases of more than $100,000 in livestock would have credit agreements that require trust waiver acknowledgements. Dealers that purchase livestock with credit agreements may also purchase other livestock through cash sales, for which they are not required to obtain trust waiver acknowledgements from sellers. AMS estimates that each dealer that purchases livestock with credit and obtains trust waivers from sellers will only do so with an average of five customers in a year. That amounts to a total cost of $27,890 for all of the expected trust waivers (302 dealers × 5 waivers/dealer × $18.47/waiver).

The costs would not be spread uniformly across dealers. Dealers that do not enter into credit agreements would have no costs. Only the estimated ten percent of dealers that purchase livestock under a credit agreement with the seller would need trust waiver acknowledgments. The cost would average $92 for each dealer that purchases livestock with a credit agreement, which is about 0.1 percent of the minimum amount ($100,000) of average annual livestock purchases that makes a dealer responsible for obtaining waiver acknowledgments from credit sellers. Costs would likely be correlated with the size of the dealer: smaller dealers that purchase livestock on credit from fewer sellers would have fewer trust waiver acknowledgements.

AMS expects total marginal costs for the two provisions to be $28,599. Small businesses would be responsible for nearly all of the costs. In 2017 and 2018, livestock dealers that purchased more than $100,000 in a year purchased a yearly total of $27.065 billion in livestock. 16 Compared to the amount of business that livestock dealers conduct, an annual cost of $28,599 is 0.00011 percent of total dealer livestock purchases. Accordingly, AMS has determined that this action would not have a significant negative economic impact on a substantial number of these small business entities.

One comment submitted in response to the proposed rule suggested that AMS grossly underestimated the financial impacts of the dealer statutory trust on small businesses operating as livestock sellers, markets, producers, and/or dealers. The commenter asserted that, in light of statutory trust provisions, dealers will force sellers to extend credit to dealers, incurring additional interest costs to secure lines of credit to cover their custodial accounts, which AMS did not consider. The commenter estimated this additional interest cost alone could range between $30,000 and $60,000 annually per market, or between $40 million and $50 million collectively. The commenter identified other industry participants that could be financially impacted by the trust, citing legal fees, interest fees on unsettled notes, and extensive administrative costs to industry participants and government agencies. Finally, the commenter urged USDA to submit to a more extensive rulemaking process that incorporates the input and cooperation of the impacted businesses.

AMS acknowledges that the general impacts and costs related to establishment of the dealer statutory trust were not considered in the initial Regulatory Flexibility analysis performed in conjunction with the proposed rule, nor should they have been. AMS's cost/benefit and Regulatory Flexibility analyses, which were published in the proposed rule, properly evaluated only the potential burdens, costs, and benefits of effectuating these proposed provisions that provide instructions for livestock sellers who desire to preserve their interest in the statutory livestock dealer trust under the Packers and Stockyards Act. Impacts related to the existence or establishment of the statutory trust itself are outside the scope of the proposed rule. Accordingly, AMS has made no changes to the proposed rule, nor to the analysis, based on this comment. AMS's analysis focused on the impacts of the proposed rule's provisions on small business entities, as was appropriate. Some of the commenter's observations and projections may be applicable to future rulemaking about trust enforcement. We encourage the commenter and all other interested parties to participate in that effort.

In accordance with the Paperwork Reduction Act (44 U.S.C. Chapter 35), the information collection requirements under the Packers and Stockyards regulations have been approved previously by OMB and assigned OMB No. 0581-0308. Changes to those requirements are necessary in connection with this final rule.

Title: Preserving Trust Benefits Under the Packers and Stockyards Act.

OMB Number: 0581-0336.

Expiration Date of Approval: 3 years from approval.

Type of Request: Intent to seek approval to conduct a new information collection.

Abstract: The Packers and Stockyards Act, 1921 (Act) (7 U.S.C. 181 et seq. ), was recently amended by the addition of section 318 (7 U.S.C. 217b), establishing a statutory trust for the benefit of unpaid cash sellers of livestock. Under the amended Act, livestock dealers whose average annual purchases of livestock exceed $100,000 must hold all inventories of and receivables and proceeds from livestock purchased in cash sales in trust for the benefit of all unpaid cash sellers of that livestock until the cash sellers have been paid in full.

Under the new statutory trust provisions, livestock sellers lose their interest in the trust unless they notify livestock dealers and the Secretary of Agriculture (Secretary) in writing that payment has not been received. Such notice must be provided within 30 days of the final date when payment was due or within 15 days of notice that a dealer's payment instrument has been dishonored. The statute further provides that trust provisions apply only to cash sales, which are defined in the statute as sales in which the seller does not expressly extend credit to the buyer. Thus, livestock sellers have no claim against the trust if they have extended credit to the buyer.

AMS seeks approval for a new information collection related to the livestock dealer trust to implement new regulatory requirements. Livestock dealers who purchase livestock under credit terms and whose average annual purchases of livestock exceed $100,000 must obtain written acknowledgements from sellers that trust benefits do not pertain to credit sales. Dealers must provide copies of the acknowledgements to sellers and must retain the acknowledgements for two years after the expiration of the subject credit agreements. Additionally, a livestock seller who has not received payment in full for cash livestock sales must notify both the dealer and the Secretary of Agriculture in writing and within specified timeframes that the seller has not received full payment and intends to preserve their interest in the dealer trust. Providing such notice to the Secretary will enable USDA to initiate enforcement investigations and further actions as necessary.

Authority:

• In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35) and

• The Packers and Stockyards Act, 1921 (7 U.S.C. 181 et seq. ), as amended.

Estimate of Burden: Public reporting burden for this collection of information is estimated to average 15 to 30 minutes.

Respondents: Livestock dealers and sellers.

Estimated Number of Potential Respondents: 335.

Estimated Total Potential Annual Responses: 1,845.

Maximum Estimated Total Annual Burden on All Respondents: 847 hours.

A 60-day public comment period regarding the information collection related to this rule was imbedded in the proposed rule that was published on May 5, 2022 (87 FR 26695). The comment period closed July 5, 2022. AMS received one comment referencing the estimated information collection burden on regulated entities. The commenter supported the proposed requirement to obtain credit sales trust waiver acknowledgements and concurred with AMS's estimate of the amount of time to do so and the likely infrequency of needing to do so. The commenter said the requirement protects sellers by ensuring they are well informed that they are giving up their trust rights when extending credit to a dealer. The commenter stated also that the statutory trust is an important tool for collecting funds in the event of a default, and producers should not be put in a position to waive this protection without notice. The commenter observed that the burden of creating the acknowledgement is low, as the language for dealers to use in the document is provided in the regulation. Finally, the commenter recognized that the requirement is consistent with the existing regulation for extending credit to packers and waiving packer statutory trust protections. AMS made no changes to the information collection requirements of the proposed rule based on this comment.

Upon approval by OMB, this information collection will be merged with the information collection currently approved for the Packers and Stockyards Division.

Reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Should additional changes become necessary, they would be submitted to OMB for approval.

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

USDA is committed to complying with the E-Government Act (44 U.S.C. 3601 et seq. ) by promoting 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.

This final rule has been reviewed under E.O. 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have tribal implications. In the development of the proposed rule, AMS determined that the proposed rule would be 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.

One comment submitted in response to the proposed rule suggested that AMS had not met its burden of proof with regard to the impact and enforcement implications of dealer trust regulations on livestock sales transactions between tribal and non-tribal industry participants. AMS clarifies that neither the proposed rule nor this final rule addresses the impacts or enforcement of the dealer statutory trust itself. AMS plans to engage in future rulemaking to establish regulations for trust enforcement regulations. AMS intends to work with USDA's Office of Tribal Relations and with Tribal governments in the development of future trust enforcement regulations to ensure those rules address concerns such as those raised by the commenter. However, AMS continues to believe that the provisions of the May 5, 2022, proposed rule, as well as this final rule, are 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 final rule has been reviewed under E.O. 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to judicial challenge to the provisions of this rule.

Additional regulations pertaining to the new livestock dealer trust will be considered in a separate rulemaking action.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 9 CFR chapter II as follows:

Executive Summary

In 2018, the FAA performed an assessment of the safety impacts on general aviation owners and operators (from here on referred to as “the GA Community”) from the termination of Mode-S Traffic Information Service (TIS). The purpose of this work was to communicate information on the removal of Mode-S TIS from the National Airspace System (NAS) through user outreach and engaging with non-governmental organizations ( e.g., Aircraft Electronics Association (AEA), Aircraft Owner and Pilots Association (AOPA), Experimental Aircraft Association (EAA), and General Aviation Manufacturers Association (GAMA)). Taking into consideration the results of the FAA study and the benefits from the ADS-B In traffic services available in the NAS, the FAA determined that removal of Mode-S TIS had little to no significant adverse safety impact on the GA Community. Therefore, beginning in 2024, Mode-S TIS will terminate at each radar location as current Mode-S radars are replaced by the Mode-S Beacon Replacement System (MSBRS) program, or as legacy terminal Mode-S radars are removed as part of other ongoing activities. The GA Community should no longer rely on reception of Mode-S TIS information from FAA capable radars.

In 2000, FAA implemented Mode-S Traffic Information System (TIS) via Mode-S radar data-link functionality. Mode-S TIS has also been referred to informally as TIS-A by some in industry. Mode-S TIS was implemented by FAA in response to an NTSB recommendation suggesting improvement of situational awareness information for the general aviation (GA) community not equipped with a traffic alert and collision avoidance system (TCAS). Reception of Mode-S TIS information was not a functionality that was required for Mode-S transponders. To this day, a very limited set of transponders are known to be capable of receiving and processing Mode-S TIS information from FAA terminal radars.

In May 2010, the FAA published 14 CFR 91.225 and 91.227, requiring aircraft to be equipped with Automatic Dependent Surveillance—Broadcast (ADS-B) Out equipment by 1 January 2020 in order to operate in certain U.S. airspace. ADS-B was identified as the backbone for the future of the FAA's Next Generation (NextGen) programs. From 2010 through 2020, the FAA funded deployment of approximately 700 ADS-B radio stations across the U.S. to provide improved surveillance coverage across the NAS. Along with improving surveillance coverage, the FAA implemented functionality into ADS-B radio stations geared at providing appropriately equipped GA aircraft with enhanced situational awareness through both Traffic Information Services—Broadcast (TIS-B) and Automatic Dependent Surveillance—Rebroadcast (ADS-R). 1 In 2016, FAA funded the addition of Automatic Dependent Surveillance—Same Link Rebroadcast (ADS-SLR) service at the busiest U.S. airports with a surface surveillance system. 2

In the decades following the initial Mode-S TIS deployment, the FAA implemented improved systems for provisioning information on proximate aircraft to GA pilots through the use of TIS-B, ADS-R, and ADS-SLR services. These new services expand beyond the currently provided Mode-S TIS. With the ADS-B mandate in effect since January 2020, and low-cost avionics systems for receiving and displaying ADS-B, ADS-R, ADS-SLR, and TIS-B information are readily available, the GA community is able to obtain a heightened situational awareness of the traffic around them. This is especially true when flying around the terminal areas where significant ADS-B coverage is available today.

As of March 6, 2023, approximately 133,486 aircraft have been identified as receiving ADS-B In information on one or both of the mandated ADS-B frequencies. The vast majority of these are general aviation aircraft due to the number of portable ADS-B In devices or integrated ADS-B In/Out systems available to this market.

Many FAA Mode-S terminal radars are approaching the end of their useful lifecycle. Additionally, the FAA is facing an increased maintenance cost from the inability to purchase parts, due to parts obsolescence or part shortages, necessary to ensure continued operational availability. To mitigate this, the FAA has initiated a radar modernization effort called the Mode-S Beacon Replacement System (MSBRS) program. Under this program, the FAA intends to replace at least forty-six (46) aging Mode-S terminal radars starting in 2024. Starting in 2024 as the new MSBRS radars replace the existing terminal radars, the existing Mode-S TIS functionality will disappear at the location of each replaced terminal radar.

Replacement of the existing terminal radars capable of providing Mode-S TIS under the MSBRS Program will provide an improvement in air traffic control (ATC) capabilities, which will benefit civil and military aviation, including general aviation. Installation of the new state-of-the-art MSBRS radars will improve system operational reliability and reduce system down time.

During this timeframe, the FAA will continue to provide Mode-S TIS through the existing terminal radars until the existing radar is replaced with a new MSBRS radar. This document is intended to provide time for GA aircraft owners and operators who have not yet equipped with an ADS-B receiver to acquire and install, if appropriate, an ADS-B In capable system.

Independent of the MSBRS program, FAA is also engaged in multiple activities aimed at improving existing surveillance systems. These activities are aimed at reducing FAA operating costs and/or reducing congestion on surveillance system RF frequencies. As these activities proceed, FAA may remove one or more Mode-S terminal radars from operation, which would eliminate Mode-S TIS at that location.

Using surveys and discussions with industry organizations, the FAA was able to obtain the necessary data required to understand the potential safety impacts from removing Mode-S TIS functionality from the existing terminal radars. FAA conducted surveys, such as the General Aviation/Part 135 Air Taxi Activity Survey, to produce a set of comprehensive data on part 91 and part 135 aircraft and their operations. The FAA reviewed data from survey reports for 2010, 2014, 2016, 2018, and 2019, and discussed these reports with industry association experts. The data from these reports were utilized to study the relevant surveillance equipage for all types of aircraft: Fixed Wing Piston, Fixed Wing turboprop single and multi-engine, turbojet, and rotorcraft.

Since 2018, the FAA has conducted industry briefings and discussions with major avionics manufacturing companies on the MSBRS program and the associated planned removal of Mode-S TIS from terminal radars. These discussions assisted in gathering pertinent information on equipage and gaining insight into potential concerns. Taking into consideration this information and the survey results, as well as the ADS-B In traffic services available to the cockpit via low-cost portable or integrated devices, the FAA determined that removal of Mode-S TIS had little to no significant adverse safety impacts on the GA Community.

Based on industry engagement, FAA has determined that the removal of Mode-S TIS functionality will have little to no safety impact on the GA community.

Removal of legacy terminal Mode-S radars may occur as part of other ongoing FAA activities to divest radars or which are being replaced with other modern cooperative surveillance systems. These activities are being pursued to lower FAA operating costs and/or reduce congestion on surveillance system RF frequencies.

Aircraft operating within ADS-B mandated airspace, specified under 14 CFR 91.225, have transitioned their avionics equipment to be compliant with the performance requirements of the regulation. If the ADS-B Out equipment is performing and configured properly, aircraft equipped with ADS-B In are capable of receiving ADS-R, ADS-SLR, and TIS-B services from the FAA ADS-B ground stations across the NAS. These low-cost ADS-B In avionics systems are widely available, and provide the GA community with a heightened situational awareness of the traffic around them which was not previously available using solely Mode-S TIS information. These services expand coverage and more than replace the information currently provided by Mode-S TIS.

The Department published a proposed rule, Public Notice 11299 at 87 FR 63739, October 20, 2022 (the NPRM), with a request for comments to amend 22 CFR 51.28(a)(3)(ii) by removing from the list of acceptable documentary evidence of sole authority/custody a Consular Report of Birth Abroad (CRBA) listing only the applying parent, because a CRBA is a citizenship document and not by itself evidence of sole authority/custody.

The Department also proposed to amend 22 CFR 51.28(a)(3)(i), (a)(4)(i) and (a)(4)(ii) to allow the non-applying parent or legal guardian to sign a statement of consent before a passport specialist at one of the passport agency public counters located within the United States as an alternative to signing it before a notary public when an application is pending at a passport agency/center. However, the Department has decided to postpone the publication of these amendments to a later date. For the same reason, the Department is not at this time finalizing the proposal relating to revising the DS-3053: Statement of Consent for Issuance of a Passport to a Minor Under Age 16, to allow for a signature at a passport agency's public counter.

Analysis of Comments: The Department provided 60 days for comment on the NPRM. The comment period closed December 19, 2022. The Department received two responsive comments regarding the removal of the CRBA from the list of acceptable documentary evidence of sole authority/custody if the CRBA lists only the applying parent, which is the subject of this final rule. Neither comment was opposed to the proposal.

The Department of State published this rulemaking as a proposed rule and provided 60 days for public comment. Pursuant to the Administrative Procedure Act, the rule will be in effect 30 days from the date of publication.

The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on a substantial number of small entities. Only individuals, and no small entities, apply for passports.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department does not believe that this rule is a major rule as defined by the Congressional Review Act. This rule does not 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 on the ability of United States-based companies to compete with foreign based companies in domestic and import markets.

The Office of Information and Regulatory Affairs has designated this rule non-significant under Executive Order 12866. The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order. The Department finds that the cost of this rulemaking to the public is expected to be minimal.

The Department of State has considered this rule in light of Executive Order 13563, dated January 18, 2011, and affirms that this regulation is consistent with the guidance therein.

This regulation 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. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this regulation.

The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of E.O. 13175 do not apply to this rule.

This final rule does not add or modify any information collection subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35. The NPRM included the 60-day notice for the renewal of Control No. 1405-0129. The Department will publish the 30-day notice separately from this final rule.

Accordingly, for the reasons set forth in the preamble, 22 CFR part 51 is amended as follows:

I. Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Sec. 701 of Pub. L. 114-74). Beginning in 2017, the Act requires agencies to make annual inflationary adjustments to their civil monetary penalties by January 15th of each year, in accordance with annual OMB guidance.

In December of every year, OMB issues guidance to agencies to calculate the annual adjustment. According to OMB, the cost-of-living adjustment multiplier for fiscal year 2023 is 1.07745, based on the Consumer Price Index for the month of October 2022, not seasonally adjusted.

Pursuant to this guidance, the Commission has calculated the annual adjustment level of the civil monetary penalty contained in 25 CFR 575.4 (“The Chairman may assess a civil fine, not to exceed $57,527 per violation, against a tribe, management contractor, or individual operating Indian gaming for each notice of violation . . .”). The 2023 adjusted level of the civil monetary penalty is $61,983 ($57,527 × 1.07745).

This final rule is not a significant rule under Executive Order 12866.

(1) This rule will not have an effect of $100 million or more on the economy or will not adversely affect, in a material way, the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.

(2) This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(3) This rule does not involve entitlements, grants, user fees, or loan programs or the rights or obligations of recipients.

(4) This regulatory change does not raise novel legal or policy issues.

The Commission certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) because the rule makes annual adjustments for inflation.

This final rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It will not result in the expenditure by state, local, or tribal governments, in the aggregate, or by the private sector of $100 million or more in any one year. The rule will not result in a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions. Nor will this rule have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of the U.S.-based enterprises to compete with foreign-based enterprises.

This final rule does not impose an unfunded mandate of more than $100 million per year on state, local, or tribal governments or the private sector. The rule also does not have a significant or unique effect on state, local, or tribal governments or the private sector. Therefore, a statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq. ) is not required.

Under the criteria in Executive Order 12630, this final rule does not affect individual property rights protected by the Fifth Amendment nor does it involve a compensable “taking.” Thus, a takings implication assessment is not required.

Under the criteria in Executive Order 13132, this final rule has no 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.

This final rule complies with the requirements of Executive Order 12988. Specifically, this rule has been reviewed to eliminate errors and ambiguity and written to minimize litigation. It is written in clear language and contains clear legal standards.

In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments, Executive Order 13175 (59 FR 22951, November 6, 2000), the Commission has determined that consultations with Indian gaming tribes is not practicable, as Congress has mandated that annual civil penalty adjustments in the Act be implemented no later than January 15th of each year.

This final rule does not affect any information collections under the Paperwork Reduction Act.

This final rule does not constitute a major federal action significantly affecting the quality of the human environment.

In developing this final rule, the Commission did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).

This final rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

The Commission is required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule that the Commission publishes must:

(a) be logically organized;

(b) use the active voice to address readers directly;

(c) use clear language rather than jargon;

(d) be divided into short sections and sentences; and

(e) use lists and tables wherever possible.

In accordance with the Act, agencies are to annually adjust civil monetary penalties without providing an opportunity for notice and comment, and without a delay in its effective date. Therefore, the Commission is not required to complete a notice and comment process prior to promulgation.

For the reasons set forth in the preamble, the Commission amends 25 CFR part 575 as follows:

I. Table of Abbreviations COTP Captain of the Port 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 USSS United States Secret Service 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 certain details of the event were not available until two weeks prior to the event. Therefore, the Coast Guard lacks sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule. Immediate action is needed to prevent vessels from approaching the location in Charleston, SC of persons under the protection of the United States Secret Service (USSS protectees). It is impracticable to publish an NPRM because we must establish this security zone by June 24, 2023. It would be contrary to public interest to postpone establishing the temporary security zone.

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 because immediate action is needed to prevent interference with the USSS protectees attendance at the International African American Museum in Charleston, SC.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70124. The Captain of the Port (COTP) Charleston has determined that the USSS protectees visit on June 24, 2023, presents a potential target for terrorist attack, sabotage, or other subversive acts, accidents, or other causes of a similar nature. This security zone is necessary to protect the official party, public, and surrounding waterways adjacent to the visit site in Charleston, South Carolina.

This rule establishes a security zone from 8 a.m. through 2 p.m. on June 24, 2023. The security zone will cover an area approximately 500 yards in width by 615 yards in length on the Cooper River along the waterfront of Charleston, South Carolina as follows. All navigable waters of the Cooper River beginning at 32°47′24.87″ N, 079°55′28.41″ W, thence 500 yards east to 32°47′24.87″ N, 079°55′10.84″ W, thence south 615 yards to 32°47′4.74″ N, 079°55′10.84″ W, thence west to 32°47′4.74″ N, 079°55′25.32″ W, thence north along the shoreline to the point of origin.

The duration of the zone is intended ensure the security of the USSS protectees before, during, and immediately after the scheduled event. No vessel or person will be permitted to enter, transit through, anchor in or remain within the security zone without obtaining permission from the COTP or a designated representative. If authorization to enter, transit through, anchor in, or remain within the security zone is granted by the COTP or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP or a designated representative.

The Coast Guard will provide notice of the security zone by Broadcast Notice to Mariners and by on-scene designated representatives.

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 size and location of the security zone. The security zone is limited in size and location as it will cover an area approximately 500 yards in width by 615 yards in length on the Cooper River along the waterfront of Charleston, South Carolina. Although persons and vessels will not be able to enter, transit through, anchor in, or remain within the security zone without authorization from the COTP Charleston or a designated representative, they may operate in the surrounding area during the enforcement period. Furthermore, the rule will allow vessels to seek permission to enter the zone. Persons and vessels may still enter, transit through, anchor in, or remain within the security zone during the enforcement period if authorized by the COTP Charleston or a 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 temporary security zone enforced continuously for a period of 6 hours, which will prohibit entry to a portion of the Cooper River adjacent to Charleston, South Carolina. 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 where indicated under ADDRESSES .

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:

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 it is impracticable to publish an NPRM for a safety zone which must be established by July 1, 2023, to prevent harm from potential navigation and safety hazards created by this event. There is not sufficient time to allow for a notice and comment period prior to the event.

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 would be contrary to the public interest, since immediate action is needed to ensure the safety of event spectators, support craft and other vessels transiting the navigable waters adjacent to the event. For the safety concerns noted, it is in the public interest to have these regulations in effect during the event. However, advance notifications will be made to affected users of the waterway via Broadcast Notice to Mariners and Local Notice to Mariners.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Virginia (COTP) has determined that potential hazards associated with the fireworks events present a safety concern for anyone within the safety zone. The purpose of this rule is to ensure safety of vessels and people in the navigable waters who might otherwise be in the safety zone before, during, and after the scheduled event.

This rule establishes a safety zone from 9:15 p.m. until 10 p.m. on July 1, 2023. The safety zone will include all navigable waters within 150 yards of the fireworks barge located at latitude 37°18′52″ N, longitude 077°17′12.5″ W, located near City Point in Hopewell, VA. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter 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. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the on the size, location, duration, and time-of-day of the safety zone. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard 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 only 45 minutes that will prohibit entry within 150 yards of a fireworks barge. 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:

I. Background

On November 19, 2016, Tennessee submitted a SIP revision in response to the SIP call issued in the June 12, 2015, action titled “State Implementation Plans: Response to Petition for Rulemaking; Restatement and Update of EPA's SSM Policy Applicable to SIPs; Findings of Substantial Inadequacy; and SIP Calls to Amend Provisions Applying to Excess Emissions During Periods of Startup, Shutdown, and Malfunction” (“2015 SSM SIP Action”), 1 and requested approval of changes to provisions in Chapter 1200-3-5 (“Visible Emissions Regulations”) and Chapter 1200-3-20 (“Limits On Emissions Due To Malfunctions, Startups, And Shutdowns”). Regarding the Chapter 1200-3-20 provisions, the State requested approval of changes to Rules 1200-3-20-.06(2), 1200-3-20-.06(4), and 1200-3-20-.06(6) (which have been renumbered from 1200-3-20-.07(1) (in part) and 1200-3-20-.07(3) in the current state code of regulations) to address deficiencies that EPA identified in the 2015 SSM Action in SIP-approved Rules 1200-03-20-.07(1) and 1200-03-20-.07(3). Tennessee also requested changes to Rule 1200-3-20-.06(6), which was not part of the SIP call. On January 20, 2023, Tennessee supplemented its 2016 SIP submission to request removal of Rule 1200-3-20-.06, “Scheduled Maintenance,” resulting in the renumbering of Rules 1200-3-20-.07 through .10 to 1200-3-20-.06 through .09 ( i.e., .07 is renumbered to .06, and so on), and other changes to Chapter 1200-3-20. 2

On April 6, 2023, EPA proposed to act on portions of Tennessee's November 19, 2016, SIP revision, as supplemented on January 20, 2023. 3 In that notice of proposed rulemaking (NPRM), EPA proposed to determine that the SIP revision partially corrects the deficiencies with respect to Tennessee that the Agency identified in the 2015 SSM SIP Action. Consequently, EPA proposed to approve in part and disapprove in part Tennessee's November 19, 2016, SIP revision, as supplemented on January 20, 2023. 4 The reasons for EPA's proposed action are stated in the April 6, 2023, NPRM and will not be restated here. The public comment period for EPA's proposed action ended on May 8, 2023. EPA received one favorable comment on April 20, 2023, and one set of comments in a joint letter submitted by the Sierra Club and the Environmental Integrity Project (hereinafter collectively referred to as the Commenter) on May 8, 2023, which agreed in part and disagreed in part with EPA's proposed action. Both sets of comments are available in the docket for this action.

The Commenter provided comments both in support of and adverse to EPA's proposed action. EPA acknowledges the comments expressing support for the proposed action and will not address them further. Instead, this section of the final rulemaking notice will focus on the comments that were adverse or that warrant clarification. The responses to these comments are below.

Comment 1: For Rule 1200-3-5-.02(1) and Rule 1200-3-20-.06(1), the Commenter acknowledges and supports the rationale behind EPA's proposed disapproval of these provisions and provides further commentary on why Tennessee's proposed additional language in Rule 1200-3-5-.02(1) is problematic. The Commenter states that EPA must finalize the disapprovals and issue a finding of failure to submit.

Response 1: EPA notes that at the time the Agency issued the April 6, 2023, NPRM, there was no basis for EPA to issue a finding of failure to submit regarding Rule 1200-3-5-.02(1) and Rule 1200-3-20-.06(1). Pursuant to Clean Air Act (CAA or Act) section 110(k)(1)(B), EPA must determine no later than six months after the date by which a state is required to submit a SIP whether the state has made a submission that meets the minimum completeness criteria established pursuant to CAA section 110(k)(1)(A) and set forth at 40 CFR part 51, appendix A. EPA refers to the determination that a state has not submitted a SIP submission that meets the minimum completeness criteria as a “finding of failure to submit.”

For the SIP call in the 2015 SSM Action, SIP submissions were due by November 22, 2016. With respect to the SIP-called Rules 1200-3-5-.02(1) and 1200-3-20-.06(1) and (2), 5 Tennessee submitted a SIP revision on November 19, 2016, in response to EPA's 2015 SSM SIP Action. Six months thereafter, on May 19, 2017, Tennessee's SIP revision was deemed complete by operation of law pursuant to CAA section 110(k)(1)(B).

Where a state has submitted a complete SIP revision, EPA must act on it pursuant to CAA section 110(k)(2)-(4) ( e.g., approve the revision, disapprove the revision, etc.). As noted by the Commenter, EPA proposed to disapprove the revisions to Rule 1200-3-5-.02(1) and Rule 1200-3-20-.06(1). If EPA had finalized the disapproval of these provisions in this action, the disapproval would have triggered an obligation under CAA section 110(c)(1) for EPA to promulgate a federal implementation plan (FIP) within 24 months after the date of disapproval. However, since the issuance of the April 6, 2023, NPRM, Tennessee has withdrawn certain provisions addressed therein, including Rules 1200-3-5-.02(1) and 1200-3-20-.06(1), from EPA's consideration as a SIP revision. The letter withdrawing these provisions is provided in the docket for this final rulemaking. Consequently, EPA is not finalizing the proposed disapprovals for Rule 1200-3-5-.02(1) and Rule 1200-3-20-.06(1). Although the withdrawal of these provisions from EPA's consideration is relevant to a determination regarding a finding of failure to submit for those provisions, any such finding of failure to submit would be considered in a separate action. The comment requesting the issuance of a finding of failure to submit is not germane to the portions of the SIP revision subject to this action because they were not withdrawn.

Comment 2: The Commenter is concerned that the revised language in Rule 1200-3-20-.06(4) could be interpreted to preclude the admissibility of data by parties other than the violating owner or operator, particularly EPA or the public, where such data was not provided to TDEC within the required twenty days. The Commenter also asserts that although the NPRM states that the new term “potential enforcement actions” in Rule 1200-3-20-.06(4) refers to a state-only action, a state-only application is not unambiguous in the plain language of the rule. The Commenter goes on to state that even if the rule is interpreted to apply strictly to state enforcement of emission limit exceedances, EPA should require its removal because such provisions of state-only enforcement discretion are not appropriate for inclusion in the SIP.

Response 2: Tennessee has withdrawn Rule 1200-3-20-.06(4) from the SIP revision. Thus, EPA is not finalizing its proposed approval of Rule 1200-3-20-.06(4).

Comment 3: The Commenter is concerned that the addition of Rule 1200-3-20-.06(6) could be read to limit enforcement even though EPA's April 6, 2023, NPRM accurately states the fact that “[a]ny excess emissions that would violate an applicable SIP emission limit are not allowed, regardless of whether they can be proved to cause or contribute to violations of any ambient air quality standards, and regardless of whether they occur during periods of SSM.”  6 The Commenter expresses particular concern that a court could conclude that this provision precludes EPA and the public from enforcing against violations that occur during SSM events if the excess emissions cannot be proved to cause or contribute to any violations of ambient air quality standards. The Commenter states, “Accordingly, EPA should either disapprove Rule 1200-3-20-.06(6) or approve it conditioned on the following clarification, so that it reads: `No emission during periods of malfunction, start-up, or shutdown that are in excess of the standards in Division 1200-03 or any permit issued thereto shall be allowed.' ”

Response 3: EPA disagrees that Rule 1200-3-20-.06(6) could limit enforcement. In accordance with the 2015 SSM SIP Action, EPA will not approve SIP provisions that excuse excess emissions during periods of SSM, regardless of whether they can or cannot be proven to cause or contribute to any violations of ambient air quality standards. EPA interprets the statement in Rule 1200-3-20-.06(6) regarding ambient air quality standards as only emphasizing the impermissibility of causing or contributing to violations of the State's ambient air quality standards and the National Ambient Air Quality Standards. Therefore, EPA does not agree that Rule 1200-3-20-.06(6), although perhaps superfluous, must be disapproved or that, alternatively, EPA should approve Rule 1200-3-20-.06(6) conditioned on the Commenter's clarification.

Comment 4: The Commenter asks that EPA act on “its SIP calls to Shelby County and Knox County, Tennessee that were part of the 2015 SSM SIP Call.” Specifically, the Commenter refers to Shelby County Code § 16-87 and mentions that it “addresses enforcement for excess emissions that occur during malfunctions, startups, and shutdowns by incorporating by reference the state's provisions in Tenn. Comp. R. & Regs. 1200-3-20.” The Commenter goes on to opine about the provisions and its belief that these provisions are inconsistent with the SIP call and CAA. Finally, the Commenter states that “EPA must take action to address the failure of these local air pollution control agencies to respond to EPA's SIP Call.”

Response 4: First, EPA notes that these comments are not within the scope of EPA's April 6, 2023, proposed action. Nevertheless, EPA disagrees with the assertion that neither Knox County nor Shelby County responded to EPA's 2015 SIP Call. Tennessee has responded to EPA's 2015 SSM SIP Action for both local air pollution control agencies. In fact, on January 11, 2016, Knox County, through the State of Tennessee, submitted a SIP revision that corrected the deficiencies noted in EPA's 2015 SSM SIP Action. EPA proposed approval of Tennessee's corrective SSM SIP for Knox County on September 22, 2016. 7 The Agency did not receive any comments during the public comment period, and EPA finalized that action on December 16, 2016. 8 Furthermore, on March 2, 2022, Shelby County, through the State of Tennessee, submitted a SIP revision in response to the 2015 SSM SIP Call to address the deficiencies that EPA identified. EPA is currently evaluating this SIP revision and is still within its CAA section 110(k) statutory timeframe to conduct this evaluation and process this SIP revision ( i.e., the deadline is September 2, 2023, in this case).

Comment 5: The Commenter states that EPA should take immediate steps to promulgate a FIP within 24 months of this final rulemaking, citing to the portion of CAA section 110(c)(1) that requires EPA to promulgate a FIP within two years after it disapproves a SIP submission in whole or in part.

Response 5: EPA acknowledges this comment and recognizes the Agency's statutory obligation to promulgate a FIP within 24 months of a final disapproval of a SIP submission unless the State corrects the deficiency, and EPA approves the plan or plan revision, before EPA promulgates the FIP. This comment is no longer within the scope of EPA's action because the proposed disapproval related to a portion of the submittal that was subsequently withdrawn and because EPA is therefore not finalizing the proposed disapproval in this action.

EPA is approving changes to Chapter 1200-3-20 of the Tennessee SIP, as submitted on November 19, 2016, and supplemented on January 20, 2023. Specifically, EPA is approving the changes to Rule 1200-3-20-.01, “Purpose”; Rule 1200-3-20-.02, “Reasonable Measures Required”; Rule 1200-3-20-.06, “Report Required Upon the Issuance of Notice of Violation,” renumbered from 1200-3-20-.07, except for 1200-3-20-.06(1), 1200-3-20-.06(4), and 1200-3-20-.06(5); Rule 1200-3-20-.07, “Special Reports Required,” renumbered from 1200-3-20-.08; Rule 1200-3-20-.08, “Rights Reserved,” renumbered from 1200-3-20-.09; and Rule 1200-3-20-.09, “Additional Source Covered,” renumbered from 1200-3-20-.10. EPA is also approving the removal of Rule 1200-3-20-.06, “Scheduled Maintenance.”

In this document, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, and as discussed in Sections I through III of this preamble, EPA is finalizing the incorporation by reference into the Tennessee SIP Rules 1200-3-20-.01, “Purpose,” State effective on September 26, 1994; 1200-3-20-.02, “Reasonable Measures Required,” State effective on November 11, 1997;  9 1200-3-20-.06, “Report Required Upon the Issuance of a Notice of Violation,” State effective on November 16, 2016, except for 1200-3-20-.06(1), 1200-3-20-.06(4), and 1200-3-20-.06(5);  10 11 1200-3-20-.07, “Special Reports Required,” State effective on September 26, 1994;  12 1200-3-20-.08, “Rights Reserved,” State effective on September 26, 1994;  13 and 1200-3-20-.09, “Additional Sources Covered,” State effective on September 26, 1994. 14 Also in this document, EPA is finalizing the removal of Rule 1200-3-20-.06, “Scheduled Maintenance,”  15 which is incorporated by reference in accordance with the requirements of 1 CFR part 51. EPA has made, and will continue to make the State Implementation Plan generally available through the EPA Region 4 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, the revised materials as stated above have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's partial approval and will be incorporated by reference in the next update to the SIP compilation. 16

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

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

• Does not impose 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, this action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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. 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.”

TDEC did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. 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 EJ for people of color, low-income populations, and Indigenous peoples.

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 22, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

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

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

You may be potentially affected by this action if you manufacture, process, or otherwise use any of the PFAS listed in this rule. The following list of North American Industry Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this action applies to them. Potentially affected entities may include:

• Facilities included in the following NAICS manufacturing codes (corresponding to Standard Industrial Classification (SIC) codes 20 through 39): 311*, 312*, 313*, 314*, 315*, 316, 321, 322, 323*, 324, 325*, 326*, 327*, 331, 332, 333, 334*, 335*, 336, 337*, 339*, 111998*, 113310, 211130*, 212323*, 212390*, 488390*, 512230*, 512250*, 5131*, 516210*, 519290*, 541713*, 541715* or 811490*. *Exceptions and/or limitations exist for these NAICS codes.

• Facilities included in the following NAICS codes (corresponding to SIC codes other than SIC codes 20 through 39): 211130* (corresponds to SIC code 1321, Natural Gas Liquids, and SIC 2819, Industrial Inorganic Chemicals, Not Elsewhere Classified); or 212114, 212115, 212220, 212230, 212290*; or 2211*, 221210*, 221330 (limited to facilities that combust coal and/or oil for the purpose of generating power for distribution in commerce) (corresponds to SIC codes 4911, 4931, and 4939, Electric Utilities); or 424690, 424710 (corresponds to SIC code 5171, Petroleum Bulk Terminals and Plants); 425120 (limited to facilities previously classified in SIC code 5169, Chemicals and Allied Products, Not Elsewhere Classified); or 562112 (limited to facilities primarily engaged in solvent recovery services on a contract or fee basis (previously classified under SIC code 7389, Business Services, NEC)); or 562211*, 562212*, 562213*, 562219*, 562920 (limited to facilities regulated under the Resource Conservation and Recovery Act, subtitle C, 42 U.S.C. 6921 et seq. ) (corresponds to SIC code 4953, Refuse Systems). *Exceptions and/or limitations exist for these NAICS codes.

• Federal facilities.

A more detailed description of the types of facilities covered by the NAICS codes subject to reporting under EPCRA section 313 can be found at: https://www.epa.gov/toxics-release-inventory-tri-program/tri-covered-industry-sectors. To determine whether your facility would be affected by this action, you should carefully examine the applicability criteria in 40 CFR part 372, subpart B. If you have questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT .

EPA is codifying the nine additional PFAS that were added to the EPCRA section 313 list of reportable chemicals (more commonly known as the Toxics Release Inventory (TRI)) since the last conforming rule pursuant to the FY2020 NDAA (87 FR 42651; July 18, 2022) (FRL-9427-01-OCSPP)).

This action is issued under the authority of section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA) (42 U.S.C. 11001 et seq. ), section 6607 of the Pollution Prevention Act (PPA) (42 U.S.C. 13106), and section 7321 of the National Defense Authorization Act for Fiscal Year 2020 (FY2020 NDAA) (Pub. L. 116-92).

On December 20, 2019, the FY2020 NDAA was signed into law. Among other provisions, section 7321(c) identifies certain regulatory activities that automatically add PFAS or classes of PFAS to the EPCRA section 313 list of reportable chemicals. Specifically, PFAS or classes of PFAS are added to the EPCRA section 313 list of reportable chemicals beginning January 1 of the calendar year after any one of the following dates:

• Final Toxicity Value. The date on which the Administrator finalizes a toxicity value for the PFAS or class of PFAS;

• Significant New Use Rule. The date on which the Administrator makes a covered determination for the PFAS or class of PFAS;

• Addition to Existing Significant New Use Rule. The date on which the PFAS or class of PFAS is added to a list of substances covered by a covered determination;

• Addition as an Active Chemical Substance. The date on which the PFAS or class of PFAS to which a covered determination applies is:

(1) Added to the list published under section 8(b)(1) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2601 et seq. ) and designated as an active chemical substance under TSCA section 8(b)(5)(A); or

(2) Designated as an active chemical substance under TSCA section 8(b)(5)(B) on the list published under TSCA section 8(b)(1).

The FY2020 NDAA defines “covered determination” as a determination made by rule under TSCA section 5(a)(2) that a use of a PFAS or class of PFAS is a significant new use (except such a determination made in connection with a determination described in TSCA sections 5(a)(3)(B) or 5(a)(3)(C)).

Under FY2020 NDAA section 7321(e), EPA must review confidential business information (CBI) claims before PFAS are added to the list pursuant to subsections (b)(1), (c)(1), or (d)(3) whose identities are subject to a claim of protection from disclosure under 5 U.S.C. 552(a), pursuant to subsection (b)(4) of that section. Under the FY2020 NDAA EPA must:

• Review a claim of protection from disclosure; and

• Require that person to reassert and substantiate or re-substantiate that claim in accordance with TSCA section 14(f) (15 U.S.C. 2613(f)).

In addition, if EPA determines that the chemical identity of a PFAS or class of PFAS qualifies for protection from disclosure, EPA must include the PFAS or class of PFAS on the TRI in a manner that does not disclose the protected information.

EPA has reviewed the above-listed criteria and found nine chemicals that meet the requirements of this part of the FY2020 NDAA and whose identity is not claimed as confidential business information (CBI).

As stated above, under FY2020 NDAA section 7321(e), EPA must review CBI claims before PFAS whose identities are subject to a claim of protection from disclosure under 5 U.S.C. 552(a) (pursuant to subsection (b)(4)) are added to the list. The substances with the CAS No. 2728655-42-1, 2738952-61-7, 2742694-36-4, and 2744262-09-5 met the criteria under FY2020 NDAA section 7321(c)(1)(A)(iii), but were subject to a claim of protection from disclosure under 5 U.S.C. 552(b)(4) at that time ( i.e., when the FY2020 NDAA was enacted). These substances' identities have since been published on the non-confidential portion of the TSCA Inventory in 2022; therefore, the chemicals were added pursuant to FY2020 NDAA section 7321(e) to the TRI list and are being incorporated into the CFR pursuant to this rule.

As established by the FY2020 NDAA, the addition of these PFAS to the EPCRA section 313 list of reportable chemicals is effective January 1 of the calendar year following any of the dates identified in FY2020 NDAA section 7321(c)(1)(A). Accordingly, non-CBI PFAS are reportable beginning with the 2023 reporting year ( i.e., reports due July 1, 2024).

EPA is issuing this final rule to amend the EPCRA section 313 list of reportable chemicals in 40 CFR 372.65 to include nine non-CBI PFAS added pursuant to the FY2020 NDAA.

Section 553(b)(B) of the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary. This action is being taken to comply with a mandate in an Act of Congress, where Congress identified actions that automatically add these chemicals to the TRI. Thus, EPA has no discretion as to the outcome of this rule, which merely aligns the regulations with the self-effectuating changes provided by the FY2020 NDAA.

The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not itself physically located in the docket. For assistance in locating these other documents, please consult the person listed under FOR FURTHER INFORMATION CONTACT .

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 as defined in Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), and was therefore not subject to a requirement for Executive Order 12866 review.

This action does not impose any new information collection burden under the PRA, 44 U.S.C 3501 et. seq. Burden is defined in 5 CFR 1320.3(b). OMB has previously approved the information collection activities contained in the existing regulations and assigned OMB control numbers 2070-0212 and 2050-0078.

Currently, the facilities subject to the reporting requirements under EPCRA section 313 and PPA section 6607 may use either EPA Toxic Chemicals Release Inventory Form R (EPA Form 9350-1), or EPA Toxic Chemicals Release Inventory Form A (EPA Form 9350-2). The Form R must be completed if a facility manufactures, processes, or otherwise uses any listed chemical above threshold quantities and meets certain other criteria. For the Form A, EPA established an alternative threshold for facilities with low annual reportable amounts of a listed toxic chemical. The annual reportable amount is equal to the combined total quantities of the following waste management activities:

• Released at the facility (including disposed of within the facility);

• Treated at the facility (as represented by amounts destroyed or converted by treatment processes);

• Recovered at the facility as a result of recycling operations;

• Combusted for the purpose of energy recovery at the facility; and

• Amounts transferred from the facility to off-site locations for the purpose of recycling, energy recovery, treatment, and/or disposal.

A facility that meets the appropriate reporting thresholds, but estimates that the total annual reportable amount of the chemical does not exceed 500 pounds per year, can take advantage of an alternative manufacture, process, or otherwise use threshold of 1 million pounds per year of the chemical, provided that certain conditions are met, and submit the Form A instead of the Form R. In addition, respondents may designate the specific chemical identity of a substance as a trade secret pursuant to EPCRA section 322 (42 U.S.C. 11042) and 40 CFR part 350. OMB has approved the reporting and recordkeeping requirements related to Forms A and R, supplier notification, and petitions under OMB Control No. 2070-0212 (EPA Information Collection Request (ICR) No. 2613.04) and those related to trade secret designations under OMB Control No. 2050-0078 (EPA ICR No. 1428.12).

An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers relevant to EPA's regulations in 40 CFR are listed in 40 CFR part 9 and displayed on the information collection instruments ( e.g., forms, instructions).

This action is not subject to the RFA, 5 U.S.C. 601 et seq. The RFA applies only to rules subject to notice and comment rulemaking requirements under the APA, 5 U.S.C. 553, or any other statute. As discussed in Unit III., this rule is not subject to notice and comment requirements because the Agency has invoked the APA “good cause” exception under 5 U.S.C. 553(b).

This action does not contain any unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

This action does not have federalism implications, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it will not have substantial direct effects on states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Thus, Executive Order 13175 does not apply to this action.

This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000) because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. It does not have substantial direct effects on tribal government because EPA does not anticipate that PFAS reporting will be conducted by Tribes so this rulemaking is not expected to impose substantial direct compliance costs on Tribal governments. Thus, Executive Order 13175 does not apply to this action.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of Executive Order 13045. This action is not subject to Executive Order 13045, because it does not concern an environmental health or safety risk. Since this action does not concern human health, EPA's Policy on Children's Health also does not apply.

Although this action does not concern an environmental health or safety risk, this reporting rule will aid in collecting information regarding PFAS. This rule will be of use in identifying releases of PFAS to which children may be exposed. EPA believes that the information obtained as a result of this action could also be used by the public, government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential human health or environmental risks including those that may disproportionately affect children.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. Further, we have concluded that this action is not likely to have any adverse effect on the supply, distribution or use of energy.

This rulemaking does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272, does not apply to this action.

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

The EPA believes that it is not practicable to assess whether the human health or environmental conditions that exist prior to this action result in disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples. This regulatory action makes changes to the reporting requirements for PFAS that will result in more information being collected and provided to the public; it does not have any impact on human health or the environment. This action does not address any human health or environmental risks and does not affect the level of protection provided to human health or the environment. This action makes changes to the reporting requirements for PFAS, which will provide information that government agencies and others can use to identify potential problems, set priorities, and help inform activities.

However, EPA believes that this type of action does not directly concern human health or environmental conditions and therefore cannot be evaluated with respect to potentially disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples. This action involves additions to reporting requirements that will not affect the level of protection provided to human health or the environment. Although this action does not concern human health or environmental conditions, the information collected through TRI reporting will serve to inform communities living near facilities that report to TRI, and there is the potential for new information about toxic chemical releases and waste management practices occurring in those communities to become available through the TRI reporting data.

The information obtained as a result of this action may be used to collect information on releases of PFAS. Understanding releases of PFAS will also help inform and tailor future EPA actions to address PFAS as needed. EPA also believes that the information obtained as a result of this action potentially could be used by the public (including people of color, low-income populations and/or indigenous peoples) to inform their behavior as it relates to releases of PFAS exposure or by government agencies and others to identify potential problems, set priorities, and take appropriate steps to reduce any potential human health or environmental risks.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR part 372 as follows:

In the March 21, 2023 direct final rule that the FMC published in the Federal Register , the rule inadvertently stated the incorrect amount for two fees for certain services. The fee for the certification/validation of documents found at both 46 CFR 503.50(c)(4) and 46 CFR 503.69(b)(2) was stated as $93 instead of $107. Similarly, the fee for Non-Attorney Admission to Practice at 46 CFR 503.50(d) was listed as $195 instead of $229. Included in the docket with the direct final rule as a supporting document was the 2023-3-07FY23 User Fee Control File. This spreadsheet shows the correct amounts for the fees and shows how those fees were calculated and is still available on the docket. The FMC is now correcting the error by aligning the fees in stated in the rule with those that were correctly identified in the 2023-3-07FY23 User Fee Control File provided in the docket as a supporting document.

For the reasons set forth above, the Federal Maritime Commission is amending 46 CFR part 503 by making the following correcting amendments:

In FR Doc. No. 2023-11972, appearing on page 37318 in the Federal Register of Wednesday, June 7, 2023, the following corrections are made:

NMFS manages the Pacific sardine fishery in the U.S. exclusive economic zone off the Pacific coast (California, Oregon, and Washington) in accordance with the Coastal Pelagic Species (CPS) Fishery Management Plan (FMP). The FMP and its implementing regulations require NMFS to set annual catch levels for the Pacific sardine fishery based on the annual specification framework, control rules, and management measures in the FMP. These control rules, including the harvest guideline (HG) control rule, the overfishing limit (OFL) and acceptable biological catch (ABC) rules, along with other management measures are used to manage harvest levels for Pacific sardine, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act (MSA), 16 U.S.C. 1801 et seq.

This final rule implements the annual catch levels, reference points, and management measures for the 2023-2024 fishing year. The final rule adopts, without changes, the catch levels and restrictions that NMFS proposed in the rule published on May 16, 2023 (88 FR 31214). The proposed rule for this action included additional background on the specifications and details of how the Pacific Fishery Management Council (Council) derived its recommended specifications for Pacific sardine. Those details are not repeated here. For additional information on this action, please refer to the proposed rule (88 FR 31214, May 16, 2023).

This final rule implements an OFL of 5,506 metric tons (mt) and an ABC/annual catch limit (ACL) of 3,953 mt, based on CPS FMP control rules and a biomass estimate of Pacific sardine of 27,369 mt. This biomass estimate is from the 2022 update stock assessment, which was identified by the Council's Scientific and Statistical Committee (SSC) to represent the best scientific information available for management of Pacific sardine for this year. Per the CPS FMP, because the estimated biomass is less than 150,000 mt ( i.e., the Rebuilding target and CUTOFF in the harvest guideline control rule), the primary directed fishery is set to 0 mt, meaning there is no primary directed fishery for Pacific sardine. This is the ninth consecutive year the primary directed fishery has been closed. Because the estimated biomass is below the minimum stock size threshold (50,000 mt), the FMP requires that incidental catch of Pacific sardine in other CPS fisheries be limited to an incidental allowance of no more than 20 percent by weight. Although these management measures, triggered by the FMP, are expected to keep catch far below the ACL as they have done in recent history, this rule also implements an annual catch target (ACT) of 3,600 mt and implements management measures intended to ensure harvest opportunity throughout the year.

A summary of the 2023-2024 fishing year specifications can be found in Table 1, and management measures are summarized in the list below Table 1.

Following are the management measures for commercial sardine harvest during the 2023-2024 fishing year:

(1) If landings in the live bait fishery reach 2,500 mt of Pacific sardine, then a 1 mt per-trip limit of sardine would apply to the live bait fishery.

(2) An incidental per-landing limit of 20 percent (by weight) of Pacific sardine applies to other CPS primary directed fisheries ( e.g., Pacific mackerel).

(3) If the ACT of 3,600 mt is attained, then a 1mt per-trip limit of Pacific sardine landings would apply to all CPS fisheries ( i.e., (1) and (2) would no longer apply).

(4) An incidental per-landing allowance of 2 mt of Pacific sardine would apply to non-CPS fisheries until the ACL is reached.

All sources of catch, including any exempted fishing permit (EFP) set-asides, the live bait fishery, and other minimal sources of harvest, such as incidental catch in CPS and non-CPS fisheries and minor directed fishing, will be accounted for against the ACT and ACL. At the April 2023 Council meeting, the Council approved 670 mt of the ACL for two EFP proposals to support stock assessments for Pacific sardine. NMFS published a notice of receipt of EFP applications on May 19, 2023 (88 FR 32200), and will decide whether to issue the EFPs after the comment period closes on June 20, 2023. If the effective date of this final rule is after July 1, 2023, any Pacific sardine harvested between July 1, 2023, and the effective date will count toward the 2023-2024 ACT and ACL.

The NMFS West Coast Regional Administrator will publish a notice in the Federal Register to announce when catch reaches the management measure limits, as well as any resulting changes to allowable incidental catch percentages. Additionally, to ensure that the regulated community is informed of any closure, NMFS will make announcements through other means available, including emails to fishermen, processors, and state fishery management agencies.

On May 16, 2023, NMFS published a proposed rule for this action and solicited public comments through May 31, 2023 (88 FR 31214). NMFS received two public comments—one from the industry group California Wetfish Producers Association (Association) and one from the environmental group Oceana. The Association supported the proposed rule in its entirety. After considering the public comments, NMFS made no changes from the proposed rule. NMFS summarizes and responds to the comment from Oceana below.

Comment: Oceana recommended that NMFS use a lower harvest rate (E MSY or environmental maximum sustainable yield, which is used to calculate the OFL and ABC) of 5 percent to set specifications.

Oceana also appended to their comment a timeline of sardine management from 1967 to 1992. As this did not contain any recommendations, there is no response.

Lastly, Oceana attached a letter they sent to the Council in March 2023, which contained more specific recommendations to the Council for their consideration during the April 2023 Council Agenda Item H.4, 2023-2024 Pacific sardine annual catch limit and management measures. Those recommendations included: use an E MSY of 5 percent; incorporate more buffer into the calculations for specifications; set the ACL no higher than 800 mt; and limit the incidental catch allowance to no more than 10 percent.

Response: As it relates to the comment that NMFS should use an E MSY of 5 percent to calculate the OFL and ABC, NMFS has determined that the OFL and ABC being implemented through this action will prevent overfishing and are supported by the best scientific information available, including the information used to calculate E MSY . Additionally, the reference points proposed for the 2023-2024 fishing year were recommended by the Council's SSC, which they determined to represent the best available science for managing the fishery, and are based on the formulas in the CPS FMP, including the formula adopted for calculating E MSY. In its comment, Oceana points to recent Council discussions related to E MSY . NMFS notes in response that the Council's SSC—the scientific advisory body that is responsible for recommending changes to E MSY —can (as it has done in the past) recommend changes to E MSY at any time if the best available science warrants such a revision; it has not determined that a change to E MSY is necessary at this time.

Oceana stated that the “. . . annual catch limit for 2023-24 is nearly twice the 2,200 mt annual catch NMFS assumed to support its conclusion that Amendment 18 would rebuild the sardine population . . .” To clarify, there are two stocks of Pacific sardine that can occur off the U.S. West Coast, known as the northern subpopulation and the southern subpopulation. The northern subpopulation, managed under the CPS FMP, is overfished and managed under the rebuilding plan ( i.e., Amendment 18 to the CPS FMP). The southern subpopulation, not managed under the CPS FMP nor part of the rebuilding plan, usually resides off the coast of Mexico, but in the summer months migrates north into waters off southern California. While the two subpopulations generally inhabit different geographic ranges, they do typically mix in the summertime, and it is impossible to distinguish between the subpopulations at the time of landing. Therefore, in an abundance of caution, NMFS counts all landed Pacific sardine against the ACL (which is set based on the biomass of the northern subpopulation only), regardless of which subpopulation they might belong to. Additionally, this rule includes management measures that generally restrict the fishery from catching the full ACL. These non-discretionary restrictions include the continued closure of the primary directed fishery ( i.e., the largest fishery that takes the majority of Pacific sardine catch) and restrictions on incidental harvest of Pacific sardine in other CPS fisheries (which are currently less than half of typical incidental limits).

In its March 24, 2023, letter to the Council, Oceana referenced a 2019 paper in support of its contention that the temperature index being used to calculate E MSY is flawed. NMFS is aware of the paper Oceana referenced and of ongoing Council discussions related to E MSY. NMFS is committed to participating in discussions about new science and whether that science justifies a change to how E MSY is calculated for management purposes. NMFS notes that research related to the appropriate temperature index to inform E MSY is ongoing and points out that the paper Oceana cited does not suggest an alternative methodology for calculating E MSY . NMFS has not yet determined whether, a change in how E MSY is calculated is necessary for management purposes. As previously stated, NMFS has determined that the reference points set through this action are based on the best scientific information available.

Oceana stated that the E MSY fishing rate and distribution factor NMFS used to calculate the OFL “. . . are overestimated, resulting in an inflated OFL that does not prevent overfishing.” However, we note that overfishing has never occurred in this fishery, and the science supports NMFS' determination that the OFL implemented through this action will prevent overfishing.

NMFS disagrees with Oceana's suggestion to increase the buffer between OFL and ABC. The SSC recommended that the update stocks assessment upon which those reference points are based be deemed a Tier 2 assessment (meaning data moderate) and that a “staleness” factor be added to account for the time that has passed since the update assessment was conducted. The Council chose to use a P* of 0.4, which is consistent with past years. The buffer between OFL and ABC for this year's fishing season, 28.2 percent, is appropriately larger than the buffer between OFL and ABC for last year's fishing season because the stock assessment used for decision-making, while being best scientific information available, is a year older or “staler.” The ABC being implemented through this action is from the Council's SSC, which is responsible for making ABC recommendations to the Council and which bases its recommendations on the best scientific information available. NMFS also notes that, contrary to Oceana's assertions, there have been no “indications of overfishing in several previous years” that would warrant a more precautionary approach to setting the ABC. NMFS has therefore determined that it is not necessary to further reduce the ABC from the OFL to prevent overfishing.

NMFS also disagrees with Oceana's recommendation that the ACL should be no higher than 800 mt. The OFL/ABC/ACL were all calculated in alignment with the rebuilding plan. The reference points implemented through this action should also be viewed in the context of the non-discretionary harvest restrictions already in place, pursuant to the CPS FMP and the rebuilding plan for the northern subpopulation of Pacific sardine, which typically restrain the fishery from catching the full ACL. These non-discretionary restrictions include the continued closure of the primary directed fishery ( i.e., the largest fishery that takes the majority of Pacific sardine catch) and restrictions on incidental harvest of Pacific sardine in other CPS fisheries (which are currently less than half of typical incidental limits). Recent catch of Pacific sardine (both northern and southern subpopulations) has been 1,769 mt in the 2021-2022 season, and so far 1,110 mt in the 2022-2023 season (ending June 30, 2023). The reference points being implemented through this action were recommended by the Council based on the control rules in the FMP and were endorsed by the Council's SSC as the best scientific information available for setting the 2023-2024 harvest specifications for Pacific sardine.

The Council considered the overfished status of Pacific sardine, as well as the “staleness” of the 2022 update assessment, and incorporated precautionary measures in their recommendations to NMFS to account for those factors. Those precautionary measures included: (1) deeming the assessment Tier 2 and adding an additional “staleness” factor to that buffer; (2) using a P* value of 0.4; (3) reducing the ACT from the ACL; and (4) incorporating accountability measures. These accountability measures include: (1) limiting live bait landings to 1 mt per landing once 2,500 mt of sardine is attained; (2) imposing a per-trip limit of 1 mt of sardine in all CPS fisheries once the ACT is attained; and (3) implementing an incidental per-landing allowance of 2 mt in non-CPS fisheries until the ACL is reached.

As it relates to Oceana's recommendation that NMFS set the incidental catch allowance at 10 percent, NMFS notes that all harvest, regardless of how it is taken or at what level ( i.e., 10 percent or 20 percent), is accounted for under the OFL/ABC/ACL/ACT for this action, and these levels have been determined to prevent overfishing of Pacific sardine and support the rebuilding of the stock. Additionally, reducing the incidental catch allowance is not necessary to ensure these reference points are not exceeded, therefore NMFS does not see a justification to restrict this sector further than the low catch allowance already in place.

Pursuant to section 304(b)(1)(A) of the MSA, the NMFS Assistant Administrator has determined that this final rule is consistent with the CPS FMP, other provisions of the MSA, and other applicable law.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in the date of effectiveness of these final harvest specifications for the 2023-2024 Pacific sardine fishing season. In accordance with the FMP, this rule was recommended by the Council at its meeting in April 2023. The contents of this rule are based on the best scientific information available on the population status of Pacific sardine, which became available at that April 2023 meeting. Making these final specifications effective on July 1, the first day of the fishing year, is necessary for the conservation and management of the Pacific sardine resource because last year's restrictions on harvest are not effective after June 30, 2023. The FMP requires a prohibition on primary directed fishing for Pacific sardine for the 2023-2024 fishing year because the sardine biomass has dropped below the CUTOFF. The purpose of the CUTOFF in the FMP, and for prohibiting a primary directed fishery when the biomass drops below this level, is to protect the stock when biomass is low and provide a buffer of spawning stock that is protected from fishing and can contribute to rebuilding the stock. If these specifications are not effective by July 1, there would be no prohibition on the primary directed fishing, and a significant amount of sardine could theoretically be caught in a short period.

Delaying the effective date of this rule beyond July 1 would be contrary to the public interest because it would jeopardize the sustainability of the Pacific sardine stock. Furthermore, most affected fishermen have already been operating under a prohibition of the primary directed fishery for years, and are aware that the Council recommended that primary directed commercial fishing be prohibited again for the 2023-2024 fishing year, and are fully prepared to comply with the prohibition.

This final rule is exempt from review under Executive Order 12866.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities for the purposes of the Regulatory Flexibility Act. The factual basis for the certification was published in the proposed rule (88 FR 31214, May 16, 2023) and is not repeated here. As a result, a final regulatory flexibility analysis was not required and none was prepared.

Pursuant to Executive Order 13175, this rule was developed after meaningful consultation and collaboration with the Council's tribal representative, who has agreed with the provisions that apply to tribal vessels.

This action does not contain a collection-of-information requirement for purposes of the Paperwork Reduction Act. There are no relevant Federal rules that may duplicate, overlap, or conflict with the action.

The North Pacific Fishery Management Council (Council) recommended and NMFS issued a final rule to implement Amendment 124 to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (BSAI FMP) and Amendment 112 to the Fishery Management Plan for Groundfish of the Gulf of Alaska (GOA FMP) (88 FR 12259, February 27, 2023). One element of that final rule temporarily removed the Adak CQE residency requirement for a period of five years. The final rule's intent was to suspend the residency requirement for five years for both transfer and use of CQE IFQ. The final rule revised regulations at §  679.42(e)(8)(ii) and (f)(7)(ii) that otherwise limit the use of sablefish and halibut quota share to eligible community residents of Adak, Alaska. However, the final rule failed to make a corresponding revision at § 679.41(g)(6)(ii).

This action is necessary to correct an inadvertent drafting error in final regulations published on February 27, 2023. NMFS overlooked revising a regulation related to the Adak residency requirement and amending it to impose its suspension for a five-year period. This action corrects that error and modifies regulations at §  679.41(g)(6)(ii) to change the date after which only an eligible community resident of Adak, Alaska may receive by transfer IFQ held by a CQE in the Aleutian Islands subarea. This correcting amendment will fully implement the removal of the Adak CQE residency requirement for a period of five years as intended under the final rule published on February 27, 2023.

NMFS is issuing this rule pursuant to 304(b) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). The NMFS Assistant Administrator for Fisheries (AA) has determined that this final rule is consistent with the BSAI and GOA FMPs and other applicable law.

Pursuant to 5 U.S.C. 553(b)(B), the AA finds there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be unnecessary and contrary to public interest in clear and accurate regulations. This action corrects an inadvertent error and makes necessary clarifications to the February 27, 2023 final rule (88 FR 12259). Expeditious correction of the error and clarification is necessary to prevent confusion among participants in the fishery, as the fishery has already begun. In addition, notice and comment is unnecessary because this action makes only a minor change to correct an inadvertent error in final regulations published in the February 27, 2023 final rule (88 FR 12259). This correction will not affect the results of analyses conducted to support management decisions under the IFQ Program. This correction is consistent with the Council's intent for regulations, and the public expected the regulations to be written as they are in this correction. No change in operating practices in the fishery is required.

Similarly, the AA has determined good cause exists to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d). The change in this action should be effective immediately to prevent further confusion among participants in the fishery. This notice makes only a minor correction to the final rule which was effective February 27, 2023. Delaying effectiveness of this correction would result in conflicting mandates in the regulations and confusion among fishery participants.

Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no Regulatory Flexibility Analysis is required for this rule and none has been prepared.

This final rule is not significant under Executive Order 12866.

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

For the reasons set out in the preamble, NMFS amends 50 CFR part 679 as follows: