The REAL ID Act sets minimum security requirements for the issuance and production of driver's licenses and identification cards in order for federal agencies to accept these documents for official purposes. 1 DHS regulations implementing the Act are codified at 6 CFR part 37. 2 Within this part, §§ 37.17 and 37.19 incorporate four standards by reference.

Incorporation by reference (IBR) allows federal agencies to comply with the requirement to publish rules in the Federal Register and Code of Federal Regulations (CFR)  3 by referring to material already published elsewhere. 4 The regulations agencies must follow to IBR publications into the CFR are found at 1 CFR part 51. Part 51 requires agencies to provide specific information related to the publications along with contact information for the publishers, the agency and the National Archives and Records Administration. In order to help Federal agencies meet this and the other requirements established in 1 CFR part 51, the Office of the Federal Register publishes the IBR Handbook. 5 The IBR Handbook provides standardized language that meets the requirements of part 51. It also provides examples of the ways agencies can set out this language in their regulations depending on whether the agency is incorporating one standard in one section or multiple standards into multiple sections in a part. When Federal agencies seek to IBR multiple standards into different sections, the OFR provides agencies the option to codify one section that contains the standardized approval language along with all the standards incorporated by reference into a discrete CFR unit, such as a Chapter, Subchapter, Part or Subpart. This “centralized IBR section” allows Federal agencies to consolidate IBR information into a single section instead of repeating this language in each section where the publication is incorporated.

Currently, 6 CFR 37.17 and 37.19 are formatted so that the standardized IBR approval language required by 1 CFR part 51 is repeated in §§ 37.17(e), (g), (m) and 37.19. This means that the detailed information related to IBR approval, publisher information, and agency contact information is repeated in its entirety in four separate CFR paragraphs in two separate sections in part 37. This rule removes the IBR approval language from each of these individual paragraphs and consolidates the language into new § 37.4 Incorporation by Reference. This consolidation increases the readability of the part by removing duplicative language from §§ 37.17 and 37.19.

Finally, in the course of drafting this technical amendment, DHS realized that our contact information in these provisions was out of date. This rule also revises the IBR approval language in § 37.4 to update the email address to contact the department if you are interested in examining the standards incorporated by reference into 6 CFR part 37.

DHS has determined that this rule is exempt from notice-and-comment rulemaking requirements under 5 U.S.C. 553(b)(A) and 5 U.S.C. 553(b)(B). The revisions set out in this rule pertain to reformatting the current codified text and updating contact information and constitutes “rules of agency organization, procedure, or practice” not subject to the Administrative Procedure Act's (APA) notice and comment requirements under 5 U.S.C. 553(b)(A). The revisions set out in this rule are technical or editorial non-substantive formatting changes, which are intended to consolidate standardized information already published in the CFR and to update out of date contact information for the department. These changes are necessary to consolidate redundant language into one centralized section to streamline CFR formatting to improve the clarity of the CFR. They also update department contact information. None of the revisions included in this action will have a substantive impact on the public nor will they alter the regulatory requirements in the affected part. Accordingly, DHS finds for good cause that this final rule is exempt from public notice-and-comment rulemaking procedures under 5 U.S.C. 553(b)(B) because such procedures are unnecessary.

For the same reasons that this rule is exempt from notice-and-comment rulemaking requirements, and because affected parties will not need time to adjust to the revisions made through this action, DHS finds that good cause exists to make this final rule effective upon publication in the Federal Register under 5 U.S.C. 553(d)(3).

Because DHS has determined that this rule is exempt from notice and comment rulemaking requirements, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) do not apply to this action. This technical amendment also does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866.

There is no new or amended collection of information required by this document; therefore, the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) are inapplicable.

For the reasons set out in the preamble, the Department of Homeland Security corrects 6 CFR part 37 by making the following technical amendments:

The NRC is issuing a revision in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

The proposed Revision 1 to RG 1.163 was issued with a temporary identification of Draft Regulatory Guide, DG-1391. This revision of the guide (Revision 1) endorses the guidance in Nuclear Energy Institute 94-01, Revision 3-A, issued July 2012, for implementing option B, “Performance-Based Requirements,” of appendix J, “Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors,” to part 50 of title 10 of the Code of Federal Regulations (10 CFR), subject to the regulatory positions listed in Section C of this RG. This guidance includes (1) extending Type A test intervals up to 15 years and (2) extending Type C test intervals up to 75 months.

The NRC published a notice of the availability of DG-1391 in the Federal Register on November 17, 2022 (87 FR 69052) for a 30-day public comment period. The public comment period closed on December 19, 2022. Public comments on DG-1391 and the staff responses to the public comments are available under ADAMS under Accession No. ML23073A150.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

The NRC staff may use this RG as a reference in its regulatory processes, such as licensing, inspection, or enforcement. However, the NRC staff does not intend to use the guidance in this RG to support NRC staff actions in a manner that would constitute backfitting as that term is defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests,” nor does the NRC staff intend to use the guidance to affect the issue finality of an approval under 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants.” The staff also does not intend to use the guidance to support NRC staff actions in a manner that constitutes forward fitting as that term is defined and described in MD 8.4. If a licensee believes that the NRC is using this RG in a manner inconsistent with the discussion in this Implementation section, then the licensee may file a backfitting or forward fitting appeal with the NRC in accordance with the process in MD 8.4.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1407; Project Identifier MCAI-2023-00788-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Brett Portwood, Continued Operational Safety Technical Advisor, COS Program Management Section, Operational Safety Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 817-222-5390; email: operationalsafety@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), to address the effect of interference from wireless broadband operations in the 5G C-Band on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAMs. Transport Canada, which is the aviation authority for Canada, issued corresponding AD CF-2021-52, dated December 24, 2021, to prohibit certain flight operations requiring radio altimeter data in U.S. airspace affected by 5G C-Band wireless signals.

Transport Canada subsequently evaluated additional 5G-related hazards presented by 5G C-Band interference on Bombardier Model BD-700-2A12 airplanes and issued Transport Canada AD CF-2022-61, dated November 4, 2022 (AD CF-2022-61). AD CF-2022-61 was prompted by a determination that 5G C-Band interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the automatic flight control system (AFCS) and fly-by-wire systems. Based on AD CF-2021-52, the FAA issued AD 2023-06-13, Amendment 39-22399 (88 FR 19811, April 4, 2023) (AD 2023-06-13), for all Bombardier, Inc., Model BD-700-2A12 airplanes. AD 2023-06-13 required revising the existing AFM to incorporate limitations prohibiting dispatch under a certain MMEL items and prohibiting autopilot and autothrottle operation below 400 feet above ground level when in the presence of 5G C-Band interference as identified by NOTAMs. The FAA issued AD 2023-06-13 to address the effects of 5G C-Band interference on the performance of the AFCS, which could result in increased flightcrew workload and adversely affect the safe operation of the airplane.

The FAA subsequently determined that NOTAMs identifying the 5G environment are no longer practical because of the continued deployment of new 5G C-Band base stations, whose signals are expected to cover most of the contiguous United States at transmission frequencies between 3.7-3.98 GHz. Accordingly, the FAA superseded AD 2021-23-12 and issued AD 2023-10-02 (88 FR 34065, May 26, 2023) (AD 2023-10-02). AD 2023-10-02 prohibits transport and commuter category airplanes from performing certain low-visibility landing operations at any airport unless they have upgraded their radio altimeters ( i.e., are “radio altimeter tolerant”).

In addition, Transport Canada superseded AD CF-2022-61 and issued Transport Canada AD CF-2023-45, dated June 26, 2023 (Transport Canada AD CF-2023-45) (also referred to after this as “the MCAI”), for all Model BD-700-1A12 airplanes. Transport Canada determined that although anomalies with the AFCS and autothrottle remain possible in the presence of harmful interference, there are sufficient mitigating factors such that Transport Canada no longer considers this an unsafe condition. As a result, the MCAI removes the AFM limitation on the AFCS and autothrottle. The MCAI also replaces the prohibition of dispatch under certain MMEL items at airports identified by NOTAM with the same prohibition, for non-radio altimeter tolerant airplanes, at all airports in the contiguous United States. For radio altimeter tolerant airplanes, the MCAI does not prohibit dispatch under the MMEL items at 5G C-Band mitigated airports (CMAs) as identified in an FAA Domestic Notice. Transport Canada issued the MCAI to prevent dispatch under certain MMEL items which, in combination with 5G interference and a weight-on-wheels (WOW) signal failure, could result in inadvertent ground spoiler deployment in flight, reversion to ground mode control laws in the air, or air mode control laws on the ground.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1407.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires, before further flight, revising the AFM to incorporate limitations prohibiting dispatch with certain MMEL items at all airports for non-radio altimeter tolerant airplanes. For radio altimeter tolerant airplanes, the prohibited operations are allowed at 5G CMAs as identified in an FAA Domestic Notice.

The FAA considers that this AD is an interim action. Once the Technical Standard Order (TSO) standard for radio altimeters is established, which will follow the existing international technical consensus on the establishment of the minimum operational performance standards (MOPS), the FAA anticipates that the MOPS will be incorporated into the TSO. Once a new radio altimeter TSO is developed, approved, and available, the FAA might consider additional rulemaking.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because dispatch under certain MMEL items, in combination with 5G interference and a WOW signal failure, could result in inadvertent ground spoiler deployment in flight, reversion to ground mode control laws in the air, or air mode control laws on the ground. This may lead to loss of continued safe flight and landing. To address this unsafe condition, the actions required by this AD must be accomplished before further flight. The FAA based this compliance time on the changes to the 5G C-Band environment beginning on July 1, 2023. These changes include increased wireless broadband deployment and transmissions closer to the parameters authorized by the FCC. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B), and this AD.

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

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

The FAA estimates that this AD affects 52 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA invites you to send any written relevant data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1408; Project Identifier MCAI-2023-00791-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Brett Portwood, Continued Operational Safety Technical Advisor, COS Program Management Section, Operational Safety Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 817-222-5390; email: operationalsafety@faa.gov . Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), to address the effect of interference from wireless broadband operations in the 5G C-Band on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. The FAA subsequently superseded AD 2021-23-12 and issued AD 2023-10-02 (88 FR 34065, May 26, 2023) (AD 2023-10-02). AD 2023-10-02 requires revising the limitations section of the existing AFM to incorporate limitations prohibiting transport and commuter category airplanes from performing certain low-visibility landing operations at any airport unless they have upgraded their radio altimeters ( i.e., are “radio altimeter tolerant”). Transport Canada, which is the aviation authority for Canada, issued corresponding AD CF- 2023-46, dated June 26, 2023, to prohibit certain flight operations requiring radio altimeter data in U.S. airspace affected by 5G C-Band wireless signals.

Transport Canada evaluated additional 5G-related hazards presented by 5G C-Band interference on certain Airbus Canada Limited Partnership (formerly C Series Aircraft Limited Partnership and Bombardier) model airplanes and issued Transport Canada AD CF-2023-47, dated June 26, 2023 (AD CF-2023-47) (also referred to after this as “the MCAI”). AD CF-2023-60 was prompted by a determination that 5G C-Band interference can result in unavailable or misleading radio altimeter information, which in combination with dispatch under certain minimum equipment list (MEL) items and a weight-on-wheels (WOW) signal failure, could result in a reversion to ground mode in air or the deployment of ground spoilers in the air.

Transport Canada AD CF-2023-47 applies to all Airbus Canada Limited Partnership Model BD-500-1A10 and BD-500-1A11 airplanes and prohibits dispatch under certain MEL items, for non-radio altimeter tolerant airplanes, at all airports in the contiguous United States. For radio altimeter tolerant airplanes, AD CF-2023-47 does not prohibit dispatch under the MEL items at 5G C-Band mitigated airports (CMAs) as identified in an FAA Domestic Notice.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1408.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires, before further flight, revising the AFM to incorporate limitations prohibiting dispatch under MMEL item WOW Proximity Sensor at all airports for non-radio altimeter tolerant airplanes. For radio altimeter tolerant airplanes, the prohibited operations are allowed at 5G CMAs as identified in an FAA Domestic Notice.

The MCAI prohibits dispatch under four items in the Airbus Canada Limited Partnership MEL approved by Transport Canada, which include the brake data concentrator unit (BDCU) and three WOW items. The Airbus Canada Limited Partnership MMEL approved by the FAA does not include provisions for the BDCU and only has one provision for the WOW system. Therefore, instead of the MEL items listed in the MCAI, this AD prohibits dispatch under the WOW proximity sensor as specified in the FAA-approved Airbus Canada Limited Partnership MMEL.

The FAA considers that this AD is an interim action. Once the Technical Standard Order (TSO) standard for radio altimeters is established, which will follow the existing international technical consensus on the establishment of the minimum operational performance standards (MOPS), the FAA anticipates that the MOPS will be incorporated into the TSO. Once a new radio altimeter TSO is developed, approved, and available, the FAA might consider additional rulemaking.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule, because radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. Further, this interference may affect other airplane systems using radio altimeter data, including the ground spoiler deployment system, which, in combination with a WOW signal failure, could lead to loss of continued safe flight and landing. To address this unsafe condition, the actions required by this AD must be accomplished before further flight. The FAA based this compliance time on the changes to the 5G C-Band environment beginning on July 1, 2023. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B), and this AD.

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

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

The FAA estimates that this AD affects 90 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1406; Project Identifier MCAI-2023-00787-T” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Brett Portwood, Continued Operational Safety Technical Advisor, COS Program Management Section, Operational Safety Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 817-222-5390; email: operationalsafety@faa.gov. Any commentary that the FAA receives that is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2021-23-12, Amendment 39-21810 (86 FR 69984, December 9, 2021) (AD 2021-23-12), to address the effect of interference from wireless broadband operations in the 5G C-Band on all transport and commuter category airplanes equipped with a radio (also known as radar) altimeter. AD 2021-23-12 was prompted by a determination that radio altimeters cannot be relied upon to perform their intended function if they experience interference from wireless broadband operations in the 5G C-Band. AD 2021-23-12 required revising the limitations section of the existing AFM to incorporate limitations prohibiting certain operations, which require radio altimeter data to land in low visibility conditions, when in the presence of 5G C-Band interference as identified by NOTAMs. Transport Canada, which is the aviation authority for Canada, issued corresponding AD CF-2021-52, dated December 24, 2021, to prohibit certain flight operations requiring radio altimeter data in U.S. airspace affected by 5G C-Band wireless signals.

Transport Canada subsequently evaluated additional 5G-related hazards presented by 5G C-Band interference on Bombardier Model BD-700-1A10 and BD-700-1A11 airplanes and issued Transport Canada AD CF-2022-60, dated November 4, 2022 (AD CF-2022-60). AD CF-2022-60 was prompted by a determination that 5G C-Band interference can result in unavailable or misleading radio altimeter information, adversely affecting the performance of the automatic flight control system (AFCS). Based on AD CF-2022-60, the FAA issued AD 2023-03-06, Amendment 39-22331 (88 FR 11784, February 24, 2023) (AD 2023-03-06), for all Bombardier, Inc., Model BD-700-1A10 and BD-700-1A11 airplanes. AD 2023-03-06 required revising the existing AFM to incorporate limitations prohibiting dispatch under a certain MMEL item and prohibiting autopilot and autothrottle operation below 400 feet above ground level (AGL) when in the presence of 5G C-Band interference as identified by NOTAMs. The FAA issued AD 2023-03-06 to address the effects of 5G C-Band interference on the performance of the AFCS, which could result in increased flightcrew workload and adversely affect the safe operation of the airplane.

The FAA subsequently determined that NOTAMs identifying the 5G environment are no longer practical because of the continued deployment of new 5G C-Band base stations, whose signals are expected to cover most of the contiguous United States at transmission frequencies between 3.7-3.98 GHz. Accordingly, the FAA superseded AD 2021-23-12 and issued AD 2023-10-02 (88 FR 34065, May 26, 2023) (AD 2023-10-02). AD 2023-10-02 prohibits transport and commuter category airplanes from performing certain low-visibility landing operations at any airport unless they have upgraded their radio altimeters ( i.e., are “radio altimeter tolerant”).

In addition, Transport Canada superseded AD CF-2022-60 and issued Transport Canada AD CF-2023-44, dated June 26, 2023 (Transport Canada AD CF-2023-44) (also referred to after this as “the MCAI”), for all Model BD-700-1A10 and BD-700-1A11 airplanes. Transport Canada determined that although anomalies with the AFCS and autothrottle remain possible in the presence of harmful interference, there are sufficient mitigating factors such that Transport Canada no longer considers this an unsafe condition. As a result, the MCAI removes the AFM limitation on the AFCS and autothrottle. The MCAI also replaces the prohibition of dispatch under a certain MMEL item at airports identified by NOTAM with the same prohibition, for non-radio altimeter tolerant airplanes, at all airports in the contiguous United States. For radio altimeter tolerant airplanes, the MCAI does not prohibit dispatch under the MMEL item at 5G C-Band mitigated airports (CMAs) as identified in an FAA Domestic Notice. Transport Canada issued the MCAI to prevent dispatch under MMEL item “WOW FAULT (ADVISORY)” which, in combination with 5G interference and a weight-on-wheels (WOW) signal failure, could result in the radio altimeter deploying the two pairs of ground spoilers at heights above 7 feet AGL. This may lead to increased flightcrew workload and adversely affect the safe operation of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1406.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires, before further flight, revising the AFM to incorporate limitations prohibiting dispatch with use of a certain MMEL item at all airports for non-radio altimeter tolerant airplanes. For radio altimeter tolerant airplanes, the prohibited operations are allowed at 5G CMAs as identified in an FAA Domestic Notice.

The FAA considers that this AD is an interim action. Once the Technical Standard Order (TSO) standard for radio altimeters is established, which will follow the existing international technical consensus on the establishment of the minimum operational performance standards (MOPS), the FAA anticipates that the MOPS will be incorporated into the TSO. Once a new radio altimeter TSO is developed, approved, and available, the FAA might consider additional rulemaking.

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

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because dispatch under MMEL item “WOW FAULT (ADVISORY),” in combination with 5G interference and a WOW signal failure, could result in the radio altimeter deploying the two pairs of ground spoilers at heights above 7 feet AGL. This may lead to increased flightcrew workload and loss of continued safe flight and landing. To address this unsafe condition, the actions required by this AD must be accomplished before further flight. The FAA based this compliance time on the changes to the 5G C-Band environment beginning on July 1, 2023. These changes include increased wireless broadband deployment and transmissions closer to the parameters authorized by the FCC. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

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

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

The FAA estimates that this AD affects 165 airplanes of U.S. registry of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

(2) Will not affect intrastate aviation in Alaska.

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

This Treasury decision amends the Income Tax Regulations (26 CFR part 1) under section 1502 of the Internal Revenue Code (Code). Section 1502 authorizes the Secretary of the Treasury or her delegate (Secretary) to prescribe regulations for an affiliated group of corporations that join in filing (or that are required to join in filing) a consolidated return (consolidated group, as defined in § 1.1502-1(h)) to clearly reflect the Federal income tax liability of the consolidated group and to prevent avoidance of such tax liability. For purposes of carrying out those objectives, section 1502 also permits the Secretary to prescribe rules that may be different from the provisions of chapter 1 of the Code that would apply if the corporations composing the consolidated group filed separate returns. Terms used in the consolidated return regulations generally are defined in § 1.1502-1.

On July 8, 2020, the Department of the Treasury (Treasury Department) and the IRS published a notice of proposed rulemaking (REG-125716-18) in the Federal Register (85 FR 40927) under section 1502 (2020 proposed regulations). The 2020 proposed regulations provided guidance that, in part, implemented amendments to section 172 under Public Law 115-97, 131 Stat. 2054 (Dec. 22, 2017), commonly known as the Tax Cuts and Jobs Act (TCJA), and the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Public Law 116-136, 134 Stat. 281 (Mar. 27, 2020). Specifically, the 2020 proposed regulations provided guidance for consolidated groups regarding (i) the application of the 80-percent limitation in section 172(a)(2), as originally enacted as part of the TCJA and subsequently amended by the CARES Act, and (ii) the absorption of NOL carrybacks and carryovers.

In connection with the 2020 proposed regulations, the Treasury Department and the IRS published on the same date temporary regulations (TD 9900) in the Federal Register (85 FR 40892) under section 1502 (2020 temporary regulations). The Treasury Department and the IRS issued the 2020 temporary regulations to provide guidance to consolidated groups regarding the application of the NOL carryback rules under section 172(b), as amended by (i) section 2303(b) of the CARES Act, and (ii) any similar future statutory amendments to section 172. Specifically, if there is a retroactive statutory extension of the NOL carryback period under section 172 (retroactive statutory extension), the 2020 temporary regulations permit consolidated groups that, before the enactment of the retroactive statutory extension, acquired new members that were members of another consolidated group to elect to waive, in a taxable year subsequent to the taxable year of the acquisition, all or part of the pre-acquisition portion of the carryback period for consolidated net operating losses (CNOLs) attributable to the acquired members. The preamble to the 2020 temporary regulations includes a background discussion of the rules regarding NOL carrybacks and carryovers under section 172 and the related consolidated return regulations. Part II of this Background describes the 2020 temporary regulations in greater detail.

A correction to the 2020 temporary regulations was published in the Federal Register (85 FR 53162) on August 28, 2020. The text of the 2020 temporary regulations also serves as the text of § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations.

The 2020 proposed regulations, other than proposed § 1.1502-21(b)(3)(ii)(C) and (D), were adopted as final regulations on October 27, 2020. See TD 9927 (85 FR 67966).

The IRS received one comment in response to the 2020 temporary regulations. A copy of the comment is available for public inspection at https://www.regulations.gov (type IRS-2020-0020 in the search field on the https://www.regulations.gov homepage) or upon request. No public hearing was requested or held.

As described in greater detail in the Summary of Comment and Explanation of Revisions, the Treasury Department and the IRS have considered the commenter's recommendations and concluded that their adoption would necessitate conforming changes to the split-waiver election provisions set forth in § 1.1502-21(b)(3)(ii)(B) (general split-waiver election), which are beyond the scope of this guidance. Therefore, the Treasury Department and the IRS have determined that, aside from non-substantive revisions to incorporate the rules regarding retroactive statutory extensions into § 1.1502-21(b), improve readability, and make other perfecting edits, § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations should be adopted as final regulations without change, and that the 2020 temporary regulations should be removed. The Treasury Department and the IRS continue to study the commenter's recommendations for purposes of potential future guidance.

On prior occasions, enacted legislation has amended section 172 to retroactively extend the carryback period for NOLs. See Worker, Homeownership, and Business Assistance Act of 2009, Public Law 111-92, 123 Stat. 2984 (November 6, 2009); Job Creation and Worker Assistance Act of 2002, Public Law 107-147, 116 Stat. 21 (March 9, 2002). Most recently, section 2303(b) of the CARES Act added section 172(b)(1)(D) to the Code. Section 172(b)(1)(D) requires (in the absence of a waiver under section 172(b)(3)) a five-year carryback period for an NOL that arises in a taxable year beginning after December 31, 2017, and before January 1, 2021.

Such retroactive statutory extensions of NOL carryback periods uniquely impact a consolidated group (acquiring group) that acquires one or more corporations (acquired member) before the enactment of the retroactive statutory extension of the carryback period. During the past two decades, the Treasury Department and the IRS have provided an acquiring group with certain additional elections for waiving carrybacks of losses into another consolidated group of which an acquired member previously was a member (former group). See 75 FR 35643 (June 23, 2010) (2010 split-waiver regulations); 67 FR 38000 (May 31, 2002) (2002 split-waiver regulations). These additional elections, while responsive to particular retroactive statutory extensions, have reflected common policy objectives of providing affected groups with the ability to waive all or a portion of the NOL carryback period of acquired members extended by retroactive statutory extensions applicable before, but enacted after, the acquisition(s).

The Treasury Department and the IRS determined that it is appropriate to provide similar rules with regard to the NOL carryback rules retroactively amended by section 2303(b) of the CARES Act in particular, or by future legislation enacting retroactive statutory amendments to NOL carryback rules more generally. Therefore, the 2020 temporary regulations provided principle-based rules, referred to in these regulations as “amended carryback rules,” applicable to CNOLs arising in taxable years to which amended carryback rules become applicable after the acquisition of a member. Under these rules, an acquiring group possesses the opportunity to waive, on a taxable-year-by-taxable-year basis, all or a portion of the carryback period with regard to CNOLs attributable to acquired members for pre-acquisition years during which the acquired members were members of a former group.

The 2020 temporary regulations provide two types of split-waiver elections for consolidated groups that (i) include one or more acquired members, and (ii) have CNOLs that, under amended carryback rules, become eligible to be carried back for a greater number of years than under statutory law in effect at the time of the acquisition (default carryback period). One type of election (amended statute split-waiver election) permits an acquiring group to relinquish that part of the carryback period during which an acquired member was a member of a former group (for the portion of a CNOL attributable to the acquired member), even though the acquiring group did not file a split-waiver election for the year in which the acquired member became a member of the acquiring group (as required by § 1.1502-21(b)(3)(ii)(B)). See § 1.1502-21T(b)(3)(ii)(C)( 2 )( v ). The other type of election (extended split-waiver election) applies solely to the extended carryback period (that is, the additional carryback years provided under amended carryback rules). Through an extended split-waiver election, an acquiring group can ensure that amended carryback CNOLs are carried back to taxable years of former groups only to the extent those losses would have been carried back under prior law (that is, limiting CNOL carrybacks to the default carryback period). See § 1.1502-21T(b)(3)(ii)(C)( 2 )( ix ). These two additional types of split-waiver elections provide relief, and are subject to conditions and procedures, consistent with the applicable split-waiver elections set forth in the 2002 and 2010 split-waiver regulations.

The Treasury Department and the IRS received one comment that recommended two changes to the split-waiver election provisions set forth in the 2020 temporary regulations (2020 split-waiver elections).

As discussed in the preamble to the 2020 temporary regulations, a general split-waiver election and the 2020 split-waiver elections may be made only with respect to the portion of the carryback period for which the acquired member was a member of a former group. Thus, such an election would not be effective with respect to any portion of the carryback period during which the acquired member was a stand-alone corporation. The commenter recommended that split-waiver elections be available whenever a portion of a CNOL attributable to an acquired member would be carried back to a separate return year, regardless of whether the acquired member was a member of a former group or a stand-alone corporation in that carryback year.

The commenter also suggested that, although the rules governing split-waiver elections are too narrow insofar as they exclude acquisitions of stand-alone corporations, such rules also are too broad insofar as they apply to situations in which the acquired member was the common parent of a former group (whole-group acquisitions). See § 1.1502-21(b)(3)(ii)(B) (allowing the acquiring group to make a general split-waiver election with respect to the portion of the carryback period for which the acquired member was “a member of another group”); § 1.1502-21T(b)(3)(ii)(C)( 2 )( v ) and ( ix ) (allowing the acquiring group to make a 2020 split-waiver election with respect to the portion of the carryback period for which the acquired member was “a member of any former group”); § 1.1502-1(b) (defining the term “member” to include the common parent of the group).

For example, assume that P is the common parent of Group 1 in Years 1 and 2. At the beginning of Year 3, Group 2 acquires all the stock of P. In Year 6, Group 2 incurs a CNOL, a portion of which is attributable to P. In Year 7, Congress amends section 172 by extending the carryback period for NOLs arising in Year 6 to five years. Group 2 would be eligible to make either a general split-waiver election (if it filed the requisite statement with its Federal income tax return for Year 3) or one of the 2020 split-waiver elections. The commenter contended that a split-waiver election should not be available in such a situation because disputes regarding NOL carrybacks should not arise between the former group and the acquiring group (which controls the former group after the acquisition).

The changes recommended by the commenter, if adopted, would necessitate revisions not only to the 2020 split-waiver elections, but also to the general split-waiver election provisions in § 1.1502-21(b)(3)(ii)(B). Both the general split-waiver election and the 2020 split-waiver elections may be made only with respect to the portion of the carryback period for which the acquired member was a member of a former group. Moreover, both the general split-waiver election and the 2020 split-waiver elections may apply to situations in which the acquired member was the common parent of a former group (that is, whole-group acquisitions). Consequently, after considering the comment, the Treasury Department and the IRS have determined that the scope of the changes suggested by the commenter exceed the scope of § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations.

Thus, as noted in part I of the Background, the Treasury Department and the IRS have concluded that the split-waiver election provisions provided by the 2020 proposed regulations should be adopted without substantive change. The Treasury Department and the IRS continue to study the commenter's recommendations for purposes of potential future guidance. Accordingly, the final regulations contained in this Treasury decision adopt the provisions of § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations without substantive change.

Although no substantive changes are made to the rules of § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations, the final regulations make the following non-substantive changes to incorporate those rules into § 1.1502-21(b) and to improve readability: (1) the provisions of § 1.1502-21(b)(3)(ii)(A) have been redesignated as § 1.1502-21(b)(3)(ii); (2) the provisions of § 1.1502-21(b)(3)(ii)(B) have been redesignated as § 1.1502-21(b)(4); (3) the provisions of § 1.1502-21(b)(3)(ii)(C) and (D) of the 2020 proposed regulations have been redesignated as § 1.1502-21(b)(5) and (6); (4) the provisions of § 1.1502-21(b)(3)(iii) have been redesignated as § 1.1502-21(b)(7); (5) the provisions of § 1.1502-21(b)(3)(iv) and (v) have been removed; and (6) corresponding perfecting edits have been made.

Pursuant to the Memorandum of Agreement, Review of Treasury Regulations under Executive Order 12866 (June 9, 2023), tax regulatory actions issued by the IRS are not subject to the requirements of section 6(b) of Executive Order 12866, as amended. Therefore, a regulatory impact assessment is not required.

The collections of information in these final regulations are in § 1.1502-21(b)(5)(v)(A) and (B). The information is required to inform the IRS on whether, and to what extent, an acquiring group makes either of the elections described in these final regulations.

The collection of information provided by these final regulations has been approved by the Office of Management and Budget (OMB) under control number 1545-0123. For purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. (PRA), the reporting burden associated with the collection of information in Form 1120, U.S. Corporation Income Tax Return, will be reflected in the PRA Submission associated with OMB control number 1545-0123.

In general, if the acquiring group makes an election under § 1.1502-21(b)(5), the acquiring group is required to attach a separate statement to its Form 1120 as provided in § 1.1502-21(b)(5)(v)(A) and (B), respectively. This statement must be filed as provided in § 1.1502-21(b)(5)(vi).

The following table displays the number of respondents estimated to be required to report on Form 1120 with respect to the collections of information required by these final regulations. Due to the absence of historical tax data, direct estimates of the number of respondents required to attach a statement to other types of tax returns, as applicable, are not available.

The numbers of respondents in the table were estimated by the Research, Applied Analytics, and Statistics Division (RAAS) of the IRS from the Compliance Data Warehouse (CDW). Data for Form 1120 represents estimates of the total number of taxpayers that may attach an election statement to their Form 1120 to make the elections in § 1.1502-21(b)(5)(v)(A) and (B).

It is estimated that 17,500 consolidated entities will be required to attach a statement under these final regulations. The burden estimates associated with the information collections in these final regulations are included in aggregated burden estimates for the OMB control number 1545-0123. The burden estimates provided in the OMB control numbers in the following table are aggregate amounts that relate to the entire package of forms associated with the OMB control number, and will in the future include, but not isolate, the estimated burden of those information collections associated with these final regulations. To guard against over-counting the burden that consolidated tax provisions imposed prior to § 1.1502-21, the Treasury Department and the IRS urge readers to recognize that these burden estimates have also been cited by regulations that rely on the applicable OMB control numbers in order to collect information from the applicable types of filers.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that this rulemaking will not have a significant economic impact on a substantial number of small entities within the meaning of section 601(6) of the Regulatory Flexibility Act. This certification is based on the fact that these final regulations apply only to corporations that file consolidated Federal income tax returns, and that such corporations almost exclusively consist of larger businesses. Specifically, based on data available to the IRS, corporations that file consolidated Federal income tax returns represent only approximately two percent of all filers of Forms 1120, U.S. Corporation Income Tax Return. However, these consolidated Federal income tax returns account for approximately 95 percent of the aggregate amount of receipts provided on all Forms 1120. Therefore, these final regulations will not create additional obligations for, or impose an economic impact on, small entities, and a regulatory flexibility analysis under the Regulatory Flexibility Act is not required.

Pursuant to section 7805(f) of the Code, the notice of proposed rulemaking that preceded these final regulations was submitted to the Chief Counsel for the Office of Advocacy of the Small Business Administration for comment on its impact on small business. No comments on that notice of proposed rulemaking were received from the Chief Counsel for the Office of Advocacy of the Small Business Administration.

Section 202 of the Unfunded Mandates Reform Act of 1995 requires that agencies assess anticipated costs and benefits and take certain other actions before issuing a final rule that includes any Federal mandate that may result in expenditures in any one year by a State, local, or Tribal government, in the aggregate, or by the private sector, of $100 million in 1995 dollars, updated annually for inflation. These final regulations do not include any Federal mandate that may result in expenditures by State, local, or Tribal governments, or by the private sector in excess of that threshold.

Executive Order 13132 (Federalism) prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial, direct compliance costs on State and local governments, and is not required by statute, or preempts State law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. These final regulations do not have federalism implications, do not impose substantial direct compliance costs on State and local governments, and do not preempt State law within the meaning of the Executive order.

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

The principal author of these final regulations is Stephen R. Cleary of the Office of Associate Chief Counsel (Corporate). However, other personnel from the Treasury Department and the IRS participated in their development.

Accordingly, 26 CFR parts 1 and 602 are amended as follows:

Tiki Lee's Dock Bar of Sparrows Point, MD, and David Schultz Airshows LLC of Clearfield, PA, notified the Coast Guard that they will be conducting the 2023 Tiki Lee's Shootout on the River Airshow from 7 p.m. to 8 p.m. on July 14, 2023, from 2 p.m. to 3 p.m. on July 15, 2023, and from 2 p.m. to 3 p.m. on July 16, 2023. High speed, low-flying civilian and military aircraft air show performers will operate within a designated, marked aerobatics box located on Back River, between Lynch Point to the south and Walnut Point to the north. The event is being held adjacent to Tiki Lee's Dock Bar, 4309 Shore Road, Sparrows Point, in Baltimore County, MD. Hazards from the air show include risks of injury or death resulting from aircraft accidents, dangerous projectiles, hazardous materials spills, falling debris, and from near or actual collisions between waterway users and participants or spectator vessels if normal vessel traffic were allowed to interfere with the event. Additionally, these hazards could affect vessels in a designated navigation channel and adjacent to waterside residential communities if the locations of these activities were not restricted. In response to these potential hazards, on June 1, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Special Local Regulation; Back River, Baltimore County, MD (88 FR 35802). There, we stated why we issued the NPRM to promulgate the special local regulation, which will be subject to enforcement beginning an hour before each show begins and ending an hour after it ends, and we invited comments on our proposed regulatory action related to this air show. During the comment period, which ended July 3, 2023, we received no comments.

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 . Because there are less than 30 days between now and the date of the event, it would be impracticable and contrary to the public interest to make the regulation effective 30 days after publication in the Federal Register . Doing so would delay safety measures necessary to respond to potential safety hazards associated with this marine event. Immediate action is needed to protect participants, spectators, and other persons and vessels during the air show event on these navigable waters.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041. The Captain of the Port, Sector Maryland-National Capital Region (COTP) has determined that potential hazards associated with the air show being held on three occasions, occurring between July 14, 2023 and July 16, 2023, will be a safety concern for anyone operating within certain waters of Back River in Baltimore County, MD near the event.

As noted above, we received no comments on our NPRM published June 1, 2023. Except for the addition of language stating the rule's effective period, there are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes special local regulations from 7 p.m. on July 14, 2023 through 4 p.m. on July 16, 2023. The regulated area will cover all navigable waters of Back River within an area bounded by a line connecting the following point: from the shoreline at Lynch Point at latitude 39°14′46″ N, longitude 076°26′23″ W, thence northeast to Porter Point at latitude 39°15′13″ N, longitude 076°26′11″ W, thence north along the shoreline to Walnut Point at latitude 39°17′06″ N, longitude 076°27′04″ W, thence southwest to the shoreline at latitude 39°16′41″ N, longitude 076°27′31″ W, thence south along the shoreline to the point of origin, located in Baltimore County, MD. The regulated area is approximately 4,200 yards in length and 1,200 yards in width.

This rule provides additional information about areas within the regulated area and their definitions. These areas include “Aerobatics Box” and “Spectator Areas.”

The duration of the periods the special local regulations will be subject to enforcement, and size of the regulated area are intended to ensure the safety of life on these navigable waters before, during, and after activities associated with the air show, which is scheduled from 7 p.m. to 8 p.m. on July 14, 2023, from 2 p.m. to 3 p.m. on July 15, 2023, and from 2 p.m. to 3 p.m. on July 16, 2023. The COTP and the Coast Guard Event PATCOM have authority to forbid and control the movement of all vessels and persons, including event participants, in the regulated area. When hailed or signaled by an official patrol, a vessel or person in the regulated area is required to immediately comply with the directions given by the COTP or Event PATCOM. If a person or vessel fails to follow such directions, the Coast Guard may expel them from the area, issue them a citation for failure to comply, or both.

Except for 2023 Tiki Lee's Shootout on the River Airshow participants and vessels already at berth, a vessel or person will be required to get permission from the COTP or Event PATCOM before entering the regulated area. Vessel operators will be able to request permission to enter and transit through the regulated area by contacting the Event PATCOM on VHF-FM channel 16. Operators of vessels already at berth desiring to move those vessels when the event is subject to enforcement are required to obtain permission before doing so. Vessel traffic will be able to safely transit the regulated area once the Event PATCOM deems it safe to do so. A person or vessel not registered with the event sponsor as a participant or assigned as official patrols is considered a spectator. Official Patrols are any vessel assigned or approved by the Commander, Coast Guard Sector Maryland-National Capital Region with a commissioned, warrant, or petty officer onboard and displaying a Coast Guard ensign. Official Patrols enforcing this regulated area can be contacted on VHF-FM channel 16 and channel 22A.

If permission is granted by the COTP or Event PATCOM, a person or vessel will be allowed to enter the regulated area or pass directly through the regulated area as instructed. Vessels are required to operate at a safe speed that minimizes wake while within the regulated area in a manner that would not endanger event participants or any other craft. A spectator vessel must not loiter within the navigable channel while within the regulated area. Official patrol vessels will direct spectators to the designated spectator area. Only participant vessels will be allowed to enter the aerobatics box. The Coast Guard will publish a notice in the Fifth Coast Guard District Local Notice to Mariners and issue a marine information broadcast on VHF-FM marine band radio announcing specific event dates and times.

The regulatory text appears at the end of this document.

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 section 3(f) of 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 duration of the regulated area, which will impact a small, designated area of Back River for the 9 total hours during which the rule will be subject to enforcement. This waterway supports mainly recreational vessel traffic, which at its peak, occurs during the summer season. Although this regulated area extends across the entire width of the waterway, the rule allows vessels and persons to seek permission to enter the regulated area, and vessel traffic will be able to transit the regulated area as instructed by Event PATCOM. Such vessels must operate at safe speed that minimizes wake and not loiter within the navigable channel while within the regulated area. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the status of the regulated area.

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.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 implementation of regulations within 33 CFR part 100 applicable to organized marine events on the navigable waters of the United States that could negatively impact the safety of waterway users and shore side activities in the event area lasting for 9 total enforcement hours. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. 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 100 as follows:

On March 22, 2023, VA published a proposed rule in the Federal Register (88 FR 17169) that proposed to remove its regulation concerning the naming of cemeteries and features. The public comment period ended on May 22, 2023, and VA received no comments in response to the proposed rule. Since there were no comments, VA is removing 38 CFR 38.602.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is not a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The factual basis for this certification is that the naming of national cemeteries and features is an internal operations function that only affects VA national cemeteries and did not require a regulation to effectuate. This rule revokes the existing regulation and will have no economic impact on small entities. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

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

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

Denis McDonough, Secretary of Veterans Affairs, approved and signed this document on July 3, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, and under the authority of 38 U.S.C. 501, the Department of Veterans Affairs amends 38 CFR part 38 as follows:

Acronyms that are used in this rulemaking that may be helpful include:

Regulated Entities. You may be potentially affected by this action if you produce HFCs. Potentially affected categories, North American Industry Classification System (NAICS) codes, and examples of potentially affected entities are included in Table 1.

This table is not intended to be exhaustive, but rather provide a guide for readers regarding entities likely to be affected by this action. Other types of entities not listed in this section could also be affected. If you have any questions regarding the applicability of this action to a particular entity, consult the person listed under FOR FURTHER INFORMATION CONTACT.

On December 27, 2020, the AIM Act was enacted as section 103 in Division S, Innovation for the Environment, of the Consolidated Appropriations Act, 2021 (42 U.S.C. 7675). Subsection (e) of the AIM Act gives EPA authority to phase down the production and consumption of listed HFCs through an allowance allocation and trading program. Subsection (c)(1) of the AIM Act lists 18 saturated HFCs, and by reference any of their isomers not so listed, that are covered by the statute's provisions, referred to as “regulated substances” under the Act. Congress also assigned an “exchange value”  1 2 to each regulated substance (along with other chemicals that are used to calculate the baseline). The AIM Act requires EPA to phase down the consumption and production of the statutorily listed HFCs on an exchange value-weighted basis according to the schedule in subsection (e)(2)(C) of the AIM Act. The AIM Act requires that the EPA Administrator ensures the annual quantity of all regulated substances produced or consumed  3 in the United States does not exceed the applicable percentage listed for the production or consumption baseline.

To implement the directive that the production and consumption of regulated substances in the United States does not exceed the statutory targets, the AIM Act in subsection (e)(3) requires EPA to issue regulations establishing an allowance allocation and trading program to phase down the production and consumption of the listed HFCs. Under the terms of subsection (e)(2)(D)(ii), these allowances do not constitute a property right, but rather are limited authorizations for the production or consumption of regulated substances. Subsection (e)(2) of the Act has a general prohibition that no person  4 shall produce or consume a quantity of regulated substances in the United States without a corresponding quantity of allowances.

EPA published a final rule on October 5, 2021 (86 FR 55116; hereinafter called the Allocation Framework Rule), that, among other things, established the HFC production and consumption baselines and codified the phasedown schedule at 40 CFR 84.7. Unless otherwise stated in the sections included in this notice, EPA's corrections are based on the same interpretations of the AIM Act, and the Clean Air Act (CAA) as applicable under subsection (k) of the AIM Act, as discussed in the Allocation Framework Rule.

Subsection (e)(1) of the AIM Act directs EPA to establish a production baseline and a consumption baseline and provides the equations for doing so. In the Allocation Framework Rule, EPA initially calculated and codified the production and consumption baselines according to the formulas outlined in subsection (e)(1) of the AIM Act. The AIM Act instructs EPA to calculate the production and consumption baseline by, among other things, using the average annual quantity of all regulated substances produced and consumed in the United States from January 1, 2011, through December 31, 2013. In subsection (e)(2)(C) of the AIM Act, Congress provided the HFC phasedown schedule measured as a percentage of the baseline. In the Allocation Framework Rule EPA codified the production and consumption baselines at 40 CFR 84.7(b)(2) and the total allowance quantities that could be allocated for each year at 40 CFR 84.7(b)(3). A complete description of EPA's process in developing the codified baseline figures can be found in the Allocation Framework Rule at 86 FR 55137-55142.

After EPA finalized the Allocation Framework Rule, one company informed EPA that the 2011 and 2012 HFC import data that it had reported to the Greenhouse Gas Reporting Program (GHGRP) and certified per 40 CFR 98.4(e)(1) as true, accurate, and complete under penalty of law, was, in fact, significantly more than its actual import quantities. The company submitted and certified revised reports to the GHGRP for the relevant years on March 16, 2022. Because EPA used the company's 2011 and 2012 HFC import data in the calculation of the consumption baseline, the Agency's calculated and codified consumption baseline was high. The company then submitted and certified revised reports. EPA verified the corrected data by reviewing the importer's invoices and comparing the reported data to import data provided by CBP. In a separate rulemaking, “Phasedown of Hydrofluorocarbons: Allowance Allocation Methodology for 2024 and Later Years” (87 FR 66372, November 3, 2022), the Agency proposed to revise the consumption baseline and its associated phasedown schedule to account for corrected data. Specifically, EPA proposed to revise the consumption baseline from 303,887,017 metric tons of exchange value equivalent (MTEVe) to 300,257,386 MTEVe, a decrease of 3,629,631 MTEVe, to account for that error. The Agency also stated that it would include any additional verified data revisions from the 2011 through 2013 timeline in the revision to the consumption baseline. Because the erroneous data related only to imports, EPA did not propose to reopen the production baseline in that rulemaking.

As described in that proposal, EPA separately requested entities verify, and if necessary correct, the data  5 available to EPA on those entities' historic consumption activities from 2011 through 2021 for purposes of the AIM Act. EPA sent an electronic communication or letter to all entities that were known, or likely, to have had production or consumption activity of regulated substances from 2011 through 2021 that they had until September 26, 2022, to verify, and if necessary correct, the data available to EPA on those entities' historic consumption activities from 2011 through 2021. 6 EPA provided further notice through the aforementioned November 3, 2022 proposal of a final opportunity to submit corrected data to the Agency through the electronic Greenhouse Gas Reporting Tool (e-GGRT) by the close of the comment period on December 19, 2022, in the case that any entity with historic activity related to regulated substances from 2011 through 2021 did not receive a letter or electronic communication from EPA.

As part of EPA's review process of the data corrections and submissions while preparing to finalize the revised consumption baseline, EPA also identified an additional correction to be made to the baseline calculation necessary to maintain accuracy. Specifically, EPA reviewed offsite transformation and destruction totals reported by companies for the 2011-2013 period and made the following additional calculation steps:

(1) Eliminated redundant totals already reported elsewhere as onsite transformation and destruction

(2) eliminated redundant totals sent to another facility for destruction and that are already excluded from reported production because the gases are removed from the production process as a byproduct or other waste

(3) took the remaining reported offsite transformation and destruction totals and subtracted that from overall production.

Previously, offsite transformation and destruction totals had not been factored into the calculation as EPA did not have sufficient verification of this data. However, during this most recent review of the baseline calculation and underlying data, EPA was able to conduct additional data verification to determine the quantity of material sent offsite which was not reported elsewhere and therefore should be subtracted from total production. Specifically, for all companies with offsite transformation and destruction activity from 2011-2013, EPA reviewed reporting forms which identify the facility to which material was sent for offsite transformation or destruction. EPA then determined whether these recipient facilities separately report activity to 40 CFR part 98, subpart OO. If a recipient facility did not separately report destruction activity, EPA subtracted totals of material sent offsite for destruction from total production.

This corrected calculation step led to a corrected input that is used in both the production and consumption baselines since the same calculation step was used to determine both the production and consumption baselines in the Allocation Framework Rule. Accordingly, in this rulemaking EPA is correcting the codified production baseline and the associated phasedown schedule. Specifically, EPA is correcting the production baseline to be 382,535,439 MTEVe, down from the originally codified figure of 382,554,619 MTEVe. This correction of the production baseline amounts to a 0.005 percent change in the baseline. Once EPA applies the relevant phasedown step to the baseline and then allocates the resulting allowances among eligible recipients, the change in the production baseline is expected to have an extremely small effect on individual entities' allocations. This corrected production baseline starts affecting allowance allocations for calendar year 2024. Because of the prior framing of EPA's regulations, specifically the fact that there was no prior allocation methodology that would apply to calendar year 2024 allowances and beyond, no entities should have had a reasonable expectation of allowance allocation levels for any individual entity. Therefore, this alteration of the production baseline will not affect any reasonable reliance interests of the regulated communities.

Correcting the production baseline changes the total consumption cap in MTEVe for regulated substances in the United States in each year. Therefore, EPA is correcting the table of production and consumption limits at 40 CFR 84.7(b)(3) by replacing the previously codified total production values in Table 2, column 2 of this preamble with the corrected total production values in column 3.

EPA is promulgating this rule as a final action without prior notice or opportunity for public comment because the good cause exception under APA section 553(b)(B), 5 U.S.C. 553(b)(B), applies here. If APA section 553(b)(B) did not apply, this rule would be subject to the rulemaking procedures in CAA section 307(d). 7 However, CAA section 307(d) does not apply “in the case of any rule or circumstance referred to in [APA section 553(b)(B)]”  8 — i.e., the good cause exception noted above—making this rule subject to the rulemaking procedures in APA section 553 instead, other than subsection 553(b). 9 APA section 553(b)(B) allows an agency to promulgate a rule without providing prior notice and opportunity for public comment “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”

EPA finds that there is good cause for promulgating this final rule without providing prior notice and an opportunity for public comment because providing such notice and opportunity for comment, with respect to the amendments promulgated in this action, is impracticable, unnecessary, and contrary to the public interest. The correction made through this rulemaking is necessary to maintain accuracy of EPA's internal processing of data used to calculate the AIM Act production baseline. The overall formula used to calculate the production baseline was defined by Congress in the statute, and therefore EPA has no discretion in the formula used to calculate the production baseline. Accordingly, there would be no purpose in seeking public comment on a formula prescribed by statute to calculate the production baseline.

The data that is input into this formula is based on individual company reports on historic production of HFCs. This is relevant to EPA's good cause finding for several reasons. First, company-level production data has been regulatorily determined to be CBI. As a result, company-specific data, including production data, used to establish the baselines are confidential and cannot be publicly released. As discussed in the Allocation Framework Rule (86 FR 55192), many of the data elements reported to 40 CFR part 98, subpart OO were determined to be, and are treated as, confidential by EPA (see, e.g., 76 FR 30782, May 26, 2011; 76 FR 73886, November 29, 2011; 77 FR 48072, August 13, 2012, 78 FR 71904, November 29, 2013; and, 81 FR 89188, December 9, 2016). 10 Given the confidentiality of most data involved in the Agency's baseline calculation, EPA cannot release detailed demonstrations of the baseline calculation. This has limited the information provided in prior notices on EPA's baseline calculations such that under any rulemaking scenario, the public does not have full access to view the Agency's baseline calculations given the need to respect existing confidentiality determinations and governing regulations.

Second, EPA has already gone through significant effort to ensure that this historic production data is as accurate as possible. EPA published a notice of data availability concerning this specific data on February 11, 2021 (86 FR 9059). EPA also requested, and received, new and revised versions of the data at issue in this rulemaking in response to the notice of proposed rulemaking for the Allocation Framework Rule. As described earlier in this notice, EPA requested that entities verify, and if necessary correct, the data  11 available to EPA on those entities' historic production activities from 2011 through 2021 for purposes of the AIM Act. EPA sent an electronic communication or letter to all entities that were known, or likely, to have had production activity of regulated substances from 2011 through 2021 that they had until September 26, 2022, to verify, and if necessary correct, the data available to EPA on those entities' historic consumption activities from 2011 through 2021. 12 Therefore, there is no reasonable basis to expect correction to the baseline calculation inputs if EPA were to provide for notice and comment of this action.

Third, when EPA initially established the production baseline for the phasedown of HFCs, the Agency did so through a notice and comment rulemaking process. Accordingly, the public has already had an opportunity to review and comment on EPA's general approach to establishing the production baseline. This rulemaking simply corrects the baseline calculation to maintain accuracy.

EPA has also determined that it is in the public interest to correct the production baseline such that the change can take effect ahead of EPA's allocation of production allowances on or before October 1, 2023. Under the AIM Act, by October 1 of each calendar year EPA must calculate and determine the quantity of production and consumption allowances for the following year. The quantity of production allowances available each year is based on taking a percentage of the calculated baseline. The Agency intends to issue allowances for the 2024 calendar year no later than October 1, 2023. As noted in the Allocation Framework Rule, while the Kigali Amendment adopted under the Montreal Protocol has certain marked differences from the AIM Act, the two documents have a nearly identical list of HFCs to be phased down following the same schedule. The United States ratified the Kigali Amendment on October 31, 2022, and according to obligations pursuant to that ratification, provided the Secretariat to the Montreal Protocol with the country's calculated consumption and production baselines on April 28, 2023. The production baseline provided to the Secretariat matches the production baseline being finalized in this rulemaking. There are important policy reasons to align the operative production baselines for domestic and international purposes. If the production baseline correction is not effective by October 1, 2023, EPA would allocate 229,532,771 MTEVe production allowances. However, the United States would have an international obligation under the Kigali Amendment to not produce more than 229,521,264 MTEVe of HFCs. Unaligned production baselines would mean that the United States domestic system would allow for production of 11,507 MTEVe of HFCs beyond the international obligation. There would not be sufficient time to allow for public notice and comment on the correction to the production baseline made through this rulemaking for AIM Act purposes and still have the baseline correction effective in time for allocation of calendar year 2024 allowances. Therefore, EPA has determined it is contrary to public interest to provide an opportunity for comment in this instance.

Finally, as noted earlier in this notice, the alteration made to the production baseline is very small. Specifically, the change is a 0.005 percent reduction in the production baseline. EPA does not anticipate that any stakeholder would be meaningfully affected by this baseline correction and therefore EPA has determined that providing notice and an opportunity for comment is unnecessary.

Thus, EPA finds good cause under APA section 553(b)(B) to take this final action without prior notice or opportunity for comment because providing notice and an opportunity for comment would be unnecessary, impracticable, and contrary to the public interest.

The AIM Act provides that certain sections of the CAA “shall apply to” the AIM Act and actions “promulgated by the Administrator of [EPA] pursuant to [the AIM Act] as though [the AIM Act] were expressly included in title VI of [the CAA].” 42 U.S.C. 7675(k)(1)(C). Among the applicable sections of the CAA is section 307, which includes provisions on judicial review. Section 307(b)(1) provides, in part, that petitions for review must only be filed in the United States Court of Appeals for the District of Columbia Circuit: (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion whether to invoke the exception in (ii).

The final action herein noticed is “nationally applicable” within the meaning of CAA section 307(b)(1). The AIM Act imposes a national cap on the total number of allowances available for each year for all entities nationwide. 42 U.S.C. 7675(e)(2)(B)-(D). In this rulemaking, EPA is adjusting the production baseline from which the total number of production allowances is derived. In the alternative, to the extent a court finds the final action to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that the action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). 13 In deciding to invoke this exception, the Administrator has taken into account a number of policy considerations, including his judgment regarding the benefit of obtaining the D.C. Circuit's authoritative centralized review, rather than allowing development of the issue in other contexts, in order to ensure consistency in the Agency's approach to allocation of production allowances in accordance with EPA's national regulations in 40 CFR part 84. The final action treats all affected entities consistently in how the 40 CFR part 84 regulations are applied. The Administrator finds that this is a matter on which national uniformity is desirable to take advantage of the D.C. Circuit's administrative law expertise and facilitate the orderly development of the basic law under the AIM Act and EPA's implementing regulations. The Administrator also finds that consolidated review of the action in the D.C. Circuit will avoid piecemeal litigation in the regional circuits, further judicial economy, and eliminate the risk of inconsistent results for different regulated entities. The Administrator also finds that a nationally consistent approach in this rulemaking constitutes the best use of agency resources. The Administrator is publishing his finding that the action is based on a determination of nationwide scope or effect in the Federal Register as part of this notice. For these reasons, this final action is nationally applicable or, alternatively, the Administrator is exercising the complete discretion afforded to him by the CAA and finds that the final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is hereby publishing that finding in the Federal Register . 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 District of Columbia Circuit by September 11, 2023.

This action is not a significant regulatory action as defined under section 3(f) of Executive Order 12866, as amended by Executive Order 14094, 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. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0734. There are no additional or revisions to existing reporting or recordkeeping requirements associated with this rule, which simply corrects the production baseline.

I certify that this action will not have a significant economic impact on a substantial number of small entities (SISNOSE) under the RFA. This action will not impose any requirements on small entities because there are no small entities subject to this rule.

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

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

This action does not have tribal implications as specified in Executive Order 13175. EPA is not aware of tribal businesses engaged in activities that would be directly affected by this action. Based on the Agency's assessments, the Agency also does not believe that potential effects, even if direct, would be substantial. Accordingly, this action will not have substantial direct effects on tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action. EPA periodically updates tribal officials on air regulations through the monthly meetings of the National Tribal Air Association and has shared information on this rulemaking through this and other fora.

Executive Order 13045 (62 FR 19885, April 23, 1997) directs Federal agencies to include an evaluation of the health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potentially effective and reasonably feasible alternatives. This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. As noted, the production baseline correction is only 0.005 percent so is not anticipated to have meaningful impact on children.

This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action applies to certain regulated substances and certain applications containing regulated substances, none of which are used to supply or distribute energy.

This rulemaking does not involve technical standards.

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

EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on people of color, low-income populations and/or Indigenous peoples. EPA did extensive environmental justice analysis as part of the Allocation Framework Rule, which is documented in the preamble to that rulemaking and in the associated RIA.

This action is not likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or Indigenous peoples.

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

For the reasons set out in the preamble, EPA is amending 40 CFR part 84 as follows: