Section 5343 of title 5, U.S. Code, provides OPM with the authority and responsibility to prescribe practices and procedures for conducting wage surveys. Beginning in November 2006, based on recommendations of the Federal Prevailing Rate Advisory Committee (FPRAC), the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, full scale surveys have been using NAICS codes as the method of determining if an industry is appropriate for survey. OMB updates the NAICS codes every five years, at which time OPM also updates the list of NAICS codes covered by OPM wage survey regulations. On July 30, 2019, OPM issued a final rule (84 FR 36813) to update the 2012 NAICS codes used in FWS wage survey industry regulations with the 2017 NAICS revisions published by OMB. OPM's current regulations use 2017 NAICS codes. OMB has now published the NAICS revisions for 2022, which result in certain changes in industry coverage for FWS wage surveys. This rulemaking proposes to update OPM's regulations with the 2022 NAICS codes revisions.

The following sections of 5 CFR part 532 list the industries included in the FWS wage surveys by 2017 NAICS codes:

• Section 532.213—Industries included in regular appropriated fund wage surveys.

• Section 532.221—Industries included in regular nonappropriated fund surveys.

• Section 532.223—Establishments included in regular nonappropriated fund surveys.

• Section 532.267—Special wage schedules for aircraft, electronic, and optical instrument overhaul and repair positions in Puerto Rico.

• Section 532.285—Special wage schedules for supervisors of negotiated rate Bureau of Reclamation employees.

• Section 532.313—Private sector industries.

OPM has reviewed these regulations in light of OMB's NAICS revisions for 2022 and is proposing the following changes:

• Delete NAICS code 515 (Broadcasting (except internet)) from the list of required NAICS codes in 5 CFR 532.213 and add NAICS code 516 (Broadcasting and content providers);

• Delete NAICS codes 44132 (Tire dealers), 443 (Electronics and appliance stores), 44611(Pharmacies and drug stores), 4471 (Gasoline stations), 44814 (Family clothing stores), 4522 (Department stores), 4523 (All other general merchandise stores), 45321 (Office supplies and stationery stores) and 4542 (Vending machine operators) from the list of required NAICS codes in 5 CFR 532.221 and add NAICS codes 44134 (Tire dealers), 449210 (Electronics and appliance retailers), 45611 (Pharmacies and drug stores), 4571 (Gasoline stations), 45811 (Clothing and clothing accessories retailers), 4551 (Department stores), 4552 (Warehouse clubs, supercenters, and other general merchandise retailers), and 45941 (Office supplies and stationery retailers);

• Delete NAICS codes 4471 (Gasoline stations) and 4542 (Vending machine operators) from the list of required NAICS codes in 5 CFR 532.223 and add NAICS code 4571 (Gasoline stations);

• Delete NAICS codes 333316 (Photographic and photocopying equipment manufacturing) and 334613 (Blank magnetic and optical recording media manufacturing) from the list of required NAICS codes in 5 CFR 532.267 and add NAICS codes 333310 (Commercial and service industry machinery manufacturing) and 334610 (Manufacturing and reproducing magnetic and optical media);

• Delete NAICS code 515 (Broadcasting (except internet)) from the list of required NAICS codes in 5 CFR 532.285 and add NAICS code 516 (Broadcasting and content providers);

• Delete NAICS code 441310 (Automotive parts and accessory stores) from the list of required NAICS codes in 5 CFR 532.287;

• Revise the title of NAICS code 4413 to read “Automotive parts, accessories, and tire retailers” in the list of required NAICS codes in the Artillery and combat vehicles specialized industry in 5 CFR 532.313;

• Delete NAICS codes 44421 (Outdoor power equipment stores), 5173 (Wired and wireless telecommunications carriers), and 517911 (Telecommunications resellers) from the list of required NAICS codes in the Artillery and combat vehicle specialized industry in 5 CFR 532.313 and add NAICS codes 44423 (Outdoor power equipment retailers), 5171 (Wired and wireless telecommunications carriers (except Satellite)) and 517121 (Telecommunications resellers);

• Delete NAICS codes 5151 (Radio and television broadcasting), 5152 (Cable and other subscription programming), 5173 (Wired and wireless telecommunications carriers) and 517911 (Telecommunications resellers) from the list of required NAICS codes in the Communications specialized industry in 5 CFR 532.313 and add NAICS codes 5161 (Radio and television broadcasting stations), 5162 (Media streaming distribution services, social networks, and other media networks and content providers), 5171 (Wired and wireless telecommunications carriers(except Satellite)), and 517121 (Telecommunications resellers);

• Delete NAICS codes 333316 (Photographic and photocopying equipment manufacturing) and 334613 (Blank magnetic and optical recording media manufacturing) from the list of required NAICS codes in the Electronics specialized industry and Guided missiles specialized industry in 5 CFR 532.313 and add NAICS codes 333310 (Commercial and service industry machinery manufacturing) and 334610 (Manufacturing and reproducing magnetic and optical media); and

• Delete NAICS codes 333314 (Optical instrument and lens manufacturing), 333316 (Photographic and photocopying equipment manufacturing) and 334613 (Blank magnetic and optical recording media manufacturing) from the list of required NAICS codes in the Sighting and fire control equipment specialized industry in 5 CFR 532.313 and add NAICS codes 333310 (Commercial and service industry machinery manufacturing) and 334610 (Manufacturing and reproducing magnetic and optical media).

No other sections are affected by 2022 changes in NAICS codes. OPM is also proposing to replace the year “2017” with “2022” in the table titles of all applicable sections.

FPRAC recommended these changes by consensus at its May 18, 2023, meeting. The transcript of this meeting can be found on the Federal Wage System website, available at https://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/federal-wage-system/#url=FPRAC .

OPM is issuing this proposed rule so that its FWS wage survey industry regulations remain consistent and up-to-date with OMB's NAICS codes. OPM expects this rulemaking to have no significant impact on whether companies are included or excluded from wage surveys. The expected costs would be de minimis since the Department of Defense, the lead agency responsible for conducting FWS wage surveys, will only have to make some minor changes in their computer systems to follow the updated NAICS codes. OPM does not anticipate this rulemaking will have a substantial impact on the local economies or a large impact in the local labor markets. However, OPM is requesting comment on this proposed rule regarding the impact. OPM is particularly interested in receiving comments on its use of NAICS codes in FWS wage survey industry regulations. OPM will continue to study the implications of such impacts of this or future rules as needed, as this and future changes in OMB's NAICS codes may have higher impact on wage survey methodology.

Executive Orders 13563, 12866, and 14094 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). This rulemaking is not a “significant regulatory action” under the provisions of Executive Order 12866 and, therefore, was not reviewed by OMB.

The Director of OPM certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities because this rulemaking will affect only Federal agencies and employees.

OPM examined this rulemaking in accordance with Executive Order 13132, Federalism, and determined that it will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.

This regulation meets the applicable standard set forth in Executive Order 12988.

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

This rulemaking does not impose any reporting or record-keeping requirements subject to the Paperwork Reduction Act.

Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:

The revisions and additions read as follows:

In the Federal Register of July 14, 2023, in FR Doc. 2023-14983, on page 45100 in the document heading, the RIN is corrected to read “3206-AO55.”

Under the Animal Health Protection Act (AHPA, 7 U.S.C. 8301 et seq. ), the Secretary of Agriculture may prohibit or restrict the importation or entry of any animal, article, or means of conveyance if the Secretary determines that the prohibition or restriction is necessary to prevent the introduction into or dissemination within the United States of any pest or disease of livestock.

Pursuant to this authority, the Animal and Plant Health Inspection Service (APHIS) administers the regulations in 9 CFR part 93. The regulations in part 93 govern the importation of live animals into the United States, and place restrictions on the importation of certain species or types of animals in order to address the risk that the animals present of introducing or disseminating diseases or pests of livestock.

The regulations in part 93 currently include requirements regarding the importation of live swine in order to address the risk that the swine may present of introducing African swine fever (ASF) into the United States; § 93.505 requires swine imported into the United States to be accompanied by a certificate attesting that the region of origin of the swine is free of ASF. ASF is a highly contagious disease of wild and domestic swine that can spread rapidly in swine populations with extremely high rates of morbidity and mortality.

APHIS monitors possible pathways of introduction of ASF into the United States and has identified dogs imported from ASF-affected countries for resale purposes, along with their bedding, as a potential pathway for introduction of ASF into the United States. Dogs for resale includes any transfer of ownership or control of an imported dog of less than 6 months of age to another person, for more than de minimis consideration (this includes such transactions as retail sale, wholesale, and fee-based adoption). Accordingly, on August 2, 2021, APHIS issued a Federal Order (DA-2021-01), 1 effective on August 16, 2021, imposing several requirements on the importation of dogs for resale from regions where ASF exists or is reasonably believed to exist. The Federal Order requires:

• The U.S. importer must obtain an APHIS Animal Care import permit for dog(s) intended for resale and satisfy all import requirements.

• The dog(s) imported for resale must also meet all of the following APHIS Veterinary Services (VS) import requirements:

○ The dog(s) and their shipping crate/container must be free of dirt, wood shavings, hay, straw, or any other organic/natural bedding material.

○ All bedding that accompanies the dog(s) during transit must be properly disposed of at the post-entry point(s) of concentration in a way that prevents the introduction or spread of ASF.

• Disposal methods may include incineration; or disinfecting the bedding with an APHIS-approved disinfectant, placing the bedding in a leakproof bag, sealing the bag, disinfecting the bag exterior with an APHIS-approved disinfectant, inserting the disinfected bag into another leakproof bag, sealing that bag, disinfecting the bag exterior with the same disinfectant product, and disposing of the bag in a landfill in accordance with all State and local regulations.

○ Dog(s) must have an International Standards Organization (ISO) compliant microchip implanted, and the microchip number must be verified immediately before the animal is bathed.

• To certify a microchip as ISO compliant, the microchip must operate at a radio frequency of 134.2 kHz. ISO microchip numbers usually contain 15 digits.

○ Dog(s) must be bathed at the U.S. post-entry point(s) of concentration within 2 calendar days of arrival at the U.S. port of entry, and completion of this requirement must be documented on the VS Dog Import Record.

• U.S. post-entry point(s) of concentration are the first location where shipments of imported dog(s) are directly moved to following arrival at the U.S. port of entry.

Both parts of the VS Dog Import Record must be completed and submitted for each shipment of imported dog(s) intended for resale.

• Part 1 of the VS Dog Import Record must include the following information:

○ The name, phone number, email, and address of the importer.

○ The country of origin.

○ The APHIS Animal Care import permit number.

○ The number of dogs shipped.

○ The U.S. port of entry.

○ The date of the dog(s)' arrival in the United States.

○ The address(es) of the first U.S. post-entry point(s) of concentration.

○ Importer certification and signature.

• Part 2 of the VS Dog Import Record must include the following information:

○ The APHIS Animal Care import permit number.

○ Each dog's name (if applicable), microchip number, age, gender, breed, color/markings, and the date of bath completion.

○ The name, phone number, email, and signature of the importer.

○ The name, phone number, email and signature of the bather(s).

• Upon arrival at the U.S. post-entry point(s) of concentration, all bedding that accompanied the dog(s) during shipping must be properly disposed of.

• The individual microchip number must be verified immediately before each animal is bathed.

• The dog(s) must be bathed at the U.S. post-entry point(s) of concentration within 2 calendar days following entry into the United States. Completion of this requirement must be documented on the VS Dog Import Record and signed by the importer and bather(s).

• The VS Dog Import Record verifying the completion of all VS import requirements for every dog in the shipment must be submitted to APHIS within 2 business days following the dogs' entry into the United States.

• VS may require, at its discretion, animal inspection at the post-entry point(s) of concentration in the United States to verify import requirements were met. APHIS is proposing to add the above requirements, by adding paragraph (c) to § 93.600.

In general, the proposed regulation adheres to the requirements of the Federal Order. However, we are proposing one change with regard to unique identification of the dogs. While the Federal Order requires the microchip to be ISO-compliant and operate at a specific radio frequency, we are instead proposing that the microchip must meet APHIS-approved standards in providing unique identification. The list of such approved standards would be maintained on the internet at https://www.aphis.usda.gov/aphis/ourfocus/animalwelfare/dog-import-into-us/import-live-dogs-into-us, and we would publish a notice in the Federal Register if we update the list.

The list would currently state that microchips that are ISO-compliant and operate at a radio frequency of 134.2 kHz are APHIS-approved. However, if ISO adopts an alternate frequency that APHIS evaluates and finds acceptable, or should a different international standards body arise that is equivalently stringent to ISO, this deviation from the Federal Order would provide APHIS with sufficient flexibility to make changes to the list of acceptable identification to meet the terms of the regulations in a manner that does not require rulemaking.

This proposed rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below.

APHIS has determined that dogs imported from ASF affected countries for resale purposes, along with their bedding, represent a possible pathway for the introduction of disease. To block this pathway, APHIS issued a Federal Order (DA-2021-01) imposing several restrictions on the importation of dogs for resale from regions where ASF exists or is reasonably believed to exist.

ASF is found in countries around the world. More recently, it has spread to the Dominican Republic and Haiti. ASF has also spread through China, Mongolia and Vietnam, as well as within parts of the European Union.

Animal breeders and importers may be affected by this rulemaking. They will have to spend additional time to complete and submit the required documents. Importers will need to verify that they have met these restrictions by completing and submitting a Dog Import Record that will record information regarding the dogs' characteristics, identification, origin, entry into the United States, disposition of their bedding and packing material, and confirmation of bathing.

The U.S. importer must obtain an APHIS Animal Care (AC) import permit for dog(s) intended for resale, and satisfy all import requirements therein, including age and vaccination requirements. The dog(s) imported for resale must also meet all of the following APHIS Veterinary Services (VS) import requirements. The dog(s) and their shipping crate/container must be free of dirt, wood shavings, hay, straw, or any other organic/natural bedding material. All bedding that accompanies the dog(s) during transit must be properly disposed of at the post-entry point(s) of concentration in a way that prevents the introduction or spread of ASF. Dog(s) must have an International Standards Organization (ISO) compliant microchip implanted, and the microchip number must be verified immediately before the animal is bathed. Dog(s) must be bathed at the U.S. post-entry point(s) of concentration within 2 calendar days of arrival at the U.S. port of entry, and completion of this requirement must be documented on the VS Dog Import Record.

We have reason to believe that many of these requirements, such as microchipping and bathing, are routine industry practices and that entities will incur at most minimal additional costs in implementing them. Accordingly, based on the information we have, there is no reason to conclude that adoption of this proposed rule would result in any significant economic effect on a substantial number of small entities. However, we do not currently have all of the data necessary for a comprehensive analysis of the effects of this proposed rule on small entities. Therefore, we are inviting comments on potential effects. In particular, we are interested in determining the number and kind of small entities that may incur benefits or costs from the implementation of this proposed rule.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. If this proposed rule is adopted: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings will not be required before parties may file suit in court challenging this rule.

This proposed rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). The information collection activities in this proposed rule are included under the Office of Management and Budget (OMB) control number 0579-0478 which has been submitted to OMB for approval.

The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this proposed rule, please contact Mr. Joseph Moxey, APHIS' Paperwork Reduction Act Coordinator, at (301) 851-2483.

Accordingly, APHIS proposes to amend 9 CFR part 93 as follows:

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1882; Project Identifier MCAI-2023-00651-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 proposal 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 NPRM.

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 NPRM 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 NPRM, 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 NPRM. Submissions containing CBI should be sent to Timothy Dowling, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone 206-231-3667; email Timothy.P.Dowling@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 2022-07-15, Amendment 39-22003 (87 FR 22438, April 15, 2022), for all Airbus SAS Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, -153N, and -171N airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, -273N airplanes; and Model A321-111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes. AD 2022-07-15 was prompted by an MCAI originated by EASA, which is the Technical Agent for the Member States of the European Union. EASA issued AD 2022-0032, dated March 3, 2022 (EASA AD 2022-0032), to correct an unsafe condition.

AD 2022-07-15 requires replacing affected BSCUs and revising the operator's existing FAA-approved MEL. The FAA issued AD 2022-07-15 to address loss of braking performance with significant increase in airplane stopping distance, possibly resulting in runway excursion.

Since the FAA issued AD 2022-07-15, EASA superseded AD 2022-0032 and issued EASA AD 2023-0093, dated May 5, 2023, which was subsequently revised. EASA AD 2023-0093R1, dated May 15, 2023 (EASA AD 2022-0093R1) (also referred to as the MCAI), retains the requirements of EASA AD 2023-0032 and requires replacement of type 1 relays with type 2 relays.

The MCAI noted that BSCU channel failures could induce, in the event of dual channel failures, loss of anti-skid function together with the reversion to the alternate braking mode, and loss of nose wheel steering, and lead to loss of braking performance with significant increase in airplane stopping distance, possibly resulting in runway excursion.

The MCAI states that further investigation identified a type 1 relay installed in a position where a type 2 relay should have been installed. The combination of a type 1 relay with an affected BSCU could induce BSCU freezing. EASA therefore determined that it is necessary to replace type 1 relays with type 2 relays.

The MCAI also states that type 1 relays are no longer installed on Model A320 Current Engine Option (CEO) airplanes ( i.e., Model A318 series airplanes; A319-111, -112, -113, -114, -115, -131, -132, and -133 airplanes; A320-211, -212, -214, -216, -231, -232, and -233 airplanes; and A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes). Type 1 relays were required to be replaced on Model A320 CEO airplanes by AD 96-04-06, Amendment 39-9518 (61 FR 6927, February 23, 1996). AD 96-04-06 corresponded to DGAC France AD F-1993-163-043, dated September 29, 1993. Model A320 CEO airplanes are therefore not included in the applicability of this proposed AD.

Further, EASA stated that some relays installed at functional item number (FIN) locations 24GG and 25GG were not in conformity with the Airplane Inspection Report on certain airplanes.

In addition, it was determined that certain airplanes have been delivered with a BSCU P/N E21327107.

Although this proposed AD does not explicitly restate the requirements of AD 2022-07-15, this proposed AD would retain all the requirements of AD 2022-07-15. Those requirements are referenced in EASA AD 2023-0093R1, which, in turn, is referenced in paragraph (g) of this proposed AD.

EASA AD 2023-0093R1 specifies procedures for replacing affected BSCUs if a fault signature is triggered, and implementing the instructions of master minimum equipment list (MMEL) updates on the basis of which the operator's existing MEL must be amended-that is, procedures for revising the operator's existing FAA-approved MEL with the provisions in the MMEL updates specified in the EASA AD. EASA AD 2023-0093R1 also specifies procedures for a general visual inspection of the FINs 24GG and 25GG to identify the relay type installed, and replacement of each type 1 relay with a type 2 relay. EASA AD 2023-0093R1 also limits the installation of affected parts.

Airbus Alert Operators Transmission A32N025-22, Rev 01, dated May 10, 2023, including Appendixes 1 through 3, dated May 2023, defines BSCU fault signatures that may be triggered on the airplane, and specifies procedures for replacing affected parts, among other actions.

This proposed AD would also require Airbus Alert Operators Transmission A32N025-22, Rev 00, dated February 24, 2022, including Appendixes 1 through 4, dated February 21, 2022, which the Director of the Federal Register approved for incorporation by reference as of May 2, 2022 (87 FR 22438, April 15, 2022).

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

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 NPRM after determining that the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would retain all requirements of AD 2022-07-15. This proposed AD would remove airplanes from the applicability and require accomplishing the actions specified in EASA AD 2023-0093R1 described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

EASA AD 2023-0093R1 requires operators to “inform all flight crews” of revisions to the MEL, and thereafter to “operate the airplane accordingly.” However, this proposed AD would not specifically require those actions as those actions are already required by FAA regulations. FAA regulations (14 CFR 121.628 (a)(2)) require operators to provide pilots with access to all of the information contained in the operator's MEL. Furthermore, 14 CFR 121.628 (a)(5) requires airplanes to be operated under all applicable conditions and limitations contained in the operator's MEL. Therefore, including a requirement in this proposed AD to operate the airplane according to the revised MEL would be redundant and unnecessary.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has been coordinating this process with manufacturers and CAAs. As a result, the FAA proposes to incorporate EASA AD 2023-0093R1 by reference in this AD. This proposed AD would, therefore, require compliance with EASA AD 2023-0093R1 entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in EASA AD 2023-0093R1 does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions and compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0093R1. Service information required by EASA AD 2023-0093R1 for compliance will be available at regulations.gov under Docket No. FAA-2023-1882 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 349 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

According to the manufacturer, some or all of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all known costs in the cost estimate.

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1879; Project Identifier AD-2023-00286-T” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 the proposal 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 proposed AD.

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 NPRM 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 NPRM, 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 NPRM. Submissions containing CBI should be sent to Courtney Tuck, Aviation Safety Engineer, FAA, 2200 South 216th St., Des Moines, WA 98198; phone: 206-231-3986; email: courtney.k.tuck@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 2019-16-05, Amendment 39-19708 (84 FR 45895, September 23, 2019) (AD 2019-16-05), for all The Boeing Company Model 777-200, -200LR, -300, -300ER, and 777F series airplanes. AD 2019-16-05 was prompted by reports of uncommanded fore/aft movements of the Captain's and First Officer's seats. AD 2019-16-05 requires an identification of the part number, and if applicable the serial number, of the Captain's and First Officer's seats, and applicable on-condition actions for affected seats. The FAA issued AD 2019-16-05 to address uncommanded fore/aft movement of the Captain's and First Officer's seats. An uncommanded fore/aft seat movement during a critical part of a flight, such as takeoff or landing, could cause a flight control obstruction or unintended flight control input, which could result in the loss of the ability to control the airplane.

Since the FAA issued AD 2019-16-05, certain seat part numbers were discovered to have been inadvertently omitted from the service information, and were therefore not included in the requirements of AD 2019-16-05.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Boeing Special Attention Service Bulletin 777-25-0607, Revision 2, dated January 27, 2023. The service information describes procedures for identification of the part number, and if applicable, the serial number, of the Captain's and First Officer's seats, and for applicable on-condition actions for affected seats. The on-condition actions include an inspection of each seat's fore/aft and vertical manual control levers for looseness, installation of serviceable seats, and a seat functional test after any cable adjustment.

The FAA also reviewed Boeing Special Attention Service Bulletin 777-25-0619, Revision 2, dated January 27, 2023. The service information describes procedures for a detailed inspection and repetitive checks of the horizontal movement system for the Captain's and First Officer's seats for findings ( e.g., evidence of cracks, scores, corrosion, dents, deformation or visible wear; and incorrectly assembled microswitch assemblies, actuators, and limit switches), and applicable on-condition actions. The on-condition actions include clearing the seat tracks of foreign object debris (FOD), overhauling the horizontal movement system, and replacing the horizontal actuator. The service information also describes procedures for an optional terminating action for the repetitive checks by installing a serviceable Captain's or First Officer's seat.

This proposed AD would also require Boeing Special Attention Service Bulletin 777-25-0619, Revision 1, dated August 8, 2018, which the Director of the Federal Register approved for incorporation by reference as of October 8, 2019 (84 FR 45895, September 3, 2019).

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

Although this proposed AD does not explicitly restate the requirements of AD 2019-16-05, this proposed AD would retain all of the requirements of AD 2019-16-05. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraphs (g) and (h) of this proposed AD. This proposed AD would also require accomplishment of the actions specified in Boeing Special Attention Service Bulletin 777-25-0607, Revision 2, dated January 27, 2023, and the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777-25-0619, Revision 2, dated January 27, 2023, described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.”

For information on the procedures and compliance times, see this service information at regulations.gov under Docket No. FAA-2023-1879.

The effectivity of Boeing Special Attention Service Bulletins 777-25-0607 and 777-25-0619, both Revision 2, dated January 27, 2023, is limited to Model 777-200, -200LR, -300, -300ER, and 777F airplanes with specific line numbers. However, the applicability of this proposed AD includes all Model 777-200, -200LR, -300, -300ER, and 777F series airplanes. Because the affected Captain's and First Officer's seats are rotable parts, the FAA has determined that these seats could later be installed on airplanes that were initially delivered with acceptable seats, thereby subjecting those airplanes to the identified unsafe condition.

Where Boeing Special Attention Service Bulletin 777-25-0607, Revision 2, dated January 27, 2023, specifies compliance within 72 months after the original issue date of the service bulletin, this proposed AD would require compliance with those actions within 36 months after the effective date of AD 2019-16-05. The 36-month compliance time corresponds to the compliance time in Boeing Special Attention Service Bulletin 777-25-0619, Revision 2, dated January 27, 2023. The FAA determined during the development of AD 2019-16-05 that a 36-month compliance time was appropriate for doing those actions.

The FAA estimates that this AD, if adopted as proposed, would affect 327 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:

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

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

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

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

The FAA has determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 the proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1888; Project Identifier MCAI-2023-00298-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 proposal 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 NPRM.

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 NPRM 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 NPRM, 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 NPRM. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. 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 an NPRM (88 FR 63539, September 15, 2023) that would apply to all RRD Model RB211-Trent 800 engines. The NPRM proposed to require initial and repetitive on-wing or in-shop borescope inspections (BSIs) of certain intermediate-pressure compressor (IPC) rotor shaft balance lands for cracks, dents, and nicks, and replacement of the IPC rotor shaft if necessary, and proposed to prohibit the installation of a certain IPC rotor shaft on any engine, as specified in EASA AD 2023-0040, dated February 16, 2023 (EASA AD 2023-0040) (also referred to after this as the MCAI), which is proposed for incorporation by reference. The NPRM was prompted by reports of cracks on certain IPC rotor shaft balance lands. This condition, if not addressed, could lead to IPC rotor shaft failure and consequent uncontained high-energy debris, resulting in damage to the airplane.

As published, the docket number referenced throughout the NPRM is incorrect. The NPRM incorrectly references “Docket No. FAA-2023-1880” instead of “Docket No. FAA-2023-1888.”

Although no other part of the preamble or regulatory information has been corrected, for clarity, the FAA is publishing the entire proposed rule in the Federal Register .

The comment due date of the NPRM remains October 30, 2023.

The FAA reviewed EASA AD 2023-0040, which specifies procedures for performing initial and repetitive on-wing or in-shop BSIs of the IPC rotor shaft balance land for cracks, dents, and nicks, and replacing the IPC rotor shaft if necessary. The MCAI also specifies prohibiting the installation of a certain IPC rotor shaft on any engine and that accomplishing an in-shop EC inspection of the IPC rotor shaft balance land or replacing the IPC rotor shaft constitutes as terminating action for the repetitive BSIs.

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

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

This proposed AD would require accomplishing the actions specified in the MCAI described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2023-0040 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0040 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions within the compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0040. Service information required by the EASA AD for compliance will be available at regulations.gov under Docket No. FAA-2023-1888 after the FAA final rule is published.

The FAA estimates that this AD, if adopted as proposed, would affect 194 engines installed on airplanes of U.S. registry.

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

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

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

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

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 this proposed regulation:

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

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

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

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

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1889; Project Identifier MCAI-2023-00738-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, 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 proposal 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 NPRM.

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 NPRM 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 NPRM, 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 NPRM. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. 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 an NPRM (88 FR 63885, September 18, 2023) that would apply to certain RRD Model Trent 1000 engines. The NPRM proposed to supersede AD 2021-25-04, Amendment 39-21847 (86 FR 71129, December 15, 2021) (AD 2021-25-04), for all RRD Model Trent 1000-AE3, Trent 1000-CE3, Trent 1000-D3, Trent 1000-G3, Trent 1000-H3, Trent 1000-J3, Trent 1000-K3, Trent 1000-L3, Trent 1000-M3, Trent 1000-N3, Trent 1000-P3, Trent 1000-Q3, and Trent 1000-R3 (Trent 1000) engines. AD 2021-25-04 requires operators to revise the airworthiness limitations section (ALS) of their existing approved aircraft maintenance program by incorporating the revised tasks of the applicable time limits manual (TLM) for each affected engine.

The NPRM proposed to require revising the ALS of the operator's existing approved engine maintenance or inspection program, as applicable, to incorporate new or more restrictive tasks and limitations and associated thresholds and intervals for life-limited parts, as specified in EASA AD 2023-0115, dated June 7, 2023 (EASA AD 2023-0115) (also referred to after this as the MCAI), which is proposed for incorporation by reference. The NPRM was prompted by the manufacturer revising the TLM to introduce new or more restrictive tasks and limitations and associated thresholds and intervals for life-limited parts. The FAA is proposing this AD to prevent the failure of critical rotating parts, which could result in the failure of one or more engines, loss of thrust control, and loss of the airplane.

As published, the docket number referenced throughout the NPRM is incorrect. The NPRM incorrectly references “Docket No. FAA-2023-1881” instead of “Docket No. FAA-2023-1889.”

Although no other part of the preamble or regulatory information has been corrected, for clarity, the FAA is publishing the entire proposed rule in the Federal Register .

The comment due date of the NPRM remains November 2, 2023.

The FAA reviewed EASA AD 2023-0115, which specifies procedures for operators to revise the ALS of the existing approved engine maintenance or inspection program, as applicable, to incorporate new or more restrictive tasks and limitations and associated thresholds and intervals for life-limited parts.

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

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

This proposed AD would require revising the ALS of the operator's existing approved engine maintenance or inspection program, as applicable, to incorporate new or more restrictive tasks and limitations and associated thresholds and intervals for life-limited parts, which are specified in the MCAI described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD and as discussed under “Differences Between this Proposed AD and the MCAI.”

In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA developed a process to use some civil aviation authority (CAA) ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. The FAA has since coordinated with other manufacturers and CAAs to use this process. As a result, the FAA proposes to incorporate by reference EASA AD 2023-0115 in the FAA final rule. This proposed AD would, therefore, require compliance with EASA AD 2023-0115 in its entirety through that incorporation, except for any differences identified as exceptions in the regulatory text of this proposed AD. Using common terms that are the same as the heading of a particular section in the EASA AD does not mean that operators need comply only with that section. For example, where the AD requirement refers to “all required actions within compliance times,” compliance with this AD requirement is not limited to the section titled “Required Action(s) and Compliance Time(s)” in EASA AD 2023-0115. Service information required by the EASA AD for compliance will be available at regulations.gov under Docket No. FAA-2023-1889 after the FAA final rule is published.

Where paragraph (3) of EASA AD 2023-0115 specifies revising the approved Aircraft Maintenance Programme within 12 months after the effective date of EASA AD 2023-0115, this proposed AD would require revising the ALS of the existing approved engine maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.

This proposed AD would not require compliance with paragraphs (1), (2), (4), and (5) of EASA AD 2023-0115.

The FAA estimates that this AD, if adopted as proposed, would affect 2 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed 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.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 the proposed regulation:

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

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

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

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

The FAA proposes to amend its PFC regulations to implement changes to a Congressionally mandated pilot program that simplifies the process for public agencies controlling commercial service airports to obtain FAA authority to impose and use PFCs to fund airport development projects. The FAA also proposes to reaffirm existing PFC program requirements and update or remove obsolete references within the PFC regulations. Further, this proposed action removes certain PFC program requirements eliminated in the 2018 FAA reauthorization legislation.

The FAA Reauthorization Act of 2018 (2018 Reauthorization Act), 1 codified at 49 U.S.C. 40117, mandated several changes to the Passenger Facility Charge (PFC) program. The 2018 Reauthorization Act removed previously existing PFC program requirements and mandated changes for other PFC program requirements. This rulemaking action proposes to amend the PFC regulations in part 158 to implement the mandated changes.

The FAA also proposes to amend the PFC regulations to improve PFC program oversight. On December 18, 2018, the U.S. Department of Transportation, Office of Inspector General (OIG) issued Report No. AV2019015, “Most Public Agencies Comply with Passenger Facility Charge Program Requirements, But FAA Can Improve the Use of Its Oversight Tools.” In that report, the OIG made several recommendations to improve the FAA's oversight and administration of the PFC program. 2 These recommendations pertained primarily to PFC reporting, recordkeeping, and audit procedures. Through this rulemaking, and as detailed in sections V.B.1. and V.B.2, the FAA is proposing to formalize in regulations policies that the FAA implemented in May 2019, in response to the OIG's recommendations. 3

Further, the FAA is proposing several miscellaneous amendments to the PFC regulations, including but not limited to: replacing obsolete references, correcting grammar or rewording language for clarity, and re-organizing and re-numbering sections to facilitate other amendments proposed in this rulemaking action. See section V.C.10. in this preamble for a cross-reference table listing CFR units that the FAA proposes to rename, re-number, or both.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code (U.S.C.). Subtitle I, section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in subtitle VII, part A, subpart I, section 40117. Under that section, the FAA is charged with prescribing regulations to impose a passenger facility fee to finance eligible airport-related projects.

This rulemaking is also promulgated pursuant to 49 U.S.C. 106(g), 40116, 47106, 47111, 47114-47116, 47524, and 47526.

The PFC program was established by the Aviation Safety and Capacity Expansion Act of 1990 (Pub. L. 101-508; enacted November 5, 1990) which authorized the Secretary of Transportation (Secretary) to approve local imposition of PFCs of $1, $2, or $3 per enplaned passenger and to use PFC revenue for approved projects. That Act also required the Secretary to issue regulations necessary to implement this authority. The Act directed the Secretary to develop an application procedure, establish terms and conditions for granting PFC authority, set up a system for collecting, handling, and remitting PFC revenue to the appropriate public agency, and establish recordkeeping and audit requirements and procedures for termination. On May 22, 1991, the FAA issued a final rule adopting new regulations to establish the PFC program in part 158. 4

Pursuant to the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), the FAA issued a final rule amending part 158 on May 23, 2000. 5 That action amended the PFC regulations to incorporate administrative and statutory changes in the procedures to establish PFCs, including increasing the PFC level that a public agency may charge from $1, $2, or $3 to $4 or $4.50.

On January 7, 2005, the FAA issued a final rule further amending part 158. 6 In that rulemaking action, the FAA created a new pilot program, as statutorily mandated by Vision 100—Century of Aviation Reauthorization Act  7 (Vision 100), to test alternative procedures to authorize public agencies to impose PFCs and use PFC revenue for eligible projects at non-hub airports. Specifically, the FAA added current § 158.30 to prescribe the procedures a public agency controlling a non-hub  8 airport must follow when notifying the FAA of its intent to impose a PFC and to use PFC revenue on a project. That section also set forth criteria and standards for FAA review and acknowledgment of any notice of intent filed under the pilot program, and FAA objection to a proposed project. Since Vision 100 required the pilot program to be in effect for three years from the date the final rule was enacted, the final rule included a sunset provision of May 9, 2008.

The Federal Aviation Extension Act of 2008  9 authorized the non-hub pilot program to continue through September 30, 2008. However, when § 158.30 expired on May 9, 2008, there were no effective regulations in place to guide public agencies and the FAA regarding the use of these alternative procedures. Therefore, the FAA published a notice in the Federal Register informing public agencies of the program's continuing statutory authority, and the FAA periodically issued internal agency guidance in the form of PFC updates to inform agency personnel of how to administer the non-hub pilot program.

The FAA Modernization and Reform Act of 2012 subsequently eliminated the expiration date from 49 U.S.C. 40117(l) and the FAA continued implementing the non-hub pilot program in accordance with the statute in the absence of effective regulations. 10 The agency continued to use the same forms and procedures that were developed before the sunset of § 158.30, thereby allowing for seamless program continuation.

The FAA is proposing to amend the PFC program regulations. These proposed amendments are grouped into the following three categories based on the rationale for the proposed change: 2018 Reauthorization Act, PFC Program Oversight, and Miscellaneous Amendments.

This rulemaking action proposes the following changes to the PFC program as mandated by the 2018 Reauthorization Act: (1) changes related to project eligibility for PFC levels above $3, and (2) changes related to applications and notices of intent for small-  11 , medium-  12 , and large-hub  13 airports.

At the inception of the PFC program, public agencies received authority to impose a PFC of $1, $2, or $3. The project eligibility requirements are contained in current § 158.15, “Project eligibility at PFC levels of $1, $2 or $3.” AIR 21 modified the PFC program by allowing a public agency to apply to the FAA to increase the PFC level that it may charge to $4 or $4.50 in certain instances. Project Eligibility requirements at PFC Levels of $4 or $4.50 are found in current § 158.17. Section 158.17 (a)(1) requires these projects to also meet the eligibility requirements of § 158.15.

AIR 21 limited projects funded at a $4 or $4.50 PFC level to those that could not be paid for from funds reasonably expected to be available under the Airport Improvement Program (AIP). The requirement for this AIP funds reasonability determination is found in current § 158.17(a)(2).

AIR 21 also conditioned the funding of surface transportation or terminal projects at the $4 or $4.50 level on a finding that the public agency had made adequate provision for financing the airside needs  14 of the airport. The requirement for this airside needs determination is found in current § 158.17(a)(3).

Further, AIR 21 established additional eligibility requirements for projects at medium- and large-hub airports. A project at a medium- or large-hub airport was eligible for PFC funding at $4 or $4.50 only if the project would make a significant contribution to: improving air carrier safety and security; increasing competition among air carriers; reducing current or anticipated congestion; or reducing the impact of aviation noise on people living near the airport. These requirements are contained in current § 158.17(b).

The 2018 Reauthorization Act amended 49 U.S.C. 40117(b)(4) by removing the AIP funds reasonability determination requirement found in current § 158.17(a)(2). With this change in legislation, the FAA no longer uses this determination to set the collection level for which the project is approved. On May 9, 2019, the FAA issued PFC Update 72-19, “Changes to the Passenger Facility Charge Levels Above $3,” directing FAA personnel to cease applying this requirement while reviewing PFC applications. In this rulemaking action, the FAA proposes to formally remove this requirement from the PFC regulations.

The 2018 Reauthorization Act also eliminated the significant contribution requirement found in current § 158.17(b). As a result, the FAA no longer uses it to determine the collection level for which a project is approved and no longer requires public agencies to submit information related to significant contribution. PFC Update 72-19 directs FAA personnel to no longer apply this requirement in reviewing PFC applications and the FAA proposes to remove the requirement from the PFC regulations. Moving forward, the FAA would rely on airside needs as the determining factor.

The 2018 Reauthorization Act retains the airside needs determination under 49 U.S.C. 40117(d)(4) found in current § 158.17(a)(3). Since the airside needs determination is the only requirement remaining within § 158.17 after making the 2018 Reauthorization Act changes, aside from the requirement to comply with § 158.15, the FAA proposes to combine these two sections. Specifically, the FAA proposes to move the airside needs requirement in § 158.17(a)(3) to § 158.15 by adding a new proposed paragraph (d) to current § 158.15 and restating the airside needs requirement, which continues to remain effective. The FAA also proposes to rename § 158.15 as “Project eligibility”  15 and delete the current text of § 158.17 in its entirety. Consolidating the project eligibility requirements into one section and changing the section title will improve accessibility and comprehension of the requirements.

The FAA also proposes administrative amendments to replace references to former § 158.17(a)(3) throughout part 158 with references to proposed § 158.15(d). These administrative amendments are discussed further under section V.C. below.

The statutory provisions initially authorizing the PFC program required public agencies to submit an application to the FAA to obtain authority to impose PFCs and use PFC revenue. However, Vision 100 established the notice of intent process, mandating that the FAA create a pilot program to test alternative procedures for authorizing eligible agencies for non-hub airports to impose PFCs and use PFC revenue.

Under the non-hub pilot program, only public agencies controlling non-hub airports could use alternative procedures to impose PFCs and use PFC revenue on eligible projects under 49 U.S.C. 40117(l). In lieu of submitting an application in accordance with 49 U.S.C. 40117(c), as prescribed in current § 158.25, public agencies controlling non-hub airports simply could submit a notice of intent to impose a PFC and use PFC revenue. Under these alternative procedures, within 30 days of receipt of the public agency's notice, the FAA either objected to the public agency's proposed project(s) or acknowledged the public agency's notice of intent.

The 2018 Reauthorization Act amended 49 U.S.C. 40117(l) by removing all references to non-hub airports. This legislative change effectively directed the FAA to extend the pilot program to small-, medium-, and large-hub airports, permitting these airports to also obtain authority to impose PFCs and use PFC revenue using alternative notice of intent procedures.

Immediately following enactment of the 2018 Reauthorization Act, the FAA considered several options for implementing the PFC program changes. Since the FAA had been successfully implementing notice of intent procedures for non-hub airports for several years, such procedures seemed most appropriate for PFC authorizations for small-, medium-, and large-hub airports. However, rulemaking to amend part 158 would have been required to change the application requirements for public agencies.

Recognizing the immediate need for expeditious processing of PFC applications, the FAA internally implemented program changes to the maximum extent possible. On January 22, 2020, the FAA issued PFC Update 73-20, “Streamlined Procedures for Passenger Facility Charge (PFC) Authorizations at Small-, Medium-, and Large-Hub Airports.” This interim internal guidance partially implemented the program change by streamlining the FAA's internal review of PFC projects meeting specific criteria for small-, medium-, and large-hub airports. This interim internal guidance did not change the PFC application procedures for public agencies. All applications were still required to meet the statutory and regulatory requirements of 49 U.S.C. 40117 and part 158.

PFC Update 73-20 indicated that all PFC applications received by the FAA from small-, medium-, or large-hub airports are to be processed using the streamlined procedures identified in the PFC update unless such applications are excluded in accordance with applicable PFC guidance. Therefore, all PFC applications not excluded under PFC Update 73-20 are to be treated as a notice of intent with FAA review and acknowledgment or objection within 30 days.

The FAA proposes to amend part 158 to allow for the full implementation of program changes originating from the 2018 Reauthorization Act. The FAA's proposed regulations largely mirror the provisions of PFC Update 73-20 to implement the notice of intent pilot program.

The FAA proposes to revise § 158.30 to reflect the 2018 Reauthorization Act program changes and remove the since-rescinded section expiration date, which will provide consistency with current practice and law. Current § 158.30 prescribes regulations for notice of intent PFC authorizations for non-hub airports; however, § 158.30(h) indicates that § 158.30 expired on May 9, 2008. The FAA also intends to move some of the provisions found in § 158.30 to other sections within part 158 to improve readability of the notice of intent requirements. The FAA is proposing this re-organization of § 158.30 to allow for the inclusion of notice of intent provisions stemming from PFC Update 73-20 and the FAA's partial implementation of the program changes. These proposed changes are discussed in the following paragraphs.

First, the FAA proposes to amend current § 158.30 by renaming the section heading “Notices of intent.” While § 158.30(a) through (c) would remain largely the same, the FAA is proposing to make several changes. For example, the FAA proposes revising current paragraph (a) by removing language that limits the applicability of § 158.30 to non-hub airports. The FAA is also proposing minor changes to the project information requirements of current § 158.30(b). That paragraph requires public agencies to submit grant-related information when a PFC project is also funded by an AIP grant. The FAA proposes to replace references to AIP grants with “FAA awarded airport grant” so as to include information about other grants also funding the project, such as those authorized under the Bipartisan Infrastructure Law (BIL). Further, the FAA is adding a new paragraph, proposed § 158.30(b)(8), requiring public agencies to submit detailed cost information for non-AIP funded projects that exceed $10 million.

Second, the FAA proposes to move the text of current § 158.31, “Duration of authority to impose a PFC after project implementation” to an amended § 158.33, and move the text of current § 158.30(d), which includes the notice of intent review requirements, to an amended and proposed § 158.31, “Review of notices of intent.” In turn, the FAA proposes to move the current text of § 158.33, “Duration of authority to impose a PFC before project implementation,” to a newly added proposed § 158.34.

Proposed § 158.31 describes the FAA's rules for reviewing notices of intent and outlines two stages of FAA review. The first stage of review, which is prescribed in proposed § 158.31(a), addresses the types of applications and projects ineligible for notice of intent consideration. The second stage of review, which is prescribed in § 158.31(b), addresses the FAA's determinations on projects eligible for notice of intent consideration.

Under proposed § 158.31(a), the FAA will review notices of intent to identify projects ineligible for consideration under this streamlined process. The FAA intends to notify public agencies in writing within 30 days if the FAA determines that a project is ineligible for the notice of intent procedure. This notification process, outlined in proposed § 158.31(a), was not prescribed in PFC Update 73-20.

The projects ineligible for consideration under proposed § 158.31(a)(1) through (a)(8) are identical to those ineligible for the streamlined procedures under PFC Update 73-20. In determining the types of projects ineligible for streamlined procedures under PFC Update 73-20, the FAA considered the agency's internal delegations of authority as delineated in PFC Order 5500.1, “Passenger Facility Charge,” issued August 9, 2001. That document identifies certain types of PFC projects and applications that cannot be processed by the FAA's region and district offices because they require a higher level of internal FAA review and coordination within agency headquarters. Applications involving significant policy precedent, significant legal issues, significant controversy, multimodal projects, and significant noise, access, or revenue diversion issues are not eligible for streamlined processing under PFC Update 73-20. For reasons discussed in the next few paragraphs, the FAA proposes to incorporate these provisions within the regulations.

Under proposed § 158.31(a)(1), the FAA intends to review notices of intent for significant impacts on policy precedent. The FAA's disposition regarding a proposed PFC project could represent a significant policy precedent if the agency's decision would establish or change the FAA's policy on a project or issue. FAA review of such a project would typically require more than the 30 days afforded by the notice of intent process because the FAA would need to evaluate any potential impacts resulting from a change in policy.

Similarly, under proposed § 158.31(a)(2), the FAA intends to review notices of intent for projects with significant legal issues, as determined by the FAA's Office of the Chief Counsel or Office of Airports. Projects with significant legal issues involve matters that may result in litigation or may include projects where NEPA or environmental litigation are present. Such projects might also include circumstances where a Director within the FAA's Office of Airports has made a determination that the public agency has been found to be noncompliant in 14 CFR part 16 proceedings, or the public agency is presently a respondent in 14 CFR part 16 proceedings. Again, such projects need a level of review that requires more than the 30 days afforded by the notice of intent process.

PFC projects that are the subject of significant controversy are also ineligible for streamlined procedures in accordance with § 158.31(a)(3). Significant controversy is evidenced by opposition expressed during a public agency's consultation with air carriers. Other indicators of potential significant controversy include adverse public comments or opposition to the FAA's proposed action from other airport authorities, airport users, Federal, State, or local governments, elected officials or communities. Likewise, multimodal projects or projects involving significant airport noise, access, or revenue diversion issues are also ineligible for these alternative procedures in accordance with proposed § 158.31(a)(4) and (a)(5). Significant airport noise, access, or revenue diversion issues concern those assessing compliance with 49 U.S.C. 47521 et seq. (ANCA) and 49 U.S.C. 47111(e) (Action on Grant Assurances Concerning Airport Revenues).

The FAA also considered PFC Update 62-10, “Passenger Facility Charge Delegation of Authority,” issued March 11, 2010, in determining the types of projects ineligible for streamlined procedures under PFC Update 73-20. That document identifies additional types of PFC projects and applications that cannot be processed by the FAA's regional and district offices. These include debt service on otherwise ineligible projects or blending of two or more PFC decisions to obtain a uniform collection level. Such projects and applications require specialized review because they tend to be unique and multifaceted. The next few paragraphs discuss the FAA's intent to retain these exclusions as proposed § 158.31(a)(6) and (a)(7).

In proposed § 158.31(a)(6), the FAA proposes to exclude applications involving debt service from the notice of intent streamlined procedures due to the complexity of these applications. When applying to use PFC revenue for certain debt service projects, the FAA encourages each airport to thoroughly discuss in its application those factors it believes most clearly indicate the airport's financial need. The FAA will consider the airport's plans to return to financial stability in its deliberations on the application. If incurring new debt, for any purpose, will help the airport return to financial stability as soon as possible, the public agency should discuss this factor in the application. The FAA also expects an airport attempting to demonstrate that it faces a financial crisis to discuss factors likely to affect its ability to make required payments in the future. Notice of intent procedures would not be appropriate in such instances because the FAA's evaluation process is too extensive to be completed within 30 days. A longer time frame for review is necessary because this gives the public agency time to respond to any requests for information from the FAA should the application not contain all of the necessary documentation. For example, if during the course of review, the FAA finds that the public agency needs to provide a plan to return to financial stability, 30 days is insufficient to allow for the public agency to develop and submit the plan in order to move forward with the application. Since there is not sufficient time allotted for adequate review under the notice of intent process, the FAA proposes to exclude these types of projects and applications.

The FAA proposes to exclude applications for the blending of two or more PFC decisions to obtain a uniform collection level under proposed § 158.31(a)(7) for reasons similar to debt service on otherwise ineligible projects. Prior to the 2018 Reauthorization Act, public agencies sought to blend PFC applications to enable PFC collections at the higher $4 or $4.50 amount when significant contribution was a determining factor. Since the significant contribution determination has been eliminated and public agencies no longer need to demonstrate significant contribution to collect PFCs at the $4 or $4.50 level, the FAA does not anticipate receiving many public agency applications for blending. However, in the rare event that a public agency does seek to blend applications, the FAA has found that such action requires a specialized review and analysis that is likely to exceed the 30 days afforded by the notice of intent process. Therefore, the FAA excluded blending under PFC Update 73-20 and proposes that application blending should remain ineligible for the streamlined notice of intent procedures.

Finally, PFC Update 73-20 describes one more type of PFC project ineligible for streamlined processing. Terminal building projects in excess of $25 million, except stand-alone passenger boarding bridges, are also ineligible for streamlined processing under PFC Update 73-20. The FAA proposes to retain this exclusion as proposed § 158.31(a)(8) for reasons discussed in the following paragraphs.

The initial justification for non-hub airport notice of intent procedures was to achieve PFC program efficiency by eliminating duplicative efforts. In 2002, the FAA examined the PFC program to identify ways to remove unnecessary, duplicative, and time-consuming steps. The FAA found that while non-hub airports accounted for about 60 percent of the PFC applications processed over the prior five years, they only produced roughly two percent of the total annual PFC revenue. Further, the FAA found that non-hub airports often apply to use PFC revenue either as their matching share for an AIP grant or as a supplement to AIP funding. In such cases involving AIP funds, the FAA has already reviewed the project under the AIP grant procedures, thereby producing a duplication of efforts that created inefficiencies for both non-hub airports and the FAA. Thus, overall, enactment of the non-hub pilot program eliminated duplication, improved program efficiency, and supported expedited review of PFC projects for non-hub airports.

Under the non-hub pilot program for notices of intent, when PFC projects did not include AIP funds, the FAA required public agencies to submit project information sufficient for the FAA to review and consider whether the project is eligible for PFCs, meets a PFC objective, and is justified before acknowledging or objecting to a proposed PFC project. While terminal projects for non-hub airports typically fell into this category, the scale of such projects and the level of complexity tend to be minimal due to the nature of non-hub operations, allowing for review within the 30-day timeframe. However, in partially implementing program changes under PFC Update 73-20, the FAA concluded that terminal building projects for small-, medium-, and large-hub airports, on the other hand, may need more than the 30 days afforded under the notice of intent process.

Endeavoring to retain PFC program efficiencies gained through the notice of intent process while still allowing for adequate review and evaluation of terminal projects, the FAA implemented a $25 million threshold for terminal projects under PFC Update 73-20 regardless of airport hub size. Since inception of the PFC program, the vast majority of non-hub terminal PFC projects were less than $25 million. The $25 million threshold allows nearly all non-hub airport terminal projects to continue to obtain PFC authority through the notice of intent process as they have done historically and allows a vast majority of terminal projects for small-, medium-, and large-hub airports to also use this process.

Terminal projects at or over $25 million, in most cases, require a more extensive review on the part of the FAA to ensure the project has been fully assessed. Concluding from years of experience with terminal projects, the FAA found that projects above $25 million tend to involve more systems and components than smaller projects and have a greater potential to include spaces and equipment ineligible for funding under the PFC program. Therefore, these projects require a more comprehensive review, such as comparison against comparable projects, which would take more than the 30-day notice of intent period. The FAA does not propose changes to this limitation found in proposed § 158.31. The numerous components associated with projects at or over $25 million generally require a more extensive review on the part of the FAA to ensure the project has been fully assessed. The application evaluation process may include determining if the submission includes sufficient documentation to demonstrate adequate justification for the project; determining whether the project is eligible for PFC funds; assessing the project objective and justification provided by the public agency; reviewing submission of detailed financial information; evaluating modifications to standards; assessing impacts to airport geometry; and determining whether it is necessary to engage in interagency coordination. There may be a need to coordinate with border control agencies or other Federal agencies on the impact of this application and project with respect to these agencies' equities. Other review factors can include amount and duration of the PFC; compliance with airport revenue use requirements; alternative uses; air carrier and public comments; compliance with the Airport Noise and Capacity Act of 1990 (ACNA); airport layout plan (ALP), airspace, and National Environmental Policy Act (NEPA) requirements; the schedule for project implementation; and financial viability of the project. Since many of these determinations and factors are present when a project reaches the $25 million threshold, such projects cannot be streamlined.

The FAA proposes a minor revision to the information that public agencies must submit to the FAA with a notice of intent when seeking authority to impose a PFC. Specifically, the FAA proposes to add §§ 158.25(b)(8) and 158.30(b)(3)(iv) directing public agencies to submit detailed cost information, as required by the Administrator. The FAA's policy on requesting this information from public agencies is currently outlined in PFC Update 50-06, “Detailed basis of cost information, new project certifications, and changes to the Final Agency Decision,” issued September 8, 2006.

The FAA issued PFC Update 50-06 in response to Village of Bensenville, et al. v. Federal Aviation Administration, a U.S. Court of Appeals, District of Columbia Circuit decision, that found the FAA had not adequately demonstrated that it had reviewed the cost estimates for an Environmental Impact Statement (EIS) project and that the FAA's records did not support its findings in its decision. 16 With the issuance of PFC Update 50-06, the FAA began requesting the submission of detailed cost information with PFC applications under the authority of current § 158.25(b)(18), which directs public agencies to submit “[s]uch additional information as the Administrator may require.” Attachment B to the PFC Application Form 5500-1 explicitly requires public agencies to submit cost details sufficient to identify eligible and ineligible costs if the project amount is over $10 million, as a result of the decision by the court.

The detailed cost submission requirement for small-, medium-, and large-hub airports has not changed with the availability of the notice of intent process, but this requirement will now apply to non-hub airports. Prior to the 2018 Reauthorization Act, non-hub airports obtaining PFC authority through the notice of intent process were not subject to the detailed cost submission requirements. In PFC Update 50-06, the FAA stated that most non-hub pilot program projects have either existing or planned AIP funding, and these grants involve an FAA review of the costs. Also, most non-hub pilot program projects request less than $10 million in PFC funding authority. Further, the FAA indicated the 30-day pilot program-processing period does not provide enough time for the FAA to review detailed cost estimates for multiple projects. Section 158.30(b)(7) (which expired on May 9, 2008—See footnote 1) directed public agencies to include “any additional information the Administrator may require” with a notice of intent. The FAA proposes to include this language in § 158.30(b)(7). Similarly, the FAA does not propose to change current policy that non-hub airports must provide detailed cost information when submitting an application under § 158.25 and the project amount is over $10 million.

Since the 2018 Reauthorization Act effectively eliminated any distinction between hub and non-hub notice of intent submissions, the requirement for detailed cost information now extends to non-hub airports. The FAA proposes to add a new subparagraph § 158.30(b)(3)(iv) to clearly indicate within the PFC regulations that submission of cost detail information may be required as part of a notice of intent filing, regardless of hub size. The FAA anticipates the impact of this provision on public agencies will be minimal. Since the FAA proposes to restrict the types of projects eligible for streamlined procedures, the FAA expects that very few projects would require this comprehensive review of material within the 30-day period. Further, public agencies already possess detailed cost information for proposed projects in most cases. Adding this requirement merely directs public agencies to submit such information to the FAA for consideration along with a notice of intent filing.

The proposed regulatory changes to program oversight stem from PFC Update 71-19 and a review of current policies. The proposed changes formalize the policies contained in PFC Update 71-19, improve the informal resolution process, and restructure the current layout of the oversight regulations found in part 158 to improve accessibility and program compliance.

On April 1, 2019, the FAA issued PFC Update 71-19, Oversight of Public Agency Passenger Facility Charge (PFC) Program, in response to certain recommendations from the OIG, contained in Report # AV2019015. In that report, the OIG asserted that the FAA lacked a process to ensure that independent audit reports are timely and include required information. The OIG recommended that the FAA establish specific timeframes for issuing audit reports and verify that public agencies' independent audits are performed annually.

Public agencies are required to conduct an audit of their PFC accounts at least annually in accordance with current § 158.67(c). To ensure that these audit reports are submitted in a timely manner, PFC Update 71-19 directs the FAA to request that public agencies submit annual PFC audit reports 30 calendar days after receipt of the auditor's report or 9 months after the end of the audit period. The FAA proposes to amend § 158.69 to formalize this guidance to now require public agencies to provide a copy of their annual audit to the Administrator within 30 calendar days after receipt of the audit or 9 months after the end of the audit period, whichever is less. The FAA also proposes to separate the requirements of current § 158.67(c) into four sub-paragraphs to separate four unique existing requirements. These sub-paragraphs have been renumbered as § 158.67(c)(1)-(4).

Further, the FAA is proposing two additional subparagraphs, § 158.67(c)(5)-(6) to § 158.67(c). Proposed § 158.67(c)(5) requires PFC audits to include a schedule of revenues and expenditures of the PFC account. This schedule should include the beginning balance in the PFC account on the first day of the fiscal year, PFC Collections for each quarter, PFC Interest Earned for each quarter, disbursements on projects by application for each quarter, and the PFC account closing balance. Current FAA policy concerning the submission of a PFC schedule is found in FAA Order 5500.1, Passenger Facility Charge, August 9, 2001, Paragraph 7-18.b. AUDIT, which indicates that the auditor must, as a minimum, provide opinions as well as a schedule of PFC transactions. Currently, PFC schedule guidance is included in FAA Order 5500.1. The FAA proposes to make this a requirement in the PFC regulations.

Proposed § 158.67(c)(6) requires PFC audits to be performed on an actual basis unless some form of reconciliation documentation is provided by the auditor. This proposal moves current industry practice into a regulatory requirement in order to allow for the real-time accounting of actual total collected towards the total PFC collection. This requirement will improve transparency and ensure that PFC funds are being collected accurately and are accounted for properly.

The FAA proposes to rename current subpart “E−Termination” as subpart “E−Federal Oversight of Compliance, Informal Resolution, and Termination” and move current § 158.71, which prescribes regulations for Federal oversight, into subpart E. The FAA proposes to consolidate the regulations in subparts D and E, which ensure public agency compliance with the requirements of part 158 and 49 U.S.C. 40117, into the same subpart. The FAA anticipates that consolidating the regulations in subparts D and E will improve access to public agency obligations and therefore improve compliance.

The annual PFC audit provides validation of and reconciliation between the public agency's audited financial statements and the PFC financial data in the FAA's System of Airports Reporting (SOAR) database. The FAA relies on SOAR data to evaluate whether the PFC collection period is appropriate. Some public agencies have inconsistently submitted required annual audit reports. Inaccurate or absent data impairs the FAA's oversight and ability to fulfill its statutory obligations under 49 U.S.C. 40117(d)(1) and 40117(h).

In some instances, after receiving a public agency's audit report, the FAA may decide to review the imposition and use of PFC revenue. In these cases, the public agency should provide a timely and sufficient response to any FAA inquiry. Accordingly, the FAA proposes to amend current § 158.71 by adding language indicating the Administrator may take further action including, but not limited to, informal resolution, termination, or other action, as appropriate. The FAA also proposes to re-number that section as § 158.83 and rename it “Federal oversight of compliance” to more clearly reflect the provisions.

The FAA also proposes to amend the informal resolution provisions of current § 158.83 by removing the requirement that the FAA audit, review, or both audit and review a public agency's use of PFC revenue or a public agency's collection and remittance of PFC revenue under the oversight authority of current § 158.71 before commencing an informal resolution process with a public agency. As discussed previously, the OIG found the FAA lacks a process to ensure that independent audit reports are timely and include required information. This proposal is part of a larger effort to create a compliance-oriented subpart with a clear escalation process. A compliance-oriented subpart with a clear escalation process also would enable the FAA to engage in informal resolution to address various PFC collection and use issues without the FAA having to first audit the public agency or initiate termination procedures. The FAA also proposes to re-number this section as § 158.85.

The FAA is proposing miscellaneous amendments to the PFC regulations. A discussion of these miscellaneous amendments follows.

The FAA proposes to re-organize and re-number several sections within part 158 to facilitate other amendments proposed in this rulemaking action. In instances where revised section numbers are referenced elsewhere in the PFC regulations, the FAA proposes to make corresponding administrative amendments to those references within the PFC regulations.

(a) Section 158.3—Definitions

The FAA proposes to amend the following definitions:

• Approved project. The FAA proposes to replace the reference to § 158.30 with § 158.32. This is a technical correction.

• Bond financing costs. The FAA proposes to add language to include the cost of financing other indebtedness, which is consistent with PFC Order 5500.1, Appendix 4, August 9, 2001.

• Charge effective date. The FAA proposes to insert the word “first” before the word “date” and replace the word “obliged” with the word “start collecting.” These amendments provide further detail on the FAA's expectation for the charge effective date.

• Charge expiration date. The FAA proposes to replace the phrase “cease to collect” with the phrase “stop collecting.” This is not a substantive change.

• Debt service. The FAA proposes to move the word “items” from behind the word “such” to before the word “such.” This is not a substantive change.

• Exclusive long-term lease or use agreement. The FAA proposes to add language to this definition that applies to exclusive leases of less than five years that have automatic renewal or carryover options, or to leases that have the effect of granting exclusive use rights. This proposed change is not a substantive change but has been made to align the definition with PFC assurances 5 and 6.

• Implementation of an approved project. The FAA proposes to replace the word “nonconstruction” with “non-construction.” This is not a substantive change.

• Notice of intent (to impose or use PFC revenue). The FAA proposes to amend the definition by removing the limited applicability to non-hub airports. This amendment is consistent with the 2018 Reauthorization Act. The FAA also proposes to replace the reference to § 158.30 with § 158.32. This amendment harmonizes with the re-numbering of certain sections. This is a proposed substantive change to account for program changes made by the 2018 Reauthorization Act.

The FAA proposes to shorten the title of this section by revising it from “Public agency request not to require collection of PFCs by a class of air carriers or foreign air carriers or for service to isolated communities” to “Requests for air carrier, foreign air carrier, or isolated community exclusion.”

Currently, § 158.13 is titled “Use of PFC Revenue” and § 158.18 is titled “Use of PFC revenue to pay for debt service for non-eligible projects.” Both sections pertain to the use of PFC revenue. Current § 158.13(e) provides an exception for the use of PFC revenue to pay for debt service for non-eligible projects and references current § 158.18. Rather than making this reference, for simplicity, the FAA proposes to move the language contained in § 158.18 into § 158.13(e) and delete § 158.18 entirely.

Additionally, since the last sentence of paragraph (f) pertains to auditing, the FAA proposes to move that language to the auditing requirements for approved projects combining PFC revenue and Federal grant funds within subpart D. Specifically, the FAA proposes to incorporate this language into § 158.67.

The FAA proposes two amendments to this section: (1) change the section title to remove dollar amounts, and (2) add a new paragraph (d) which contains the airside needs test language from § 158.17(a)(3). This second amendment is necessary because most of the requirements of § 158.17 were removed by the 2018 Reauthorization Act and the FAA is proposing to delete § 158.17 and move any surviving requirements to § 158.15.

As discussed in section V.A.1. of the preamble, the FAA is amending § 158.17(a)(3) to revise the airside needs requirement to align with the 2018 Reauthorization Act. The 2018 Reauthorization Act retains the airside needs requirement of 49 U.S.C. 40117(d)(4), which provides that in the case of an eligible surface transportation or terminal project, a PFC project cannot be approved at a collection level higher than $3 unless the FAA determines that the public agency has made adequate provision for financing the airside needs of the airport. 17

After removal of the funds reasonability determination and the significant contribution requirement, the only provisions of current § 158.17(a)(1) that would remain in proposed § 158.17 are those relating to the project meeting the eligibility requirements of § 158.15 and the airside needs requirements of current § 158.17(a)(3). Therefore, the FAA proposes to delete current § 158.17 and move the airside needs requirement to a new paragraph within § 158.15(d).

The FAA proposes to re-number current § 158.19 as § 158.17. This amendment reflects re-numbering changes to part 158.

(f) Section 158.20—Submission of Required Documents

The FAA proposes four amendments to this section: (1) re-number current § 158.20 as § 158.19, (2) revise paragraph (a) to allow for electronic submission of documents, (3) revise paragraph (b) because the databased referenced has been completed, and (4) move the section from subpart B to subpart A.

The FAA now has the capability of receiving documents electronically, which it did not have at the time the regulation was written. The FAA's PFC online database, System of Airports Reporting (SOAR), for collecting required reports is complete and this proposed change reflects this update. The FAA proposes to move this section to subpart A because electronic submission provisions should pertain to all documents, not just applications.

The FAA proposes to amend current § 158.21 to indicate that a public agency may either submit an application and obtain approval from the Administrator to impose a PFC and use PFC revenue or submit a notice of intent to impose a PFC and use PFC revenue. Currently this section only references PFC applications and FAA approval of PFC applications, not notices of intent and FAA acknowledgment of notices of intent.

The FAA proposes to add a new sub-paragraph, § 158.25(b)(8), directing public agencies to submit detailed cost information, as required by the Administrator. This proposed paragraph is similar to the cost detail information required by proposed § 158.30(b)(3)(iv) discussed in section IV.A.2., the rationale for which is described in that portion of the preamble.

The FAA proposes to amend § 158.37 by adding a new paragraph (b)(1) requiring the Administrator to find the public agency has complied with the Reporting, Recordkeeping and Audit requirements before approving a PFC amendment as discussed in section V.B.1. This amendment encourages public agency compliance with audit and recordkeeping requirements and supports the FAA's oversight of PFC audits. Further, this action informs public agencies of the need to submit PFC audit reports before submitting requests for amendments.

The FAA proposes moving the last sentence of paragraph (c) to new paragraph (e) without change. This proposed change separates requirements for public agencies and air carriers to ensure that requirements for each of these entities are clear and accessible.

The FAA proposes to insert “on the return” after “last two enplaning airports.” This proposed amendment change clarifies when PFCs can be collected and harmonizes with § 158.9(a).

The FAA proposes to amend paragraph (a)(2) by adding “reimbursements” to the list of information that must be included in quarterly reports. This proposed change clarifies that the public agency must report expenditures to outside entities as well as reimbursements to itself. This change is necessary so that the FAA can verify that the reimbursement is consistent with appropriate regulations, policies, and standards. It also provides the FAA with the relevant information to fulfill its recordkeeping and auditing responsibilities under 49 U.S.C. 40117(g).

The FAA proposes to change the title of this section from “Recordkeeping and auditing: Public agency” to “Accounting and auditing: Public agency.” This change supports general improvement in the FAA oversight of the PFC program by making audit requirements clearer for public agencies.

The FAA proposes to change the title of this section from “Recordkeeping and auditing: Collecting carriers” to “Accounting and auditing: Collecting carriers.” This change supports general improvement in the FAA oversight of the PFC program by making audit requirements clearer for public agencies.

The FAA proposes to re-number current § 158.85 as § 158.87. This amendment reflects re-numbering changes to part 158.

Currently the requirements for loss of Federal airport grant funds are found in § 158.87. The FAA proposes to redesignate these requirements as § 158.89. This amendment reflects re-numbering changes to part 158. Additionally, the FAA proposes to replace a reference to § 158.83with § 158.85 and also replace a reference to § 158.85 with § 158.87 within proposed § 158.89(a). These amendments also reflect re-numbering changes to part 158.

The FAA proposes to amend paragraph (c) to add the word “either” in front of the number 50 and “75 percent” after the word “or” to reflect the total reduction. These amendments use plain language for clarification and do not change the regulatory provisions.

Public agencies must comply with PFC assurances when implementing a project funded with PFC revenue. However, the assurances only reference PFC applications and FAA approval of PFC applications, not notices of intent and FAA acknowledgment of notices of intent. The FAA proposes to revise paragraphs A. 2 and A. 3 to reflect that the requirement to comply with PFC assurances also applies to notices of intent and FAA acknowledgment of notices of intent.

This section cross reference table is a re-designation listing of renumbered CFR units. This table also shows the old CFR unit numbers of former provisions along with corresponding new CFR unit numbers and current provisions. In instances where the FAA proposes to move a requirement from one section to another section, interested persons can look up the former section number for the requirement and find the new section number for that requirement. Similarly, in cases where the FAA is not proposing to change regulatory requirements within a section but proposes to re-number a section, interested persons can use the table to easily identify the new section number.

Federal agencies consider impacts of regulatory actions under a variety of Executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $177,000,000, using the most current (2021) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rulemaking.

In conducting these analyses, the FAA has determined that this rulemaking: will result in benefits that justify costs; is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866; will not have a significant economic impact on a substantial number of small entities; will not create unnecessary obstacles to the foreign commerce of the United States; and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector.

The proposed rule would amend the PFC regulations to: first, codify changes that have been self-implemented through the 2018 Reauthorization Act; second, improve PFC program oversight and administration based on the OIG report's recommendations primarily concerning reporting, recordkeeping and audit processes; and third, replace obsolete references, correct grammar or reword language for clarity, and re-organize and re-number sections of part 158.

Five major sources of airport capital development funding are (1) the AIP; (2) PFCs imposed pursuant to Federal law; (3) tax-exempt bonds; (4) state and local grants; and (5) airport operating revenue from tenant lease and other revenue-generating activities such as landing fees.

The AIP has been providing Federal grants for airport development and planning since the passage of the Airport and Airway Improvement Act of 1982 (Pub. L. 97-248). AIP funding is usually spent on projects that support aircraft operations such as runways, taxiways, aprons, noise abatement, land purchase, and safety or emergency equipment. The funds obligated for AIP are drawn from the airport and airway trust fund, which is supported by a variety of user fees and fuel taxes.

Airports use different combinations of these sources depending on the individual airport's financial situation and the type of project being considered. Smaller airports' individual grants are of much smaller dollar amounts than the grants going to large and medium hub airports. Therefore, the smaller airports are much more dependent on AIP to meet their capital needs. Larger airports are much more likely to issue tax-exempt bonds or finance capital projects with the proceeds of PFCs.

The PFC program was established in 1990 and modified in 2005 to institute a pilot program for non-hub airports to streamline the application process in order for them to access the PFC revenues more efficiently and rapidly. The streamlined application process ensures the non-hub airports' PFC applications be treated as a notice of intent with the FAA review and acknowledgment within 30 days instead of 120 days.

PFC Update 73-20 published in January 2020 gave notice that the FAA would review and acknowledge all allowed PFC applications received from small-, medium-, or large-hub airports within 30 days using streamlined procedures. This rulemaking proposes to codify this significant policy change into the FAA's part 158 regulations.

According to the National Plan of Integrated Airport Systems (NPIAS), which details the amounts and types of airport development eligible for Federal funding under the AIP over the next five years, there are nearly 3,300 public-use airports within the national airport system. The 2023-2027 NPIAS  18 published on September 30, 2022, identified 238 non-hub, 80 small-hub, 35 medium-hub and 30 large-hub airports in addition to 2,904 other public-use airports.

This proposed rulemaking would affect 145 small-, medium-, and large-hub airports. As explained in the preceding paragraphs, proposed changes do not concern either the 2,904 other airports that do not use PFC revenues or the 238 non-hub airports that are currently benefiting from the streamlined application process over the last two decades.

The FAA examined the proposed changes and identified one provision that would benefit approximately 145 small-, medium-, and large-hub airports. Specifically, these airports would continue to use the streamlined application process shortening the FAA's review and acknowledgment period to 30 days from 120 days beyond the expiration of the PFC Update 73-20. The FAA recognizes these gains in efficiency and faster service time to the affected airports. However, these benefits, which would continue to accrue to those airports, are not quantified or monetized.

The FAA has evaluated the cost impacts to the stakeholders involved in this proposed rulemaking, which includes the airports and the FAA. As discussed in the preceding preamble section, the FAA determined that the proposed changes would have no additional cost impacts to airports and the FAA.

This rulemaking proposes amendments to the PFC regulations to address statutorily mandated program changes, program oversight improvements, and minor administrative changes, such as removing or correcting obsolete references.

There are no legally supportable regulatory alternatives to implementing the statutory requirements for the proposed changes. The alternative to rulemaking would be to leave the existing system of orders, guidance, and policy documents in place. However, this is untenable long-term as decentralized program requirements hinder the FAA's ability to ensure compliance and transparency.

The Regulatory Flexibility Act (RFA) of 1980  19 , as amended by the Small Business Regulatory Enforcement Fairness Act of 1996  20 and the Small Business Jobs Act of 2010  21 , requires Federal agencies to consider the effects of the regulatory action on small businesses and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and 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 FAA identified 145 airports that are owned and operated by both small and non-small entities. In order to estimate the number of small entities, the FAA used the Table of Size Standards  22 issued by the Small Business Administration (SBA) for the North American Industry Classification System (NAICS) and found two NAICS codes that these airports would fall under: 488111 (Air Traffic Control) and 488119 (Other Airport Operations). SBA's size standards generally define small businesses based on the number of employees or annual receipts. For these two NAICS codes, the size standard is established as $35 million ( i.e., entities with annual receipts under $35 million are qualified as small businesses).

Using the U.S. Census data for 488111 and 488119 NAICS codes, 23 the FAA estimated that, with the exception of 13 airports reporting over $35 million annual revenue, the remaining 132 airports are classified as small entities.

The FAA did not identify any economic impacts on small entities that would be affected by the proposed rule. Therefore, the FAA proposes to certify that the rule will not have a significant economic impact on a substantial number of small entities. The FAA welcomes comments on the basis for this certification.

The Trade Agreements Act of 1979, 24 as amended by the Uruguay Round Agreements Act, 25 prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the effect of this proposed rule and determined that its purpose is to ensure the safety of U.S. civil aviation. Therefore, this proposed rule is in compliance with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995  26 requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $177 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995  27 requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act  28 , an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

The FAA has determined that there would be no new information collection associated with this proposed rulemaking. The Office of Management and Budget (OMB) previously approved the FAA to collect such information under the provisions of the Paperwork Reduction Act of 1995  29 via OMB Control Number 2120-0557.

On November 22, 2021, OMB approved a revision of the FAA's previously approved information collection. That revision reflected changes in the estimated burden resulting from the 2018 Reauthorization Act and the FAA's implementation of PFC Update 73-20. While this rulemaking proposes to codify these changes into the regulations, there are no new information collection actions resulting directly from this rulemaking action.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these proposed regulations.

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

The FAA has analyzed this proposed rule under the principles and criteria of Executive Order (E.O.) 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.

Consistent with Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, 30 and FAA Order 1210.20, American Indian and Alaska Native Tribal Consultation Policy and Procedures, 31 the FAA ensures that Federally Recognized Tribes (Tribes) are given the opportunity to provide meaningful and timely input regarding proposed Federal actions that have the potential to affect uniquely or significantly their respective Tribes. At this point, the FAA has not identified any unique or significant effects, environmental or otherwise, on tribes resulting from this proposed rule.

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

Executive Order 13609, “Promoting International Regulatory Cooperation,” promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609 and has determined that this action would have no effect on international regulatory cooperation.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.

Confidential Business Information: Confidential Business Information (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), 32 CBI is exempt from public disclosure. If your comments responsive to this NPRM 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 NPRM, 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 NPRM. Submissions containing CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

An electronic copy of rulemaking documents may be obtained from the internet by—

1. Searching the Federal eRulemaking Portal at www.regulations.gov;

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

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

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Commenters must identify the docket or notice number of this rulemaking.

All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the internet through the Federal eRulemaking Portal.

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 158 as follows:

The revisions and addition read as follows:

The revisions and addition read as follows:

The revisions and additions read as follows:

A. * * *

2. These assurances are required to be submitted as part of the application for approval or acknowledgment of authority to impose a PFC under the provisions of 49 U.S.C. 40117.

3. Upon approval of an application or acknowledgment of a notice of intent by the Administrator, the public agency is responsible for compliance with these assurances.

B. * * *

5. Non-exclusivity of contractual agreements. It will not enter into an exclusive long-term lease or use agreement with an air carrier or foreign air carrier for projects funded by PFC revenue. Such leases or use agreements will not preclude the public agency from funding, developing, or assigning new capacity at the airport with PFC revenue.

Participation in virtual public hearing. To request a virtual public hearing, contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. If requested, the hearing will be held via virtual platform on October 12, 2023. The hearing will convene at 10:00 a.m. Eastern Time (ET) and will conclude at 4:00 p.m. ET. The EPA may close a session 15 minutes after the last pre-registered speaker has testified if there are no additional speakers. The EPA will announce further details at https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112 or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov. The last day to pre-register to speak at the hearing will be October 10, 2023. Prior to the hearing, the EPA will post a general agenda that will list pre-registered speakers at: https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112.

The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.

Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to topham.nathan@epa.gov. The EPA also recommends submitting the text of your oral testimony as written comments to the rulemaking docket.

The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.

Please note that any updates made to any aspect of the hearing will be posted online at https://www.epa.gov/stationary-sources-air-pollution / reclassification-major-sources-area-sources-under-section-112. While the EPA expects the hearing to go forward as set forth above, please monitor our website or contact the public hearing team at (888) 372-8699 or by email at SPPDpublichearing@epa.gov to determine if there are any updates. The EPA does not intend to publish a document in the Federal Register announcing updates.

If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by October 4, 2023. The EPA may not be able to arrange accommodations without advanced notice.

Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2023-0330. All documents in the docket are listed in https://www.regulations.gov/. Although listed, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy. With the exception of such material, publicly available docket materials are available electronically in Regulations.gov .

Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2023-0330. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at https://www.regulations.gov/, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit electronically to https://www.regulations.gov/ any information that you consider to be CBI or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed below.

The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the Web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

The https://www.regulations.gov/ website allows you to submit your comment anonymously, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through https://www.regulations.gov/, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any digital storage media you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at https://www.epa.gov/dockets.

Submitting CBI. Do not submit information containing CBI to the EPA through https://www.regulations.gov/. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on any digital storage media that you mail to the EPA, note the docket ID, mark the outside of the digital storage media as CBI, and identify electronically within the digital storage media the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI directly to the public docket through the procedures outlined in Instructions above. If you submit any digital storage media that does not contain CBI, mark the outside of the digital storage media clearly that it does not contain CBI and note the docket ID. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2.

Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services ( e.g., Dropbox, OneDrive, Google Drive). Electronic submissions must be transmitted directly to the OAQPS CBI Office at the email address oaqpscbi@epa.gov, and as described above, should include clear CBI markings and note the docket ID. If assistance is needed with submitting large electronic files that exceed the file size limit for email attachments, and if you do not have your own file sharing service, please email oaqpscbi@epa.gov to request a file transfer link. If sending CBI information through the postal service, please send it to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0330. The mailed CBI material should be double wrapped and clearly marked. Any CBI markings should not show through the outer envelope.

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

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

Categories and entities potentially impacted by this rule include major sources of HAP that choose to take limitations to restrict their potential to emit in order to reclassify from a major source of HAP to an area source of HAP pursuant to the requirements in 40 CFR part 63, subpart A, implementing section 112 of the CAA. This rule also would impact those sources that have reclassified since January 25, 2018.

Federal, state, local, and tribal governments may be affected by the proposed amendments, once promulgated, if their current programs do not meet the requirements, and those jurisdictions choose to create potential to emit (PTE) limiting mechanisms that allow sources located within their jurisdiction to reclassify from major to area source status under the NESHAP program. Section 112(l) of the CAA allows for delegation of the implementation and enforcement of NESHAPs to state and local air pollution control agencies and 40 CFR part 63, subpart E contains the regulatory framework for such delegations. Per 40 CFR 63.90(e), programs approved under 40 CFR part 63, subpart E are federally enforceable by the Administrator and citizens under the CAA. 1 Subpart E describes the types of delegations, including straight delegations of NESHAPs (delegation of individual NESHAPs without change), rule adjustment (delegation of individual NESHAPs with changes), rule substitution (delegation of individual NESHAPs through use of a state/local/tribal rule in place of the NESHAP), equivalence by permit (alternative requirements and authorities that take the form of permit terms and conditions for individual facilities instead of source category regulations), and approval of programs that substitute for CAA section 112 requirements (intended for mature air toxics programs with many regulations affecting source categories regulated by Federal section 112 standards). Subpart E describes the necessary components for programs, timing of review and approval by the EPA, and approval or disapproval process for such programs. If federally enforceable HAP PTE limiting mechanisms do not exist in a state, that state can choose to submit mechanisms according to one of the processes provided in 40 CFR part 63, subpart E. In short, this process involves a state submitting authorities to the EPA for review and approval to use in lieu of CAA section 112 requirements. While the specific steps involved in this process depend on the type of HAP PTE limiting mechanism under consideration ( e.g., the process for a straight delegation is simpler than the state program approval process), the end result is a federally enforceable mechanism that has been reviewed and approved by the EPA. We are seeking comment on the potential burdens on states and regulated facilities related to the use of 40 CFR part 63, subpart E by states for mechanisms to allow sources to reclassify from major sources to area sources. We are also seeking comment on the time needed should a state choose to submit programs for EPA review and approval under subpart E in order to allow for sources to reclassify from major sources to area sources where no such federally enforceable programs currently exist. This proposal does not require any changes or seek to alter in any way existing state-only enforceable PTE limiting mechanisms that are not used for sources reclassifying from major sources of HAP to area sources of HAP.

The EPA is the permitting authority for issuing, rescinding, and amending permits for sources in Indian country, with four exceptions. 2 Once promulgated, state, local, or tribal regulatory authorities  3 may receive requests to issue new permits or make changes to existing permits for sources in their jurisdiction to address the amended requirements.

In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112. Following publication in the Federal Register , the EPA will post the Federal Register version of the proposal and key technical documents at this same website.

A memorandum showing the rule edits that would be necessary to incorporate the changes to 40 CFR part 63, subpart A proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2023-0330). The EPA also will post a copy of this document to https://www.epa.gov/stationary-sources-air-pollution/reclassification-major-sources-area-sources-under-section-112.

The statutory authority for this action is provided by section 112 of the CAA, as amended (42 U.S.C. 7401 et seq. ). Section 112 of the CAA requires the EPA to establish emissions standards for “major sources” and “area sources” of HAP to control and reduce their emissions. Section 112(a)(1) defines major source, in relevant part, as “any stationary source or group of stationary sources located within a contiguous area and under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants”; and 112(a)(2) defines area source, in relevant part, as “any stationary source of hazardous air pollutants that is not a major source.” 42 U.S.C. 7412(a)(1) and (2).

For major sources, section 112 establishes a two-stage regulatory process to develop standards to control HAP emissions. The first stage requires the EPA to establish technology-based standards based on the maximum achievable control technology (MACT). In this stage the EPA must establish minimum standards based on best performing units in a source category, referred to as the MACT floor, and evaluate whether additional emission reductions are achievable based on the EPA's consideration the cost of achieving such emission reduction, and any non-air quality health and environmental impacts and energy requirements, referred to as the beyond-the-floor analysis. The second stage requires the EPA to evaluate residual risk from HAP after implementation of the initial standards to determine whether promulgation of additional standards is needed to provide an ample margin of safety to protect public health or to prevent an adverse environmental effect, referred to as the residual risk review; and requires the EPA to evaluate developments in practices, processes, and control technologies to determine if more stringent standards are necessary, referred to as the technology review. Pursuant to CAA section 112(f)(2), the EPA is required to perform residual risk reviews within 8 years of promulgating initial standards; and pursuant to section 112(d)(6), the EPA is required to perform the technology review no less often than every 8 years.

For area sources, the EPA may elect to promulgate alternative standards than those established for major sources that provide for the use of generally available control technologies (GACT) or management practices to reduce HAP emissions. Unlike MACT standards required for major sources, GACT standards are not required to be updated pursuant to residual risk reviews and unlike the MACT “floor” process, GACT standards may consider costs when establishing the level of the standard.

The potential to emit (PTE) is key to the distinction between major and area sources. PTE refers to the maximum capacity of a stationary source to emit a pollutant under its physical and operational design and is used to determine whether a source qualifies as a major or area source. In 1994, the EPA promulgated the definition of PTE in the General Provisions of the NESHAP at 40 CFR 63.2, which defined PTE in terms based on the major source definition in section 112(a)(1) of the CAA. 4 As promulgated in 1994, the PTE definition states that PTE “means the maximum capacity of a stationary source to emit a pollutant under its physical and operational design. Any physical or operational limitation on the capacity of the stationary source to emit a pollutant, including air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed, shall be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable.” Under this definition, and consistent with section 112(a)(1), sources that would otherwise qualify as major sources are able to obtain enforceable permit limitations from the EPA or delegated authority containing physical or operational limits to bring their emission below the major source threshold, referred to as synthetic minor sources.

In National Mining Association (NMA) v. EPA, 59 F.3d 1351 (D.C. Cir. 1995), the D.C. Cir. remanded without vacatur the 40 CFR 63.2 definition to the EPA to justify the requirement that physical or operational limits on the capacity to emit a pollutant be “federally enforceable,” i.e., whether limits needed to be enforceable by the EPA and citizen groups under the CAA or other federal statutes. The NMA decision confirmed that the EPA has an obligation to ensure that limits considered in determining a source's PTE are effective, but it stated that the Agency had not adequately explained how “federal enforceability” furthered effectiveness. 59 F.3d at 1363-1365. 5

After the NMA decision, the EPA extended a pre-existing transitional policy allowing the use of non-federally enforceable limits ( e.g., state-only enforceable limits) for limiting PTE provided those limits are legally enforceable and practicably enforceable. 6 Legal enforceability means that the reviewing authority has the right to enforce a limit or restriction. As the EPA explained in the transitional policy, practicably enforceable means that limitations and restrictions must be of sufficient quality and quantity to ensure accountability, and specifically, for a permit provision to be practicable enforceable it must specify “(1) a technically-accurate limitation and the portions of the source subject to the limitation; (2) the time period for the limitation (hourly, daily, monthly, annually); and (3) the method to determine compliance including appropriate monitoring, recordkeeping and reporting.”  7

On March 23, 2001, the EPA added recordkeeping requirements for applicability determinations for sources with a maximum capacity to emit HAP in amounts greater than major source thresholds but with PTE limits to avoid applicability of a standard. 8 At that time, the EPA also confirmed that until the rules are clarified to address various PTE issues, consistent with the NMA Court decision, any determination of HAP PTE under 40 CFR 63.2 should consider the regulations and also take into consideration the EPA transition policy guidance memoranda. 66 FR 16342 (March 23, 2001).

On November 19, 2020, the EPA issue a final rule titled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act,” 85 FR 73854 (referred to here as the 2020 MM2A final rule), in which the EPA made an interim ministerial revision to the definition of “potential to emit” in 40 CFR 63.2, which is discussed further in section II.C.1. of this preamble. See 85 FR 73875 (November 19, 2020). Specifically, the Agency removed the word “federally” from the phrase “federally enforceable” that was in the 40 CFR 63.2 definition of “potential to emit.”

Shortly after the EPA began promulgating individual NESHAP standards following the 1990 CAA Amendments, the Agency received multiple requests to clarify when a major source of HAP could avoid CAA section 112 requirements applicable to major sources by taking enforceable limits on its PTE below the major source thresholds. In response, the EPA issued a 1995 a memorandum  9 that provided guidance on three timing issues related to avoidance of CAA section 112 requirements for major sources:

• “By what date must a facility limit its PTE if it wishes to avoid major source requirements of a MACT standard?”

• “Is a facility that is required to comply with a MACT standard permanently subject to that standard?”

• “In the case of facilities with two or more sources in different source categories: If such a facility is a major source for purposes of one MACT standard, is the facility necessarily a major source for purposes of subsequently promulgated MACT standards?”

In the 1995 Seitz Memorandum, the EPA stated our interpretation of the relevant statutory language that facilities that are major sources of HAP may switch to area source status at any time until the “first compliance date” of the standard. 10 Under this interpretation, facilities that are major sources on the first substantive compliance date of an applicable major source NESHAP were required to comply permanently with that major source standard even if the source was subsequently to become an area source by limiting its PTE. This position was commonly referred to as the “Once In, Always In” (OIAI) policy. The 1995 Seitz Memorandum provided that a source that is major for one MACT standard would not be considered major for a subsequent MACT standard if the source's potential to emit HAP emissions was reduced to below major source levels by complying with the first major source MACT standard. In the 1995 Seitz Memorandum, the EPA set forth transitional policy guidance that was intended to remain in effect only until the Agency proposed and promulgated amendments to the 40 CFR part 63 General Provisions.

The expressed basis for the OIAI policy was that it would help ensure that required reductions in HAP emissions were maintained over time in a way that was consistent with the language and structure of the statute, and would avoid compromising the emissions reductions that Congress mandated major source to achieve. 11 The EPA explained at the time that because the CAA did not directly address a deadline for a source to avoid requirements applicable to major sources through a reduction of potential to emit, the EPA viewed the OIAI policy as consistent with “the language and structure of the Act . . . that sources should not be allowed to avoid compliance with a standard after the compliance date, even through a reduction in potential to emit.”  12

Since issuing the OIAI policy, the EPA has twice proposed regulatory amendments that would have altered the OIAI policy. In 2003, the EPA proposed amendments that focused on HAP emissions reductions resulting from pollution prevention activities but did not finalize the proposed changes relevant to the OIAI policy. See 68 FR 26249 (May 15, 2003); 69 FR 21737 (April 22, 2004).

In 2007, the EPA proposed to replace the OIAI policy set forth in the 1995 Seitz Memorandum. 72 FR 69 (January 3, 2007). In that proposal, the EPA proposed that a major source that is subject to a major source MACT standard would no longer be subject to that standard if the source were to become an area source through an enforceable limitation on its PTE for HAP. Under the 2007 proposal, major sources could take such limits on their PTE and obtain “area source” status at any time and would not be required to have done so before the “first compliance date,” as the OIAI policy provided. Id. at 70 (“The regulatory amendments proposed today, if finalized, would replace the 1995 OIAI policy and allow a major source of HAP emissions to become an area source at any time by limiting its PTE for HAP below the major source thresholds.”).

Many commenters supporting the 2007 proposal expressed the view that, by imposing an artificial time limit on major sources obtaining area source status, the OIAI policy created a disincentive for sources to implement voluntary pollution abatement and prevention efforts, or to pursue technological innovations that would reduce HAP emissions further. Stakeholders commented to the EPA that the definitions in CAA section 112(a) contain a single factor for distinguishing between major source and area source—the amount of HAP the source “emits” or “has the potential to emit.” Commenters further stated that the temporal limitation imposed by the OIAI policy was inconsistent with the CAA and created an arbitrary date by which sources must determine whether their HAP PTE will exceed either of the major source thresholds. Other commenters opposed the 2007 proposal, arguing that it would contravene Congress's intent in developing section 112 of the CAA, lead to backsliding in performance of pollution controls and resulting health protections from sources no longer subject to MACT standards, and lacked sufficient rationale to justify overturning long-standing EPA policy regarding major and area sources. The EPA never took final action on the 2007 proposal, and it was later superseded and replaced. Comments on the lack of a temporal distinction in defining major sources and area sources were re-emphasized in comments received per Executive Order 13777, Enforcing the Regulatory Reform Agenda (February 24, 2017), and the Presidential Memorandum on Streamlining Permitting and Reducing Regulatory Burdens for Domestic Manufacturing (January 24, 2017).

On January 25, 2018, the EPA issued a memorandum from William L. Wehrum, Assistant Administrator of the Office of Air and Radiation, to the EPA Regional Air Division Directors titled “Reclassification of Major Sources as Area Sources Under Section 112 of the Clean Air Act” (MM2A Memorandum) withdrawing the OIAI policy. 13 The MM2A Memorandum discussed the statutory provisions that govern when a major source subject to major source NESHAP requirements under section 112 of the CAA may be reclassified as an area source, and thereby avoid being subject thereafter to major source NESHAP requirements and other requirements applicable to major sources under CAA section 112. In the MM2A Memorandum, the EPA discussed the language of CAA section 112(a) regarding Congress's definitions of “major source” and “area source,” and determined that the OIAI policy articulated in the 1995 Seitz Memorandum was contrary to the plain language of the CAA and, therefore, must be withdrawn.

In the MM2A Memorandum, the EPA announced the future publication of a proposed rule to receive input from the public on adding regulatory text consistent with the reading of the statute as described in the MM2A Memorandum. On July 26, 2019, the EPA proposed regulatory text to implement the reading of the statute as discussed in the MM2A Memorandum. 14 The 2019 proposal superseded and replaced the 2007 proposal. 15

The 2019 MM2A proposal also addressed questions received after the issuance of the 2018 MM2A Memorandum. In the comments on the 2007 and 2019 proposals, many stakeholders asserted that the implementation of this reading and withdrawal of the OIAI policy would create incentives for stationary sources that have reduced HAP emissions to below major source thresholds to reclassify to area source status by taking enforceable PTE limits and reduce their compliance burden. These stakeholders also stated that sources with emissions above major source thresholds after complying with CAA section 112 major source requirements could be encouraged to evaluate their operations and consider additional changes that can further reduce their HAP emissions to below the major source thresholds. Other stakeholders raised the concern that allowing sources to reclassify could potentially result in emission increases from sources that have reduced their actual emissions to below the major source thresholds because they have had to comply with major source NESHAP requirements. Some stakeholders contended that federal safeguards ( i.e., conditions on reclassification requiring that sources limit emissions to at least the level of control achieved under the major source NESHAP) were required to ensure that the emissions did not increase from sources that reclassified. They noted that some states cannot implement air pollution control requirements that are not derived from Federal regulations, while other stakeholders asserted that only those major sources that had reduced emissions through pollution prevention or removal of equipment should be allowed to reclassify.

Other stakeholders, generally opposed to requiring safeguards, questioned the legal basis for establishing safeguards that would restrict emissions from area sources. These stakeholders stated that the EPA holds no regulatory authority to prohibit or regulate emissions increases from area sources unless EPA lists these area sources under CAA section 112 and then develops standards, or if area sources exceed the major source threshold. They stated that CAA section 112 contains no restrictions on the gross quantity of emissions emitted from any major or area sources, nor does it outright prohibit stationary sources from undertaking activities that increase emissions.

In the 2019 proposal, the EPA proposed specific criteria that PTE limits must meet for these limits to be effective. The EPA also proposed to amend the definition of “potential to emit” in 40 CFR 63.2 by removing the requirement for federally enforceable limits and requiring instead that limits meet the effectiveness criteria of being both legally enforceable and practicably enforceable. The EPA also proposed to amend 40 CFR 63.2 to include the definitions of “legally enforceable” and “practicably enforceable” described in the MM2A proposal. The EPA then took comment on the effectiveness criteria and the proposed amendments to 40 CFR 63.2.

The EPA received significant comments from many stakeholders on the proposed effectiveness criteria and proposed amendments to 40 CFR 63.2. One of the main concerns raised by stakeholders in their comments was the interactions and effects of the proposed amendments with other CAA programs, including Prevention of Significant Deterioration (PSD), New Source Review (NSR), State Implementation Plan (SIP), and title V operating permits, and the impacts of the proposed amendments to existing state, local, and tribal agency rules.

The EPA published the 2020 MM2A final rule (85 FR 73854) on November 19, 2020, which formalized the withdraw of the OIAI policy first introduced in the 2018 MM2A Memorandum. The EPA did not take final action on the proposed amendments to 40 CFR 63.2 as it was still considering the comments received on the proposed effectiveness criteria and proposed amendments to 40 CFR 63.2. In the final MM2A rule, the EPA expressed its intention to take action on this aspect of the MM2A proposal in a separate action at a later date. However, as part of the final MM2A rule, the EPA made an interim ministerial revision to the definition of “potential to emit” in 40 CFR 63.2. Specifically, the Agency removed the word “federally” from the phrase “federally enforceable” that was in the 40 CFR 63.2 definition of “potential to emit.”

The EPA explained that this interim ministerial revision was not the EPA's final decision and should not be read to suggest that the EPA was leaning towards or away from any particular final action on this aspect of the MM2A proposal. The revision was an interim revision to cover the period of time while the EPA continued to consider the comments on this aspect of the MM2A proposal and until the Agency takes final action with respect to the proposed effectiveness criteria and proposed amendments to 40 CFR 63.2. The EPA asserted that this revision was ministerial because it merely reflected the NMA decision, which held that the EPA had not explained why a PTE limit had to be “federally enforceable” to be considered as the basis for reclassifying a major source to area source status. See NMA v. EPA, 59 F.3d at 1363-1365. 16 So, for the reasons explained in the final MM2A rule preamble, the revision to the PTE definition did not represent a final decision by the EPA.

Further, the interim ministerial revision did not alter any rights or legal consequences and simply preserved the status quo that has been in effect since the late 1990s. The EPA expressly said that the interim ministerial revision did not change how the EPA applies the transitional policy that the Agency has been following since 1995. This transitional policy allows for any physical or operational limitation on the capacity of the stationary source to emit a pollutant (such as air pollution control equipment and restrictions on hours of operation or on the type or amount of material combusted, stored, or processed) to be treated as part of its design if the limitation or the effect it would have on emissions is federally enforceable or legally enforceable by a state or local permitting authority and practicably enforceable. The final MM2A rule became effective on January 19, 2021.

A significant concern raised during the 2020 MM2A rulemaking is that under the current MM2A framework, sources with adjustable controls can obtain PTE limits just below the major source thresholds to reclassify from major source status to area source status and reduce their control efficiency to reduce operational costs, and subsequently increase emissions, in a manner that would not have been allowed under the major source NESHAP. This possibility stems from the differences in stringency in major source rules compared to area source rules for the same source category. In short, major source NESHAPs require MACT standards that reduce emissions from all major sources in a category to the levels achieved by the best performers. In contrast, NESHAP standards for area sources allow for the use of GACT standards that often require less control of HAP than the corresponding MACT standards for major sources. In addition, GACT standards typically apply to a select group of HAP, known as urban HAP, rather than all listed HAP. Finally, unlike the residual risk requirements for sources subject to MACT standards, there is no requirement for the EPA to evaluate the public health risk that remains after implementation of GACT standards. These differences are most concerning for major source categories for which the area source NESHAP applies to fewer emission points and regulates fewer HAP than the major source rule or for which there is no NESHAP applicable to area sources at all. The current MM2A framework does not provide clear requirements for sources reclassifying in a source category with less stringent or no requirements for area sources, creating inconsistencies between sources in a given category based on their decision to reclassify or not, between sources across source categories based on the existence and stringency of area source NESHAPs, and between sources based on the robustness of the state or local regulations in the area where they are located.

On January 20, 2021, President Biden issued Executive Order 13990 Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. This E.O. called for the EPA to review actions taken during the prior four years and, as appropriate, consider suspending, revising, or rescinding actions that did not align with the Administration's policy to listen to the science; to improve public health and protect our environment; to ensure access to clean air and water; to limit exposure to dangerous chemicals and pesticides; to hold polluters accountable, including those who disproportionately harm communities of color and low-income communities; to reduce greenhouse gas emissions; to bolster resilience to the impacts of climate change; to restore and expand our national treasures and monuments; and to prioritize both environmental justice and the creation of the well-paying union jobs necessary to deliver on these goals.

In this action the EPA is proposing to update electronic reporting requirements for sources that reclassify from major to area sources, and to add requirements for sources to reclassify from major source to area source status to improve the effectiveness of PTE limits for these sources. Specifically, the EPA proposes to require safeguards to ensure that reclassified sources cannot increase their emissions as a result of reclassification, and to require PTE limits for reclassified sources be federally enforceable ( i.e., enforceable by the EPA and citizens under the CAA or other federal statute). The EPA is proposing these additional criteria for reclassified sources, because of the EPA's particular concern with this subset of sources which may be able to increase emissions as a result of reclassification.

To provide information to the EPA and the public, 40 CFR 63.9(b) requires sources to notify the EPA when a source becomes subject to a relevant standard and 40 CFR 63.9(j) requires sources to notify the Administrator when there is a change in the information previously submitted to the EPA. The notification requirements of 40 CFR 63.9(j) apply to those sources that reclassify from major source to area source status under CAA section 112 ( e.g., by taking production or operation limits to reduce a source's HAP emissions below the applicability threshold). Sources that reclassify are currently required to notify the EPA within 15 days after reclassification. The required notification must include information on the standard the source was reclassifying from and to (if applicable), along with the effective date of the reclassification. To ensure the availability of this information, the EPA requires electronic submission of such notifications. Sources that reclassify to area source status by taking limits to reduce HAP emissions are also currently required under 40 CFR 63.10 to keep records of applicability determinations on-site. We are clarifying that reclassifications that occur after the effective date of this action will be effective upon the date of electronic submittal of the notification to the EPA. This clarification will ensure that sources submit the required notification to the EPA when reclassification occurs. We have become aware of some sources that have reclassified and the required reclassification has not been submitted through CEDRI. In order to prevent this from continuing, we have determined that reclassifications will not be considered effective until notification has been submitted to the EPA. Sources that have already reclassified or reclassify prior to the effective date of this action and have not submitted the required electronic notification must submit electronic notification of reclassification to the EPA within six months of the effective date of this action. Reclassified sources that have already submitted electronic notification to the EPA do not need to resubmit the notification. The EPA expects these notification and recordkeeping requirements under 40 CFR part 63 will assist the EPA in its oversight role under the CAA and be of minimal burden to the regulated community.

Additionally, we are proposing to clarify the original intent of the language in 40 CFR 63.9(j) allowing the use of the application for reclassification to fulfill the requirements of notification to more clearly indicate that it must be submitted to the Compliance and Emissions Data Reporting Interface (CEDRI) and contain the information required in 40 CFR 63.9(j)(1) through (4). We are also proposing to update the procedures for submittal of confidential business information to include electronic submittal procedures.

In this proposal, the EPA is revisiting the sufficiency of restrictions on PTE relied upon for reclassification, i.e., what a source must do to be able to reclassify. The EPA proposes to require (1) additional criteria that a PTE limit must meet before it can serve as the basis for reclassification from major to area for CAA section 112 purposes and (2) federal enforceability of permit limits that are taken by sources to reclassify from major to area source status. The proposed additional criteria for PTE (referred to here as “safeguards”) would require a determination that a source reclassifying from major to area source status will not emit beyond what would have been allowed had the source maintained major source status. Federal enforceability would ensure that the EPA and citizens are able to enforce those permit limits taken to reclassify in federal court under the Clean Air Act or other statutes administered by the EPA. In proposing these changes, the EPA seeks to ensure that the opportunity for sources to reclassify from major to area for purposes of CAA section 112 does not undermine the emissions reductions intended by that program.

Hazardous air pollutants pose public health risks at levels well below the major source thresholds (10/25 TPY), at times in very small quantities. Congress understood this fact in enacting CAA section 112 by directing the EPA to further reduce or eliminate HAP emissions where possible. 17 Further, the EPA shares the concerns raised by commenters on the MM2A rulemaking that sources with adjustable controls that can reclassify by reducing emissions just below the major source threshold could subsequently increase emissions under less stringent, or nonexistent, area source regulations for a given source category. For example, if a major source standard had the effect of reducing emissions of a certain pollutant to 1 ton per year but there is no corresponding area source standard for the same source category, then a source could take a PTE limit of 9.9 tons per year of a single HAP or 24.9 tons per year of combined HAP emissions, thus increasing its emissions, and reclassify under the 2020 MM2A final rule. Indeed, every source in this hypothetical source category could do the same. In order to protect the public from the health risks of HAPs, and based on Congress' intent to reduce harmful HAP emissions and regulate to the maximum extent achievable, the EPA proposes enhanced oversight, compliance assurance, and that national consistency be required for the reclassified sources via safeguards and federal enforceability of restrictions or limitations taken to otherwise avoid applicable requirements as a major source of HAPs under Part 63 to ensure such concerning scenarios do not occur.

In prior rulemakings and guidance, the EPA has discussed the timing of when a source can reclassify from major to area source. Most recently in the 2020 MM2A rule, the EPA adopted the position that the lack of a temporal limitation on whether a source qualifies as a major source under CAA section 112(a)(1) refuted the EPA's earlier OIAI policy. The EPA does not propose to reopen that conclusion here. However, as the EPA discussed in the 2019 proposal to the MM2A rule, in addition to the timing of reclassification there is a separate question as to the sufficiency of the PTE limit taken to reclassify.

The sufficiency of limitations on PTE taken to reclassify from major to area source status is governed by the definitions of “major source” and “area source” in CAA section 112(a)(1) and (2). Major sources are defined, in relevant part, as sources that can emit or have the potential to emit “considering controls,” 10 tons per year or more of any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. Area sources are in turn defined as any stationary source of hazardous air pollutants that is not a major source. Therefore, in determining what qualifies as an area source the EPA must consider the major source definition and how to “consider controls” the facility would rely upon to justify its status as an area source. The EPA proposes the most appropriate interpretation of “considering controls” is one that, on the one hand, does not undermine the purposes of CAA section 112 by allowing sources to potentially increase HAP emissions while on the other hand also recognizes that the statute does not place an absolute time limit on the opportunity to reclassify. The former concern was first articulated in the 1995 OIAI policy, the latter in the 2018 MM2A policy and subsequent rulemaking.

Today's proposal seeks to reconcile these objectives by recognizing that a facility subject to a MACT standard may reclassify at any time, while requiring a determination by the state or local permitting authority that doing so will not undermine the emissions reductions entailed by the MACT standard, and further ensuring limits taken to reclassify are effective by allowing for federal and citizen enforcement. The EPA proposes the best interpretation of the term “considering controls” in the definition of “major source” in CAA section 112 allows for this reconciliation. Specifically, the EPA is proposing that for a facility seeking to reclassify from major to area source status for purposes of a particular MACT standard, the “controls” that are determinative are those that are proven to be at least as effective at reducing emissions as the MACT standard to which the facility has been subject, and which are subject to federal enforcement as defined in 40 CFR 63.2.

This interpretation of CAA section 112(a)(1) is consistent with the D.C. Circuit decision NMA v. EPA, which recognized the word “controls” commonly refers to governmental restrictions but is ambiguous as used in the major source definition. 59 F.3d 1351, 1362 (D.C. Cir. 1995) (“It is common ground that Congress meant the word `controls' to refer to governmental regulations and not, for instance, operational restrictions that an owner might voluntarily adopt. (We note, however, that the word could be read that broadly, which certainly supports the government's position that the term is not clear on its face.)”). Accordingly, in assessing a reclassified source, the EPA would determine whether safeguards and the enforceability of limits taken to reclassify, or governmental restrictions, are sufficient for the source to no longer qualify as a major source.

In considering the term “controls,” the NMA court settled on the touchstone of “effectiveness,” faulting the EPA for not adequately explaining the relationship of federal enforceability to that core criterion. The Court explained that the EPA was “not obliged to take into account controls that are only chimeras and do not really restrain an operator from emitting pollution[,]” 59 F.3d at 1362, but that the EPA's determination of what constitutes appropriate “controls” should be tied to how well a limit actually restrains a facility's operations in accordance with CAA section 112. Today's proposal is based on this concept of “effectiveness,” and specifically on the reasoning that a limit taken to avoid a MACT standard to which a facility is already subject to cannot be considered an “effective” control if it results in the facility emitting more than it would have under the MACT standard. The EPA is also proposing that the enhanced effectiveness brought about by federal enforceability justifies the requirement that limits taken to avoid a MACT standard be federally enforceable. That is, the EPA is bolstering the effectiveness of PTE limits for reclassified sources by requiring sources to maintain historical emission reductions, and increasing the scope of enforcement to ensure PTE limits are met. The proposal thus employs the concept of “effectiveness” to avoid eroding the purposes of the Act, while recognizing the flexibility the EPA continues to believe exists for facilities to reclassify from major to area status for purposes of a MACT standard.

Today's proposal is also consistent with the purpose of the CAA in general and CAA section 112, in particular. The CAA is intended “to protect and enhance the quality of the Nation's air resources so as to promote the public health and welfare and the productive capacity of its population.” CAA section 101(b)(1). CAA section 112 was revised with the 1990 Clean Air Act Amendments after Congress was frustrated with the EPA's slow pace of regulation for sources of hazardous air pollutants, which Congress recognized as a serious public health concern. 18 In enacting CAA section 112, Congress set a broad statutory purpose to reduce the volume of HAP emissions with the goal of reducing the risk from HAP emissions to a level that is protective of even the most exposed and most sensitive subpopulations. 19 Congress therefore established a program for major and area sources that would lead to continued reductions of HAP by requiring the EPA to set technology-based MACT standards pursuant to CAA section 112(d)(2) and (3), to perform risk reviews under CAA section 112(f)(2) and to update MACT standards where they fail to provide an ample margin of safety, and to perform technology reviews pursuant to CAA section 112(d)(6) to review and update, as necessary, MACT and GACT standards based on new developments in pollution control technology. Relatedly, CAA section 112(c)(6) required the EPA to identify and ensure emissions standards were in place for source categories that emit specific, particularly harmful HAP, and which were not initially covered following promulgation of the 1990 Clean Air Act Amendments. The structure of CAA section 112 thus includes specific points at which progress towards public health goals are to be assessed. These assessments depend in no small part on the extent to which major sources of HAP are regulated by MACT standards. While Congress did not speak directly to reclassification from major to area sources, the EPA proposes to find it would be contrary to the emission reduction and health protection objectives of the CAA and CAA section 112 to allow sources to increase their emissions after reclassification. Doing so would serve to diminish as opposed to enhance air quality and could potentially lead to increased HAP emissions and thus increased public health risk from exposure. Moreover, CAA section 112(d)(2) directs the EPA in promulgating emission standards to “require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including a prohibition on such emissions, where achievable)[.]” If a facility subject to the controls of a major source NESHAP can remove those controls by reducing its PTE to below the 10/25 TPY threshold, this substantially reduces the likelihood that Congress' objective of prohibiting emissions can be achieved.

This proposed framework would not apply to a source that has taken restrictions to limit PTE ( i.e., a synthetic minor source) before the source's first compliance date of the applicable major MACT standard. The proposed sufficiency criteria for sources that reclassify from major sources to area sources ( i.e., safeguards and federal enforceability) would be applicable to reclassified synthetic minor sources, that is sources that are or were subject to a major source NESHAP, have PTE over the major source threshold, and are taking a restriction so as to limit the PTE below the major source threshold. This proposed framework would not apply, however, to reclassified “true” minor sources—that is sources that modify operations such that they are no longer capable of emitting above the major source threshold; nor would it apply to sources that were never subject to a major source NESHAP. The EPA is specifically requesting comment on whether it is appropriate to differentiate between reclassified synthetic minor and true minor sources, particularly given the proposed justification in this proposal.

This proposal for the EPA to introduce safeguards and federal enforceability for sources that reclassify from area to major source status also differs from the EPA's former OIAI policy because it would continue to allow sources to reclassify consistent with the 2020 MM2A final rule; however, this proposal would introduce conditions that apply to reclassified sources through their permitting authority. The intent is to create flexibility to meet emission reduction goals that did not exist under the OIAI policy while preventing the potential emissions increases allowed under the current MM2A framework.

Further, the EPA seeks comment on its proposed interpretation of “considering controls” to ensure limits taken by sources to reclassify are sufficiently protective.

The EPA is proposing that for those sources that reclassify from major source to area source status under the NESHAP program, any limits relied upon as limiting PTE for operations subject to the NESHAP must ensure emissions do not increase beyond what would have been allowed if the reclassifying source had continued to be subject to the major source NESHAP. The proposed safeguards will apply to sources that reclassify after the effective date of this action, as well as those that have reclassified since the 2018 Wehrum memorandum.

Specifically, we are proposing to codify in a new paragraph, 40 CFR 63.1(c)(6)(iv), that any federally enforceable HAP PTE limitations taken by a major source to reclassify to area source status must include one of the following control methods or a combination: (1) continue to employ the emission control methods ( e.g., control device and/or emission reduction practices) required under the major source NESHAP requirements, including previously approved alternatives under the applicable NESHAP and associated monitoring, recordkeeping, and reporting (MRR); (2) control methods prescribed for reclassification under a specific NESHAP subpart; or (3) emission controls that the permitting authority has reviewed and approved as ensuring the emissions of HAP from units or activities previously covered will not increase above the emission standard or level that was acceptable under the major source NESHAP requirements at the time of reclassification. The record of the permitting authority decision should identify the units and methods and include the data and analysis as well as the determination that MRR is adequate to assure compliance.

The EPA proposes the introduction of safeguards, coupled with federal enforceability, will help to ensure the NESHAP program continues to reduce emissions over time, and that sources subject to the NESHAP program are not able to increase their emissions beyond what the major source NESHAP would have allowed as a result of reclassification and/or evade permit limits that would otherwise prevent them from doing so. The EPA proposes safeguards are needed due to differences in EPA and state requirements for certain types of major and area NESHAP sources, which creates instances where it is feasible that two identical sources within a source category could have significantly different emissions requirements for a given pollutant if one remains a major source and the other reclassifies as an area source. This is particularly true in instances where there are no area source requirements for certain industries.

Under this proposed definition, state and local permitting authorities would be charged with ensuring permitting limits taken for sources to reclassify from major to area source satisfy one of the three criteria listed above. That is, the permitting authority will determine that emissions for a reclassified source will not be above what they would have been had the source remained subject to the major source NESHAP. The EPA continues to consider and seeks comment on the specifics of how state and local permitting authorities should implement this definition and make such determinations. We are soliciting comments on whether the determination that a source will not emit above what would have been allowed under the major source NESHAP must be based on the same units of measure as the NESHAP had been ( e.g., tons per year vs. pounds per hour). This will largely be a case-by-case decision that will rest partly on the type of measurements used, the method of control, and quantity of emissions in question. We are also soliciting comment on whether sources should be required to continue to comply with a specific emissions limit using a specific type of control, especially for sources subject to major source NESHAPs that allow for different control options. We are seeking comment on how to best structure safeguards to ensure that flexibility is provided to permitting authorities making these determinations to allow for improvements in control technology effectiveness or efficiency without compromising the emissions reductions achieved by the NESHAP.

The EPA is seeking comment on additional benefits or drawbacks of safeguards for NESHAP reclassifications. The EPA is also seeking comment on other criteria that will improve the process by which sources apply for, and the permitting authority approves, enforceable permit conditions containing safeguard provisions.

In light of the special attention Congress paid to specific pollutants  20 in section 112(c)(6) of the CAA, we are specifically seeking comment on whether additional restrictions are warranted for source categories that are subject to MACT standards for the persistent and bioaccumulative HAP listed pursuant to CAA section 112(c)(6). We believe the proposed safeguards are sufficient to prevent emissions increases but we are seeking comment on whether any of the following additional restrictions are warranted to achieve Congress's directive that source categories emitting these HAP are subjected to MACT standards under CAA section 112(d)(2) or (d)(4). The first possible restriction we are seeking comment on is one that would prevent any sources  21 subject to a major source NESHAP used to reach the EPA's 90 percent threshold for any of the CAA section 112(c)(6) HAP from reclassifying from major source status to area source status. Another restriction we are considering and seeking comment on is one that would require sources subject to a major source NESHAP to remain subject to the major source NESHAP for emissions of the section 112(c)(6) HAP while allowing those sources source to reclassify and no longer remain subject to the major source NESHAP for emissions of non-112(c)(6) HAP. Finally, we are considering a restriction that would allow such sources to reclassify but would only allow them to use the proposed option in 40 CFR 63.(1)(c)(6)(iv) that requires a source to “continue to employ the emission control methods ( e.g., control device and/or emission reduction practices) required under the major source NESHAP requirements, including previously approved alternatives under the applicable NESHAP and associated monitoring, recordkeeping, and reporting (MRR)”. We are seeking comment on all of these additional criteria and any other restrictions on sources or source categories emitting 112(c)(6) HAP that may be warranted.

In addition to safeguards, the EPA also proposes that limits taken by sources to reclassify from major to area sources must be federally enforceable as a condition of reclassification. 22 Specifically, we are proposing to codify in a new paragraph, 40 CFR 63.1(c)(6)(iii), that, as a condition of reclassification, any PTE limitations taken by a major source to reclassify to area source status must be federally enforceable. The general definition of PTE under 40 CFR 63.2 would not be affected by this proposal to codify a new provision specific to reclassified sources, and as discussed in the following subsection, the EPA proposes to maintain interim revisions introduced to the general definition in the 2020 MM2A final rule. That is, under this proposal, sources that reclassify from major to area source status, would need to take federally enforceable limitations on PTE as a condition of reclassification. However, all other NESHAP sources would continue to be governed by the general PTE definition under 40 CFR 63.2, which does not require federal enforceability.

As discussed above, in NMA v. EPA, the D.C. Circuit faulted the EPA for not adequately explaining the relationship of federal enforceability to the core criteria of “effectiveness.” In that case, the EPA argued that federal enforceability allowed the EPA to verify that a source's claimed controls were working as they were supposed to, and that federal enforceability provided the EPA with the means to ensure that any operational restrictions intended to limit emissions were actually implemented. In response to these arguments, the NMA Court found “EPA's core justification for its federal enforceability policy [was] the need to avoid the administrative burden that EPA would have to bear were it obliged to evaluate the effectiveness of state and local controls and the desirability of uniformity in environmental protection. . . If there [was] a closer fit between the notion of `federal enforceability' and § 112's concerns with crediting effective controls,” it was “not evident” from the record before the Court. 59 F.3d at 1364. Today's proposal is based on the EPA's assessment that federal enforceability of limits for reclassified sources significantly enhances the effectiveness of controls because limits taken by sources to reclassify that are enforceable by the federal government and citizens, in addition to state and local permitting authorities, are more likely to ensure compliance. Simply put, ensuring that more entities can bring an enforcement action if a source violates a PTE limit, i.e., EPA, States, Tribes, local government agencies, and citizen groups, will make the limit more effective in controlling HAP emissions.

In the absence of federal enforceability for reclassified sources, the public is reliant on state and local permitting authorities, and citizen groups in certain jurisdictions, to ensure sources comply with PTE limits. While the EPA maintains that state and local enforcement can be an effective means for ensuring compliance with PTE limits for other NESHAP sources and CAA programs ( e.g., NSR and title V), given the EPA's heightened concerns surrounding reclassified sources, the EPA proposes that additional oversight is appropriate to increase the effectiveness of controls for reclassified sources. PTE limits for reclassified sources are integral to ensure these sources are properly classified and are subject to the appropriate federal CAA section 112 requirements. While the EPA intends to address PTE limits more generally in a separate rulemaking as discussed further below, this proposed rulemaking is specific to NESHAP sources that have reclassified from major to area sources, or will do so in the future.

In addition to EPA enforcement, citizen enforcement is another important component of federal enforceability that EPA proposes will enhance enforcement for reclassified source limits. There is considerable variability for citizens to participate in the state and local enforcement of permit terms and other measures to limit emissions across state and local jurisdictions. Whereas Congress granted considerable enforcement authority to citizens under the CAA and other environmental statutes, the ability of citizens to participate in state- and local-only enforcement proceedings is, generally speaking, very limited. The EPA's current understanding is that around one third of states allow for general environmental citizen suits, which are in addition to various media-specific state citizen suit statutes, which provide varying degrees of effectiveness for enforcing permit limits for reclassified sources at issue in this proposal. 23 Accordingly, in many instances, state and local permitting authorities are the only means of enforcement. To help ensure that reclassifying sources do not erode the goals of the CAA section 112 program, the EPA proposes the ability for citizens to enforce permits for such sources is needed. The EPA is seeking comment on the prevalence and effectiveness of citizen suit provisions in state and local enforceable HAP PTE limiting programs. Further, because of limitations on the EPA's and state and local enforcement authorities' budgets and resources and variability in priorities between state and local regulators and the EPA, the ability for citizen enforcement of limits for reclassified sources adds an important component of an effective enforcement regime.

The potential for federal enforcement for reclassified source limits provides an additional incentive for facilities to comply, ensures consistency in protection across jurisdictions, and thereby enhances the effectiveness of controls. This is evidenced in the broad oversight authority to enforce the CAA that Congress granted to the EPA. Courts have recognized the EPA's ability to act to enforce the CAA even when a state has already acted. 24 The greater number of agencies or persons that can enforce the requirements, the greater the likelihood is that some action will be brought. 25 Indeed, federal enforceability enables the EPA to ensure that sources are abiding by the conditions they have adopted to opt out of federal major source standards; and grants citizens the ability to use the tools Congress provided in the CAA for the same goal. Federal enforcement for reclassified sources creates a clear regulatory structure for EPA and citizen enforcement through the CAA and produces a level playing field on which sources are subject to the same enforcement mechanisms regardless of the state in which they are located.

In contrast, state-only enforceability for reclassified source limits creates significant burdens on the EPA if it were to attempt to enforce a violation of such a limit. In such instances, the EPA would either have to (1) litigate any enforcement issues of PTE limits taken to reclassify to an area source as a general citizen in the state forum (which is only available in states with citizen suit provisions that the EPA could utilize) or (2) only bring cases for violations of major source requirements (as opposed to permit limit exceedances that do not cross the major source threshold). State-only enforcement eliminates the EPA's use of the administrative enforcement powers granted by Congress that have been an effective and resource-saving means to bring sources into compliance without mounting a full effort enforcing a violation of the major source requirements. Enforcing the requirements of a major source MACT in the face of a facially valid state-only enforceable permit or permit limit that grants the same source area source status by saying a source cannot exceed 9.9 tpy of any HAP (which the EPA does not consider enforceable as a practical matter as a blanket emission limit alone) could create conflicts between what limits a state interprets as sufficient to avoid major source MACT requirements and what limits the EPA interprets as enforceable as a practical matter ( e.g., a limit of 9.9 tpy on total HAP by itself is not enforceable as a practical matter). In such an instance a federal court may not be willing to entertain the conflict between the state and EPA in the permit challenge and e.g., dismiss the claim on the grounds of abstention, or remove the permit challenge to state court which may defeat the goal of national consistency of this federal program envisioned by Congress through federal court oversight. Furthermore, challenges to a facially-valid, state-only enforceable permit or permit term could create fairness issues ( e.g., reliance on a state's permitting decision) that a source could use in its defense that may prevent the EPA or citizens from even pursuing the enforcement. 26 Federal enforceability will help ensure that the safeguard provisions being proposed in this action are enforced for sources that reclassify.

The public notice and comment requirements included in 40 CFR part 63, subpart E provide an additional layer of transparency and accountability in creating HAP PTE limiting mechanisms used to measure compliance after reclassification to ensure they will contain sufficient information to assure compliance. The subpart E process does include requirements for public notice and comment when programs are submitted to the EPA for review and approval. The EPA is seeking comment on the need, associated burdens, and time required for public notice and comment beyond the process already present in 40 CFR part 63, subpart E. Specifically, we are seeking comments on whether the EPA should require, as an additional condition of reclassification, that every permit containing the provisions required in this proposal used to reclassify from a major source of HAP to an area source of HAP should undergo an individual public notice and comment period. Additionally, we are seeking comment on the public's understanding of the public notice and comment process involved in 40 CFR part 63, subpart E.

For these reasons, we are proposing that limits taken by sources to reclassify from major source to area source must be federally enforceable as defined in 40 CFR 63.2. We are seeking comment on additional benefits or drawbacks of federal enforceability for NESHAP reclassifications.

In the 2020 MM2A final rule, the EPA introduced an interim ministerial revision to the definition of “potential to emit” in 40 CFR 63.2 to remove the word “federally” from the phrase “federally enforceable.” As the EPA noted at the time, the revisions did not represent a final decision by the EPA or signal any direction that the EPA is intending to take in a future final action. The EPA is not revisiting this interim revision at this time. As noted in the previous section, the EPA's proposal to introduce federal enforceability for reclassified sources is being proposed as a separate provision from the 40 CFR 63.2 “potential to emit” definition, such that it would only apply to reclassified sources.

In this proposal, the EPA is solely focused on ensuring the sufficiency of permit limits for sources that reclassify from major to area sources. Accordingly, the EPA is not revisiting the interim ministerial revision to the definition of “potential to emit” in 40 CFR part 63 and will address the definition of PTE under 40 CFR part 63 in a separate rulemaking or guidance. Nor is the EPA addressing federal enforceability of PTE limits taken by other NESHAP sources ( i.e., sources that are not reclassified sources), nor sources in other programs such as NSR or title V, for which the EPA previously introduced federally enforceable limits, but which may currently be subject to legally and practically enforceable state-law PTE limits. See NMA v. EPA, 59 F.3d 1351 (D.C. Cir. 1995) (remanding but not vacating federal enforceability of PTE limits for NESHAP sources); CMA v. EPA, 70 F.3d 637 (D.C. Cir. 1995) (remanding and vacating federal enforceability of PTE limits for NSR sources); Clean Air Implementation Project v. EPA, 1996 WL 393118 (D.C. Cir. June 28, 1996) (remanding and vacating federal enforceability of PTE limits for title V sources). The EPA plans to address the definition of PTE in the NESHAP, NSR, title V, and related programs in separate rulemaking or guidance. In the interim, before the EPA completes the future rulemaking or guidance on the definition of PTE across affected programs, the EPA's longstanding interpretation of the court decisions cited previously, and associated policy, remains in effect. Specifically, pursuant to the EPA's guidance the terms “federally enforceable” or “enforceable” as used in general definitions of “potential to emit” and related terms should be read to mean “federally enforceable or legally and practicably enforceable by a state or local air pollution control agency.”  27 Note, this interpretation does not apply to the term “federally enforceable” as it is being introduced in this proposal as a condition for NESHAP sources to reclassify from major to area source status. Furthermore, to be eligible for consideration in determining PTE, any limitations, whether federally enforceable or not, must be enforceable as a practical matter, meaning both legally and practicably enforceable. To be practicably enforceable, limitations or standards used to constrain PTE must: (1) be technically accurate and specify the portions of the source subject to the limitation or standard; (2) specify the time period for the limitation or standard ( e.g., hourly, daily, monthly and/or annual limits such as rolling annual limits); and (3) include a method for determining compliance, including appropriate monitoring, recordkeeping, and reporting. 28

The EPA acknowledges that terminology referring to enforceability principles in EPA rules and guidance—such as the Agency's use of the terms “federally enforceable,” “enforceable as a practical matter,” and “legally and practicably enforceable”—has varied somewhat historically. The EPA specifically solicits comment on terminology used both in this notice and historically and welcomes suggestions for maximizing clarity for regulated entities and the public.

The proposed requirements, once finalized, will apply to any sources that reclassify from major source status to area source status under the NESHAP program, including those that have already reclassified since issuance of the January 25, 2018, Wehrum Memorandum. For sources that have reclassified from major source status to area source status since January 25, 2018, under the NESHAP program and prior to the effective date of the final rule, the changes to 40 CFR part 63 proposed in this action will be effective within 3 years of publication of the final rule. Specifically, sources who reclassified from major source status to area source status since January 25, 2018 must have federally enforceable permit conditions including the safeguards proposed in this action within three years of publication of the final rule in order to maintain area source status. We are specifically seeking comment on whether to apply the proposed requirements to sources that have reclassified since the January 2018 Wehrum memo or whether this action should only apply to sources that reclassify after the effective date of the final rule. We request comments on the impacts of coming into compliance with the proposed requirements for sources that have reclassified since the January 2018 Wehrum memo. For those sources that reclassify after the effective date of the final rule, the proposed requirements will be effective upon reclassification. The process by which state air pollution control agencies can submit HAP PTE limiting mechanisms, such as rule adjustments, rule substitutions, equivalency by permit, or other mechanisms is described in 40 CFR part 63, subpart E for EPA review and approval. Programs that are approved pursuant to subpart E are federally enforceable and subpart E describes the necessary criteria for state programs that contain adjustments to CAA section 112 rules, state programs that substitute for CAA section 112 rules, and permit terms and conditions that substitute for CAA section 112 rules. We are seeking comment on the experience state agencies have had getting federally enforceable HAP PTE limiting mechanisms approved under subpart E and any potential hurdles that have prevented or would prevent state air pollution control agencies from submitting mechanisms for approval under 40 CFR part 63, subpart E. We are also seeking comment on the cost incurred by state air pollution control agencies to obtain subpart E approved programs. Given the timelines for EPA review and approval of state programs seeking approval for federally enforceable HAP PTE limiting mechanisms in subpart E, the EPA proposes that three years from publication of the final rule is sufficient time for sources who have chosen to reclassify to obtain federally enforceable HAP PTE limiting permit conditions. The EPA is seeking comment on the time needed for sources that have already reclassified to add such provisions as enforceable permit conditions, to the extent that they do not already exist.

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

This action is a “significant regulatory action” as defined in Executive Order 12866, as amended by Executive Order 14094. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for Executive Order 12866 review. Documentation of any changes made in response to the Executive Order 12866 review is available in the docket.

The EPA has not prepared a quantitative analysis of the potential costs and benefits associated with this action because it is highly uncertain which facilities may reclassify in the future as a result of the proposed rule, and any potential emissions changes that result from the added reclassification requirements will also be highly uncertain. 29 Furthermore, the EPA does not expect substantial costs for sources that have already reclassified and have not observed emission changes following a reclassification for this subset of facilities. Based on data available to the agency at this time, sources that have reclassified are unlikely to remove control devices to reduce HAP or take other actions that would increase HAP emissions. However, under the current framework, sources that reclassify in the future could operate in a manner that would increase emissions. This would be inconsistent with the aim of CAA section 112 to achieve lasting emissions reductions across a wide range of industries to protect public health and the environment.

Prior to 2018, the OIAI policy prevented major sources of HAP from reclassifying to area sources of HAP after the first substantive compliance date of a major source NESHAP. The OIAI policy was initially replaced by a January 25, 2018, guidance document, then was formally codified by the 2020 MM2A final rule wherein EPA advocated for a reading of the CAA that suggests that there should be no temporal restrictions on reclassifications.

The 2018 guidance memo and 2020 MM2A final rule allow facilities to reclassify from major sources of HAP to area sources of HAP at any time. Since 2018, about 200 facilities have reclassified, far short of the roughly 2,700 facilities we estimated might reclassify at the time of the 2020 final rule. Due to limited data available to the agency at the time of this proposal, the EPA does not have information regarding whether or how much emissions may have increased at any individual reclassified facilities—though we seek comment on that in this proposal. However, the current framework allows for emissions increases and decreased compliance assurance as all sources are required to do is obtain a PTE limit below the major source thresholds. We are requesting comment on specific examples of facilities that have had changes in actual emissions since reclassifying. The EPA has not heard about specific additional facilities' plans to reclassify that have not yet done so, but we seek comment on facilities that have considered reclassification but not yet done so and their reasons for waiting. However, it is reasonable to assume that additional reclassifications will occur over time. In the first half of 2023, there have been between zero and two reclassifications per month. We have added the list of reclassifications that have occurred to date at the time of this proposal to the docket for this action.

Currently, sources that reclassify are only required to remain below the major source threshold unless they become subject to an area source NESHAP, which they would have to comply with if it requires more stringent controls than would be needed to keep emissions below the major source threshold. That could lead to increased HAP emissions from sources whose emissions were well below the major source threshold due a major source NESHAP prior to reclassification in the absence of this rule. The EPA seeks to ensure that a reclassified source does not increase emissions because we find that scenario runs counter to CAA section 112's goal of achieving lasting reductions of HAP emissions from major sources, as described earlier in this preamble.

We do not expect significant costs and whether any costs or savings are incurred due to reclassification is very case-specific. We do not possess sufficient information to quantify costs or cost savings for individual facilities but seek comment on costs or cost savings. The costs incurred for a given facility are better attributed to the individual NESHAP rules the facility was subject to prior to reclassification rather than the General Provisions of part 63. Any potential costs for facilities in the future that may choose to reclassify are expected to be negligible for sources that have not yet reclassified and we do not expect sources to reclassify if it will increase their costs.

The final MM2A rule already required electronic notification to the EPA and we are not requiring those sources who have already submitted notifications to resubmit their notification. We are seeking comments from sources who have already reclassified and information about changes in air pollution control devices at these facilities such that costs would be incurred to maintain emissions at a level that was achieved when the source was previously subject to a major source NESHAP.

We expect that sources that reclassify will experience cost savings that will outweigh any additional cost of achieving area source status. The only potential costs that would be incurred by sources and regulatory authorities would be the costs of preparing and reviewing a source's application for area source status and issuing enforceable PTE limits, respectively, as appropriate. 30 In addition, any potential costs associated with the reclassification of major sources as area sources ( i.e., application reviews and PTE issuance) may be offset by reduced reporting and recordkeeping obligations for sources that no longer must meet major source NESHAP requirements, depending on case-specific circumstances. Whether any cost or cost savings is incurred by any source choosing to reclassify is highly case specific and we are not providing quantitative estimates of costs in this proposal, however, we have included technical memoranda ( e.g., MM2A Cost Memorandum) for the 2020 final MM2A rule and the regulatory impact analysis (RIA) from that rulemaking in the docket for this action to provide illustrative examples of the types of costs and costs savings that may occur due to reclassifications. We are seeking comments on the potential costs or cost savings associated with this proposal and our assumption that any changes to the costs associated with reclassification will be negligible.

While the EPA does not expect this action to directly impact the level of control of any particular NESHAP standards, this proposal is expected to enhance transparency, promote national consistency in EPA and citizen enforcement, and improve compliance assurance through clearer criteria for NESHAP reclassifications. The processes by which state programs and permits are approved under 40 CFR subpart E, includes requirements for public notice and comment as well as creating programs and permits that are federally enforceable by the EPA and citizens. These additional layers of oversight increase the likelihood that sources will continue to effectively operate HAP pollution control equipment and create a framework for the EPA and citizens to pursue enforcement actions if they do not. Additionally, the EPA finds that the safeguards proposed in this action will ensure that HAP emissions reductions are achieved, and the corresponding public health and environmental benefits from decreased HAP emissions, are maintained at sources that reclassify from major sources of HAP to area sources of HAP.

This action does not impose any new information collection burden under the PRA. The proposed amendments to the General Provisions relate to voluntary actions taken by a source after consideration of the net impacts of the action. Therefore, this action would not impose any new information collection burden. The General Provisions do not themselves require any reporting and recordkeeping activities, and no ICR was submitted in connection with their original promulgation or their subsequent amendment. Any recordkeeping and reporting requirements are imposed only through the incorporation of specific elements of the General Provisions in the individual NESHAP, which are promulgated for particular source categories that have their own ICRs. The PRA costs for sources that reclassify will be properly accounted for in the ICRs for the NESHAPs they were subject to.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. In making this determination, the EPA concludes that the impact of concern for this rule is any significant adverse economic impact on small entities and that the agency is certifying that this rule will not have a significant economic impact on a substantial number of small entities because the rule relieves regulatory burden or has no net burden on the small entities subject to the rule.

Small entities that are subject to major source NESHAP requirements would not be required to take any action under this proposed rule; any action a source takes to reclassify as an area source would be voluntary. We expect that sources that reclassify will experience cost savings that will outweigh any additional cost of achieving area source status. We do not expect substantial costs for sources that have already reclassified. Sources that reclassify are unlikely to remove control devices to reduce HAP or take other actions that would increase HAP emissions, however, the possibility does exist under the current framework. The final MM2A rule already required electronic notification to the EPA and we are not requiring those sources who have already submitted notifications to resubmit their notification. We are seeking comments on whether sources who have already reclassified have indeed removed control devices such that costs would be incurred to maintain emissions at a level that was achieved when the source was previously subject to a major source NESHAP. The only potential cost that would be incurred by regulatory authorities would be the cost of reviewing a sources' application for area source status and issuing enforceable PTE limits, as appropriate. No small government jurisdictions operate their own air pollution control permitting agencies, so none would be required to incur costs under the proposed rule. In addition, any costs associated with the reclassification of major sources as area sources ( i.e., application reviews and PTE issuance) are expected to be offset by reduced reporting and recordkeeping obligations for sources that no longer must meet major source NESHAP requirements. Whether any cost or cost savings is incurred by any source, including those owned by a small parent company, choosing to reclassify is highly case specific and we are not providing quantitative estimates of costs in this proposal, however, we have included technical memoranda from the 2020 final MM2A rule and the regulatory impact analysis (RIA) from that rulemaking in the docket for this action to provide illustrative examples of the types of costs and cost savings that can occur due to reclassifications. We are seeking comments on the potential costs or cost savings associated with this proposal and our assumption that the any changes to the costs associated with reclassification will be negligible.

Based on the considerations above, we have, therefore, concluded that this action will relieve regulatory burden on net for any regulated small entities that choose to reclassify to area source status.

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

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

This action has tribal implications. However, it will neither impose substantial direct compliance costs on federally recognized tribal governments, nor preempt tribal law. There are two tribes that currently implement title V permit programs and one that implements an approved TIP for minor source permitting, the latter of which also has a major source. As a result, these tribes may have additional permit actions if sources in their jurisdiction seek reclassification to area source status. Any tribal government that owns or operates a source subject to major source NESHAP requirements would not be required to take action under this final rule; the reclassification provisions in the final rule would be strictly voluntary. In addition, achieving area source status would result in reduced burden on any source that no longer must meet major source NESHAP requirements. Under the proposed rule, a tribal government with an air pollution control agency to which we have delegated CAA section 112 authority would be required to review permit applications and to modify permits as necessary. However, any burden associated with the review and modification of permits will be offset by reduced Agency oversight obligations for sources no longer required to meet major source requirements.

For sources located within Indian country, where the EPA is the reviewing authority, unless the EPA has approved a non-federal minor source permitting program or a delegation of the Federal Indian Country Minor NSR Rule, the Federal Indian Country Minor NSR Rule at 40 CFR 49.151 through 49.165 provides a mechanism for an otherwise major source to voluntarily accept restrictions on its PTE to become a synthetic source, among other provisions. The Federal Indian Country Minor NSR Rule applies to sources located within the exterior boundaries of an Indian reservation or other lands as specified in 40 CFR part 49, collectively referred to as “Indian country.” See 40 CFR 49.151(c) and 49.152(d). This mechanism may also be used by an otherwise major source of HAP to voluntarily accept restrictions on its PTE to become a synthetic area HAP source. The EPA's Federal Implementation Plan (FIP) program, which includes the Federal Indian Country Minor NSR Rule, provides additional options for particular situations, such as general permits for specific source categories, to facilitate minor source emissions management in Indian country. Existing sources in Indian country may have PTE limits that preceded the EPA's FIP for minor sources and, for that reason, were issued in a 40 CFR part 71 permit or FIP permitting provision applicable to Indian country.

Consistent with EPA policy, the EPA will offer to consult with the potentially impacted tribes and other tribes upon their request.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not directly regulate any emission source and will not have any direct impact on children's health. The emissions reductions achieved by individual NESHAP are properly accounted for in those individual NESHAP rather than the General Provisions. This action will not change the level of emissions reductions achieved by those NESHAP. While we do not expect this action to have any direct impact on children's health, preventing emissions increases will ensure protections achieved via any NESHAP that a source was subject to at the time of reclassification will provide continued protection achieved by any NESHAP that source was formerly subject to.

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. We have concluded that this action is not likely to have any adverse energy effects.

This rulemaking does not involve technical standards.

The EPA believes that this action does not have disproportionate and adverse human health or environmental effects on communities with environmental justice concerns because it does not establish an environmental health or safety standard. The proposed amendments to the General Provisions are procedural changes and do not impact the technology performance nor level of control of the NESHAP governed by the General Provisions.

While the EPA does not expect this action to directly impact the level of control of any particular NESHAP standards, this proposal is expected to enhance transparency, promote national consistency in EPA and citizen enforcement, and improve compliance assurance through clearer criteria for NESHAP reclassifications. The processes by which state programs and permits are approved under 40 CFR subpart E, includes requirements for public notice and comment as well as creating programs and permits that are federally enforceable by the EPA and citizens. These additional layers of oversight increase the likelihood that sources will continue to effectively operate air pollution control equipment and create a framework for the EPA and citizens to pursue enforcement actions if they do not. Additionally, the EPA finds that the safeguards proposed in this action will ensure that HAP emissions reductions are achieved, and the corresponding public health and environmental benefits from decreased HAP emissions, are maintained at sources that reclassify from major sources of HAP to area sources of HAP.

Please refer to the September 30, 2020, proposed rule (85 FR 61700) to reclassify the Virgin Islands tree boa (which we refer to below as “Virgin Islands boa”) for a detailed description of previous Federal actions concerning this species. The September 30, 2020, proposed rule opened a 60-day public comment period, ending November 30, 2020. We then reopened the public comment period for an additional 30 days, from April 26 to May 26, 2021, and held a public hearing on May 12, 2021 (see 86 FR 22005; April 26, 2021). During both comment periods and at the public hearing, we accepted submission of new information and comments on the proposed reclassification.

Based on the comments we received during both of the September 30, 2020, proposed rule's public comment periods and at the May 12, 2021, public hearing, we made several changes and corrections throughout the species status assessment (SSA) report for the Virgin Islands boa (Service 2022, entire). We received substantive comments regarding the probable extirpation of Virgin Islands boas due to colonization of rats on Cayo Ratones, and we have included that information in all descriptions of that population and addressed it in our analysis. Results from a survey effort in September 2021 by Puerto Rico Department of Natural and Environmental Resources (DNER) and other boa experts were provided to the Service; no boas or indirect evidence of boas were observed (Puente-Rolón et al. 2021, p. 1) and the DNER affirms that the Cayo Ratones population is most likely extirpated (DNER 2019, p. 3). We also received comments on the characterization of the resiliency of the Cayo Diablo population, and upon reexamination of the current resiliency score, we realized we made an error in our calculations and subsequently have changed the resiliency of that population from moderately high resiliency to moderate resiliency. Upon incorporating these changes, we have determined that there are not sufficient data to support reclassifying the Virgin Islands boa from an endangered species to a threatened species. Accordingly, we are withdrawing our proposed rule to reclassify the Virgin Islands boa as a threatened species with a rule issued under section 4(d) of the Act (16 U.S.C. 1531 et seq. ).

In the September 30, 2020, proposed rule (85 FR 61700), we proposed to correct the Federal List of Endangered and Threatened Wildlife (List) to change the scientific name of the Virgin Islands tree boa from Epicrates monensis granti to Chilabothrus granti to reflect the currently accepted taxonomy. Virgin Islands boa is a distinct species, not a subspecies, and Epicrates is no longer the scientifically accepted genus for this species. However, because we are withdrawing the September 30, 2020, proposed rule (85 FR 61700), the Virgin Islands boa's scientific name will remain Epicrates monensis granti in the List until we, in the future, publish a final rule recognizing the new taxonomy.

A thorough review of the taxonomy, life history, ecology, and overall viability of the Virgin Islands boa is presented in the SSA report (Service 2022, entire; available at https://www.regulations.gov under Docket No. FWS-R4-ES-2019-0069). A summary of this information follows.

The Virgin Islands boa is endemic to Puerto Rico and the Virgin Islands (U.S. and British). The Virgin Islands boa is a medium-length, slender, nonvenomous snake. The largest snout-vent lengths (SVL) recorded for the species were 1,066 millimeters (mm; 42 inches (in)) for females and 1,112 mm (44 in) for males (total body lengths 1,203 mm (47 in) and 1,349 mm (53 in), respectively; Tolson 2005, entire), although most specimens range between 600 and 800 mm (24 and 31 in) SVL, with an average mass of 165 grams (6 ounces) (USVI Division of Wildlife, unpublished data). Adults are gray-brown with dark-brown blotches that are partially edged with black, and feature a blue-purple iridescence on their dorsal surface; the ventral surface is creamy white or yellowish white. Newborns, on the other hand, have an almost grayish-white body color with black blotches and weigh 2.0-7.2 grams (0.07-0.25 ounces) with SVLs of 200-350 mm (approx. 8-14 in) (Tolson 1992, entire; Tolson 2018, pers. comm.).

The Virgin Islands boa occurs in subtropical dry forest and subtropical moist forest (Service 2009, p. 11). Subtropical dry forest covers approximately 14 percent (128,420 hectares (ha); 317,332 acres (ac)) of Puerto Rico and the U.S. Virgin Islands (USVI), typically receives less than 750 mm (29 in) rainfall annually (Ewel and Whitmore 1973, pp. 9-20), and is characterized by small (less than 5 meter (m; 16 feet (ft)) deciduous trees with high densities of interlocking branches and vines connecting adjacent tree canopies (Ewel and Whitmore 1973, p. 10). Subtropical moist forest covers approximately 58 percent (538,130 ha; 1,329,750 ac) of Puerto Rico and USVI and typically receives more than 1,100 mm (43 in) of annual rainfall. It is dominated by semi-evergreen and evergreen deciduous trees up to 20 m (66 ft) tall with rounded crowns. The Virgin Islands boa has also been reported to occur in mangrove forest, thicket/scrub, disturbed lower vegetation, and artificial structures (Harvey and Platenberg 2009, p. 114; Tolson 2003, entire).

Habitat needs for Virgin Islands boa can be divided into those for foraging and those for resting. Factors contributing to foraging habitat quality are tree density and connectivity, presence of arboreal and ground-level refugia, prey density, and rat presence/density (Tolson 1988, pp. 234-235). Tree density is more important than tree species or diversity; Virgin Islands boas do not appear to prefer a particular tree species after accounting for availability and structure (Platenberg 2006, pers. comm.). The highest densities of Virgin Islands boas are found where there are few or no exotic predators and high densities of lizard prey (Tolson 1988, p. 233). Resting habitat includes refugia for inactive boas to use during the day. Refugia can be the axils (angles between trunk and branches) of Cocos or Sabal species, tree holes, termite nests, or under rocks and debris (Tolson 1988, p. 233).

The Virgin Islands boa forages at night by gliding slowly along small branches in search of sleeping lizards (Service 1986, p. 6). The primary prey for the Virgin Islands boa is the Puerto Rican crested anole ( Anolis cristatellus ), and the greatest concentrations of Virgin Islands boa are found where Anolis densities exceed 60 individuals/100 m 2 (1,076 ft 2 ; Tolson 1988, p. 233). Other prey species include ground lizard ( Ameiva exsul ), house mouse ( Mus musculus ), small birds, iguana ( Iguana iguana ) hatchlings, and likely other small animals encountered (MacLean 1982, pp. 30-31, 37; Tolson 1989, p. 165; Tolson 2005, p. 9; Platenberg 2011, p. 3). The Virgin Islands boa may also compete for prey and other niche components with the green iguana ( Iguana iguana ) and the Puerto Rican racer ( Borikenophis portoricensis ), a snake native to Puerto Rico, USVI, the British Virgin Islands, and surrounding cays (small, low islands).

Much of what is known about the Virgin Islands boa's life history comes from studies in captivity. Lifespans in captivity often exceed 20 years, and sometimes exceed 30 years (7 percent of captive Virgin Islands boas exceeded 30 years of age; Smith 2018c, pers. comm.), but typical lifespans in the wild are not known. Sexual maturity is reached at 2 to 3 years of age (Tolson 1989, pp. 165-166; Tolson and Piñero 1985, pp. 5-6), and boas are still reproductive at up to 20 years of age (Tolson 2018, pers. comm.). Females breed biennially, but studies have suggested that annual breeding may occur in some conditions (Tolson and Piñero 1985, pp. 6-7). Courtship behaviors and copulation occur from February through May, and interaction with conspecifics of the opposite sex appears to be necessary for reproductive cycling (Tolson 1989, p. 165). The gestation period, observed from a single known copulation between two individuals, is about 132 days (Tolson 1989, p. 165). Virgin Islands boas give birth to live young from late August through October to litters of 2 to 10 young, and litter size increases with female body size (Tolson 2018, pers. comm.).

The exact historical distribution of the Virgin Islands boa is unknown, but its present disjointed distribution suggests that it was once more widely distributed across small islands within its range. In the 1970s, when the Virgin Islands boa was listed under the Endangered Species Conservation Act of 1969, its range was identified as three islands: Puerto Rico (no specific site); St. Thomas, USVI (from a single record); and Tortola in the British Virgin Islands (BVI) (from one report) (44 FR 70677; December 7, 1979). When the recovery plan was written (1986), 71 individuals were reported in two populations: one on the eastern side of St. Thomas in the USVI, and one at Cayo Diablo, an offshore islet in Puerto Rico (Service 2009, p. 6).

Currently, the Virgin Islands boa occurs on six islands between Puerto Rico, USVI, and BVI: the eastern Puerto Rican islands of Cayo Diablo and Culebra; Río Grande on the Puerto Rican main island; eastern St. Thomas and an offshore cay in USVI (USVI Cay; an introduced population); and Tortola. The occurrence of a seventh population (also an introduced population) on the Puerto Rican cay of Cayo Ratones is considered uncertain after the reestablishment of rats on this island possibly sometime after 2004 (Service 2022, p. 24). Surveys in April 2018 and September 2021 did not find Virgin Islands boas on Cayo Ratones (Island Conservation 2018, pp. 5, 17; DNER 2021, unpublished data; Puente-Rolón et al. 2021, entire), indicating this population is likely extirpated. Lastly, there is also one report from 2004 that the species occurs on Greater St. James Island in St. Thomas, but nothing is known about that potential population (Dempsey 2019, pers. comm.). In 2009, based on all known populations in Puerto Rico and the USVI, an estimated 1,300-1,500 Virgin Islands boas were thought to occur (Service 2009, p. 8). However, some population numbers used for that estimate are speculative. The current overall estimate of the species is unknown, particularly with the likely extirpation of the Cayo Ratones population. Based on the 2022 SSA report (Service 2022, entire), current population trend estimates for Puerto Rico and USVI are either declining, potentially declining, considered rare, or unknown, and most populations are small or considered rare (Service 2022, p. 30).

The population on Tortola Island, BVI, was confirmed in 2018, but there are no specific data regarding the status of that population (McGowan 2018, pers. comm.). In addition, according to anecdotal reports, the species is thought to occur on Jost Van Dyke, Guana Island, Necker Cay, Great Camanoe, and Virgin Gorda of the BVI (Mayer and Lazell 1988, entire), but data and confirmed observations are limited. There is not enough information to reliably assess the status of Virgin Islands boa populations on those islands, and they are not included in our analysis.

Section 4 of the Act (16 U.S.C. 1533) and the implementing regulations in title 50 of the Code of Federal Regulations set forth the procedures for determining whether a species is an endangered species or a threatened species, issuing protective regulations for threatened species, and designating critical habitat for endangered and threatened species. In 2019, jointly with the National Marine Fisheries Service, the Service issued a final rule that revised the regulations in 50 CFR part 424 regarding how we add, remove, and reclassify endangered and threatened species and the criteria for designating listed species' critical habitat (84 FR 45020; August 27, 2019). On the same day, the Service also issued final regulations that, for species listed as threatened species after September 26, 2019, eliminated the Service's general protective regulations automatically applying to threatened species the prohibitions that section 9 of the Act applies to endangered species (84 FR 44753; August 27, 2019).

The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether any species is an “endangered species” or a “threatened species” because of any of the following factors:

(A) The present or threatened destruction, modification, or curtailment of its habitat or range;

(B) Overutilization for commercial, recreational, scientific, or educational purposes;

(C) Disease or predation;

(D) The inadequacy of existing regulatory mechanisms; or

(E) Other natural or manmade factors affecting its continued existence.

These factors represent broad categories of natural or human-caused actions or conditions that could have an effect on a species' continued existence. In evaluating these actions and conditions, we look for those that may have a negative effect on individuals of the species, as well as other actions or conditions that may ameliorate any negative effects or may have positive effects.

We use the term “threat” to refer in general to actions or conditions that are known to or are reasonably likely to negatively affect individuals of a species. The term “threat” includes actions or conditions that have a direct impact on individuals (direct impacts), as well as those that affect individuals through alteration of their habitat or required resources (stressors). The term “threat” may encompass—either together or separately—the source of the action or condition or the action or condition itself.

However, the mere identification of any threat(s) does not necessarily mean that the species meets the statutory definition of an “endangered species” or a “threatened species.” In determining whether a species meets either definition, we must evaluate all identified threats by considering the species' expected response and the effects of the threats—in light of those actions and conditions that will ameliorate the threats—on an individual, population, and species level. We evaluate each threat and its expected effects on the species, then analyze the cumulative effect of all of the threats on the species as a whole. We also consider the cumulative effect of the threats in light of those actions and conditions that will have positive effects on the species—such as any existing regulatory mechanisms or conservation efforts. The Secretary determines whether the species meets the Act's definition of an “endangered species” or a “threatened species” only after conducting this cumulative analysis and describing the expected effect on the species now and in the foreseeable future.

The Act does not define the term “foreseeable future,” which appears in the statutory definition of “threatened species.” Our implementing regulations at 50 CFR 424.11(d) set forth a framework for evaluating the foreseeable future on a case-by-case basis. The term “foreseeable future” extends only so far into the future as we can reasonably determine that both the future threats and the species' responses to those threats are likely. In other words, the foreseeable future is the period of time in which we can make reliable predictions. “Reliable” does not mean “certain”; it means sufficient to provide a reasonable degree of confidence in the prediction. Thus, a prediction is reliable if it is reasonable to depend on it when making decisions.

It is not always possible or necessary to define foreseeable future as a particular number of years. Analysis of the foreseeable future uses the best scientific and commercial data available and should consider the timeframes applicable to the relevant threats and to the species' likely responses to those threats in view of its life-history characteristics. Data that are typically relevant to assessing the species' biological response include species-specific factors such as lifespan, reproductive rates or productivity, certain behaviors, and other demographic factors.

The SSA report (Service 2022, entire) documents the results of our comprehensive biological review of the best scientific and commercial data regarding the status of the species, including an assessment of the potential threats to the species. The SSA report does not represent a decision by the Service on whether the species should be listed as an endangered or threatened species under the Act. It does, however, provide the scientific basis that informs our regulatory decisions, which involve the further application of standards within the Act and its implementing regulations and policies. The following is a summary of the key results and conclusions from the SSA report; the full SSA report can be found at Docket FWS-R4-ES-2019-0069 on https://www.regulations.gov.

To assess Virgin Islands boa's viability, we used the three conservation biology principles of resiliency, redundancy, and representation (Shaffer and Stein 2000, pp. 306-310). Briefly, resiliency supports the ability of the species to withstand environmental and demographic stochasticity (for example, wet or dry, warm or cold years), redundancy supports the ability of the species to withstand catastrophic events (for example, droughts, large pollution events), and representation is the ability of the species to adapt to both near-term and long-term changes in its physical and biological environment (for example, climate conditions, pathogens). In general, species viability will increase with increases in resiliency, redundancy, and representation (Smith et al. 2018, p. 306). Using these principles, we identified the species' ecological requirements for survival and reproduction at the individual, population, and species levels, and described the beneficial and risk factors influencing the species' viability.

The SSA process can be categorized into three sequential stages. During the first stage, we evaluated the individual species' life-history needs. The next stage involved an assessment of the historical and current condition of the species' demographics and habitat characteristics, including an explanation of how the species arrived at its current condition. The final stage of the SSA involved making predictions about the species' responses to positive and negative environmental and anthropogenic influences. Throughout all of these stages, we used the best available information to characterize viability as the ability of a species to sustain populations in the wild over time. We use this information to inform our regulatory decision. Our SSA was revised to reflect the comments and new information we received during both of the September 30, 2020, proposed rule's public comment periods and at the May 12, 2021, public hearing.

In this discussion, we review the biological condition of the species and its resources, and the threats that influence the species' current and future condition, in order to assess the species' overall viability and the risks to that viability. In the SSA report (Service 2022, pp. 12-18), we reviewed all factors ( i.e., threats, stressors) that could be affecting the Virgin Islands boa now or in the future. However, in this document, we will focus our discussion only on those factors that could meaningfully impact the status of the species. The risk factors affecting the status of the Virgin Islands boa vary from location to location, but generally include habitat loss and degradation from development, introduced predators, sea level rise (SLR) and a changing climate, and public attitudes towards snakes. Where habitat is available but the species is not present ( i.e., most of the small islands in the eastern Puerto Rico bank and USVI), it is believed that absences are due to local extirpation resulting from habitat degradation and colonization of exotic species (Service 2009, p. 11). We discuss each of the risk factors below.

Virgin Islands boas occur on both privately and publicly owned land. Virgin Islands boas have been observed living in developed areas around residences and can persist within developed areas if habitat patches are available, but only if no cats or rats are around (Platenberg and Harvey 2010, p. 552; Platenberg 2011, p. 11). Development continues to impact populations via habitat destruction, especially in St. Thomas, Río Grande (Puerto Rico), and Culebra Island where habitat has declined over decades. In St. Thomas, available habitat has declined due to development for resorts, condos, and related infrastructure, and habitat has become more constricted and isolated (Platenberg and Harvey 2010, p. 552). In Puerto Rico, human populations are decreasing, but residential development continues to increase island-wide, including around protected areas (Castro-Prieto et al. 2017, entire). Consequences of human development on the boa and its habitat not only include habitat loss and fragmentation due to deforestation, but also mortality from vehicular strikes, an increase in predators such as cats and rats, and an increase in human-boa conflicts that results in snakes being killed because of fear of snakes (Service 2022, pp. 13-14).

One of the primary threats to Virgin Islands boa populations is predation by exotic mammalian predators, mainly cats and rats, and possibly, to a lesser degree, mongoose. Mongoose are not likely a major predator of Virgin Islands boa because mongoose are terrestrial and active during the day, while Virgin Islands boas are arboreal and active primarily at night, although not exclusively (Service 2022, p. 14). Feral cats are known to prey upon boas (Tolson 1996b, p. 409), and cat populations around human development are further bolstered by cat feeding stations set up by residents. There has not been direct evidence of rats preying upon Virgin Islands boas, but boas are not present on islands with high densities of rats (Tolson 1986ab, unpaginated; Tolson 1988, p. 235). Rats likely negatively impact Virgin Islands boas by competing for prey, or by inducing behavioral changes in Anolis prey that make them less likely to be encountered by boas (Tolson 1988, p. 235). However, rats may also predate on neonate boas (Service 1986, p. 12). Complete predator removal on large, developed islands is challenging, but is feasible on smaller cays. Prior to reintroduction of the boas, rats were eliminated from Cayo Ratones and the USVI Cay using anticoagulant poison (Tolson 1996b, p. 410), although Cayo Ratones was recolonized by rats sometime after August 2004, highlighting the importance of ongoing monitoring for rat presence after a removal project. Cayo Ratones was thought to harbor one of the most robust Virgin Islands boa populations, but during the April 2018 survey (Island Conservation 2018, p. 20) and more recent September 2021 survey (DNER 2021, unpublished data; Puente-Rolón et al. 2021, entire), no boas were found.

Climate change will continue to influence the Virgin Islands boa's viability into the future. Species such as the Virgin Islands boa, that are dependent on specialized habitat types or limited in distribution, are the most susceptible to the impacts of climate change (Byers and Norris 2011, p. 22).

The climate in the southeastern United States and Caribbean has warmed about 2 degrees Fahrenheit (°F) from a cool period in the 1960s and 1970s, and temperatures are expected to continue to rise (Carter et al. 2014, pp. 398-399). Projections for future precipitation trends in this area are less certain than those for temperature, but they suggest that overall annual precipitation will decrease and tropical storms will occur less frequently but with more force ( i.e., more category 4 and 5 hurricanes) than historical averages (Carter et al. 2014, pp. 398-399; Knutson et al. 2010, pp. 161-162). With increasing temperatures and decreasing precipitation, drought could negatively influence Virgin Islands boa populations. After a severe drought in eastern Puerto Rico, Anolis populations crashed on Cayo Diablo, and body condition indices of the boas plummeted (Tolson 2018, pers. comm.).

Sea levels are expected to rise globally, ranging from 0.2 m (7.9 in) to over 1 m (3 ft) of SLR by the end of the century (Reynolds et al. 2012, p. 3; Service 2022, p. 38). Local SLR impacts in the Caribbean will depend on how much the ocean level itself rises, and on land subsidence or changes in offshore currents, but are predicted to range from 0.17 m (6.7 in) to 0.38 m (15.0 in) by 2065 (Carter et al. 2014, p. 400; Service 2022, p. 38). Impacts on terrestrial ecosystems can be temporary, via submergence of habitat during storm surges, or permanent, via saltwater intrusion into the water table, inundation of habitat, and erosion. SLR and hurricane storm surges in the Caribbean are predicted to inundate low-lying islands and parts of larger islands (Bellard et al. 2014, pp. 203-204). The low-lying islands of Cayo Diablo and the USVI Cay, which support Virgin Islands boa populations, and the island of Cayo Ratones, where we are uncertain if the island still supports a population, are all vulnerable to SLR and storm surges in the future. Boa populations on Río Grande, Culebra, and St. Thomas are not considered at risk from SLR; however, the three cays (Cayo Diablo, Cayo Ratones, and USVI Cay) could see 10-23 percent loss of low-lying habitat due to SLR over the next 30 years (Service 2022, pp. 38-46). Past and current observations suggest that the species can survive major hurricane events, although lasting impacts to habitat, particularly die-off of vegetation inundated by storm surges, have been observed (Platenberg 2018, pers. comm.; Smith 2018c, pers. comm.; Tolson 1991, pp. 12, 16; Yrigoyen 2018, pers. comm.). Loss of habitat due to storm surge impacts is similar to loss of habitat due to development; loss of low-lying forest habitat could result in decreased habitat availability for the Virgin Islands boas and their prey.

Intentional killing of the more common and larger sized Puerto Rican boa ( Chilabothrus inornatus ) due to fear or superstitious beliefs has been well documented (Bird-Picó 1994, p. 35; Puente-Rolón and Bird-Picó 2004, p. 343; Joglar 2005, p. 146). Thus, Virgin Islands boas in proximity to developed areas where people fear snakes are susceptible to intentional killings. Public encounters with Virgin Islands boas in the more populated Río Grande and Culebra locations are considered questionable because of the rarity of boas in those populations, and there are only a couple of anecdotal records of intentional killings in those areas (Service 2009, pp. 15-16). In the highly developed east side of St. Thomas, about 10 percent of the Virgin Islands boa records in St. Thomas are from boas killed by humans on private property (Platenberg 2006, unpublished data). We have no further information to assess the magnitude of this threat, but it is likely that intentional killings of Virgin Islands boas still occur, are not being documented, and would be particularly detrimental to rare populations such as in Río Grande. The Service is not aware of a law enforcement case related to the boa in Puerto Rico or the USVI. Populations that occur within protected areas are not expected to be exposed to this threat.

Positive influences on the Virgin Islands boa's viability have been habitat protection, predator control, and captive breeding and reintroduction. Two populations of Virgin Islands boa were reintroduced to protected cays after predators had been removed, one on Cayo Ratones (Puerto Rico) in 1993, and another on USVI Cay in 2002. Founders for these reintroductions came largely from a cooperative captive-breeding program initiated in 1985 between the Service, Puerto Rico DNER, U.S. Virgin Islands Department of Planning and Natural Resources (VIDPNR), and Toledo Zoological Garden. Cayo Diablo provided the founding individuals for the captive population that was reintroduced to Cayo Ratones (6 kilometers (3.5 miles) away from Cayo Diablo), and St. Thomas provided the founding individuals for the captive population that was reintroduced to the USVI Cay (4 kilometers (2.5 miles) away from St. Thomas).

The Cayo Ratones population originated from 41 captive-born boas (offspring of Cayo Diablo boas) released between 1993 and 1995. Post-release survival was high: 82.6 percent of individuals and 89 percent of neonates survived at least 1 year (Tolson 1996a, unpaginated). By 2004, the population had grown to an estimated 500 boas (Tolson et al. 2008, p. 68). Unfortunately, since 2004, Cayo Ratones has been recolonized by rats, and no boas were found during surveys in April 2018 (Island Conservation 2018, pp. 5, 20) and September 2021 (DNER 2021, unpublished data; Puente-Rolón et al. 2021, entire). However, because Virgin Islands boas are difficult to find, additional surveys are needed to confirm whether a few individuals still persist or to conclude that the population is extirpated.

The USVI Cay reintroduction was initiated with the release of 42 Virgin Islands boas in 2002 and 2003, 11 from captivity and 31 from St. Thomas. Follow-up surveys in 2003-2004 provided an estimate of 168 boas (202 boas per hectare), which researchers suspected was near carrying capacity for the island (Tolson 2005, p. 9). More recent surveys in March 2018 detected 20 boas over 2 nights and 44 boas over 3 nights in November and December 2018 (Smith 2018ab, entire). These recent surveys revealed a potential decline in abundance and the loss of two prey species (Smith 2018ab, entire), possibly as a result of density dependence as the population approached carrying capacity after reintroduction. Differences in survey and analysis methodologies complicate direct comparisons of population size between the surveys. Recent surveys also indicate that there are no rats on the island. Additional surveys are being conducted by the VIDPNR that will help continue to monitor this population and refine current estimates. Factors for consideration for future reintroduction sites include the presence and amount of suitable habitat ( e.g., appropriate forest structure, adequate prey base, available refugia), protection status or threat of development, the presence/absence/eradication of exotic predators, and geomorphology that provides protection from SLR and hurricane storm surges that are likely to affect the persistence of low-lying habitat. Potential sites for new introductions have been suggested (Reynolds et al. 2015, p. 499) and need to be further assessed, with one offshore island in St. Thomas as one of the primary sites. Some areas may require that predators be removed before boas are reintroduced and future monitoring is ensured to prevent recolonization by predators. In addition to reintroductions to new sites, augmentation of existing populations may prove beneficial or necessary for the persistence of existing populations, particularly on developed islands and cays where predators have become reestablished.

Both Puerto Rico and the USVI have regulatory mechanisms established to protect the species and its habitat through consultation processes for the authorization of development projects. Presently, the Virgin Islands boa is legally protected under Puerto Rico's Commonwealth Law No. 241-1999 (see title 12 of the Laws of Puerto Rico at section 107 et seq. (12 L.P.R.A. sec. 107 et seq. )), known as Nueva Ley de Vida Silvestre de Puerto Rico (New Wildlife Law of Puerto Rico). This law has provisions to protect habitat for all wildlife species, including plants and animals. In addition, the species is protected by Puerto Rico DNER's Regulation 6766 (Reglamento para Regir el Manejo de las Especies Vulnerables y en Peligro de Extincio´n en el Estado Libre Asociado de Puerto Rico (Regulation 6766: To govern the management of threatened and endangered species in the Commonwealth of Puerto Rico)). Article 2.06 of Regulation 6766 prohibits collecting, cutting, and removing, among other activities, listed plant and animal individuals within the jurisdiction of Puerto Rico (DRNA 2004, entire). In the USVI, Act No. 5665, known as the Virgin Islands' Indigenous and Endangered Species Act, which is enforced by the VIDPNR, protects the species.

Despite these regulations being in place, including the requirement for developers to conduct environmental assessments and mitigate damage to the species and habitat, the regulations have proved difficult to enforce, they are often ignored by developers, and they do not cover all development activities in all Virgin Islands boa habitat (Platenberg 2011, pp. 11-13). For example, in St. Thomas, major permit applications submitted for projects in the coastal zone require an environmental impact assessment that addresses endangered species and protected habitat, but these requirements do not apply to smaller projects or those outside of the coastal zone. Furthermore, as noted in one study, even though a protocol was developed and applied to delineate habitat on protected sites and identify mitigation strategies, the absence of a legal mechanism to enforce mitigation has led to varying success as developers are slow to accept, and often ignore, the mitigation process (Platenberg and Harvey 2010, pp. 551-552).

Most offshore cays within the species' range are part of the Territorial Government or protected as wildlife refuges, thus formally protecting Virgin Islands boa habitat for three of the six populations ( i.e., Cayo Diablo, Cayo Ratones, and USVI Cay). Cayo Ratones and Cayo Diablo are included in La Cordillera Natural Reserve managed by the Puerto Rico DNER, and the offshore cay in USVI is managed and protected by the VIDPNR. Furthermore, even though Virgin Islands boa habitat on privately owned land on Culebra Island is currently under pressure from urban and tourism development and deforestation, more than 1,000 acres of suitable habitat on the island are protected within the Service's Culebra National Wildlife Refuge.

In conclusion, the Virgin Islands boa still faces the threat of development on St. Thomas, Río Grande, and Culebra Island, and regulatory mechanisms addressing this threat are difficult to enforce or do not cover all development actions affecting the species. Human development results in habitat loss from deforestation and fragmentation, mortality from vehicular strikes, and increased predation by cats and rats. In addition, impacts from changes in climate could affect habitat. Drought could negatively influence Virgin Islands boa populations through loss of prey. SLR and storm surges are expected to inundate low-lying islands, such as Cayo Diablo, Cayo Ratones, and the USVI Cay, which currently support Virgin Islands boa populations. Finally, persecution of boas by citizens, due to fear or superstition, can affect individual boas, although there has never been a systematic study of the impact of these events on the overall population.

When considering conservation actions and how they influence the viability of Virgin Islands boa, about half of known localities where Virgin Islands boas occur are on small offshore islets managed for conservation. In addition, predator removal has been successful at smaller cays, such as USVI Cay, although the reestablishment of rats on Cayo Ratones illustrates the need for continued monitoring and removal efforts. Lastly, successful reintroductions of Virgin Islands boas occurred on these islands after the eradication of predators.

For the Virgin Islands boa to maintain viability, its populations, or some portion thereof, must be resilient. For the SSA report (Service 2022, entire), our classification of resiliency relied heavily on habitat characteristics in the absence of a certain population size for most populations or trend estimates. The habitat characteristics we assessed were degree of habitat protection (or, conversely, development risk), presence of introduced predators, and vulnerability to storm surges (Service 2022, p. 31).

Representation can be measured by the breadth of genetic or environmental diversity within and among populations and gauges the probability that a species is capable of adapting to environmental changes. A rangewide genetic analysis of the Virgin Islands boa showed there was little genetic variation; however, the same study found that each sampled locality had unique mtDNA haplotypes, indicating a lack of gene flow between islands (Rodríguez-Robles et al. 2015, entire). Therefore, in the SSA report we used genetics to delineate representative units.

The species also needs to exhibit some degree of redundancy in order to maintain viability. Catastrophic events that could affect both single and multiple populations of the Virgin Islands boa include drought, hurricanes, and colonization or recolonization of exotic predators. This species occurs in geographically isolated groups and does not disperse from island to island to interact and interbreed; therefore, for purposes of analyzing redundancy, all boas within each island were considered to be individual populations.

Because resiliency is a population-level attribute, the key to assessing it is the ability to delineate populations. As discussed above, we considered all boas within each island to be single populations. On small offshore cays, what we define as a population might consist of a single interbreeding deme (or subdivision) of Virgin Islands boas. On larger islands, what we define as a population functions more as a metapopulation, with multiple interbreeding groups in isolated habitat patches that may interact weakly via dispersal and recolonization of extirpated patches. Alternately, multiple occupied patches on large islands may be completely isolated from one another (Service 2022, p. 20).

Six island populations were considered: Cayo Diablo, Cayo Ratones, Culebra Island, Río Grande (Puerto Rico), St. Thomas, and USVI Cay (USVI). Further, one or more populations exist in the BVI ( e.g., Tortola), but data are severely limited, and for the SSA report, we lacked sufficient data from these islands to incorporate them into our viability analysis. In addition, other populations may occur on other offshore islands in Puerto Rico and USVI, but most have not been searched for Virgin Islands boas and we could not confirm any to be extant at the time we completed our analysis.

Resiliency scores for each population were generated by combining scores for three habitat metrics ((1) protection/development risk, (2) exotic mammals, and (3) storm surge risk) and one population metric (population size and/or trend, dependent on availability). Each metric was weighted equally, with the overall effect that habitat (three metrics) was weighted three times higher than population size/trend (one metric). For each metric, populations were assigned a score of −1, 0, or 1, as described below in table 1.

The scores were based on the best available information for each population, gathered from the literature and species experts. Monitoring data are scarce. The Virgin Islands boa recovery plan (Service 1986, pp. 16-19) called for periodic monitoring to estimate population sizes and trends, but surveys since then have been few and far between. Survey methodology and reporting have varied from population to population, with survey results given as estimated abundances, estimated densities, or encounter rates per person-hour of searching. The above-described factors in combination contribute to high levels of uncertainty in current and past population sizes, and how they have changed over time. Accordingly, resiliency classifications relied more heavily on habitat conditions than population size and trend estimates.

The scores for each population across all metrics were summed, and final population resiliency categories were assigned as follows:

Applying these resiliency categories to the six populations of Virgin Islands boa, we determined that two populations have moderate resiliency (Cayo Diablo and USVI Cay), one has moderately low resiliency (Culebra), two have low resiliency (Río Grande and St. Thomas), and one has no resiliency because it is presumed to be extirpated (Cayo Ratones).

One of the populations classified as having moderate resiliency (Cayo Diablo) occurs on a small offshore island that is free of exotic rats and cats and is protected for conservation. Boas have been consistently found on Cayo Diablo, with an April 2018 survey detecting 10 boas (Island Conservation 2018, entire), one in November 2018 that detected 14 boas (DNER 2018, unpublished data), and one in April 2022 that detected 2 boas (Smith 2022, unpublished data). Using the April 2018 data, extrapolating the density within the transect area (2.9 boas per hectare) to the entire island, the model provides an estimate of 20 boas on the island (95 percent confidence interval 13-39). This number is lower than earlier unpublished survey results; however, direct comparisons cannot be made with past surveys because of different survey and analytical methodologies (Service 2022, p. 23). The previous efforts in 1993 had marked over 250 snakes in Cayo Diablo (Tolson 1996b, p. 411), with an estimate of approximately 500 boas in the cay. Because of the protected and exotic-mammal-free state of the habitat, but with potentially declining numbers, this Cayo Diablo population is considered to have moderate resiliency to demographic and environmental stochastic events and disturbances ( e.g., fluctuations in demographic rates, variation in climatic conditions, illegal human activities).

The USVI Cay population, also on a protected offshore island with no exotic mammals, was also determined to have moderate resiliency. Previous survey efforts from 2004 resulted in a population estimate of 168 snakes (Tolson 2005, p. 9). Recent surveys have revealed a potential decline in abundance and the loss of two prey species (Smith 2018ab, entire), possibly as a result of density dependence as the population approached carrying capacity after reintroduction. Over two separate survey efforts in 2018, researchers found a total of 64 boas, including 10 recaptures (Smith 2018ab, entire). Additional surveys are being conducted by the VIDPNR, and although we do not have the results, additional boas have been detected (VIDPNR 2022, unpublished data).

The Culebra population, with some portions of habitat protected as part of Culebra National Wildlife Refuge, was determined to have moderately low resiliency. Surveys in 2018 found no boas (Island Conservation 2018, p. 20); however, two individuals were documented in February 2019 within the Culebra National Wildlife Refuge (Puente-Rolón and Vega-Castillo 2019, p. 18). In October 2019, another individual was confirmed in an area outside of the refuge (Román 2019, pers. comm.).

Three of the populations (Río Grande, Culebra, and St. Thomas) with moderately low or low resiliency occur on larger and higher elevation islands, which provide more protection from storm surges, but have more human-boa interactions, habitat loss and fragmentation from development, and exotic cats and rats. Recent surveys in 2018 on Río Grande found three boas (three survey nights) (Island Conservation 2018, p. 20). For St. Thomas, there have been no recent systematic surveys for the species as much of eastern St. Thomas is inaccessible due to private ownership or impenetrable habitat. Previous uncertain conservative estimates for this population ranged from 300 to 400 individuals (Tolson 1991, p. 12) to fewer than 100 individuals based on effective population size estimates (Reynolds et al. 2015, p. 498).

The remaining Cayo Ratones population is classified as not having resiliency because of the recolonization of rats on the island and subsequent declining trend of boas, which we presume to be extirpated, as no boas were detected during recent survey efforts conducted in April 2018 and September 2021.

A rangewide genetic analysis of Virgin Islands boa showed that there was little genetic variation within the species (Rodríguez-Robles et al. 2015, p. 150), supporting the idea that there is only one representative unit of Virgin Islands boa. However, each sampled island, and each sampled locality within the same island, had unique mtDNA haplotypes, indicating a lack of gene flow between islands/populations (Rodríguez-Robles et al. 2015, p. 150). These results suggest that each population has a different genetic signature, perhaps as a result of genetic adaptations to their local environment, or genetic drift with increasing isolation of small populations. The reintroduction program took this view, and managed captive populations sourced from Cayo Diablo and St. Thomas separately (Tolson 1996b, p. 412). To minimize the chances of introducing individuals poorly suited to their new environment, the captive population sourced from Cayo Diablo founded the reintroduced population on nearby Cayo Ratones, and the captive St. Thomas population founded the reintroduced population on the nearby USVI Cay (Tolson 1996b, p. 412).

In addition to genetic differences, the six populations also have noticeable phenotypic differences. These are not just limited to coloration differences between USVI and Puerto Rican populations (Tolson 1996b, p. 412); Cayo Diablo reportedly has lighter coloration than the Río Grande and Culebra populations (Tolson 2018, pers. comm.). The Río Grande population also occurs in a different habitat type (subtropical moist forest) than the others (subtropical dry or littoral forest; Tolson 1996b, p. 410).

In light of this information, we considered each of the four natural populations in Puerto Rico and USVI as a representative unit (see table 2, below). The Cayo Diablo population is considered to have moderate resiliency. As this was the source for the now presumed extirpated Cayo Ratones population, there is only one population representing the Cayo Diablo genetic signature. The USVI Cay population was sourced from St. Thomas, so there are two populations with St. Thomas representation, with neither considered to have high resiliency. The other two natural populations, Culebra and Río Grande, both characterized as having moderately low or low resiliency, have not been used for captive breeding and reintroduction, and so have no additional populations on other islands with the same genetic characteristics. Overall, two of four representative units have at least one moderately resilient population.

While currently we could consider the USVI Cay reintroduced population (currently with moderate resiliency) to be a redundant population sharing the same genetic signature and adaptive potential as its source population, all islands occupied by Virgin Islands boa are isolated from each other. Without human-mediated movement of boas between islands, reintroduced populations are expected to diverge genetically from their source populations over time, and may at some point in the future (decades to centuries; Reynolds et al. 2015, entire) be different enough to be considered their own unique representative unit.

Redundancy describes the ability of a species to withstand catastrophic events. Measured by the number of populations, their resiliency (ability of a species to withstand environmental and demographic stochasticity ( e.g., wet or dry years)) and their distribution (and connectivity), redundancy gauges the probability that the species has a margin of safety to withstand or return from catastrophic events (such as a rare destructive natural event or episode involving many populations).

The exact historical distribution of the Virgin Islands boa is unknown, but its present disjointed distribution suggests that it was once more widely distributed across small islands within its range, which have been subject to local extirpations from habitat degradation, invasive species, and historical climate and sea level changes. However, for current redundancy, we identified the five populations in Puerto Rico and USVI. As discussed above, two of these populations are considered to have a moderate level of resiliency, which provides some ability to withstand the effects of catastrophic events. However, these populations are considered small and potentially declining or trend unknown. Therefore, overall redundancy for the species is low.

Of the six assessed populations, the Cayo Diablo population and the USVI Cay population have moderate resiliency and the Culebra population has moderately low resiliency. The other three assessed populations currently have low resiliency or are likely extirpated (Cayo Ratones). Redundancy for the species includes populations on five islands in Puerto Rico and USVI, and possibly more in the BVI, although islands in the BVI are not part of this assessment. Representation consists of four representative units, one of which has two populations representing its genetic signature, and two of the four units have populations with moderate levels of resiliency.

The Virgin Islands boa has demonstrated some ability to adapt to changing environmental conditions over time from both anthropogenic threats ( e.g., habitat disturbance due to development) and natural disturbances ( e.g., predation and hurricanes). Compared to the species' distribution at the time of listing (see 35 FR 16047; October 13, 1970), which included three locations (Puerto Rico, St. Thomas, and Tortola), the species currently has five populations (potentially more if others are eventually confirmed). Two of the five current populations exhibit moderate levels of resiliency, whereas three exhibit moderately low to low resiliency. One other assessed population is presumed extirpated (Cayo Ratones).

We note that, by using the SSA framework to guide our analysis of the scientific information documented in the SSA report, we have not only analyzed individual effects on the species, but we have also analyzed their potential cumulative effects. We incorporate the cumulative effects into our SSA analysis when we characterize the current and future condition of the species. Our assessment of the current and future conditions encompasses and incorporates the threats individually and cumulatively. Our current and future condition assessment is iterative because it accumulates and evaluates the effects of all the factors that may be influencing the species, including threats and conservation efforts. Because the SSA framework considers not just the presence of the factors, but to what degree they collectively influence risk to the entire species, our assessment integrates the cumulative effects of the factors and replaces a standalone cumulative effects analysis.

Because we determined that the current condition of the Virgin Islands boa is consistent with an endangered species (see Determination of Status, below), we are not presenting the results of the future scenarios in this withdrawal. For more information on the future condition, future threats, and future scenarios for the Virgin Islands boa, see the SSA report (Service 2022, pp. 36-60).

Section 4 of the Act (16 U.S.C. 1533) and its implementing regulations (50 CFR part 424) set forth the procedures for determining whether a species meets the definition of “endangered species” or “threatened species.” The Act defines an “endangered species” as a species that is in danger of extinction throughout all or a significant portion of its range, and a “threatened species” as a species that is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The Act requires that we determine whether a species meets the definition of “endangered species” or “threatened species” because of any of the following factors: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

Compared to the species' distribution at the time of listing (see 35 FR 16047; October 13, 1970), which included three locations (Puerto Rico, St. Thomas, and Tortola), Virgin Islands boa currently has five extant populations (potentially more if others are eventually confirmed), and one presumed extirpated population. None of the populations exhibit high resiliency; only two of the six current populations exhibit moderate level of resiliency (Cayo Diablo and USVI Cay), one has moderately low resiliency (Culebra), two exhibit low resiliency (Rio Grande and St. Thomas), and one is considered presumed extirpated (Cayo Ratones). Recent surveys indicate that current population trend estimates are either declining, potentially declining, considered rare, or unknown and most populations are small or considered rare (Service 2022, p. 30). Three of the populations are currently impacted by habitat loss and degradation by development, three populations are at high risk from storm surges, and three of five populations are under imminent threat by exotic mammal predation. The species does not have enough current redundancy, lacking highly resilient populations and having only two moderately resilient populations; thus, the species is at risk from catastrophic events. In addition, as the species lacks multiple resilient populations that contribute to the genetic diversity of the species, thus limiting species representation or overall future adaptive capacity.

In summary, due to the new information we received during both of the September 30, 2020, proposed rule's public comment periods and at the May 12, 2021, public hearing, we find that there is no longer sufficient evidence to justify reclassifying the Virgin Islands boa as a threatened species, and the species still meets the Act's definition of an endangered species. The new information included the probable extirpation of Virgin Islands boas due to colonization of rats on Cayo Ratones, and an error in calculations affecting the current resiliency score for the Cayo Diablo population. Based on our revised SSA report (Service 2022, entire) incorporating this new information, estimates of current resiliency for the Virgin Islands boa are low, as are estimates for representation and redundancy. The Virgin Islands boa faces a variety of ongoing threats from habitat loss and degradation from development, introduced predators, SLR and a changing climate, and public attitudes towards snakes. Given current rates of resiliency, populations are vulnerable to extirpation from stochastic events, in turn, resulting in concurrent losses in representation and redundancy. For these reasons, the Virgin Islands boa is in danger of extinction throughout its range.

Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so in the foreseeable future throughout all or a significant portion of its range. We have determined that the Virgin Islands boa is in danger of extinction throughout all of its range and accordingly did not undertake an analysis of any significant portion of its range. Because the Virgin Islands boa warrants listing as endangered throughout all of its range, our determination does not conflict with the decision in Center for Biological Diversity v. Everson, 435 F. Supp. 3d 69 (D.D.C. 2020) ( Everson ), which vacated the provision of the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014) providing that if the Service determines that a species is threatened throughout all of its range, the Service will not analyze whether the species is endangered in a significant portion of its range.

Our review of the best available scientific and commercial information indicates that the Virgin Islands boa continues to meet the Act's definition of an endangered species. Therefore, in accordance with section 4(b)(6)(A)(i)(IV) of the Act, we withdraw our proposed rule to reclassify the Virgin Islands boa as a threatened species with a rule issued under section 4(d) of the Act.

A complete list of references cited in this document is available on the internet at https://www.regulations.gov and upon request from the Caribbean Ecological Services Field Office (see FOR FURTHER INFORMATION CONTACT ).

The primary authors of this document are the staff members of the Fish and Wildlife Service's Species Assessment Team and the Caribbean Ecological Services Field Office.

The authority for this action is the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ).