This action, pursuant to 5 U.S.C. 553, proposes to amend regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This proposal is issued under Marketing Order No. 981, as amended (7 CFR part 981), regulating the handling of almonds grown in California. Part 981 (referred to as the “Order”) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Board locally administers the Order and comprises growers and handlers of almonds operating within the area of production.

The USDA is issuing this proposed rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.

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

This proposal has been reviewed under Executive Order 12988, Civil Justice Reform. This rule shall not be deemed to preclude, preempt, or supersede any State program covering almonds grown in California.

The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 8c(15)(A) of the Act (7 U.S.C. 608c(15)(A)), any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

Section 1504 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) (Pub. L. 110-246) amended section 8c(17) of the Act, which in turn required the addition of supplemental rules of practice to 7 CFR part 900 (73 FR 49307; August 21, 2008). The amendment of section 8c(17) of the Act and the supplemental rules of practice authorize the use of informal rulemaking (5 U.S.C. 553) to amend Federal fruit, vegetable, and nut marketing agreements and orders. USDA may use informal rulemaking to amend marketing orders depending upon the nature and complexity of the proposed amendments, the potential regulatory and economic impacts on affected entities, and any other relevant matters.

AMS has considered these factors and has determined that the amendments proposed herein are not unduly complex and the nature of the proposed amendments is appropriate for utilizing the informal rulemaking process to amend the Order. This proposed rule encompasses a number of changes that are primarily administrative or modernizing in nature. These changes would simplify, clarify, or align Order language with current industry practices and definitions. A discussion of the potential regulatory and economic impacts on affected entities is discussed later in the “Initial Regulatory Flexibility Analysis” section of this proposed rule. The amendments would apply equally to all producers and handlers, regardless of size. The proposed amendments also have no additional impact on the reporting, record-keeping, or compliance costs of small businesses.

The Board unanimously recommended seven proposed Order amendments following deliberations at a public meeting held on August 11, 2020. The Board submitted its formal recommendation to amend the Order through the informal rulemaking process on August 9, 2021.

A proposed rule soliciting public comments on the proposed amendments published in the Federal Register on April 27, 2023 (88 FR 25559). AMS received one comment in support of the proposed rule. Based on all the information available to AMS at this time, including the comment received in response to the proposed rule, no substantive changes will be made to the proposed amendments.

AMS will conduct a producer referendum to determine support for the proposed amendments. If appropriate, a final rule will then be issued to effectuate the amendments, if they are favored by producers in the referendum.

The proposal would:

• amend the Order to modify the definitions of “Almonds” and “Shelled almonds”, and add a definition for “Almond biomass” (Proposal 1),

• change the date utilized to determine the applicable handler volume for the purpose of tabulating handler votes in the nomination process for handler positions on the Board (Proposal 2),

• replace obsolete references to “Control Board” with “Board” in two sections (Proposal 3),

• simplify language pertaining to incoming quality control (Proposal 4),

• change the date that the Board is required to submit volume regulation estimates and recommendations to the Secretary (Proposal 5),

• remove language that distinguishes certain funds in the accounting of the Board's operating reserve fund and sets the reserve fund limit at approximately six-months' expenses instead of six-months' budget (Proposal 6), and

• add authority to accept advanced assessments and to borrow funds from commercial lenders (Proposal 7).

Sections 981.4 and 981.6 define Almonds and Shelled Almonds, respectively, for the purposes of the Order. Specifically, as defined in the Order, “ almonds means (unless otherwise specified) all varieties of almonds (except bitter almonds), either shelled or unshelled, grown in the State of California, and for the purposes of research includes almond shells and hulls.” “ Shelled almonds mean raw or roasted almonds after the shells are removed and includes blanched, diced, sliced, slivered, cut, halved, or broken almonds, or any combination thereof. Additional almond products may be included by the Secretary from time to time upon consideration of a recommendation from the Board or other pertinent information.” This proposal would amend § 981.4 to broaden the definition of Almonds to include almond biomass for research purposes. This proposal would add a new section, § 981.4(a), to specifically define almond biomass. § 981.6, which defines Shelled almonds, would also be amended to include any form that almonds without shells might take.

As the almond industry has significantly evolved since promulgation of the Order, the versatility of almond usage has also expanded.

In the mid-1970s, the Board sought to redefine almonds to include shells and hulls. A formal rulemaking hearing covering that and other proposals took place. The initial proposal sought to redefine almonds to include hulls and shells for the purpose of § 981.41. See 40 FR 50289.

Section 981.41 authorizes projects involving production and marketing research designed to assist, improve, or promote the marketing, distribution, consumption, or efficient production of almonds. Testimony at the hearing explained that research to find new and more profitable uses for, or better methods of, handling shells and hulls should be permitted under the Order. Testimony further indicated that shells and hulls together weigh approximately three times the kernelweight of almonds. Accordingly, a sizable quantity of shells and hulls is produced annually and represents a significant economic factor. Testimony indicated that grower returns could be improved if more profitable outlets or better methods of handling can be found for shells and hulls. See 41 FR 15341.

Testimony at the hearing further indicated that the Board should not undertake any marketing promotion including advertising activity for shells and hulls. Ultimately, the definition of almonds was revised to include hulls and shells for the purposes of research. See 41 FR 26852.

This proposal would amend § 981.4 to broaden the definition of Almonds to include almond biomass for research purposes. This proposal would add a new section, § 981.4(a), to specifically define almond biomass.

In the past, biomass (hulls, shells, skins, prunings, etc.) offered limited additional value to the growers. Huller/shellers would primarily sell their hulls for feed, use the shells for bedding or power cogeneration, and burn woody biomass, such as whole trees or prunings. Now, with expanding production levels, the industry estimates that it generates over 5.6 billion pounds of hulls and shells alone each year. In addition, stricter environmental regulations have made it more difficult to dispose of organic material through burning. Consequently, the industry has devoted significant effort to identify new solutions to utilize waste material in the orchard or in other non-edible product streams.

With an increased focus on full utilization of what comes out of the almond orchard, innovative technologies and research have revealed more value-added applications for what were previously by-products with limited to no value. For example, almond skins, which are the result of blanching brownskin almonds, are being used for fiber addition, shells are incorporated into plastics using torrefaction, sugar can be extracted from hulls, and “whole orchard recycling” techniques incorporate chipped prunings and woody biomass into the soil. These new uses bring additional profitability to the grower.

Therefore, the Board recommended that the current almond definition in § 981.4 be broadened to accommodate all almond biomass, not just shells and hulls. It also recommended that the definition of almonds be further expanded to include § 981.4(a) to specifically define almond biomass as almond hulls, shells, skins, and woody biomass ( i.e. trees and prunings).

During discussions regarding the definition of “almonds,” Board members noted that their research and development projects should address the entire almond category. Such efforts should encompass all aspects of almond production, going beyond almond kernels, inshell almonds, and the by-product shells and hulls. The interest in innovative applications for almond by-products and biomass utility has expanded over the years. Specifically, the Board has prioritized research of water conservation, zero orchard waste production practices, environmentally friendly pest management tools, and additional ways to reduce carbon dioxide emissions.

The Board does not intend to engage in marketing promotion or advertising of almond biomass, nor does it intend to permit any credit-back reimbursements to be applied to biomass (just as such reimbursements were never applied to shells and hulls). In its marketing promotion and advertising activity for consumable almonds, the Board would likely refer to its research efforts associated with almond biomass and its focus on sustainability and improving grower returns.

During subsequent discussions, the Board emphasized that none of the changes in definitions would impact or materially expand the Board's authorities, nor would they expand the type of research or activities which are conducted by the Board. Rather, these changes would update the regulatory text to reflect current industry terminology and more accurately describe almond by-products that now represent additional value to the grower, which were previously viewed as waste.

Finally, to accommodate for new innovations in the almond industry, the Board recommended modifying the definition of shelled almonds in § 981.6 to include any form an almond without a shell might take, rather than specifying the exact almond form. This modification would simplify the language to provide flexibility in the event there are different forms or descriptors of almonds used in the future. The modifications to § 981.6 would strike “raw or roasted” and remove the overly prescriptive language “blanched, diced, sliced, slivered, cut, halved, or broken almonds, or any combination thereof.”

Section 981.32(b)(2) of the Order establishes the criteria for how handlers may vote for Board nominees. This proposal would amend § 981.32(b)(2) by changing the handling period date for determining a handler's nomination weighting from December 31 to March 31 of the crop year in which the nominations are made (crop year being August 1 to the following July 31). Moving the date forward (further into the crop year) would allow for a more accurate determination of handler volume to be utilized when calculating each handler's weighting for Board nominations.

The volume of almonds handled, as reported by the handlers, determines each handler's weighted vote for membership on the Board. The Board issues assessment invoices to handlers four times per year on a set schedule. The Board currently uses the volume handled per the December 31 assessment invoice to establish a handler's weighted vote. When the nominations and term of office dates were changed in the last amendment to the Order in October 2019 (84 FR 50713), it shifted the period for voting to later in the year. With the reestablishment of election dates, the Board can now utilize each handler's March 31 assessment volume as the basis for computing handler volume for voting purposes. Moreover, as crop yields increase and deliveries of almonds from growers to handlers extend later into the crop year, using the March 31 assessment date to determine handling quantity would ensure that a larger proportion of the crop will be delivered and reported to the Board, and a more accurate estimate of handler volume may be utilized in the voting process.

This proposed date change would not impact how handler volume is calculated, nor would it have any impact on the voting process. The proposed date change would also take into consideration timing of Board meetings and election dates.

Section 981.41(b) provides authorization for the Board to recommend research, development, and marketing promotion projects. However, the existing language in § 981.41(b) refers to the Board by its former name “Control Board.” This proposal would update this section to correctly refer to the Board by its current name.

Similarly, § 981.59(a), which provides authorization for the Board to determine the reserve obligation for handlers, refers to the Board by its old name “Control Board.” The proposed action would update this section to correctly refer to the Board by its current name.

Each of the proposed changes to § 981.41(b) and § 981.59(a) are administrative in nature and would have no impact on the Board's activities.

Section 981.42(a) requires handlers to determine, through quality control inspections performed by the inspection agency, the percentage of inedible kernels received and report the determination to the Board. Such inedible kernels shall be delivered to the Board or a Board-approved alternate outlet. The current language specifies such outlets as “crushers, feed manufacturers, or feeders” and limits the delivery of inedible kernels to the same. This proposal would change § 981.42(a) to refer to all delivery outlets approved by the Board for inedible kernels as “accepted users” and would authorize alternative outlets for such product, so long as they meet established criteria determined by the Board.

This change would broaden language related to approved outlets for inedible kernels in the incoming quality control regulations. Specifically, it would adopt the more common industry term—accepted users—to refer to the types of outlets for inedible kernels currently delineated in the Order (crushers, feed manufacturers, and feeders). The term is recognized by industry to encompass other disposition outlets not specifically prescribed, but commonly used, such as a landfill. Using the term “accepted users” would also not limit other disposition outlets that may be utilized in the future.

Further, the term “accepted user” is utilized later in the Administrative Requirements section of the Order, so the term is understood and utilized by the Board and the industry in the administration of the Order. Section 981.442(a)(5) stipulates the requirements for handlers to meet their disposition obligation. In that section, handlers must deliver inedible product to entities “on record with the Board as accepted users.” The Board utilizes Form ABC-34, Application to be Approved as an Accepted User of Inedible Almonds and Almond Waste, in the approval process for accepted users. This action would harmonize § 981.41(a) with other sections of the Order and the existing administrative oversight mechanisms of the Board.

Section 981.49 requires that the Board furnish to the Secretary estimates of the supply and demand for almonds, and the corresponding salable and reserve percentages to be established, by August 1 of each year that volume regulation is being considered. The estimates aid the Secretary in determining if volume regulation would tend to effectuate the policy of the Act and in fixing the appropriate salable and reserve percentages.

This proposal would change the date that such information must be furnished to the Secretary from August 1 to September 1 of each crop year. Revising the reporting date would allow for more data to be considered when making recommendations for volume regulation.

Currently, the Order specifies August 1 as the date when industry estimates and volume recommendation must be furnished to the Secretary. However, this date immediately follows the end of the crop year, and it provides little time for the Board to compile industry data and formulate recommendations for salable and reserve percentages. In addition, data pertinent to the subject are not available until after the August 1 date. As an example, the final position report of crop year shipments and commitments is not published until the first week of August.

The current submission date also limits the time available for discussion by the Board when considering volume control recommendations. The Board normally meets in early August, after the publication of National Agricultural Statistics Service's (NASS) Objective Forecast in July and year-end crop information are available. By moving the date of notification to the Secretary to September 1, the Board would avoid having to schedule a special meeting in July to meet the Order's requirement. The September 1 date would also allow the Board's staff to complete a full analysis utilizing final crop numbers and the NASS data. As such, the proposed date change would increase the time available for Board discussions and allow for more thorough data analysis, providing greater accuracy in the calculations that might be made for the reserve recommendation. This change would have no impact on crop estimates or other Board activities.

Section 981.81(b) stipulates authorized use and refund requirements for assessments collected but not utilized within the applicable crop year. Under the provisions in that paragraph, certain excess funds, if not expended, must be held as qualified reserve funds that may only be expended on marketing promotion expenses. Further, the paragraph refers to accounting for funds held in reserve as being segregated into separate “portions” of the reserve.

Section 981.81(c) prescribes requirements for the Board's financial reserve. Currently, the Board maintains its operating reserve in two “portions,” one consisting of funds to be used for administrative-research functions and another consisting of funds to be used for marketing promotion activities. The amount in each portion is not to exceed approximately six-months' budget for the respective activity area.

The Board has found it impractical to maintain separate accounting of excess and reserve funds for administrative-research purposes and marketing promotion purposes. The Board has authority to recommend an operating budget and assessment rate each year, and it can also draw from its operating reserve to fund operations at any time during the year. Maintaining separate accounting to designate reserve funds for certain distinct purposes, however, adds administrative burden with no recognizable benefit. While the accounting scheme may have served a purpose in the past, the Board believes that it is redundant and obsolete moving forward.

This proposal would revise the Order's regulatory language in §§ 981.81(b) and 981.81(c) regarding assessment accounting procedures and processes for funds held in reserve. Both sections refer to keeping separate the funds used for administrative-research activities and funds used for marketing promotion activities. To facilitate the efficient accounting of reserve funds moving forward, this proposal would remove language in § 981.81(b) that refers to the proportional segregation of reserve funds according to their administrative-research or marketing promotion use. Similarly, this proposal would strike language in § 981.81(c) which currently specifies that the reserve fund consists of an administrative-research portion and a marketing promotion portion. It would also modify the language that limits the amount held in reserve to not exceed “approximately six-months' budget” for each activity to read “six-months' expenses”, without any reference to “each activity.”

The recommended changes would not impact the percentage of the assessment available for credit-back, nor would it materially impact reserves. In addition, although there would not be separate reserve accounts for different activities, the Board and USDA would continue to know how all monies are spent and to which activities they are allocated through the Board's marketing policy, budget, and other approval and oversight mechanisms and records. This is an administrative change, clarifying in the Order language that each portion would not technically be maintained in separate accounts.

Section 981.81 authorizes the collection of assessments from almond handlers to provide funds to meet authorized Board expenses and the operating reserve requirements. This proposal would create a new § 981.81(f) to authorize the Board to accept advance payments of assessments and to borrow funds from commercial lending institutions to better ensure continuity in operations during periods when neither operating assessments nor reserve funds are sufficient to fund Board functions.

As almond tonnage and assessment revenue have increased since the Order's promulgation, the industry has approved increasingly larger budgets which have year-round financial commitments. However, growers do not necessarily deliver the entire assessable crop at one time, nor do handlers have the facilities to process the entire crop at one time, and handlers instead purchase and market almonds throughout the production cycle. As a result, only about 17 percent of assessment revenue is paid to the Board when the first crop year assessment invoice is sent to handlers in October. Consequently, the Board invoices for assessments in the second and third quarters of the crop year. Yet, many research activities and marketing programs are initiated early in the crop year, necessitating payment when services are performed, often well before the first assessments are received from October invoices. Although the Board currently maintains a reserve fund to help pay for early expenses, this fund is insufficient to advance some of the necessary payments. Authorizing the Board to accept advance assessment payments and to borrow from commercial lending institutions would help it manage and sustain program activities during times of cash flow deficiencies.

Board members further noted that the ability to borrow against a line of credit is a common tool authorized in other Federal marketing orders, especially to accommodate expenses when the assessment revenue necessary to pay such expenses is not received until later in the year. While addressing general business concerns about the potential risks associated with debt financing, the Board agreed that its internal control policies would be revised to reflect the new borrowing authorities. Notably, the Board stressed that these policies would include financing procedures that would require any borrowing by the Board to be reimbursed upon receipt of sufficient assessment revenue. Moreover, Board members stressed that any borrowing of funds would be short-term in nature, limited, and would not extend beyond the end of the crop year.

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

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

There are approximately 7,600 almond growers in the production area and approximately 100 handlers subject to regulation under the Order. In the previous proposed rule, published in the Federal Register on April 27, 2023 (88 FR 25559), the small agricultural almond producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $3,250,000, and small agricultural service firms are defined as those having annual receipts of less than $30,000,000 (13 CFR 121.201). Since that publication, the SBA updated the definition of small businesses to those having annual receipts of less than $3,750,000 for producers and $34,000,000 for handlers (13 CFR 121.201). Thus, AMS changed the thresholds to reflect the new SBA thresholds in this proposed rule and referendum order. The changes do not impact AMS's ultimate determination regarding the impact of the rule on small entities. NASS reported in its 2017 Census of Agriculture (Census) that there were 7,611 almond farms in the production area, of which 6,683 had bearing acres. Additionally, the Census indicates that out of the 6,683 California farms with bearing acres of almonds, 4,425 (66 percent) have fewer than 100 bearing acres.

In another publication, NASS reported a 2021 crop year average yield of 2,210 pounds per acre and a season average grower price of $1.76 per pound. Therefore, a 100-acre farm with an average yield of 2,210 pounds per acre would produce about 221,000 pounds of almonds (2,210 pounds times 100 acres equals 221,000 pounds). At $1.76 per pound, that farm's production would be valued at $388,960 (221,000 pounds times $1.76 per pound equals $388,960). Since the Census indicated that 66 percent of California's almond farms are less than 100 acres, it could be concluded that the majority of California almond growers had annual receipts from the sale of almonds of less than $388,960 for the 2020-21 crop year, which is below the SBA threshold of $3,750,000 for small producers. Therefore, the majority of growers may be classified as small businesses.

To estimate the proportion of almond handlers that would be considered small businesses, it was assumed that the unit value per pound of almonds exported in a particular year could serve as a representative almond price at the handler level. A unit value for a commodity is the value of exports divided by the quantity exported. Data from the Global Agricultural Trade System (GATS) database of USDA's Foreign Agricultural Service showed that the value of almond exports from August 2020 to July 2021 (combining shelled and inshell) was $4.647 billion. The quantity of almond exports over that time-period was 2.162 billion pounds. Dividing the export value by the quantity yields a unit value of $2.15 per pound ($4.647 billion divided by 2.162 billion pounds equals $2.15).

NASS estimated that the California almond industry produced 2.915 billion pounds of almonds in 2021. Applying the $2.15 derived representative handler price per pound to total industry production results in an estimated total revenue at the handler level of $6.267 billion (2.915 billion pounds × $2.15 per pound). With an estimated 100 handlers in the California almond industry, average revenue per handler would be approximately $62.67 million ($6.267 billion divided by 100). Assuming a normal distribution of revenues, most almond handlers shipped almonds valued at more than $34,000,000 during the 2020-21 crop year. Therefore, the majority of handlers may be classified as large businesses.

This proposed rule would revise multiple provisions in the Order's subpart regulating handling of California almonds. Specifically, the proposed rule would:

• amend the Order to modify the definitions of “Almonds” and “Shelled almonds”, and add a definition for “Almond biomass” (Proposal 1),

• change the date utilized to determine the applicable handler volume for the purpose of tabulating handler votes in the nomination process for handler positions on the Board (Proposal 2),

• replace obsolete references to “Control Board” with “Board” in two sections (Proposal 3),

• simplify language pertaining to incoming quality control (Proposal 4),

• change the date that the Board is required to submit volume regulation estimates and recommendations to the Secretary (Proposal 5),

• remove language that distinguishes certain funds in the accounting of the Board's operating reserve fund and set the reserve fund limit at approximately six-months' expenses instead of six-months' budget (Proposal 6), and

• add authority to accept advanced assessments and to borrow funds from commercial lenders (Proposal 7).

Proposals 1, 3, and 4 are modernizing in nature and align Order provisions with current industry definitions and practices in §§ 981.4, 981.6, 981.41(b), and 981.59(a). It would also add § 981.4(a) to define Almond Biomass and simplify language in § 981.42(a) to identify disposition outlets more broadly as Accepted Users. There are no substantial changes or additional requirements to industry practices effectuated as a result of these proposed amendments.

Proposals 2 and 5 adjust or align dates to allow for the inclusion of more available data when determining weighting of handler votes for Board nominations (§ 981.32(b)(2)) and providing volume regulation recommendations to the Secretary (§ 981.49). These changes would not impact how volume is calculated for handler vote weighting, materially affect crop estimates, or adversely impact Board activities.

Proposal 6 removes language that distinguishes between funds for administrative-research and funds for marketing promotion activities in the accounting of excess funds (§ 981.81(b) and (c)). In addition, it would set the reserve fund limit at approximately six-months' expenses instead of the current six-months' budget. This is an administrative adjustment that provides technical clarification on the accounting of assessments and reserves. It does not impact the percentage of assessments available for refund, nor does it materially impact reserves.

Proposal 7 would add a new section, § 981.81(f), to allow the Board to accept advance payment of assessments and borrow funds against the current season's assessment receipts using a line of credit from a commercial financial institution to provide additional flexibility in managing its cashflows and expenses.

This proposed rule would apply equally to producers and handlers, regardless of size. The proposed amendments have no additional impact on the reporting, record-keeping, or compliance costs of small businesses.

The Board considered the benefits and costs of maintaining the status quo as an alternative to this proposed rule; however, the Board determined that each proposed amendatory change was beneficial in either clarifying or updating the language of the Order for industry or improving the Board's continuity of operations at no additional costs to industry.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes in those requirements are necessary because of this action. Should any changes become necessary, they would be submitted to OMB for approval.

This proposed rule would impose no additional reporting or recordkeeping requirements on either small or large almond handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public-sector agencies.

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

USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this action.

The Board's meetings are widely publicized throughout the California almond production area. All interested persons are invited to attend the meeting and encouraged to participate in Board deliberations on all issues. Like all Board meetings, the meetings held on December 9, 2019, August 11, 2020, and December 7, 2020, were public, and all entities, both large and small, were encouraged to express their views on the proposals.

A proposed rule concerning this action published in the Federal Register on April 27, 2023 (88 FR 25559). A copy of the rule was sent via email to the Board staff for distribution to all Board members and California almond growers and handlers. The proposed rule was also made available by USDA through the internet and the Office of the Federal Register. A 60-day comment period ending June 26, 2023, was provided to allow interested persons to respond to the proposals. AMS received one comment during the comment period. The comment supported the proposed amendments. Based on all the information available to AMS at this time, including the comments received in response to the proposed rule, no substantive changes will be made to the amendments as proposed.

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

AMS has determined that the findings and conclusions, and general findings and determinations included in the proposed rule set forth in the April 26, 2023, issue of the Federal Register (88 FR 25559) are appropriate and necessary and are hereby approved and adopted.

Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling Almonds Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions. It is hereby ordered that this entire proposed rule be published in the Federal Register .

It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR part 900.400-407) to determine whether the annexed order amending the Order regulating the handling of almonds grown in California is approved by growers, as defined under the terms of the Order, who during the representative period were engaged in the production of almonds in the production area. The representative period for the conduct of such referendum is hereby determined to be August 1, 2022, through July 31, 2023.

The agents designated by the Secretary to conduct the referendum are Bianca Bertrand, Barry Broadbent, Gary Olson, and Peter Sommers, West Region Branch, Market Development Division, Specialty Crops Program, AMS, USDA; Telephone: (863) 324-3375, Fax: (863) 291-8614, or Email: BiancaM.Bertrand@usda.gov, Barry.Broadbent@usda.gov, GaryD.Olson@usda.gov, and PeterR.Sommers@usda.gov, respectively.

The findings and determinations hereinafter set forth are supplementary to the findings and determinations which were previously made in connection with the issuance of Marketing Order 981; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

1. Marketing Order 981 as hereby proposed to be amended and all the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

2. Marketing Order 981 as hereby proposed to be amended regulates the handling of almonds grown in California and is applicable only to persons in the respective classes of commercial and industrial activity specified in the Order;

3. Marketing Order 981 as hereby proposed to be amended is limited in application to the smallest regional production area which is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several marketing orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

4. Marketing Order 981 as hereby proposed to be amended prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of almonds produced or packed in the production area; and

5. All handling of almonds grown or handled in the production area, as defined in Marketing Order 981 is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

It is therefore ordered, that on and after the effective date hereof, all handling of almonds grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said Order as hereby proposed to be amended as follows:

The provisions of the proposed marketing order amending the Order contained in the proposed rule issued by the Administrator and published in the Federal Register (88 FR 25559) on April 27, 2023, will be and are the terms and provisions of this order amending the Order and are set forth in full herein.

For the reasons set forth in the preamble, the Agricultural Marketing Service proposes to amend 7 CFR part 981 as follows:

The revisions and addition read as follows:

I. Background

On January 14, 2019, the President signed into law the Nuclear Energy Innovation and Modernization Act (NEIMA), Public Law 115-439, 132 Stat. 5565. Among other things, NEIMA directs the NRC to develop and establish, by December 31, 2027, a regulatory framework for fusion reactors.

In response to NEIMA and the continued development of fusion technologies, the Commission directed the NRC staff to proceed with a limited scope rulemaking in a staff requirements memorandum (SRM) dated April 13, 2023, SRM-SECY-23-0001 (ADAMS Accession No. ML23103A449), associated with SECY-23-0001, “Options for Licensing and Regulating Fusion Energy Systems,” dated January 3, 2023 (ADAMS Accession No. ML22273A163). The NRC is proposing to amend its regulations at part 30, “Rules of General Applicability to Domestic Licensing of Byproduct Material,” in title 10 of the Code of Federal Regulations (10 CFR) to implement a regulatory framework for fusion systems. The NRC also is proposing similar changes to its regulations at 10 CFR part 20, “Standards for Protection Against Radiation,” and part 51, “Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions.”

The NRC is developing preliminary proposed rule language to provide for the licensing and oversight of the broad array of fusion systems currently under development. The proposed rule would amend 10 CFR parts 20, 30, and 51. The scope of this rulemaking is to augment NRC's byproduct material framework to address licensing requirements for fusion systems that may be deployed in the near-term. The NRC will propose appropriate fusion-related definitions, requirements for the content of a licensing application, and other appropriate requirements.

The current preliminary proposed rule language is available on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2023-0071. The ADAMS accession number for the current preliminary proposed rule text is ML23258A145. This preliminary proposed rule language is draft and may be incomplete in one or more respects; however, the NRC welcomes discussion with stakeholders at the public meetings to inform the NRC's rulemaking activity. The NRC may release additional preliminary proposed rule language throughout the development of the proposed rule.

The NRC plans to hold public meetings on October 11, 2023, November 1, 2023, and November 9, 2023. The meetings are noticed in the NRC's Public Meeting Notice System. The NRC is providing preliminary proposed rule language to increase transparency and to facilitate discussions with stakeholders on the regulatory framework for fusion systems. Please monitor the NRC's Public Meeting Notice System website at https://www.nrc.gov/pmns/mtg as the NRC may post materials for the public meetings at any time before to the start of each public meeting.

The NRC will post materials related to this rulemaking on the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2023-0071. Please monitor the docket on https://www.regulations.gov and use the following information to sign up for docket alerts. The Federal rulemaking website allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) navigate to the docket folder (NRC-2023-0071); (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

A. Comments Invited

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The FAA also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. Additionally, the FAA requests comment on whether the FAA should remove the definition of consensus standard from § 1.1 altogether or revise the definition as proposed. 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 submit only one time if comments are filed electronically or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

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), 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 the person identified in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary 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 regulations.gov;

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

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

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) 267-9680. 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 referenced in item (1) above.

On July 24, 2023, the FAA published an NPRM titled “Modernization of Special Airworthiness Certification,” in the Federal Register (88 FR 47650; Notice No. 23-10). In the NPRM, the FAA proposed to amend rules for the manufacture, certification, operation, maintenance, and alteration of light-sport aircraft. The proposed amendments would enable enhancements in safety and performance and would increase privileges under a number of sport pilot and light-sport aircraft rules. These enhancements include increasing suitability for flight training, limited aerial work, and personal travel. This proposed rule would expand what aircraft sport pilots may operate. The NPRM also proposed to amend the special purpose operations for restricted category aircraft; amend the duration, eligible purposes, and operating limitations for experimental aircraft; and add operating limitations applicable to experimental aircraft engaged in space support vehicle flights to codify statutory language. Commenters were instructed to provide comments on or before October 23, 2023 ( i.e., 90 days from the date of publication of the NPRM).

Since publication, the FAA received 10 comments from individuals requesting that comment period not be extended. The FAA has also received requests from Aircraft Electronics Association, Aeronautical Repair Station Association, Aviation Suppliers Association, Aviation Technician Education Council, Helicopter Association International, International Air Response, Inc., Modification and Replacement Parts Association, and the National Air Transportation Association to extend the comment period by an additional ninety (90) days. These commenters requested more time to review the proposed rule and associated guidance documents, and to develop comments and recommendations.

The FAA grants the requests for an extension of the comment period. While some commentators opposed extending the comment period, the FAA recognizes the importance of the proposed rule and that an extension would help commenters craft complete and thoughtful responses. With this extension, the comment period will now close on January 22, 2024. This will provide the public with a total of one hundred and eighty (180) days to conduct its review and submit comments to the docket.

The FAA will not grant any additional requests to further extend the comment period for this rulemaking.

In accordance with § 11.47(c) of title 14, Code of Federal Regulations, the FAA has reviewed the requests for an extension of the comment period for this notice. Those requesting an extension have shown a substantive interest in the proposed policy and good cause for the extension of the comment period. The FAA has determined that an extension of the comment period for an additional ninety (90) days to January 22, 2024 is consistent with the public interest, and that good cause exists for taking this action.

Accordingly, the comment period for Notice No. 23-10 is extended until January 22, 2024.

Issued under authority provided by 49 U.S.C. 106(f), 44701(a) and 44703 in Washington, DC.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify terminal airspace as required to preserve the safe and efficient flow of air traffic in the San Juan, PR, area.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. 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 submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, GA 30337.

Class C Airspace is published in paragraph 4000 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

San Juan Luis Munoz Marin International Airport (SJU), PR is located three miles east of the city of San Juan, PR. Fernando Luis Ribas Dominicci Airport (SIG) is located approximately 5.5 miles west of SJU. The San Juan Air Traffic Control Tower (ATCT) at SJU operates 24 hours a day. SIG has a part-time ATCT that operates 0700 to 1900 local time, daily. Their Class D airspace extends around SIG from the surface up to but not including 1,200 feet mean sea level (MSL) within a 3.9-mile radius of SIG, and within 1 mile each side of the 275° true bearing from SIG, extending from the 3.9-mile radius to 5.3 miles west of the airport; excluding that portion within the SJU Class C airspace area. During times when the SIG ATCT is closed, the SIG Class D airspace reverts to Class G airspace from the surface to 699 feet MSL and Class E airspace from 700 MSL to but not including 1,200 MSL.

In 2018, the San Juan Flight Standards District Office (FSDO) investigated a report of a possible pilot deviation where an aircraft departed SIG, while the SIG ATCT was closed, into the San Juan Class C airspace. The aircraft, a high-performance twin turbojet operating under Visual Flight Rules (VFR), departed SIG runway 9 eastbound into the SJU Class C airspace. The aircraft made initial contact with San Juan ATCT approximately four nautical miles (NM) northwest of SJU airport. San Juan FSDO found that Air Traffic Control (ATC) did not have enough time to identify and accommodate the VFR aircraft into the existing traffic flows around SJU airport, even if they contacted ATC as soon as practicable after departing. Pursuant to14 CFR 91.130(c)(2)(ii), each person departing from a satellite airport without an operating control tower must establish and maintain two-way radio communication with the ATC facility having jurisdiction over the Class C airspace area as soon as practicable after departing.

San Juan FSDO's analysis of the event and existing airspace structure showed that current procedures in place do not adequately address the traffic conflicts that might arise when the SIG ATCT is closed, and VFR traffic departs SIG and subsequently transitions eastbound through the SJU Class C airspace. San Juan FSDO recommended mitigating the identified safety risks by either redesigning the SJU Class C airspace or implementation of another procedure that provides an adequate level of safety.

In December of 2019, the San Juan Combined Center/Radar Approach Control Facility (CERAP) completed a staff study. After reviewing local safety data, the San Juan CERAP concluded that redesigning the SJU Class C was the best solution to mitigate this safety risk. An initial change proposal to the SJU Class C was designed with a cutout near the SIG airport. By moving the boundary of the SJU Class C surface area to the east of SIG, SIG would no longer be a satellite airport to SJU. Aircraft departing SIG would need to establish communication with SJU ATCT prior to entering the SJU Class C airspace.

In 2021, the FAA initiated an action to form an Ad Hoc Committee (Committee) to seek input and recommendations from representatives of affected aviation users for the FAA to consider in amending the SJU Class C airspace. The Committee consisted of a diverse sampling of local aviation users.

The Committee expressed concerns that when SIG ATCT is closed that aircraft in a right traffic pattern for runway 9 at SIG could create possible conflicts with arrivals to runway 8 and runway 10 at SJU.

The proposed Class C airspace amendment would not affect traffic pattern operations at SIG. The Chart Supplement, Southeast United States, does not indicate a traffic pattern direction for runway 9 at SIG, which implies a standard traffic pattern. A standard traffic pattern is left turns, which would take aircraft north of SIG and away from runway 8 and runway 10 operations at SJU. An exception is mentioned for runway 9 at SIG that indicates helicopters occasionally use a right traffic pattern, but only when directed by SIG ATCT.

The Committee recommended the FAA create a cutout of the SJU Class C airspace around SIG. The cutout would remove SIG as a satellite airport to SJU. As a result, aircraft departing SIG, when the SIG ATCT is closed, would need to establish two-way radio communications with SJU ATCT prior to entering SJU Class C airspace.

As announced in the Federal Register (87 FR 75973; December 12, 2022), the FAA held an informal airspace meeting on February 28, 2023. The meeting was held in a virtual format and was broadcast on the FAA's YouTube channel. There were 145 registered attendees with many more watching the meeting on the FAA's social media sites. The purpose of the meeting was to provide interested airspace users with an opportunity to present their views and offer recommendations regarding the proposed amendment of the SJU Class C airspace. The meeting began with a presentation of the current and proposed Class C airspace at SJU. There were several positive comments on the proposed change, and no negative comments were received.

The Air Line Pilots Association, International, expressed concern that modifying the Class C airspace at SJU would affect procedures currently in place at SJU to keep general aviation aircraft separated from passenger airliners.

The proposed Class C airspace amendment would not affect visual flight rules (VFR) or instrument flight rules (IFR) procedures. Current VFR and IFR procedures will remain in place as the proposed cutout to SJU Class C airspace would not have an effect on the current traffic flows in and out of SIG and SJU airports.

The FAA is proposing an amendment to 14 CFR part 71 by updating the San Juan Luis Munoz Marin International Airport (SJU), PR Class C airspace description as published in FAA Order JO 7400.11H, Airspace Designations and Reporting Points.

The proposal would add a cutout to the San Juan, PR Class C airspace surface area to the northwest of SJU from the surface to but not including 1,200 MSL. Currently, the Class C airspace in this subsection exists from the surface to 4,000 MSL. The proposed cutout would enhance safety by allowing aircraft departing runway 9 at Fernando Luis Ribas Dominicci Airport, PR (SIG), when the SIG air traffic control tower is closed, the ability to either remain outside of the San Juan, PR Class C airspace by turning to the north and west or to have additional time to establish two-way radio communication with San Juan Air Traffic Control Tower prior to entering the San Juan, PR Class C airspace.

Additionally, the FAA made a minor correction to the first line of the description's text header, leaving just the city and territory location of the airport. This change follows the FAA's current formatting standards.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563, as amended by Executive Order 14094 (“Modernizing Regulatory Review”), 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 (2022) Implicit Price Deflator for the Gross Domestic Product. This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.

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

The FAA, through this rulemaking, would amend the Class C airspace at the San Juan Luis Munoz Marin International Airport in Puerto Rico. The existing airspace structure does not adequately address the traffic conflicts that might arise when the SIG ATCT is closed, and VFR traffic departs SIG and subsequently transitions eastbound through the SJU Class C airspace. The FAA proposes to make a cutout near SIG airport to be part of the SJU Class C airspace to mitigate the identified safety risks of possible traffic conflicts. The proposed cutout would allow for aircraft to operate at SIG without entering the SJU Class C airspace but would not affect traffic pattern operations at SIG. In addition, this proposed rule would not affect visual flight rules (VFR) or instrument flight rules (IFR) procedures. Therefore, the proposed rule would not impose costs on operations at SJU and SIG, as it would not require them to fly longer, consume more fuel, or add new equipment to be in compliance.

This proposed rule would result in safety benefits from mitigating the risk arising from a possible airspace traffic conflict. The FAA solicits public comments with relevant data that enable the FAA to quantify the benefit attributable to the risk reduction of a possible pilot deviation.

The Regulatory Flexibility Act (RFA) of 1980, Public Law 96-354, 94 Stat. 1164 (5 U.S.C. 601-612), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar. 29, 1996) and the Small Business Jobs Act of 2010 (Pub. L. 111-240, 124 Stat. 2504 Sept. 27, 2010), requires Federal agencies to consider the effects of the regulatory action on small business 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.

Agencies must perform a review to determine whether a rulemaking would have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify, and a regulatory flexibility analysis is not required.

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify terminal airspace as required to preserve the safe and efficient flow of air traffic in the San Juan, PR, area.

The FAA is proposing an amendment to 14 CFR part 71 by updating the San Juan Luis Munoz Marin International Airport (SJU), PR Class C airspace description as published in FAA Order JO 7400.11H, Airspace Designations and Reporting Points. Current VFR and IFR procedures will remain in place as the proposed cutout to SJU Class C airspace would not have an effect to the current traffic flows in and out of SIG and SJU airports.

This proposed rule would not require additional reporting, recordkeeping, and other compliances for small businesses. As a result, as provided in section 605(b), the head of the FAA certifies that this proposed rule would not result in a significant economic impact on a substantial number of small entities.

The FAA solicits public comments regarding any economic impact on small businesses operating at SJU and SIG in the San Juan, PR, area.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), 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 potential effect of this rule and determined that it will impose no costs on either domestic or international entities and thus has a neutral trade impact.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) governs the issuance of Federal regulations that require unfunded mandates. An unfunded mandate is a regulation that requires a state, local, or tribal government or the private sector to incur direct costs without the Federal government having first provided the funds to pay those costs. The FAA determined that the proposed rule would not result in the expenditure of $177,000,000 or more by State, local, or tribal governments, in the aggregate, or the private sector, in any one year.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F: “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would modify the route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. 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 submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, GA 30337.

Domestic VOR Federal Airways are published in paragraph 6010(a) of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

The FAA published a Final rule for Docket No. FAA-2022-0646 in the Federal Register (87 FR 54878; September 8, 2022) that amended V-9 and removed the route segments between the Marvell, AR (UJM), VOR/Distance Measuring Equipment (VOR/DME); Gilmore, AR (GQE), VOR/DME; Malden, MO (MAW), Tactical Air Navigation (TACAN), and the Farmington, MO (FAM), VOR/Tactical Air Navigation (VORTAC) in support of the FAA's VOR Minimum Operation Network (MON) project. The Gilmore VOR/DME and the Malden TACAN are scheduled to be decommissioned in support of the FAA's VOR MON Program. The Department of Defense subsequently requested V-9 to connect between the Marvell, AR (UJM), VOR/DME and the Farmington, MO (FAM), VORTAC to simplify flight planning along this route segment.

The FAA is proposing an amendment to 14 CFR part 71 to amend VOR Federal airway V-9 in Arkansas. The proposed route changes are described below.

V-9: V-9 currently extends between the Leeville, LA (LEV), VORTAC and the Marvell, AR (UJM), VOR/DME; between the Farmington, MO (FAM), VORTAC to the Pontiac, IL (PNT), VOR/DME; and between the Janesville, WI (JVL), VOR/DME to the Houghton, MI (CMX), VOR/DME. The FAA proposes to establish V-9 between the Marvell VOR/DME and the Farmington VORTAC to create a longer contiguous airway.

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Authority for This Rulemaking

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. 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 submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, GA 30337.

United States Area Navigation routes are published in paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

This action is proposed due to the Little Rock, AR (LIT), VORTAC relocation project. The Little Rock VORTAC is planned to be relocated approximately nine miles north of its current location. The LITTR, AR, Waypoint (WP) is an already established waypoint located approximately 60.3 feet northeast of the Little Rock VORTAC's current location. Replacing Little Rock VORTAC with the LITTR, WP on Q-33 and Q-66 would allow for greater connectivity to the existing RNAV route structure that already merges at the LITTR, WP.

Houston Air Route Traffic Control Center (ARTCC) requested Q-33 extend south from DHART, AR, Fix to the Humble, TX (IAH), VORTAC. This route segment would overlay a portion of J-180. This proposed amended route segment would allow for greater connectivity to the existing RNAV route structure and procedures in the Houston, TX area.

The FAA is proposing an amendment to 14 CFR part 71 to amend RNAV routes Q-33, and Q-66 to support the Little Rock, AR (LIT), VORTAC Relocation Project, the FAA's NextGen program, which provides a modern RNAV route structure to improve the efficiency of the NAS, and to remove route points that are not required in the route descriptions.

Q-33: Q-33 currently extends between the DHART, AR, Fix to the PROWL, MO, WP. This action proposes to extend the route to the south to overlay a portion of jet route J-180 from the DHART, AR, Fix to the Humble, TX (IAH), VORTAC. This action also proposes to replace the Little Rock, AR (LIT), VORTAC with the LITTR, AR, WP which located 60.3 feet northeast of Little Rock VORTAC's current location.

Q-66: Q-66 currently extends between the Little Rock, AR (LIT), VORTAC and the ALEAN, VA, WP. This action proposes to replace the Little Rock VORTAC with the LITTR, AR, WP which is located 60.3 feet northeast of Little Rock VORTAC's current location. This action also proposes to remove route points from the route description which constitute a turn of one degree or less. The FAA proposes to remove the following route points: CIVKI, AR, WP; RICKX, AR, WP; TROVE, TN, WP; BAZOO, TN, WP; and MXEEN, TN, WP

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

This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.

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

Authority for This Rulemaking

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

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. 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 submit only one time if comments are filed electronically, or commenters should send only one copy of written comments if comments are filed in writing.

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 FAA may change this proposal in light of the comments it receives.

Privacy: In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

An electronic copy of this document may be downloaded through the internet at www.regulations.gov. Recently published rulemaking documents can also be accessed through the FAA's web page at www.faa.gov/air_traffic/publications/airspace_amendments/.

You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Operations office (see ADDRESSES section for address, phone number, and hours of operations). An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Avenue, College Park, GA, 30337.

United States Area Navigation routes are published in paragraph 2006 and 6011 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document proposes to amend the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. These updates would be published in the next update to FAA Order JO 7400.11. That order is publicly available as listed in the ADDRESSES section of this document.

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

I. Background A. Coverage of Preventive Services Under the Affordable Care Act and Implementing Regulations

The Patient Protection and Affordable Care Act (Pub. L. 111-148) was enacted on March 23, 2010. The Health Care and Education Reconciliation Act of 2010 (Pub. L. 111-152) was enacted on March 30, 2010. These statutes are collectively known as the Affordable Care Act (ACA). The ACA reorganized, amended, and added to the provisions of part A of title XXVII of the PHS Act relating to group health plans and health insurance issuers in the group and individual markets. The ACA added section 715(a)(1) to the Employee Retirement Income Security Act of 1974 (ERISA) and section 9815(a)(1) to the Internal Revenue Code (Code) to incorporate the provisions of part A of title XXVII of the PHS Act into ERISA and the Code, and to make them applicable to group health plans and health insurance issuers providing health insurance coverage in connection with group health plans. The sections of the PHS Act incorporated into ERISA and the Code are sections 2701 through 2728.

Section 2713 of the PHS Act, as added by section 1001 of the ACA and incorporated into ERISA and the Code, and its implementing regulations require that non-grandfathered group health plans and health insurance issuers offering non-grandfathered group or individual health insurance coverage provide coverage without imposing any cost-sharing requirements for the following items and services:

• Evidence-based items or services that have in effect a rating of “A” or “B” in the current recommendations of the United States Preventive Services Task Force (USPSTF) with respect to the individual involved, except for the recommendations of the USPSTF regarding breast cancer screening, mammography, and prevention issued in or around November 2009. 1

• Immunizations for routine use in children, adolescents, and adults that have in effect a recommendation from the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention (CDC) with respect to the individual involved.

• With respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in comprehensive guidelines supported by the Health Resources and Services Administration (HRSA).

• With respect to women, such additional preventive care and screenings not described in the USPSTF recommendations in PHS Act section 2713(a)(1), as provided for in comprehensive guidelines supported by HRSA.

The Departments' regulations under section 2713 of the PHS Act at 26 CFR 54.9815-2713, 29 CFR 2590.715-2713, and 45 CFR 147.130 require that plans and issuers provide coverage of recommended preventive services generally for plan years (in the individual market, policy years) that begin on or after September 23, 2010, or, if later, for plan years (in the individual market, policy years) that begin on or after the date that is one year after the date the recommendation or guideline is issued. In addition, the regulations allow plans and issuers to impose reasonable medical management techniques to determine the frequency, method, treatment, or setting for coverage of a recommended preventive health item or service, to the extent not specified in the applicable recommendation or guideline. 2 Moreover, if a plan or issuer has a provider in its network that can provide a recommended preventive service, the plan or issuer is not required to provide coverage or waive cost sharing for the item or service when furnished by an out-of-network provider. 3

On March 30, 2023, the United States District Court for the Northern District of Texas issued a final judgment in Braidwood Management Inc. v. Becerra   4 ( Braidwood ). The court held that the USPSTF's recommendations, operating in conjunction with PHS Act section 2713(a)(1), violate the Appointments Clause of Article II of the United States Constitution and are therefore unlawful. The Braidwood decision vacated any and all actions taken by the Departments to implement or enforce PHS Act section 2713(a)(1)'s preventive service coverage requirements in response to an “A” or “B” recommendation by the USPSTF on or after March 23, 2010, and enjoined the Departments from implementing or enforcing PHS Act section 2713(a)(1)'s preventive service coverage requirements in response to an “A” or “B” rating from the USPSTF in the future. 5 The Department of Justice filed a notice of appeal on March 31, 2023, and a motion for a partial stay pending appeal on April 12, 2023. On June 13, 2023, after a joint stipulation by the parties, the United States Court of Appeals for the Fifth Circuit granted the government's motion for a partial stay. 6 As a result of the partial stay, and subject to the enforcement exceptions set forth therein for the Braidwood plaintiffs, the Departments may continue to implement and enforce the coverage requirements for items or services recommended with an “A” or “B” rating from the USPSTF on or after March 23, 2010.

The Braidwood decision did not enjoin enforcement of PHS Act section 2713 or vacate its implementing regulations and guidance related to immunizations recommended by ACIP or preventive care and screenings provided for in comprehensive guidelines supported by HRSA; therefore, those requirements are not impacted by the Braidwood decision. 7

While most recommended preventive services require a health care provider to either provide a prescription  8 for an item or service, or to directly furnish a service, several preventive products are available to consumers without the involvement of a provider (OTC preventive products). 9 Some examples include certain types of tobacco cessation pharmacotherapy, which are currently recommended by the USPSTF with an “A” rating for nonpregnant adults who use tobacco, 10 and folic acid supplements, which are recommended by the USPSTF with an “A” rating to prevent neural tube defects for all persons planning to or who could become pregnant. 11 In addition, the guidelines for women's preventive health services adopted and released by HRSA (HRSA-supported Guidelines) include recommendations for OTC preventive products, such as breastfeeding supplies (for example, breast pumps and breast milk storage supplies) and certain contraceptives. 12 As discussed further in section I.E of this RFI, an OTC progestin-only daily oral contraceptive was recently approved by the Food and Drug Administration (FDA) and is expected to become available soon. Additional recommended preventive products may also become available OTC in the future.

Since publishing the regulations implementing PHS Act section 2713, the Departments have received questions from interested parties regarding coverage issues related to certain recommended preventive services, including with respect to OTC preventive products. On February 20, 2013, in Frequently Asked Questions (FAQs) about Affordable Care Act Implementation Part XII, the Departments provided guidance interpreting the statutory and regulatory requirements to cover recommended preventive services without cost sharing to mean that preventive products that are generally available without a prescription, including folic acid and certain contraceptive products (such as contraceptive sponges and spermicides), must be covered without cost sharing only when prescribed by a health care provider. 13 On July 28, 2022, in FAQs Part 54, the Departments reaffirmed that, consistent with the HRSA-supported Guidelines, plans and issuers must cover without cost sharing FDA-approved emergency contraception (levonorgestrel or ulipristal acetate), including OTC products, when such products are prescribed for an individual by their attending provider. 14 In the same guidance, the Departments also clarified that plans and issuers are required to cover such OTC contraceptives without cost sharing including when they are prescribed for advanced provision, and encouraged plans and issuers to cover OTC emergency contraceptive products with no cost sharing when they are purchased without a prescription by a health care provider. 15

Under section 6001 of the Families First Coronavirus Response Act (FFCRA), 16 as amended by the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), 17 and implementing guidance, 18 plans and issuers were required to cover OTC COVID-19 diagnostic tests without a prescription by a health care provider or individualized clinical assessment, purchased on or after January 15, 2022, through the end of the COVID-19 Public Health Emergency (PHE) declared by the Secretary of HHS under section 319 of the PHS Act (COVID-19 PHE). OTC COVID-19 diagnostic tests covered pursuant to the FFCRA and CARES Act requirements and implementing guidance are not OTC preventive products subject to the preventive service requirements of section 2713 of the PHS Act. However, interested parties' recent experiences operationalizing coverage requirements for OTC COVID-19 diagnostic tests without cost sharing and without a prescription by a health care provider are relevant to the considerations included in this RFI.

On January 10, 2022, the Departments issued FAQs Part 51, which specified that plans and issuers were required to cover OTC COVID-19 diagnostic tests available without an order or individualized clinical assessment by a health care provider, purchased on or after January 15, 2022 through the end of the COVID-19 PHE, and without imposing cost- sharing requirements, prior authorization, or other medical management requirements. 19 FAQs Part 51 also established two enforcement safe harbors intended to facilitate consumer access to OTC COVID-19 tests during the COVID-19 PHE  20 and clarified that plans and issuers were permitted to take reasonable steps to prevent, detect, and address fraud and abuse when providing coverage of OTC COVID-19 diagnostic tests during the COVID-19 PHE. 21

On February 4, 2022, the Departments published FAQs Part 52, which further clarified the coverage requirements for OTC COVID-19 diagnostic tests  22 and modified the requirements for the direct coverage safe harbor. 23 FAQs Part 52 also clarified that plans and issuers could address suspected fraud and abuse by limiting coverage of OTC COVID-19 diagnostic tests to those purchased through established retailers (and disallow reimbursement for tests purchased from a private individual or from a seller that uses an online auction or resale marketplace). 24 In addition, the guidance clarified that the OTC COVID-19 diagnostic tests that must be covered by plans and issuers according to FAQs Part 51 did not include COVID-19 tests that use a self-collected sample but require processing by a laboratory or other health care provider to return results. 25

On January 28, 2021, the President issued Executive Order 14009, “Strengthening Medicaid and the Affordable Care Act” (E.O. 14009). 26 Section 3 of E.O. 14009 directs the Secretaries of the Treasury, Labor, and HHS (the Secretaries) to review all existing regulations, guidance documents, and policies to determine whether such actions are inconsistent with protecting and strengthening Medicaid and the ACA and making high-quality health care accessible and affordable for every American.

Furthermore, the President issued Executive Order 14070, “Continuing To Strengthen Americans' Access to Affordable, Quality Health Coverage” (E.O. 14070) on April 5, 2022. 27 Section 2 of E.O. 14070 reaffirms the goals and policy of E.O. 14009 and further directs agencies with responsibilities related to Americans' access to health coverage to consider and pursue agency actions that improve the comprehensiveness of coverage and protect consumers from low-quality coverage. Accordingly, the Departments believe that improving the access to and affordability of OTC preventive products would take critical steps to further the goals of E.O. 14009 and E.O. 14070.

Similarly, following the June 24, 2022, U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization   28 ( Dobbs), the President issued Executive Order 14076, “Protecting Access to Reproductive Healthcare Services” (E.O. 14076) on July 8, 2022. 29 Section 3 of E.O. 14076 requires the Secretary of HHS to identify potential actions to “protect and expand access to the full range of reproductive healthcare services, including actions to enhance family planning services such as access to emergency contraception.” On June 23, 2023, the President issued Executive Order 14101, “Strengthening Access to Affordable, High-Quality Contraception and Family Planning Services” (E.O. 14101). 30 Section 2 of E.O. 14101 directs the Secretaries to consider issuing guidance to further improve Americans' ability to access contraception, without out-of-pocket expenses, under the ACA and to consider additional actions to promote increased access to OTC contraception, including emergency contraception. As stated in the preamble to the proposed rules on coverage of certain preventive services under the ACA, it is especially critical to ensure women's access to reproductive health care and contraceptive services without cost sharing in light of the Supreme Court's decision in Dobbs. 31

On July 13, 2023, the FDA announced that it had approved a progestin-only birth control pill as the first daily oral contraceptive for use in the United States available without a prescription by a health care provider. 32 33 Many interested parties have applauded the availability of a daily OTC oral contraceptive for its potential to improve access to affordable contraception. 34 Studies have shown that challenges with access and costs are among the most common reasons cited by women for not using contraception or having gaps in contraceptive use. 35 One large, nationally representative study found 29 percent of women reported encountering barriers to obtaining or filling an initial prescription or refills of oral contraceptive pills, specifically citing insurance coverage, getting an appointment, not having a regular physician, and difficulty accessing a pharmacy. 36 Accordingly, the availability of a daily OTC oral contraceptive without a prescription by a health care provider may improve access and use if the product is affordable and/or covered by insurance without cost sharing, and as a result, could reduce the number of unintended pregnancies. 37

In light of E.O. 14009, E.O. 14070, E.O. 14076, E.O. 14101, and the FDA approval of a progestin-only oral contraceptive as the first daily oral contraceptive available without a prescription by a health care provider, the Departments are of the view that requiring plans and issuers to cover, without cost sharing, OTC preventive products without a prescription by a health care provider under section 2713 of the PHS Act is an important option to consider for expanding access to contraceptive care. The Departments are also of the view that this option would align with the goals of the ACA as well as the Biden-Harris Administration's policies to expand utilization of preventive care and services by minimizing cost barriers. However, the Departments recognize that most plans and issuers currently do not cover OTC preventive products without a prescription by a health care provider. Therefore, the Departments are issuing this RFI to solicit information that will improve the Departments' understanding of the issues related to consumer access to OTC preventive products without cost sharing and without a prescription by a health care provider.

The Departments are seeking to gather input from the public to better understand the potential benefits and challenges to individuals, plans, issuers, health care providers, retailers, and other interested parties that may be realized by or arise in promoting greater access to OTC preventive products, including contraceptives, without cost sharing and without a prescription by a health care provider. For example, the Departments would like to understand the current barriers individuals face to receiving OTC preventive products with a prescription. Additionally, the Departments are interested in input on any operational challenges to plans, issuers, third-party administrators, pharmacy benefit managers (PBMs), and retailers if plans and issuers are required to cover, without imposing cost-sharing requirements on the consumer, OTC preventive products purchased without a prescription by a health care provider, including other OTC preventive products as they might become available on the market. The Departments are also interested in lessons learned from these interested parties' experiences providing coverage for and facilitating the provision of OTC COVID-19 diagnostic tests during the COVID-19 PHE. The Departments request information on the potential obstacles and benefits that would be associated with interpreting the preventive services coverage requirement under PHS Act section 2713 to require coverage of OTC preventive products without cost sharing and without a prescription by a health care provider, and estimates of the impact of any such potential changes, both generally and with respect to the following specific areas:

• What is the current cost differential for consumers between an OTC preventive product purchased without a prescription by a health care provider, and the same OTC preventive product (for example, breast pumps and breastfeeding supplies) when it is prescribed? How common is it for plans and issuers to provide coverage for OTC preventive products without requiring a prescription by a health care provider? Share any available measurements of utilization of coverage for OTC preventive products when prescribed and when not prescribed by a health care provider.

• When coverage is offered for OTC preventive products that are prescribed by a health care provider, do cost sharing or other aspects of coverage vary by type of OTC preventive product? For example, are different cost-sharing requirements or medical management techniques imposed for OTC tobacco cessation products than for OTC breast pumps? Do coverage requirements or medical management techniques differ across different types of OTC contraceptives, such as between emergency contraception and condoms, or between medications and devices? What medical management techniques do plans and issuers commonly apply to OTC preventive products when the items are prescribed? If plans and issuers impose quantity and/or frequency limits or establish brand preferences for equivalent products, how do they determine such limits and preferences?

• How does a plan's or issuer's practice of covering OTC preventive products only when prescribed by a health care provider affect individuals' access to OTC preventive products? What other practices (for example, reasonable medical management techniques, network restrictions, or formulary restrictions) are employed by plans and issuers that restrict access to recommended preventive products that are available OTC?

• If the Departments were to require plans and issuers to cover OTC preventive products without cost sharing and without a prescription by a health care provider, what would be optimal ways to communicate these changes to help ensure that participants, beneficiaries, and enrollees are educated about any steps they need to take to access these products, including to get reimbursed for purchasing OTC preventive products without a prescription by a health care provider? Similarly, what would be optimal ways to communicate the changes to retailers?

• In the event that the Departments require plans and issuers to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider under section 2713 of the PHS Act, what operational challenges would plans and issuers face in implementing the requirement? What operational challenges would retailers (including pharmacies) face if the requirement is implemented (for example, location of transaction, privacy concerns, or workload at point of sale)? How would these challenges impact participants, beneficiaries, and enrollees? How would these challenges impact the goal of E.O. 14101 to increase access to affordable contraception?  38 What operational challenges may be associated with the use of telepharmacies and mail orders both within and across states or localities for OTC preventive products?

• If plans and issuers were required to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider, how could plans and issuers ensure that participants, beneficiaries, and enrollees who purchase OTC preventive products do not incur out-of-pocket costs at the point of sale, or are timely and correctly reimbursed, such as through post-purchase reimbursement by the plan or issuer or other mechanisms? Would utilization rates differ depending on whether the products were covered without cost to the individual at the point of sale or were reimbursed following purchase? Should plans and issuers be required to cover costs associated with shipping and/or taxes for OTC preventive products? What is the best way to eliminate out-of-pocket costs to participants, beneficiaries, and enrollees, while ensuring that they have different options to obtain such products (such as via direct mail and in person)? What other issues related to consumer reimbursement would arise if plans and issuers were required to cover OTC preventive products without cost sharing and without a prescription by a health care provider?

• What issues related to reimbursement to retailers and providers would arise if plans and issuers are required to cover OTC preventive products without cost sharing and without a prescription by a health care provider? How might contracts between plans or issuers and PBMs, network pharmacies, or other service providers need to be modified to cover OTC preventive products without cost sharing and without a prescription by a health care provider? How do plans and issuers anticipate accounting for any retail markups, discounts or coupons, or manufacturer rebates?

• How do pharmacies or other retailers currently submit claims to plans and issuers for OTC preventive products and are there barriers associated with doing so? If plans and issuers were required to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider, would pharmacies or other retailers be able to ensure that a consumer does not incur out-of-pocket costs at the point of sale? If not, what barriers prevent this, and would addressing those barriers require changes to claims systems or additional guidance?

• If plans and issuers were required to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider, what types of reasonable medical management techniques related to frequency, method, treatment, or setting would plans and issuers consider implementing with respect to these products, in instances where an applicable recommendation or guideline did not specify the frequency, method, treatment, or setting for the provision of the recommended preventive service? How would such techniques differ or compare to strategies used currently? What additional guidance would be necessary to help plans and issuers understand what types of medical management techniques are considered to be reasonable when applied to OTC preventive products?

• If plans and issuers were required to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider, what guardrails would plans and issuers consider implementing to mitigate fraud, waste, and abuse?

• What operational challenges arose while plans and issuers were required to provide OTC COVID-19 diagnostic tests without cost sharing and without a prescription or provider involvement during the COVID-19 PHE that were not addressed through guidance issued by the Departments? Were there particular operational challenges experienced by retailers? What lessons learned from those experiences could be applied to efforts to require coverage for OTC preventive products without cost sharing and without a prescription by a health care provider? Would plans' and issuers' provision of direct coverage for OTC COVID-19 diagnostic tests to participants, beneficiaries, and enrollees by providing payments to sellers directly (without requiring upfront payment by consumers and subsequent reimbursement by the plans and issuers) be a model that could be used to implement an OTC coverage requirement for preventive products? The Departments are particularly interested in the experience of consumers, plan sponsors, retailers, plans, issuers, PBMs, and other service providers related to techniques that were implemented during the COVID-19 PHE to prevent, detect, and respond to fraud, waste, and abuse related to the provision of OTC COVID-19 diagnostic tests.

• What other strategies could the Departments implement to increase utilization of OTC preventive products, other than, or in addition to, requiring plans and issuers to cover such products without cost sharing and without a prescription by a health care provider? Should the Departments look to any specific strategies implemented by states, localities, plans, issuers, or large employers to increase utilization of OTC preventive products? Are there any state laws or regulations currently in place, or expected to be proposed, that could hinder utilization and access to OTC preventive products? If so, what specific requirements in federal regulations could mitigate these barriers to access? Do workplace wellness programs provide access to OTC preventive products? If so, how do such programs manage frequency, method, treatment, and setting to ensure effectiveness, efficiency, and access for workers? Does access for workers differ based on their employer's size? If so, how?

• Under current standards and requirements, do certain populations face additional or disproportionately burdensome challenges to accessing OTC preventive products? Do the current standards that require coverage of only prescribed OTC preventive products without cost sharing pose a substantial burden (for example, excess demand for appointments) on health care providers working in, or disproportionately serving, underserved communities? If plans and issuers were required to cover OTC preventive products without cost sharing and without requiring a prescription by a health care provider, how would such a requirement improve access for these populations? For example, is there evidence that coverage of OTC contraceptive medications or devices without a prescription by a health care provider would significantly impact access in “contraceptive deserts” (areas with low access to family planning resources)?  39 Could a requirement to cover OTC preventive products without cost sharing and without a prescription by a health care provider potentially increase the retail prices of such products for individuals who purchase them without insurance? If so, what are options for addressing such retail price increases?

• Research suggests that provider bias may play a role in limiting access to certain recommended preventive services, including, for example, contraceptives and other family planning services, tobacco cessation pharmacotherapy, and medication to reduce the risk of acquiring HIV. 40 Has permitting plans and issuers to require a prescription to obtain coverage for OTC preventive services led to lower utilization rates for certain recommended preventive services among particular populations with respect to different provider types or settings?

• What are the current annual utilization costs and annual operational costs to plans and issuers related to coverage of OTC preventive products when such products are prescribed by a health care provider? Do the costs to plans, issuers, and third-party administrators vary for small versus large entities? If so, what are the costs for small entities as compared to large entities?

• How would a requirement to cover OTC preventive products without cost sharing and without a prescription by a health care provider affect utilization costs and operational costs to plans, issuers, plan sponsors, third-party administrators, PBMs, and retailers? What would be the resulting premium impacts, in the short- and long-term? Would utilization of OTC preventive products significantly replace utilization of non-OTC preventive products among participants, beneficiaries, and enrollees? Would there be an impact on the cost of non-OTC preventive products? What are the estimated initial and ongoing time and cost burdens on (or savings for) plans, issuers, plan sponsors, third-party administrators, PBMs, and retailers if plans and issuers were required to cover OTC preventive products without cost sharing and without a prescription by a health care provider?

• How would a requirement for plans and issuers to cover OTC preventive products without cost sharing and without a prescription by a health care provider affect price negotiations, pricing decisions, market power, discount or rebate programs, and marketing practices for these products? Would the costs to plans, issuers, third-party administrators, PBMs, and providers vary for small versus large entities? If so, what are the impacts for small entities as compared to large entities? What would the net impact of these changes be on prices for and the availability of OTC preventive products?

• To what degree would any potential increases in costs or premiums associated with a requirement for plans and issuers to cover OTC preventive products without cost sharing and without a prescription by a health care provider be offset by greater access to OTC preventive products (for example, due to improved health outcomes from greater uptake of recommended preventive products, or fewer office visits as a result of participants, beneficiaries, and enrollees no longer requiring an office visit to obtain a prescription for OTC preventive products)?

• Identify and provide estimates related to the potential societal and economic impacts (for example, benefits, costs, and transfers) on individuals and families, as well as on health care providers, if OTC preventive products were required to be covered without cost sharing and without a prescription by a health care provider. Would these impacts vary based on region, state, socioeconomic status, race, sex, age, insured status, or other factors? For example, would there be potential reductions in unintended pregnancies or maternal deaths due to participants, beneficiaries, and enrollees no longer requiring a prescription for OTC oral contraceptives? As another example, would there be increases in the length of time that children are breastfed if OTC preventive products such as breastfeeding supplies were required to be covered without cost sharing and without a prescription by a health care provider? Would smoking cessation rates improve with increased access to OTC tobacco cessation products?

• Identify and provide any information regarding the potential impact on health outcomes and quality of life of participants, beneficiaries, and enrollees if plans and issuers were required to cover OTC preventive products without cost sharing and without a prescription by a health care provider.

• Identify and provide estimates related to the potential economic impacts (short- and long-term) on health care providers, retailers, and pharmacists if OTC preventive products were required to be covered without cost sharing and without a prescription by a health care provider. How would the claim processing burden for health care providers, retailers, and pharmacists change? How would the number of visits to health care providers, retailers, and pharmacists change?

This document does not impose information collection requirements, that is, reporting, recordkeeping, or third-party disclosure requirements. However, section II of this document does contain a general solicitation of comments in the form of an RFI. In accordance with the implementing regulations of the Paperwork Reduction Act of 1995 (PRA), specifically 5 CFR 1320.3(h)(4), this general solicitation is exempt from the PRA. Facts or opinions submitted in response to general solicitations of comments from the public, published in the Federal Register or other publications, regardless of the form or format thereof, provided that no person is required to supply specific information pertaining to the commenter, other than that necessary for self-identification, as a condition of the agency's full consideration, are not generally considered information collections and therefore not subject to the PRA. Consequently, there is no need for review by the Office of Management and Budget under the authority of the PRA.

Background and Explanation of Provisions

Interim final regulations in the Rules and Regulations section of this issue of the Federal Register amend regulations under 26 CFR part 300 setting a user fee for individuals who apply for or renew a PTIN. The Independent Offices Appropriation Act of 1952 (IOAA), which is codified at 31 U.S.C. 9701, authorizes agencies to prescribe regulations that establish user fees for services provided by the agency. The IOAA provides that regulations implementing user fees are subject to policies prescribed by the President; these policies are set forth in the Office of Management and Budget Circular A-25, 58 FR 38142 (July 15, 1993). The text of the interim final regulations also serves as the text of these proposed regulations. The preamble to the interim final regulations explains the interim final regulations and these proposed regulations.

The OMB's Office of Information and Regulatory Analysis has determined that this regulation is not significant and subject to review under section 6(b) of Executive Order 12866.

Pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these proposed regulations will not have a significant economic impact on a substantial number of small entities. The proposed regulations affect individuals who prepare or assist in preparing all or substantially all of a tax return or claim for refund for compensation. Only individuals, not businesses, can have a PTIN. Thus, the economic impact of these regulations on any small entity generally will be a result of an individual tax return preparer who is required to have a PTIN owning a small business or a small business otherwise employing an individual tax return preparer who is required to have a PTIN. The Treasury Department and the IRS estimate that approximately 847,555 individuals will apply annually for an initial or renewal PTIN. Although the interim final regulations will likely affect a substantial number of small entities, the economic impact on those entities is not significant. The interim final regulations will establish an $11 fee per application or renewal (plus $8.75 payable directly to the contractor), which is a reduction from the previously established fee and will not have a significant economic impact on a small entity. Accordingly, the Secretary certifies that the rule will not have a significant economic impact on a substantial number of small entities, and a regulatory flexibility analysis is not required.

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

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

Pursuant to section 7805(f) of the Internal Revenue Code, this notice of proposed rulemaking has been submitted to the Chief Counsel of the Office of Advocacy of the Small Business Administration for comment on its impact on small business.

Consideration will be given to comments that are submitted timely to the IRS as prescribed in this preamble under the ADDRESSES heading. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. Any comments submitted will be made available at https://www.regulations.gov or upon request.

A public hearing will be scheduled if requested in writing by any person who timely submits electronic or written comments. Requests for a public hearing are also encouraged to be made electronically. If a public hearing is scheduled, notice of the date and time for the public hearing will be published in the Federal Register .

IRS notices and other guidance cited in this preamble are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at https://www.irs.gov.

The principal author of these regulations is Jamie Song, Office of the Associate Chief Counsel (Procedure and Administration). Other personnel from the Treasury Department and the IRS participated in the development of the regulations.

Accordingly, 26 CFR part 300 is proposed to be amended as follows:

The Copyright Act provides that the Copyright Royalty Judges (Judges) commence a proceeding every fifth year to determine royalty rates and terms for the recording of ephemeral copies of sound recordings pursuant to the statutory license in 17 U.S.C. 112(e)(1) to facilitate digital audio transmissions of those sound recordings to business establishments pursuant to the limitation on exclusive rights specified by 17 U.S.C. 114(d)(1)(C)(iv). See 17 U.S.C. 804(b)(2).

In accordance with section 804(b)(2), the Judges commenced the proceeding to set rates and terms for the period 2024-2028 on January 5, 2022 (87 FR 490). In the Federal Register notice, the Judges requested that interested parties submit petitions to participate. Petitions to Participate were received from: Mood Media Corp., Music Choice, Rockbot, Inc., Sirius XM Radio Inc. and Its Wholly Owned Subsidiaries, SoundExchange, Inc., Soundtrack Your Brand Sweden AB, and Stingray Music USA Inc. The Judges initiated the three-month negotiation period and directed the participants to submit written direct statements no later than September 19, 2022. See 17 U.S.C. 803(b)(3).

On September 19, 2022, the Judges received a Motion to Adopt Settlement stating that all participants  1 had reached a settlement obviating the need for written direct statements or a hearing.

Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt royalty rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided they are submitted to the Judges for approval. The Judges must provide “an opportunity to comment on the agreement” to both participants and non-participants in the rate proceeding who “would be bound by the terms, rates, or other determination set by any agreement . . .” 17 U.S.C. 801(b)(7)(A)(i). Participants in the proceeding may also “object to [the agreement's] adoption as a basis for statutory terms and rates.” Id.

The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,” only “if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.” 17 U.S.C. 801(b)(7)(A)(ii).

Royalty rates and terms adopted pursuant to section 801(b)(7)(A) are binding on all copyright owners of sound recordings and all business establishment services making an ephemeral recording of a sound recording for the period January 1, 2024, through December 31, 2028.

For the reasons set forth in the preamble, the Copyright Royalty Judges propose to amend part 384 of chapter III of title 37 of the Code of Federal Regulations as follows:

The additions and revisions read as follows:

I. Background A. Ozone Background B. Statutory and Regulatory Requirements for Emission Statements II. Description of State's Submittal III. Evaluation of the State's Submittal IV. Proposed Action V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background A. Ozone Background

Ozone is a gas that is formed by the reaction of Volatile Organic Compound (VOC) and Oxides of Nitrogen (NO X ) in the atmosphere in the presence of sunlight. Therefore, an emission inventory for ozone focuses on the emissions of VOC and NO X referred to as ozone precursors. These precursors (VOC and NO X ) are emitted by many types of pollution sources, including point sources such as power plants and industrial emissions sources; on-road and off-road mobile sources (motor vehicles and engines); and smaller residential and commercial sources, such as dry cleaners, auto body shops, and household paints, collectively referred to as nonpoint sources (also called area sources).

In March 2008, EPA revised the health-based National Ambient Air Quality Standard (NAAQS) for ozone to 0.075 parts per million (ppm) averaged over an 8-hour time frame (2008 8-hour Ozone Standard). See 73 FR 16435 (March 27, 2008). In October 2015, the EPA revised this standard to 0.070 ppm averaged over an 8-hour time frame (2015 8-hour Ozone Standard). See 80 FR 65291 (October 26, 2015).

On May 21, 2012, the EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 2008 8-hour Ozone Standard and, on July 20, 2012, the designations became effective. See 77 FR 30160 (May 21, 2012). The New York-Northern New Jersey-Long Island Connecticut metropolitan area (NYMA) was designated by the EPA as a “marginal” nonattainment area for the 2008 ozone NAAQS. 1 In 2016, the EPA determined that the NYMA did not attain the 2008 ozone standard by the July 20, 2015, attainment date and was reclassified from a “marginal” to a “moderate” nonattainment area. See 81 FR 26697 (May 4, 2016). State Implementation Plans (SIPs) for “moderate” nonattainment areas were due by January 1, 2017. See id. On April 30, 2018, the EPA finalized its attainment/nonattainment designations for most areas across the country as to the 2015 8-hour Ozone Standard, in which the NYMA was designated by the EPA as a “moderate” nonattainment area. See 83 FR 25776 (June 4, 2018). On September 23, 2019, the EPA reclassified the NYMA to “serious” nonattainment as to the 2008 8-hour Ozone Standard. See 84 FR 44238 (August 23, 2019).

Additionally, New York is a member of the Ozone Transport Region (OTR) established by Congress in Section 184 of the Act. Pursuant to section 184(b)(2), any stationary source that emits or has the potential to emit at least 50 tons per year (tpy) of VOC shall be considered a major stationary source and subject to the requirement which should be applicable to major stationary sources if the area were classified as moderate nonattainment area. Thus, States within the OTR are subject to SIP requirements in section 182(b) applicable to moderate nonattainment areas. Also, section 182(f)(1) of the CAA requires that the plan provisions required for major stationary sources of VOC also apply to major stationary sources of NO X for States with moderate (or worse) ozone nonattainment areas. A major stationary source of NO X is defined as stationary facility or source of air pollutants which directly emits or has the potential to emit 100 tpy or more of NO X . See CAA section 302(j).

Therefore, the emission statement requirement is extended to include sources in attainment area within the OTR that emit, or have the potential to emit, 100 tpy or more of NO X or 50 tpy or more of VOC.

The air quality planning and SIP requirements for ozone nonattainment and transport areas are established in Subparts 1 and 2 of Part D of Title I of the Act, as amended in 1990. The EPA has published a “General Preamble” and “Appendices to the General Preamble.” See 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992). These describe how the EPA intends to review SIPs submitted under Title I of the Act. EPA has also issued a draft guidance document, entitled “Guidance on the Implementation of an Emission Statement Program” (Emission Statement Guidance), dated July 1992, which describes the minimum requirements for approvable emission statement programs.

Section 182(a)(3)(B)(i) of the Act requires States in which all or part of any ozone non-attainment area is located to submit SIP revisions to EPA by November 15, 1992. The provision requires owner/operators of stationary sources of VOC and NO X to provide the State with a statement, at least annually, of the source's actual emissions of VOC and NO X . Sources were to submit the first emission statements to their respective States by November 15, 1993. Pursuant to the Emission Statement Guidance, if the source emits either VOC or NO X at or above levels for which the State Emission Statement rule requires reporting, the other pollutant (VOC or NO X ) from the same facility should be included in the emission statement, even if the pollutant is emitted at levels below the minimum reporting level.

Section 182(a)(3)(B)(ii) of the Act allows States to waive, with EPA approval, the requirement for an emission statement for classes or categories of sources located in nonattainment areas, which emit less than 25 tpy of actual plantwide VOC or NO X , provided the class or category is included in the base year and periodic inventories and emissions are calculated using emission factors established by EPA (such as those found in EPA publication AP-42)  2 or other methods acceptable to EPA.

The required Emission State Program defines how air agencies obtain emissions data directly from certain facilities, and these data, along with other information, are then reported to EPA as part of SIP inventories required under the Act sections 182(a)(1) and 182(a)(3)(A). This State program is generally referred to as an emissions statement regulation, and it outlines how certain facilities must report emissions and facility activity data to an air agency, typically a State agency. Reports submitted to air agencies must be accompanied by “a certification that the information contained” in the report is “accurate to the best knowledge” of the facility. 3 To properly implement the emissions reporting requirements, emissions statement regulations should be coordinated carefully with the data elements that are required by EPA (requirements at 40 CFR 51.1115 and 40 CFR 51.1315).

On March 21, 2022, NYSDEC submitted a SIP to incorporate revisions to 6 NYCRR Subpart 202-2, “Emission Statements”. The purpose of 6 NYCRR Subpart 202-2 is to establish the requirements for annual emission statements filed by facilities subject to Title V operating permits under the Act. This provision pertains to requirements for nonattainment areas for the purpose of enhancing an existing emission statement program for stationary sources in New York. On November 18, 2020, NYSDEC adopted these amendments, which became State effective on December 18, 2020. On September 1, 2022, NYSDEC submitted supplemental information to EPA regarding these revisions.

The requirements for emission statements are set forth in EPA's Air Emissions Reporting Requirements rule (AERR). See 40 CFR 51 Subpart A. In order to implement the emissions statement requirements referenced above, NYSDEC adopted 6 NYCRR Subpart 202-2 on July 15, 1994. NYSDEC subsequently revised the provision on April 29, 2005. From 1993 through 2010, NYSDEC required paper submissions of emission statements. Since 2011 (for calendar year 2010 emissions reporting), however, facilities have also had the option of submitting emission statements via electronically through NYSDEC's Air Compliance and Emissions (ACE) Electronic Reporting Tool.

Additional revisions were submitted by NYSDEC in 2007 when the EPA approved the Emission Statement SIP revision that enhances the reporting requirements for VOC and NO X and expands the reporting requirement, based on specified emission thresholds, to include CO, SO 2 , particulate matter measuring 2.5 microns or less (PM 2.5 ), particulate matter measuring 10 microns or less (PM 10 ), ammonia (NH 3 ), lead (Pb) and lead compounds and hazardous air pollutants (HAPs). See FR 61528, (October 31, 2007). Additionally, the revision improves EPA's and the public's access to facility specific emissions related data.

In NYSDEC's March 21, 2022, submittal, the State is proposing revisions to Subpart 202-2 to require electronic submittal of annual Emission Statements beginning in 2022 (for calendar year 2021 emissions reporting) for facilities subject to Title V of the Act. It is expected that electronic reporting will be beneficial for both Title V facilities, in the long term, and NYSDEC. These benefits include reduced costs, processing time, and improved accuracy and file management.

The State seeks to make two changes to Section 202-2.1 (“Applicability”). First, a new subdivision 202-2.1(c) mandates the electronic submittal of emission statements. The new requirement will be included as an enforceable condition in new or renewed Title V operating permits issued after January 1, 2021. Second, by reporting year 2025, all emission statements will be subject to the electronic submittal requirement.

The State made changes to Section 202-2.3 (“Required contents of an emission statement:”) First, the first sentence of paragraph 202-2.3(a)(1) has been revised to read: “(A) responsible official must sign a form or other legal instrument provided by the department to certify the emission statement information.” Second, subparagraph 202-2.3(a)(3)(ix) was modified to require that the sum of the percent operation by season reported in emission statements must equal 100. Third, subparagraph 202-2.3(a)(3)(xii) was modified to State that reporting of emissions for processes with source classification codes beginning with a 1 or a 2 is optional. If the facilities don't report emissions for these processes, NYSDEC will calculate process-level emissions based upon the process-level fuel use reported by a facility. Fourth, subdivision 202-2.3(d) has been edited to State that facilities with Title V operating permits will receive emission statement survey forms provided by the State. Fifth, subdivision 202-2.3(e) was revised to require that facilities report emissions of SO 2 , primary PM 2.5 , and primary PM 10 for exempt sources during periodic inventory years in addition to the pollutants listed in the current version of the rule.

The State also made changes to Section 202-2.4, (“Procedures:”). First, Subdivision 202-2.4(a) was repealed and replaced. Second, new paragraph 202-2.4(a)(1) and 202-2.4(a)(2) will maintain the current April 15 deadline for submitting emissions statements until such time that a facility is subject to the electronic reporting requirement. Third, new paragraph 202-2.4(a)(3) establishes the following deadlines for submitting emission statements under the new electronic submittal requirement: (a) March 15 of each year for facilities with three (3) or fewer processes listed in their Title V permit; (b) March 31 of each year for facilities with four (4) to six (6) processes listed in their Title V permit; (c) April 15 of each year for facilities with seven (7) to twelve (12) processes listed in their Title V permit; or (d) April 30 of each year for facilities with thirteen (13) or more processes listed in their Title V operating permit. Fourth, new paragraph 202-2.4(d) sets forth situations in which emission statements may be submitted via courier instead of electronic submittal: (a) when data cannot be labeled as confidential business information using the State's electronic interface in accordance with 6 NYCRR Part 616; or (b) a facility receives permission from the State after demonstrating a need to submit via courier due to a failure of the electronic reporting interface. Fifth, subdivisions 202-2.4(b) and 202-2.4(c) were modified to account for the change in the due date for submitting emission statements from April 15 of each year to the dates provided in paragraph 202-2.4(a)(3).

EPA reviewed NYSDEC's March 21, 2022, proposed SIP revision to update Title 6 NYCRR part 202-2 “Emission Statement.” NYSDEC's SIP revision meets the minimum requirement outlined on the Emission Statement Guidance, Section 4, XX00.050 page 43-45.

Based on the EPA's review, the Emission Statement rule contains the necessary applicability, compliance, enforcement, and reporting requirements for an approvable emission statement program. The EPA is proposing to approve the revisions to 6 NYCRR Part 202, Subpart 202-2, “Emission Statements,” with a State effective date of December 18, 2020, as part of New York's SIP. The EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

In this document, EPA is proposing to include regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference revisions to 6 NYCRR Subpart 202-2, “Emission Statement,” as described in Section II. of this preamble. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

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

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a State program;

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) application of those requirements would be inconsistent with the Clean Air Act.

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

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

The NYSDEC did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. The EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the Stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.

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

On May 9, 2023, EPA took final action approving portions of the 8-hour ozone attainment plan for the DNFR area that were submitted by the State of Colorado on March 22, 2021, and portions of additional SIP submissions made by the State on May 8, 2019, May 13, 2020, March 22, 2021, May 18, 2021, and May 20, 2022. 1 The State made these SIP submissions to meet CAA requirements for the DMNFR area classified as Serious nonattainment, to address RACT requirements for certain source categories in the DMNFR area, and to adopt VOC standards for consumer products and architectural and industrial maintenance coatings. We also finalized a limited approval and limited disapproval of parts of the SIP submissions made on May 14, 2018, May 13, 2020, March 22, 2021, May 18, 2021, and May 20, 2022, and of certain RACT categories, 2 and we finalized a limited conditional approval and limited disapproval of specific provisions intended to meet RACT requirements. 3 The limited disapproval portions of the May 9, 2023 final rule resulted from the Agency's determination that although the rules met RACT requirements concerning stringency, they lacked adequate reporting or other mechanisms to make them legally and practically enforceable by citizens in accordance with CAA section 304.

On July 10, 2023, the State submitted a Petition for Reconsideration asking the EPA to reconsider the issuance of the limited disapproval portions of the May 9, 2023 final rule. The EPA responded to the Petition for Reconsideration on August 31, 2023, informing the State that the EPA was granting the petition as to the limited disapproval portions of the May 9, 2023 final rule. 4 The EPA intends to reopen the rulemaking for the limited purpose of accepting comment and considering whether these SIP provisions are enforceable by citizens as required under the CAA, 5 or what revisions may be necessary to make them so.

In this action, we are proposing to stay the limited disapproval actions listed in Tables 2 and 3 of the May 9, 2023 final rule until June 1, 2024. All other portions of the final rule were effective as of June 8, 2023, and remain in effect. The EPA is proposing this action to provide additional time for consideration of the Petition for Reconsideration, which will occur through a separate notice and comment process that the Agency will be describing in more detail in a later document. The effect of the stay, if finalized as proposed, and depending on the outcome of the reconsideration process, will be that the federal implementation plan and sanctions clocks  6 for the limited disapprovals in Tables 2 and 3 of the May 9, 2023 final rule, restart on June 2, 2024. We are taking comment on today's proposal for 30 days. Any comments on this proposal should address only the issue of the stay of the limited disapproval actions; comments on other items will not be pertinent to this action.

As discussed in our May 9, 2023 final rule, the EPA reviewed demographic data, which provides an assessment of individual demographic groups of populations living within the DMNFR Area. The EPA then compared the data to the national averages for each of the demographic groups. The results of this analysis are being provided for informational and transparency purposes. The results of the demographic analysis indicate that for populations within the DMNFR Area, there are census block groups in which the percentage of people of color (persons who reported their race as a category other than White alone and/or Hispanic or Latino) is greater than the national average of 39% with some census block groups ranking above the 80th percentile. 7 There are also census block groups within the DMNFR Area where the percentage of low income population is above the national average of 33% with some census block groups ranking above the 80th percentile. 8

This proposed action stays the limited disapproval portions of our May 9, 2023 final action. The limited disapprovals in that action related to the EPA's concern that certain Colorado regulations do not have adequate reporting requirements or other mechanisms to make them enforceable under the citizen suit provision of CAA section 304. The purpose of the stay of the disapproval portions is to allow the EPA to more fully evaluate a petition for reconsideration from the State. The reconsideration will allow public input from all parties concerning the adequacy, with respect to CAA requirements for enforceability, of the provisions that were subject to limited disapproval. We expect that this action will generally be neutral or (combined with the anticipated final action following reconsideration) contribute to reduced environmental and health impacts on all populations in the DMNFR Area, including people of color and low-income populations. At a minimum, we expect that this action will not worsen any existing air quality. Further, there is no information in the record indicating that this action is expected to have disproportionately high or adverse human health or environmental effects on a particular group of people.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet CAA criteria. Accordingly, this action merely proposes to stay the limited disapprovals from our May 9, 2023 final rule and does not impose additional requirements beyond those imposed by state law.

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.

This action does not impose an information collection burden under the PRA, because this proposed action, if finalized, will not in and of itself create any new information collection burdens, but will simply stay the limited disapprovals from our May 9, 2023 final rule.

This action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This proposed action, if finalized, will not in and of itself create any new requirements but will simply stay the limited disapprovals from our May 9, 2023 final rule.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action proposes to stay the limited disapprovals from our May 9, 2023 final rule and imposes no new requirements. Accordingly, no additional costs to state, local, or tribal governments, or to the private sector, result from this action.

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

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

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive order. This action is not subject to Executive Order 13045 because this proposed action, if finalized, will not in and of itself create any new regulations, but will simply stay the limited disapprovals from our May 9, 2023 final rule.

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

This rulemaking does not involve technical standards.

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

The EPA believes that human health or environmental conditions existing prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on people of color, low-income populations, and/or Indigenous peoples. The results of our demographic analysis (see section III., Environmental Justice Considerations, above) indicate that for populations within the DMNFR Area, there are census block groups in which the percentage of people of color is greater than the national average of 39%, with some census block groups ranking above the 80th percentile. There are also census block groups within the DMNFR Area where the percentage of low-income population is above the national average of 33%, with some census block groups ranking above the 80th percentile.

The EPA believes that this action is not likely to change existing disproportionate and adverse effects on people of color, low-income populations, or Indigenous peoples. While the EPA recognizes the importance of assessing impacts of our actions on potentially overburdened communities, a final approval of the proposed stay of the limited disapprovals from our May 9, 2023 final action would not exacerbate existing pollution exposure or burdens for populations in the DMNFR Area.

As discussed in the Environmental Justice Considerations section of this preamble, there is no information to support a conclusion that staying the limited disapproval of the May 9, 2023 final rule would result in additional disparate impact on minority populations (people of color and/or Indigenous peoples) or low-income populations.

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 virtual hearing will be held on October 19, 2023. The hearing will convene at 11:00 a.m. Eastern Time (ET) and will conclude at 3:00 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/volatile-organic-liquid-storage-vessels-including-petroleum.

If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after the publication of this document in the Federal Register . To register to speak at the virtual hearing, please use the online registration form available at https://www.epa.gov/stationary-sources-air-pollution/volatile-organic-liquid-storage-vessels-including-petroleum 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 16, 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/volatile-organic-liquid-storage-vessels-including-petroleum.

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 submit a copy of their 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/volatile-organic-liquid-storage-vessels-including-petroleum. While the EPA expects the hearing to go forward as described in this section, 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 a special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by October 11, 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-2023-0358. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, 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.

Written Comments. Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2023-0358, at https://www.regulations.gov (our preferred method), or the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. This type of information should be submitted as discussed in the Submitting CBI section of this document.

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). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI or multimedia submissions; and general guidance on making effective comments.

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.

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 the Written Comments section of this document. 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: U.S. EPA, Attn: OAQPS Document Control Officer, Mail Drop: C404-02, 109 T.W. Alexander Drive, P.O. Box 12055, RTP, NC 27711, Attention Docket ID No. EPA-HQ-OAR-2023-0358. 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 document 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:

The source category that is the subject of this proposal is composed of VOL storage vessels regulated under Clean Air Act (CAA) section 111, New Source Performance Standards. The 2022 North American Industry Classification System (NAICS) codes for this source category are 325, 324, and 422710. The NAICS codes serve as a guide for readers outlining the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to affected facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Federal, State, local and Tribal government entities that own and/or operate storage vessels would be affected by this action.

In addition to being available in the docket, an electronic copy of this action is available on the internet at https://www.epa.gov/stationary-sources-air-pollution/volatile-organic-liquid-storage-vessels-including-petroleum. 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 edits that would be necessary to incorporate the changes to 40 CFR part 60, subparts Kb and Kc proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2023-0358). Following signature by the EPA Administrator, the EPA also will post a copy of this document to https://www.epa.gov/stationary-sources-air-pollution/volatile-organic-liquid-storage-vessels-including-petroleum.

The EPA's authority for this proposed rule is CAA section 111, which governs the establishment of standards of performance for stationary sources. Section 111(b)(1)(A) of the CAA requires the EPA Administrator to list categories of stationary sources that in the Administrator's judgment cause or contribute significantly to air pollution that may reasonably be anticipated to endanger public health or welfare. The EPA must then issue performance standards for new (and modified or reconstructed) sources in each source category pursuant to CAA section 111(b)(1)(B). These standards are referred to as new source performance standards, or NSPS. The EPA has the authority to define the scope of the source categories, determine the pollutants for which standards should be developed, set the emission level of the standards, and distinguish among classes, types, and sizes within categories in establishing the standards.

CAA section 111(b)(1)(B) requires the EPA to “at least every 8 years review and, if appropriate, revise” new source performance standards. However, the Administrator need not review any such standard if the “Administrator determines that such review is not appropriate in light of readily available information on the efficacy” of the standard. When conducting a review of an existing performance standard, the EPA has the discretion and authority to add emission limits for pollutants or emission sources not currently regulated for that source category.

In setting or revising a performance standard, CAA section 111(a)(1) provides that performance standards are to reflect “the degree of emission limitation achievable through the application of the best system of emission reduction which (taking into account the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated.” The term “standard of performance” in CAA section 111(a)(1) makes clear that the EPA is to determine both the best system of emission reduction (BSER) for the regulated sources in the source category and the degree of emission limitation achievable through application of the BSER. The EPA must then, under CAA section 111(b)(1)(B), promulgate standards of performance for new sources that reflect that level of stringency. CAA section 111(b)(5) generally precludes the EPA from prescribing a particular technological system that must be used to comply with a standard of performance. Rather, sources can select any measure or combination of measures that will achieve the standard. CAA section 111(h)(1) authorizes the Administrator to promulgate “a design, equipment, work practice, or operational standard, or combination thereof” if in his or her judgment, “it is not feasible to prescribe or enforce a standard of performance.” CAA section 111(h)(2) provides the circumstances under which prescribing or enforcing a standard of performance is “not feasible,” such as, when the pollutant cannot be emitted through a conveyance designed to emit or capture the pollutant, or when there is no practicable measurement methodology for the particular class of sources.

Pursuant to the definition of new source in CAA section 111(a)(2), standards of performance apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Under CAA section 111(a)(4), “modification” means any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant emitted by such source or which results in the emission of any air pollutant not previously emitted. Changes to an existing facility that do not result in an increase in emissions are not considered modifications. Under the provisions in 40 CFR 60.15, reconstruction means the replacement of components of an existing facility such that: (1) The fixed capital cost of the new components exceeds 50 percent of the fixed capital cost that would be required to construct a comparable entirely new facility; and (2) it is technologically and economically feasible to meet the applicable standards. Pursuant to CAA section 111(b)(1)(B), the standards of performance or revisions thereof shall become effective upon promulgation.

The EPA promulgated NSPS subpart K, specific to storage vessels for petroleum liquids, in 1974 (39 FR 9317, March 8, 1974). These standards were amended several times before 1980, when EPA proposed to establish revised NSPS for storage vessels for petroleum liquids as NSPS subpart Ka (45 FR 23379, April 4, 1980). In 1982, the EPA published a list of priority sources for which additional NSPS should be established (47 FR 951, January 8, 1982), and VOL storage vessels at synthetic organic chemical manufacturers were included in the priority list. Pursuant to the EPA's authority under CAA section 111, the Agency proposed (49 FR 29698, July 23, 1984) and promulgated (52 FR 11420, April 8, 1987) NSPS for volatile organic liquid storage vessels (including petroleum liquid storage vessels) for which construction, reconstruction, or modification commenced after July 23, 1984, as NSPS subpart Kb. 1 NSPS subpart Kb regulates storage vessels with a capacity of 75 cubic meters (m 3 ) (~20,000 gallons) or more that store VOLs with a true vapor pressure over 15.0 kilopascals (kPa) (~2.18 psia), and from storage vessels with a capacity of 151 m 3 (~40,000 gallons) or more that store organic liquids with a true vapor pressure over 3.5 kPa (~0.51 psia). VOC emissions controls are required on storage vessels with a capacity of 75 cubic meters (m 3 ) (~20,000 gallons) or more that store VOLs with a true vapor pressure over 27.6 KPa (~4.0 psia), and from storage vessels with a capacity of 151 m 3 (~40,000 gallons) or more that store organic liquids with a true vapor pressure over 5.2 kPa (~0.75 psia). NSPS subpart Kb emission controls include the use of either an external floating roof (EFR), an internal floating roof (IFR), or a closed vent system and a control device (see 40 CFR 60.110b(a) and 40 CFR 60.112b(a) and (b)). 2 NSPS subpart Kb also specifies testing, monitoring, recordkeeping, reporting, and other requirements in 40 CFR 60.113b through 40 CFR 60.116b to ensure compliance with the standards. Storage vessels with an EFR consist of an open-top cylindrical steel shell equipped with a deck that floats on the surface (commonly referred to as a floating “roof”) of the stored liquid. Storage vessels with an IFR are fixed roof vessels  3 that also have a deck internal to the vessel that floats on the liquid surface (commonly referred to as an internal floating “roof”) within the fixed roof vessel.

The standards set in NSPS subpart Kb for storage vessels with an EFR or IFR are a combination of design, equipment, work practice, and operational standards set pursuant to CAA section 111(h). These standards require, among other things, that a rim seal be installed continuously around the circumference of the vessel (between the inner wall of the vessel and the floating roof) to prevent VOC emissions from escaping to the atmosphere through gaps between the floating roof and the inner wall of the storage vessel. For IFRs, NSPS subpart Kb allows a single liquid-mounted or mechanical shoe primary seal (to be used with or without a secondary seal), or a vapor-mounted primary seal in combination with a secondary seal. For EFRs, NSPS subpart Kb allows either a liquid-mounted or mechanical shoe primary seal, both of which must be used with a secondary seal; vapor-mounted primary seals are not allowed for EFR.

NSPS subpart Kb also requires numerous deck fittings  4 on the floating roof to be equipped with a gasketed cover or lid that is kept in the closed position at all times ( i.e., no visible gap), except when the device (deck fitting) is in actual use, to prevent VOC emissions from escaping through the deck fittings. In addition, NSPS subpart Kb requires owners and operators to conduct visual inspections to check for defects in the floating roof, rim seals, and deck fittings ( e.g., holes, tears, or other openings in the rim seal, or covers and lids on deck fittings that no longer close properly) that could expose the liquid surface to the atmosphere and potentially result in VOC emission losses through rim seals and deck fittings. 5

NSPS subpart Kb includes two primary alternative means of compliance. Owners or operators may either comply with the consolidated air rule provisions for storage vessels in 40 CFR part 65, subpart C, or comply with the national emission standards for hazardous air pollutants (NESHAP) for storage vessels in 40 CFR part 63, subpart WW. The substantive control requirements in these rules are the same as in NSPS subpart Kb although they may have slight differences in the details of the fitting and inspection requirements.

We estimate that there were approximately 9,100 storage vessels subject to NSPS subpart Kb in 2022, with an estimated 240 storage vessels becoming new affected facilities under the rule each year. Under the current NSPS subpart Kb requirements, it is generally difficult to become a modified storage vessel.

As noted in section II.A of this preamble, CAA section 111 requires the EPA to, at least every 8 years, review and, if appropriate, revise the standards of performance applicable to new, modified, and reconstructed sources. If the EPA revises the standards of performance, those standards must reflect the degree of emission limitation achievable through the application of the BSER considering the cost of achieving such reduction and any non-air quality health and environmental impact and energy requirements. CAA section 111(a)(1).

In reviewing an NSPS to determine whether it is “appropriate” to revise the standards of performance, the EPA evaluates the statutory factors, which may include consideration of the following information:

• Expected growth for the source category, including how many new facilities, reconstructions, and modifications may trigger NSPS in the future.

• Pollution control measures, including advances in control technologies, process operations, design or efficiency improvements, or other systems of emission reduction, that are “adequately demonstrated” in the regulated industry.

• Available information from the implementation and enforcement of current requirements indicating that emission limitations and percent reductions beyond those required by the current standards are achieved in practice.

• Costs (including capital and annual costs) associated with implementation of the available pollution control measures.

• The amount of emission reductions achievable through application of such pollution control measures.

• Any non-air quality health and environmental impact and energy requirements associated with those control measures.

In evaluating whether the cost of a particular system of emission reduction is reasonable, the EPA considers various costs associated with the particular air pollution control measure or a level of control, including capital costs and operating costs, and the emission reductions that the control measure or particular level of control can achieve. The Agency considers these costs in the context of the industry's overall capital expenditures and revenues. The Agency also considers cost effectiveness analysis as a useful metric and a means of evaluating whether a given control achieves emission reduction at a reasonable cost. A cost effectiveness analysis allows comparisons of relative costs and outcomes (effects) of two or more options. In general, cost effectiveness is a measure of the outcomes produced by resources spent. In the context of air pollution control options, cost effectiveness typically refers to the annualized cost of implementing an air pollution control option divided by the amount of pollutant reductions realized annually.

After the EPA evaluates the statutory factors, the EPA compares the various systems of emission reductions and determines which system is “best,” and therefore represents the BSER. The EPA then establishes a standard of performance that reflects the degree of emission limitation achievable through the implementation of the BSER. In performing this analysis, the EPA can determine whether subcategorization is appropriate based on classes, types, and sizes of sources, and may identify a different BSER and establish different performance standards for each subcategory. The result of the analysis and BSER determination leads to standards of performance that apply to facilities that begin construction, reconstruction, or modification after the date of publication of the proposed standards in the Federal Register . Because the new source performance standards reflect the best system of emission reduction under conditions of proper operation and maintenance, in doing its review, the EPA also evaluates and determines the proper testing, monitoring, recordkeeping, and reporting requirements needed to ensure compliance with the emission standards.

See section II.D of this preamble for information on the specific data sources that were reviewed as part of this action.

We reviewed recent federal, State, and local rulemakings associated with VOL storage vessels. We also reviewed vendor websites and contacted selected floating roof suppliers to collect information to support our review of the existing requirements for organic liquid storage vessels and our BSER assessments. We met with industry representatives that own and operate VOL storage vessels to discuss their experience with various control equipment.

We used the equations in Chapter 7 of AP-42 : Compilation of Air Emission Factors to estimate emissions from different VOL storage vessels based on size, contents, and control configuration ( e.g., type of floating roof with different seal and fitting controls). We estimated emission reductions by comparing the controlled emissions with emissions from an uncontrolled fixed roof storage vessel.

Our cost estimates were based largely on vendor costs developed from previous rulemakings. For some control methods, we had limited recent data from vendors or State and local rulemakings. All costs were escalated to 2022 dollars using the Chemical Engineering Plant Cost Index for capital expenditures and Bureau of Labor Statistics data for labor rates.

The EPA is proposing revisions to the NSPS for VOL storage vessels pursuant to the EPA's review of NSPS subpart Kb. The EPA is proposing to codify the NSPS revisions proposed in this action in a new subpart NSPS subpart Kc. The proposed NSPS subpart Kc would be applicable to sources that commence construction, reconstruction, or modification after October 4, 2023.

This section outlines the proposed actions for NSPS subpart Kc. The EPA is proposing new vapor pressure applicability thresholds for controls under NSPS subpart Kc. The EPA is also proposing new standards for VOL storage vessels subject to control requirements. Under NSPS subpart Kc we are proposing that the standard of performance reflecting the application of BSER for VOL storage vessels subject to control requirements and used to store liquids with maximum true vapor pressures below 11.1 psia (76.6 kPa) is an IFR. The updated standards are projected to increase the average control efficiency of IFR storage vessels to 98 percent. As an alternative compliance to the proposed IFR design standard, we are proposing to permit either the use of an EFR or the use of a closed vent system and a control device that meet an equivalent standard of control. For controlled storage vessels that store liquids with a maximum true vapor pressure equal to or greater than 11.1 psia (76.6 kPa), we are proposing to find that the BSER is a closed vent system and a control device. We are proposing that the standard of performance reflecting the emission limitation achievable is a 98 percent reduction in VOC emissions (increased from 95 percent in the NSPS subpart Kb). EPA is also including modification requirements under NSPS subpart Kc and discusses the relevant criteria for meeting modifications in this section. This section also details the proposed testing, monitoring and inspection requirements, degassing provisions, provisions for SSM, and electronic reporting requirements. As described in this section, the revisions proposed in this action were determined to be cost-effective and to reflect the application of the best system of emission reduction (BSER) for VOL storage vessels.

NSPS subpart Kb established control requirements, at 40 CFR 60.112b(a), for storage vessels based on vessel capacity and VOL vapor pressures. In our review of NSPS subpart Kb, we assessed the vapor applicability thresholds for affected facilities and for controls on affected storage vessels to determine whether these thresholds needed to be revised for purposes of NSPS subpart Kc. In NSPS subpart Kb there are two different sets of vapor pressure applicability thresholds: one for determining affected facilities and one for determining controls.

In NSPS subpart Kb, the vapor pressure applicability thresholds for defining affected facilities were slightly lower than those used for affected facilities for which controls were required. The EPA included the two separate applicability requirements sets in NSPS subpart Kb, one to identify storage vessels near the control applicability thresholds and another to establish limited monitoring procedures for vessels with variable components and vapor pressures. We are proposing to not include specific vapor pressure applicability thresholds in defining an affected facility under NSPS subpart Kc. As such, the proposed affected facility under NSPS subpart Kc is any storage vessel with a capacity of 20,000 gallons or more used to store a volatile organic liquid without exclusion for storage vessels under a set vapor pressure. This proposed change simplifies the applicability under NSPS subpart Kc and establishes a baseline for monitoring and recordkeeping in accordance with good air pollution control practices for storage vessels that do not meet the vapor pressure emission control threshold.

In our review of NSPS subpart Kb, in assessing the vapor applicability thresholds that require emission controls, we estimated the cost of including an IFR as part of a new fixed roof storage vessel installation for a variety of surrogate organic liquids covering a wide range of vapor pressures for both 20,000 gallon and 40,000 gallon capacity storage vessels. We used the AP-42 equations for liquid storage tanks to estimate emissions for fixed roof storage vessels and IFR storage vessels. Costs were estimated based on various vendor quotes, escalated to 2022$. For more detail regarding the analyses conducted, see memorandum Control Options for Storage Vessels included in Docket ID No. EPA-HQ-OAR-2023-0358.

For storage vessels of 20,000 gallon capacity or more but less than 40,000 gallon capacity, we evaluated the cost and cost effectiveness of different vapor pressure applicability thresholds, including:

• 4.0 psia based on NSPS subpart Kb value (27.6 kPa)

• 1.9 psia based on thresholds used in several NESHAP including 40 CFR part 63, subparts G and CC.

• 1.5 psia based on thresholds in South Coast Air Quality Management District (SCAQMD) Rule 463.

• 1.0 psia to evaluate an option beyond 1.5 psia.

We conducted this analysis using a model storage vessel of 20,000 gallon capacity. We assessed costs for two different levels of IFR: one meeting the basic requirements of NSPS subpart Kb and one with upgraded seal requirements (requiring a mechanical shoe seal or liquid-mounted primary seal with a rim-mounted secondary seal). Table 1 summarizes the results of our analysis for these small storage vessels.

A similar analysis was conducted for storage vessels with a design capacity of 40,000 gallons or more. For this analysis, we used a model storage vessel with a 60,000 gallon capacity, which we consider representative of storage vessels at the smaller end of the range of storage vessels with a capacity of 40,000 gallons or more. We evaluated the cost and cost effectiveness of different vapor pressure applicability thresholds, including:

• 0.75 psia based on NSPS subpart Kb value (5.2 kPa).

• 0.50 based on thresholds in SCAQMD Rule 463.

• 0.35 psia to evaluate an option beyond 0.5 psia.

Table 2 summarizes the results of our analysis for storage vessels with a capacity of 40,000 gallons or more.

Based on this analysis, we are proposing for NSPS subpart Kc to revise the vapor applicability thresholds that require emission controls. We are proposing to revise the maximum true vapor pressure threshold for small storage vessels (those with capacity of at least 20,000 gallons but less than 40,000 gallons) to 1.5 psia and for larger storage vessels (those with capacity of 40,000 gallons or more) to 0.5 psia. These thresholds yield emission reductions at a cost of approximately $6,000 and $7,000 per ton of VOC reduced respectively, which is within the range of what the EPA has considered cost-effective for the control of VOC emissions in other recent NSPS rulemakings. See, e.g., 88 FR 29982 (May 9, 2023) (finding a value of $6,800/ton of VOC emissions reductions cost-effective for automobile and light duty truck surface coating operations (NSPS subpart MMa)). The cost effectiveness for VOLs with vapor pressures less than the proposed maximum true vapor pressure cutoffs are approximately $10,000 and $11,000 per ton of VOC reduced. This is not cost-effective because it is significantly higher than what the EPA has historically found to be cost-effective for VOC regulations. The EPA solicits comment on the proposed vapor pressure applicability described in this section.

NSPS subpart Kb includes several provisions that exempt specific groups of VOL storage vessels from applicability under the standard. These exemptions are outlined in 40 CFR 60.110b (d) and include specific exemptions for storage vessels that operate at coke oven by-product plants, bulk gasoline plants, and gasoline service stations. The exemptions include pressure vessels operating in excess of 204.9 kPA, vessels attached to mobile vehicles, and vessels that store beverage alcohol. These exemptions are being carried over into the proposal for NSPS Kc as the justifications for their exemption remains unchanged from the original NSPS subpart Kb promulgation.

The EPA is also proposing to carry over the exemption requirements in 40 CFR 60.110b(d)(4), which covers storage vessels with capacities less than or equal to 1,589.874 m 3 (~420,000 gallons) used for petroleum or condensate stored, processed, or treated prior to custody transfer. The EPA previously explained the applicability of this exemption in the preamble to NSPS subpart Ka (45 FR 23377) stating, “this exemption applies to storage between the time that the petroleum liquid is removed from the ground and the time the custody of the petroleum liquid is transferred from the well or producing operations to the transportation operations. If it is determined in the future that VOC emissions from new production field vessels smaller than 1,589,873 liters (420,000 gallons) are significant, separate standards of performance will be developed.” Since promulgation of NSPS subpart Ka, the EPA promulgated subparts OOOO and OOOOa for the oil and natural gas sector, which include standards of performance for these types of storage vessels. The EPA has also proposed revised standards for these sources in its latest review, as part of the proposed NSPS subpart OOOOb and the emission guideline for existing sources at proposed subpart OOOOc. See 87 FR 74702. As such, the EPA proposes to carry the language of this exemption into NSPS subpart Kc.

NSPS subpart Kb also includes an exemption for vessels subject to the NESHAP for solvent extraction for vegetable oil production outlined in 40 CFR 63 subpart GGGG. The EPA determined as part of its review, that the standards proposed in NSPS subpart Kc improve upon the existing NESHAP subpart GGGG standards. As such, the EPA proposes that vessels subject to NESHAP subpart GGGG, would not be exempted from NSPS subpart Kc applicability.

The EPA solicits comment on these proposed exemptions and changes to the applicability provisions.

The EPA is proposing standards of performance that reflect the BSER as well as alternative compliance standards for controlled storage vessels under NSPS subpart Kc. The proposed BSER analyses and proposed standards for NSPS subpart Kc are dependent on the maximum true vapor pressure of a stored VOL and follow the precedent established in NSPS subpart Kb. For storage vessels storing VOL with maximum true vapor pressures less than 11.1 psia, the EPA discusses the BSER analysis and proposes standards of performance for newly constructed and reconstructed IFRs in section III.D. The EPA also is proposing two alternative compliance options for storage vessels with maximum true vapor pressures less than 11.1 psia. These alternative compliance options are EFRs and closed vent system and control. Details regarding alternative compliance standards for newly constructed and reconstructed storage vessels are discussed in section III.E.

For storage vessels with maximum true vapor pressures greater than or equal to 11.1 psia, the EPA is proposing to determine that the BSER is closed vent system and control, and the standard of performance reflecting the BSER is a 98 percent reduction in VOC emissions. The BSER analysis and standard of performance for storage vessels with VOL maximum true vapor pressures greater than or equal to 11.1 psia are discussed in section III.F. Additionally, we are proposing requirements that are applicable to storage vessels that are controlled using a closed vent system and a control device to meet either proposed standard, and those proposed requirements are also discussed in section III.F.

In section III.G the EPA proposes what constitutes a modification for purposes of NSPS subpart Kc. Discussion regarding the BSER analysis, standards of performance for modified storage vessels and compliance alternatives are discussed in sections III.F and III.H.

In our review of NSPS subpart Kb for storage vessels storing VOL with maximum true vapor pressures less than 11.1 psia, we focused on control options for IFR storage vessels because IFR storage vessels are more effective at controlling emissions and are technologically achievable. Therefore, IFR storage vessel control options were evaluated to determine BSER for VOL vapor pressures less than 11.1 psia. Because floating roof tanks are unsuitable for controlling VOL with vapor pressures greater than or equal 11.1 psia, the EPA conducted a separate analysis to determine the BSER and standard of performance for those storage vessels.

The control options we evaluated for IFR storage vessels included:

• Baseline. NSPS subpart Kb control requirements (with NSPS subpart Kc proposed lower vapor pressure thresholds detailed in section III.A)

• Option IFR-1. NSPS subpart Kb but primary seal must either be liquid-mounted or mechanical shoe seal and must have a rim-mounted secondary seal.

• Option IFR-2. Option 1 requirements + require fixed roof legs or cable suspended roof (cannot have adjustable roof legs that penetrate through the floating roof).

• Option IFR-3. Option 2 requirements + require welded seems and best guidepole fittings.

All three of the listed options above also include provisions for requiring gauge-hatches/sample ports to be gasketed. We determined that all of these IFR control options are in use in the industry and thus adequately demonstrated.

The cost effectiveness of these control options is dependent on the size and contents of the storage vessel. We estimated that approximately 240 new storage vessels become subject to the NSPS subpart Kb every year, such that 1,200 new storage vessels could become subject to NSPS subpart Kc over the next five years if no change in thresholds is adopted. We projected that with lower vapor pressure thresholds, approximately 20 percent more storage vessels could become subject to the NSPS subpart Kc standards each year. We assigned the estimated 1,440 new storage vessels across a range of storage vessel sizes and vapor pressures for the stored liquids to develop national impact estimates for each IFR control option. For more information on the nationwide cost analysis of IFR control options for new storage vessels, see memorandum Control Options for Storage Vessels in Docket ID No. EPA-HQ-OAR-2023-0358.

The national impacts projected for each IFR control option are presented in Table 3 of this preamble.

Based on this analysis, we are proposing to determine that for new and reconstructed storage vessels with vapor pressures less than 11.1 psia, BSER is Option IFR-1. Specifically, we are proposing to require that the primary seal must either be liquid-mounted or a mechanical shoe seal and must have a rim-mounted secondary seal. While Table 3 displays numerous options that have favorable cost effectiveness values, incremental cost effectiveness was the determining factor in selecting the appropriate IFR control option. The EPA estimated that the incremental cost effectiveness of Option IFR-1 is projected to yield emission reductions at a cost of approximately $3,200 per ton of VOC reduced on average, which we determined is cost- effective and is well within the range of what the EPA has considered cost-effective for the control of VOC emissions. The other control options we evaluated for IFR storage vessels had incremental cost effectiveness of $11,000 or more per ton of VOC reduced, which is well above what we have determined to be cost-effective for the control of VOC emissions. IFRs are the most common emission control method for VOL storage vessels and thus are adequately demonstrated. Further, IFRs do not require power or addition of add-on controls; therefore, there are minimal non-air quality health and environmental impacts and energy requirements.

IFRs with a liquid-mounted or mechanical shoe primary seal and rim-mounted secondary seal (Option IFR-1) were selected as the most appropriate option for new and reconstructed storage vessels under the BSER determination. The EPA therefore proposes an equipment standard pursuant to CAA section 111(h)(5) that would require that new storage vessels be constructed as IFR, that the primary seal must either be liquid-mounted or mechanical shoe seal and must have a rim-mounted secondary seal, that gauge-hatches/sample ports to be gasketed, and that the guidepole configurations incorporate the provisions outlined in the 2000 EPA Storage Tank Emissions Reduction Partnership Program (STERPP).

The EPA solicits comment on the proposal to determine that the BSER for storage vessels storing VOL with maximum true vapor pressures less than 11.1 psia is Option IFR-1, or whether one of the alternative options would be justified. The EPA also solicits comment on the proposed equipment standard.

As discussed in section III.D of this preamble, we are proposing to determine that, for new and reconstructed storage vessels with a maximum true vapor pressure less than 11.1 psia, the BSER and equipment standard is IFR with enhanced rim seal requirements: specifically, the primary seal must either be liquid-mounted or mechanical shoe seal and must have a rim-mounted secondary seal. We are also proposing to revise the NSPS requirements for EFR storage vessels as an alternative compliance option to equipment standard for newly constructed and reconstructed storage vessels. The average control efficiency for the proposed Option IFR-1 was determined to be 98 percent. In reviewing the NSPS, we found that certain EFR storage vessels could achieve the same level of control as the proposed control option for IFR storage vessels (Option IFR-1). As such, we are proposing to permit the use of EFR storage vessels that we determined achieve equivalent performance as an IFR storage vessel across a range of different capacities. Based on AP-42 emission calculation methods, we found that an EFR storage vessel that has primary and secondary seals as specified in Option IFR-1, welded seams (typical construction for EFR), and that use an unslotted guidepole with gasketed sliding cover and pole wiper have emissions comparable to an IFR storage vessel under Option IFR-1. If a slotted guidepole is used, a liquid mounted primary seal must be used and the slotted guidepole must have a gasketed sliding cover, pole sleeve and pole wiper (with or without float). We recognize that other control combinations for the EFR storage vessel may achieve comparable emissions to an Option IFR-1 storage vessel depending on the size and content of the storage vessel, and the typical meteorological conditions. Although we are not attempting to identify every such combination in proposing to codify this compliance alternative, CAA section 111(h)(5) permits facilities to request an alternative means of emission limitation to assess equivalency of EFR controls to IFR controls under site-specific conditions.

We are also proposing to permit storage vessels with a maximum true vapor pressure less than 11.1 psia to use closed vent system and control devices as an alternative compliance to the equipment standard, so long as the storage vessel achieves a 98 percent reduction in VOC emissions to be equivalent to the proposed IFR standard. Such storage vessels would be required to meet the proposed requirements for closed vent systems and control devices described in section III.F.

The EPA solicits comment on these proposed compliance alternatives for storage vessels with a maximum true vapor pressure less than 11.1 psia.

As noted previously, the EPA is proposing that for newly constructed and reconstructed VOL storage vessels with a maximum true vapor pressure less than 11.1 psia, the BSER is IFR with enhanced rim seal requirements. Because floating roof tanks are unsuitable for controlling VOL with vapor pressures greater than or equal 11.1 psia, the EPA conducted a separate analysis to determine the BSER and standard of performance for those storage vessels that are new, modified, or reconstructed. In NSPS subpart Kb, closed vent systems and control devices are the BSER for storage vessels for organic liquids with maximum true vapor pressures of 11.1 psia or greater and have served as an alternative compliance option for storage vessels with lower vapor pressures. Therefore, in reviewing NSPS subpart Kb, the EPA also reviewed the control requirements associated with storage vessels that use closed vent systems and control devices. We assessed the cost and cost effectiveness of a closed vent system and control device for a range of storage vessels used to store liquids with high vapor pressures. We are proposing to continue to find the BSER to be closed vent systems and control devices for new, modified, or reconstructed storage vessels for organic liquids with maximum true vapor pressures of 11.1 psia or greater, and to set the standard of performance to require that these storage vessels must achieve a 98 percent reduction in VOC emissions.

For storage vessels used to store organic liquids with maximum true vapor pressures of 11.1 psia or greater, we estimated the cost of a flare dedicated to a single storage vessel. We estimated the costs separately for flares meeting the requirements in 40 CFR 60.18 (95 percent reduction) or using the flare requirements in 40 CFR 63.670 (98 percent reduction). We used two times the maximum filling rate to size the flares, we determined the time period needed at the maximum filling rate to achieve the modeled working losses, and we determined the average flow rate needed for the remaining time period to correspond to the modeled standing losses. Because of the high vapor pressure of the liquid contents, flares meeting the requirements in 40 CFR 63.670 are expected to be able to use the methods in 40 CFR 63.670(j)(6) to determine minimum net heating value of the gas stream. Depending on the assist-type of the flare, supplemental gas may be needed during periods of low flow, which is the vast majority of the time. We expect facilities would use a pressure valve in the closed vent system to prevent low flows and prevent back flow from the flare to the storage vessel when emptying the storage vessel. These pressure valves could be set to ensure gas flow to the flare is always sufficient to prevent over-assisting, but we assumed flares with low flows would use supplemental natural gas. For smaller storage vessels (20,000 to 60,000 gallons capacity), there were added costs associated with meeting the combustion zone operating limits in 40 CFR 63.670. For the larger storage vessels, routine flows from the storage vessels were sufficient to meet the combustion zone operating limits in 40 CFR 63.670. We estimate there would be 25 new storage vessels used for storing high vapor pressure liquids for which closed vent system and control device would be required, primarily in the 40,000 to 60,000 gallon capacity range. For more details regarding the nationwide of costs for closed vent systems and control devices, see memorandum Control Options for Storage Vessels in Docket ID No. EPA-HQ-OAR-2023-0358. The nationwide impacts projected for these two control options evaluated for purposes of NSPS subpart Kc (95 percent and 98 percent control) are provided in Table 4 of this preamble.

Based on our analysis, we are proposing that the BSER for storage vessels operating with maximum true vapor pressures equal to or greater than 11.1 psia is the use of a closed vent system and control device meeting a 98 percent control efficiency. The EPA considers the cost-effectiveness of both control options to be within the range of what the EPA has considered cost- effective for the control of VOC emissions. While the incremental cost-effectiveness of 98 percent control is slightly higher than for 95 percent control, it is also well within the range of what the EPA has considered cost-effective. Although these control devices use power and result in additional combustion emissions, there is no significant difference between 95 and 98 percent control levels in as regards to the non-air quality health and environmental impacts, or energy requirements. Accordingly, the EPA proposes to find the use of a closed vent system and control device meeting a 98 percent control efficiency is the BSER and proposes to set a standard of performance for new, reconstructed, and modified storage vessels operating with vapor pressures equal to or greater than 11.1 psia as 98 percent control of VOC emissions.

The EPA is also proposing to establish requirements for closed vent systems and control devices to ensure that storage vessels using them to comply with the proposed standards actually achieve 98 percent control efficiency. In order for the closed vent system and control device to meet 98 percent control efficiency, the storage vessel must not vent to the atmosphere. Conservation vents and pressure relief devices are often used to vent emissions from storage vessels when the pressure within the storage vessel approaches the maximum design pressure of the storage vessel. Many atmospheric storage vessels have pressure ratings of 1 or 2 psig and would therefore vent often if the vapor pressure of the stored liquid is above 2 psi. Consequently, to ensure direct venting from the storage vessel does not occur, we are proposing to require storage vessels have a design operating gauge pressure no less than 1 psi greater than the maximum vapor pressure of the liquid being stored and any back pressure anticipated when the storage vessel is filled at its maximum rate. While vapor pressures are commonly reported in terms of absolute pressure, a storage vessel containing a liquid with a vapor pressure of 4 psia would generally have a headspace pressure of 4 psi above atmospheric pressure, or 4 psig. Storage vessel owners or operators would also have to evaluate the back pressure of the control system used and ensure that the closed vent system can handle the maximum filling rate of the storage vessel without increasing pressure in the storage vessel above this 5 psig value or else establish a higher design and operating pressure for the storage vessels. For example, if the back pressure of the closed vent system (or the pressure drop from the storage vessel to the control device) is 3 psi at the maximum filling rate, and the liquid stored has a maximum true vapor pressure of 4 psia, the minimum opening pressure of any pressure relief device on the storage vessel would have to be 8 psig (3+4+additional 1). We are also proposing to require that any vacuum breaking device have a close pressure no less than 0.1 psig vacuum to prevent losses from the vacuum breaker vent.

The EPA solicits comment on our proposed BSER determination and standard of performance for new, reconstructed, and modified storage vessels operating with vapor pressures equal to or greater than 11.1 psia, as well as the proposed requirements for closed vent systems and control devices.

For purposes of CAA section 111, modifications are defined as “any physical change in, or change in the method of operation of,” an existing facility which increases the amount of any air pollutant (to which a standard applies) emitted into the atmosphere by that facility or which results in the emission of any air pollutant (to which a standard applies) into the atmosphere not previously emitted. 6 40 CFR 60.2. NSPS Subpart A further provides provisions explaining how a modification is identified as well as defining certain exemptions to those general rules. In particular, 40 CFR 60.14(e)(4) states that the “[u]se of an alternative fuel or raw material” is not considered a modification if the existing facility was designed to accommodate that alternative use. In prior EPA actions making applicability determinations for purposes of NSPS Kb, the EPA has previously cited to this provision to assert that a change in the type of material stored in a storage vessel is not, by itself, a modification if the storage vessel is capable of accommodating the storage of the new materials. 7 However, the EPA has revisited the previous interpretation as discussed in the following paragraphs and now proposes, for purposes of NSPS Kc, that a change in the liquid stored in the storage vessel to an organic liquid with a higher maximum true vapor pressure does not constitute a “use of an alternative fuel or raw material,” and would be considered a change in the method of operation of the storage vessel. Thus, the EPA proposes that a change in the liquid stored which results in increased VOC emissions would be a modification under NSPS Kc. The EPA recognizes that the proposed approach to modifications for purposes of NSPS subpart Kc represents a change of the EPA's previous interpretation of the provision in 40 CFR 60.14(e)(4) that asserted that change in liquid alone did not trigger a modification. However, the EPA proposes to find that this change in interpretation for purposes of defining a modification for NSPS subpart Kc is appropriate, in particular, because as discussed below the changes in the organic liquid stored in a storage vessel do not constitute changes in “fuel or raw material,” as the primary function of this affected facility is the storage of materials, and the materials stored are neither raw material nor fuel inputs to a process at the facility itself. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009) (when the Agency acknowledges change in position, “it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the Agency believes it to be better, which the conscious change of course adequately indicates”).

As noted earlier in this preamble, as the EPA has defined modification for purposes of CAA section 111, using a different fuel or raw material in the process that the facility was specifically designed for does not itself constitute a modification under the exemption identified in 40 CFR 60.14(e)(4). However, for storage vessels, the primary function of this affected facility is the storage of materials, and the materials stored are neither raw material nor fuel inputs to a process at the facility itself. Therefore, for purposes of NSPS Kc, the EPA now proposes to determine that the exemption outlined in 40 CFR 60.14(e)(4) does not apply, because the organic liquid stored in the vessels subject to this part does not constitute fuels or raw materials. Accordingly, the EPA proposes to consider the change in materials stored in a storage vessel to be an operational change under CAA section 111(a)(4). Thus, where an owner or operator changes the operation of the tank to store materials with higher vapor pressures, this change results in an increased emission potential. The EPA proposes to find that this change is an operation meeting the definition of “modification” under CAA section 111(a)(4) and 40 CFR 60.14(a). If the modified storage vessel meets the applicability criteria of NSPS subpart Kc, then it would be subject to the standards of performance and other requirements established in the final rule.

The EPA has identified no other exemption in 40 CFR 60.14(e) which applies to a change in the organic liquid stored in a storage vessel. The EPA further proposes to determine that a change in the organic liquid stored at a storage vessel constitutes a modification under the statutory definition because it is reasonable to consider a change in the organic liquid stored to a new liquid with a higher true vapor pressure to be a change in operation, especially because such a change is expected to increase VOC emissions. Thus, the EPA proposes that a change in the liquid stored which results in increased VOC emissions would be a modification under NSPS subpart Kc. If the previous content of the storage vessel was below the vapor pressure threshold, a change in the liquid stored in the vessel to one that is above the vapor pressure threshold would increase the amount of VOC emitted from the storage vessel and should be considered a modification of the storage vessel and trigger the NSPS subpart Kc control requirements.

The EPA solicits comment on the proposed change in interpretation of 40 CFR 60.14(e) as it applies to modifying storage vessels subject to NSPS subpart Kc.

The EPA evaluated BSER for modified storage vessels for NSPS subpart Kc with maximum true vapor pressures less than 11.1 psia. In most cases, the EPA expects that modified storage vessels will have existing fixed roofs, because IFRs were not previously required by NSPS subpart Kb. The costs of retrofitting a fixed roof storage vessel with an IFR are the same as the costs of adding an IFR to a new storage vessel. Some modified storage vessels that newly trigger into the NSPS, however, may already have IFRs, and upgrading only certain elements of the IFR can have significantly different costs than when installing a new IFR. Therefore, to assess BSER for modified storage vessels, we developed national cost estimates separately for modified storage vessels depending on whether or not the storage vessels had existing IFRs prior to modification.

We estimate a total of 30 storage vessels would become newly affected facilities due to modifications over the first 5 years after promulgation of NSPS subpart Kc. We estimate 10 percent of these storage vessels would have an existing IFR and that the existing IFR was compliant with the IFR requirements in NSPS subpart Kb. For more information on the nationwide cost analysis of IFR control options for modified storage vessels, see memorandum Control Options for Storage Vessels in Docket ID No. EPA-HQ-OAR-2023-0358.

Table 5 of this preamble summarizes the costs and cost effectiveness of the impacts of modified storage vessels without an IFR prior to the modification, under the baseline of the existing Kb requirements and all three IFR options. The incremental costs are somewhat higher than for new and reconstructed storage vessels because we projected that the vapor pressures of the organic liquids stored in the modified storage vessels would be near the vapor pressure applicability threshold. Thus, we projected that storage vessels that triggered into the NSPS subpart Kc because of a change in the liquid stored would generally have lower vapor pressure organic liquids, on average, than compared to new storage vessels. Based on this analysis, we are proposing for NSPS subpart Kc to find that Option IFR-1 (enhanced rim seal requirements) is cost-effective and represents BSER for modified fixed roof storage vessels. Like for new and reconstructed sources, the cost-effectiveness of all options is well within the range of what the EPA has considered to be cost-effective in past rulemakings. However, while the incremental cost effectiveness of Option IFR-1 is also reasonable, the incremental cost-effectiveness of Option IFR-2 and Option IFR-3 are significantly higher than what the EPA has previously found reasonable. Accordingly, while the cost-effectiveness of all options is quite reasonable, the high incremental cost-effectiveness is the determining factor in the EPA's consideration of costs. The EPA's consideration of non-air quality health and environmental impacts, as well as energy requirements, is also the same as for new and reconstructed storage vessels. Therefore, the EPA is proposing to determine that Option IFR-1 is the BSER for existing storage vessels with maximum true vapor pressures less than 11.1 psia that modify and do not have an existing floating roof. These proposed requirements are also applicable to new sources (sources constructed after the proposal date) that modify after the proposal date.

Table 6 of this preamble summarizes the costs and cost effectiveness of the impacts of modified storage vessels with maximum true vapor pressures less than 11.1 psia that already have an existing IFR prior to the modification. The costs per ton of VOC reduced when modifying controls on an existing IFR are much higher than when installing a new IFR on an existing fixed roof storage vessel. The cost effectiveness and incremental cost effectiveness of all three IFR options are well above what the EPA has found to be reasonable for the control of VOC emissions. Consequently, we are proposing for NSPS subpart Kc that, for modified storage vessels with maximum true vapor pressures less than 11.1 psia with an existing IFR, the NSPS subpart Kb control requirements without upgrading the rim seal requirements represent the application of BSER, and we propose to retain those standards for these sources in NSPS subpart Kc.