[Federal Register Volume 88, Number 248 (Thursday, December 28, 2023)]
[Rules and Regulations]
[Pages 89589-89593]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-28496]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[EPA-R06-OAR-2023-0090; FRL-11014-02-R6]


Air Plan Approval; Oklahoma; Revisions to Air Pollution Control 
Rules

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Pursuant to the Federal Clean Air Act (CAA or the Act), the 
Environmental Protection Agency (EPA) is approving revisions to the 
State Implementation Plan (SIP) for Oklahoma, submitted to the EPA by 
the State of Oklahoma designee (``the State'') on January 30, 2023. The 
SIP revisions being approved address amendments to subchapters 
regarding Control of Emission of Volatile Organic Compounds (VOCs) and 
Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas 
and Former Nonattainment Areas.

DATES: This rule is effective on January 29, 2024.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID EPA-R06-OAR-2023-0090. All documents in the docket are listed 
on the https://www.regulations.gov website. Although listed in the 
index, some information is not publicly available, e.g., Confidential 
Business Information or other information whose disclosure is 
restricted by statute. Certain other material, such as copyrighted 
material, is not placed on the internet. Publicly available docket 
materials are available electronically through https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Mr. Emad Shahin, EPA Region 6 Office, 
Infrastructure and Ozone Section, 214-665-6717, [email protected].

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and 
``our'' means the EPA.

I. Background

    The background for this action is discussed in detail in our June 
13, 2023, proposal (88 FR 38433).\1\ In that document we proposed to 
approve a portion of the revisions to the Oklahoma SIP submitted on 
January 30, 2023. Our June 2023 proposal addressed only the portion of 
the submittal that referred to the Oklahoma Administrative Code (OAC) 
Title 252, Chapter 100 (denoted OAC 252:100), Subchapters 37, and 39. 
The remainder of the submitted revisions were addressed in a separate 
rulemaking action.\2\
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    \1\ Henceforth referred to as our ``June 2023'' proposal.
    \2\ The submitted revisions also address amendments to 
Subchapter 2, and Appendix Q, Incorporation by Reference, and 
Subchapter 8, Permits for Part 70 Sources and Major New Source 
Review (NSR) Sources, in the Oklahoma Administrative Code Title 252, 
Chapter 100, Oklahoma Department of Environmental Quality. More 
information about the EPA addressing these other sections may be 
found in the text of the June 2023 proposed action.
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    The revisions addressed in our June 2023 proposal add clarity and 
consistency to the Oklahoma SIP. The revisions do not relax the current 
SIP rules and are consistent with applicable Federal regulations. 
Therefore, and consistent with CAA section 110(l), we do not expect 
these revisions to interfere with any applicable requirement concerning 
attainment and reasonable further progress or any other applicable 
requirement of the Act. More detail on these revisions is provided in 
the docket for this action.
    Our June 2023 proposal provided a detailed description of the 
revisions and the rationale for the EPA's proposed actions, together 
with a discussion of the opportunity to comment. The public comment 
period for our June 2023 proposal was extended to August 14, 2023, to 
allow additional time for stakeholders to review and comment on the 
proposal.
    We received comments from the Muscogee (Creek) Nation, the 
Chickasaw Nation, and two anonymous comments. One anonymous comment 
supported the extension of the comment period and the other was 
supportive of this action generally. Below are our responses to 
comments from the Muscogee (Creek) Nation and the Chickasaw Nation.

II. Response to Comments

    Comment: During Tribal Consultation, the Muscogee (Creek) Nation 
asked for more information regarding the number of compressor station 
facilities within the Muscogee Reservation.
    Response: Region 6 was able to obtain the number of natural gas 
compressor stations within the Muscogee (Creek) Nation Reservation from 
the ODEQ emission inventory database. There are 79 compressor stations 
in the counties that make up the reservation.
    Comment: Commenter stated concern about the number of compressor 
stations (and therefore the amount of loading at relevant condensate 
tanks) on Muscogee (Creek) Reservation land, the amount of VOC's, and 
the effects that the VOC's may have on Muscogee citizens' health and 
the environment.
    Response: EPA agrees that VOC emissions can be harmful to human 
health and the environment but notes that this action will not result 
in any increase in emissions of VOCs. EPA has found this revision 
complies with Clean Air Act Requirements. EPA is required to approve 
SIP revisions that comply with all applicable requirements.
    This action merely clarifies ODEQ's long standing interpretation 
that the provisions of Subchapter 37 do not apply to loading operations 
at condensate tanks at compressor stations. As this is just a 
clarification, there is no change to how these facilities are regulated 
in practice and there is no increase in emissions of VOC's. This type 
of loading, however, remains regulated under separate provisions 
specific to compressor station operations.
    A loading facility has the main purpose of loading/unloading VOC's 
in relatively large quantities using specialized equipment. Although 
condensate loading operations occur at compressor stations, that is not 
its main purpose. The transfer of condensate and produced water from 
atmospheric storage tanks into individual tanker trucks at a compressor 
station is a different type of operation both in scale and in the 
equipment used than is the case in, for example, the bulk transfer of 
gasoline at a pipeline terminal/bulk gasoline distribution system. 
Condensate loading operations at compressor stations were not meant to 
be covered by 252:100-37-16 as they do not have the physical equipment 
(loading arm and pump) to conduct this type of loading and have much 
lower throughput and emissions. The loading of condensate from natural 
gas compressor station is regulated under other ODEQ rules such as 
252:100-37-15(b) for submerged fill or a vapor recovery system which 
applies to most condensate tanks at compressor stations since a typical 
tank is about 400 barrels (16,800 gallons). Also, natural gas 
compressor stations are subject to federal New Source Performance 
Standards (NSPS) such as Subpart OOOO.

[[Page 89590]]

    Comment: Commenter stated concern that incineration of petroleum 
solvents as in dry cleaning filters is not an acceptable process in 
Indian Country and that the incineration of petroleum solvents creates 
Hazardous Air Pollutants that cause health and environmental justice 
issues. The commenter also stated that the outdated compliance schedule 
should be replaced with an updated one.
    Response: Based on its air quality inspections in Tulsa County, the 
ODEQ is not aware of any facilities that incinerate dry cleaning 
filters as referenced in this subchapter. In addition, the revision 
only clarifies that if a facility were to incinerate the filters, it 
can only be allowed if permitted by the appropriate regulatory entity. 
It is important to note that this section of the ODEQ rules does not 
set requirements that must be met to obtain a permit for incineration 
only that there be the appropriate permit which would be the case even 
if this provision was not included in the SIP. As such, the revision 
does not impact compliance with the Clean Air Act and therefore, EPA 
must approve the revision.
    The revision also removes the outdated compliance schedule of 
October 1, 1986. There is no need to replace this schedule as there is 
not a grace period for facilities to get into compliance; existing 
facilities should be complying already, and new facilities would need 
to begin operations in compliance with this subchapter.
    Comment: The commenter stated that there appears to be no 
environmental justice issue, but the Muscogee (Creek) Nation would like 
to see the EJ report and the reporting decision on the subject matter.
    Response: Please see ``EJ Considerations'' document, Doc. ID 0005 
in the docket for this action for review of Environmental Justice 
information related to this action.
    Comment: In their comment, the Chickasaw Nation provides some 
background on SAFETEA and the McGirt v. Oklahoma litigation. This 
includes the most current status that while EPA proposed the withdrawal 
and reconsideration of the October 1, 2020, decision to grant Oklahoma 
authorization to administer EPA approved environmental programs in 
Indian Country, the October 2020 decision remains in effect until EPA 
takes final action. The Chickasaw Nation comments that the EPA's action 
on the Oklahoma SIP is premature and the agency should first resolve 
the issue of the withdrawal before proceeding with new regulatory 
actions under SAFETEA. The commenter recommends that no new actions 
that impact Indian country should be taken until a final decision is 
made on the October 2020 approval. The Chickasaw Nation also comments 
regarding the importance of EPA's federal trust obligations to Indian 
tribes including government-to-government consultations and asks that 
EPA be more proactive in its fulfillment of federal trust 
responsibilities.
    Response: As stated in our June 2023 proposal, and by the 
commenter, the State retains its authority to administer authorized 
programs in certain areas of Indian country pursuant to the October 1, 
2020, approval under SAFETEA while EPA undergoes its reconsideration of 
that decision. The State's authority includes the implementation the 
SIP in areas of Indian country included in the October 2020 approval 
and in non-reservation areas of Indian country pursuant to ODEQ v EPA. 
As also noted in the June 2023 proposal, EPA may make further changes 
to this final approval of Oklahoma's program to reflect the outcome of 
the proposed withdrawal and reconsideration of the October 1, 2020, 
SAFETEA approval. EPA notes that the litigation involving the October 
2020 decision is currently being held in abeyance pending the outcome 
of EPA's reconsideration. EPA takes seriously its general federal trust 
responsibility to tribes. By example, EPA has engaged with and offered 
consultation to all affected Oklahoma tribes on this matter. EPA 
intends to continue its engagement with tribes on relevant matters, 
including on actions related to approvals in Oklahoma and with regards 
to SAFETEA.

III. Final Action

    We are approving portions of a SIP revision submitted to the EPA by 
the State of Oklahoma on January 30, 2023. Specifically, we are 
approving the revisions to OAC 252:100, Subchapters 37 (Control of 
Emission of Volatile Organic Compounds (VOCs), and 39 (Emission of 
Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former 
Nonattainment Areas). We are approving these revisions in accordance 
with section 110 of the Act.

IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, the EPA is finalizing the incorporation by reference the 
revisions to the Oklahoma regulations as described in Section III of 
this preamble, Final Action. The revised regulations address VOC 
emissions. The EPA has made, and will continue to make, these materials 
generally available through www.regulations.gov (please contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section of 
this preamble for more information). Therefore, these materials have 
been approved by EPA for inclusion in the SIP, have been incorporated 
by reference by EPA into that plan, are fully federally enforceable 
under sections 110 and 113 of the CAA as of the effective date of the 
final rulemaking of EPA's approval, and will be incorporated in the 
next update to the SIP compilation.

V. Impact on Areas of Indian Country

    As stated in the proposed action, on October 1, 2020, the EPA 
approved Oklahoma's request to administer all the State's EPA-approved 
environmental regulatory programs, including the Oklahoma SIP, in the 
requested areas of Indian country pursuant to section 10211(a) of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act of 
2005: A Legacy for Users, Public Law 109-59, 119 Stat. 1144, 1937 
(August 10, 2005) (``SAFETEA'').\3\
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    \3\ A copy of EPA's October 1, 2020, approval can be found in 
the docket for this rulemaking on the https://www.regulations.gov 
website. See Document ID No. XXXXX
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    As requested by Oklahoma, the EPA's approval under SAFETEA does not 
include Indian country lands, including rights-of-way running through 
the same, that: (1) qualify as Indian allotments, the Indian titles to 
which have not been extinguished, under 18 U.S.C. 1151(c); (2) are held 
in trust by the United States on behalf of an individual Indian or 
Tribe; or (3) are owned in fee by a Tribe, if the Tribe (a) acquired 
that fee title to such land, or an area that included such land, in 
accordance with a treaty with the United States to which such Tribe was 
a party, and (b) never allotted the land to a member or citizen of the 
Tribe (collectively ``excluded Indian country lands''). In addition, 
the State only sought approval to the extent that such approval is 
necessary for the State to administer a program in light of Oklahoma 
Dept. of Environmental Quality v. EPA, 740 F.3d 185 (D.C. Cir. 2014).
    As explained earlier in this action, the EPA is approving revisions 
to portions of the Oklahoma SIP that were submitted by the State of 
Oklahoma on January 24, 2023. More specifically, we are approving a 
revision providing clarification to OAC 252:100-37-16 of Subchapter 37, 
Control of Emission of Volatile Organic Compounds (VOCs)

[[Page 89591]]

and amending language and correcting approval process for OAC 252:100-
39-45 of Subchapter 39, Emission of Volatile Organic Compounds (VOCs) 
in Nonattainment Areas and Former Nonattainment Areas, in the Oklahoma 
Administrative Code Title 252, Chapter 100, Oklahoma Department of 
Environmental Quality. Consistent with the D.C. Circuit's decision in 
ODEQ v. EPA and with EPA's October 1, 2020, SAFETEA approval, these SIP 
revisions will apply to all Indian country within Oklahoma, other than 
the excluded Indian country lands, as described earlier. Because--per 
the State's request under SAFETEA--EPA's October 1, 2020, SAFETEA 
approval does not displace any SIP authority previously exercised by 
the State under the CAA as interpreted in ODEQ v. EPA, the SIP will 
also apply to any Indian allotments or dependent Indian communities 
located outside of an Indian reservation over which there has been no 
demonstration of tribal authority.\4\
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    \4\ In accordance with Executive Order 13990, EPA is currently 
reviewing our October 1, 2020 SAFETEA approval and expects to engage 
in further discussions with tribal governments and the State of 
Oklahoma as part of this review. EPA notes that the SAFETEA approval 
is the subject of a pending challenge in Federal court. (Pawnee v 
Regan, No. 20-9635 (10th Cir.)). Pending completion of EPA's review, 
EPA is proceeding with this proposed action in accordance with the 
October 1, 2020, approval. Although EPA is approving these revisions 
before our review of the SAFETEA approval is complete, EPA may make 
further changes to the approval of Oklahoma's program to reflect the 
outcome of the proposed withdrawal and reconsideration of the 
October 1, 2020, SAFETEA approval.
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VI. Environmental Justice Considerations

    As stated in our June 2023 proposal and posted in the docket for 
this action, EPA reviewed demographic data, which provides an 
assessment of individual demographic groups of the populations living 
within Oklahoma. EPA then compared the data to the national average 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 
Oklahoma, the percent people of color (persons who reported their race 
as a category other than White alone (not Hispanic or Latino)) is less 
than the national average (38.5 percent versus 43.1 percent). Within 
people of color, the percent of the population that is Black or African 
American alone is less than the national average (7.8 percent versus 
13.6 percent) and the percent of the population that is American 
Indian/Alaska Native is greater than the national average (9.7 percent 
versus 1.3 percent). The percent of the population that is two or more 
races is greater than the national average (6.6 percent versus 2.9 
percent). The percent of people living in poverty in Oklahoma is 
greater than the national average (15.6 percent versus 11.6 percent).
    This final action approves new rules into the Oklahoma SIP that are 
anticipated to add clarification and consistency to the SIP and will 
generally be neutral or contribute to reduced environmental and health 
impacts on all populations in Oklahoma, including indigenous people, 
people of color, and low-income populations. 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. EPA offered consultation on 
our proposed rulemaking to tribal governments that may be affected by 
this action.\5\ We received one request for tribal consultation from 
the Muscogee Nation and provided such on August 10, 2023.
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    \5\ See invitation for consultation, dated June 8, 2023, in the 
docket for this action.
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VII. Statutory and Executive Order Reviews

    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, the 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 13563 (76 FR 3821, January 21, 
2011);
     Does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Is certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Does not contain any unfunded mandate or significantly or 
uniquely affect small governments, described in the Unfunded Mandates 
Reform Act of 1995 (Pub. L. 104-4);
     Does not have federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Is not an economically significant regulatory action based 
on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Is not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Is not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Does not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, the SIP is not approved to apply on any Indian 
reservation land or in any other area where EPA or an Indian tribe has 
demonstrated that a tribe has jurisdiction. In those areas of Indian 
country, the rule does not have tribal implications and 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). 
Consistent with the EPA Policy on Consultation and Coordination with 
Indian Tribes (May 4, 2011), the EPA offered consultation (by letter 
dated June 8, 2023) on our proposed rulemaking to tribal governments 
that may be affected by this action. We received a request for formal 
tribal consultation from the Muscogee Nation and provided consultation 
on August 10, 2023.
    Executive Order 12898 (Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations, 59 FR 7629, 
Feb. 16, 1994) directs Federal agencies to identify and address 
``disproportionately high and adverse human health or environmental 
effects'' of their actions on minority populations and low-income 
populations to the greatest extent practicable and permitted by law. 
EPA defines environmental justice (EJ) as ``the fair treatment and 
meaningful involvement of all people regardless of race, color, 
national origin, or income with respect to the development, 
implementation, and enforcement of environmental laws, regulations, and 
policies.'' EPA further defines the term fair treatment to mean that 
``no group of people should bear a

[[Page 89592]]

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 Oklahoma Department of Environmental Quality did not evaluate 
EJ considerations as part of its SIP submittal; the CAA and applicable 
implementing regulations neither prohibit nor require such an 
evaluation. EPA performed an EJ analysis, as is described earlier in 
the section titled, ``Environmental Justice Considerations.'' The 
analysis was done for the purpose of providing additional context and 
information about this rulemaking to the public, not as a basis of the 
action. Due to the nature of the action being taken here, this action 
is expected to have a neutral to positive impact on the air quality of 
the affected area. In addition, there is no information in the record 
upon which this decision is based inconsistent with the stated goal of 
E.O. 12898 of achieving EJ for people of color, low-income populations, 
and Indigenous peoples.
    This action is subject to the Congressional Review Act, and EPA 
will submit a rule report to each House of the Congress and to the 
Comptroller General of the United States. This action is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).
    Under section 307(b)(1) of the Clean Air Act, petitions for 
judicial review of this action must be filed in the United States Court 
of Appeals for the appropriate circuit by February 26, 2024. Filing a 
petition for reconsideration by the Administrator of this final rule 
does not affect the finality of this action for the purposes of 
judicial review nor does it extend the time within which a petition for 
judicial review may be filed and shall not postpone the effectiveness 
of such rule or action. This action may not be challenged later in 
proceedings to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Ozone, Volatile organic compounds.

    Dated: December 19, 2023.
Earthea Nance,
Regional Administrator, Region 6.

    For the reasons stated in the preamble, the Environmental 
Protection Agency amends 40 CFR part 52 as follows:

PART 52--APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS

0
1. The authority citation for part 52 continues to read as follows:

    Authority:  42 U.S.C. 7401 et seq.

Subpart LL--Oklahoma

0
2. In Sec.  52.1920, the table in paragraph (c) titled ``EPA Approved 
Oklahoma Regulations'' is amended by revising entries for 252:100-37-16 
and 252:100-39-45 to read as follows:


Sec.  52.1920  Identification of plan

* * * * *
    (c) * * *

                                        EPA Approved Oklahoma Regulations
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                                                             State
          State citation              Title/subject     effective date   EPA approval date       Explanation
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                                                  * * * * * * *
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                                CHAPTER 100 (OAC 252:100). AIR POLLUTION CONTROL
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                                                  * * * * * * *
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                     Subchapter 37. Control of Emission of Volatile Organic Compounds (VOC)
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                                                  * * * * * * *
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                                  PART 5. Control of VOCs in Coating Operations
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                                                  * * * * * * *
252:100-37-16....................  Loading of VOCs....       9/15/2020  12/28/2023, [Insert  ...................
                                                                         Federal Register
                                                                         citation].
 
                                                  * * * * * * *
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  Subchapter 39. Emission of Volatile Organic Compounds (VOCs) in Nonattainment Areas and Former Nonattainment
                                                      Areas
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                                                  * * * * * * *
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                                           PART 7. Specific Operations
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                                                  * * * * * * *
252:100-39-45....................  Petroleum (solvent)       9/15/2020  12/28/2023. [Insert  ...................
                                    dry cleaning.                        Federal Register
                                                                         citation].
 
                                                  * * * * * * *
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[FR Doc. 2023-28496 Filed 12-27-23; 8:45 am]
BILLING CODE 6560-50-P