The NRC is amending its regulations to incorporate by reference the 2021 Edition of the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (BPV Code) and the 2022 Edition of the ASME Operation and Maintenance of Nuclear Power Plants, Division 1, OM Code: Section IST (OM Code), for nuclear power plants.

The ASME periodically revises and updates its Codes for nuclear power plants by issuing new editions; this final rule is in accordance with the NRC's practice to incorporate those new editions into the NRC's regulations. This rule maintains the safety of nuclear power plants, makes NRC activities more effective and efficient, and allows nuclear power plant licensees and applicants to take advantage of the latest ASME BPV and OM Codes (ASME Codes). The ASME is a voluntary consensus standards organization, and the ASME Codes are voluntary consensus standards. The NRC's use of the ASME Codes is consistent with applicable requirements of the National Technology Transfer and Advancement Act (NTTAA). See also Section XIV of this document, “Voluntary Consensus Standards.”

Major provisions of this final rule include the incorporation by reference with conditions of the following ASME Codes into NRC regulations and delineation of NRC requirements for the use of these Codes:

The NRC prepared a regulatory analysis to determine the expected costs and benefits of this final rule. The regulatory analysis identifies costs and benefits in both a quantitative fashion as well as in a qualitative fashion.

Based on the analysis, the NRC concludes that this final rule results in a net quantitative averted cost to the industry and a net cost to the NRC. This final rule, relative to the regulatory baseline, results in a net averted cost for industry of $0.65 million based on a 7-percent net present value (NPV) and $0.72 million based on a 3-percent NPV. This final rule, relative to the regulatory baseline, results in a net cost to the NRC of $44 thousand based on a 7-percent NPV to $10 thousand based on a 3-percent NPV. Qualitative factors that were considered include regulatory stability and predictability, regulatory efficiency, and consistency with the NTTAA. The regulatory analysis shows that the rulemaking is justified because the total quantified benefits of the regulatory action exceed the costs of the action. When the qualitative benefits (including the safety benefit and improvement in knowledge) are considered together with the quantified benefits, the benefits outweigh the identified quantitative and qualitative costs.

The NRC has had a decades-long practice of approving and/or mandating the use of certain parts of editions and addenda of these ASME Codes in § 50.55a. Continuing this practice in this final rule ensures regulatory stability and predictability. This practice also provides consistency across the industry and provides assurance to the industry and the public that the NRC will continue to support the use of the most updated and technically sound techniques developed by the ASME to provide adequate protection to the public. In this regard, the ASME Codes are voluntary consensus standards developed by technical committees composed of mechanical engineers and others who represent the broad and varied interests of their industries, from manufacturers and installers to insurers, inspectors, distributors, regulatory agencies, and end users. The standards undergo extensive external review before the NRC considers whether to incorporate them by reference. Finally, the NRC's use of the ASME Codes is consistent with the NTTAA, which directs Federal agencies to adopt voluntary consensus standards instead of developing “government-unique” ( i.e., Federal agency-developed) standards, unless inconsistent with applicable law or otherwise impractical.

For more information, please see the final regulatory analysis (ML24053A051) in the NRC's ADAMS.

The ASME develops and publishes the ASME BPV Code, which contains requirements for the design, construction, and inservice inspection (ISI) of nuclear power plant components, and the ASME OM Code, 1 which contains requirements for inservice testing (IST) of nuclear power plant components. Until 2012, the ASME issued new editions of the ASME BPV Code every 3 years and addenda to the editions annually, except in years when a new edition was issued. Similarly, the ASME periodically published new editions and addenda of the ASME OM Code. Starting in 2012, the ASME decided to issue editions of its BPV and OM Codes (no addenda) every 2 years with the BPV Code to be issued on the odd years ( e.g., 2013, 2015, etc.) and the OM Code to be issued on the even years  2 ( e.g., 2012, 2014, etc.). The new editions typically revise provisions of the ASME Codes to broaden their applicability, add specific elements to current provisions, delete specific provisions, and/or clarify them to narrow the applicability of the provision. The revisions to the editions of the ASME Codes do not significantly change code philosophy or approach.

The NRC's practice is to establish requirements for the design, construction, operation, ISI (examination), and IST of nuclear power plants by approving the use of editions of the ASME BPV and OM Codes (ASME Codes) in § 50.55a of title 10 of the Code of Federal Regulations (10 CFR). The NRC approves or mandates the use of certain parts of editions of these ASME Codes in § 50.55a through the rulemaking process of “incorporation by reference.” Upon incorporation by reference of the ASME Codes into § 50.55a, the provisions of the ASME Codes are legally binding NRC requirements as delineated in § 50.55a, and subject to the conditions on certain specific ASME Codes' provisions that are set forth in § 50.55a. The editions of the ASME BPV and OM Codes were last incorporated by reference into the NRC's regulations in a final rule dated October 27, 2022 (87 FR 65128).

The ASME Codes are consensus standards developed by participants, including the NRC and licensees of nuclear power plants, who have broad and varied interests. The ASME's publication of new editions of the ASME Codes does not mean that there is unanimity on every provision in the ASME Codes. There may be disagreement among the technical experts, including the NRC's representatives on the ASME Code committees and subcommittees, regarding the acceptability or desirability of a particular code provision included in an ASME-approved Code edition. If the NRC believes that there is a significant technical or regulatory concern with a provision in an ASME-approved Code edition being considered for incorporation by reference, then the NRC conditions the use of that provision when it incorporates by reference that ASME Code edition into its regulations. In some instances, the condition increases the level of safety afforded by the ASME Code provision, or addresses a regulatory issue not considered by the ASME. In other instances, where research data or experience has shown that certain code provisions are unnecessarily conservative, the condition may provide that the code provision need not be complied with in some or all respects. The NRC's conditions are included in § 50.55a, typically in paragraph (b) of that section. In a Staff Requirements Memorandum dated September10, 1999 (ML003755050), the Commission indicated that NRC rulemakings adopting (incorporating by reference) a voluntary consensus standard must identify and justify each part of the standard that is not adopted. For this final rule, the provisions of the 2021 Edition of Section III, Division 1; the 2021 Edition of Section XI, Division 1, of the ASME BPV Code; and the 2022 Edition of the ASME OM Code that the NRC are not adopting, or are only partially adopting, are identified in the “Discussion,” “Regulatory Analysis,” and “Backfitting and Issue Finality” sections of this document. The provisions of those specific editions and Code Cases that are the subject of this final rule that the NRC finds to be conditionally acceptable, together with the applicable conditions, are also identified in the “Discussion,” “Regulatory Analysis,” and “Backfitting and Issue Finality” sections of this document.

The ASME Codes are voluntary consensus standards, and the NRC's incorporation by reference of these Codes is consistent with applicable requirements of the NTTAA. Additional discussion on the NRC's compliance with the NTTAA is set forth in Section XIV of this document, “Voluntary Consensus Standards.”

The NRC regulations incorporate by reference ASME Codes for nuclear power plants. This final rule is the latest in a series of rulemakings to amend the NRC's regulations to incorporate by reference revised and updated ASME Codes for nuclear power plants. This final rule is intended to maintain the safety of nuclear power plants and make NRC activities more effective and efficient.

The NRC follows a three-step process to determine acceptability of new provisions in new editions of the Codes and the need for conditions on the uses of these Codes. This process was employed in the review of the Codes that are the subjects of this rule. First, the NRC actively participates with other ASME committee members with full involvement in discussions and technical debates in the development of new and revised Codes. This includes a technical justification of each new or revised Code. Second, the NRC's committee representatives discuss the Codes and technical justifications with other cognizant staff to ensure an adequate technical review. Third, the NRC position on each Code is reviewed and approved by NRC management as part of this rule amending § 50.55a to incorporate by reference new editions of the ASME Codes and conditions on their use. This regulatory process, when considered together with the ASME's own process for developing and approving the ASME Codes, assures that the NRC approves for use only those new and revised code editions, with conditions as necessary, that provide reasonable assurance of adequate protection to the public health and safety, and that do not have significant adverse impacts on the environment.

The NRC reviewed changes to the Codes in the editions identified in this final rule. The NRC concluded, in accordance with the process for review of changes to the Codes, that these editions of the Codes are technically adequate, consistent with current NRC regulations, and approved for use with the specified conditions.

The NRC is amending its regulations to incorporate by reference:

• The 2021 Editions of the ASME BPV Code, Section III, Division 1 and Section XI, Division 1, with conditions on their use.

• The 2022 Edition of Division 1 of the ASME OM Code, with conditions on its use.

The current regulations in § 50.55a(a)(1)(i) incorporate by reference ASME BPV Code, Section III, 1963 Edition through the 1970 Winter Addenda; and the 1971 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in current § 50.55a(b)(1)(i) through (xiii). This final rule revises § 50.55a(a)(1)(i) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section III.

The current regulations in § 50.55a(a)(1)(ii) incorporate by reference ASME BPV Code, Section XI, 1974 Edition through the 1975 Summer Addenda, the 1995 Edition (Division 1) through the 1997 Addenda (Division 1), and the 2001 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in current § 50.55a(b)(2)(i) through (xliii). This final rule revises § 50.55a(a)(1)(ii) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section XI. It also clarifies the wording and adds, removes, or revises some of the conditions as explained in this rule.

The current regulations in § 50.55a(a)(1)(iv) incorporate by reference ASME OM Code, 1995 Edition through the 2020 Edition (with some omissions of specific editions and addenda), subject to the conditions currently identified in § 50.55a(b)(3)(i) through (xi). This final rule revises § 50.55a(a)(1)(iv) to incorporate by reference the 2022 Edition of Division 1 of the ASME OM Code.

In the introductory discussion of its Codes, ASME specifies that errata to those Codes may be posted on the ASME website under the Committee Pages to provide corrections to incorrectly published items, or to correct typographical or grammatical errors in those Codes. Users of the ASME BPV Code and ASME OM Code should be aware of errata when implementing the specific provisions of those Codes. Applicants and licensees should monitor errata to determine when they might need to submit a request for an alternative under § 50.55a(z) to implement provisions specified in errata to their ASME Code of Record.

The NRC reviewed changes to the Codes in the editions identified in this final rule and published a proposed rule in the Federal Register setting forth the NRC's proposal to incorporate by reference the ASME Codes, together with proposed conditions on their use (88 FR 53384; August 8, 2023). The NRC also proposed to correct minor editorial and administrative errors, including spacing and typos. After consideration of the public comments received on the proposed rule (public comments are discussed in Section IV of this document, “Public Comment Analysis”), the NRC concludes, in accordance with the process for review of changes to the Codes, that these editions of the Codes are technically adequate, consistent with current NRC regulations, and approved for use with the specified conditions set forth in this final rule. Each of the NRC conditions and the reasons for each condition are discussed in the following sections of this document. The discussions are organized under the applicable ASME Code and Section.

Section 50.55a(a)(1)(i)(E) Rules for Construction of Nuclear Facility Components-Division 1.

The NRC is revising § 50.55a(a)(1)(i)(E) to incorporate by reference the 2021 Edition of the ASME BPV Code, Section III, including Subsection NCA and Division 1 Subsections NB through NG and Appendices. As stated in § 50.55a(a)(1)(i), the Nonmandatory Appendices are excluded and not incorporated by reference. The Mandatory Appendices are incorporated by reference because they include information necessary for Division 1. However, the Mandatory Appendices also include material that pertains to other Divisions that have not been reviewed and approved by the NRC. Although this information is included in the sections and appendices being incorporated by reference, the NRC notes that the use of Divisions other than Division 1 has not been approved, nor are they required by NRC regulations and, therefore, such information is not relevant to NRC applicants and licensees. The NRC is not taking a position on the non-Division 1 information in the appendices and is including it in the incorporation by reference only for convenience. Therefore, this final rule revises the introductory text to § 50.55a(a)(1)(i)(E) to reference the 2021 Edition of the ASME BPV Code, Section III, including Subsection NCA and Division 1 Subsections NB through NG and Appendices.

Users of Section III of the ASME BPV Code are reminded that ASME has relocated certain overpressure protection requirements for safety and relief valves to Section XIII, “Rules for Overpressure Protection,” of the ASME BPV Code, such as Part 9, “Capacity and Flow Resistance Certification.” ASME prepared Section XIII of the BPV Code to consolidate the overpressure protection requirements into one BPV Code Section to benefit all stakeholders by advancing the technology with participation from a broader group of subject matter experts. This relocation collects overpressure protection requirements into a single location rather than specifying them in various sections and divisions of the ASME BPV Code. ASME stated that it did not intend a technical change by this relocation of the overpressure protection requirements. Where appropriate, Section III of the ASME BPV Code specifies a direct citation to the relocated overpressure protection requirements in Section XIII of the ASME BPV Code.

The NRC is incorporating by reference Subsection NCA of 2021 Edition BPV Code, ASME Section III with the exception that Subpart 2.19 in NQA-1-2017, NQA-1-2019, and NQA-1-2022 is not approved for use.

With regards to the implementation of NCA-3126, NCA-3127, NCA-4255.3, and NCA-4254.3 for the procurement of calibration and testing services, the NRC reminds the users of the ASME Code that the procurement of commercial grade calibration and testing services remains subject to NRC requirements in 10 CFR part 21 and in appendix B to 10 CFR part 50.

For implementation of procurement of calibration and testing services, the NRC published a Regulatory Guide (RG), RG 1.28 Rev. 6, “Quality Assurance Program Criteria (Design and Construction),” (ML23177A002) that, among other things, endorsed Nuclear Energy Institute (NEI) 14-05A, “Guidelines for the Use of Accreditation in Lieu of Commercial Grade Surveys for Procurement of Laboratory Calibration and Test Services,” Revision 1, issued November 2020 (88 FR 62292). As described in the RG, licensees and suppliers of basic components can take credit for the International Laboratory Accreditation Cooperation accreditation process as described in NEI 14-05A, Revision 1, in lieu of performing on-site commercial grade surveys as part of the commercial grade dedication of calibration and testing services. The NRC's endorsement is for use of NEI 14-05A, Revision 1, in lieu of Subpart 2.19 in NQA-1-2017, NQA-1-2019, and NQA-1-2022, which RG 1.28 found to not incorporate the controls and conditions necessary for use. Specifically, Subpart 2.19 allows the laboratory accreditation to be performed remotely, which the NRC has determined is not adequate to meet the requirements of appendix B to 10 CFR part 50. Therefore, the NRC is adding a condition to prohibit the use of Subpart 2.19 in NQA-1-2017, NQA-1-2019, and NQA-1-2022.

The NRC is revising this condition to change the word “sleeves” to “sheaths” and to note that this condition is not applicable to the 2015 Edition and later editions as Subsection NH has been deleted from Section III Division 1.

The NRC is revising this condition. When applying the 2015 and 2017 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the first provision, as noted in § 50.55a(b)(1)(xi)(A). When applying the 2015 through 2021 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the second provision, as noted in § 50.55a(b)(1)(xi)(B). When applying the 2017 Edition of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the third provision, as noted in § 50.55a(b)(1)(xi)(C).

As a result of a public comment received, the NRC has modified the second provision, § 50.55a(b)(1)(xi)(B), to provide more clarity in the first sentence, and replaced the second sentence to clarify that, in the event of breakage in a specimen that is away from the fusion zone, a retest may be required only if the base material failed at less than the minimum required base material yield strength.

The NRC is revising § 50.55a(b)(1)(xiii) including the first provision, § 50.55a(b)(1)(xiii)(A), and second provision, § 50.55a(b)(1)(xiii)(B), to extend the applicability of the conditions through the latest edition of the ASME BPV Code, Section III incorporated by reference in paragraph (a)(1)(i). The 2021 Edition of Section III was not updated to include the provisions of this condition. Therefore, the NRC is revising this condition to apply to the latest edition incorporated by reference.

The NRC is adding a condition that if Nonmandatory Appendix NN is used for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report, all applicable requirements of Nonmandatory Appendix NN shall be met. The 2021 Edition included Nonmandatory Appendix NN and stated in the provisions of NCA-8151 and NCA-8500 in the 2021 Edition of Section III that guidance for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report is contained within Nonmandatory Appendix NN.

The section titled “Organization of Section III” within Section III and the “Introduction” to Section III Appendices state that “Mandatory Appendices are referred to in the Section III rules and contain requirements that must be followed in construction. Nonmandatory Appendices provide additional information or guidance when using Section III.” In addition, Nonmandatory Appendix NN states, “This Appendix provides guidance for the removal of external surface defects from piping, pumps, and valves and performing repairs to stamped components after certification and prior to completion of the N-3 Data Report.”

Since this Nonmandatory Appendix is not required to be followed by the ASME Code, all or none of the requirements in this Appendix may be performed and the certificate holder or owner potentially could make repairs that do not meet the code requirements, introduce flaws or retain defects, or not disposition defects that can compromise the structural integrity of the component and not properly document the repair. It should be noted that Nonmandatory Appendix NN was developed by combining Code Cases N-801-3 and N-870-1 into the Nonmandatory Appendix NN. The NRC-approved Code Cases N-801-3 and N-870-1 in RG 1.84, Revision 39. Licensees that used Code Cases N-801-3 and N-870-1 were required to meet all the requirements in the applicable Code Cases. The NRC considers the information in Nonmandatory Appendix NN as requirements, consistent with the Code Cases, that are necessary to ensure certificate holders make satisfactory repairs to stamped ASME Code, Section III components. Therefore, the NRC is adding § 50.55a(b)(1)(xiv) to condition the provision of NCA-8151, NCA-8500, and Nonmandatory Appendix NN to require that all the requirements in Nonmandatory Appendix NN shall be met when used.

The NRC is amending the regulations in § 50.55a(a)(1)(ii)(C) to incorporate by reference the 2021 Edition (Division 1) of the ASME BPV Code, Section XI. The current regulations in § 50.55a(a)(1)(ii)(C) incorporate by reference ASME BPV Code, Section XI, the 1974 Edition through the 1975 Summer Addenda, the 1995 Edition (Division 1) through the 1997 Edition (Division 1), and the 2001 Edition (Division 1) through the 2019 Edition (Division 1), subject to the conditions identified in § 50.55a(b)(2).

The NRC is revising the definition of Section XI in § 50.55a(b)(2) to refer to the editions of the ASME BPV Code, Section XI incorporated by reference in paragraph (a)(1)(ii).

The NRC is limiting the existing conditions in § 50.55a(b)(2)(viii)(H) and § 50.55a(b)(2)(viii)(I), the eighth and ninth provisions for concrete containment examinations, to prior Editions of the ASME Code. Revisions to IWA-6230 require the information described in the existing § 50.55a(b)(2)(viii)(H) condition be included in the required Owner's Activity Report (OAR). Revisions to IWL-2512 require the technical evaluation discussed in IWL-2512(b) be completed every 5 years. Since these new Section XI provisions in the 2021 Edition address the requirement in the existing NRC condition, it is appropriate for the NRC to limit the applicability of the existing conditions to the prior editions.

The NRC is limiting the applicability of the existing condition in § 50.55a(b)(2)(ix)(A) (2), the first provision for metal containment examinations, to prior Editions of the ASME Code. Revisions to IWA-6230 require the information described in the existing § 50.55a(b)(2)(ix) condition be included in the required OAR. Since this new Section XI provision in the 2021 Edition addresses the requirement in the existing NRC condition, it is appropriate for the NRC to limit the applicability of the existing condition to the earlier editions.

The NRC is eliminating this condition as it is no longer applicable to any licensee. This condition only applied to the use of the 1995 through the 2001 Editions of ASME Code Section XI, Appendix VIII. Additionally, § 50.55a(b)(2)(xv) requires licensees using ASME Code Section XI Editions later than the 2001 Edition through the 2006 Addenda to use the 2001 Edition of Appendix VIII. This condition therefore only applied to licensees using the 1995 to the 2006 Addenda of ASME Code Section XI.

The 2007 edition of ASME Code Section XI was incorporated by reference in § 50.55a in the rulemaking dated June 21, 2011 (76 FR 36231). Given the requirement to update ISI programs every 120 months, no licensee is still using the 2001 Edition of Appendix VIII. This condition is therefore unnecessary.

The NRC is amending § 50.55a(b)(2)(xxxiv) to prohibit the use of Nonmandatory Appendix U, Supplement U-S1 in the 2021 Edition of Section XI. Nonmandatory Appendix U, Supplement U-S1 provides licensees with a methodology for temporary acceptance of flaws in moderate energy Class 2 and 3 piping. However, Code Case N-513 provides the same rules. The NRC position is that licensees should use the more frequently updated Code Case N-513 when seeking to temporarily accept flaws in moderate energy Class 2 and 3 piping. As the ASME continues to update Code Case N-513, there can be different requirements between the version allowed by Nonmandatory Appendix U and the NRC-approved version of the Code Case. Furthermore, duplicative rules may create regulatory confusion both for licensees and NRC inspection staff, as well as impose a burden on the NRC to review and compare the two documents to ensure reasonable assurance of safety under all potential combinations of alternatives. Therefore, this condition clarifies that the appropriate reference for temporary acceptance of flaws in moderate energy Class 2 and 3 piping is Code Case N-513, as dispositioned in the latest version of RG 1.147 incorporated by reference in § 50.55a(a)(3)(ii).

The NRC is modifying the existing condition in § 50.55a(b)(2)(xxxiv) to update the version of ASME BPV Code Case N-513 to the latest version approved in RG 1.147 at the time the case was incorporated into the licensee's inservice inspection program. The NRC is renumbering this existing condition to § 50.55a(b)(2)(xxxiv)(A)(2) and revising § 50.55a(b)(2)(xxxiv)(B) to reflect the added condition on Nonmandatory Appendix U, Supplement U-S1. The purpose of this change is for regulatory efficiency to minimize changes to this condition in future rulemakings and maintain the requirement consistent with the latest NRC-approved version of Code Case N-513.

The NRC is amending § 50.55a(b)(2)(xxxvi), to require determination of the Master Curve parameters T 0 and RT T0 as prescribed in ASME BPV Code, Section III, NB-2331, subparagraph (a)(5). This change eliminates the requirement to submit such determinations to the NRC for review and replaces that submittal requirement with an acceptable method for determining these fracture toughness parameters.

Although this specific change to § 50.55a(b)(2)(xxxvi) was not in the proposed rule, the proposed rule requested comments on the NRC's proposal to condition the 2021 Edition of the ASME Code, Section XI to require that analytical evaluation reports continue to be submitted to the NRC. The proposed rule noted that analytical reports provide the NRC operating experience data to monitor degradation trends across the industry to ensure public health and safety and that similar reporting requirements can be found in 50.55a, including § 50.55a(b)(2)(xxxii). In the proposed rule, the NRC specifically asked for comments on how the NRC could effectively leverage the information provided in such reports in a way that is transparent to stakeholders and ensures structural integrity of nuclear components without incurring excessive administrative burden for plant owners.

The NRC is making this change in response to a public comment that reviewed the history of the codification of Master Curve methods and NRC's regulatory treatment of those requirements. The NRC determined that use of the NB-2331(a)(5) is a consistent, technically justified regulatory approach to the Master Curve under § 50.55a(z).

The NRC is modifying § 50.55a(b)(2)(xliii)(A), to clarify that the analysis for an out-of-limit condition described in Section XI, IWB-3720(a) is not subject to NRC review and approval.

Although this specific modification was not in the proposed rule, the proposed rule requested comments on the NRC's proposal to condition the 2021 Edition of the ASME Code, Section XI to require that analytical evaluation reports continue to be submitted to the NRC. The proposed rule noted that analytical reports provide the NRC and operating experience data to monitor degradation trends across the industry to ensure public health and safety and that similar reporting requirements can be found in 50.55a, including 50.55a(b)(2)(xliii).

The NRC agreed in part with a public comment stating that Nonmandatory Appendix E has been reviewed and approved by the NRC through incorporation by reference. The NRC agreed that the original submission requirement in IWB-3720 was not clear on whether review and approval by the regulatory authority was needed. The immediate safety impacts of a pressure-temperature limit excursion on vessel integrity are assessed through the NRC's reactor oversight process, so there is no need to specify NRC review and approval of the analysis in § 50.55a. While NRC review and approval is no longer required, licensees are still be required to submit the analysis to the NRC.

The NRC also is deleting the conditions at § 50.55a(b)(2)(xliii)(B) and (C). This change eliminates the requirement to submit determination of T 0 and RT T0 under Nonmandatory Appendix A, A-4200(c) and Nonmandatory Appendix G, G-2110(c) to NRC for review and approval. The NRC is replacing that submittal requirement with an acceptable method for determining these fracture toughness parameters in new condition § 50.55a(b)(2)(l). The NRC is making this change due to a public comment that reviewed the history of the codification of Master Curve methods and NRC's regulatory treatment of those requirements. The NRC determined that use of the ASME BPV Code, Section III, NB-2331, subparagraph (a)(5) referenced in new condition § 50.55a(b)(2)(l) is a consistent, technically justified regulatory approach to the Master Curve.

The NRC is adding § 50.55a(b)(2)(xliv) to prohibit the use of Y-2200, Y-2420, and Y-3200 in the 2021 Edition of Section XI. These articles provide three crack growth laws for use in Section XI flaw evaluations. However, Code Cases N-809, N-889, and N-643 respectively provide the same crack growth laws. The NRC's position is that licensees must use the more frequently updated Code Cases when seeking to use these crack growth laws in Section XI flaw evaluations. Furthermore, duplicative rules may create regulatory confusion for licensees and additional burden on the NRC to review and compare the two documents to provide reasonable assurance of safety when using the curves and defined variables. Therefore, this condition clarifies that the appropriate references for crack growth laws are the respective Code Cases as dispositioned in the latest edition of RG 1.147 incorporated by reference in § 50.55a(a)(3)(ii).

The NRC is adding § 50.55a(b)(2)(xlv) to require that when applying the provisions of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, a VT-2 ( i.e., visual examination during system walkdown) of the area affected by the repair/replacement activity shall be conducted during the Type C test in appendix J to 10 CFR part 50. The 2021 Edition of the ASME Code, Section XI, revised IWA-4540(a) and (e) by incorporating the requirements of Code Case N-751. The NRC conditioned Code Case N-751 in RG 1.147, Revision 19, to require that nondestructive examination must be performed in accordance with IWA-4540(a)(2) of the 2002 Addenda of Section XI. This includes a VT-2 in accordance with IWA-5211.

Upon incorporating Code Case N-751 and the NRC condition in RG 1.147, the revised IWA-4540(a) and (e) did not fully address the NRC condition in RG 1.147 concerning performing the VT-2. The revised IWA-4540(a) moved the pressure testing requirements for “[R]epair/replacement activities performed by welding or brazing on piping, including isolation valves, designated Class 2, that penetrates a containment vessel and where the balance of the piping system inside and outside the containment is not within the scope of Section XI” to IWA-4540(e). Therefore, the specific requirement in IWA-4540(a) to require a VT-2 during pressure testing is not required. In addition, IWA-4540(e) in the 2021 Edition of ASME Code, Section XI states that for pressure testing of these locations, a Type C test in appendix J to 10 CFR part 50, system leakage test in accordance with IWA-5211(a), or pneumatic test in accordance with IWA-5211(c), shall be performed. The NRC notes that IWA-5211 requires the VT-2, while neither IWA-5211(a) or (c) require a VT-2. IWA-4540(e) also states that if “there is detectable leakage during the Type C test in appendix J to 10 CFR part 50, the brazed joints or welds shall be tested to confirm there is no leakage through the brazed joints or welds.” The NRC notes that the Type C test in appendix J to 10 CFR part 50 does not require a VT-2 of the piping to verify the leakage or absence thereof, but only a decrease in pressure.

Therefore, the NRC is adding § 50.55a(b)(2)(xlv) to condition provisions IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 of the area affected by the repair/replacement activity be conducted during the Type C test in appendix J to 10 CFR part 50 to be consistent with the previous NRC condition for Code Case N-751.

The NRC is adding § 50.55a(b)(2)(xlvi) to prohibit a contracted Repair/Replacement Organization, when applying the provisions of IWA-4143 in the 2021 Edition of the ASME Code, Section XI, from fabricating an item offsite of the Owner's facility ( e.g., vendor facility) without an ASME Certificate of Authorization and without applying an ASME Stamp/Certification Mark.

IWA-4143 in the 2021 Edition of the ASME Code, Section XI, allows an Owner to procure ASME Code, Section III parts, appurtenances, piping subassemblies, and supports (hereinafter referred to as items) with no ASME Stamp/Certification Mark from a Repair/Replacement Organization that does not have an ASME Certificate of Authorization and conducts fabrication activities offsite of the Owner's facility. Therefore, a contracted Repair/Replacement Organization would have been able to fabricate an item offsite (at a vendor facility) without an ASME Certificate of Authorization and not apply a Stamp/Certification Mark on the item. This contradicts NCA-8330 in ASME Code, Section III, which only allows an item with no ASME Stamp/Certification Mark applied to the item for an organization with an ASME Certificate of Authorization, since the organization with an ASME Certificate of Authorization is required to follow additional controls of the part in NCA-8330(a)(1) through (3). IWA-4131 in the 2021 Edition of the ASME Code, Section XI, does not provide controls of these items through completion of installation for an organization that does not have an ASME Certificate of Authorization. IWA-4131 in the 2019 Edition of the ASME Code, Section XI, has a restriction that fabrication (of parts) by the Owner or the Owner's contracted Repair/Replacement Organization (not possessing an ASME Certificate of Authorization) may occur only at the Owner's facility. The condition is consistent with IWA-4143 of the 2019 Edition of the ASME Code, Section XI, which allowed a Repair/Replacement Organization with a quality assurance program that complies with IWA-4142 to fabricate parts, appurtenances, piping assemblies, and supports at the Owner's facilities without application of an ASME Stamp/Certification Mark.

Therefore, the NRC is adding § 50.55a(b)(2)(xlvi) to condition the provision of IWA-4143 of the 2021 Edition of the ASME Code, Section XI, by prohibiting a contracted Repair/Replacement Organization from fabricating a part offsite of the Owner's facility ( e.g., vendor facility) without an ASME Certificate of Authorization and without applying an ASME Stamp/Certification Mark.

The NRC is adding § 50.55a(b)(2)(xlvii) to require stress corrosion crack growth analysis of the weld overlay material in Nonmandatory Appendix Q of ASME Code, Section XI. In the 2021 Edition, a change was made to Subparagraph Q-3000(a) to specifically note that stress corrosion crack growth analysis is not required within the weld overlay material. While these overlay materials are expected to be more stress corrosion crack resistant, Article Q-2000 does not require all overlay materials to be impervious to potential cracking. If the licensee can justify that the material would not experience stress corrosion cracking growth expected over design life of the overlay, the licensee should document this conclusion in the design. The NRC therefore adds this condition to require the analysis of a hypothetical flaw in determining the design and design life of a weld overlay under Nonmandatory Appendix Q.

The NRC is adding § 50.55a(b)(2)(xlviii) to require that analytical evaluations performed in accordance with IWB-3132.3 and IWC-3132.3 be submitted to the NRC. The 2019 Edition of the ASME BPV Code, Section XI, IWB-3134, Review by Authorities, requires that “[a]nalytical evaluation of examination results as required by IWB-3132.3 shall be submitted to the regulatory authority having jurisdiction at the plant site.” IWC-3125, Review by Authorities, requires that “[t]he analytical evaluation of examination results as required by IWC-3122.3 shall be submitted to the regulatory authority having jurisdiction at the plant site.” The 2021 Edition of the ASME Code, Section XI, eliminates the provisions of IWB-3134 and IWC-3125 in their entirety. The NRC finds that flaw evaluations provide significant regulatory information in the following areas: the condition of the degradation of the affected component, the cause of the degradation, operating experience, methodology used, performance monitoring, and regulatory oversight. For example, the flaw evaluation predicts the flaw size with growth during a certain time period. The final flaw size should not exceed the allowable flaw size, and the affected component would need to be inspected prior to the final flaw size exceeding the allowable flaw size. The NRC needs to monitor the safety of plant operation, considering the flaw may grow during the plant operation. The flaw evaluation provides key information for the NRC's oversight. Accordingly, the NRC is adding § 50.55a(b)(2)(xlviii) to retain the requirement from the 2019 Edition of the ASME BPV Code, Section XI, that analytical evaluations performed in accordance with IWB-3132.3 and IWC-3132.3 be submitted to the NRC.

The NRC is adding § 50.55a(b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1), for the inlay and onlay that are subject to the augmented inspection requirements in paragraph § 50.55a(g)(6)(ii)(F).

IWB-3600(b)(1) in the 2021 Edition of the Code addresses the provision that a flaw, which lies entirely in the cladding of Class 1 components, need not be analytically evaluated. In the 2021 Edition of the Code, this provision has been relocated from IWB-3610 to IWB-3600. In the code editions and addenda prior to the 2021 Edition since the 1988 Addenda, this provision in IWB-3610 for Class 1 vessels has not been applicable to the analytical evaluation for piping that is separately addressed in IWB-3640. Based on the relocation of the provision to IWB-3600, the 2021 Edition of the Code without a condition would have allowed that a flaw, which lies entirely in the cladding of piping, need not be analytically evaluated.

In comparison, paragraph § 50.55a(g)(6)(ii)(F) addresses the augmented inspection requirements for Class 1 pressurized water reactor (PWR) piping and vessel nozzle butt welds. As part of the requirements, paragraph § 50.55a(g)(6)(ii)(F)(7) describes the examination evaluation and acceptance standards for the inlay and onlay of the butt welds. Specifically, the condition in the paragraph requires that, for Inspection Items G, H, J, and K of Code Case N-770, when applying the acceptance standards of IWB-3514 for planar flaws contained within the inlay or onlay, the thickness “t” in IWB-3514 be the thickness of the inlay or onlay.

Accordingly, when a flaw lies entirely in the inlay or onlay subject to the augmented inspections in paragraph § 50.55a(g)(6)(ii)(F)(7), the flaw is required to be evaluated in accordance with IWB-3514 by using the thickness of the inlay or onlay as the thickness “t” in IWB-3514. Based on paragraph § 50.55a(g)(6)(ii)(F)(7), if a flaw in the inlay or onlay is not acceptable in accordance with IWB-3514 as conditioned by the paragraph, analytical evaluation of the flaw must be performed in accordance with IWB-3600 or repair/replacement activities must be performed in accordance with IWA-4000.

As discussed above, the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1) for the inlay and onlay is not consistent with paragraph § 50.55a(g)(6)(ii)(F)(7) and the related provisions of analytical evaluation that are specified in IWB-3600 in the code editions and addenda prior to the 2021 Edition. Therefore, the NRC is adding a condition to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of the Code for the inlay and onlay that are subject to the augmented inservice inspection requirements for Class 1 piping and nozzle dissimilar-metal butt welds in paragraph § 50.55a(g)(6)(ii)(F).

The NRC is adding § 50.55a(b)(2)(l), which was not in the proposed rule, to require T 0 and RT T0 applied under Nonmandatory Appendix A, A-4200(c) and Nonmandatory Appendix G, G-2110(c) be determined as prescribed in ASME BPV Code, Section III, NB-2331, subparagraph (a)(5). The NRC is adding this condition to replace the previous conditions § 50.55a(b)(2)(xliii)(B) and (C), which required licensees to submit the determination of T 0 and RT T0 for NRC review and approval. The NRC is making this change due to a public comment that reviewed the history of the codification of Master Curve methods and NRC's regulatory treatment of those requirements. The NRC determined that use of the NB-2331(a)(5) is a consistent, technically justified regulatory approach to the Master Curve.

The NRC is updating § 50.55a(g)(4)(ii), which was not in the proposed rule, to allow licensees to delay the update of their Appendix VIII program by up to 18 months after the effective date of this final rule. The NRC recognizes that updating an Appendix VIII program is a complex and time-consuming process. Allowing licensees to delay the update is consistent with previous final rules that incorporated the ASME Codes by reference. The NRC is making this change due to a public comment. A public comment was received that indicated that the NRC mistakenly did not update this provision in the final rule incorporating by reference the 2019 and 2020 Editions of the ASME Code or the proposed rule to incorporate by reference the 2021 and 2022 Editions of the ASME Code.

The NRC is adding § 50.55a(g)(6)(ii)(D)(9) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII in the 2021 Edition of Section XI, incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6. The ASME in combination with the Electric Power Research Institute Nondestructive Evaluation Center developed expanded qualifications similar to other volumetric qualification requirements in Mandatory Appendix VIII to replace the requirements described in ASME Code Case N-729-6. The NRC found these qualification requirements acceptable, in addition to the current requirements of ASME Code Case N-729-6. Therefore, to reduce the burden of requiring an update to all programs immediately, the NRC is adding a condition to allow either qualification program to be used. In future § 50.55a rulemakings, in which N-729 is further revised or incorporated into the ASME Code, the NRC expects that the Supplement 15 requirements of Mandatory Appendix VIII will be required. Additionally, as licensees adopt the 2021 Edition as an ISI Code of Record for their ISI Interval, Supplement 15 of Mandatory Appendix VIII will be a requirement. The NRC expects that with this transitional time, that has no immediate impact or burden, licensees will be able to update their programs as necessary in as efficient manner as possible.

The NRC is updating the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7. This change will require condition § 50.55a(g)(6)(ii)(F)(1) to be updated, and condition § 50.55a(g)(6)(ii)(F)(8) to be modified to retain an inspection frequency for optimized butt welds consistent with ASME Code Case N-770-5.

The NRC is updating NRC condition § 50.55a(g)(6)(ii)(F)(1) Implementation by changing the reference of ASME Code Case N-770-5 to N-770-7. Additionally, the implementation requirement will be changed from no later than 1 year after June 3, 2020, to no later than 1 year after the rule effective date.

The NRC is modifying the existing condition § 50.55a(g)(6)(ii)(F)(8) to retain, in part, the volumetric examination frequency of ASME Code Case N-770-5, which was changed in N-770-6. In N-770-5, the Frequency of Examination for Inspection Item C-2 welds (uncracked butt welds reinforced by optimized weld overlay of Alloy 52/152 material) is “100% of these welds shall be examined once each inspection interval. For any overlays that have an analyzed life of less than 10 [years], the inspection interval shall be less than or equal to the analyzed life.”

In N-770-5, the Frequency of Examination for Inspection Item F-2 welds (cracked butt weld reinforced by optimized weld overlay of Alloy 52/152 material) is “[o]nce during the first or second refueling outage following overlay. Examination volumes that show no indication of crack growth or new cracking shall be examined once each inspection interval. For any overlays that have an analyzed life of less than 10 years, the inspection interval shall be less than or equal to the analyzed life.”

The current NRC condition § 50.55a(g)(6)(ii)(F)(8) states that initial inservice examination of Inspection Item C-2 welds shall be performed between the third refueling outage and no later than 10 years after application of the overlay. In N-770-7, the Frequency of Examination for Inspection Item C-2 welds is—

In N-770-7, the Frequency of Examination for Inspection Item F-2 welds is—

The NRC continues to find that the long-term frequency for examination of optimized weld overlays shall be 100 percent of the welds each inspection interval, consistent with N-770-5 and the current regulation. Optimized weld overlays still structurally rely upon 25 percent of the primary water stress corrosion cracking material of the original butt weld to provide structural integrity for the weld. Further, the deposition of a more crack resistant material such as Alloy 52/152 acts as a crack growth restriction, allowing growth along the susceptible original weld material rather than through the more crack resistant material that would provide leakage as a defense-in-depth measure to identify cracking. A 25-percent sample inspection could allow optimized weld overlayed welds to have cracks develop into the structural retaining material of an ASME Class 1 butt weld in the reactor coolant system. This condition is not true of full structural weld overlays, which the NRC has found can utilize a long-term examination frequency of a 25-percent sample. Because the design of the optimized weld overlay reduces the effectiveness of the defense-in-depth leak initiation method of identifying potential cracking, a volumetric examination of each weld is required to provide reasonable assurance of structural integrity for these optimized weld overlays. Therefore, the NRC is modifying the condition to state that after initial examination for Inspection Items C-2 and F-2 welds, optimized weld overlay examination volumes that show no indication of crack growth or new cracking shall be examined once each inspection interval.

ASME Code Case N-770-7 also creates a new Inspection Item category for auxiliary head adapter (AHA) butt welds, B-3. Some Westinghouse 4-loop plants have AHA butt welds connected to the upper reactor vessel closure head. The new Inspection Item B-3 caries the same inspection requirements of B-1, which the AHA butt welds fall under currently. The update to a new Inspection Item category was made to facilitate a change to the scope expansion requirements in the event that a crack was found in an AHA butt weld.

The purpose of a scope expansion examination is if a crack is found in one weld, examinations of similar welds should be performed to ensure no generic issues are identified with that type of location or operating condition. The Inspection Item category that AHA butt welds currently fall under, B-1, could trigger scope expansion examinations in any, and potentially all, unmitigated reactor coolant system welds. The AHA butt welds are approximately 6-inches in diameter and are located on top of the reactor pressure vessel head in a low or no flow area. This location, while being of the same weld material, is not generally operating under the same conditions as the rest of the reactor coolant butt welds in the primary system of a Westinghouse PWR. Therefore, the ASME Code revised and issued Code Case N-770, Revision 7, to include the new category and modify the scope expansion rules to reflect this change. The NRC agrees with the change to address the intent of scope expansion if a flaw were to be identified in an AHA butt weld. Therefore, the NRC is updating the augmented inservice inspection requirements of § 50.55a(g)(6)(ii)(F)(1) to mandate the use of N-770-7 in lieu of N-770-5.

The NRC is amending the regulations in § 50.55a(a)(1)(iv)(C) to incorporate by reference the 2022 Edition of the ASME OM Code for nuclear power plants. The NRC is streamlining § 50.55a wherever possible to provide clearer IST regulatory requirements for nuclear power plant licensees and applicants. In the following paragraphs, the NRC includes certain changes that are part of the § 50.55a streamlining efforts.

The NRC is modifying § 50.55a(b)(3)(ii) by removing conditions (A), (B), and (C) where licensees are implementing the 2022 Edition of the ASME OM Code as incorporated by reference in § 50.55a, because Appendix III, “Preservice and Inservice Testing of Active Electric MOV Assemblies in Water-Cooled Reactor Nuclear Power Plants,” to the 2022 Edition of the ASME OM Code appropriately incorporates the requirements specified in those conditions. Condition (D) has not been incorporated into the 2022 Edition of the ASME OM Code. Therefore, condition (D) in § 50.55a(b)(3)(ii) will continue to apply to all editions and addenda of the ASME OM Code incorporated by reference in § 50.55a.

The NRC is revising § 50.55a(b)(3)(iii) by removing condition (B), “Check valves,” which states that licensees must perform bi-directional testing of check valves within the IST program where practicable. New reactors are applying more recent editions of the ASME OM Code that require bi-directional testing of check valves. Therefore, condition (B) is not needed in § 50.55a(b)(3)(iii). The NRC is reserving condition (B) in § 50.55a(b)(3)(iii) for possible future use.

The NRC is revising § 50.55a(b)(3)(iii) by removing condition (C), “Flow-induced vibration,” which states that licensees shall monitor flow-induced vibration from hydrodynamic loads and acoustic resonance during preservice testing or inservice testing to identify potential adverse flow effects on components within the scope of the IST program. Based on regulatory experience with new reactor licensing, the NRC considers that flow-induced vibration is appropriately addressed during the licensing phase and initial testing program at each new reactor nuclear power plant. Therefore, condition (C) is not needed in § 50.55a(b)(3)(iii). The NRC is reserving paragraph (C) in § 50.55a(b)(3)(iii) for possible future use.

The NRC is adding § 50.55a(b)(3)(vii) to clarify use of ASME OM Code, Subsection ISTD, “Preservice and Inservice Requirements for Dynamic Restraints (Snubbers) in Water-Cooled Reactor Nuclear Power Plants,” paragraph ISTD-4253, “Additional Requirements for 10-year Interval,” and Note 7 of the Table ISTD-4252-1, “Visual Examination Table,” with ASME OM Code Case OMN-15, Revision 2, “Performance-Based Requirements for Extending the Snubber Operational Readiness Testing Interval at LWR Power Plants.” OM Code Case OMN-15, Revision 2, Section 3.4, “Code Case OMN-13,” states that “this Code Case [OMN-15] shall not be used in conjunction with Code Case OMN-13, `Performance-Based Requirements for Extending Snubber Inservice Visual Examination Interval at LWR Power Plants.'” OM Code Case OMN-13 is incorporated in paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 of the 2022 Edition of the ASME OM Code. The use of OM Code Case OMN-13 is prohibited in conjunction with the use of OM Code Case OMN-15. However, the specific language of paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 does not clarify that the use of paragraph ISTD-4253 and Note 7 of Table ISTD-4252-1 is optional. The NRC is clarifying the language in the ASME OM Code by stating that when implementing Subsection ISTD, paragraph ISTD-4253, and Note 7 of Table ISTD-4252-1, in the 2022 Edition of the ASME OM Code, incorporated by reference in paragraph (a)(1)(iv) of this section, to extend snubber visual examination beyond two refueling cycles (48 months), the licensee is prohibited from applying OM Code Case OMN-15, Revision 2.

The NRC is adding § 50.55a(b)(3)(x) to clarify subparagraph (1) in paragraph (c), Requirements for Testing Additional Valves, of Section I-1320, “Test Frequencies, Class 1 Pressure Relief Valves,” in the ASME OM Code, Appendix I, “Inservice Testing of Pressure Relief Devices in Water-Cooled Reactor Nuclear Power Plants,” which states that for each valve tested for which the as-found set-pressure (first test actuation) exceeds the greater of either the plus/minus tolerance limit of the Owner-established set-pressure acceptance criteria of I-1310 (e) or ±3 percent of valve nameplate set-pressure, two additional valves shall be tested from the same valve group. The expansion of the test sample provides reasonable assurance that a degradation mechanism that might cause multiple Class 1 Pressure Relief Valves to be incapable of performing their safety functions will be identified. Typically, it is expected that variations in actual valve performance will result in an Owner-established set-pressure acceptance criteria for Class 1 Pressure Relief Valves exceeding the default 3-percent valve nameplate set-pressure. The NRC has no concerns with the language of paragraph I-1320 (c)(1) where the Owner-established set-pressure acceptance criteria are greater than the 3-percent default value. Based on plant-specific valve performance, the Owner might need to establish set-pressure acceptance criteria for Class 1 Pressure Relief Valves lower than the default 3-percent value. The failure of a Class 1 Pressure Relief Valve to meet the Owner-established set-pressure acceptance criteria can signify that the valve is incapable of performing its safety function. In such cases, it is important to determine whether other Class 1 Pressure Relief Valves also have performance problems that could cause them to be unable to perform their safety functions. However, the specific language of paragraph I-1320 (c)(1) might be interpreted to not require an expansion of the test sample where the default 3-percent value is greater than the Owner-established set-pressure acceptance criteria. This might lead in an unsafe situation where the licensee is unaware that multiple Class 1 Pressure Relief Valves are incapable of performing their safety functions. To resolve this concern, the NRC is clarifying the language in paragraph I-1320 (c)(1).

Based on a public comment requesting to clarify the proposed rule language, the NRC revised 10 CFR 50.55a(b)(3)(x) to specify two additional valves to be tested from the same group if expanding the test sample is required. If the Owner has not established design set-pressure acceptance criteria, then for each valve tested for which the as-found set-pressure (first actuation) exceeds ±3 percent of valve nameplate set-pressure, two additional valves shall be tested from the same valve group. The specification of the Owner-established “design” set-pressure acceptance criteria allows the licensee to establish specific criteria for testing purposes.

The NRC is making an editorial correction to § 50.55a(d), “Quality Group B components,” by replacing the colon at the end of the second sentence of the introductory paragraph with a period. When the introductory paragraph of § 50.55a(d) was expanded to include a reference to 10 CFR part 52, the new second sentence of the introductory paragraph incorrectly placed a colon at the end of the sentence rather than a period. The use of a colon implies that items (1) and (2) in § 50.55a(d) only apply to 10 CFR part 52 plants. However, item (1) of § 50.55a(d) specifies a requirement for applicants under 10 CFR part 50.

The proposed rule was published on August 8, 2023, for a 75-day comment period (88 FR 53384). The public comment period closed on October 23, 2023.

During the public comment period, the NRC held a public meeting on September 6, 2023, to discuss the proposed rule, to answer questions on specific provisions of the proposed rule, and to encourage public input on the proposed rule. The public meeting summary is available in ADAMS as provided in the “Availability of Documents” section of this document.

The NRC published the proposed rule for public comment in the Federal Register . A comment submission is a communication or document submitted to the NRC by an individual or entity, with one or more individual comments addressing a subject or issue. The NRC received three comment submission(s) in response to the opportunity for public comment on the proposed rule, with an individual comment total of 22. These comment submissions were submitted by the following commenters (listed in order of receipt):

Due to the large number of comments received and the length of the NRC's response, a summary of the NRC's response to comments in areas of particular interest to stakeholders is included in this final rule. This includes comments that prompted the NRC to make more than editorial changes in this final rule from what the NRC had proposed. The public comment submittals are available from the Federal rulemaking website at https://www.regulations.gov under Docket ID NRC-2018-0289. A discussion of all comments and complete NRC responses are presented in a separate document, “Final Rule—Comment Response Document ASME 2021-2022 Code Editions Update,” as provided in the “Availability of Documents” section of this document.

This section describes the primary revisions made by this final rule; minor editorial and administrative corrections to correct spacing, administrative errors, and typos are not identified in this analysis.

This final rule revises paragraphs (a)(1)(i) (E) ( 19 ) and (20) and add new paragraph (a)(1)(i) (E) ( 21 ) to include the 2021 Edition of the ASME BPV Code.

This final rule revises paragraphs (a)(1)(ii) (C)(55) and (56) and adds new paragraph (a)(1)(ii)(C) (57) to include the 2021 Edition.

This final rule revises paragraph (a)(1)(iii) (D) to update ASME BPV Code Case N-770-5 to N-770-7 and to update the approval date to December 4, 2020.

This final rule revises paragraph (a)(1)(iv) (C) to add the 2022 Edition of the ASME OM Code.

This final rule revises and redesignates existing paragraph (b)(1)(iv) as paragraph (b)(1)(iv) introductory text, adds new paragraphs (b)(1)(iv)(A) and (B), and removes and reserves paragraph (b)(1)(iv)(B).

This final rule revises paragraph (b)(1)(vi) to revise “sleeves” to “sheaths” and adds a new sentence that this condition is not applicable to 2015 and later Editions.

This final rule revises the introductory text to paragraph (b)(1)(xi) to clarify the applicable conditions and adds two new conditions specific to polyethylene pressure piping when applying the 2015 through 2021 Editions. The rule also revises paragraph (b)(1)(xi)(B) to add the 2015 to 2021 Editions of BPV Code Section III. In response to a public comment, the NRC has modified the language from the proposed paragraph (b)(1)(xi)(B) to provide more clarity. See Section II of this document, “Discussion,” for more information.

This final rule revises the introductory text to paragraph (b)(1)(xiii) and paragraphs (b)(1)(xiii)(A) and (B) to update the applicability of the latest edition and addenda incorporated by reference in § 50.55a(a)(1).

This final rule adds new paragraph (b)(1)(xiv) to require that Nonmandatory Appendix NN be used in its entirety.

This final rule revises the introductory text of paragraph (b)(2) to clarify the editions incorporated by reference in paragraph (a)(1)(ii).

This final rule revises paragraph (b)(2)(viii) to update the applicability of paragraphs (b)(2)(viii) (H) and (b)(2)(viii) (I) through the 2019 Edition.

This final rule revises paragraph (b)(2)(ix) to update the applicability of paragraph (b)(2)(ix)(A) (2).

This final rule eliminates and reserves the condition at paragraph (b)(2)(xv).

This final rule removes the introductory text to paragraph (b)(2)(xxxiv), leaving only the heading; redesignates paragraphs (b)(2)(xxiv)( A ) and ( B ) to (b)(2)(xxiv)(A)( 1) and (b)(2)(xxiv)(A) (2); revises paragraph (b)(2)(xxxiv)(A) (1) and (b)(2)(xxxiv)(A) (2) to require use of the latest version of ASME BPV Code Case N-513 approved in RG 1.147 at the time the case was incorporated into the licensee's inservice inspection program; and adds new paragraph (b)(2)(xxxiv)(B) to prohibit the use of Nonmandatory Appendix U, Supplement U-S1 in the 2021 Edition of Section XI. In response to a public comment, the NRC has modified the language from the proposed paragraph (b)(2)(xxxiv)(A)( 2 ), to provide more clarity. See Section II of this document, “Discussion,” for more information.

This final rule revises this condition in paragraph (b)(2)(xxxvi) to require that T 0 and RT T0 be determined as specified in the 2021 Edition of ASME BPV Code, Section III, NB-2331, subparagraph (a)(5). In response to a public comment, the NRC has modified the language in (b)(2)(xxxvi), which was not in the proposed rule, to allow the use of Master Curve methods, as specified in NB-2331(a)(5) without obtaining approval from the NRC under § 50.55a(z). See Section II of this document, “Discussion,” for more information.

This final rule revises the introductory text to include language from paragraph (b)(2)(xliii)(A), removes paragraphs (A) through (C), and removes the requirement for NRC review and approval. In response to a public comment, the NRC has modified the language from paragraph (b)(2)(xliii), which was not in the proposed rule. See Section II of this document, “Discussion,” for more information.

This final rule adds new paragraph (b)(2)(xliv) to prohibit the use of Y-2200, Y-2440, and Y-3200 in the 2021 Edition of Section XI.

This final rule adds new paragraph (b)(2)(xlv) to condition the provision of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 examination of the area affected by the repair/replacement activity be conducted during the Type C test in appendix J to 10 CFR part 50.

This final rule adds new paragraph (b)(2)(xlvi) to prohibit a contracted Repair/Replacement Organization without an ASME Certificate of Authorization and not applying an ASME Stamp/Certification Mark from fabricating ASME Code, Section III parts, appurtenances, piping subassemblies, and supports offsite of the Owner's facility ( e.g., vendor facility) when applying the provisions of IWA-4143 in the 2021 Edition of the ASME Code, Section XI.

This final rule adds new paragraph (b)(2)(xlvii) to require stress corrosion crack growth analysis of the weld overlay material under subparagraph Q-3000(a) of Nonmandatory Appendix Q in the 2021 Edition of the ASME Code, Section XI.

This final rule adds new paragraph (b)(2)(xlviii) to require that analytical evaluations performed in accordance with IWB-3132.3 and IWC-3132.3 be submitted to the NRC.

This final rule adds new paragraph (b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of ASME BPV Code, Section XI (Division 1) for the inlay and onlay that are subject to the augmented inspection requirements in paragraph (g)(6)(ii)(F).

This final rule adds new paragraph (b)(2)(l) to require users of the 2017 Edition of Section XI through the latest Edition and implementing Nonmandatory Appendix A, A-4200(c) and Nonmandatory Appendix G, G-2110(c) to determine T 0 and RT T0 as specified in the 2021 Edition of the ASME BPV Code, Section III, NB-2331, subparagraph (a)(5). In response to a public comment, the NRC has added new paragraph (b)(2)(l), which did not appear in the proposed rule, to allow the use of Master Curve methods, including NB-2331(a)(5), and to align with changes in paragraph (b)(2)(xliii) of this section. See Section II of this document, “Discussion,” for more information.

This final rule revises the introductory text to paragraph (b)(3)(ii) to exclude conditions (A), (B), and (C) from being applicable to the 2022 Edition of the ASME OM Code because those conditions have been incorporated into that edition of the ASME OM Code.

This final rule revises paragraph (b)(3)(iii) to remove and reserve for future use the conditions in paragraphs (b)(3)(iii)(B) and (C) because those conditions are required by other regulations for new reactors.

This final rule replaces reserved paragraph (b)(3)(vii) with a new condition on ASME OM Code, Subsection ISTD, paragraph ISTD-4253, and Note 7 of the Table ISTD-4252-1 related to snubbers to be consistent with the accepted provisions in OM Code Case OMN-15.

This final rule creates a new paragraph (b)(3)(x) to clarify the requirement for expanding the test sample for Class 1 Pressure Relief Valves specified in ASME OM Code, Appendix I, paragraph I-1320 (c)(1). In response to a public comment, the NRC has modified the language from the proposed paragraph (b)(3)(x) for clarity regarding inservice valve testing. See Section II of this document, “Discussion,” for more information.

This final rule revises the introductory text of paragraph (d) by correcting an editorial error. The colon is replaced with a period, at the end of the second sentence.

This final rule revises paragraph (g)(4)(ii) to update the dates to conform with this rule. In response to a public comment, the NRC has modified the language in paragraph (g)(4)(ii), which was not in the proposed rule, to allow licensees to delay the update of their Appendix VIII program by up to 18 months after the effective date of this final rule. See Section II of this document, “Discussion,” for more information.

This final rule adds new paragraph (g)(6)(ii)( D )( 9 ) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII, in the 2021 Edition of Section XI incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6.

This final rule revises paragraph (g)(6)(ii)(F)(1) to update the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7 and updates the dates to conform with this rule.

This final rule modifies the existing condition in paragraph (g)(6)(ii)(F)(8) to retain, in part, the volumetric examination frequency of ASME Code Case N-770-5, which was changed in N-770-6.

In December 2010, the NRC issued “Generic Aging Lessons Learned (GALL) Report,” NUREG-1801, Revision 2 (ML103490041), for applicants to use in preparing license renewal applications. The GALL Report provides aging management programs (AMPs) that the NRC has concluded are sufficient for aging management in accordance with the license renewal rule, as required in § 54.21(a)(3). In addition, “Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants,” NUREG-1800, Revision 2 (ML103490036), was issued in December 2010, to ensure the quality and uniformity of NRC reviews of license renewal applications and to present a well-defined basis on which the NRC evaluates the applicant's AMPs and activities. In April 2011, the NRC also issued “Disposition of Public Comments and Technical Bases for Changes in the License Renewal Guidance Documents NUREG-1801 and NUREG-1800,” NUREG-1950 (ML11116A062), which describes the technical bases for the changes in Revision 2 of the GALL Report and Revision 2 of the standard review plan (SRP) for review of license renewal applications.

Revision 2 of the GALL Report, in Sections XI.M1, XI.S1, XI.S2, XI.M3, XI.M5, XI.M6, XI.M11B, and XI.S3, describes the evaluation and technical bases for determining the sufficiency of ASME BPV Code Subsections IWB, IWC, IWD, IWE, IWF, or IWL for managing aging during the period of extended operation ( i.e., up to 60 years of operation). In addition, many other AMPs in the GALL Report rely, in part but to a lesser degree, on the requirements specified in the ASME BPV Code, Section XI. Revision 2 of the GALL Report also states that the 1995 Edition through the 2004 Edition of the ASME BPV Code, Section XI, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as modified and limited by § 50.55a, were found to be acceptable editions and addenda for complying with the requirements of § 54.21(a)(3), unless specifically noted in certain sections of the GALL Report. The GALL Report further states that future Federal Register documents that amend § 50.55a will discuss the acceptability of editions and addenda more recent than the 2004 Edition for their applicability to license renewal. In a final rule issued on June 21, 2011 (76 FR 36232), subsequent to Revision 2 of the GALL Report, the NRC also found that the 2004 Edition with the 2005 Addenda through the 2007 Edition with the 2008 Addenda of Section XI of the ASME BPV Code, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as subject to the conditions in § 50.55a, are acceptable for the AMPs in the GALL Report and the conclusions of the GALL Report remain valid with the augmentations specifically noted in the GALL Report. In a final rule issued on July 18, 2017 (82 FR 32934), the NRC further found that the 2009 Addenda through the 2017 Edition of Section XI of the ASME BPV Code, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as subject to the conditions in § 50.55a, are acceptable for the AMPs in the GALL Report. In a final rule issued on May 4, 2020 (85 FR 26540), the NRC further found that Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2015 Edition and the 2017 Edition of the ASME BPV Code, as subject to the conditions in § 50.55a, are acceptable for the AMPs in the GALL Report. In a final rule issued on October 27, 2022 (87 FR 65128), the NRC further found that Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2019 Edition of the ASME BPW Code, as subject to the conditions in § 50.55a, are acceptable for the AMPs in the GALL Report.

In July 2017, the NRC issued “Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report,” NUREG-2191 (ML17187A031 and ML17187A204), for applicants to use in preparing applications for subsequent license renewal. The GALL-SLR Report provides AMPs that are sufficient for aging management for the subsequent period of extended operation ( i.e., up to 80 years of operation), as required in § 54.21(a)(3). The NRC also issued “Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants” (SRP-SLR), NUREG-2192, in July 2017 (ML17188A158). In a similar manner as the GALL Report, the GALL-SLR Report, in Sections XI.M1, XI.S1, XI.S2, XI.M3, XI.11B, and XI.S3, describes the evaluation and technical bases for determining the sufficiency of ASME BPV Code Subsections IWB, IWC, IWD, IWE, IWF, or IWL for managing aging during the subsequent period of extended operation. Many other AMPs in the GALL-SLR Report rely, in part but to a lesser degree, on the requirements specified in the ASME BPV Code, Section XI. The GALL-SLR Report also indicates that the 1995 Edition through the 2013 Edition of the ASME BPV Code, Section XI, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as subject to the conditions in § 50.55a, are acceptable for complying with the requirements of § 54.21(a)(3), unless specifically noted in certain sections of the GALL-SLR Report.

As part of this final rule, the NRC evaluated whether those AMPs in the GALL Report and GALL-SLR Report that rely upon Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI in the editions and addenda of the ASME BPV Code incorporated by reference into § 50.55a, in general continue to be acceptable if the AMP relies upon these Subsections in the 2021 Edition. The NRC finds that the 2021 Edition of Section XI of the ASME BPV Code, Subsections IWB, IWC, IWD, IWE, IWF, or IWL, as subject to the conditions of this rule, are acceptable for the AMPs in the GALL Report and GALL-SLR Report with the exception of augmentation, as specifically noted in those reports, and the NRC finds that the conclusions of the GALL Report and GALL-SLR Report remain valid. Accordingly, an applicant for license renewal (including subsequent license renewal) may use, in its plant-specific license renewal application, Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2021 Edition of the ASME BPV Code, as subject to the conditions in this final rule, without additional justification. Similarly, a licensee approved for license renewal that relied on the AMPs may use Subsections IWB, IWC, IWD, IWE, IWF, or IWL of Section XI of the 2021 Edition of the ASME BPV Code. However, applicants must assess and follow applicable NRC requirements with regard to licensing basis changes and evaluate the possible impact on the elements of existing AMPs.

Some of the AMPs in the GALL Report and GALL-SLR Report recommend augmentation of certain Code requirements in order to ensure adequate aging management for license renewal. The technical and regulatory aspects of the AMPs for which augmentations are recommended also apply if the 2021 Edition of Section XI of the ASME BPV Code is used to meet the requirements of § 54.21(a)(3). The NRC evaluated the changes in the 2021 Edition of Section XI of the ASME BPV Code to determine if the augmentations described in the GALL Report and GALL-SLR Report remain necessary; the NRC's evaluation has concluded that the augmentations described in the GALL and GALL-SLR Reports are necessary to ensure adequate aging management.

For example, GALL-SLR Report AMP XI.S3, “ASME Section XI, Subsection IWF,” recommends that volumetric examination consistent with that of the ASME BPV Code, Section XI, Table IWB-2500-1, Examination Category B-G-1 should be performed to detect cracking for high strength structural bolting (actual measured yield strength greater than or equal to 150 kilopound per square inch (ksi)) (1034 megapascals (MPA)) in sizes greater than 1-inch nominal diameter. The GALL-SLR Report also indicates that this volumetric examination may be waived with adequate plant-specific justification. This guidance for aging management in the GALL-SLR Report is the augmentation of the visual examination specified in Subsection IWF of the 2021 Edition of the ASME BPV Code, Section XI.

A license renewal applicant may either augment its AMPs as described in the GALL Report and GALL-SLR Report (for operation up to 60 and 80 years respectively) or propose alternatives for the NRC to review as part of the applicant's plant-specific justification for its AMPs.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this rule does not have a significant economic impact on a substantial number of small entities. This final rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

The NRC has prepared a final regulatory analysis on this regulation. The analysis examines the costs and benefits of the alternatives considered by the NRC. The regulatory analysis is available as indicated in the “Availability of Documents” section of this document.

The NRC's Backfit Rule in § 50.109 states that the NRC shall require the backfitting of a facility only when it finds the action to be justified under specific standards stated in the rule. Section 50.109(a)(1) defines backfitting as the modification of or addition to systems, structures, components, or design of a facility; the design approval or manufacturing license for a facility; or the procedures or organization required to design, construct, or operate a facility. Any of these modifications or additions may result from a new or amended provision in the NRC's rules or the imposition of a regulatory position interpreting the NRC's rules that is either new or different from a previously applicable NRC position after issuance of the construction permit or the operating license or the design approval.

Section 50.55a requires nuclear power plant licensees to—

• Construct ASME BPV Code Class 1, 2, and 3 components in accordance with the rules provided in Section III, Division 1, of the ASME BPV Code (“Section III”).

• Inspect, examine, and repair or replace Class 1, 2, 3, Class MC, and Class CC components in accordance with the rules provided in Section XI, Division 1, of the ASME BPV Code (“Section XI”).

• Test Class 1, 2, and 3 pumps and valves in accordance with the rules provided in the ASME OM Code.

• Inspect, examine, repair, or replace, and test Class 1, 2, and 3 dynamic restraints (snubbers) in accordance with the rules provided in either the ASME OM Code or Section XI, depending on the Code edition.

This rulemaking incorporates by reference the 2021 Edition of the ASME BPV Code, Section III, Division 1, and ASME BPV Code, Section XI, Division 1, as well as the 2022 Edition of the ASME OM Code.

The ASME BPV and OM Codes are national consensus standards developed by participants with broad and varied interests, in which all interested parties (including the NRC and utilities) participate. A consensus process involving a wide range of stakeholders is consistent with the NTTAA, inasmuch as the NRC has determined that there are sound regulatory reasons for establishing regulatory requirements for design, maintenance, ISI, and IST by rulemaking. The process also facilitates early stakeholder consideration of backfitting issues. Therefore, the NRC finds that the NRC need not address backfitting with respect to the NRC's general practice of incorporating by reference updated ASME Codes.

Incorporation by reference of more recent editions and addenda of Section III of the ASME BPV Code does not affect a plant that has received a construction permit or an operating license or a design that has been approved. This is because the edition and addenda to be used in constructing a plant are, under § 50.55a, determined based on the date of the construction permit or combined license, and are not changed thereafter, except voluntarily by the licensee. The incorporation by reference of more recent editions and addenda of Section III ordinarily applies only to applicants after the effective date of the final rule incorporating these new editions and addenda. Therefore, incorporation by reference of a more recent edition and addenda of Section III does not constitute “backfitting” as defined in § 50.109(a)(1).

Incorporation by reference of more recent editions and addenda of Section XI of the ASME BPV Code and the ASME OM Code affects the ISI and IST programs of operating reactors. However, the Backfit Rule generally does not apply to incorporation by reference of later editions of the ASME BPV Code (Section XI) and OM Code. As previously mentioned, the NRC's longstanding regulatory practice has been to incorporate later versions of the ASME Codes into § 50.55a. Under § 50.55a, licensees must periodically update their ISI and IST programs to the latest edition of Section XI of the ASME BPV Code and the ASME OM Code incorporated by reference into § 50.55a 18 months before the start of a new code of record interval. Therefore, when the NRC approves and requires the use of a later version of the Code for ISI and IST, it is implementing this longstanding regulatory practice and requirement.

Other circumstances where the NRC does not apply the Backfit Rule to the approval and requirement to use later Code editions are as follows:

1. When the NRC takes exception to a later ASME BPV Code or OM Code provision but merely retains the current existing requirement, prohibits the use of the later Code provision, limits the use of the later Code provision, or supplements the provisions in a later Code, the Backfit Rule does not apply because the NRC is not imposing new requirements. However, the NRC explains any such exceptions to the Code in the preamble to and regulatory analysis for the rule.

2. When an NRC exception relaxes an existing ASME BPV Code or OM Code provision but does not prohibit a licensee from using the existing Code provision, the Backfit Rule does not apply because the NRC is not imposing new requirements.

3. Modifications and limitations imposed during previous routine updates of § 50.55a have established a precedent for determining which modifications or limitations are backfits, or require a backfit analysis ( e.g., final rule dated September 10, 2008 (73 FR 52731), and a correction dated October 2, 2008 (73 FR 57235)). The application of the backfit requirements to modifications and limitations in the current rule are consistent with the application of backfit requirements to modifications and limitations in previous rules.

The incorporation by reference and adoption of a requirement mandating the use of a later ASME BPV Code or OM Code may constitute backfitting in some circumstances. In these cases, the NRC would perform a backfit analysis or documented evaluation in accordance with § 50.109. These include the following:

1. When the NRC endorses a later provision of the ASME BPV Code or OM Code that takes a substantially different direction from the existing requirements, the action is treated as a backfit ( e.g., 61 FR 41303; August 8, 1996).

2. When the NRC requires implementation of a later ASME BPV Code or OM Code provision on an expedited basis, the action is treated as a backfit. This applies when implementation is required sooner than it would be required if the NRC simply endorsed the Code without any expedited language ( e.g., 64 FR 51370; September 22, 1999).

3. When the NRC takes an exception to an ASME BPV Code or OM Code provision and imposes a requirement that is substantially different from the existing requirement as well as substantially different from the later Code ( e.g., 67 FR 60529; September 26, 2002).

This section discusses the backfitting considerations for all the changes to § 50.55a that go beyond the minimum changes necessary and required to adopt the new ASME Code edition into § 50.55a.

1. Revise § 50.55a(b)(1)(iv) to not approve Subpart 2.19 in NQA-1-17, NQA-1-19, and NQA-1-22 for use. This revision clarifies current requirements and is consistent with the meaning and intent of current requirements. The condition does not constitute a new or changed NRC position. Therefore, this condition is not a backfit.

2. Revise § 50.55a(b)(1)(vi) to change the word “sleeves” to “sheaths” and to note that this condition is not applicable to 2015 and later Editions. This condition is not applicable to 2015 and later Editions as Subsection NH is deleted from Section III Division 1. The revisions to clarify a word and clarification of Code edition applicability do not constitute a change in NRC position. Therefore, this is not a backfit.

3. Revise § 50.55a(b)(1)(xi) to revise this condition regarding the applicability to specific Code editions. When applying the 2015 and 2017 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the first provision, as noted in § 50.55a(b)(1)(xi)(A). When applying the 2015 through 2021 Editions of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the second provision, as noted in § 50.55a(b)(1)(xi)(B). When applying the 2017 Edition of Section III, Mandatory Appendix XXVI, “Rules for Construction of Class 3 Buried Polyethylene Pressure Piping,” applicants or licensees must meet the third provision, as noted in § 50.55a(b)(1)(xi)(C). The revision is only for Code editions applicability and does not constitute a new or changed NRC position. Therefore, this change is not a backfit.

4. Revise § 50.55a(b)(1)(xiii) including the first provision, § 50.55a(b)(1)(xiii)(A), and second provision, § 50.55a(b)(1)(xiii)(B), to extend the applicability of the conditions through the latest edition of the ASME BPV Code, Section III incorporated by reference in paragraph (a)(1)(i). The NRC is revising this condition to apply to the latest edition incorporated by reference, which is not a change to NRC position and, therefore, is not a backfit.

5. Add § 50.55a(b)(1)(xiv) to condition the use of the provisions of NCA-8151, NCA-8500, and Nonmandatory Appendix NN in the 2021 Edition of Section III, to require that when Nonmandatory Appendix NN is used for the elimination of surface defects and repairs of stamped components prior to the completion of Form N-3 Data Report, all applicable requirements of Nonmandatory Appendix NN shall be met. The condition on Nonmandatory Appendix NN does not constitute a new or changed NRC position. Therefore, the addition of this condition is not a backfit.

1. Revise § 50.55a(b)(2)(viii), to remove the applicability of § 50.55a(b)(2)(viii)(H) and (I) from the 2021 Edition. This change to § 50.55a(b)(2)(viii) removes conditions that are no longer applicable to the 2021 Edition due to updates to the BPV Code that addressed the condition. Since this change accepts the relevant code provisions in the 2021 Edition as-is, it is not a backfit.

2. Revise § 50.55a(b)(2)(ix), to remove the applicability of § 50.55a(b)(2)(ix)(A)( 2) from the 2021 Edition. This change to § 50.55a(b)(2)(ix) removes a condition that is no longer applicable to the 2021 Edition due to updates to the BPV Code that addressed the condition. Since this change accepts the relevant code provisions in the 2021 Edition as-is, it is not a backfit.

3. Remove and reserve § 50.55a(b)(2)(xv). This condition was applicable to older Editions of Section XI that are no longer in use by licensees. Removing this condition does not modify current licensee inservice inspection requirements and, therefore, is not a backfit.

4. Revise § 50.55a(b)(2)(xxxiv)(A) to modify the cited version of ASME Code Case N-513 to the latest version approved in RG 1.147 at the time the case was incorporated into the licensee's program. The new conditions at paragraphs (b)(2)(xxxiv)(A) (1) and (A) (2) are the existing conditions with an added clarification of which version of Code Case N-513 licensees must use when complying with the conditions. This clarification is a restatement of the requirements in § 50.55a(b)(5) and is therefore not a backfit.

5. Add § 50.55a(b)(2)(xxxiv)(B) to prohibit the use of Nonmandatory Appendix U, Supplement U-S1. Supplement U-S1 of Nonmandatory Appendix U is obsolete relative to Code Case N-513, as included in the latest revision of RG 1.147 incorporated by reference in § 50.55a(a)(3)(ii). Licensees have adopted the updated rules in Code Case N-513 for temporary acceptance of flaws in moderate energy Class 2 and 3 piping. This revision does not modify the current inservice inspection regulatory requirements and, therefore, is not a backfit.

6. Revise § 50.55a(b)(2)(xxxvi) to delete the requirement to submit the analyses for NRC approval and instead follow the requirements of NB-2331, subparagraph (a)(5). The revision to this condition allows licensees to use T 0 and RT T0 in licensing basis calculations by application of a specific method without NRC review and approval under paragraph (z). Licensees retain the option of obtaining approval under paragraph (z) to implement alternative methods. Therefore, this change is not a backfit.

7. Revise § 50.55a(b)(2)(xliii)(A) to clarify that NRC review and approval is not required for out-of-limit evaluation submissions. This revision only clarifies that NRC approval of the analysis is not a prerequisite for licensee activities. This revision does not result in a change to licensee requirements and is, therefore, not a backfit.

The submittal requirements of § 50.55a(b)(2)(xliii)(B) and (C) are removed because they are replaced by new condition § 50.55a(b)(2)(l). The new condition states that licensees must follow the requirements of NB-2331, subparagraph (a)(5) when calculating T 0 and RT T0 . With this revision, licensees now have the option to implement an acceptable method for determining T 0 and RT T0 without NRC review and approval. Therefore, this change is not a backfit.

8. Add § 50.55a(b)(2)(xliv) to prohibit the use of Article Y-2200, Subarticle Y-2440, and Article Y-3200 in Nonmandatory Appendix Y. These articles have corresponding Code Cases, which have been included in the latest revision of RG 1.147 incorporated by reference in § 50.55a(a)(3)(ii). Licensees have adopted the crack growth laws in the corresponding Code Cases: Cases N-809, N-889, and N-643, respectively. The condition on Nonmandatory Appendix Y does not constitute a new or changed NRC position. Therefore, the addition of this condition is not a backfit.

9. Add § 50.55a(b)(2)(xlv) to condition the provision of IWA-4540(a) and (e) of the 2021 Edition of the ASME Code, Section XI, to require that a VT-2 examination be performed of the area affected by the repair/replacement activity during the Type C test in appendix J to 10 CFR part 50. The condition on IWA-4540(a) and (e) does not constitute a new or changed NRC position. Therefore, the addition of this condition is not a backfit.

10. Add § 50.55a(b)(2)(xlvi) to condition the provision of IWA-4143 of the 2021 Edition of the ASME Code, Section XI, by prohibiting a contracted Repair/Replacement Organization from fabricating a part offsite of the Owner's facility ( e.g., vendor facility) without an ASME Certificate of Authorization and without applying an ASME Stamp/Certification Mark. The condition on IWA-4143 does not constitute a new or changed NRC position. Therefore, the addition of this condition is not a backfit.

11. Add § 50.55a(b)(2)(xlvii) to prevent a new exemption in the 2021 Edition of subparagraph Q-3000(a) of the requirement to remove stress corrosion crack growth analysis of the overlay material. This is a new condition that retains the previous requirements and allowances of the previous approved version of Nonmandatory Appendix Q, and accordingly, is not a new or changed position. Therefore, the addition of this condition is not a backfit.

12. Add § 50.55a(b)(2)(xlviii) to require submission of analytical evaluations performed under IWB-3132.3 and IWC-3122.3 to the NRC. This is a new condition that retains the requirements of the previous approved version of Section XI, and accordingly, is not a new or changed position. Therefore, the addition of this condition is not a backfit.

13. Add § 50.55a(b)(2)(xlix) to prohibit the use of IWB-3600(b)(1) in the 2021 Edition of the Code for the inlay and onlay that are subject to the augmented inspections specified in paragraph (g)(6)(ii)(F) of this section. The condition on the analytical evaluation of a flaw in the inlay or onlay does not constitute a new or changed NRC position. Therefore, the addition of this condition is not a backfit.

14. Add § 50.55a(b)(2)(l) to require licensees using Nonmandatory Appendix A, A-4200(c) and Nonmandatory Appendix G, G-2110(c) to determine T 0 and the associated RT T0 according to the requirements of NB-2331, subparagraph (a)(5). This condition replaces the former condition § 50.55a(b)(2)(xliii)(B) and (C), which required licensees to submit determination of T 0 and RT T0 to the NRC for review and approval. Licensees retain the option of obtaining approval under paragraph (z) to implement alternative methods Therefore, the new condition is not a backfit.

15. Add § 50.55a(g)(6)(ii)(D)(9) to allow licensees the option to utilize Supplement 15 of Mandatory Appendix VIII in the 2021 Edition or later of Section XI, incorporated by reference in § 50.55a, for volumetric qualification of examinations required by Table 1 of ASME Code Case N-729-6. Providing licensees the option of using either the qualification program in ASME Code Case N-729-6 or Supplement 15 of Mandatory Appendix VIII does not constitute a new or changed NRC position. Therefore, this addition is not a backfit.

16. Modify § 50.55a(a)(1)(iii)(D) and § 50.55a(g)(6)(ii)(F) to update the requirements for the augmented inspection of dissimilar-metal butt welds in U.S. PWRs from ASME Code Case N-770-5 to N-770-7. This change requires one condition to be updated, § 50.55a(g)(6)(ii)(F)( 1 ), and one condition modified to retain an inspection frequency for optimized butt welds consistent with ASME Code Case N-770-5. The current regulatory requirements for the examination frequency of Inspection Items C-2 and F-2 welds have not changed. The change in examination categorization for B-3 provides no change to inspection frequency or requirements. The change in scope expansion requirements is a reduction in the requirements if a flaw is identified in an AHA butt weld consistent with the regulatory purpose of examination scope expansion. Therefore, the update and modification of previous conditions are not backfits.

1. Revise § 50.55a(b)(3)(ii) by removing conditions (A), (B), and (C) where licensees are implementing the 2022 Edition of the ASME OM Code as incorporated by reference in § 50.55a, because Appendix III to the 2022 Edition of the ASME OM Code appropriately incorporates the requirements specified in those conditions. The revisions do not modify the current IST regulatory requirements and, therefore, are not backfits.

2. Delete condition (B) in § 50.55a(b)(3)(iii), which states that licensees of new reactors must perform bi-directional testing of check valves within the IST program where practicable. The licensees of new reactors are required to apply more recent editions of the ASME OM Code that require bi-directional testing of check valves. Therefore, condition (B) is not needed in § 50.55a(b)(3)(iii). This change does not modify the current IST regulatory requirements and, therefore, is not a backfit.

3. Delete condition (C) in § 50.55a(b)(3)(iii), which states that licensees of new reactors shall monitor flow-induced vibration from hydrodynamic loads and acoustic resonance during preservice testing or inservice testing to identify potential adverse flow effects on components within the scope of the IST program. Based on regulatory experience with new reactor licensing, the NRC considers that flow-induced vibration is appropriately addressed during the licensing phase and initial testing program at each new reactor nuclear power plant. Therefore, condition (C) is not needed in § 50.55a(b)(3)(iii). This change does not modify the current IST regulatory requirements and, therefore, is not a backfit.

4. Create a new § 50.55a(b)(3)(vii) to clarify use of ASME OM Code, Subsection ISTD, paragraph ISTD-4253, and Note 7 of the Table ISTD-4252-1, with the ASME OM Code Case OMN-15, Revision 2. This modification reflects a clarification of ASME OM Code, Subsection ISTD, paragraph ISTD-4253 and Table ISTD-4252-1, is not a new or changed NRC position, and therefore, is not a backfit.

5. Create a new § 50.55a(b)(3)(x) to clarify ASME OM Code, Appendix I, paragraph I-1320 (c)(1), which states that for each valve tested for which the as-found set-pressure (first test actuation) exceeds the greater of either the plus/minus tolerance limit of the Owner-established design set-pressure acceptance criteria of paragraph I-1310 (e) or ±3 percent of valve nameplate set-pressure, two additional valves shall be tested from the same valve group. The expansion of the test sample provides reasonable assurance that a degradation mechanism that might cause multiple Class 1 Pressure Relief Valves to be incapable of performing their safety functions will be identified. However, the specific language of paragraph I-1320 (c)(1) might be interpreted to not require an expansion of the test sample where the default 3-percent value is greater than the Owner-established set-pressure acceptance criteria. This modification reflects a clarification of ASME OM Code, Appendix I, paragraph I-1320 (c)(1), is not a new or changed NRC position, and, therefore, is not a backfit.

1. Replace the colon at the end of the second sentence of the introductory paragraph of § 50.55a(d) with a period. This is an editorial correction and, therefore, not a backfit.

The NRC finds that incorporation by reference into § 50.55a of the 2021 Edition of Section III, Division 1, of the ASME BPV Code subject to the identified conditions; the 2021 Edition of Section XI, Division 1, of the ASME BPV Code, subject to the identified conditions; and the 2022 Edition of the ASME OM Code subject to the identified conditions, does not constitute backfitting or represent an inconsistency with any issue finality provisions in 10 CFR part 52.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

The NRC has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in subpart A of 10 CFR part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required.

This final rule is in accordance with the NRC's policy to incorporate by reference in § 50.55a new editions of the ASME BPV and OM Codes to provide updated rules for construction and inspecting components and testing pumps, valves, and dynamic restraints (snubbers) in light-water nuclear power plants. The ASME Codes are national voluntary consensus standards and are required by the NTTAA to be used by Government agencies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. The rule does not significantly increase the probability or consequences of accidents, no changes are being made in the types of effluents that may be released offsite, and there is no significant increase in public radiation exposure. This rule does not involve non-radiological plant effluents and has no other environmental impact. Therefore, no significant non-radiological impacts are associated with this action.

The determination of this environmental assessment is that there is no significant effect on the quality of the human environment from this action.

This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0264.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the OMB has not found it to be a major rule as defined in the Congressional Review Act.

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or is otherwise impractical. In this rule, the NRC is continuing to use the ASME BPV and OM Codes by incorporating by reference the 2021 Edition of the BPV Code and the 2022 Edition of the OM Code. The ASME Code editions constitute voluntary consensus standards, in which all interested parties (including the NRC and licensees of nuclear power plants) participate.

The NRC is incorporating by reference two recent editions to the ASME Codes for nuclear power plants: 2021 Edition of the American Society of Mechanical Engineers Boiler and Pressure Vessel Code and the 2022 Edition of the American Society of Mechanical Engineers Operation and Maintenance of Nuclear Power Plants, Division 1, OM Code: Section IST, for nuclear power plants. As described in the “Background” and “Discussion” sections of this document, these materials contain standards for the design, fabrication, and inspection of nuclear power plant components.

The NRC is required by law to obtain approval for incorporation by reference from the Office of the Federal Register (OFR). The OFR's requirements for incorporation by reference are set forth in 1 CFR part 51. On November7, 2014, the OFR adopted changes to its regulations governing incorporation by reference (79 FR 66267). The OFR regulations require an agency to discuss, in the preamble of the final rule, the ways that the materials it incorporates by reference are reasonably available to interested parties and how interested parties can obtain the materials. The discussion in this section complies with the requirement for final rules as set forth in § 51.5(b)(2).

The NRC considers “interested parties” to include all potential NRC stakeholders, not only the individuals and entities regulated or otherwise subject to the NRC's regulatory oversight. These NRC stakeholders are not a homogenous group but vary with respect to the considerations for determining reasonable availability. Therefore, the NRC distinguishes between different classes of interested parties for the purposes of determining whether the material is “reasonably available.” The NRC considers the following to be classes of interested parties in NRC rulemakings with regard to the material to be incorporated by reference:

• Individuals and small entities regulated or otherwise subject to the NRC's regulatory oversight (this class also includes applicants and potential applicants for licenses and other NRC regulatory approvals) and who are subject to the material to be incorporated by reference by rulemaking. In this context, “small entities” has the same meaning as a “small entity” under § 2.810.

• Large entities otherwise subject to the NRC's regulatory oversight (this class also includes applicants and potential applicants for licenses and other NRC regulatory approvals) and who are subject to the material to be incorporated by reference by rulemaking. In this context, “large entities” are those that do not qualify as a “small entity” under § 2.810.

• Non-governmental organizations with institutional interests in the matters regulated by the NRC.

• Other Federal agencies, States, local governmental bodies (within the meaning of § 2.315(c)).

• Federally recognized and State-recognized  3 Indian Tribes.

• Members of the public ( i.e., individual, unaffiliated members of the public who are not regulated or otherwise subject to the NRC's regulatory oversight) who may wish to gain access to the materials that the NRC is incorporate by reference by rulemaking in order to participate in the rulemaking process.

The 2021 Edition of the ASME BPV Code and the 2022 Edition of the ASME OM Code may be viewed, by appointment, at the Technical Library, which is located at Two White Flint, 11545 Rockville Pike, Rockville, Maryland 20852. You may submit your request to the Technical Library via email at Library.Resource@nrc.gov between 8 a.m. and 4 p.m. eastern time, Monday through Friday, except Federal holidays. In addition, as described in Section XVII of this document, documents related to this final rule are available online in the NRC's ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html.

Interested parties may purchase a copy of the ASME materials from ASME at Three Park Avenue, New York, NY 10016, or at the ASME website https://www.asme.org/shop/standards. The materials are also accessible through third-party subscription services such as Accuris IHS (15 Inverness Way East, Englewood, CO 80112; https://store.accuristech.com (formerly https://global.ihs.com )) and Thomson Reuters Techstreet (3916 Ranchero Dr., Ann Arbor, MI 48108; https://store.accuristech.com (formerly https://www.techstreet.com )). The purchase prices for individual documents range from $325 to $720, and the cost to purchase all documents is approximately $9,000.

For the class of interested parties constituting members of the public who wish to gain access to the materials to be incorporated by reference in order to participate in the rulemaking, the NRC recognizes that the $9,000 cost may be so high that the materials could be regarded as not reasonably available for purposes of commenting on this rulemaking, despite the NRC's actions to make the materials available at the NRC's PDR. Accordingly, the NRC requested that ASME consider enhancing public access to these materials during the public comment period. On March 2, 2023, the ASME agreed to make the materials available online in a read-only electronic access format during the public comment period (ML23068A033).

During the public comment period, the ASME made publicly available the two editions of the ASME Codes for nuclear power plants that the NRC proposed to incorporate by reference. These materials were available publicly in a read-only format at the ASME website, https://go.asme.org/NRC-ASME.

The materials are available to all interested parties in multiple ways and in a manner consistent with their interest in this final rule. Therefore, the NRC concludes that the materials the NRC is incorporating by reference in this final rule are reasonably available to all interested parties.

The NRC will not be issuing guidance for this final rule. The ASME BPV Code and OM Code provide direction for the performance of activities to satisfy the Code requirements for design, inservice inspection, and inservice testing of nuclear power plant structures, systems, and components. In addition, the NRC provides guidance in this document for the implementation of the new conditions on the ASME BPV Code and OM Code, as necessary. The NRC has a number of SRPs that provide guidance to NRC reviewers and make communication and understanding of NRC review processes available to members of the public and the nuclear power industry. NUREG-0800, “Review of Safety Analysis Reports for Nuclear Power Plants,” has numerous sections which discuss implementation of various aspects of the ASME BPV Code and OM Code ( e.g., Sections 3.2.2, 3.8.1, 3.8.2, 3.9.3, 3.9.6, 3.9.7, 3.9.8, 3.13, 5.2.1.1, 5.2.1.2, 5.2.4, and 6.6). The NRC also publishes regulatory guides and generic communications ( i.e., regulatory issue summaries and information notices) to communicate and clarify NRC technical or policy positions on regulatory matters which may contain guidance relative to this final rule.

Revision 3 of NUREG-1482, “Guidelines for Inservice Testing at Nuclear Power Plants,” provides guidance for the development and implementation of IST programs at nuclear power plants (ML20202A473). With direction provided in the ASME BPV and OM Codes, and guidance in this document, the NRC has determined that preparation of a separate guidance document is not necessary for this update to § 50.55a. However, the NRC will consider preparing a revision to NUREG-1482 in the future to address the latest edition of the ASME OM Code incorporated by reference in § 50.55a.

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 50:

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 modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System (NAS).

The FAA identified a safety issue with similar sounding route point names, the DAINA, WA, WP and the DIANN, WA, Fix, located within five miles of each other, have contributed to communications errors resulting from the similar-sounding route point names in radio communications. To remedy this, the FAA is changing the name of the DAINA, WA, WP to the ZAGGS, WA, WP. As a result, the FAA is amending the description of T-328 to incorporate the name change.

United States Area Navigation routes (T-routes) are published in paragraph 6001 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 amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending RNAV route T-328, changing the name of the DAINA, WA, WP to the ZAGGS, WA, WP in the description of RNAV Route T-328.

This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending RNAV Routes T-328 by changing the name of the DAINA, WA, WP, to the ZAGGS, WA, WP qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

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 establishes Class E airspace to support IFR operations at Akiachak Airport, AK.

The FAA published a notice of proposed rulemaking for Docket No. FAA-2024-1076 in the Federal Register (89 FR 46041; May 28, 2024), proposing to establish Class E airspace at Akiachak Airport, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class E5 airspace areas are published in paragraph 6005 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 amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by establishing Class E airspace beginning at 700 feet above the surface at Akiachak Airport, AK, to contain departing aircraft until reaching 1,200 feet above the surface and arriving aircraft below 1,500 feet above the surface. The airspace is centered on the Akiachak Airport reference point, with a 6.5-mile radius to encompass the diverse departure environment.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

In consideration of the foregoing, the Federal Aviation Administration amends 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 modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA 2024-0697 in the Federal Register (89 FR 20880; March 26, 2024), proposing to amend V-477 in the vicinity of Ambler, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Alaskan VOR Federal airways are published in paragraph 6010(b) 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 amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending Alaskan Federal Airway V-477. The airspace action is described below.

V-477: As amended, Alaskan Federal Airway V-477 extends between the Galena, AK, VOR/Distance Measuring Equipment (DME), the Huslia, AK, VOR/DME and the Selawik, AK, VOR/DME.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending Alaskan VOR Federal Airway V-477 in the vicinity of Ambler, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

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 modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA 2024-0438 in the Federal Register (89 FR 26796; April 16, 2024), proposing to amend T-399 in the vicinity of Clear, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received expressing concerns outside of the scope of this action and did not mention any issues relating to air traffic services and/or this route amendment. The commentor included supplementary references that do not apply to air traffic services and are neither in support of, nor contrary to this action.

United States Area Navigation Routes are published in paragraph 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 amends the current version of that order, FAA Order JO 7400.11H, dated July 31, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

The FAA is amending 14 CFR part 71 to amend RNAV Route T-399 in the vicinity of Clear, AK. This amendment will increase the lateral separation between the RNAV route and Restricted Area R-2206. Specifically, the SEAHK, AK, WP (waypoint) is being relocated approximately 2.3 NM (nautical mile) west from its current location. The SEAHK WP is also being renamed to the WHYTT, AK, WP.

T-399: T-399 extends between the Talkeetna, AK (TKA), Very High Frequency Omnidirectional Range/Distance Measuring Equipment (VOR/DME) and the Nenana, AK (ENN), VOR/Tactical Air Navigation (VORTAC). This rule also adds the route point EVIEE to the route description as explained in the NPRM.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending T-399 in the vicinity of Clear, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

In consideration of the foregoing, the Federal Aviation Administration amends 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 modifies the Air Traffic Service (ATS) route structure as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

The FAA published a NPRM for Docket No. FAA 2023-1957 in the Federal Register (88 FR 68004; October 3, 2023), proposing to amend J-133 and establish Q-801 in the vicinity of Anchorage, AK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

The NPRM published for Docket No. FAA-2023-1957 in the Federal Register (88 FR 68004; October 3, 2023) contained errors in the regulatory text. The regulatory text in the NPRM listed the route points within Canadian airspace. The NPRM should not have listed the route points with Canadian airspace. These route points have been removed from the regulatory text in this final rule. Additionally, the route point FROZN, listed in the NPRM, has been renamed to CSMOS. Also, in the proposal section of the NPRM there is a reference to the route point MOCHA. The name of this route point is being changed to MOCKA. The changes to the route point names only impact the name of the route point and not the location.

Jet Routes are published in paragraph 2004 and Canadian Area Navigation Routes are published in paragraph 2007 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 amends the current version of that order, FAA Order JO 7400.11H, dated July 31, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

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

This action amends 14 CFR part 71 by amending Jet Route J-133 and establishing Canadian RNAV route Q-801 in United States airspace. NAV CANADA is amending RNAV route Q-801 in their airspace to ensure continuity and cross-border connectivity. The Air Traffic Service (ATS) route actions are described below.

J-133: Jet route J-133 extends between Galena, AK, VOR/DME and Anchorage, AK, VOR/DME.

Q-801: Q-801 extends between the HARPR, OR, WP and the CYVIC, WA, WP and between the EEVER, AK, Fix and the Anchorage, AK, VOR/DME.

The FAA has determined that this 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 only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this airspace action of amending Jet Route J-133 and the establishment of Area Navigation Route Q-801 in the vicinity of Anchorage, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5k, which categorically excludes from further environmental review the publication of existing air traffic control procedures that do not essentially change existing tracks, create new tracks, change altitude, or change concentration of aircraft on these tracks. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

This rule amends 14 CFR part 97 by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The applicable FAA Forms are 8260-3, 8260-4, 8260-5, 8260-15A, 8260-15B, when required by an entry on 8260-15A, and 8260-15C.

The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers or aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPS, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Air Missions (NOTAM) as an emergency action of immediate flights safety relating directly to published aeronautical charts.

The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making some SIAPs effective in less than 30 days.

The FAA has determined that this 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

This rule amends 14 CFR part 97 by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Air Missions (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, pilots do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary. This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

The material incorporated by reference is publicly available as listed in the ADDRESSES section.

The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

The FAA has determined that this 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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, pursuant to the authority delegated to me, 14 CFR part 97 is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

The Commission is adopting new 17 CFR 270.3c-7 (“rule 3c-7”) under the Investment Company Act.

The Commission is adopting final rule 3c-7 to adjust for inflation the dollar threshold used in defining a “qualifying venture capital fund” under the Investment Company Act and to allow the Commission to make subsequent inflation adjustments by order according to the rule.

Section 3(a) of the Investment Company Act defines the term “investment company” for purposes of the Act, and section 3(c)(1) provides certain exclusions from that definition. 1 Section 504 of EGRRCPA amended section 3(c)(1) of the Investment Company Act by excluding “qualifying venture capital funds” from the investment company definition. 2 Section 504 of EGRRCPA also added new Investment Company Act section 3(c)(1)(C), defining a “qualifying venture capital fund” as “a venture capital fund that has not more than $10,000,000 in aggregate capital contributions and uncalled committed capital.”  3 The statutory definition requires this $10,000,000 threshold “be indexed for inflation once every five years by the Commission, beginning from a measurement made by the Commission on a date selected by the Commission, rounded to the nearest $1,000,000.”  4

Accordingly, in February 2024, the Commission proposed new rule 3c-7 under the Investment Company Act to implement these requirements. 5 The Commission proposed to use December 2023 as the current measurement date and proposed adjusting the current dollar threshold for determining what constitutes a qualifying venture capital fund under section 3(c)(1)(C) of the Act to $12,000,000. Additionally, to implement the future statutorily required inflation adjustments, the proposed rule included provisions that would allow the Commission to make future inflation adjustments by order, according to the methodology described in the rule.

We received two comment letters that addressed the specifics of the proposal. 6 Those commenters were generally supportive. 7 They described the importance of implementing inflation adjustments for determining the financial thresholds applicable to qualifying venture capital funds and supported the proposed procedures for implementing future inflation adjustments.

Pursuant to section 3(c)(1)(C) of the Act and section 504 of EGRRCPA, we are adopting as proposed rule 3c-7 to update for inflation the dollar threshold for defining a “qualifying venture capital fund” under section 3(c)(1)(C) of the Act. As proposed, the final rule also provides that the Commission will make future inflation adjustments by order every five years and specifies how those adjustments will be determined.

Pursuant to EGRRCPA, final rule 3c-7(a) adjusts for inflation the dollar threshold for purposes of defining a qualifying venture capital fund under section 3(c)(1)(C) of the Investment Company Act. 8 Substantially as proposed, final rule 3c-7(a) uses December 2023 as the current measurement date and adjusts the dollar threshold to $12,000,000 or, following November 1, 2029 ( i.e., approximately five years after the effective date of this rule), the dollar amount specified in the most recent order issued by the Commission in accordance with this final rule and as published in the Federal Register . 9

As proposed, this revised dollar threshold takes into account the effects of inflation by reference to the historic and current levels of the Personal Consumption Expenditures Chain-Type Price Index (“PCE Index”), 10 which is published by the Department of Commerce. 11 The PCE Index is often used as an indicator of inflation in the personal sector of the U.S. economy, 12 and the Commission routinely has used the PCE Index in similar contexts in Commission rules, and it is also used in provisions of the federal securities laws. 13 We are using the PCE Index to calculate inflation adjustments for this rulemaking because the methodology and scope of the PCE Index, which considers both urban and rural households and expenditures made on their behalf by third parties, reflects a broad sector of the U.S. economy and in light of the additional considerations discussed in the Economic Analysis. As discussed below, the scope of the PCE Index, covering all households in America, is more relevant to the affected parties of this final rule than is the scope of the CPI-U, which only reflects urban households, because persons in both rural and urban areas in America can invest in venture capital funds and can be stakeholders in firms that receive venture capital funding. 14 Additionally, the PCE Index incorporates category weights on a quarterly basis, and incorporates multiple surveys of businesses, some of which are government mandated and carry fines for nonresponse. No commenters disagreed with the use of the PCE Index.

As proposed, final rule 3c-7(b) provides that the dollar threshold for qualifying venture capital funds shall be adjusted for inflation by order of the Commission every five years. 15 Also as proposed, final rule 3c-7(b) specifies the PCE Index (or any successor index thereto) as the inflation index used to calculate future inflation adjustment of the dollar threshold in the rule. 16 We are using the PCE Index for these updates for the same reasons we are using the PCE Index for the proposed initial adjustment. 17 One commenter supported the proposal's establishment of clear criteria for future inflation adjustments. 18 Another commenter observed that the proposal's provisions regarding future inflation adjustments were helpful because they would allow for simple recalculations going forward without the need for a burdensome rule-making process. 19

As proposed, because the rule implements a required inflation adjustment to an existing statutory exclusion from regulation, we are not including a compliance period or extended effective date for final rule 3c-7. 20 Reliance on section 3(c)(1) is voluntary and a fund that newly meets the definition of a qualifying venture capital fund under rule 3c-7 can choose whether to rely on the exclusion provided by section 3(c)(1) for such funds. Final rule 3c-7 will be effective September 30, 2024.

Pursuant to the Congressional Review Act, 21 the Office of Information and Regulatory Affairs has designated final rule 3c-7 as not a “major rule” as defined by U.S.C. 804(2). If any of the provisions of this rule, or the application thereof to any person or circumstance, is held to be invalid, such invalidity shall not affect other provisions or application of such provisions to other persons or circumstances that can be given effect without the invalid provision or application.

The Commission is sensitive to the economic effects of final rule 3c-7. To comply with the inflation adjustment required under EGRRCPA, we are adopting rule 3c-7 to state the current threshold for qualifying venture capital funds as indexed for inflation. This rule adjusts the threshold in the definition of the term “qualifying venture capital fund” from $10,000,000 to $12,000,000 in response to inflation as measured by the PCE Index and allows the Commission to perform future statutorily required inflation adjustments using the same methodology.

For purposes of analyzing the economic effects of the rule, we use as our baseline the current venture capital fund market and the current regulatory framework. To be excepted from registration under section 3(c)(1) of the Act, an issuer (including a venture capital fund) must, among other things, either have no more than 100 beneficial owners, or in the case of a qualifying venture capital fund, which currently is defined as having no more than $10,000,000 in aggregate capital contributions and uncalled committed capital, have no more than 250 beneficial owners.

An adviser to a venture capital fund that is either registered with the Commission or is an “exempt reporting adviser” is required to file reports on Form ADV. 22 Based on this data, there are at least 36,819 venture capital funds, of which at least 25,822 are qualifying venture capital funds as of June 2024. 23 Of the qualifying venture capital funds, 989 have more than 100 beneficial owners and so could not use the section 3(c)(1) exclusion absent meeting the current $10,000,000 asset threshold. Increasing the asset threshold in the definition of the term “qualifying venture capital fund” will increase the number of venture capital funds that can be qualifying venture capital funds. Specifically, we estimate that there are approximately five venture capital funds that are not currently excluded from registration under section 3(c)(1) but that could be defined as a qualifying venture capital fund after the threshold is adjusted for inflation to $12,000,000. 24

Incentives for funds to change their behaviors to stay within the regulatory definition of a “qualifying venture capital fund” will strengthen or be mitigated depending on the specific circumstances of the fund. When the threshold is increased to $12,000,000, a fund near the current $10,000,000 threshold in aggregate capital contributions and uncalled capital commitments, and a number of beneficial owners above 100 but well below 250, will have additional room to raise capital while remaining a qualifying venture capital fund. Accordingly, it will have weaker incentives to prevent growth until its aggregate capital contributions and uncalled capital commitments approach the new threshold. Funds near an anticipated future adjusted threshold of aggregate capital contributions and uncalled capital commitments could have a greater incentive to maintain a balance below this future threshold and maintain fewer than 250 beneficial owners.

While the immediate impacts described above are likely to be meaningful for funds near the existing and future adjusted thresholds, the overall effect of the rule on the venture capital fund market will be minimal. Commenters who discussed the effects of inflation agreed that the inflation adjustment should maintain the scope of funds that can be defined as a qualifying venture capital fund, thereby preserving the economic effects associated with the original provision. 25

Relatively few funds will be directly impacted by the adopted change in the asset threshold. Accordingly, the rule will not substantively impact efficiency, competition, or capital formation in the near term. In addition, over time, as future inflation adjustments are made, the rule will preserve the costs and benefits associated with the original provision by maintaining a consistent threshold standard. At the margin, the rule may encourage market competition by lowering barriers to entry for emerging venture capital managers. Specifically, it could lower compliance costs for eligible funds by exempting them from certain regulatory requirements such as registration as an investment company and make it easier for their managers to raise smaller amounts of capital from a larger number of accredited investors.

Absent the periodic inflation adjustments that the rule will implement, the capital threshold for qualifying venture capital funds would have, over time, shrunk in real terms. This could have either resulted in higher compliance costs for these types of funds—because these funds would be newly required to register under the Act—or caused the managers of these funds to change how they operate to avoid or mitigate these costs. 26 Whether managers changed their behavior or not, the amount of money invested in qualifying venture capital funds would likely have decreased, and at least some of the capital that would otherwise have been allocated to these funds would likely have gone to funds that are not excluded from the Act and thus would have received the investor protection benefits provided by the Act.

Because the rule will implement the statutory inflation adjustments mandated by EGRRCPA, the only reasonable alternative to be considered relates to the choice of inflation index to be used. As discussed in the proposal, 27 two indexes were considered—the PCE Index and CPI-U. These measures differ because of different scopes and different methodologies. CPI-U reflects only expenditures made directly by urban households, whereas the PCE Index considers both urban and rural households and considers expenditures made on their behalf by third parties, such as employer-paid health insurance. The scope of the PCE Index, covering all American households, is more relevant to the affected parties of this final rule than is the scope of the CPI-U, which only reflects urban households, because all Americans, not just those in urban areas, can invest in venture capital funds and can be stakeholders in firms that receive venture capital funding. The PCE Index also better captures substitution effects since its category weights update quarterly whereas those of the CPI-U update annually. Category weights reflect the quantity of goods and services purchased in a particular category. As some determinants of prices change, consumers will substitute purchases between categories. Category weights that change less frequently will less accurately capture these substitution effects. The indexes' survey methodologies also differ: CPI-U relies on two voluntary consumer surveys whereas the PCE Index incorporates multiple surveys of businesses, some of which are government mandated and carry fines for nonresponse. No commenters suggested that the CPI-U or any other index would be a more appropriate choice.

Final rule 3c-7 does not contain a “collection of information” requirement within the meaning of the Paperwork Reduction Act of 1995 (“PRA”), nor does it create any new filing, reporting, recordkeeping, or disclosure reporting requirements. 28 Accordingly, the PRA is not applicable. 29

The Commission certified, pursuant to section 605(b) of the Regulatory Flexibility Act of 1980 (“RFA”)  30 that proposed rule 3c-7 would not, if adopted, have a significant economic impact on a substantial number of small entities. The Commission included this certification in section V of the Proposing Release. Commenters did not respond to the Commission's requests for comment regarding the Commission's certification, and we continue to believe that final rule 3c-7 will not have a significant economic impact on a substantial number of small entities. 31 As discussed in the Proposing Release, based on a review of Form ADV filings, we expect few small entities would be affected by rule 3c-7's inflation adjustment provisions. 32 Accordingly, we certify that the final rule will not have a significant impact on a substantial number of small entities.

The Commission is adopting new rule 3c-7 under the authority set forth in the Investment Company Act, particularly sections 3 and 38 thereof [15 U.S.C. 80a et seq. ] and the Economic Growth, Regulatory Relief, and Consumer Protection Act of 2018, particularly section 504 thereof [Pub. L. 115-174, 132 Stat. 1296].

The Appropriations Act, enacted on December 20, 2019, established and made immediately effective  1 a new Federal minimum age for the sale of tobacco products (Pub. L. 116-94, div. N, tit. I, subt. F, sec. 603, 133 Stat. 2534, 3123-24). Specifically, the Appropriations Act amended section 906(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387f(d)) (FD&C Act) to make it unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age. The Appropriations Act also directed the Food and Drug Administration (FDA, the Agency, or we) to issue a final rule to amend its regulations to update the minimum age-related requirements in subpart B of part 1140 (21 CFR part 1140).

As required by the Appropriations Act, FDA is issuing this final rule to make conforming changes to its regulations to: (1) reflect the increased minimum age of sale for cigarettes, 2 smokeless tobacco, and covered tobacco products from 18 to 21 years of age; (2) increase the minimum age for verification by means of photographic identification for cigarettes, smokeless tobacco, and covered tobacco products from under the age of 27 to under the age of 30; (3) increase the minimum age of persons who may be present or permitted to enter at any time for facilities that maintain vending machines to sell cigarettes, smokeless tobacco, or covered tobacco products from 18 to 21 years of age; and (4) increase the minimum age of persons who may be present or permitted to enter at any time for facilities that maintain self-service displays to sell cigarettes or smokeless tobacco from 18 to 21 years of age. This final rule ensures FDA's regulations align with current Federal law as it pertains to age restrictions and tobacco products, reducing youth access to such products and providing clarity to consumers, retailers, and manufacturers.

FDA is amending part 1140 to apply the new Federal minimum age requirements for the sale of tobacco products to cigarettes, smokeless tobacco, and covered tobacco products.

The Family Smoking Prevention and Tobacco Control Act (Tobacco Control Act) was enacted on June 22, 2009, amending the FD&C Act and providing FDA with the authority to regulate tobacco products (Pub. L. 111-31, 123 Stat. 1776). In enacting the Tobacco Control Act, Congress found, among other things, that the use of tobacco products is a pediatric disease, virtually all new users of tobacco products are under 18 years of age, and that tobacco company documents indicate that young people are an important and often crucial segment of the tobacco market (section 2(1), (4), (20), (23), (24) of the Tobacco Control Act) (21 U.S.C. 387 note). Accordingly, Congress directed FDA to reissue, among others, provisions contained in its 1996 final rule (61 FR 44396, August 28, 1996) that restricted youth access to tobacco products (section 102 of the Tobacco Control Act) (21 U.S.C. 387a-1).

Specifically, section 102 of the Tobacco Control Act required FDA to publish a final rule regarding cigarettes and smokeless tobacco identical in its provisions to FDA's 1996 final rule (61 FR 44396), with certain specified exceptions. Consistent with section 102 of the Tobacco Control Act, FDA published a final rule adding a new part 1140 to title 21, that established restrictions on the sale and distribution of cigarettes and smokeless tobacco (75 FR 13225, March 19, 2010).

Among other things, the rule prohibited the sale of cigarettes and smokeless tobacco to any person younger than 18 years of age (§ 1140.14(a)); required retailers to verify by means of photographic identification that no person purchasing cigarettes or smokeless tobacco was younger than 18 years of age (§ 1140.14(b)(1)), but did not require such verification for any person over the age of 26 (§ 1140.14(b)(2)); and prohibited the sale of cigarettes and smokeless tobacco through vending machines and self-service displays, except in facilities where individuals younger than 18 years of age were not present or permitted at any time (§ 1140.16(c)).

The final rule also set out definitions for “cigarette,” “cigarette tobacco,” and “smokeless tobacco” that mirrored those definitions set out at section 900 of the FD&C Act (21 U.S.C. 387). These terms were (and continue to be) defined in § 1140.3 as follows:

• Cigarette means a product that is a tobacco product; and meets the definition of the term “cigarette” in section 3(1) of the Federal Cigarette Labeling and Advertising Act; and includes tobacco, in any form, that is functional in the product, which, because of its appearance, the type of tobacco used in the filler, or its packaging and labeling, is likely to be offered to, or purchased by, consumers as a cigarette or as roll-your-own tobacco.

• Cigarette tobacco means any product that consists of loose tobacco that is intended for use by consumers in a cigarette. Unless otherwise stated, the requirements applicable to cigarettes under this chapter shall also apply to cigarette tobacco.

• Smokeless tobacco means any tobacco product that consists of cut, ground, powdered, or leaf tobacco and that is intended to be placed in the oral or nasal cavity.

Products that meet these definitions are generally subject to the restrictions in part 1140.

On May 10, 2016, FDA issued a final rule deeming all products meeting the statutory definition of “tobacco product,” excluding accessories of newly deemed tobacco products, to be subject to chapter IX of the FD&C Act and its implementing regulations (Deeming Rule) (81 FR 28974; codified at 21 CFR part 1100). Under section 906(d) of the FD&C Act (21 U.S.C. 387f(d)), the Deeming Rule also established age and identification restrictions for “covered tobacco products,” defined as any tobacco product deemed to be subject to the FD&C Act under § 1100.2 (21 CFR 1100.2), but excluding any component or part that is not made or derived from tobacco (81 FR 28974 at 29103, codified at 21 CFR 1140.3). 3 Specifically, the Deeming Rule amended § 1140.14 to add, among others, provisions prohibiting retailers from selling covered tobacco products to any person younger than 18 years of age, requiring age verification by means of photographic identification for any person purchasing covered tobacco products under the age of 27, and prohibiting vending machine sales of covered tobacco products in facilities where persons younger than 18 years of age were present or permitted to enter at any time.

Section 603(a) of the Appropriations Act amended chapter IX of the FD&C Act and established a new Federal minimum age of 21 years for the sale of tobacco products. Specifically, section 603(a) of the Appropriations Act added a new provision, that became effective immediately, to section 906(d) of the FD&C Act to make it unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age. 4

While section 603(a) of the Appropriations Act refers to tobacco products in general, section 603(b) does not. As a result, this rule does not expand the scope of the products subject to the age-related restrictions, and instead simply increases the age thresholds for those restrictions. Section 603(b) of the Appropriations Act directed FDA to issue “a final rule to update the regulations issued under chapter IX of the [FD&C] Act (21 U.S.C. 387 et seq. ) as appropriate” to (and only to) “carry out the amendments made by subsection (a).” The provision specified that such updates included updating all references to persons younger than 18 years of age in part 1140, subpart B and updating the relevant age verification requirements in part 1140 to require age verification for individuals under the age of 30. Thus, the regulations Congress directed FDA to update are the minimum age of sale restrictions in part 1140, subpart B and the related age verification restrictions in part 1140, all of which solely apply to cigarettes, smokeless tobacco, and covered tobacco products. FDA understands section 603(b) to direct FDA only to increase these age restrictions and not simultaneously to extend part 1140's age restrictions to apply to additional tobacco products. Section 603(b) identified two specific conforming changes; both called upon FDA to modify particular age restrictions within part 1140—age restrictions that, as noted, apply only to cigarettes, smokeless tobacco, and covered tobacco products. In contrast to section 603(a) of the Appropriations Act, section 603(b) did not use the term “tobacco product,” and neither of the age-related conforming changes identified in section 603(b) suggested that Congress expected FDA to apply the identified restrictions to all tobacco products. The legislative history of the Appropriations Act does not address section 603, and thus does not support a different conclusion. As such, this rule makes corresponding amendments to the relevant age restrictions in part 1140 but does not expand the range of products subject to such restrictions.

Section 603 of the Appropriations Act amends section 906(d) of the FD&C Act to make it unlawful for any retailer to sell a tobacco product to any person younger than 21 years of age. Section 603 directs the Secretary to issue a final rule to update the regulations issued under chapter IX of the FD&C Act, including updating all references to persons younger than 18 years of age in part 1140, subpart B and updating relevant age verification requirements under part 1140 to require age verification for individuals under the age of 30. Under section 603(b)(1)(B), this final rule is deemed to be in compliance with all applicable provisions of chapter 5 of title 5, U.S. Code and all other provisions of law relating to rulemaking procedures. A proposed rule under 5 U.S.C. 553(b) is therefore neither required nor necessary.

Consistent with the requirements of section 603 of the Appropriations Act, this rule updates part 1140 to: (1) increase the minimum age of sale for cigarettes, smokeless tobacco, and covered tobacco products from 18 to 21 years of age; (2) increase the minimum age for verification by means of photographic identification for cigarettes, smokeless tobacco, and covered tobacco products from under the age of 27 to under the age of 30; (3) increase the minimum age of persons who may be present or permitted to enter at any time for facilities that maintain vending machines to sell cigarettes, smokeless tobacco, or covered tobacco products from 18 to 21 years of age; and (4) increase the minimum age of persons who may be present or permitted to enter at any time for facilities that maintain self-service displays to sell cigarettes or smokeless tobacco from 18 to 21 years of age.

Specifically, in this final rule, FDA is revising the regulations as follows:

• In the heading to subpart B, by replacing the number “18” with the number “21”;

• In § 1140.14(a)(1), (a)(2)(i), (b)(1), (b)(2)(i), and (b)(3), by replacing the number “18” with the number “21”;

• In § 1140.14(a)(2)(ii) and (b)(2)(ii), by replacing the number “26” with the number “29”; and

• In § 1140.16(c)(2)(ii), by replacing the number “18” with the number “21”.

We have examined the impacts of the final rule under Executive Order (E.O.) 12866, E.O. 13563, E.O. 14094, which direct us to assess all benefits, costs, and transfers of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Rules are “significant” under E.O. 12866 section 3(f)(1) (as amended by E.O. 14094) if they “have an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of [the Office of Information and Regulatory Affairs (OIRA)] for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or tribal governments or communities.” OIRA has determined that this final rule is a significant regulatory action under E.O. 12866.

As directed by the Further Consolidated Appropriations Act, 2020, this final rule issued under section 603(b)(1)(B) is “deemed to be in compliance with all applicable provisions of chapter 5 of title 5, United States Code and all other provisions of law relating to rulemaking procedures.” This exempts this rulemaking from such provisions of law as the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1501 et seq., Pub. L. 104-4), the Congressional Review Act/Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801, Pub. L. 104-121), and Regulatory Flexibility Act (5 U.S.C. 601-612).

In cases where the relevant statutory provisions are entirely self-implementing even in the absence of the regulation, or the regulatory action is one “over which an agency clearly has essentially no regulatory discretion”, OMB's Circular A-4 allows for the use of a “with-statute” baseline. A with-statute baseline means that an Agency is only tasked to assess the impacts of the rule that are up to its discretion. Section 603(b) of the Appropriation Act charges FDA with publishing “in the Federal Register a final rule to update the regulations issued under chapter IX of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 387 et seq. )” to make edits to conform the regulations to the statutory changes. As FDA “clearly has essentially no regulatory discretion” over any of the provisions of this rule, we do not assess costs, benefits, or transfers for this final rule.

This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

We have analyzed this final rule in accordance with the principles set forth in E.O. 13132. We have determined that the rule does not contain policies that 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. Accordingly, we conclude that the rule does not contain policies that have federalism implications as defined in the E.O. and, consequently, a federalism summary impact statement is not required.

We have analyzed this final rule in accordance with the principles set forth in E.O. 13175. FDA received a request for Tribal consultation, but the Agency did not consider consultation on this regulation to be practicable. As previously discussed, the Appropriations Act established and made immediately effective a new Federal minimum age of 21 for the sale of tobacco products. The Appropriations Act also directed FDA to issue this final rule to make conforming changes to its regulations. Accordingly, a Tribal summary impact statement is not required.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 1140 is amended as follows:

The final regulations (TD 9999) that are the subject of this correction are under sections 170 and 706 of the Code.

Accordingly, FR Doc. 2024-13844 (TD 9999) appearing on page 54284 in the Federal Register on Friday, June 28, 2024, is corrected to read:

1. On page 54288, in the third column, in the sixth line of footnote 2, the language “determining relative basis” is corrected to read “determining relevant basis”.

2. On page 54298, in the third column, the fifth line of the first full paragraph is corrected to read “extremely limited and that ninety”.

3. On page 54309, in the first column, in the fourth line from the bottom of the first partial paragraph the language “1.170A-14(n)” is corrected to read “1.170A-14(n)(4)”.

Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary has delegated the functions and duties in the administration and enforcement of these provisions to the TTB Administrator through Treasury Order 120-01.

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and, once approved, a name and a delineated boundary codified in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions to establish or modify AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon;

• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identities the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from Rebecca Wood, managing member of Premium Vintners, LLC on behalf of Fallbrook Winery and other local vineyard owners and winemakers proposing the establishment of the “San Luis Rey” AVA in San Diego County, California. Premium Vintners, LLC, operates Fallbrook Winery and farms several vineyards within the proposed AVA. The proposed San Luis Rey AVA is located entirely within the established South Coast AVA (27 CFR 9.104) and covers approximately 97,733 acres. There are 44 commercially-producing vineyards covering a total of approximately 256 acres, along with 29 acres of planned vineyards. There are also 23 wineries within the proposed AVA.

According to the petition, the distinguishing features of the proposed San Luis Rey AVA are its topography, climate, and soils. The proposed AVA has low elevations that allow cool marine air from the Pacific Ocean to flow through the region, moderating temperatures. The mean elevation within the proposed AVA is 563 feet, and the average slope angle is 10 degrees. The low elevations and a terrain of gently rolling hills that are open to marine air almost eliminate the spring frosts that can affect vine growth at the beginning of the growing season. The petition also notes that afternoon breezes help to prevent fungal diseases resulting from the morning's low cloud cover.

In the region north of the proposed San Luis Rey AVA, elevations are higher and slope angles are similar to those in the proposed AVA. In the region to the south, average elevations are lower and slope angles are shallower than within the proposed AVA. Also, in the area to the southeast, elevations are higher with steeper slope angles than the proposed AVA. The petition did not provide elevation ranges for the area east of the proposed AVA but did include a graphic indicating higher elevations to the east of the proposed AVA. The Pacific Ocean is west of the proposed AVA, so the petition did not provide distinguishing feature information for this area.

The petition provided climate data, specifically the average annual mean temperature, average annual maximum temperature, average peak ripening and harvest season maximum temperature, and growing degree day  1 (GDD) accumulations for the proposed AVA and surrounding regions. According to the petition, the proposed AVA generally has mild winters and summers with lower maximum temperatures than regions farther inland due to the proposed AVA's proximity to the Pacific Ocean. The petition notes that the proposed AVA has lower average annual mean and maximum temperatures and fewer GDDs than the regions to the north and south. The proposed AVA has a greater number of mean GDDs but lower minimum GDDs and a lower average annual maximum temperature than the area to the southeast. Additionally, the proposed San Luis Rey AVA has lower annual precipitation amounts than the regions to the north and southeast and slightly higher amounts than the region to the south.

The petition notes that nearly 50 percent of the soils in the proposed San Luis Rey AVA are Alfisols soils with high concentrations of essential plant nutrients. Approximately 69 percent of the soils in the proposed AVA are sandy loams that can hold water while draining and aerating well and prevent overly vigorous growth. Soils to the north are 48 percent Alfisols and also contain more Entisols and Mollisols soils than the proposed AVA. To the south, soils are primarily Alfisols but in lower amounts than the proposed AVA. This area also has more Entisols and Mollisols soils than the proposed AVA. To the southeast, soils are 46 percent Alfisols, but contain more Entisols than are found in the proposed AVA.

TTB published a notice of proposed rulemaking (NPRM) (Notice No. 225) in the Federal Register on August 30, 2023 (88 FR 59820), proposing to establish the San Luis Rey AVA. In the NPRM, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The NPRM also compared the distinguishing features of the proposed AVA to the surrounding areas. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA, and for a detailed comparison of the distinguishing features of the proposed AVA to the surrounding areas, see the NPRM.

In the NRPM, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. In addition, given the proposed San Luis Rey AVA's location within the South Coast AVA, TTB solicited comments on whether the evidence submitted in the petition regarding the distinguishing features of the proposed AVA sufficiently differentiates it from the South Coast AVA. Finally, TTB requested comments on whether the geographic features of the proposed AVA are so distinguishable from the South Coast AVA that the proposed San Luis Rey AVA should no longer be part of the established AVA. The comment period closed October 30, 2023.

In response to the NPRM, TTB received one comment. The commenter is a wine reviewer who supported the establishment of the proposed San Luis Rey AVA, stating that its proposed boundaries encompass a subregion with soils compositions, temperature patterns, and acidity profiles that set the proposed AVA apart from neighboring AVAs. The commenter also stated that significant coastal influence on acidity profiles, in particular, invites the planting of grape varieties not otherwise found in the South Coast AVA.

TTB did not receive any comments in response to its question of whether the proposed San Luis Rey AVA is so distinguishable from the established South Coast AVA that the proposed AVA should not be part of the established AVA.

After careful review of the petition and the comment received in response to the NPRM, TTB finds that the evidence provided by the petitioner supports the establishment of the San Luis Rey AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “San Luis Rey” AVA in San Diego County, California, effective 30 days from the publication date of this document.

TTB has also determined that the San Luis Rey AVA will remain part of the established South Coast AVA. As discussed in the NPRM, the proposed AVA shares the marine-influenced climate of the larger South Coast AVA. However, in general, the proposed San Luis Rey AVA has a lower mean elevation and more consistent terrain than the South Coast AVA. Additionally, the three most common soil series in the proposed AVA make up 34.9 percent of the total soils in the proposed AVA, but only comprise 20.3 percent of the total South Coast AVA soils.

See the narrative description of the boundary of the San Luis Rey AVA in the regulatory text published at the end of this final rule.

The petitioner provided the required maps, and they are listed below in the regulatory text. The San Luis Rey AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

With the establishment of the San Luis Rey AVA, its name, “San Luis Rey,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulation clarifies this point. Consequently, wine bottlers using the name “San Luis Rey” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.

The establishment of the San Luis Rey AVA will not affect any existing AVA, and any bottlers using “South Coast AVA” as an appellation of origin or in a brand name for wines made from grapes grown within the South Coast AVA will not be affected by the establishment of this new AVA. The establishment of the San Luis Rey AVA will allow vintners to use “San Luis Rey” and “South Coast AVA” as appellations of origin for wines made primarily from grapes grown within the San Luis Rey AVA if the wines meet the eligibility requirements for these appellations.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866 of September 30, 1993, as amended. Therefore, no regulatory assessment is required.

Vonzella C. Johnson of the Regulations and Rulings Division drafted this final rule.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Preamble acronyms and abbreviations. Multiple acronyms are included in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, BOEM explains the following acronyms here:

Background. The service fees being adjusted in this rulemaking were last adjusted on August 26, 2022 (87 FR 52443). BOEM is adjusting these service fees to reflect inflation since the last update.

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

Entities potentially affected by this final action are holders of oil, gas, and sulfur leases and Right-of-Use and Easement (RUE) grants on the OCS.

In addition to being available in the docket, BOEM will post an electronic copy of the documents related to this final action at: https://www.boem.gov/regulations-and-guidance .

BOEM's regulations at 30 CFR 550.125 and 556.106 provide the authority for BOEM to periodically adjust its service fees according to the Implicit Price Deflator for Gross Domestic Product by publication of a document in the Federal Register . BOEM derives its authority from the Independent Offices Appropriation Act of 1952, 31 U.S.C. 9701, as interpreted by Office of Management and Budget (OMB) Circular No. A-25 Revised (1993). That circular states: “When a service (or privilege) provides special benefits to an identifiable recipient beyond those that accrue to the general public, a charge will be imposed (to recover the full cost to the Federal Government for providing the special benefit, or the market price).”

The service fees in 30 CFR 550.125 and 556.106 were last updated on August 26, 2022 (87 FR 52443). With this action, BOEM is adjusting the service fees to reflect inflation since the last update.

This rule adjusts the service fees in accordance with BOEM's regulations at 30 CFR 550.125 and 556.106. The new 2024 fee amounts are based on an inflation rate of 10.94 percent as calculated by the Implicit Price Deflator for Gross Domestic Product for the 2-year period between 2021 and 2023.

The inflation rate between any 2 years is calculated as the percentage difference between the measure of prices for a designated year ( e.g., 2023) and some previous year ( e.g., 2021). The prices include all new, domestically produced, final goods and services in the economy for the designated year ( e.g., 2023). See the Department of Commerce's Bureau of Economic Analysis (BEA) “Table 1.1.9, Implicit Price Deflators for Gross Domestic Product,” available at https://apps.bea.gov/iTable/?1301=i&1303=13&ReqID=13&isuri=1&step=3 .

The inflation rate was calculated by dividing the deflator from 2023 by the deflator from 2021, and then subtracting one. For example, using the data in the table below from BEA's table 1.1.9 as revised on April 25, 2024, with the base year set to 2021, the inflation multiplier was calculated as (122.273/110.213)−1 = 10.94 percent. A copy of this table is available in the docket.

Table 2 summarizes the change in service fees from 2022 to 2024 using the calculated inflation rate multiplier.

The Administrative Procedure Act (APA) provides that, when an agency, for good cause, finds that “notice and public procedure . . . are impracticable, unnecessary, or contrary to the public interest,” the agency may issue a rule without providing notice and an opportunity for prior public comment. See 5 U.S.C. 553(b). BOEM finds good cause to promulgate this rule without first providing an opportunity for public notice and comment because BOEM has specific authority under existing regulations to periodically adjust its service fees according to the Implicit Price Deflator for Gross Domestic Product by publication of a document in the Federal Register (30 CFR 550.125 and 556.106).

Under the Independent Offices Appropriation Act and OMB Circular No. A-25 Revised (1993), BOEM can adjust service fees to cover its costs. The amount of the fee increase is not subject to BOEM's discretion as it is based on the Implicit Price Deflator, as determined by the U.S. Bureau of Economic Analysis. As such, BOEM finds the publication of a proposed rule and an opportunity for public comment to be unnecessary.

Executive Order (E.O.) 12866, as amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in OMB will review all significant rules. OIRA has determined that this rule is not a significant action under E.O. 12866, as amended by E.O. 14094, sec. 3(f)(1). This rulemaking will not result in an annual effect on the economy of $200 million or more (adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product), nor will it raise any legal or policy issues.

E.O. 13563 reaffirms the principles of E.O. 12866, as amended by E.O. 14094, while calling for improvements in the Nation's regulatory system to promote predictability and reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. E.O. 13563 directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. BOEM has developed this rule in a manner consistent with these requirements.

The RFA, 5 U.S.C. 601-612, requires agencies to analyze the economic impact of regulations when a significant economic impact on a substantial number of small entities is likely and to consider regulatory alternatives that will achieve the agency's goals while minimizing the burden on small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). For the reasons discussed above, BOEM has determined that the APA does not require a proposed rule prior to this final rule. See 5 U.S.C. 553(b). As such, the RFA does not apply to this rulemaking.

The SBREFA, 5 U.S.C. 804(2), requires BOEM to perform a regulatory flexibility analysis, provide guidance, and help small businesses comply with statutes and regulations for major rulemakings. This action is not subject to SBREFA because it will not have an annual effect on the economy of $100 million or more.

The UMRA, 2 U.S.C. 1531-1538, requires BOEM, unless otherwise prohibited by law, to assess the effects of regulatory actions on State, local, and Tribal governments, and the private sector. Section 202 of UMRA generally requires BOEM to prepare a written statement, including a cost-benefit analysis, for each proposed and final rule with “federal mandates” that may result in expenditures by State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. This action does not contain a Federal mandate under UMRA, 2 U.S.C. 1531-1538, that may result in expenditures of $100 million or more for State, local and Tribal governments, in the aggregate, or the private sector in any one year. Accordingly, BOEM is not required to prepare a written statement required under section 202 of UMRA.

This action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.

Executive Order 12630 ensures that government actions affecting the use of private property are undertaken on a well-reasoned basis with due regard for the potential financial impacts imposed by the government. This action does not effect a taking of private property or otherwise have taking implications under E.O. 12630, and therefore a takings implication assessment is not required.

Regulatory actions that 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 are subject to E.O. 13132. Under the criteria in section 1 of E.O. 13132, this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. 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 rule complies with the requirements of E.O. 12988. Specifically, this rule:

(1) Meets the criteria of section 3(a) requiring all regulations to be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(2) Meets the criteria of section 3(b)(2) requiring all regulations to be written in clear language and contain clear legal standards.

Executive Order 13175 defines policies that have Tribal implications as regulations, legislative comments or proposed legislation, and other policy statements or actions that will or may have a substantial direct effect on one or more Indian Tribes, or on the relationship between the Federal Government and one or more Indian Tribes. Additionally, the DOI's consultation policy for Tribal Nations and Alaska Native Claims Settlement Act (ANCSA) Corporations, as described in Departmental Manual part 512 chapter 4, expands on the above definition from E.O. 13175 and requires that BOEM invite Indian Tribes and ANCSA Corporations “early in the planning process to consult whenever a Departmental plan or action with Tribal Implications arises.” BOEM strives to strengthen its government-to-government relationships with Tribal Nations through a commitment to consultation with Tribes, recognition of their right to self-governance and Tribal sovereignty, and honoring BOEM's trust responsibilities for Tribal Nations. BOEM determined that this rule has no substantial direct effects on federally recognized Indian Tribes or ANCSA Corporations and that consultation is not required.

This rule does not contain information collection requirements, and a submission to OMB under the PRA (44 U.S.C. 3501 et seq. ) is not required. BOEM may not conduct or sponsor, and you are not required to respond to, a collection of information unless it displays a currently valid OMB control number.

This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed environmental analysis under NEPA is not required because this final rule is covered by a categorical exclusion (see 43 CFR 46.205). This final rule meets the criteria set forth at 43 CFR 46.210(i) for a Departmental categorical exclusion in that this action is “of an administrative, financial, legal, technical, or procedural nature.” BOEM has also determined that the final rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

In promulgating this rule, BOEM did not conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554, app. C, sec. 515, 114 Stat. 2763, 2763A- 153-154). In accordance with the Data Quality Act, the Department has issued guidance regarding the quality of information that it relies upon for regulatory decisions. This guidance is available at the Department's website at: https://www.doi.gov/ocio/policy-mgmt-support/information-and-records-management/iq .

Under E.O. 13211, BOEM is required to prepare and submit to OMB a “Statement of Energy Effects” for “significant energy actions.” This should include a detailed statement of any adverse effects on energy supply, distribution, or use (including a shortfall in supply, price increases, and increased use of foreign supplies) expected to result from the action and a discussion of reasonable alternatives and their effects. This rule is not a significant energy action under the definition in E.O. 13211, therefore a “Statement of Energy Effects” is not required.

This rule is not a major rule under the CRA (5 U.S.C. 804) because it:

(a) Will not have an annual effect on the economy of $100 million or more;

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and

(c) Will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

This action is taken pursuant to an existing delegation of authority.

For the reasons stated in the preamble, BOEM amends 30 CFR chapter V as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)(B)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable. The Coast Guard did not receive the final details of this swim event until there was insufficient time remaining before the event to publish an NPRM. Thus, delaying the effective date of this rule to wait for a comment period to run would be impracticable because it would inhibit the Coast Guard's ability to protect participants, mariners, and vessels from the hazards associated with this event.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would inhibit the Coast Guard's ability to protect participants, mariners, and vessels from the hazards associated with this event.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70041(a) and 33 CFR 1.05-1. The Captain of the Port Detroit (COTP) has determined that the likely combination of recreation vessels, commercial vessels, and an unknown number of spectators in close proximity to the swim along the water poses extra and unusual hazards to public safety and property. Therefore, the COTP is establishing a special local regulation around the event location to help minimize risks to safety of life and property during this event.

This rule establishes a temporary special local regulation from 5 a.m. through 3:30 p.m. on September 14, 2024. In light of the aforementioned hazards, the COTP has determined that a special local regulation is necessary to protect spectators, vessels, and participants. The special local regulation will encompass the following waterway: all waters of the Detroit River encompassed within the following six points: from 42°05.376′ N, 083°09.027′ W; a line drawn south to point 42°02.459′ N, 083°08.989′ W; a line drawn south east to point 42°00.039′ N, 083°08.417′ W; a line drawn west to point 42°00.024′ N, 083°08.501′ W; a line drawn north west to point 42°02.43′ N, 083°09.308′ W; a line drawn north to point 42°05.374′ N, 083°09.085′ W back to the beginning point. These coordinates are based on the 1984 World Geodetic System (WGS 84).

An on-scene representative of the COTP may permit vessels to transit the area when no swim activity is occurring. The on-scene representative may be present on any Coast Guard, state, or local law enforcement vessel assigned to patrol the event. Vessel operators desiring to transit through the regulated area must contact the Coast Guard Patrol Commander to obtain permission to do so. The COTP or his designated on-scene representative may be contacted via VHF Channel 16 or via telephone at (313) 568-9560.

The COTP or his designated on-scene representative will notify the public of the enforcement of this rule by all appropriate means, including a Broadcast Notice to Mariners and Local Notice to Mariners.

We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-year of the special local regulation. Vessel traffic will be able to safely transit around this special local regulation zone which will impact a small designated area of the Detroit River from 5 a.m. through 3:30 p.m. on September 14, 2024. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the special local regulation and the rule allows vessels to seek permission to enter the area.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the special local regulation may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation lasting almost eleven hours that will prohibit entry into a designated area. It is categorically excluded from further review under paragraph L61 of appendix A, table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places or vessels.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard will enforce special local regulations in 33 CFR 100.1302 for the Portland Dragon Boat Races regulated area, from 8 a.m. to 5 p.m., each day, from September 7 through 8, 2024. This action is being taken to provide for the safety of life on navigable waterways during this 2-day event. Our regulations for marine events within the Thirteenth District, § 165.1302, specifies the location of the regulated area for the Portland Dragon Boat Races, which encompasses portions of the Willamette River, extending from Tom McCall Waterfront Park between the Hawthorne and Marquam Bridges, Portland, OR.

During the enforcement periods, as reflected in § 100.1302(a) through (e), if you are the operator of a vessel in the regulated area you must comply with the lawful directions from the Patrol Commander or any official patrol vessel. Vessels may not transit the regulated areas without approval from the Patrol Commander. Vessels permitted to transit must operate at a no wake speed, in a manner which will not endanger participants or other crafts in the event. Spectators or other vessels shall not anchor, block, loiter, or impede the transit of event participants or official patrol vessels in the regulated areas during the effective dates and times, or dates and times as modified through Local Notice to Mariners, unless authorized by an official patrol vessel. In addition to this notice of enforcement in the Federal Register , the Coast Guard will provide notification of these enforcement periods via the Local Notice to Mariners and marine information broadcasts.

On July 9, 2024, the Copyright Office published a final rule regarding how the Copyright Act's derivative works exception to termination rights (the “Exception”) applies to the statutory mechanical blanket license established by the Music Modernization Act. 1 Among other things, the rule required the Mechanical Licensing Collective (“MLC”) to engage in corrective royalty adjustments for royalties distributed under its earlier, erroneous interpretation of the Exception. The rule specified separate due dates for the MLC and relevant parties to complete certain steps in this process. The due dates were set by referencing the rule's publication date ( e.g., thirty or sixty days after the rule's publication date). Three days after the rule's publication, the Office of the Federal Register issued a correction to one of those dates, which it had miscalculated. 2

On August 15, 2024, the MLC contacted the Office to ask about the calculation of the first due date in the corrective adjustment process based on a discrepancy between the date in the rule's regulatory text and its preamble. To resolve any confusion created by the discrepancy and ensure that parties have adequate time to participate in the corrective adjustment process, the Office is adjusting the relevant due dates for all parties by extending each by approximately thirty days from the original dates provided in the rule's regulatory text.

For the reasons set forth in the preamble, the U.S. Copyright Office amends 37 CFR part 210 as follows:

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

On July 2, 2024 (89 FR 54753), under CAA section 110(k)(3), the EPA proposed to approve the California Air Resources Board's (CARB's) submission of the “California Smog Check Performance Standard Modeling and Program Certification for the 70 Parts Per Billion (ppb) 8-Hour Ozone Standard” (“Smog Check Certification SIP”) as a revision to the California SIP. CARB submitted the Smog Check Certification SIP to the EPA on April 26, 2023. 1 The Smog Check Certification SIP includes CARB's evaluation of the California Smog Check program for compliance with the applicable Smog Check program requirements for SIPs under CAA sections 182(a)(2)(B), 182(b)(4), and 182(c)(3) and the EPA's regulations in 40 CFR part 51, subpart S for certain nonattainment areas for the 2015 ozone NAAQS.

More specifically, the Smog Check Certification SIP addresses the applicable Smog Check SIP requirements for all California air quality planning areas classified as “Moderate” and above for the 2015 ozone NAAQS that are subject to State jurisdiction. These areas (and their respective classifications for the 2015 ozone NAAQS) include Coachella Valley (Severe-15), Eastern Kern (Serious), Mariposa County (Moderate), Sacramento Metro (Serious), San Diego County (Severe-15), San Joaquin Valley (Extreme), Los Angeles-South Coast Air Basin (Extreme), Ventura (Serious), West Mojave Desert (Severe-15) and Western Nevada County (Serious). 2 While Coachella Valley and Sacramento Metro are currently classified as Severe-15 and Serious, respectively, CARB has submitted voluntary reclassification requests for the areas to Extreme and Severe-15, respectively, and the performance standard modeling presented and documented by CARB in the Smog Check Certification SIP assumes the EPA's grant of the reclassification requests for those areas. 3

Earlier this year, the EPA took final action to approve the San Diego County area portion of the Smog Check Certification SIP as part of the EPA's action on the San Diego ozone attainment plan. 4 In this document, we are taking final action on the Smog Check Certification SIP as it relates to all the other nonattainment areas that are addressed in the SIP submission.

In our proposed rule, we provided background information concerning the national ambient air quality standards (NAAQS), the criteria air pollutants and precursors, and the requirements for States to adopt and submit SIPs. We also explained that, for certain ozone nonattainment areas, States must submit SIP revisions that address CAA and EPA requirements for Smog Check programs. More specifically, section 182(b)(4) of the CAA requires States with ozone nonattainment areas classified under subpart 2 as Moderate to submit SIP revisions that provide for the implementation of a “Basic” I/M program in those areas. Section 182(c)(3) of the CAA requires States with ozone nonattainment areas classified under subpart 2 as Serious or above to submit SIP revisions that provide for the implementation of an “Enhanced” I/M program in certain urbanized portions of those areas. 5

As a general matter, Basic and Enhanced I/M programs both achieve their objective by identifying vehicles that have high emissions due to one or more malfunctions and requiring them to be repaired. An Enhanced I/M program covers more of the vehicles in operation, employs inspection methods that are better at finding high-emitting vehicles, and has additional features to better assure that all vehicles are tested properly and effectively repaired. The EPA has established specific requirements for Basic and Enhanced I/M programs in 40 CFR part 51, subpart S (“The EPA's I/M regulation”). The EPA's I/M regulation establishes minimum performance standards for Basic and Enhanced I/M programs as well as requirements for certain elements of the programs, including (among other elements) test frequency, vehicle coverage, test procedures and standards, stations and inspectors, and data collection, analysis, and reporting. 6

An I/M performance standard is a collection of program design elements that defines a benchmark program to which a State's Smog Check program is compared in terms of its potential to reduce emissions of the ozone precursors, VOC and NO X . The performance standard is expressed as emission levels in area-wide average grams per mile (gpm), achieved from on-road motor vehicles based on a specified model I/M program design. The emission levels achieved by the State's program design must be calculated using the most current version of the EPA mobile source emission factor model and must meet or exceed the emission reductions achieved by the model performance standard program both in operation and for SIP approval.

The EPA most recently approved a comprehensive update to California's Smog Check program into its SIP in 2010, and in that action, the EPA approved the program as meeting the applicable I/M requirements for the various nonattainment areas in the State for the 1997 ozone NAAQS. 7 The California Bureau of Automotive Repair (BAR) implements the SIP-approved Smog Check program in California, including oversight of the automotive repair industry and administration of the State's vehicle emissions reduction and safety programs. The California Department of Motor Vehicles (DMV) administers motor vehicle registration and licensing and supports BAR in administering the Smog Check program. 8

Currently, BAR implements an Enhanced I/M program in the urbanized areas within the Coachella Valley, Sacramento Metro, San Diego County, San Joaquin Valley, South Coast, Ventura County and West Mojave Desert ozone nonattainment areas and a Basic I/M program outside the urbanized areas within these nonattainment areas. BAR implements a Basic I/M program in Western Nevada County and Eastern Kern. Owners of motor vehicles registered in Mariposa County are subject to certain Smog Check requirements only upon change of ownership.

Since the EPA's most recent approval of a comprehensive update to the California I/M program in 2010, the State has taken steps to improve the effectiveness of the Smog Check program by requiring BAR to direct older vehicles to high-performing auto technicians and test stations for inspection and certification. 9 Further changes to State law have required BAR to implement an updated protocol for testing 2000 and newer model-year vehicles that collects more complete On-Board Diagnostic (OBD) information than had been collected under the existing protocol. 10 The State publishes an annual report summarizing the performance of the California Smog Check program. 11

CARB submitted the Smog Check Certification SIP to address the I/M SIP requirements for California ozone nonattainment areas classified as Moderate or above for the 2015 ozone NAAQS, including the Enhanced I/M performance standard evaluations required under 40 CFR 51.351(i). The provisions of 40 CFR 51.351(i) define the elements of the model Enhanced I/M program for areas required to implement an Enhanced I/M program as a result of designation and classification under the 8-hour ozone standard. As noted previously, a state's Enhanced I/M program can differ from the model program, but it must meet or exceed the VOC and NO X emission reductions achieved by the model program.

As part of CARB's certification of the existing California Smog Check program for compliance with the applicable I/M SIP requirements for the 2015 ozone NAAQS, the Smog Check Certification SIP includes Enhanced I/M performance standard evaluations for the urbanized areas within certain ozone nonattainment areas for 2015 ozone NAAQS: Coachella Valley, Eastern Kern, Sacramento Metro, San Diego County, 12 San Joaquin Valley, South Coast, Ventura County and West Mojave Desert. For the I/M performance standard evaluations, CARB relied upon the EPA's MOVES3 emissions model and the EPA's most recent guidance for I/M performance standard modeling. 13 CARB did not provide I/M performance standard evaluations for the Western Nevada County and Mariposa County because the I/M SIP requirements apply only to areas that exceed certain population thresholds, and neither area exceeds those thresholds. 14

As described in our proposed rule, for this action, the EPA evaluated the Smog Check Certification SIP against the applicable procedural and substantive requirements of the CAA and the EPA's regulations and proposed to conclude that the Smog Check Certification SIP meets all applicable requirements. More specifically, for the reasons given in the proposed rule, we proposed to find that:

• CARB has met the procedural requirements for adoption and submission of SIPs and SIP revisions under CAA sections 110(a)(1), 110(a)(2) and 110(l) and 40 CFR 51.102 with respect to the Smog Check Certification SIP;

• CARB has provided adequate necessary assurances for purposes of CAA section 110(a)(2)(E)(i) for the Smog Check Certification SIP and that the California Smog Check program continues to meet the SIP requirements for legal authority in 40 CFR 51.372(a)(5);

• the State has adequate personnel and funding to continue to implement the California Smog Check program;

• the California Smog Check program meets the applicable I/M program SIP requirements under CAA sections 182(b)(4) and 182(c)(3) and 40 CFR 51.1302 for the 2015 ozone NAAQS in the Coachella Valley, Eastern Kern, Mariposa County, Sacramento Metro, San Joaquin Valley, South Coast Air Basin, Ventura County, West Mojave Desert and Western Nevada County areas;

• the State continues to implement and enforce an Enhanced I/M program in the urbanized areas within the ozone nonattainment areas for which the Enhanced I/M program is required. These areas include the urbanized areas within nonattainment areas in Coachella Valley, Sacramento Metro, San Joaquin Valley, South Coast Air Basin, and Ventura County. 15 In connection with this proposed finding, we reviewed CARB's Enhanced I/M performance standard modeling evaluation for the California ozone nonattainment areas that are subject to the Enhanced I/M requirement and found that, for both VOC and NO X in all analysis years, CARB's MOVES3 modeling results indicate that the California Enhanced I/M program meets or exceeds the Federal Enhanced I/M performance standard benchmark program to within 0.02 gpm in all the subject areas; and

• the approval of the Smog Check Certification SIP would not interfere with attainment and reasonable further progress or any other applicable requirement of the CAA, consistent with the requirements for SIP revisions under CAA section 110(l).

In our proposed rule, we also indicated that we agree with CARB that an Enhanced I/M program is not required in the Western Nevada County Serious ozone nonattainment area because it is not part of an area having a 1980 Bureau of Census-defined (Census-defined) urbanized area population of 200,000 or more. 16 We also noted that the Western Nevada County area is not subject to the Basic I/M program requirement because it is not part of any 1990 Census-defined urbanized area with a population of 200,000 or more, 17 although the State has decided to implement a Basic I/M program in Western Nevada County as part of the ozone control strategy for the area.

For the same reasons, we noted also that the West Mojave Desert Severe-15 and Eastern Kern Serious ozone nonattainment areas are not subject to the Basic or Enhanced I/M program requirement, although the State has decided to implement an Enhanced or Basic I/M program in portions of West Mojave Desert and a Basic I/M program in Eastern Kern as part of the ozone control strategies for the areas.

With respect to the Mariposa County Moderate ozone nonattainment area, we agree with CARB that a Basic I/M program is not required there because it is not part of a 1990 Census-defined urbanized area with a population of 200,000 or more.

In this final rule, we are affirming the above findings that we included in our proposed rule and are taking final action to approve the Smog Check Certification SIP as a revision to the California SIP. For more detailed information on the SIP submission and on our basis for proposed approval, please see our proposed rule.

The EPA's proposed action provided a 30-day public comment period. During this period, we received no comments.

Pursuant to section 110(k)(3) of the Act, and for the reasons given in the proposed rule and summarized above, the EPA is taking final action to approve the Smog Check Certification SIP based on our finding that it meets the applicable procedural and substantive SIP requirements under the CAA and the EPA's I/M regulation for the applicable California nonattainment areas for the 2015 ozone NAAQS. These areas include Coachella Valley, Eastern Kern, Mariposa County, Sacramento Metro, San Joaquin Valley, South Coast Air Basin, Ventura, West Mojave Desert and Western Nevada County. This final rule adds the Smog Check Certification SIP to the federally-enforceable California SIP.

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 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) because application of those requirements would be inconsistent with the Clean Air Act.

In addition, the SIP is not approved to 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. 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).

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 State did not evaluate EJ 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 proposed action. Due to the nature of this proposed action, this action is expected to have a neutral to positive impact on the air quality of the various ozone nonattainment areas covered by this proposed 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 Executive Order 12898, to achieve EJ for people of color, low-income populations, and Indigenous peoples.

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

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 October 29, 2024. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule 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)).

Chapter I, title 40 of the Code of Federal Regulations is amended as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

Whenever EPA promulgates a new or revised NAAQS, CAA section 110(a)(1) requires states to make SIP submissions to provide for the implementation, maintenance, and enforcement of the NAAQS. This type of SIP submission is commonly referred to as an “infrastructure SIP.” These submissions must meet the various requirements of CAA section 110(a)(2), as applicable.

On September 30, 2020 (85 FR 61673), EPA published a notice of proposed rulemaking proposing to approve most elements of a September 14, 2018, submission from the Wisconsin Department of Natural Resources (WDNR) intended to address all applicable infrastructure requirements for the 2015 ozone NAAQS. EPA's proposed rulemaking contained a detailed analysis of Wisconsin's submission. Public comments on the September 30, 2020, proposed rule were due by October 30, 2020.

EPA's September 30, 2020, proposed rulemaking did not address Wisconsin's infrastructure requirements under section 110(a)(2)(D)(i)(I) and section 110(a)(2)(F). In separate rulemakings, EPA has since taken action on these elements. In a February 13, 2023 (88 FR 9384), rulemaking addressing the interstate transport elements under section 110(a)(2)(D)(i)(I), EPA approved Wisconsin's September 14, 2018, submission as to the requirements of prong 1 and disapproved the submission as to the requirements of prong 2. On July 24, 2023 (88 FR 47375), EPA approved an August 3, 2022, submission from Wisconsin certifying that its SIP is sufficient to meet the stationary source monitoring and reporting element under section 110(a)(2)(F). In this action, which finalizes EPA's September 30, 2020, proposed rulemaking, EPA is taking final action on all remaining elements of Wisconsin's infrastructure requirements for the 2015 ozone NAAQS.

During the public comment period on EPA's September 30, 2020, proposed rulemaking, EPA received one comment in support of our action, as well as one adverse comment, which addressed three aspects of Wisconsin's infrastructure SIP submission. For each aspect, summaries of the adverse comment and EPA's responses are provided below.

Comment: A commenter alleges that EPA cannot finalize approval of Wisconsin's submission as meeting the infrastructure SIP requirements of CAA section 110(a)(2)(B). The commenter notes that EPA's proposed rule refers to our October 2, 2019, approval of Wisconsin's 2020 Annual Monitoring Network Plan (AMNP), but the commenter suggests that Wisconsin would have submitted a more recent AMNP in July 2020. The commenter asserts that EPA should have based its proposal on the most recent AMNP. The commenter notes that neither AMNP was in the docket folder for the proposed rulemaking, and requests that EPA add both AMNPs to the docket and open a new 30-day public comment period.

Response: EPA disagrees that EPA must propose approval only on the most recently submitted AMNP. Wisconsin submitted its 2021 AMNP on June 29, 2020, and EPA approved the 2021 AMNP on September 15, 2020. On September 10, 2020, when the Deputy Regional Administrator signed EPA's rulemaking proposing approval of the state's infrastructure SIP submission for the 2015 ozone NAAQS with respect to section 110(a)(2)(B), EPA's approval of the 2020 AMNP was the most current approval, and therefore EPA could not have cited approval of the 2021 AMNP. Further, a state's 2021 AMNP describes changes it intended to make no earlier than January 1, 2021. On the date EPA published the proposed approval, Wisconsin was implementing its monitoring network according to the 2020 AMNP.

Additionally, in its 2021 AMNP, Wisconsin outlined changes to its monitoring network that had no adverse impact on its ability to monitor ozone. In Table 14 of its 2021 AMNP, Wisconsin listed proposed changes at only four monitoring sites. At its Milwaukee SER DNR Headquarters site, the state proposed to terminate monitoring of eight pollutants including ozone, because of the scheduled demolition of the facility adjacent to that site. At the other three sites, the state proposed new monitoring or increased monitoring of pollutants that had earlier been monitored at the Milwaukee SER DNR Headquarters site. The state proposed to start monitoring of five of those pollutants, including ozone, nearby at a new Milwaukee UWM Park & Ride site. At its Milwaukee Sixteenth St. Health Center site, the state proposed increasing the frequency of sampling of particles with an aerodynamic diameter of less than or equal to 2.5 micrometers (PM 2.5 ). The state also proposed to start monitoring oxides of nitrogen (NO X ) at its Chiwaukee site. Importantly, the 2021 AMNP was not Wisconsin's first mention of the proposed termination of the Milwaukee SER DNR Headquarters site. The state had already proposed this termination in its 2020 AMNP, and EPA's September 30, 2020, rulemaking references EPA's October 2, 2019, approval of that plan. EPA accordingly concludes that referencing the most recently approved 2020 AMNP at the time of signature of the proposed rulemaking, as opposed to the most recently submitted 2021 AMNP, did not deprive commenters of an ability to raise concerns about adverse changes to the state's ozone monitoring network. EPA is now adding the 2020 AMNP and 2021 AMNP to the docket folder for this action.

EPA further disagrees that any AMNP must have been included in the docket at the time of the comment period for this action. Prior to submitting an AMNP to EPA, WDNR makes each AMNP broadly available through a public comment process (see 40 CFR 58.10). Both the 2020 AMNP and 2021 AMNP are available at the WDNR website. WDNR's September 14, 2018, submittal contains a link to a subpage of this website, and EPA provided the same link in the proposed rule. Accordingly, EPA concludes that commenters had knowledge of, and access to, both the 2020 and 2021 AMNPs during the comment period and thus there was no need for EPA to provide an additional comment period for this purpose.

Comment: A commenter alleges that EPA cannot finalize approval of Wisconsin's submission as meeting the infrastructure SIP requirements of CAA section 110(a)(2)(E). The commenter asserts that Wisconsin's infrastructure SIP submission for the 2015 ozone NAAQS fails to provide any documentation, budgetary details, or personnel numbers to support its conclusions that Wisconsin meets the infrastructure SIP requirements relating to adequate resources to carry out the SIP. The commenter notes that WDNR's submission identifies its section 105 grants and Environmental Performance Partnership Agreement (EnPPA), but states that these sources were neither described in detail in the submission nor included in the docket for EPA's proposed rulemaking. The commenter refers to requirements at 40 CFR 51.280 and asserts that 1-, 3-, and 5-year resource projections are required but not included in Wisconsin's submission. The commenter also cites to a report which states that environmental agency funding in Wisconsin has been cut by 36 percent from 2008 to 2018. The commenter alleges that Wisconsin “must provide concrete assurances that it has adequate funding and personnel both now and for the next 5 years.”

Response: EPA agrees that CAA section 110(a)(2)(E)(i) requires each state to provide necessary assurances that the state will have adequate personnel, funding, and authority under state law necessary to carry out the SIP during the five years following the SIP submission. 1 However, CAA section 110 does not mandate a specific methodology for EPA to evaluate the adequacy of state resources available to implement the SIP.

The commenter expresses concern that that Wisconsin's funding to implement the SIP may be inadequate based on potential budget cuts. Specifically, the commenter asserts that “Wisconsin ranks first in environmental protection funding cuts across the country,” and to support this contention cites to a report by the Environmental Integrity Project, as well as a public radio news story referencing that report, which both allege that Wisconsin cut its environmental agency funding by 36 percent between 2008 and 2018. As discussed on page 8 of the report, the alleged 36% cut is expressed in inflation-adjusted dollars. As shown in Table 1 of the report, this was a decrease from a budget of $91.4 million in 2008 to a budget of $68.9 million in 2018, which is a 25 percent cut without adjusting for inflation.

To evaluate the commenter's concern that Wisconsin budgets are declining in a way that would make the state unable to continue to implement its SIP, EPA reviewed the state's enacted budgets, which are posted online by the Wisconsin Department of Administration. 2 Wisconsin's budgets are passed by the Wisconsin legislature and signed by the governor on a biennial cycle, covering periods from July 1 of one odd-numbered year through June 30 of the next odd-numbered year. To evaluate the commenter's claims regarding Wisconsin's 2008 budget, EPA reviewed Wisconsin's enacted biennial budget for 2007-2009. EPA also reviewed Wisconsin's four most recent enacted biennial budgets, for the periods 2017-2019, 2019-2021, 2021-2023, and 2023-2025, which cover a total of eight years, including the 2018 year referenced by the commenter, and spanning the complete five-year period following Wisconsin's September 14, 2018, submittal.

As noted by the Environmental Integrity Project, Wisconsin's pollution control and cleanup programs are housed within WDNR, which also manages state parks, recreational areas, wildlife programs, and fisheries programs. This structure is distinct from the organization of most states, which consolidate pollution control and cleanup programs in a single agency, like Indiana's Department of Environmental Management. In the case of Wisconsin, the Environmental Integrity Project has “attempted to identify and distinguish spending for those functions from the department's overall budget,” and the 25 percent nominal budget cut is meant to quantify cuts to the portion of WDNR's funding allocated to pollution control and cleanup programs, which the Environmental Integrity Project describes as “environmental agency funding.” The Environmental Integrity Project report does not explain its methodology for separating WDNR's “environmental agency funding” from other funding.

In reviewing biennial budgets, EPA first reviewed data for WDNR's department-wide budget. WDNR's budget did decline between 2008 and 2018, but by an amount much smaller than the 25 percent nominal cut described in the Environmental Integrity Project report. WDNR's total budget was $573 million for 2007-2008 and $580 million for 2008-2009, compared to $549 million for 2017-2018 and $547 million for 2018-2019, which is a cut of less than 6 percent. In the six years preceding the current biennial budget, starting in 2017-2018 and ending in 2022-2023, WNDR's total budget was between $549 million and $575 million, which is a range of less than 5 percent, with no clear trends of increases or decreases within this period. In the current biennial budget, WDNR's total budget has been increased relative to the level of previous years, at $640 million for 2023-2024 and $581 million for 2024-2025.

Given that the Environmental Integrity Project analyzed only a portion of WDNR's budget, EPA also reviewed previous and current biennial budget allocations for the nine programs that together comprise the total WDNR budget. One of these programs, titled “environmental management”, contains pollution control and cleanup programs including air management, water quality, wastewater management, and remediation. The environmental management program budget was $70.8 million for 2017-2018 and $70.0 million for 2018-2019, which differs by less than 3 percent from the Environmental Integrity Project's calculation of $68.9 million in “environmental agency funding” for 2018. Because the Environmental Integrity Project did not provide its methodology in the report, EPA cannot verify whether WDNR's environmental management program was the budget used by the Environmental Integrity Project in calculating 2018 “environmental agency funding.” For 2008, WDNR's nine programs were organized and labeled differently, and EPA does not see any program or combination of programs from 2008 that is similar to the $91.4 million funding level in the report, such that the Environmental Integrity Project might be able to draw comparisons to 2018 funding levels for WDNR's environmental management program.

During EPA's evaluation of state assurances of adequate resources under section 110(a)(2)(E), it is not necessary for EPA to determine the exact amount of resources a state needs to carry out its SIP. In this case, EPA's evaluation of the facts indicates that the WDNR budget has not changed to the degree that it would preclude the state from implementing its SIP, given that the overall budget did not decrease by more than 6 percent between 2008 and 2018. Further, as shown below in Table 1, funding for WDNR and for its environmental management program has not decreased over the eight-year period starting in 2017-2018 and ending in 2024-2025. As noted above, WNDR's total budget in this period was between $549 million and $640 million, with no clear trends of increases or decreases over the first six years followed by an increase in the current 2023-2025 biennial budget. The environmental management program budget in this period was between $70.0 million and $102 million, with an overall trend of increased funding during this period, particularly in the current 2023-2025 biennial budget. Considered together, the biennial budgets show a trajectory of stable or increasing resources for WNDR and its environmental management program over the five-year period beginning with Wisconsin's September 14, 2018, submission.

Wisconsin's submission additionally identified the section 105 Air Pollution Control Grant as a source of resources applied towards implementing its air program, and Wisconsin explains that “EPA and WDNR negotiate priorities and grant commitments under the EnPPA, which is a two-year agreement itemizing performance measures and outcomes across various funding sources and grants.” To further assess the adequacy of Wisconsin's resources towards carrying out the SIP, EPA reviewed EnPPA documents from the five-year period beginning with Wisconsin's September 14, 2018, submission. EPA is placing the EnPPA materials in the docket for this action. The EnPPA documents provide further support to EPA's finding that Wisconsin has had adequate resources to carry out its SIP. In these materials, EPA and WDNR staff review objectives and activities relating to the SIP, across categories including mobile source programs, ambient air monitoring, NAAQS implementation, and regional haze. Within each category, EPA and WDNR staff discuss progress towards specific commitments, such as conducting vehicle emissions testing in ozone nonattainment areas, operating ozone monitors, implementing maintenance plans in areas that have been redesignated to attainment of the 2015 ozone NAAQS, and issuing air quality forecasts for criteria pollutants including ozone. The EnPPA process does not require documentation of every commitment in every year, however when progress within each commitment is discussed, EPA and WDNR consistently agree that Wisconsin's progress is ongoing or satisfactory.

Comment: A commenter alleges that EPA cannot finalize approval of Wisconsin's submission as meeting the infrastructure SIP requirements of CAA section 110(a)(2)(C), section 110(a)(2)(D)(i)(II) relating to the Prevention of Significant Deterioration (PSD), or section 110(a)(2)(J). The commenter notes EPA's January 17, 2017 (82 FR 5182), rulemaking promulgating revisions to the Guideline on Air Quality Models at appendix W to 40 CFR part 51 (“Guideline”), which required states to integrate the revisions no later than January 17, 2018. The commenter cites EPA's July 6, 2020 (85 FR 40165), rulemaking proposing approval of elements of an infrastructure SIP submission from Kentucky, which expressed EPA's view that applications of the Guideline include the infrastructure requirements relating to PSD, which means the requirements at CAA section 110(a)(2)(C), section 110(a)(2)(D)(i)(II) relating to PSD, and section 110(a)(2)(J). The commenter notes that the Wisconsin Administrative Code Chapter Natural Resources (NR) 405.10 specifies that modeling required under the state's PSD rules shall be based on the Guideline, but NR 484.04 incorporates by reference the version of the Guideline that was in effect on August 1, 2016. The commenter acknowledges that states with references to earlier versions of the Guideline may be able to rely on their authority to use alternative models to satisfy these infrastructure requirements but suggests that neither Wisconsin nor EPA has confirmed the state's ability to implement the current version of the Guideline.

Response: The air quality modeling procedures at NR 405.10 were approved into the Wisconsin SIP on May 27, 1999 (64 FR 28745), as part of the state's PSD program. EPA agrees with the commenter that NR 405.10 incorporates by reference the version of the Guideline that was effective on August 1, 2016, which is not the current version of the Guideline. However, as the commenter suggests, Wisconsin has the authority to conduct modeling according to the current Guideline under substitution procedures provided within NR 405.10. Specifically, where it is inappropriate to use the modeling procedures provided in the earlier Guideline that is incorporated by reference, then NR 405.10 provides that another model may be substituted. NR 405.10 further provides that a substitution shall be subject to public comment procedures and that approval of the EPA Administrator shall be obtained for any substitution.

In EPA's January 17, 2017, rulemaking promulgating revisions to the Guideline, EPA explained to states that the new revisions to the Guideline “must be integrated into the regulatory processes of respective reviewing authorities and followed by applicants” by January 17, 2018. In EPA's view, by issuing this direction to states to begin using the revised Guideline, the Agency has in effect provided its approval for the state to substitute the current Guideline in place of an earlier Guideline, which thus functionally satisfies the requirement for administrator approval at NR 405.10. Were the state seeking to use some alternative approach that EPA had not already determined to be appropriate by updating the Guideline and instructing states to integrate it into their programs, then the EPA approval process required in NR 405.10 would still apply. Further, any PSD application is already subject to the public participation requirements at NR 405.15, which satisfies the requirement at NR 405.10 for public comment on air quality modeling. EPA therefore concludes that the SIP-approved modeling procedures at NR 405.10 are adequate to authorize and allow the state to conduct modeling according to the current Guideline, and thus adequate to meet the infrastructure requirements relating to PSD at CAA section 110(a)(2)(C), section 110(a)(2)(D)(i)(II), and section 110(a)(2)(J).

EPA is approving most elements of a submission from Wisconsin certifying that its current SIP is sufficient to meet the required infrastructure elements under section 110(a)(1) and (2) for the 2015 ozone NAAQS.

EPA's actions for the state's satisfaction of infrastructure SIP requirements pursuant to section 110(a)(2) and NAAQS are contained in the table below.

In the above table, the key is as follows:

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 CAA. 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) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian Tribe has demonstrated that a Tribe has jurisdiction. In those areas of Indian country, 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).

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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. EPA defines EJ as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

WDNR did not evaluate EJ considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving EJ for communities with EJ concerns.

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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by October 29, 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).)

For the reasons stated in the preamble, title 40 CFR part 52 is amended as follows:

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

Categories and entities potentially regulated by this action include industries using stationary engines, including both compression and spark ignition internal combustion engines, such as: Electric power generation, transmission, or distribution; Medical and surgical hospitals; Natural gas transmission; Crude petroleum and natural gas production; Natural gas liquids producers; and National security. North American Industry Classification System Codes of potentially regulated industries may include 2211, 622110, 48621, 211111, 211112, and 92811. This list is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the action for the source category listed. To determine whether your facility is affected, you should examine the applicability criteria in the rules. If you have any questions regarding the applicability of any aspect of this action, please contact the person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

In addition to being available in the docket, an electronic copy of this final action is available on the internet at https://www.epa.gov/stationary-engines . Following publication in the Federal Register , the EPA will post the Federal Register version of the final rule and key technical documents at this same website.

Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit (the court) by October 29, 2024. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

Section 307(d)(7)(B) of the CAA further provides that “[o]nly an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review.” This section also provides a mechanism for the EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to the EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment, (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, U.S. Environmental Protection Agency, Room 3000, WJC West Building, 1200 Pennsylvania Ave. NW, Washington, DC 20460, with a copy to both the person listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

Stationary engines are used in a variety of applications from generating electricity to powering pumps and compressors in power and manufacturing plants. They are also used in the event of an emergency such as fire or flood. The key air pollutants the EPA regulates from these sources include formaldehyde, acetaldehyde, acrolein, methanol, polycyclic aromatic hydrocarbon, volatile organic compounds, carbon monoxide, nitrogen oxides, particulate matter, sulfur dioxide, and hydrocarbons.

A CI engine, or diesel engine, is a type of engine in which the fuel injected into the combustion chamber is ignited by a heat resulting from the compression of gases inside the cylinder. A SI engine is a type of engine in which the fuel-air mixture in the combustion chamber is ignited by a spark from a spark plug.

The NESHAP for RICE is codified in 40 CFR part 63, subpart ZZZZ, which was first promulgated in 2004. The NSPS for Stationary CI Internal Combustion Engines (ICE) is codified in 40 CFR part 60, subpart IIII, which was first promulgated in 2006. The NSPS for Stationary SI Internal Combustion Engines is codified in 40 CFR part 60, subpart JJJJ, which was first promulgated in 2008. All have been amended several times since promulgation.

On June 26, 2023 (88 FR 41361), the EPA proposed the following pursuant to CAA sections 111 and 112: addition of requirements for electronic reporting to 40 CFR part 60, subpart IIII, 40 CFR part 60, subpart JJJJ, and 40 CFR part 63, subpart ZZZZ; clarifications to table 4 in 40 CFR part 60, subpart IIII due to incorrect display in the CFR; the correction of inadvertent errors in 40 CFR part 63, subpart ZZZZ, specifically in 40 CFR 63.6625(j) the need to reference additional line items in table 2d; and clarifications to the oil change requirements for certain engines as referenced in 40 CFR part 63, subpart ZZZZ, tables 2c and 2d. The following sections discuss the proposed changes in more detail, along with significant comments received and the EPA's response to those comments, and the final amendments to the rules, including any changes to what was proposed that are being made as a result of comments received. For additional comments and responses, please see the document, Summary of Public Comments and EPA's Responses National Emission Standards for Hazardous Air Pollutants: Reciprocating Internal Combustion Engines and New Source Performance Standards: Internal Combustion Engines; Electronic Reporting, available in the docket for this action. The EPA also solicited comments to aid in its consideration of the appropriate next steps following remand of the provisions specifying that emergency engines can operate for up to 50 hours per year to mitigate local transmission and/or distribution limitations to avert potential voltage collapse or line overloads that could lead to the interruption of power supply in a local area or region by the court. The EPA appreciates the comments and information that were provided during the public comment period and will consider them as it assesses the appropriate path forward but is not responding to these comments or taking further action on these provisions at this time.

The EPA proposed that owners and operators of stationary engines subject to NSPS subparts IIII or JJJJ, or NESHAP subpart ZZZZ, submit electronic copies of certain initial notifications of compliance, performance test reports, Notification of Compliance Status (NOCS), and annual and semiannual compliance reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). A description of the electronic data submission process was provided in the memorandum Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules and was placed in the docket at the time of proposal. The EPA proposed that the initial notification of compliance be submitted through CEDRI, that performance test results collected using test methods that are supported by the EPA's Electronic Reporting Tool (ERT) as listed on the ERT website  1 at the time of the test be submitted in the format generated through the use of the ERT or an electronic file consistent with the extensible markup language (XML) schema on the ERT website, and that other performance test results be submitted in portable document format (PDF) using the attachment module of the ERT. The EPA also proposed that NOCS for NESHAP subpart ZZZZ be submitted as a PDF upload in CEDRI.

For annual and semiannual compliance reports, the EPA proposed that owners and operators use the appropriate spreadsheet template to submit information to CEDRI. Draft versions of the proposed templates for these reports were included in the docket at the time of proposal. 2 The EPA specifically requested comment on the content, layout, and overall design of the templates.

Additionally, the EPA identified two broad circumstances in which electronic reporting extensions may be provided. These circumstances were: (1) outages of the EPA's CDX or CEDRI which preclude an owner or operator from accessing the system and submitting required reports and (2) force majeure events, which are defined as events that will be or have been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevent an owner or operator from complying with the requirement to submit a report electronically. Examples of force majeure events are acts of nature, acts of war or terrorism, or equipment failure or safety hazards beyond the control of the facility. The EPA provided these potential extensions to protect owners and operators from noncompliance in cases where they cannot successfully submit a report by the reporting deadline for reasons outside of their control. In both circumstances, the decision to accept the claim of needing additional time to report is within the discretion of the Administrator, and reporting should occur as soon as possible.

As described in the proposed rulemaking, the electronic submittal of the reports addressed in this final rule will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated State, local, Tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan  3 to implement Executive Order 13563 and is in keeping with the EPA's agency-wide policy  4 developed in response to the White House's Digital Government Strategy. 5 For more information on the benefits of electronic reporting, see the memorandum Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in the docket for this action.

As part of the electronic reporting effort, reporting requirements in NESHAP subpart ZZZZ were clarified and adjusted to be consistent for all engine types as well as to provide specificity in units of measure and to provide consistency between the NSPS and the NESHAP. With these changes, the regulatory text in 40 CFR part 63, subpart ZZZZ at 40 CFR 63.6650 now includes all the applicable data elements required by 40 CFR 63.10(e)(3), and the general provisions applicability table is being revised to reflect that 40 CFR 63.10(e)(3) is no longer applicable.

We received comments both in support of, and opposed to, the addition of electronic reporting provisions, as well as several comments regarding the draft electronic reporting templates that were made available in the docket. In response to these comments, we made some clarifying changes to the templates. We address and respond to these comments in detail in the response to comment document available in the docket for this action.

One clarifying change made in response to comments was to alter the regulatory text and the corresponding entry in the final reporting template for subpart ZZZZ to require the year the engine was constructed, rather than the specific date. Additionally, if the exact year is unknown, an estimate can be provided.

The Department of Defense (DoD) commented that all templates provided for review have a requirement to provide the latitude and longitude of the engine in decimal degrees reported to the fifth decimal place, but due to the present-day public availability of electronic data files, DoD is concerned that disclosing the location of certain engines used by the commenter can compromise national security. The comment requested the EPA consider including an option for template latitude and longitude data fields that would allow an installation to label critical system geolocation data as “confidential” or “national security information.” By offering such an option, the commenter's national security data would not be disclosed or retrievable through publicly available agency (Federal/state/local/tribal) electronic data systems.

The EPA agrees that the exact location of engines should not be reported if the location should remain confidential due to national security concerns. The EPA has clarified for the final rule that if disclosure of the exact location of an engine that is owned by or operated by or for an agency of the Federal Government that is responsible for national defense would be a threat to national security, the filer may claim a national security exemption, which will allow the latitude and longitude fields in the reporting template to be left blank. A corresponding revision is also being made to the regulatory text. It should be noted that the reports still contain the address of the facility at which the engine(s) are located. 6

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

You may access a frequently updated electronic version of 40 CFR part 180 through the Federal Register Office's e-CFR site at https://www.ecfr.gov/current/title-40.

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2023-0409 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before October 29, 2024. Notwithstanding the procedural requirements of 40 CFR 178.25(b), the Office of the Administrative Law Judges has issued an order urging parties to file and serve documents with the Tribunal by electronic means only. See Revised Order Urging Electronic Filing and Service (dated June 22, 2023), https://www.epa.gov/system/files/documents/2023-06/2023-06-22%20-%20revised%20order%20urging%20electronic%20filing%20and%20service.pdf.

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2023-0409, by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at https://www.epa.gov/dockets/contacts.html.

Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at https://www.epa.gov/dockets.

In the Federal Register of August 22, 2023 (88 FR 57026) (FRL-11232-01-OSCPP), EPA proposed to revoke the tolerance exemption in 40 CFR 180.920 for residues of phenol when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops. In the August 2020 Phenol and Salt Interim Registration Review Decision (available at www.regulations.gov in docket ID number EPA-HQ-OPP-2012-0810), EPA determined that there are no current registrations for pesticide products containing phenol as an inert ingredient (solvent/cosolvent) for use on growing crops, and therefore the tolerance exemption for phenol under 40 CFR 180.920 is not necessary and should be revoked. Additionally, the Registration Review Draft Risk Assessment for Phenol and Salts indicated aggregate risks of concern are likely to result from exposures to phenol pesticide products. Updates have been made to phenol pesticide labels to reduce exposures to phenol through the dietary pathway by preventing the use of these products on food contact surfaces, thereby mitigating the aggregate risks of concern. Revoking phenol's inert tolerance exemption will ensure that dietary exposures do not result from the inert uses of phenol, further mitigating potential exposures that would contribute to aggregate risks of concern. Moreover, there have been no registrations for use associated with this tolerance exemption for many years. The Agency therefore believes that existing stocks of pesticide products containing phenol for the use associated with this tolerance exemption have been exhausted and that treated commodities have cleared the channels of trade.

Under section 408(e) of the FFDCA, EPA can establish, modify, or revoke an exemption from the requirement of a tolerance for residues of a pesticide chemical after publishing a proposed rule and providing 60-day period for public comment. 21 U.S.C. 346a(e). EPA published the proposed rule on August 22, 2023, and provided 60 days for public comment (until October 23, 2023).

EPA is establishing this rule with an effective date that is six months after the date of publication of the final rule in the Federal Register (February 26, 2025). EPA is setting this effective date for this action to allow a reasonable interval for producers in exporting members of the World Trade Organization's (WTO's) Sanitary and Phytosanitary (SPS) Measures Agreement to adapt to the requirements of the final rule.

Any commodities treated with phenol in the channels of trade following the tolerance exemption revocation shall be subject to FFDCA section 408(l)(5), 21 U.S.C. 346a(l)(5). Under this section, any residues of this pesticide in or on such food shall not render the food adulterated so long as it is shown to the satisfaction of the Food and Drug Administration that the residue is present as the result of an application or use of the pesticide at a time and in a manner that was lawful under FIFRA and the residue does not exceed the level that was authorized at the time of the application or use to be present on the food under a tolerance or exemption, unless EPA determines that consumption of legally treated food during the period of its likely availability in commerce will pose unreasonable dietary risk. Evidence to show that food was lawfully treated may include records that verify the dates when the pesticide was applied to such food.

Three individuals submitted comments that supported the proposed rule. Public comments are posted to the docket for this tolerance rulemaking action (docket EPA-HQ-OPP-2023-0409 at https://www.regulations.gov ). There were no comments requesting retention of the phenol tolerance exemption.

As discussed in the proposed rule, EPA is revoking the tolerance exemption in 40 CFR 180.920 for residues of phenol when used as an inert ingredient (solvent/cosolvent) in pesticide formulations applied to growing crops. EPA has determined that there are no current registrations for pesticide products containing phenol as an inert ingredient (solvent/cosolvent) for use on growing crops, and therefore the tolerance exemption for phenol under 40 CFR 180.920 is not necessary at this time. Because there have been no registrations for use associated with this tolerance exemption for many years, the Agency therefore believes that existing stocks of pesticide products containing phenol for the use associated with this tolerance exemption have been exhausted and that treated commodities have cleared the channels of trade.

Therefore, EPA is revoking the exemption from the requirement of a tolerance for residues of phenol when used as an inert ingredient (solvent/cosolvent) in pesticide products used on growing crops.

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

This action is exempt from review by the Office of Management and Budget (OMB) under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). OMB has exempted this type of action ( e.g., tolerance revocation for which extraordinary circumstances do not exist) from review. These revocations are not expected to present extraordinary circumstances because no registrations containing phenol or relying on these tolerances have existed for several years. Because this rule has been exempted from review under Executive Order 12866, this rule is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001).

This action does not impose an information collection burden under the PRA, 44 U.S.C. 3501 et seq., because it does not contain any information collection activities.

I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. Because this use has not been registered in the United States for some time, there has been no need for this tolerance exemption and thus the revocation will impose no net burden on small entities subject to the rule. Furthermore, the Agency did not receive any comments on these conclusions as presented in the proposed rule.

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

This action does not have federalism implications as specified in Executive Order 13132, August 10, 1999 (64 FR 43255). 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, November 9, 2000 (65 FR 67249), because it will not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.

Executive Order 13045 (62 FR 19885, April 23, 1997) directs federal agencies to include an evaluation of health and safety effects of the planned regulation on children in federal health and safety standards and explain why the regulation is preferable to potential effective and reasonably feasible alternatives. This action is also not subject to Executive Order 13045 because it is not a significant regulatory action under section 3(f)(1) of Executive Order 12866 ( See Unit V.A.). However, EPA's Policy on Children's Health applies to this action. Since phenol has not been used in any registered pesticides for several years, it is unlikely that there has been much, if any, exposure to children from pesticide use. The revocation of the tolerance exemption also ensures that residues of the pesticide will not be in food.

This action is not a subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant regulatory action under Executive Order 12866.

This action does not involve technical standards under NTTAA section 12(d), 15 U.S.C. 272.

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. As discussed in more detail in the pesticide specific risk assessments conducted as part of the registration review for phenol, EPA has considered the safety risks for phenol. EPA believes that the human health and environmental conditions that exist prior to this action do not result in disproportionate and adverse effects on people of color, low-income populations, and/or indigenous peoples. Furthermore, EPA believes that this action is not likely to result in new disproportionate and adverse effects on people of color, low-income populations and/or indigenous peoples.

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

Therefore, 40 CFR chapter I is amended to read as follows:

The CHEF was established by section 202 of the IHCIA, Public Law 94-437 (25 U.S.C. 1621a). The Patient Protection and Affordable Care Act, Public Law 111-148, as amended by the Health Care and Education Reconciliation Act of 2010, Public Law 111-152 (collectively, the Affordable Care Act or “the ACA”), reauthorized the IHCIA and amended the CHEF, directing the Secretary to promulgate regulations governing the administration of the CHEF.

In the Federal Register of July 18, 2023 (88 FR 45867), the IHS published a proposed rule entitled “Catastrophic Health Emergency Fund” with a 60-day comment period.

The purpose of the CHEF is to meet the extraordinary medical costs associated with the treatment of victims of disasters or catastrophic illnesses who are within the responsibility of the Service. The IHS administers the CHEF to reimburse certain IHS and Tribal purchased/referred care (PRC) costs that exceed the cost threshold. Although the CHEF was first established in 1988, a similar fund was authorized by Public Law 99-591, a Joint Resolution continuing appropriations for fiscal year (FY) 1987. The IHS developed operating guidelines for the management of the CHEF in August of 1987, which were approved by the Office of Management and Budget (OMB). Those guidelines were developed with input from Tribal Organizations and IHS personnel who work with the daily processing and management of Contract Health Services (CHS), now known as the Purchased/Referred Care (PRC) Program. Congress passed the Indian Health Care Improvement Reauthorization and Extension Act of 2009, S. 1790, 111th Cong. (2010) (IHCIREA), as section 10221(a) of the Patient Protection and Affordable Care Act, Public Law 111-148. Through IHCIREA, Congress permanently reauthorized and amended the IHCIA, Public Law 94-437. Section 202 of the IHCIA (25 U.S.C. 1621a) establishes the CHEF and directs the IHS to promulgate regulations for its administration.

The operating guidelines and twenty-eight (28) years of experience (FYs 1987-2015) contributed to the design of the proposed rule published on January 26, 2016 (81 FR 4239). Following additional Tribal Consultation and additional years of experience, the IHS issued a new notice of proposed rulemaking (NPRM). The new NPRM, published on July 18, 2023 (88 FR 45867), superseded and replaced the proposed rule published on January 26, 2016 (81 FR 4239); as such, the 2016 NPRM was rescinded.

This final regulation (1) establishes definitions governing the CHEF, including definitions of disasters and catastrophic illnesses; (2) establishes that a Service Unit shall not be eligible for reimbursement for the cost of treatment from the CHEF until its cost of treating any victim of such catastrophic illness or disaster has reached a certain threshold cost; (3) establishes a procedure for reimbursement of the portion of the costs for authorized services that exceed such threshold costs; (4) establishes a procedure for payment from the CHEF for cases in which the exigencies of the medical circumstances warrant treatment prior to the authorization of such treatment; and, (5) establishes a procedure that will ensure no payment will be made from the CHEF to a Service Unit to the extent the provider of services is eligible to receive payment for the treatment from any other Federal, State, local, or private source of reimbursement for which the patient is eligible.

No part of the CHEF, or its administration, shall be subject to contract or grant under any law, including the Indian Self-Determination and Education Assistance Act (ISDEAA), Public Law 93-638 (25 U.S.C. 5301 et seq. ) and may not be allocated, apportioned, or delegated to a Service Unit, Area Office, or any other IHS organizational unit. Accordingly, the IHS Division of Contract Care within ORAP, the IHS, shall remain responsible for administration of the CHEF.

This final regulation incorporates provisions on severability. Congress has specifically directed the promulgation of these rules for the administration of the CHEF, which is administered by the Secretary, United States (U.S.) Department of Health and Human Services (HHS) (“the Secretary”) acting through IHS Headquarters. The sole purpose of the CHEF is meeting extraordinary medical costs associated with treatment of victims of disasters or catastrophic illnesses who are within the responsibility of the Service. In the event that any portion of the final regulation is declared invalid, the Secretary, acting through the IHS, will continue to be responsible for the administration of the CHEF. The IHS anticipates that the remainder of the regulation could function sensibly and continue to govern the administration of the CHEF. For these reasons, if any portion of the final regulation is declared invalid, the IHS intends that the remaining provisions be severable.

The final regulation also incorporates clarifying edits to §§ 136.501, 136.503, and 136.506. Under § 136.501, the IHS added a missing comma in the definition of alternate resources. The IHS had unintentionally omitted the comma from the proposed rule and correction was important to ensure consistency with § 136.61(c). The IHS removed an unnecessary comma in the definition of catastrophic illness in § 136.501 for clarity. The IHS also corrected a typographical error in the preamble regarding the definition of PRC, which did not change the definition of PRC under § 136.501. In § 136.503(a), the IHS clarified that the initial threshold is being established for fiscal year 2024. Under § 136.506, the IHS added two clarifications regarding alternate resources, based upon public comments received in response to the proposed rule. The first clarification regarding alternate resources, located at § 136.506(b), explains that patients are not required to expend personal resources for health services to meet alternate resource eligibility, nor are they required to sell valuables or property to become eligible for alternate resources. The second clarification, located at § 136.506(c), explains that when a PRC program pays primary to ( i.e., before) a Tribal self-insurance plan, this will not impact whether a PRC program's expenditures are eligible for reimbursement from the CHEF, as long as the Service Unit clearly demonstrates that the PRC program was responsible and did in fact assume that responsibility by making the payments at issue in the CHEF request. Further details are included in response to the comments under section IV, below.

The IHS establishes the following definitions for governing the CHEF, including definitions of disasters and catastrophic illnesses:

1. Alternate Resources—health care resources other than those of the IHS. Such resources include health care providers and institutions, and health care programs for the payment of health services including, but not limited to programs under title XVIII or XIX of the Social Security Act ( i.e., Medicare, Medicaid), State or local health care programs, and private insurance.

2. Catastrophic Health Emergency Fund (CHEF)—the fund established by Congress to reimburse extraordinary medical expenses incurred for catastrophic illnesses and disasters paid by a PRC program of the IHS, whether such program is carried out by the IHS or an Indian Tribe or Tribal Organization under the ISDEAA.

3. Catastrophic Illness—a medical condition that is costly by virtue of the intensity and/or duration of its treatment. Examples of conditions that frequently require multiple hospital stays and extensive treatment are cancer, burns, premature births, cardiac disease, end-stage renal disease, strokes, trauma-related cases such as automobile accidents and gunshot wounds, and certain mental disorders. The CHEF is intended to insulate the IHS and Tribal PRC operations from financial disruption caused by the intensity of expenses incurred as a result of high cost illnesses and/or disasters.

4. Disasters—situations that pose a significant level of threat to life or health or cause loss of life or health stemming from events such as tornadoes, earthquakes, floods, catastrophic accidents, epidemics, fires, and explosions. The CHEF is intended to insulate the IHS and Tribal PRC operations from financial disruption caused by the intensity of expenses incurred as a result of high cost illnesses and/or disasters.

5. Episode of Care—the period of consecutive days for a discrete health condition during which reasonable and necessary medical services related to the condition occur.

6. Purchased/Referred Care (PRC)—any health service that is—

(a) delivered based on a referral by, or at the expense of, an Indian health program; and

(b) provided by a public or private medical provider or hospital that is not a provider or hospital of the Indian health program.

7. Service Unit—an administrative entity of the Service or a Tribal health program through which services are provided, directly or by contract, to eligible Indians within a defined geographic area.

8. Threshold Cost—the annual designated amount above which incurred medical costs will be considered for the CHEF reimbursement after a review of the authorized expenses and diagnosis.

The IHCIA section 202 provides that a Service Unit shall not be eligible for reimbursement from the CHEF until its cost of treating any victim of a catastrophic illness or event has reached a certain threshold cost. The Secretary is directed to establish the initial CHEF threshold at—

(1) the FY 2000 level of $19,000; and

(2) for any subsequent year, the threshold will not be less than the threshold cost of the previous year increased by the percentage increase in the medical care expenditure category of the Consumer Price Index (CPI) for all urban consumers (United States city average) for the 12-month period ending with December of the previous year.

In the proposed rule, the IHS stated its intention to establish the initial threshold of $19,000 for the current FY, which was FY 2023 at that time. Since the IHS is publishing this final rule after FY 2023, the IHS is setting the initial threshold governed by this rule at $19,000 for the current FY, which is FY 2024. In reaching this determination, the IHS adopted the recommendation of the IHS Director's Workgroup on Improving PRC (Workgroup). The Workgroup, composed of Tribal leaders and Tribal and Federal representatives, voted 18-2 to recommend $19,000 as the initial threshold. For this recommendation, the Workgroup considered several factors, including the following: (1) Tribal concerns regarding the lower threshold and the potential to exhaust the CHEF earlier in the fiscal year leaving PRC programs without the ability to recover costs for treating victims of catastrophic illnesses or disasters; and (2) Tribal concerns about setting the threshold at the FY 2000 level and then applying the Consumer Price Index for All Urban (CPI-U) Medical for each year since FY 2000, which would have resulted in a $30,000 plus threshold requirement by FY 2013. At this higher level, PRC programs with limited budgets would be unable to access the CHEF to seek recovery for extraordinary medical costs. Accordingly, the IHS is setting the initial threshold at $19,000 for FY 2024, with increases in subsequent years based on the annual CPI-U Medical factor. The IHS will publish annual updates to the threshold amount yearly in the Federal Register .

In order to qualify for reimbursement from the CHEF, a Service Unit must follow PRC regulations at 42 Code of Federal Regulations (CFR) part 136. For example, payment or reimbursement from the CHEF may be made for the costs of treating persons eligible for PRC in accordance with 42 CFR 136.23 and authorized for PRC in accordance with 42 CFR 136.24. In cases where the exigencies of the medical circumstances warrant treatment prior to the authorization of such treatment by the Service Unit, authorization must be obtained in accordance with 42 CFR 136.24(c). For example, claims for reimbursement of services provided that do not meet the 72-hour emergency notification requirements found at 42 CFR 136.24(c) will be denied. The applicable Area PRC program shall review the CHEF requests for CHEF reimbursement to ensure consistency with PRC regulations.

In accordance with section 202(d)(5) of the IHCIA [25 U.S.C. 1621a(d)(5)], alternate resources must be exhausted before reimbursement is made from the CHEF. No reimbursement shall be made from the CHEF to any Service Unit to the extent that the provider of treatment is eligible to receive payment for the treatment from any other Federal, State, local, or private source of reimbursement for which the patient is eligible. Medical expenses incurred for catastrophic illnesses and events will not be considered eligible for reimbursement if they are payable by alternate resources, as determined by the IHS. The IHS is the payer of last resort and, if the provider of services is eligible to receive payment from other resources, the medical expenses are payable by PRC and reimbursable by the CHEF only to the extent that the IHS would not consider the other resources to be “alternate resources” under the applicable authorities. Expenses paid by alternate resources are not eligible for payment by PRC or reimbursement by the CHEF. However, if the patient is found to have been eligible for alternate resources at the time of service, the Service Unit shall promptly return all funds reimbursed from the CHEF to the IHS Headquarters CHEF account.

A patient must be eligible for PRC services and the Service Unit must adhere to regulations (42 CFR 136.23(a) through (f)) governing the PRC program to be reimbursed for catastrophic cases from the CHEF. Once the catastrophic case meets the threshold cost for the year at issue and the Service Unit has authorized PRC resources exceeding that threshold requirement, the Service Unit may qualify for reimbursement from the CHEF. Reimbursable costs are those costs that exceed the threshold cost after payment has been made by all alternate resources such as Federal, State, local, private insurance, and other resources. Reimbursement of PRC expenditures incurred by the Service Unit and approved by the PRC program at IHS Headquarters will be processed through the respective IHS Area Office. Reimbursement from the CHEF shall be subject to availability of funds, and usually done on a first in first out for complete applications.

In the event a PRC program has been reimbursed from the CHEF for an episode of care and that same episode of care becomes eligible for and is paid by any Federal, State, local, or private source (including third-party insurance), the PRC program shall return all the CHEF funds received for that episode of care to the CHEF at the IHS Headquarters. These recovered CHEF funds will be used to reimburse other approved CHEF requests.

Prior to implementing the rule, the IHS may be required to develop new information collection forms that would require approval from the OMB in accordance with the Paperwork Reduction Act of 1995, 44 United States Code (U.S.C.) 3507(d).

The IHS received comments  1 from eight Tribal entities. Their comments are grouped by topic and summarized below, together with responses. No other comments were received.

Comment: The IHS received seven comments in full support of the threshold establishment, including two commenters who specifically supported the adjustment language. An additional commenter  2 supported the establishment of the threshold, but opposed the annual adjustment based upon the CPI and would like to see the threshold maintained at $19,000 permanently.

Response: The IHS appreciates the comments and in response to the comment opposing adjustment, the IHS clarifies here that the annual adjustment in the final rule is mandated by the specific language of 25 U.S.C. 1621a(d)(2)(B).

Comment: The IHS received four comments in support of the process, either generally or in regards to certain parts of the process.

Response: The IHS appreciates the supportive comments.

Comment: An additional commenter  3 expressed concerns about unspecified timelines in the processing of the CHEF reimbursement requests and recommended specific deadlines, including deadlines for review and submission by the Area Office, review and submission by IHS Headquarters, and payment by the Fiscal Intermediary (FI).

Response: The IHS takes this opportunity to clarify that the FI is not involved in payment of the CHEF reimbursements. The IHS considered whether to add the recommended deadlines, but it has decided not to do so at this time. For the time being, the IHS believes that the concern is sufficiently addressed by the provision permitting a Service Unit to appeal as a “deemed denial” after 180 calendar days. See § 136.509(b). Also, the IHS has established a process that it believes will expedite review and approval of CHEF claims once they are received which typically occurs within 60 calendar days.

Comment: The IHS received four comments in support of the appeals process set out in the proposed rule.

Response: The IHS appreciates the supportive comments.

Comment: An additional commenter  4 expressed concerns about the timeline to provide written notice of the denial, believing 130 business days from receipt to be excessive, and recommended that this timeline be changed to 40 days, consistent with the deadline to submit an appeal.

Response: The IHS considered whether to shorten this timeline and it has decided not to do so at this time. The vast majority of CHEF claims do not take 130 business days to process. The IHS has established a process that expedites review and approval of CHEF claims once they are received. On average, it takes less than 1 month for IHS Headquarters to review, process and initiate payment. There may be situations based upon volume and complexity of cases that require much longer. The IHS has also considered the time that the Area Offices need to fulfill their roles in the process and how the timeline affords the Service Units an opportunity to supplement missing and/or indecipherable information.

Comment: The IHS received two comments in support of following the PRC authorities, meaning that only appropriately-paid PRC expenditures are eligible for CHEF reimbursement.

Response: The IHS appreciates the supportive comments.

Comment: The IHS also received two comments  5 in opposition, based upon their belief that the CHEF statute is not restricted to PRC and that direct care costs should qualify for reimbursement from the CHEF.

Response: Reimbursements from the CHEF are limited to expenditures by PRC programs, consistent with the CHEF statute and congressional intent. The CHEF statute, at 25 U.S.C. 1621a(d)(1), specifically authorizes the Secretary to promulgate regulations establishing the types of disasters and illnesses for which “the cost of the treatment provided under contract” will be reimbursed. This explicit reference to services provided under contract demonstrates that the CHEF is intended to provide reimbursement for PRC (formerly known as contract health services) program expenditures.

This interpretation is further supported by the legislative history of the CHEF statute. When the CHEF statute was first introduced in 1983, reimbursement from the CHEF was to be for “. . . the cost of treatment, whether provided under contract or in a Service or Service-supported facility . . .”. HR 4567, 98th Congress, 1st Session (Nov. 18, 1983). However, following legislative hearings and several rounds of amendment over the next 2 years, the language providing reimbursement from the CHEF for treatment costs incurred “in a Service or Service-supported facility” was removed from the proposed legislation, leaving only reimbursement for treatment provided under contract. See HR 1426, 99th Congress, 1st Session (May 23, 1985), and S 277, 99th Congress, 1st Session (May 16, 1985). In a report accompanying the Senate version of the bill, a summary of the bill noted that it established “[a]n Indian Catastrophic Health Emergency Fund . . . to relieve the financial burden on the contract health care budget of the Indian Health Service . . .”. S. Comm. Rep. 99-62 (May 16, 1985). Finally, funds for the CHEF are appropriated through the PRC line item, further indicating that Congress intends for the CHEF funds to be used to reimburse PRC costs, not direct care costs.

Comment: An additional commenter  6 expressed concerns about the definition of PRC and recommended that a different definition be created for purposes of reimbursements from the CHEF.

Response: Based upon the tie between the CHEF and expenditures by PRC programs, as discussed in the response above, the IHS has utilized the statutory definition of PRC. The IHS did correct a typographical error in the preamble regarding the definition of PRC, which did not change the definition of PRC under § 136.501. Otherwise, the IHS has decided to finalize the rule without changes to this definition.

Comment: The IHS received a comment in support of the language regarding alternate resources in § 136.501.

Response: The IHS appreciates the supportive comment.

Comment: The IHS also received two comments  7 that supported the absence of the term “Tribal” from the list of alternate resources and/or explaining that they read the rule to exclude Tribal self-insurance as an alternate resource. The IHS also received five comments  8 that recommended an explicit exclusion for Tribal self-insurance and four of those commenters sought a broader exclusion for Tribal programs or Tribal resources.

Response: The IHS appreciates this opportunity to clarify the change between the 2016 NPRM and the 2023 NPRM. Consistent with the IHS' current PRC policy, the IHS assumes that Tribal self-insurance is not an alternate resource for purposes of the CHEF. However, the IHS has also long recognized that Tribal self-insurance plans can choose to pay primary to PRC, meaning they can choose to be an alternate resource to PRC. This is a coordination between the payers of last resort, with one needing to pay primary to the other, but until the IHS is informed otherwise, the IHS assumes that the Tribal self-insurance does not wish to be an alternate resource. For tribally operated PRC programs, the Tribal Health Program would decide how to coordinate with Tribal self-insurance. For example, a Tribal Health Program may decide to coordinate in a complicated manner in order to maximize discounts. This coordination process will not impair eligibility for reimbursement from the CHEF, as long as the Tribal Health Program clearly demonstrates that their PRC program was responsible and did in fact assume that responsibility by making the payments at issue in the CHEF request. This is not an issue of who must pay primary; it is a factual question of whether the PRC program paid. Again, regardless of whether the PRC program is operated by the IHS or a Tribal Health Program, when a PRC program pays primary to ( i.e., before) the Tribal self-insurance plan, this will not impair the PRC program's eligibility for reimbursement from the CHEF. The IHS added clarification in this regard to § 136.506.

For programs or resources other than Tribal self-insurance, it will depend upon the circumstances. For example, if a Tribal Health Program is reasonably accessible or available to meet the patient's needs through direct care, PRC cannot be authorized for that care, meaning it cannot be reimbursed from the CHEF. Similarly, when sponsorship occurs through private insurance ( i.e., not Tribal self-insurance), the private insurance would be an alternate resource.

Unrelated to this issue, the IHS is adding a missing comma to the definition of alternate resources in § 136.501, to ensure it is consistent with § 136.61(c).

Comment: A commenter  9 recommended revisions to clarify that if a patient is required to pay premiums or cost-sharing out of pocket, it would not be an alternate resource.

Response: The IHS appreciates this comment and the opportunity to clarify this issue. Through policy, the IHS has already explicitly recognized that IHS beneficiaries are not required to either expend personal resources for health services to meet alternate resource eligibility, or to sell valuables or property to become eligible for alternate resources. The IHS added clarifying language to § 136.506, to make sure this is clear for purposes of CHEF reimbursement.

Comment: The IHS also received a comment  10 recommending revisions to this section that explicitly exclude Tribal resources and Tribal self-insurance.

Response: Please see the response to the same comment regarding § 136.501, including the explanation of the clarification added to § 136.506. For the same reasons, the IHS is not presupposing how Tribal Health Programs and Tribal self-insurance may wish to coordinate amongst each other. That coordination is not an IHS decision to make. The IHS is looking factually at whether the PRC program was ultimately responsible and did in fact make the payment at issue in the CHEF reimbursement request. The IHS takes this opportunity to clarify again the following two points: (1) IHS-operated PRC programs do not treat Tribal self-insurance as alternate resources unless and until the Tribe's governing body clearly asks them to do so through a Tribal Resolution; and (2) regardless of whether the PRC program is operated by the IHS or a Tribal Health Program, if a PRC program pays primary to Tribal self-insurance, that PRC program's eligibility for reimbursement from the CHEF is not impaired in any way. The Service Unit simply needs to show that their PRC program paid the amount at issue in the CHEF request, because the CHEF is not intended to reimburse programs other than PRC. As noted above, the IHS has added clarification in response to this comment under § 136.506.

Comment: Two comments  11 requested additional Tribal Consultation before the proposed rule is finalized, based upon fundamental changes they thought needed to be considered through Tribal Consultation.

Response: The IHS has already held a number of Tribal Consultations on the proposed rule, including multiple in-person and telephonic Tribal Consultations. The IHS has also repeatedly sought recommendations from Tribal representatives on the Director's Workgroup. The IHS does not intend to do any further Tribal Consultation before finalizing this rule. As more fully discussed below, the fundamental changes suggested by these two commenters are outside the scope of rulemaking. However, the IHS will assess the final CHEF regulations following implementation, and we will look to hold future Tribal Consultations to receive input from Tribal Health Programs regarding potential improvements.

Comment: Two commenters  12 recommended changing the rule to give “credit” to Tribal expenditures that supplement direct care budgets or PRC.

Response: Direct supplements to the PRC program ( i.e., adding funds directly to the PRC program, for PRC expenditure in accordance with PRC authorities) are eligible for reimbursement from the CHEF on the same basis as PRC-appropriated funds. We understand that a number of Tribes operate Tribal self-insurance plans outside of an ISDEAA agreement and may consider those plans to be a “supplement” to the PRC program. However, this is not a direct supplement of funds to the PRC program for expenditure by the PRC program in accordance with PRC authorities, meaning the expenditures by those Tribal self-insurance plans are not reimbursable by the CHEF. Similarly, expenditures by the direct care programs are not eligible for CHEF reimbursement. The IHS appreciates the opportunity to clarify these points, but for these reasons and those stated above, the IHS is not making any changes in response to the comment.

Comment: Two commenters  13 recommended adding language regarding the Indian canon of statutory construction and trust responsibilities.

Response: Because these suggestions are outside the scope of the proposed rule, the IHS did not make any changes. However, the IHS notes that it did consider the Indian canon of statutory construction for purposes of establishing the initial CHEF threshold.

Comment: A second commenter  14 recommended splitting the regulation into two phases to first address the threshold alone, then address all remaining aspects of the proposed rule.

Response: Congress directed the promulgation of CHEF regulations on a number of items, including topics beyond the threshold cost. See 25 U.S.C. 1621a(d). Following extensive consultation, the IHS needs to move forward with finalizing the regulations, as directed by Congress. For these reasons, the IHS is not making changes in response to this comment.

Comment: One commenter  15 indicated support, generally, for CHEF reimbursement of payments to non-PRC providers.

Response: In the proposed rule, the IHS sought comment on whether payments by PRC programs to patients, or other individuals or entities that are not PRC providers, should be included as eligible for CHEF reimbursement under these regulations and if so, under what circumstances. The IHS received no comments regarding payments to patients, such as reimbursements to patients who needed to pay out-of-pocket for their healthcare expenses prior to authorization by the PRC program. The IHS also did not receive any comments regarding payments made on behalf of patients in these circumstances. This is not an issue faced by IHS-operated PRC programs. We were seeking comments in case the Tribal Health Programs dealt with different scenarios or experiences. The IHS did not receive sufficient information to consider changes in this regard.

We have examined the impacts of this rule as required by Executive Order (E.O.) 12866 on Regulatory Planning and Review (September 30, 1993); section 604 of the Regulatory Flexibility Act (RFA), Public Law 96-354 [5 U.S.C. 601-612], as amended by subtitle D of the Small Business Regulatory Fairness Act of 1996, Public Law 104-121; the Unfunded Mandates Reform Act (UMRA) of 1995, Public Law 104-4; E.O. 13132 on Federalism (August 4, 1999); E.O. 13175 on Consultation and Coordination with Indian Tribal Governments; and the Congressional Review Act.

Executive Order 12866, as amended by Executive Order 14094, directs 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). Section 3(f) of Executive Order 12866, as amended, defines a “significant regulatory action” as one that is likely to result in a rule that may: (1) have an annual effect on the economy of $200 million or more in any one year (adjusted every three years by the Administrator of the Office of Information and Regulatory Affairs (OIRA) for changes in gross domestic product), or adversely affect in a material way a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities (2) create a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raise legal or policy issues for which centralized review would meaningfully further the President's priorities or the principles set forth in Executive Order 12866. OIRA has determined that this is a significant regulatory action as defined by Executive Order 12866, section 3(f).

RFA requires analysis of regulatory options that minimize any significant economic impact of a rule on small entities, unless it is certified that the final rule is not expected to have a significant economic impact on small entities. HHS certifies that this final rule is not expected to have a significant economic impact on small entities, because the rule only governs reimbursements of certain expenditures made by Service Units under PRC authorities. Many PRC programs are operated by the Federal Government, through the IHS. The remaining PRC programs are operated by Tribes and Tribal Organizations under ISDEAA agreements with the IHS. Presently, there are 62 federally operated PRC programs and 188 tribally operated PRC programs. Some of the entities operating PRC programs may be small entities, but the rule does not directly impact a substantial number of small entities and the rule is not expected to reduce their revenues or raise their costs.

Section 202 of UMRA (Pub. L. 104-4) requires an assessment of anticipated costs and benefits before proposing any rule that may result in expenditure by State, local, and Tribal governments, in aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $183 million (in 2023 dollars), using the most recent full year of data for the Implicit Price Deflator for the Gross Domestic Product. We find that this rule will not have an effect on the economy that exceeds the UMRA threshold in any one year. The IHS FY 2023 annual appropriation for the CHEF was $54 million. Thus, this final rule is not anticipated to have an effect on State, local, or Tribal governments in the aggregate, or by the private sector that exceed the UMRA monetary threshold.

E.O. 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on State and local governments, preempts State law, or otherwise has federalism implications. We reviewed this rule under the threshold criteria of E.O. 13132 and determined that it would not have substantial direct effect on States, on the relationship between the Federal Government and States, or on the distribution of power and governmental responsibilities among the various levels of the government(s). As this rule has no Federal implications, a federalism summary impact statement is not required.

This rule has Tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would have a substantial direct effect on one or more Indian Tribes.

The first proposed CHEF rule, published on January 26, 2016 (81 FR 4239), was developed with input from Tribes and IHS personnel who work with the daily processing and management of PRC resources. Specifically, the IHS Director's Workgroup met and discussed the CHEF guidelines on October 12-13, 2010, and June 1-2, 2011, in Denver, Colorado, and on January 11-12, 2012, in Albuquerque, New Mexico. This Workgroup is a Federal-Tribal workgroup established in 2010 to provide advice and recommendations on strategies to improve the PRC Program to the IHS Director. In addition, the IHS issued Tribal Leader letters related to the development of these regulations on February 9, 2011, 16 and May 6, 2013. 17

The IHS sought additional Tribal input throughout the development of the new proposed rule. Specifically, Tribal Consultations were held in the fall of 2016, including multiple in-person and telephonic Tribal Consultation sessions. 18 The proposed regulations were also a topic of discussion during multiple meetings of the IHS Director's Workgroup. At meetings of the Workgroup in 2015 and 2018, the Workgroup recommended establishing a $19,000 CHEF threshold. Moreover, in November 2020, the Workgroup recommended that the IHS promulgate new regulations based on Workgroup input. Based on the recommendation of the Workgroup, the threshold amount of $19,000 was proposed to be established for the current fiscal year, which at the time was FY 2020.

Before a rule can take effect, the CRA requires agencies to submit to the U.S. House of Representatives, U.S. Senate, and the Comptroller General a report containing a copy of the rule and a statement identifying whether it is a “major rule.” 5 U.S.C. 801. The OMB determines if a final rule constitutes a major rule. The CRA defines a major rule as any rule that the Administrator of OMB's Office of Information and Regulatory Affairs finds has resulted in or is likely to result in—(A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions, or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. 5 U.S.C. 804(2).

This final rule is not a major rule for purposes of the Congressional Review Act. HHS/IHS will submit a report, including the final rule, to both houses of Congress and the Government Accountability Office for review.

For the reasons set out in the preamble, the IHS amends 42 CFR part 136 as set forth below:

I. Executive Summary of Final Rule II. Background on the AmeriCorps Seniors Programs Affected by This Rule III. Comments on the Proposed Rule, AmeriCorps' Responses, and an Overview of the Final Rule A. Income Calculation—SCP (§§ 2551.12, 2551.43, and 2551.44); FGP (§§ 2552.12, 2552.43, and 2552.44) B. Administrative Leave—SCP (§§ 2551.23(i) and 2551.46(a)); FGP (§§ 2552.23(i) and 2552.46(a)) C. Allowing Grantees To Pay Higher Stipends—SCP (§ 2551.92(e)); FGP (§ 2552.92(e)) D. Removing the Requirement for a Full-Time Project Director—SCP (§ 2551.25(c)); FGP (§ 2552.25(c)); RSVP (§ 2553.25(c)) E. Establishing a Single, 10 Percent Match, Regardless of Year—RSVP (§ 2553.72) F. Other Comments on the Proposed Rule IV. Regulatory Analyses A. Executive Orders 12866 and 13563 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Paperwork Reduction Act E. Federalism (E.O. 13132) F. Takings (E.O. 12630) G. Civil Justice Reform (E.O. 12988) H. Consultation With Indian Tribes (E.O. 13175) I. Executive Summary of Final Rule

This rule updates AmeriCorps Seniors regulations implementing the Senior Companion Program (SCP), Foster Grandparent Program (FGP), and RSVP. The updates to the SCP and FGP regulations, at Code of Federal Regulations (CFR) parts 2551 and 2552, respectively, parallel each other and include changes to simplify provisions on calculation of an AmeriCorps Seniors volunteer's income to determine whether they are eligible for a stipend and removal of certain items from being considered as income. The updates to the SCP and FGP regulations also specify that volunteers who receive a stipend may be paid the stipend when the sponsor places them on administrative leave due to extenuating circumstances that prevent service. The updates also allow grantees to pay stipends at a higher rate than that established by AmeriCorps Seniors, if they choose to do so, as long as they do not use AmeriCorps grant funds to pay for the amount that is above the established stipend rate.

The updates to the RSVP regulations at part 2553 change the level of non-AmeriCorps support (“match”) that an RSVP sponsor must provide. Currently, the regulations allow AmeriCorps to grant up to 90 percent of the total RSVP budgeted project cost in the first year of a grant, but only 80 percent in the second year and 70 percent in the third and successive years. As a result, grantees currently must provide matching funds that are 10 percent of the total project cost in the first year of a grant, 20 percent in the second year, and 30 percent in successive years. The rule being finalized today instead establishes a single required match rate at 10 percent, regardless of the grant year.

Lastly, this rule makes nomenclature changes to add a definition for “AmeriCorps” and change references to the “Corporation” and “CNCS” to “AmeriCorps” throughout these regulations, to reflect that the Corporation for National and Community Service now operates as AmeriCorps. This rule also changes “National Senior Service Corps (NSSC)” to “AmeriCorps Seniors” to reflect current terminology and branding.

One change was proposed but is not being finalized today, in response to the comments opposing the change, as discussed below: the update that would have removed the requirement for grantees to employ a full-time project director.

AmeriCorps Seniors operates four programs: the Senior Companion Program (SCP), Foster Grandparent Program (FGP), RSVP (formerly the Retired and Senior Volunteer Program), and a Senior Demonstration Program. This rule affects regulations implementing the first three programs. These programs are authorized by the Domestic Volunteer Service Act of 1973, as amended, 42 U.S.C. 4950 et seq., and this rulemaking is authorized by the National and Community Service Act of 1990, as amended, 42 U.S.C. 12501 et seq.

AmeriCorps Seniors SCP and FGP each provide grants to qualified agencies and organizations (known as grantees) for the dual purpose of engaging persons 55 and older, particularly those with limited incomes, in volunteer service to meet critical community needs and to provide a high-quality experience that will enrich the lives of older adult volunteers. In SCP, program funds are used to support Senior Companions in providing supportive, individualized services to help older adults and those with special needs maintain their dignity and independence. They also serve caregivers with respite support. In FGP, program funds are used to support Foster Grandparents in providing supportive, person-to-person service to children with special and/or exceptional needs, or in circumstances that limit their academic, social, or emotional development. In SCP and FGP (but not RSVP), volunteers who are “low income” (meaning their income is at or below 200 percent of the poverty line) may receive stipends to allow them to serve without cost to themselves. See 42 U.S.C. 5011(d)-(e), 5013(b).

In SCP, FGP, and RSVP, the sponsor receiving the grant has several responsibilities. Among them is the responsibility to provide staff sufficient to support the project. Another is the responsibility to raise “match,” meaning non-AmeriCorps cash and in-kind contributions in support of the grant. The match amount is stated as a percentage of the total project cost. For both SCP and FGP grantees, the required match is 10 percent, meaning the AmeriCorps grant funds 90 percent of the total budgeted project cost. See 42 U.S.C. 5011(a), 5013(a). For RSVP, the statute limits match to no more than 10 percent in the first year, 20 percent in the second year, and 30 percent in subsequent years. See 42 U.S.C. 5001(b). In other words, the statute provides upper limits (tiered by year) on what RSVP grantees may be required to provide as match. The current RSVP regulations, however, instead frame match as a limit on AmeriCorps' contributions to 90 percent in the first year, 80 percent in the second year, and 70 percent thereafter—in effect placing a requirement, rather than an upper limit, for grantee match at 10 percent in year one, 20 percent in year two, and 30 percent thereafter. See 45 CFR 2553.72.

Additionally, in SCP and FGP, AmeriCorps Seniors volunteers are offered a stipend for their service. The statute sets a minimum hourly rate for the stipend. See 42 U.S.C. 5011(d), 5013(b). AmeriCorps Seniors establishes the stipend rate annually through the Notice of Funding Opportunity; currently, the stipend rate is $4.00 per service hour. The current SCP and FGP regulations provide that a grantee must pay no more than and no less than the stipend rate that AmeriCorps establishes and offers no flexibility to grantees who may wish to use available additional funding to supplement the stipend.

AmeriCorps published a proposed rule on February 14, 2024 (89 FR 11233) and received 63 public comments in response by the April 15, 2024, comment deadline. Several of the comments expressed general support for the rule changes. Comments that specifically addressed one or more of the five proposed substantive changes are summarized below, along with AmeriCorps' responses to those comments and brief descriptions of the current regulations, proposals, and finalized provisions. A discussion of other comments received on the proposed rule is also included.

Current Regulation: The current regulations address an SCP and FGP volunteer's income in three sections: the definition of “annual income” (at §§ 2551.12 and 2552.12, respectively); the income guidelines governing eligibility to serve as a stipended volunteer (at §§ 2551.43 and 2552.43, respectively); and the categories of “income” for determining eligibility (at §§ 2551.44 and 2552.44, respectively). Currently, the definition of “annual income” and the sections addressing eligibility guidelines and the determination of “income” each contain components for the calculation of income.

Changes That Were Proposed: The proposed rule would streamline these sections so that the definition sets out only that the time period for calculation of annual income is 12 months, and all the components for the calculation of income are contained in one section each for SCP and FGP. Substantively, these changes would remove several items from being included in the calculation of a volunteer's income, including:

• The value of shelter, food, and clothing if provided at no cost by relatives of the volunteer or volunteer's spouse;

• Strike benefits;

• Training stipends; and

• Regular support that is not legally required from an absent family member or someone not living in the household.

Comments on the Proposed Changes: Most who commented on the proposed changes to the income calculation provisions expressed support for them. Among the reasons that commenters gave for their support were that the changes would remove barriers for individuals to serve as AmeriCorps volunteers, help volunteer recruitment and retention (which leads to more children and seniors being served by the FGP and SCP, respectively), and contribute to greater food security among low-income volunteers.

Several commenters requested that only the volunteer's income be considered, without the spouse's income or income of the entire household. These commenters stated that spousal income being included in a potential volunteer's income calculation is one of main reasons that grantees must turn away potential FGP and SCP volunteers.

One commenter stated that military veterans should be exempt from declaring their retirement as income.

Although the proposed rule did not address the income threshold (200 percent of the poverty line), several commenters advocated for an increase in the income threshold or removal of the threshold to engage more FGP and SCP volunteers and serve more individuals as a result. Most who requested an increase suggested increasing the threshold to 400 percent of the poverty level; one suggested a $5,000 to $10,000 increase per year in the threshold. Two commenters suggested using the Asset Limited, Income Constrained, Employed (ALICE) tool instead of the Federal poverty level as the income threshold as a more equitable determination that accounts for the local cost of living.

AmeriCorps' Response to Comments: AmeriCorps agrees with the commenters who stated that the proposed changes to income calculation would remove barriers for individuals to serve as FGP and SCP volunteers. The final rule includes these changes and focuses the income calculation more on long-term legally required income.

AmeriCorps acknowledges the comments stating that only the volunteer's income should be included in the calculation, and not the spouse's or any other family member's income. Consistent with the current and proposed rule, the final rule continues to require the spouse's income to be included in calculation of the volunteer's income if the spouse resides in the same residence. If AmeriCorps considers removing the incomes of cohabitating spouses from the calculation of a volunteer's income, it will propose that removal in a future rulemaking. However, this rulemaking takes steps to limit other relatives' support from being included in calculation of a volunteer's income. The proposed rule and final rule both focus solely on the volunteer's own income and resident spouse's income, rather than that of other relatives, as described below.

With regard to the comment requesting that military veterans' retirement income be excluded from their income calculation, if AmeriCorps considers adding this exclusion, it will propose the exclusion in a future rulemaking.

The comments regarding increasing, removing, or changing the income threshold cannot be addressed by rulemaking because the underlying statute, the Domestic Volunteer Service Act of 1973, as amended, establishes that the low-income threshold be not more than 200 percent of the Federal poverty line. See 42 U.S.C. 5011(e)(1).

Overview of Final Rule Provisions on Income Calculation: As proposed, and as finalized today, the volunteer's income calculation will no longer include the value of shelter, food, and clothing that relatives provide to the volunteer, or financial support that absent relatives opt to provide but are not legally required to provide. Under the proposed and final rules, the only financial support from non-resident relatives (other than the spouse living in the same residence) that is included in the volunteer's income calculation is financial support that the relatives are legally required to provide. The volunteer's spouse's income is included in the calculation only if the spouse lives in the same residence with the volunteer. As a result, when examining a volunteer's income to determine eligibility for a stipend under this proposal, AmeriCorps Seniors would look only at the volunteer's income, plus the spouse's income if the spouse lives in the same residence. The final rule also removes strike benefits and training stipends from the calculation of income, because their removal supports modernization of the regulations.

AmeriCorps expects these changes will simplify the determination of whether someone is eligible to serve as a stipended FGP or SCP volunteer and remove barriers to those individuals to serve in FGP and SCP. These changes will also support AmeriCorps Seniors programs' ability to recruit and retain volunteers, rebuild volunteer numbers to pre-COVID-19 levels, and reduce relinquishment of FGP and SCP program that result from difficulties recruiting eligible volunteers.

Current Regulation: Currently, the regulations governing SCP and FGP are silent as to whether AmeriCorps Seniors volunteers who receive a stipend for their service and earned leave may also receive a stipend for administrative leave.

Changes That Were Proposed: The proposed rule would add that stipended volunteers may be paid administrative leave, as long as grantees have written service policies to address administrative leave. The proposed rule would also require grantees to obtain AmeriCorps' approval to pay the stipend for administrative leave after the seventh calendar day of the extenuating circumstances that are the basis for the administrative leave.

Comments on the Proposed Changes: Most who commented on the administrative leave proposal supported the proposed changes. Among the reasons provided for support were that the proposed changes would enhance program flexibility to attract and retain volunteers and promote consistent volunteer participation. One commenter noted that many volunteers are dependent upon the stipend they receive and that any break in service, planned or unplanned, can create hardship for the volunteer.

A few of the commenters in support of the change suggested modifications. One suggested the regulation establish a “floor” of circumstances that would trigger administrative leave. Similarly, another stated that there should be guidelines as to what constitute “extenuating circumstances” that justify administrative leave. The other recommended increasing the time a stipend may be paid for administrative leave before AmeriCorps' approval is required, from the proposed seven calendar days to a month.

AmeriCorps' Response to Comments: AmeriCorps agrees that allowing stipends to be paid for administrative leave both enhances program flexibility to attract and retain volunteers and helps to protect volunteers who rely on their stipends from unpredictable loss of their stipend due to events beyond their control. AmeriCorps believes the phrase “extenuating circumstances” itself provides a baseline for the types of circumstances that would justify administrative leave—meaning circumstances that are exceptional, unusual, and/or unpredictable. The rule gives grantees the flexibility to establish for themselves what extenuating circumstances would justify administrative leave to complement their own policies' categorizations of circumstances qualifying as sick leave and emergency or disaster leave, as appropriate.

AmeriCorps has determined that seven calendar days is a more appropriate time period than a month for obtaining AmeriCorps' approval of continued payment of a stipend for administrative leave. As a practice, grantees should keep their portfolio managers updated as to any extenuating circumstances that affect their programs and service. Seven days is long enough to allow grantees to take any emergency action they may need to in response to the circumstances, while allowing AmeriCorps to provide some oversight to ensure that volunteers are not unnecessarily being paid for time not in service.

Overview of Final Rule Provisions on Administrative Leave: The final rule adopts the proposed rule's changes to allow SCP and FGP grantees to grant administrative leave to their volunteers in those unusual and rare situations that prevent a volunteer, through no fault of their own, from serving at their volunteer station, as long as the grantee's program policies permit administrative leave in such situations. Many dedicated AmeriCorps Seniors volunteers in SCP and FGP rely upon the stipend to supplement their limited incomes so they can pay for necessities like medicine and groceries. This change ensures that these volunteers are not penalized by having their stipends withheld for being unable to serve due to extenuating circumstances (as defined in the program's policy). While grantees must define the specifics of administrative leave, the rule provides parameters by defining the term as a temporary absence that the sponsor allows in extenuating circumstances that prevent the volunteer from serving, or from serving safely. The final rule provides a check on grantees providing administrative leave to volunteers by requiring AmeriCorps' approval to pay the stipend for administrative leave after the seventh calendar day of the extenuating circumstances that are the basis for the administrative leave.

Current Regulation: The current SCP and FGP regulations prohibit grantees from paying stipends at rates different from those established by AmeriCorps.

Changes That Were Proposed: The proposed rule would allow grantees to pay stipends to SCP and FGP volunteers at a higher rate than the rate established by AmeriCorps Seniors, if they choose to do so, and as long as they use funds other than AmeriCorps grant funds to pay for the amount above the established stipend rate. The proposed rule also would allow grantees to use funds with which they supplement the stipend to count toward required match contributions.

Comments on the Proposed Changes: A few commenters expressed their support for the proposed change as removing barriers to volunteer recruitment and retention, promoting economic security for older adults, and accounting for certain geographic areas having higher costs of living. Several commenters opposed the proposed change based on one or more of the following reasons: grantees able to supplement stipends will attract volunteers away from grantees who are not able to supplement stipends, creating inequities across the country; the different stipend rates will cause confusion among volunteers; and Congress might reduce funding for stipends overall.

AmeriCorps' Response to Comments: AmeriCorps agrees that allowing grantees to supplement stipends will help remove barriers to volunteer recruitment and retention, promote economic security for low-income volunteers, and account for different costs of living. AmeriCorps does not believe that the change will create inequities; rather, the change will help address the inequities that already exist among geographic areas with different costs of living. This rule provides grantees a means of attracting more volunteers if they are in an area with a higher cost of living and gives them an incentive to find more community support so they can supplement stipends. This flexibility aligns with the approach taken by AmeriCorps State and National in allowing grantees the flexibility to provide additional benefits and higher living allowances. AmeriCorps has no basis for expecting that this change will cause confusion among volunteers or result in reduced appropriations for stipends, as there is no evidence that these were issues when prior versions of the regulations allowed supplementation of stipends. See 45 CFR 1207.2-2 and 1208.2-2 (10/01/1996 edition).

Overview of Final Rule Provisions on Supplementation of Stipends: The final rule adopts the proposed rule's changes to allow grantees to pay volunteers a stipend at a rate higher than the AmeriCorps-established rate, should they have the desire and funding to do so, and allows grantees to count the funds with which they supplement the stipend toward their required match contribution. Grantees' supplementation of volunteers' stipends must comply with anti-discrimination and other laws.

The current regulation, which restricts all volunteers to the AmeriCorps-established stipend rate, prevents grantees from adjusting their benefits to account for the needs of volunteers in their local communities. This restriction is not compelled by statute, as the DVSA establishes only a minimum stipend rate ($3.00 per hour). Earlier versions of the regulation explicitly allowed for stipend payments in excess of the amount established by AmeriCorps (then “ACTION”). See 45 CFR 1207.2-2 and 1208.2-2 (10/01/1996 edition). The final rule reinstitutes this allowance, and also allows the supplemented stipend amount to count toward the required match contribution. Under the final rule, AmeriCorps will continue to establish stipend rates and comply with the statutory minimum for stipend rates, but grantees will have the flexibility to supplement the rate with their non-AmeriCorps funds.

AmeriCorps expects that the flexibility for supplementing stipends will help grantees to recruit and retain volunteers by improving the feasibility of service for low-income volunteers whose costs of serving exceed the AmeriCorps-established stipend rate. This flexibility will also allow for grantees to account for things like higher costs of living in providing their volunteers with stipends, by using their grantee (non-AmeriCorps) share funds to add on to the single stipend rate that AmeriCorps establishes for the entire country.

Current Regulation: The current SCP, FGP, and RSVP regulations all require a sponsor to employ a full-time project director to accomplish project objectives and manage functions and project activities, except in a limited circumstance where the sponsor may negotiate with AmeriCorps for permission to instead employ a part-time project director. That circumstance is when the sponsor has demonstrated to AmeriCorps that having only a part-time project director will not adversely affect the size, scope, or quality of project operations.

Changes That Were Proposed: The proposed rule would have replaced these prescriptive requirements with a more results-focused requirement that grantees employ project staff sufficient to support the size, scope, and quality of project operations. In the application, the sponsor would have had to thoroughly outline their management plan to describe how each project director duty will be fulfilled. At the time of renewal, program structure would then be evaluated based on performance measures. The intention of the proposed change was to provide grantees with the flexibility to determine their own appropriate mix of staffing to support the project.

Comments on the Proposed Changes: Of those who commented on this proposed change, approximately half expressed support and half opposition. Those in support of the change stated that it allows programs to use staff more efficiently by allowing programs to reallocate work duties, adjust workflows, and increase continuity of services, without having to request a waiver from AmeriCorps. Those in opposition to the change stated that it would allow grantees to pull the currently full-time project directors onto other efforts, limiting the amount of time the project directors would be able to devote to the programs and undermining their ability to effectively run them, would contribute to understaffing the programs and job loss, and would increase compliance issues, as there would be no single full-time person accountable as program director. Commenters also pointed out that there is already a waiver process in place to enable grantees to employ a part-time director, and one commenter provided evidence that there are insufficient requests for waivers to justify a change to the general rule.

AmeriCorps' Response to Comments: AmeriCorps is persuaded by those comments opposing the change that state that a waiver process is already available and is not used so frequently as to justify a change to the overall requirement for a full-time project director. For this reason, AmeriCorps is not moving forward with finalizing this change at this time, but will monitor the number of waiver requests in the future to determine whether this change should be considered in a separate, future rulemaking.

Overview of Final Rule Provisions on Full-Time Project Director: The final rule retains the current regulatory requirement for a full-time project director, and opportunity for a waiver of this requirement.

Current Regulation: The current regulation provides that AmeriCorps RSVP grants may fund up to 90 percent of the total budgeted project cost in the first year, leaving the sponsor responsible for 10 percent of the total project cost through locally generated contributions. The current regulation then decreases the level of funding AmeriCorps may provide for RSVP grants to 80 percent (consequently increasing the sponsor's responsibility to 20 percent) in the second year, and further decreases AmeriCorps' contribution to 70 percent (consequently increasing the sponsor's responsibility to 30 percent) in the third year and beyond.

Changes That Were Proposed: The proposed rule would revise the current tiered match requirements for RSVP to instead provide RSVP parity with the FGP and SCP programs, which each require 10 percent match regardless of year.

Comments on the Proposed Changes: Every commenter who commented on the proposed match change supported the proposed reduction of required RSVP match to 10 percent. Among the reasons commenters expressed for their support were that the proposed change would establish parity with the FGP and SCP program match requirements; simplify raising and reporting match for RSVP grantees; help RSVP programs remain sustainable in a time of rapid inflation and stagnant or reduced funding from other non-Federal sources; have a compounding positive financial impact on RSVP grantees' ability to provide needed vital services to their communities; streamline management of RSVP program budgets; and allow for more focus on RSVP program requirements, volunteer recruitments, partnerships and potential new programming. A commenter also noted that the current 30 percent match can be a barrier for service in rural areas that are philanthropically underserved and that a 10 percent match, regardless of year, helps to remove this barrier.

AmeriCorps' Response to Comments: AmeriCorps agrees with these unanimous comments in support of the change to a 10 percent required match for RSVP, regardless of year. In addition to the reasons expressed by the commenters for their support, this change will also benefit grantees that have RSVP programs and FGP and/or SCP programs, by allowing them to have consistent policies across all their programs. AmeriCorps also anticipates that this change will reduce relinquishments of RSVP programs.

Overview of Final Rule Provisions on Income Calculation: The final rule removes the increasing required match for RSVP programs, requiring match at 10 percent regardless of year. The statute limits how much match funding RSVP grantees must provide to no more than 10 percent in the first year, 20 percent in the second year, and 30 percent in subsequent years. See 42 U.S.C. 5001(b). In other words, the statute provides upper limits (tiered by year) on what RSVP grantees may be required to provide as match. In contrast, the current RSVP regulations convert these upper limits into requirements for grantees to provide match at 10 percent in the first year, 20 percent in the second year, and 30 percent in subsequent years. See 45 CFR 2553.72. The final rule instead uses the flexibility afforded by the statute to require 10 percent match for RSVP regardless of year. This change in required match is not expected to impact the quality of services provided to communities by the program because all program expectations remain the same under this final rule.

Two commenters commented on the proposed rule's nomenclature updates, such as the updates to reflect that “Senior Corps” is now called “AmeriCorps Seniors.” One commenter supported these updates. The other commenter opposed the updates, stating that most communities are only familiar with the separate identities of the FGP, SCP, and RSVP, and that “AmeriCorps” causes confusion because people think of the AmeriCorps State and National program. AmeriCorps is finalizing the nomenclature updates, as its programs have been operating under the unifying moniker “AmeriCorps” for several years.

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. The Office of Information and Regulatory Affairs in the Office of Management and Budget determined this rule is not a significant regulatory action.

As required by the Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq. ), AmeriCorps certifies that this rule, if adopted, will not have a significant economic impact on a substantial number of small entities. While many grantees are small governmental jurisdictions or not-for-profit enterprises that may qualify as small entities, the economic effect of this proposed rule on those small entities is minimal. Therefore, AmeriCorps has not performed the initial regulatory flexibility analysis that is required under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) for rules that are expected to have such results.

For purposes of title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531-1538, as well as Executive Order 12875, this regulatory action does not contain any Federal mandate that may result in increased expenditures in Federal, State, local, or Tribal Governments in the aggregate, or impose an annual burden exceeding $100 million on the private sector.

Under the Paperwork Reduction Act, an agency may not conduct or sponsor a collection of information unless the collections of information display valid control numbers. This rule does not affect any information collections.

Executive Order 13132, Federalism, prohibits an agency from publishing any rule that has federalism implications if the rule imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This rulemaking does not have any federalism implications, as described above.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rulemaking: (a) meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and (b) meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

AmeriCorps recognizes the inherent sovereignty of Indian Tribes and their right to self-governance. We have evaluated this rulemaking under the agency's consultation policy and the criteria in Executive Order 13175 and determined that this rule does not impose substantial direct effects on federally recognized Tribes.

For the reasons stated in the preamble, under the authority of 42 U.S.C. 12651c(c), the Corporation for National and Community Service amends chapter XXV, title 45 of the Code of Federal Regulations as follows:

On February 8, 2024, we published in the Federal Register (89 FR 8631) a proposal to amend title 50 of the Code of Federal Regulations (CFR) at part 20. The proposal provided a background and overview of the migratory bird hunting regulations process and addressed the establishment of seasons, limits, and other regulations for hunting migratory game birds under §§ 20.100 through 20.107, 20.109, and 20.110 of subpart K. Major steps in the 2024-25 regulatory cycle relating to open public meetings and Federal Register notifications were illustrated in the diagram at the end of the February 8, 2024, proposed rule.

We provided the meeting dates and locations for the Service Regulations Committee (SRC) on our website at https://www.fws.gov/event/us-fish-and-wildlife-service-migratory-bird-regulations-committee-meeting and Flyway Council meetings on flyway calendars posted on our website at https://www.fws.gov/partner/migratory-bird-program-administrative-flyways. On October 10, 2023, we held open meetings with the Flyway Council Consultants, at which the participants reviewed information on the current status of migratory game birds and developed recommendations for the 2024-25 regulations for these species. The February 8, 2024, proposed rule provided detailed information on the proposed 2024-25 regulatory schedule.

On May 13, 2024, we published in the Federal Register (89 FR 41522) the proposed frameworks for migratory game bird hunting regulations during the 2024-25 season. On August 26, 2024, we published in the Federal Register (89 FR 68500) the final frameworks for migratory game bird hunting regulations, from which State wildlife conservation agency officials selected seasons, hours, areas, and limits for hunting migratory birds during the 2024-25 season.

The final rule described here is the final in the series of proposed, supplemental, and final rulemaking documents for migratory game bird hunting regulations for the 2024-25 season and deals specifically with amending subpart K of 50 CFR part 20. It sets hunting seasons, hours, areas, and limits for migratory game bird species. This final rule is the culmination of the annual rulemaking process allowing migratory game bird hunting, which started with the February 8, 2024, proposed rule. As discussed elsewhere in this document, we supplemented that proposal on May 13, 2024, and published final season frameworks on August 26, 2024, that provided the regulatory frameworks from which the States selected their hunting seasons. This final rule sets the migratory game bird hunting seasons based on that input from the States.

The programmatic document, “Second Final Supplemental Environmental Impact Statement: Issuance of Annual Regulations Permitting the Sport Hunting of Migratory Birds (EIS 20130139),” filed with the Environmental Protection Agency (EPA) on May 24, 2013, addresses NEPA compliance by the Service for issuance of the annual framework regulations for hunting of migratory game bird species. We published a notice of availability in the Federal Register on May 31, 2013 (78 FR 32686), and our Record of Decision on July 26, 2013 (78 FR 45376). We also address NEPA compliance for waterfowl hunting frameworks through the annual preparation of separate environmental assessments, the most recent being “Duck Hunting Regulations for 2024-25,” with its corresponding 2024 finding of no significant impact, available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2023-0113.

Section 7 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq. ), provides that the Secretary shall insure that any action authorized, funded, or carried out is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of critical habitat. Consequently, we conducted formal consultations to ensure that actions resulting from these regulations would not likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of their critical habitat. Findings from these consultations are included in a biological opinion, which concluded that the regulations are not likely to jeopardize the continued existence of any endangered or threatened species. Additionally, these findings may have caused modification of some regulatory measures previously proposed, and the final frameworks (89 FR 68500, August 26, 2024) reflect any such modifications. The biological opinion is available from https://www.regulations.gov at Docket No. FWS-HQ-MB-2023-0113.

Executive Order 14094 amends and reaffirms the principles of E.O. 12866 and E.O. 13563. Regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and are consistent with E.O. 12866, E.O. 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law. We have developed this final rule in a manner consistent with these requirements.

E.O. 12866, as reaffirmed by E.O. 13563 and amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget (OMB) will review all significant rules. This action is a “significant regulatory action,” as defined under section 3(f)(1) of E.O. 12866 (58 FR 51735, October 4, 1993), as amended by E.O. 14094 (88 FR 21879, April 11, 2023).

An economic analysis was prepared for the 2024-25 migratory bird hunting season. This analysis was based on data from the 2011 and the 2016 National Survey of Fishing, Hunting, and Wildlife-Associated Recreation (National Survey), the most recent years for which data are available. See discussion under Required Determinations, Regulatory Flexibility Act, below. This analysis estimated consumer surplus for four alternatives for duck hunting regulations. As defined by OMB in Circular A-4, consumers' surplus is the difference between what a consumer pays for a unit of a good or service and the maximum amount the consumer would be willing to pay for that unit. The duck hunting regulatory alternatives are (1) not opening a hunting season, (2) issuing restrictive regulations that allow fewer days than the 2023-24 season, (3) issuing moderate regulations that allow more days than in Alternative 2 but fewer days than the 2023-24 season, and (4) issuing liberal regulations that allow days similar to the 2023-24 season. The estimated consumer surplus associated with liberal regulations issued for the 2024-25 season across all flyways was $606 million to $797 million (2023$). We also chose Alternative 4 (liberal regulations) for the 2009-10 through 2023-24 seasons. The 2024-25 analysis is part of the record for this rulemaking action and is available at https://www.regulations.gov at Docket No. FWS-HQ-MB-2023-0113.

The annual migratory bird hunting regulations have a significant economic impact on substantial numbers of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ). An initial regulatory flexibility analysis was prepared to analyze the economic impacts of the annual hunting regulations on small business entities. This analysis is updated annually. The primary source of information about hunter expenditures for migratory game bird hunting is the National Survey, which is generally conducted at 5-year intervals. The 2022 National Survey did not collect migratory bird expenditure data, so the 2024-25 migratory bird hunting season analysis is based on the 2011 and 2016 National Surveys and the U.S. Department of Commerce's County Business Patterns, from which it is estimated that migratory bird hunters will spend approximately $2.6 billion (2023$) at small businesses during the 2024-25 migratory bird hunting season. Copies of the analysis are available upon request from the person listed above under FOR FURTHER INFORMATION CONTACT or from https://www.regulations.gov at Docket No. FWS-HQ-MB-2023-0113.

The Congressional Review Act (CRA; 5 U.S.C. 801 et seq. ) was signed into law as part of the Small Business Regulatory Enforcement Fairness Act (SBREFA; title II of Pub. L. 104-121, March 29, 1996). Pursuant to the CRA, OIRA designated this action as a major rule, as defined by 5 U.S.C. 804(2), because it is likely to result in an annual effect on the economy of $100 million or more. However, because this final rule establishes a regulatory program for an activity related to hunting and because hunting seasons are time sensitive, we establish the effective date of this final rule using the exemption in the CRA at 5 U.S.C. 808(1).

This rule does not contain any new collection of information that requires approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). OMB has previously approved the information collection requirements associated with migratory bird surveys and the procedures for establishing annual migratory bird hunting seasons under the following OMB control numbers:

• 1018-0019, “North American Woodcock Singing Ground Survey” (expires 02/28/2027).

• 1018-0023, “Migratory Bird Surveys, 50 CFR 20.20” (expires 05/31/2026). Includes Migratory Bird Harvest Information Program, Migratory Bird Hunter Surveys, Sandhill Crane Survey, and Parts Collection Survey.

• 1018-0171, “Establishment of Annual Migratory Bird Hunting Seasons, 50 CFR part 20” (expires 10/31/2024).

You may view the information collection request(s) at https://www.reginfo.gov/public/do/PRAMain. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

We have determined and certify, in compliance with the requirements of the Unfunded Mandates Reform Act, 2 U.S.C. 1501 et seq., that this final rulemaking does not include any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any 1 year and does not significantly or uniquely affect small governments.

The Department, in promulgating this final rule, has determined that this rule will not unduly burden the judicial system and that it meets the requirements of sections 3(a) and 3(b)(2) of E.O. 12988.

In accordance with E.O. 12630, this final rule, authorized by the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-711), does not have significant takings implications and does not affect any constitutionally protected property rights. This final rule will not result in the physical occupancy of property, the physical invasion of property, or the regulatory taking of any property. In fact, this final rule allows hunters to exercise otherwise unavailable privileges and, therefore, reduces restrictions on the use of private and public property.

E.O. 13211 requires agencies to prepare statements of energy effects when undertaking certain actions. While this final rule is a significant regulatory action under E.O. 12866, it is not likely to have a significant adverse effect on the supply, distribution, or use of energy and has not been designated by OIRA as a significant energy action. Therefore, no statement of energy effects is required.

In accordance with the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), E.O. 13175, and 512 DM 2, we have evaluated possible effects on federally recognized Indian Tribes with respect to impacts to Tribes' treaty rights to hunt waterfowl, and we have determined that there are de minimis effects on Indian Tribes for that aspect of their treaty rights. Through this process to establish annual hunting regulations, we regularly coordinate with Tribes that are affected by this final rulemaking action. This final rule will not 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 rule is general in nature and does not directly affect any specific Tribal lands, treaty rights, or Tribal trust resources. In addition, this final rule does not interfere with the ability of Tribes to manage themselves or their funds or to regulate migratory bird activities on Tribal lands. We recognize that, in certain cases, conflicts may arise between States and specific Tribes on aspects of other Tribal treaty rights. The Service actively supports the parties reaching a mutually agreeable solution to such conflicts. Therefore, we conclude that this final rule does not have “Tribal implications” under section 1(a) of E.O. 13175 with respect to waterfowl treaty rights. Thus, formal government-to-government consultation is not required by E.O. 13175 and related policies of the Department of the Interior. We will continue to collaborate with Tribes on concerns related to migratory bird hunting regulations.

Due to the migratory nature of certain species of birds, the Federal Government has been given responsibility over these species by the MBTA. We annually prescribe frameworks from which the States make selections regarding the hunting of migratory birds, and we employ guidelines to establish special regulations on Federal Indian reservations and ceded lands. This process preserves the ability of the States and Tribes to determine which seasons meet their individual needs. We recognize that, in certain cases, conflicts may arise between States and specific Tribes on aspects of other Tribal treaty rights. The Service actively supports the parties reaching a mutually agreeable solution to such conflicts.

Any State or Tribe may be more restrictive in its regulations than the Federal frameworks at any time. The frameworks are developed in a cooperative process with the States and the Flyway Councils. This process allows States to participate in the development of frameworks from which they will make selections, thereby having an influence on their own regulations. This final rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 13132, this final regulation does not have federalism implications and does not warrant the preparation of a federalism summary impact statement.

The February 8, 2024, proposed (preliminary) rulemaking (89 FR 8631) opened the public comment period for 2024-25 migratory game bird hunting regulations. We previously addressed all pertinent comments in our May 13, 2024, proposed rule (see 89 FR 41522) and August 26, 2024, final rule (89 FR 68500).

The rulemaking process for migratory game bird hunting, by its nature, operates under a time constraint as seasons must be established each year or hunting seasons remain closed. However, we intend that the public be provided extensive opportunity for public input and involvement in compliance with Administrative Procedure Act (5 U.S.C. subchapter II) requirements. Thus, when the preliminary proposed rulemaking was published, we established what we concluded were the longest periods possible for public comment and the most opportunities for public involvement. We also provided notification of our participation in multiple Flyway Council meetings, opportunities for additional public review and comment on all Flyway Council proposals for regulatory change, and opportunities for additional public review during the SRC meeting. Therefore, we conclude that sufficient public notice and opportunity for involvement have been given to affected persons.

Further, States need sufficient time to communicate these season selections to their affected publics, and to establish and publicize the necessary regulations and procedures to implement these seasons. Thus, we find that “good cause” exists, within the terms of 5 U.S.C. 553(d)(3) of the Administrative Procedure Act, and, therefore, under authority of the Migratory Bird Treaty Act (July 3, 1918), as amended (16 U.S.C. 703-711), these regulations will take effect less than 30 days after publication. Accordingly, with each conservation agency having had an opportunity to participate in selecting the hunting seasons desired for its State or Territory on those species of migratory birds for which open seasons are now prescribed, and consideration having been given to all other relevant matters presented, certain sections of title 50, chapter I, subchapter B, part 20, subpart K, are hereby amended as set forth below.

Shannon Estenoz, Assistant Secretary for Fish and Wildlife and Parks, approved this action on July 31, 2024, for publication. On August 22, 2024, Shannon Estenoz authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of the Interior.

For the reasons set out in the preamble, title 50, chapter I, subchapter B, part 20, subpart K of the Code of Federal Regulations is amended as follows: