The cyber threat faced by the nation's critical rail infrastructure has only increased in the time since TSA issued its initial security directives addressing cybersecurity in rail and mass transit in December 2021. 1 Cyber threats to surface transportation systems, including railroads and transit systems, continue to proliferate, as both nation-states and criminal cyber groups target critical infrastructure in order to cause operational disruption and economic harm. 2 In recent years, cyber attackers have maliciously targeted surface transportation modes in the United States, including freight railroads, passenger railroads, and rail transit systems, with multiple cyberattack and cyber espionage campaigns. 3 Cyber incidents, particularly ransomware attacks, are likely to increase in the near- and long-term, due in part to vulnerabilities identified by threat actors in U.S. networks. 4 Especially in light of the ongoing Russia-Ukraine conflict, 5 these threats remain elevated and pose a risk to the national and economic security of the United States.

In its 2023 annual assessment, the Intelligence Community noted that “China almost certainly is capable of launching cyber attacks that could disrupt critical infrastructure services within the United States, including against oil and gas pipelines, and rail systems.”  6 And the 2024 annual assessment notes that, “[i]f Beijing believed that a major conflict with the United States were imminent, it would consider aggressive cyber operations against U.S. critical infrastructure and military assets. Such a strike would be designed to deter U.S. military action by impeding U.S. decision-making, inducing societal panic, and interfering with the deployment of U.S. forces.”  7 In addition, “Russia maintains its ability to target critical infrastructure . . . in the United States as well as in allied and partner countries” and “Tehran's opportunistic approach to cyber-attacks puts U.S. infrastructure at risk for being targeted.”  8 Furthermore, “malicious cyber actors have begun testing the capabilities of [artificial intelligence (AI)]-developed malware and AI-assisted software development—technologies that have the potential to enable larger scale, faster, efficient, and more evasive cyber-attacks—against targets, including pipelines, railways, and other US critical infrastructure.”  9

To counter the threat to rail infrastructure, in December 2021, TSA issued two security directives to owners and operators of certain higher risk rail entities (owner/operators) requiring them to implement cybersecurity measures necessary to prevent disruption and degradation to their critical infrastructure. Security Directive 1580-21-01 (applicable to freight rail entities) and Security Directive 1582-21-01 (applicable to passenger rail and mass transit entities) required covered owner operators to: (1) report cybersecurity incidents to the Cybersecurity and Infrastructure Security Agency (CISA); (2) designate a cybersecurity coordinator to be available 24/7 to coordinate with TSA and CISA; (3) conduct a vulnerability assessment of cybersecurity practices, identify any gaps, and develop a plan and timeline for remediation; and (4) develop a Cybersecurity Incident Response Plan to reduce the risk of operational disruption in the event of a cybersecurity incident.

Due to the evolving threat to freight and passenger rail, TSA issued Security Directive 1580/82-2022-01 on October 18, 2022, which built on the requirements of the initial directives and required covered owner/operators to implement additional performance-based cybersecurity measures. 10 Under the performance-based framework of Security Directive 1580/82-2022-01, TSA identified critical security outcomes that covered parties must achieve. To ensure that these outcomes are met, the directive required owner/operators to:

• Establish and implement a TSA-approved Cybersecurity Implementation Plan (CIP) that describes the specific cybersecurity measures employed and the schedule for achieving the security outcomes identified; and

• Establish a Cybersecurity Assessment Program (CAP) and submit an annual plan that describes how the owner/operator will proactively and regularly assess the effectiveness of cybersecurity measures and identify and resolve device, network, and/or system vulnerabilities.

The performance-based approach enhances security by mandating that critical security outcomes are achieved while allowing owner/operators to choose the most appropriate security measures for their specific systems and operations.

In response to the continuing cyber threat to rail infrastructure, the requirements of Security Directive 1580-21-01, Security Directive 1582-21-01, and Security Directive 1580/82-2022-01 have been renewed and extended beyond their original expiration dates by subsequent directives, creating three security directive series (the 1580-21-01 series, the 1582-21-01 series, and 1580/82-2022-01 series). As TSA has renewed these directives series, it has also amended their requirements to strengthen their effectiveness and address emerging cyber threats.

The table below provides a list of each of the security directives within the 1580-21-01, 1582-21-01, and 1580/82-2022-01 series. All of the security directives provided in the table are available online in TSA's Surface Transportation Cybersecurity Toolkit. 11

In light of the continuing threat, TSA determined that the cybersecurity measures required by the 1580-21-01 and 1582-21-01 security directive series remain necessary to protect the nation's critical rail infrastructure beyond the October 24, 2023, expiration date of Security Directive 1580-21-01A and Security Directive 1582-21-01A. On October 23, 2023, TSA issued Security Directive 1580-21-01B and Security Directive 1582-21-01B, extending the requirements of the 1580-21-01 (applicable to freight rail) and 1582-21-01 (applicable to passenger rail and rail transit systems) security directive series for an additional year. Security Directive 1580-21-01B and Security Directive 1582-21-01B contained minor revisions to provide further clarity regarding the applicability of the directives and their compliance deadlines. Additionally, the directives included revisions to improve the effectiveness of the required Cyber Incident Response Plans (CIRPs) by specifying certain requirements for testing exercises. The directives became effective on October 24, 2023, and expired on October 24, 2024. 12

Considering the continuing threat, TSA also determined that the measures required by the 1580/82-2022-01 series remained necessary to protect the Nation's critical rail infrastructure beyond Security Directive 1580/82-2022-01's expiration date of October 24, 2023. On October 23, 2023, TSA issued Security Directive 1580/82-2022-01A, extending the requirements of the 1580/82-2022-01 series for an additional year. The directive became effective on October 24, 2023, and was set to expire on October 24, 2024.

In addition to extending the performance-based requirements of the initial directive in this series, Security Directive 1580/82-2022-01A included revisions to strengthen the effectiveness of these requirements and allow greater ability to respond to changing threats. Specifically, the revisions improved the effectiveness of the requirements related to Cybersecurity Assessment Plans (referred to as Cybersecurity Assessment Programs in prior versions); ensured the provisions related to defining Critical Cyber Systems allow flexibility to respond to emerging and evolving threats; and provided greater clarity regarding the role of “Managed Security Service Providers” and “Authorized Representatives.”

To address ongoing cyber threats to rail transportation infrastructure, TSA determined that further amendments to the 1580/82-2022-01 series were necessary prior to the expiration of Security Directive 1580/82-2022-01A. On July 1, 2024, TSA issued Security Directive 1580/82-2022-01C, revising and extending the requirements of Security Directive 1580/82-2022-01A. 13 The directive became effective on July 1, 2024, 2024, and is set to expire on May 2, 2025.

Security Directive 1580/82-2022-01C specifically requires Positive Train Control (PTC) systems be included in owner/operators' list of Critical Cyber Systems, subjecting them to the applicable performance-based cybersecurity measures. The designation of PTC systems as a Critical Cyber System ensures that PTC systems are protected by the performance-based cybersecurity measures of the Security Directive 1580/82-2022-01 series.

TSA issued Security Directive 1580-21-01B, Security Directive 1582-21-01B, Security Directive 1580/82-2022-01A, and Security Directive 1580/82-2022-01C under 49 U.S.C. 114( l )(2)(A), which authorizes TSA to issue emergency regulations or security directives without providing notice or the opportunity for public comment when “the Administrator determines that a regulation or security directive must be issued immediately in order to protect transportation security . . . .” Security directives issued pursuant to the procedures in 49 U.S.C. 114( l )(2) “shall remain effective for a period not to exceed 90 days unless ratified or disapproved by the [Transportation Security Oversight Board] or rescinded by the Administrator.”  14

The Transportation Security Oversight Board (TSOB) is a body consisting of the Secretary of Homeland Security, the Secretary of Transportation, the Attorney General, the Secretary of Defense, the Secretary of the Treasury, the Director of National Intelligence, or their designees, and a representative of the National Security Council. 15 Among its statutory duties, the TSOB must “review and ratify or disapprove” security directives issued under 49 U.S.C. 114( l )(2) within 30 days of the action's issuance. 16

Following the issuance of Security Directive 1580-21-01B, Security Directive 1582-21-01B, Security Directive 1580/82-2022-01A, and Security Directive 1580/82-2022-01C, the chair of the TSOB convened the board to review the directives. 17 In reviewing each directive, the TSOB reviewed the required measures extended and amended by the directives and the continuing need for TSA to maintain these requirements pursuant to its emergency authority under 49 U.S.C. 114( 1 )(2) to prevent the disruption and degradation of the country's critical transportation infrastructure. The TSOB also considered whether to authorize TSA to extend each security directive beyond their expiration dates subject to certain conditions, should the TSA Administrator believe such an extension is necessary to address the evolving threat that may continue beyond the original expiration date.

Following its review, the TSOB ratified Security Directive 1580-21-01B, Security Directive 1582-21-01B, and Security Directive 1580/82-2022-01A on November 22, 2023; and ratified Security Directive 1580/82-2022-01C on July 29, 2024. The TSOB also authorized TSA to extend each of the security directives beyond their current expiration dates, should the TSA Administrator determine such an extension is necessary to address the evolving threat that may continue beyond the original expiration date. Such an extension is subject to the following conditions: (1) there are no changes to the security directive other than an extended expiration date; (2) the TSA Administrator makes an affirmative determination that conditions warrant the extension of the directive's requirements; and (3) the TSA Administrator documents such a determination and notifies the TSOB.

This final rule affecting the Order (7 CFR part 1222) is authorized by the Commodity Promotion, Research, and Information Act of 1996 (Act) (7 U.S.C. 7411-7425).

The Agricultural Marketing Service (AMS) is issuing this rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This rule is not a significant regulatory action within the meaning of Executive Order 12866. Accordingly, this action has not been reviewed by the Office of Management and Budget under section 6 of the Executive Order.

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions will have Tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian Tribes, or 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 has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the Act (7 U.S.C. 7418), a person subject to an order may file a written petition with the U.S. Department of Agriculture (USDA), stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

Under the Order, which became effective on January 23, 2014, the Paper and Packaging Board (Board), with oversight by USDA, administers a nationally coordinated program of research, promotion and information designed to strengthen the paper and paper-based packaging industry. The program covers four types of paper and paper-based packaging—printing and writing paper (used to make products for printing, writing, and other communication purposes), kraft packaging paper (used for products like grocery bags and sacks), containerboard (used to make corrugated boxes, shipping containers, and related products), and paperboard (used for food and beverage packaging, tubes, and other miscellaneous products). The program is financed by assessments on domestic manufacturers and importers of paper and paper-based packaging.

This final rule makes multiple clarifying amendments to the Order. These amendments include an added definition for partnership; clarification on the nomination process; clarification of language about in person and electronic voting for any Board meetings; an update of the timing of financial reporting; and revised requirements concerning when exemptions may be requested. The Board, which is composed of domestic manufacturers from across the country and importers, unanimously recommended the changes to the Order on August 19, 2023. This action modifies language in the Order to bring it up to date with current industry practices.

The final rule revises several sections in subpart A of the Order. This rule changes the language in § 1222.7 from fiscal period to fiscal year as the term is better understood by the industry. Sections 1222.12 and 1222.13 include the term produce and producer respectively in the definition of manufacture and manufacturer. The term produce and producer are not used in the paper and paper-based packaging industry. Therefore, the final rule removes these terms from the definition of manufacture and manufacturer.

Lastly, this rule adds a new term for partnership in § 1222.19 and states that a partnership includes, but is not limited to, spouses and joint ventures. This revision clarifies who is responsible for paying assessments. With this change, the existing §§ 1222.19 through 1222.29 are renumbered.

Section 1222.41 outlines the Board nominations and appointments process. This rule amends § 1222.41(c)(1) by specifically issuing a call for nominations to all current manufacturers and importers who have paid assessments during the prior fiscal year. Furthermore, revisions to § 1222.41(c)(4) and (5) remove repetitive language. Lastly, § 1222.41(c)(10) is revised by the rule to specify that no two members shall be employed by a single manufacturer or importer that pays assessments under the Order to avoid confusion as to who can serve on the Board.

Section 1222.43(a) allows the Secretary to remove a Board member or employee for failure or refusal to perform their duties, per the Board's recommendation. This final rule removes the employee clause to be consistent with language in other research and promotion orders.

Section 1222.44 outlines the Board's procedures for conducting Board meetings. Section 1222.44(c) states that votes shall be cast in person at an assembled meeting. Additionally, § 1222.44(d) allows for other means of voting in lieu of voting at an assembled meeting. This final rule includes revisions to both sections to include options for electronic voting, or other means.

Section 1222.47 outlines prohibited activities for the Board. Section 1222.47(c) states no program, plan or project including advertising shall be false, misleading, or disparaging to another agriculture commodity. To be consistent in writing style, the rule modifies the language to state any program, plan or project including advertising that is false, misleading, or disparaging to another agriculture commodity. This section is updated to ensure clarity in wording.

Section 1222.50(i) outlines the operating monetary reserve for the Board and states that the funds in the reserve may not exceed one fiscal year's budget of expenses. This rule increases the funds in the reserve so they may not exceed two fiscal years, which is consistent with other research and promotion orders.

Section 1222.51(b) describes when financial statements are to be submitted to the Department. The current timeframe is 30 days after the time period to which it applies, which is too restrictive because the Board reports financial statements on a quarterly basis. Therefore, this final rule specifies that the financial statements are to be submitted quarterly and no later than 70 days after the period to which it applies.

Section 1222.51(c) refers to the annual financial statement that is submitted to the Department. The annual financial statement is due to the Department within 90 days after the end of the fiscal year. The Board has had difficulty in meeting this short deadline. Therefore, this rule extends the timeframe to no later than 120 days to allow the Board more time to submit the statement to the Department.

Section 1222.52(e) states that importers of paper and paper-based packaging shall pay assessments through Customs to the Board. Customs does not currently collect import assessments for the Board and therefore, this final rule removes “through Customs” in paragraph (e), instead stating that each importer shall pay their assessment to the Board.

Section 1222.52(f) states Customs collects assessments. Since Customs does not collect the assessment, the final rule revises the section to state that each importer is responsible for paying assessments directly to the Board.

Section 1222.53(a)(1) specifies the minimum quantity necessary to be eligible for an exemption from assessments and requires manufacturers to apply for an exemption prior to the start of the marketing year. This final rule removes this requirement, allowing them to apply for an exemption at any time during a marketing year, not just before the year starts.

Section 1222.53(a)(2)(iii) provides that importers' assessments are collected by Customs and the Board shall refund the importer who has filed for exemption. Because Customs doesn't collect assessments, the final rule updates this section to reflect that the importer would pay the Board directly.

Section 1222.53(a)(5) details how the quantity of paper and paper-based packaging counts towards an exemption. This final rule revises the paragraph to ensure that in determining whether a manufacturer or import qualifies for the exemption, the combined quantity of all paper and paper-based packaging manufactured or imported during a marketing year shall count towards the 100,000 short ton exemption.

Section 1222.81(b)(2) refers to the frequency of referenda and outlines the criteria for continuation. This final rule updates this section to clarify that only eligible domestic manufacturers or eligible importers are included in the referendum voting. This change does not change who can vote and does not change voting restrictions.

Section 1222.82(b) states that the Secretary has the right to suspend or terminate the program whenever it is favored by the industry. The final rule updates this section to make the language used more concise to avoid confusion by the industry.

This rule updates definitions in § 1222.101 to be consistent with terms defined in subpart A. Specifically, paragraph (e) includes producer in the definition for eligible domestic manufacturer. This final rule revises this section to remove the word producer. Paragraph (i) includes the term produce in the definition of manufacture and this final rule removes the term produce from the definition.

Lastly, § 1222.102(a) outlines the voting eligibility of domestic manufacturers and importers. This final rule revises this section to include clarifying language to avoid confusion in the eligibility.

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities that would be affected by this rule. The purpose of the RFA is to fit regulatory action to scale of businesses subject to such action so that small businesses will not be disproportionately burdened. Manufacturers and importers would be considered agricultural service firms. The Small Business Administration defines small agricultural service firms as those having annual receipts of no more than $30 million (13 CFR part 121).

According to the Board, there are approximately 47 manufacturers in the United States that manufacture the types of paper and paper-based packaging covered under the Order. Using an average price of $1,350 per short ton, 1 a manufacturer who manufactures less than 22,220 short tons of paper and paper-based packaging per year would be considered a small entity. The Board estimated that no entity manufactured less than 22,220 short tons in 2022; thus, no domestic manufacturers would be considered small businesses.

Based on Customs data, there were 3,272 importers of paper and paper-based packaging in 2022. Of these, 40 importers, or 1 percent, had annual receipts of more than $30 million of paper and paper-based packaging. Thus, the majority of importers would be considered small entities.

This final rule makes multiple clarifying changes to the Order. The changes include a revision to the definition of importer; inclusion of a definition for partnership; clarification of the nominations process; clarifying language about in person and electronic voting for any Board meetings; an update to the timing of financial reporting; and a revision to the requirements concerning when exemptions will be requested.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the information collection and recordkeeping requirements that are imposed by the Order have been approved previously under OMB control number 0581-0093. This final rule does not change the information collection and recordkeeping requirements previously approved and would impose no additional reporting and recordkeeping burden on domestic manufacturers and importers of paper and paper-based packaging.

As with all Federal research and promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.

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

Regarding alternatives, the Board considered not making the clarifying changes to the Order and leaving it as it is currently. The Board decided against leaving the Order unchanged as confusion would continue and potentially worsen over time. Therefore, that alternative was rejected.

Regarding outreach efforts, the Board determined that making these changes clarifies the issues and answer questions that have arisen over the last eight years and will help resolve similar questions in the future. These changes were discussed by the Board in June and November 2022, and the full Board unanimously recommended the changes on August 19, 2023. AMS has performed this RFA analysis regarding the impact of this action on small entities and invited comments concerning potential effects of this action.

A proposed rule concerning this action was published in the Federal Register on July 15, 2024 (89 FR 57368). A copy of the proposed rule was also made available through the internet by AMS via https://www.regulations.gov. A 30-day comment period ending on August 14, 2024, was provided for interested parties to respond to the proposal.

During the proposed rule's 30-day comment period, AMS received two comments, which may be viewed on https://www.regulations.gov/document/AMS-SC-23-0080-0001/comment. One comment received was in support of the changes, and one comment was opposed.

The commenter in support of the changes stated they are in favor of the changes as they will be helpful for industry stakeholders.

The other commenter opposed the revised definition of importer, stating the change broadens the scope of the definition, potentially causing confusion. The commenter suggested not revising the definition. AMS considered the comment and agreed. Therefore, the change was not made to this rule.

With all relevant material presented, including the information and recommendations submitted by the Board, the comments received, and other available information, it is hereby found that this rule, as hereinafter set forth, is consistent with and will effectuate the purposes of the Order.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 1222 as follows:

On November 1, 2022, DOE published a final rule in the Federal Register amending the test procedure for automatic commercial ice makers (“ACIMs”) (87 FR 65856; “November 2022 ACIM Final Rule”). As part of the November 2022 ACIM Final Rule, DOE codified certification requirements for ACIMs at title 10 of the Code of Federal Regulations (“CFR”) 429.45. However, in the publication of the November 2022 ACIM Final Rule, DOE inadvertently updated 10 CFR 429.45(a)(2)(ii) with a typographical error in the formula for the upper 95-percent confidence limit (“UCL”) which used a “minus” sign instead of a “plus” sign between the terms of the UCL formula ( see 87 FR 65856, 65899 (Nov. 1, 2022)). This document identifies and corrects this error.

On July 1, 2016, DOE published a final rule in the Federal Register amending the test procedure for integrated light-emitting diode (“LED”) lamps (81 FR 43404; “July 2016 Integrated LED Lamps Final Rule”). In the July 2016 Integrated LED Lamps Final Rule, DOE adopted the requirement that testing of lumen output, input power, lamp efficacy, power factor, correlated color temperature (“CCT”), color rendering index (“CRI”), lifetime, and standby mode power (if applicable) for integrated LED lamps be conducted by test laboratories accredited by National Voluntary Laboratory Accreditation Program (“NVLAP”) or an accrediting organization recognized by the International Laboratory Accreditation Cooperation (“ILAC”), as codified at 10 CFR 429.56(b)(2). Further, in the July 2016 Integrated LED Lamps Final Rule, DOE provided that it would state directly that accreditation by an Accreditation Body that is a signatory member to the ILAC Mutual Recognition Arrangement (“MRA”) is an acceptable means of laboratory accreditation. 81 FR 43404, 43419 (July 1, 2016). However, DOE inadvertently did not update the certification requirements for integrated LED lamps in 10 CFR 429.56(b)(2) to reflect this statement. This document identifies and corrects this error by specifying in 10 CFR 429.56(b)(2) that the certification report must include the testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body.

Additionally, in the July 2016 Integrated LED Lamps Final Rule, DOE inadvertently updated 10 CFR 429.56(b)(2) to specify that lifetime be reported in years. As indicated in the determinations of their represented values in 10 CFR 429.56(a)(1)(ii)(D) and 10 CFR 429.56(a)(2), respectively, lifetime must be reported in hours and life must be reported in years. This document identifies and corrects this error.

On August 31, 2022, DOE published a final rule in the Federal Register amending the test procedure for general service fluorescent lamps (“GSFLs”), incandescent reflector lamps (“IRLs”), and general service incandescent lamps (“GSILs”) (87 FR 53618; “August 2022 Lamps Final Rule”). In the August 2022 Lamps Final Rule, DOE reorganized 10 CFR 429.27 to apply only to GSFLs (as opposed to GSFLs, GSILs, and IRLs), establishing new sections 10 CFR 429.55 for IRLs and 10 CFR 429.66 for GSILs, so that each lamp type ( i.e., GSFL, IRL, GSIL) has its own section within 10 CFR part 429. 87 FR 53618, 53629 (August 31, 2022). However, as part of the August 2022 Lamps Final Rule, DOE inadvertently did not update the certification requirements for general service lamps (“GSLs”) in 10 CFR 429.57 to change references to 10 CFR 429.27 to reflect this reorganization. Specifically, 10 CFR 429.57(a)(2), (a)(5) and (b)(3) refer to certification requirements for GSILs at 10 CFR 429.27 when they should reference 10 CFR 429.66. This document identifies and corrects this error.

Additionally, in the August 2022 Lamps Final Rule DOE clarified the definition of “rated wattage” in 10 CFR 430.2, which included replacing the references to appendix R with references to the relevant sections in 10 CFR part 429. 87 FR 53618, 53629 (August 31, 2022). However, in making this update, with respect to GSILs, DOE inadvertently referenced 10 CFR 429.27 instead of 10 CFR 429.66 (see paragraph (2) of the “rated wattage” definition in 10 CFR 430.2). This document identifies and corrects this error.

On September 8, 2022, DOE published a final rule in the Federal Register amending the battery charger portion of the battery charger and uninterruptible power supply (“UPS”) test procedure at 10 CFR part 430, subpart B, appendix Y (“appendix Y”) (87 FR 55090, “September 2022 Battery Charger Final Rule”). The final rule also created a new test procedure for both products at 10 CFR part 430, subpart B, appendix Y1 (“appendix Y1”) that expanded the scope of the battery charger test method and established separate metrics for active mode, standby mode, and off mode for all battery chargers other than uninterruptible power supplies. Manufacturers must continue to use the amended test procedure in appendix Y until the compliance date of any new final rule establishing amended energy conservation standards based on the newly established test procedure in appendix Y1 (although early compliance is permitted). 87 FR 55090, 55122 (Sept. 8. 2022). After the compliance date of new standards for battery chargers other than UPSs using these new metrics, manufacturers may no longer use appendix Y and instead will be required to determine compliance using the updated test procedure at appendix Y1. Id. at 87 FR 55125.

On April 19, 2024, DOE published a final rule in the Federal Register (“April 2024 UPS Final Rule”) amending the UPS test procedure in appendix Y and appendix Y1, which incorporated by reference relevant portions of the latest version of the relevant industry testing standard, harmonized the current DOE definitions with the definitions in the latest version of the industry standard, and added a no-load testing condition as an optional test. 89 FR 28581.

DOE has identified a reference error in both DOE's UPS enforcement provisions at 10 CFR 429.134(o), as well as appendix Y of the UPS test procedure. In 10 CFR 429.134(o), and in sections 0.1(d), 0.1(p), 0.1(q), 0.1(r), and 4.3.4 of appendix Y, DOE incorrectly referenced sections 2.28.1 through 2.28.3 of appendix Y for UPS architecture tests. The correct reference should be sections 2.27.1 through 2.27.3 of appendix Y. DOE additionally notes that the UPS enforcement provisions should also have been updated to address how to determine the UPS architecture of a unit tested using appendix Y1. This document identifies and corrects these reference errors.

In the April 2024 UPS Final Rule, DOE also updated the introductory note to appendix Y. 89 FR 28581, 28592 (April 19, 2024). DOE intended to replace the introductory note, to add an introductory table, and to remove the introductory text to appendix Y. However, as written, the final rule did not remove the now-obsolete introductory text. This document identifies and removes this text.

The test procedure established for consumer water heaters and residential-duty commercial water heaters is located in DOE's regulations at 10 CFR part 430, subpart B, appendix E, “Uniform Test Method for Measuring the Energy Consumption of Water Heaters” (“appendix E”), and it specifies that tests must be conducted under specific conditions, depending on the type of water heater being tested. On June 21, 2023, the DOE published a final rule in the Federal Register adopting an amended test procedure for consumer water heaters and residential-duty commercial water heaters (88 FR 40406; “June 2023 Water Heater Final Rule”).

In the preamble to the June 2023 Water Heater final rule, DOE discussed that it was amending the ambient air temperature tolerances required for tests conducted on all water heaters other than heat pump water heaters ( i.e., for “non-heat pump water heaters”), which was to be specified at section 2.2.1 of appendix E. 88 FR 40406, 40435-40436 (June 21, 2023). Specifically, in section III.C.4 of the June 2023 Water Heater Final Rule, DOE explained that it had initially proposed in a notice of proposed rulemaking (“NOPR”) published in the Federal Register on January 11, 2022 (87 FR 1554; “January 2022 Water Heater NOPR”) to update the ambient temperature requirement for non-heat pump water heaters to require that the ambient temperature during testing must be an average of 67.5 °F ± 2.5 °F, with a maximum deviation of 67.5 °F ± 5 °F, as opposed to only a maximum deviation of 67.5 °F ± 2.5 °F as specified in the test procedure at that time. In the June 2023 Water Heater Final Rule, DOE concluded that, after considering comments on the January 2022 Water Heater NOPR, it was adopting the changes to ambient air temperature and relative humidity tolerances as proposed. 88 FR 40406, 40435-40436 (June 21, 2023).

However, the relevant regulatory text of section 2.2.1 in appendix E, as amended by the June 2023 Water Heater Final Rule, does not reflect these amended tolerances and improperly maintained the values specified under the previous version of DOE's test procedure for the subject water heaters. This document identifies and corrects this error.

DOE also discovered a typographical error in section 6.3.2 of appendix E. Section 6.3.2 of appendix E addresses the calculations for mass of water removed during each draw of the 24-hour simulated-use test. In that section, it is written that the volume of water must be multiplied by the density of the water during each draw of the 24-hour simulated-use test to arrive at the mass of water removed during each draw of the 24-hour simulated-use test. Throughout appendix E, the symbol ρ (the lowercase symbol for the Greek letter “rho”) is used to represent density, including the definition for these values in section 6.3.2 of appendix E. However, the first equation in section 6.3.2 of appendix E incorrectly uses the term P del,i , using the letter P rather than the symbol ρ. This document identifies and corrects this error.

Additionally, a typographical error occurred which inadvertently changed an equation in section 6.3.6 of appendix E. Section 6.3.6 of appendix E addresses the calculation of adjusted daily water heating energy consumption for water heaters with rated storage volumes greater than or equal to 2 gallons, as well as circulating water heaters. In that section, it is written that the difference between the energy used to heat water in the test and the energy required to heat the same quantity of water over a 67 °F temperature rise (altogether represented by the term Q HWD ) must be added to the adjusted daily water heating energy consumption value to arrive at the daily energy consumption value. However, the equation printed directly below shows the terms being subtracted instead of being added together as the text had indicated. The equation in section 6.3.6 of appendix E specifically reads “Q dm = Q da − Q HWD ” instead of properly reading “Q dm = Q da + Q HWD .” This document identifies and corrects this error as well.

Another printing error caused the inadvertent deletion of the mathematical equation from section 6.4.7 of appendix E that identifies how to calculate the annual fossil fuel energy consumption of a water heater with rated storage volume less than 2 gallons. The annual fossil fuel energy consumption for such a product is equal to the total annual energy consumption minus the electrical energy consumption (adjusted from kilowatts to Btu per hour). Thus, the equation should read, “E annual,f = E annual − (E annual,e × 3,412)” as it did in section 6.4.6 of appendix E prior to the June 2023 Water Heater Final Rule which renumbered the section. This document identifies and corrects this error.

This document also identifies and corrects typographical errors pertaining to the amended standards for water heaters found at 10 CFR 430.32(d). On May 6, 2024, DOE published a final rule in the Federal Register adopting amended energy conservation standards for consumer water heaters (89 FR 37778; “May 2024 Water Heater Final Rule”). Throughout the May 2024 Water Heater Final Rule, DOE discussed transitioning standards for consumer water heaters to be based on an effective storage volume metric, as opposed to the previously used rated storage volume metric. Table I.1 in the May 2024 Water Heater Final Rule demonstrated how the amended standards (with compliance required beginning on May 6, 2029) would be based on effective storage volume. Id. at 89 FR 37780-37781. However, when adopting these standards into the regulatory text codified at 10 CFR 430.32(d)(2), the table inadvertently maintained a reference to the rated storage volume metric. Id. at 89 FR 37944. This document corrects the amended standards table to read “Effective storage volume and input rating ( if applicable )” instead of “Rated storage volume and input rating ( if applicable )” at 10 CFR 430.32(d)(2).

In addition, the current standards, which use the rated storage volume metric, remain applicable until May 6, 2029. The May 2024 Water Heater Final Rule maintained these standards at 10 CFR 430.32(d)(1). However, the adopted regulatory text at 10 CFR 430.32(d)(1) included a typographical error with respect to the compliance dates for the standards therein. Section (d)(1) of 10 CFR 430.32 reads “The uniform energy factor of water heaters manufactured May 6, 2029 shall not be less than the following” instead of “The uniform energy factor of water heaters manufactured before May 6, 2029 shall not be less than the following” (emphasis added on the word “before”). This document corrects this error as well.

On May 15, 2023, DOE published a final rule in the Federal Register establishing a new test procedure for portable air conditioners (“ACs”) at 10 CFR part 430, subpart B, appendix CC1, “Uniform Test Method for Measuring the Energy Consumption of Portable Air Conditioners” (“appendix CC1”) (88 FR 31102; “May 2023 Portable AC Final Rule”). This test procedure must be used to determine compliance with any amended portable AC energy conservation standards that use the Annualized Energy Efficiency Ratio (“AEER”) metric. 88 FR 31102, 31106 (May 15, 2023). In the May 2023 Portable AC Final Rule, as part of appendix CC1, DOE adopted an updated seasonally adjusted cooling capacity (“SACC”) calculation that consists of a weighted average of the cooling capacities measured at the 95 °F and 83 °F test conditions, each adjusted for duct heat transfer capacity losses and infiltration air capacity losses. For single-speed portable ACs, the adjusted cooling capacity for the 83 °F test condition is also multiplied by a load factor of 0.6 for single-duct units and 0.5363 for dual-duct units. 88 FR 31102, 31114 (May 15, 2023).

DOE has identified an error in section 5.1 of appendix CC1, which contains the calculations of adjusted cooling capacity for portable ACs at the 95 °F and 83 °F operating conditions. The identified error is in the formula for adjusted cooling capacity of single-duct single-speed units at 83 °F (“ACC 83 ”), which as published includes the term “Q infiltration_95, ” This term was included erroneously, and the formula should have used the term “Q infiltration_83 ” to reflect the infiltration heat transfer at 83 °F rather than at 95 °F as is currently shown. This erroneous term is also included in the amplifying instruction for single-speed single-duct units in that section, which should reference the Q infiltration_83 value in addition to Q infiltration_95 . This document identifies and corrects these errors.

On January 17, 2024, DOE published a direct final rule in the Federal Register adopting amended energy conservation standards for refrigerators, refrigerator-freezers, and freezers (89 FR 3026; “January 2024 Refrigerator Direct Final Rule”). In the publication of the January 2024 Refrigerator Direct Final Rule, DOE inadvertently updated 10 CFR 430.32(a)(1) with a typographical error which states the current energy conservation standards for refrigerators, refrigerator-freezers, and freezers “apply to products manufactured on or before September 15, 2014.” This document identifies and corrects this error, with text that reads “standards apply to products manufactured on or after September 15, 2014.”

In the January 2024 Refrigerator Direct Final Rule, DOE also inadvertently updated 10 CFR 430.32(a)(1) with another typographical error which lists the equation for the maximum energy use for product class 4I-BI as “10.22AV + 441.4.2.” This document identifies and corrects this error, to reflect the correct equation of “10.22AV + 441.4.”

On May 20, 2024, DOE published a final rule in the Federal Register amending the current test procedures for air-cooled commercial unitary air conditioners with a rated cooling capacity greater than or equal to 65,000 Btu/h, evaporatively-cooled commercial unitary air conditioners, and water-cooled commercial unitary air conditioners (referred to collectively as “CUACs and CUHPs”) (89 FR 43986; “May 2024 CUAC and CUHP TP Final Rule”).

As part of the publication of the May 2024 CUAC and CUHP TP Final Rule, DOE updated Table 1 to paragraph (b) of 10 CFR 431.96, which lists the test procedure for all commercial air conditioners and heat pumps, and included a typographical error in one of the column headers. Specifically, the column heading in Table 1 to paragraph (b) erroneously stated, “Use tests, conditions, an procedures in” instead of “Use tests, conditions and procedures in” ( see 89 FR 43986, 44037 (May 20, 2024). This document identifies and corrects this error.

The applicable energy conservation standard requirements for distribution transformers are contained in DOE's regulations at 10 CFR part 431, subpart K and are applicable to products that meet the definition of “distribution transformer” as codified at 10 CFR 431.192. 10 CFR 431.192 also includes definitions for several kinds of equipment explicitly excluded from the definition of “distribution transformer.”

On April 22, 2024, DOE published a final rule in the Federal Register adopting amended energy conservation standards for distribution transformers and adopting minor edits to the definitions relevant for distribution transformers, including clarifying edits to the definition of “special-impedance transformer” (89 FR 29834; “April 2024 Transformer Final Rule”). In the publication of the April 2024 Transformer Final Rule, DOE updated 10 CFR 431.192 with a typographical error in the titles of Tables 1 and 2 relevant for the definition of “special-impedance transformer.” Specifically, the headings for Table 1 and Table 2 each state, “to the Definition o `Special-Impedance Transformer.' ” This document identifies and corrects this error with text that reads, “to the Definition of `Special-Impedance Transformer.' ”

On May 4, 2023, DOE published a final rule in the Federal Register amending the test procedures for walk-in coolers and walk-in freezers (referred to as “walk-ins” or “WICFs”) (88 FR 28780; “May 2023 WICF TP Final Rule”). As part of the May 2023 WICF TP Final Rule, DOE adopted a new test procedure at 10 CFR part 431, subpart R, appendix C1 (“appendix C1”) and a new efficiency metric ( i.e., annual walk-in energy factor 2 (“AWEF2”)), for walk-in refrigeration systems. Appendix C1 references the Air-Conditioning, Heating, and Refrigeration Institute (“AHRI”) industry test standard AHRI 1250-2020, “2020 Standard for Performance Rating of Walk-in Coolers and Freezers.”

AWEF2 is the ratio of annual total heat removed from a walk-in box ( i.e., the annual walk-in box load) to the annual total energy input. For all outdoor dedicated condensing refrigeration systems ( i.e., outdoor matched pairs, single-package dedicated systems, and dedicated condensing units), annual walk-in box load and annual energy use are determined by summing the walk-in box load and energy use for 20 different bins and corresponding bin temperatures multiplied by the number of hours in each bin ( see, e.g., section 7.4.1 of AHRI 1250-2020). Power values for each bin are interpolated or extrapolated based on the power measurements taken at three different outdoor ambient temperatures (95 °F, 59 °F, and 35 °F). For outdoor dedicated condensing refrigeration systems, there are three off-cycle tests conducted at these same three outdoor ambient conditions (95 °F, 59 °F, and 35 °F), and, therefore, there are three separate measurements of off-cycle condensing unit power ( see, e.g., Table 5 of AHRI 1250-2020).

In the May 2023 WICF TP Final Rule, for outdoor dedicated condensing refrigeration systems, DOE deviated from the AHRI 1250-2020 calculations for off-cycle energy use in AWEF2 because the equations for refrigeration system total power input by each bin temperature t j ( e.g., equation 13 of AHRI 1250-2020) do not use off-cycle power values that vary by bin temperature. Because the condensing unit off-cycle power may vary as a function of outdoor temperature, DOE adopted instructions for calculating condensing unit off-cycle power as a function of outdoor temperature based on the measurements made at the three outdoor test condition temperatures. 88 FR 28780, 28812-28813 (May 4, 2023). DOE adopted these provisions for all outdoor dedicated condensing systems, regardless of whether they are high-, medium-, or low-temperature dedicated condensing systems.

Section 3.4.12.2 of appendix C1 specifies how to calculate AWEF2 for high-temperature, outdoor matched pairs or single-packaged refrigeration systems. Section 3.4.12.2 erroneously specifies that the condensing unit off-cycle power, E cu,off , is measured as described in section C3.5 of AHRI 1250-2020 and does not specify that condensing unit off-cycle power should be determined based on bin temperature t j per section 3.4.3.3 of appendix C1. This document identifies and corrects this error with text that specify that condensing unit off-cycle power for high-temperature, outdoor matched pairs or single-packaged refrigeration systems should be determined based on bin temperature t j per section 3.4.3.3 of appendix C1.

On May 20, 2024, DOE published a final rule in the Federal Register establishing energy conservation standards for circulator pumps (89 FR 44464; “May 2024 Circulator Pump Final Rule”). In the publication of the May 2024 Circulator Pump Final Rule, DOE updated the section heading of 10 CFR 431.465 which previously read “Pumps energy conservation standards and their compliance dates” to read “Circulator pumps energy conservation standards and their compliance dates.” This amendment was in error, as this section of the CFR includes energy conservation standards for dedicated purpose pool pumps and commercial and industrial pumps in addition to circulator pumps. This document identifies and corrects this error by reverting to the previous section heading.

The test procedure established for commercial and industrial pumps is located in DOE's regulations at 10 CFR part 431, subpart Y, appendix A, “Uniform Test Method for the Measurement of Energy Consumption of Pumps” (“appendix A”). Sections IV.D.2 and VI.D.2 of appendix A outline how to determine the best efficiency point (“BEP”) using the testing-based approach for pumps sold with motors. On March 24, 2023, DOE published a final rule in the Federal Register adopting an amended test procedure for commercial and industrial pumps (88 FR 17934; “March 2023 Pumps Final Rule”).

DOE has identified errors in sections IV.D.2 and VI.D.2 of appendix A, as finalized in the March 2023 Pumps Final Rule, which erroneously reference “pump efficiency,” calculated using “pump power input,” in describing how to determine the BEP using the testing-based approach for pumps sold with motors; whereas, those sections should instead reference “overall efficiency,” calculated using “driver power input,” consistent with the wording as it appeared prior to the amendments of the March 2023 Pumps Final Rule. This document identifies and corrects these errors by reverting to the prior language.

As published, the regulatory text in 10 CFR 429.45(a)(2)(ii) will likely cause confusion and may mislead interested parties regarding how to properly determine the UCL for ACIM certification purposes. The relevant changes to 10 CFR 429.45(a)(2)(ii) correct the inadvertent formula error. Accordingly, the changes addressed in this document are technical in nature.

As published, the regulatory text in 10 CFR 429.56(b)(2) will likely cause confusion and may mislead interested parties regarding the entities permitted to test integrated LED lamps and the units to be used in making certain representations. The relevant changes to 10 CFR 429.56(b)(2) correct the units used and the testing laboratory requirements. Accordingly, the changes addressed in this document are technical in nature.

As published, the erroneous section references in the regulatory text in sections (a) and (b) of 10 CFR 429.57 and the definition of “rated wattage” in 10 CFR 430.2 will likely cause confusion and may mislead interested parties regarding how to properly test and certify GSFLs, IRLs, and GSILs. The relevant changes to sections (a) and (b) of 10 CFR 429.57 and the definition of “rated wattage” in 10 CFR 430.2 correct the reference errors. Accordingly, the changes addressed in this document are technical in nature.

As published, the now-obsolete introductory text in appendix Y, the erroneous section references in the regulatory text in 10 CFR 429.134(o), and sections 0 and 4.3.4 of appendix Y will likely cause confusion and may mislead interested parties regarding test procedure applicability date, and regarding how to properly determine UPS architecture. The relevant changes to 10 CFR 429.134(o) and sections 0 and 4.3.4 of appendix Y correct the reference errors related to UPS architecture testing. Accordingly, the changes addressed in this document are technical in nature.

As published, the regulatory text in sections 2.2.1, 6.3.6, and 6.4.7 of appendix E, will likely cause confusion and may mislead interested parties regarding how to properly conduct testing under DOE's consumer water heaters and residential-duty commercial water heaters test procedure. The relevant changes to section 2.2.1 of appendix E, involving a tolerance to ambient temperature requirement for non-heat pump water heaters, was discussed in the June 2023 Water Heater Final Rule's preamble, but it was inadvertently omitted from the amended regulatory text. The relevant changes to section 6.3.2 and section 6.3.6 of appendix E, involving the proper nomenclature for mass of water removed and the proper calculation of daily energy consumption, respectively, fix inadvertent typographical errors. The changes to section 6.4.7 of appendix E correct the inadvertent deletion of an equation used to compute annual fossil fuel energy consumption. Additionally, the relevant changes to the amended standards at 10 CFR 430.32(d)(1)-(2), involving the description of the compliance date and the storage volume metric, also resolve inadvertent typographical errors. Accordingly, the changes addressed in this document are technical in nature.

As published, the regulatory text in section 5.1 of appendix CC1 to subpart B of 10 CFR part 430 will likely result in confusion as to the meaning of these terms and the references to provisions elsewhere in the test procedure. The relevant changes to section 5.1 of appendix CC1 correct the typographical errors introduced in the May 2023 Portable AC Final Rule. Accordingly, the changes addressed in this document are technical in nature.

As published, the regulatory text in 10 CFR 430.32(a)(1) will likely cause confusion and may mislead interested parties regarding applicability of the current energy conservation standards of refrigerators, refrigerator-freezers, and freezers. The relevant changes to 10 CFR 430.32(a)(1), correct the inadvertent typographical errors introduced in the January 2024 Refrigerator Direct Final Rule. Accordingly, the changes addressed in this document are editorial in nature.

As published, the regulatory text in section 10 CFR 431.96 may cause confusion to interested parties regarding how to properly conduct testing under DOE's commercial air conditioner and heat pump test procedures. The relevant changes to 10 CFR 431.96 correct the typographical error introduced in the May 2024 CUAC and CUHP TP Final Rule. Accordingly, the changes addressed in this document are editorial in nature.

As published, the regulatory text in section 10 CFR 431.192 will likely cause confusion to interested parties regarding definitions relevant to the current energy conservation standards of distribution transformers. The relevant changes to 10 CFR 431.192 correct the typographical error introduced in the April 2024 Transformer Final Rule. Accordingly, the changes addressed in this document are editorial in nature.

As published, the regulatory text in section 3.4.12.2 of 10 CFR part 431, subpart R, appendix C1 will likely cause confusion and may mislead interested parties regarding how to properly conduct testing of high-temperature, outdoor matched pairs or single-packaged dedicated condensing systems under DOE's walk-in refrigeration systems test procedure. The relevant changes to section 3.4.12.2 of appendix C1 correct the inadvertent error introduced in the May 2023 WICF TP Final Rule. Accordingly, the changes addressed in this document are technical in nature.

As published, the title of 10 CFR 431.465 will likely cause confusion and may mislead interested parties regarding the current energy conservation standards of dedicated purpose pool pumps and commercial and industrial pumps. The relevant changes to 10 CFR 431.465 correct the misleading section heading introduced in the May 2024 Circulator Pump Final Rule. Accordingly, the changes addressed in this document are editorial in nature.

As published, the regulatory text in sections IV.D.2 and VI.D.2 of appendix A to subpart Y of 10 CFR part 431 will likely cause confusion and may mislead interested parties regarding how to properly conduct testing under DOE's commercial and industrial pump test procedure. The relevant changes to 10 CFR part 431, subpart Y, appendix A correct the inadvertent error introduced in the March 2023 Pumps Final Rule. Accordingly, the changes addressed in this document are technical in nature.

DOE has concluded that the determinations made pursuant to the various procedural requirements applicable to the final rules discussed elsewhere in this document related to ACIMs  1 ; integrated LED lamps  2 ; general service lamps  3 ; UPSs  4 ; water heaters  5 ; portable ACs  6 ; refrigerators, refrigerator-freezers, freezers  7 ; CUACs and CUHPs  8 ; distribution transformers  9 ; WICFs  10 ; circulator pumps  11 ; and commercial and industrial pumps  12 remain unchanged for this final rule correcting amendments.

Pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(B), DOE finds that there is good cause to not issue a separate notification to solicit public comment on the changes contained in this document. Issuing a separate notification to solicit public comment would be impracticable, unnecessary, and contrary to the public interest. Neither the errors nor the corrections in this document affect the substance of the aforementioned final rules for the subject consumer products and commercial and industrial equipment or any of the conclusions reached in support of those documents. Additionally, given the energy conservation standards and test procedures that are being corrected are a result of an extensive administrative record with numerous opportunities for public comment, DOE finds additional comment on the technical corrections is unnecessary. Therefore, providing prior notification and an opportunity for public comment on correcting objective, typographical errors that do not change the substance of the relevant energy conservation standards and test procedures serves no useful purpose.

Further, this rule correcting typographical errors makes non-substantive changes to the subject test procedure and energy conservation standards. As such, this rule is not subject to the 30-day delay in effective date requirement of 5 U.S.C. 553(d) otherwise applicable to rules that make substantive changes.

The following standards appear in the amendatory text of this document and were previously approved for the locations in which they appear: ANSI C78.81, ANSI C78.901, AHAM PAC-1-2022, AHRI 1250-2020, and HI 40.6-2021.

The Secretary of Energy has approved publication of this final rule.

This document of the Department of Energy was signed on January 10, 2025, by Jeffrey Marootian, Principal Deputy Assistant Secretary for Energy Efficiency and Renewable Energy, pursuant to delegated authority from the Secretary of Energy. That document with the original signature and date is maintained by DOE. For administrative purposes only, and in compliance with requirements of the Office of the Federal Register, the undersigned DOE Federal Register Liaison Officer has been authorized to sign and submit the document in electronic format for publication, as an official document of the Department of Energy. This administrative process in no way alters the legal effect of this document upon publication in the Federal Register .

For the reasons stated in the preamble, DOE corrects parts 429, 430, and 431 of Chapter II of Title 10, Code of Federal Regulations, by making the following correcting amendments:

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 administrative portions of the Class E airspace legal descriptions to support visual flight rules (VFR) and instrument flight rules (IFR) operations at Crosby Municipal Airport, Crosby, ND.

Class E5 airspace areas are published in paragraph 6000 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 7400.11J, dated July 31, 2024, and effective September 15, 2024. FAA Order JO 7400.11J 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 modifying the administrative portions of the Class E airspace legal descriptions for Crosby Municipal Airport, Crosby, ND. Crosby Municipal Airport's geographic location within line 3 of the Class E legal descriptions is updated to match the FAA database. Additionally, the redundant phrase “(Canada/United States Boundary)” is removed from the body of the legal description. These administrative updates do not affect the airspace boundaries or operating requirements; therefore, notice and public procedures under 5 U.S.C. 553(b) are 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 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:

FDA is amending the animal drug regulations to reflect approval actions for NADAs and ANADAs during October, November, and December 2024, as listed in table 1. In addition, FDA is informing the public of the availability, where applicable, of documentation of environmental review required under the National Environmental Policy Act (NEPA) and, for actions requiring review of safety or effectiveness data, summaries of the basis of approval (FOIA Summaries) under the Freedom of Information Act (FOIA). These documents, along with marketing exclusivity and patent information, may be obtained at Animal Drugs @FDA: https://animaldrugsatfda.fda.gov/adafda/views/#/search.

Med-Pharmex, Inc., 2727 Thompson Creek Rd., Pomona, CA 91767-1861 (drug labeler code (054925) requested that FDA withdraw approval of NADA 140-810 for DERMA-VET (nystatin, neomycin sulfate, thiostrepton, triamcinolone acetonide) Ointment because the product is no longer manufactured or marketed. Accordingly, approval of NADA 140-810 was withdrawn effective December 23, 2024. The animal drug regulations do not require amendment as the sponsor's drug labeler code is not codified in 21 CFR 524.1600a.

Mylan Institutional LLC, a Viatris Company, 3711 Collins Ferry Rd., Morgantown, WV 26505 (drug labeler code 063286) requested that FDA withdraw approval of ANADA 200-257 for Ketamine HCL (ketamine hydrochloride injection, USP) Injectable Solution because the product is no longer manufactured or marketed. Accordingly, approval of ANADA 200-257 was withdrawn effective June 29, 2023. The animal drug regulations do not require amendment as the sponsor's drug labeler code was removed from 21 CFR 522.1222 in a rule that published August 16, 2023 (88 FR 55559 at 55564).

The sponsors of the approved applications listed in table 2 have informed FDA that they have transferred ownership of, and all rights and interest in, these applications to another sponsor. The regulations cited in table 2 are amended to reflect these actions.

Pharmacosmos, Inc. (drug labeler code 042552 in § 510.600(c)) has informed FDA that it has changed its address to 120 Headquarters Plz., Morristown, NJ 07960. The entries in § 510.600(c) are amended to reflect this action.

FDA is making the following amendments to improve the accuracy and readability of the animal drug regulations.

• § 510.600(c) is amended to remove entries for Superior Equine Pharmaceuticals, Inc. and United-AH II, LLC from the lists of sponsors of approved applications as these firms are no longer sponsors of an approved application.

• 21 CFR 522.2630(b) is amended to present the sequence of drug labeler codes for tulathromycin injectable solutions.

This final rule is issued under section 512(i) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C.360b(i)). Although deemed a rule pursuant to the FD&C Act, this document does not meet the definition of “rule” in 5 U.S.C. 804(3)(A) because it is a “rule of particular applicability” and is not subject to the congressional review requirements in 5 U.S.C. 801-808. Likewise, this is not a rule subject to Executive Order 12866.

Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 510, 520, 522, 524, 529, and 558 are amended as follows:

This rule finalizes without change the interim final rule, Processes and Procedures for Issuance and Use of Guidance Documents (OAG 174; RIN 1105-AB61), published at 86 FR 37674 (July 16, 2021) (the “July 16 interim rule”). The interim rule implemented Executive Order 13992 of January 25, 2021, 86 FR 7049 (Revocation of Certain Executive Orders Concerning Federal Regulation), by removing the Department's regulations at 28 CFR 50.26 and 50.27 and reserving those sections. The Department's approach to the development, issuance, and use of guidance documents is now governed by the Attorney General Memorandum issued on July 1, 2021, “Issuance and Use of Guidance Documents by the Department of Justice,” https://www.justice.gov/opa/page/file/1408606/download.

As discussed in greater detail in the July 16 interim rule, on January 20, 2021, President Biden issued Executive Order 13992, which, among other things, revoked Executive Order 13891 and stated that “agencies must be equipped with the flexibility to use robust regulatory action to address national priorities.” 86 FR at 7049. Executive Order 13992 directed the heads of all agencies to “promptly take steps to rescind any orders, rules, regulations, guidelines, or policies, or portions thereof, implementing or enforcing” the revoked Executive Order. Id.

Based on its evaluation of the prior regulations at 28 CFR 50.26 and 50.27, the Department concluded that those regulations were unnecessary and unduly burdensome, lacked flexibility and nuance, and limited the ability of the Department to do its work effectively. Among other things, the regulations generated collateral disputes in affirmative and enforcement litigation, and they discouraged Department components from preparing and issuing guidance that would be helpful to members of the public. In addition, because the regulations imposed requirements on a particular category of agency documents deemed to be “guidance,” the regulations inherently caused Department staff to expend significant resources determining whether each agency document, product or communication constituted “guidance” and was therefore subject to these regulations. Accordingly, the Department determined that the rules should be removed.

In removing the rules, the Department did not depart from the principle that guidance documents are interpretative and thus cannot impose legal requirements beyond those found in relevant constitutional provisions, statutes, and existing regulations. The Department also continues to believe that guidance documents should be clear, transparent, and readily accessible to the public. But these principles, and other related Department policies and practices concerning guidance documents, have traditionally been addressed through memoranda from Department leadership rather than through regulations. The Department therefore removed 28 CFR 50.26 and 50.27 in their entirety, and solicited public comment. On July 1, 2021, the Attorney General issued a new Memorandum setting forth the Department's policies going forward from that date regarding the development, issuance, and use of guidance documents, and the Department has updated other applicable internal protocols in accordance with these policies.

During the public comment period, which closed on August 16, 2021, the Department received only two comments, both of which supported the interim rule. The reasons given by the commenters in support of the removal of 28 CFR 50.26 and 50.27 largely paralleled the Department's own reasons and justifications. Accordingly, the July 16 interim final rule is being finalized without change.

The provisions of the Justice Manual at section 1-19.000 ( https://www.justice.gov/jm/justice-manual ) have been revised, and the provisions of the Justice Manual previously published at section 1-20.000 have been removed, to conform with the principles set forth in the July 1, 2021, Attorney General Memorandum.

This final rule relates to a matter of agency management or personnel and is a rule of agency organization, procedure, or practice. As such, this rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in effective date. See 5 U.S.C. 553(a)(2), (b)(A), (d). The rule is effective upon being posted for public inspection at the Federal Register . The Department, in its discretion, had sought post-promulgation public comment on the July 16 interim rule. As previously explained, the Department received only two comments, both of which supported the rule.

A Regulatory Flexibility Analysis was not required for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter. See 5 U.S.C. 601(2), 604(a).

This final rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation; in accordance with Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation; and in accordance with Executive Order 14094, “Modernizing Regulatory Review”.

This final rule is “limited to agency organization, management, or personnel matters” and thus is not a “rule” for purposes of review by the Office of Management and Budget (OMB), a determination in which OMB has concurred. See Executive Order 12866, sec. 3(d)(3). Accordingly, this rule has not been reviewed by OMB. The Department claimed a similar exemption at the time of promulgating the July 16 interim rule.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”

This 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 Executive Order 13132, “Federalism,” the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted for inflation) in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq.

This rule is not a major rule as defined by section 804 of the Congressional Review Act (CRA), 5 U.S.C. 804. This action pertains to agency management or personnel, and agency organization, procedure, or practice, and does not substantially affect the rights or obligations of non-agency parties. Accordingly, it is not a “rule” as that term is used in the CRA, 5 U.S.C. 804(3), and the reporting requirement of 5 U.S.C. 801 does not apply.

This final rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

A CMP is defined in the Inflation Adjustment Act (28 U.S.C. 2461 note) as any penalty, fine, or other sanction that is (1) for a specific monetary amount as provided by Federal law, or has a maximum amount provided for by Federal law; (2) assessed or enforced by an agency pursuant to Federal law; and (3) assessed or enforced pursuant to an administrative proceeding or a civil action in the Federal courts.

The Inflation Adjustment Act provides for the regular evaluation of CMPs to ensure that they continue to maintain their deterrent value. The Inflation Adjustment Act required that each agency issue regulations to adjust its CMPs beginning in 1996 and at least every four years thereafter. The Department published its most recent cost adjustment to its CMPs in the Federal Register on January 25, 2024 (89 FR 4829) (2024 final rule), and those adjustments became effective on the date of publication.

The 2015 Act (section 701 of Pub. L. 114-74) amended the Inflation Adjustment Act to improve the effectiveness of CMPs and to maintain their deterrent effect.

The 2015 Act requires agencies to: (1) adjust the level of CMPs with an initial “catch-up” adjustment through an interim final rule (IFR); and (2) make subsequent annual adjustments for inflation. Catch-up adjustments are based on the percentage change between the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October in the year the penalty was last adjusted by a statute other than the Inflation Adjustment Act, and the October 2015 CPI-U. Annual inflation adjustments are based on the percentage change between the October CPI-U preceding the date of each statutory adjustment, and the prior year's October CPI-U. 1 The Department published an IFR with the initial “catch-up” penalty adjustment amounts on August 1, 2016 (81 FR 50321).

In these final regulations, based on the CPI-U for the month of October 2024, not seasonally adjusted, we are annually adjusting each CMP amount by a multiplier for 2025 of 1.02598, as directed by the Office of Management and Budget (OMB) Memorandum No. M-25-02 issued on December 17, 2024.

The following analysis calculates new CMPs for penalty statutes in the order in which they appear in 34 CFR 36.2. The penalty amounts are being adjusted up based on the multiplier of 1.02598 provided in OMB Memorandum No. M-25-02.

Statute: 20 U.S.C. 1015(c)(5).

Current Regulations: The CMP for 20 U.S.C. 1015(c)(5) (section 131(c)(5) of the Higher Education Act of 1965, as amended (HEA)), as last set out in statute in 1998 (Pub. L. 105-244, title I, section 101(a), October 7, 1998, 112 Stat. 1602), is a fine of up to $25,000 for failure by an institution of higher education (IHE) to provide information on the cost of higher education to the Commissioner of Education Statistics. In the 2024 final rule, we increased this amount to $46,901.

New Regulations: The new penalty for this section is $48,119.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $46,901 × 1.02598 = $48,119.49, which makes the adjusted penalty $48,119, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1022d(a)(3).

Current Regulations: The CMP for 20 U.S.C. 1022d(a)(3) (section 205(a)(3) of the HEA), as last set out in statute in 2008 (Pub. L. 110-315, title II, section 201(2), August 14, 2008, 122 Stat. 3147), is a fine of up to $27,500 for failure by an IHE to provide information to the State and the public regarding its teacher-preparation programs. In the 2024 final rule, we increased this amount to $39,065.

New Regulations: The new penalty for this section is $40,080.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $39,065 × 1.02598 = $40,079.90, which makes the adjusted penalty $40,080, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1082(g).

Current Regulations: The CMP for 20 U.S.C. 1082(g) (section 432(g) of the HEA), as last set out in statute in 1986 (Pub. L. 99-498, title IV, section 402(a), October 17, 1986, 100 Stat. 1401), is a fine of up to $25,000 for violations by lenders and guaranty agencies of Title IV of the HEA, which authorizes the Federal Family Education Loan Program. In the 2024 final rule, we increased this amount to $69,733.

New Regulations: The new penalty for this section is $71,545.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $69,733 × 1.02598 = $71,544.66, which makes the adjusted penalty $71,545, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1094(c)(3)(B).

Current Regulations: The CMP for 20 U.S.C. 1094(c)(3)(B) (section 487(c)(3)(B) of the HEA), as set out in statute in 1986 (Pub. L. 99-498, title IV, section 407(a), October 17, 1986, 100 Stat. 1488), is a fine of up to $25,000 for an IHE's violation of title IV of the HEA or its implementing regulations. Title IV authorizes various programs of student financial assistance. In the 2024 final rule, we increased this amount to $69,733.

New Regulations: The new penalty for this section is $71,545.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $69,733 × 1.02598 = $71,544.66, which makes the adjusted penalty $71,545, when rounded to the nearest dollar.

Statute: 20 U.S.C. 1228c(c)(2)(E).

Current Regulations: The CMP for 20 U.S.C. 1228c(c)(2)(E) (section 429 of the General Education Provisions Act), as set out in statute in 1994 (Pub. L. 103-382, title II, section 238, October 20, 1994, 108 Stat. 3918), is a fine of up to $1,000 for an educational organization's failure to disclose certain information to minor students and their parents. In the 2024 final rule, we increased this amount to $2,058.

New Regulations: The new penalty for this section is $2,111.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $2,058 × 1.02598 = $2,111.46, which makes the adjusted penalty $2,111, when rounded to the nearest dollar.

Statute: 31 U.S.C. 1352(c)(1) and (c)(2)(A).

Current Regulations: The CMPs for 31 U.S.C. 1352(c)(1) and (c)(2)(A), as set out in statute in 1989 (Pub. L. 101-121, title III, section 319(a)(1), October 23, 1989, 103 Stat. 750), are a fine of $10,000 to $100,000 for recipients of Government grants, contracts, etc. that improperly lobby Congress or the executive branch with respect to the award of Government grants and contracts. In the 2024 final rule, we increased these amounts to $24,496 to $244,958.

New Regulations: The new penalties for these sections are $25,132 to $251,322.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new minimum penalty is calculated as follows: $24,496 × 1.02598 = $25,132.40, which makes the adjusted penalty $25,132, when rounded to the nearest dollar. The new maximum penalty is calculated as follows: $244,958 × 1.02598 = $251,322.00, which makes the adjusted penalty $251,322, when rounded to the nearest dollar.

Statute: 31 U.S.C. 3802(a)(1) and (a)(2).

Current Regulations: The CMPs for 31 U.S.C. 3802(a)(1) and (a)(2), as set out in statute in 1986 (Pub. L. 99-509, title VI, section 6103(a), Oct. 21, 1986, 100 Stat. 1937), are a fine of up to $5,000 for false claims and statements made to the Government. In the 2024 final rule, we increased this amount to $13,946.

New Regulations: The new penalty for this section is $14,308.

Reason: Using the multiplier of 1.02598 from OMB Memorandum No. M-25-02, the new penalty is calculated as follows: $13,946 × 1.02598 = $14,308.32, which makes the adjusted penalty $14,308 when rounded to the nearest dollar.

Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $200 million or more, (adjusted every 3 years by the Administrator of OMB's 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;

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts 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 this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.

We have determined that these final regulations: (1) exclusively implement the annual adjustment; (2) are consistent with OMB Memorandum No. M-25-02; and (3) have an annual impact of less than $200 million. Therefore, based on OMB Memorandum No. M-25-02, this is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866 (as amended by Executive Order 14094).

We have also reviewed these regulations under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866 (as amended by Executive Order 14094). To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account, among other things, and to the extent practicable, the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or providing information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” OIRA has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing these final regulations as required by statute and in accordance with OMB Memorandum No. M-25-02. The Secretary has no discretion to consider alternative approaches as delineated in the Executive order. Based on this analysis and the reasons stated in the preamble, the Department believes that these final regulations are consistent with the principles in Executive Order 13563.

Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the Department generally offers interested parties the opportunity to comment on proposed regulations. However, section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2025 penalty amounts notwithstanding the requirements of 5 U.S.C. 553. Therefore, the requirements of 5 U.S.C. 553 for notice and comment and delaying the effective date of a final rule do not apply here.

Pursuant to 5 U.S.C. 601(2), the Regulatory Flexibility Act applies only to rules for which an agency publishes a general notice of proposed rulemaking. The Regulatory Flexibility Act does not apply to this rulemaking because section 4(b)(2) of the 2015 Act (28 U.S.C. 2461 note) provides that the Secretary can adjust these 2025 penalty amounts without publishing a general notice of proposed rulemaking.

These regulations do not contain any information collection requirements.

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Based on our own review, we have determined that these regulations do not require transmission of information that any other agency or authority of the United States gathers or makes available.

Accessible Format: On request to the program contact person listed under FOR FURTHER INFORMATION CONTACT , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, Braille, large print, audiotape, compact disc, or other accessible format.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other Department documents published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access Department documents published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

For the reasons discussed in the preamble, the Secretary amends parts 36 and 668 of title 34 of the Code of Federal Regulations as follows:

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

On July 10, 2023, we published a limited approval and limited disapproval of SJVUAPCD Rule 2201 as adopted locally on August 15, 2019. 1 We based our limited disapproval action on deficiencies identified in the submitted rule. This limited approval and limited disapproval action started a sanctions clock for imposition of offset sanctions 18 months after August 9, 2023, and highway sanctions six months later, pursuant to section 179 of the Clean Air Act (CAA) and our regulations at 40 CFR 52.31. Under 40 CFR 52.31(d)(1), offset sanctions apply 18 months after the effective date of a disapproval and highway sanctions apply six months after the offset sanctions, unless we determine that the deficiencies forming the basis of the disapproval have been corrected.

On April 20, 2023, SJVUAPCD amended Rules 1020 and 2201 to address the deficiencies that were the basis for our limited disapproval of Rule 2201, as identified in our July 29, 2022, proposal. The State submitted these amended rules to the EPA on October 13, 2023, along with other revisions to Rule 2020 adopted on December 18, 2014. In the Proposed Rules section of this Federal Register , we are proposing a limited approval of these rules because we believe they correct the deficiencies identified in our July 10, 2023 disapproval action and meet other applicable CAA requirements. This approval is limited because the EPA is simultaneously proposing a limited disapproval of the rules based on other revisions that do not meet applicable CAA requirements. Based on this proposed action, we are taking this final rulemaking action, effective on publication, to defer the imposition of the offset and highway sanctions that were triggered by our July 10, 2023 limited disapproval.

The EPA is providing the public with an opportunity to comment on this deferral of sanctions. If comments are submitted that change our assessment described in this final determination and our proposed limited approval of SJVUAPCD Rules 1020, 2020, and 2201, we intend to take subsequent final action to reimpose sanctions pursuant to 40 CFR 52.31(d). If no comments are submitted that change our assessment, then all sanctions and sanction clocks associated with our July 10, 2023 final action will be permanently terminated on the effective date of a final rule approval.

We are making an interim final determination to defer the imposition of the offset and highway sanctions associated with our limited disapproval of SJVUAPCD Rule 2201 (as adopted in 2023) based on our concurrent proposal finding that the State's SIP revision corrects the deficiencies that initiated the sanctions.

Because the EPA has preliminarily determined that the State has corrected the deficiencies identified in the EPA's July 10, 2023 limited disapproval action, relief from sanctions should be provided as quickly as possible. Therefore, the EPA is invoking the good cause exception under the Administrative Procedure Act (APA) in not providing an opportunity for comment before this action takes effect. 2 However, by this action, the EPA is providing the public with an opportunity to comment on the EPA's determination after the effective date, and the EPA will consider any comments received in determining whether to reverse such action.

The EPA believes that notice-and-comment rulemaking before the effective date of this action is impracticable and contrary to the public interest. The EPA has reviewed the State's submittal and, through its proposed action, is indicating that it is more likely than not that the State has corrected the deficiencies that were the basis for the limited disapproval that started the sanctions clocks. Therefore, it is not in the public interest to apply sanctions. The EPA believes that it is necessary to use the interim final rulemaking process to defer sanctions while the EPA completes its rulemaking process on the approvability of the State's submittal. Moreover, with respect to the effective date of this action, the EPA is invoking the good cause exception to the 30-day notice requirement of the APA because the purpose of this notice is to relieve a restriction. 3

This action defers Federal sanctions and imposes no additional requirements. 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 proposes to approve 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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements Executive Order 12898 and defines EJ as, among other things, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.”

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 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 Orders 12898 and 14096 of achieving EJ for communities with EJ concerns.

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). The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this action as discussed in Section II of this preamble, including the basis for that finding.

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 March 24, 2025. 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 it shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (see CAA section 307(b)(2)).

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

A detailed history of this matter is provided in EPA's February 22, 2024, 89 FR 13304, notice of proposed rulemaking (February 2024 Proposed Rule). It includes a discussion of EPA's previous rulemaking action to remove the ANR, OAC 3745-15-07, from the Ohio SIP, which EPA proposed on March 23, 2020, 85 FR 16309 (March 2020 Proposed Rule) and finalized on November 19, 2020, 85 FR 73636 (November 2020 Final Rule). That action relied on EPA's error-correction authority under Clean Air Act (CAA or Act) section 110(k)(6). In that action, EPA concluded that we had erred by approving the ANR into Ohio's SIP because we determined that the ANR was not relied upon by Ohio to demonstrate the implementation, maintenance, attainment, or enforcement of any National Ambient Air Quality Standard (NAAQS).

During the public comment period for the March 2020 Proposed Rule to remove the ANR from the Ohio SIP, EPA received comments from the Sierra Club and other environmental groups, 1 referred to in this action collectively as “Environmental Commenters,” asserting that EPA's approval of the ANR as part of the SIP was not an error and that EPA's use of its error correction authority to remove the ANR from Ohio's SIP was unlawful. These comments stated that the ANR was an “important regulatory tool in achieving and maintaining the NAAQS,” and that its removal from the SIP “ignored the role of citizen suits in CAA enforcement.” Further, these comments identified procedural concerns with EPA's error correction, and stated that EPA was required to adhere to the SIP revision process to remove the ANR from Ohio's SIP, which would include addressing the requirements of section 193 of the CAA to demonstrate that no backsliding would result from this change. Additionally, these comments addressed the use of the ANR in enforcement actions. 2 These comments asserted that EPA had failed to consider the impact of eliminating the only available pathway for Ohio residents to enforce the ANR. Therefore, the commenters maintained, removing the ANR from the SIP prevents local governments and non-governmental organizations, as well as affected Ohio communities, from directly enforcing the ANR where necessary to protect Ohioans' health, welfare and property. The commenters further contended that individual Ohioans (as well as local governments) had relied, and were relying at the time of the March 2020 Proposed Rule, on the nuisance provision for Federal enforcement of citizen suits under section 304 of the CAA to address highly localized emissions.

Notwithstanding the Environmental Commenters' concerns as articulated in their comments on the March 2020 Proposed Rule, EPA finalized the removal of the ANR from the Ohio SIP in November 2020. The Environmental Commenters then raised many of these same concerns in the United States Court of Appeals for the Sixth Circuit in petitioning for review of EPA's ANR removal action, alongside other environmental groups and private citizens. See Sierra Club v. EPA, 60 F.4th 1008 (6th Cir. 2023).

During that litigation in the Sixth Circuit, the State of Ohio submitted a letter to the Court  3 acknowledging that it had relied on the ANR as recently as July 2021, when it brought a lawsuit against an iron and steel manufacturing facility that cited exceedances of the NAAQS as evidence of nuisance under the ANR. See State of Ohio v. Republic Steel, Case No. 2021VC000949 (Sark County, Ohio July 2, 2021).

Ultimately, the Sixth Circuit granted EPA's request for a voluntary remand of EPA's removal of the ANR back to the Agency for further review. In so doing, the Sixth Circuit cited several cases in which parties could and did bring enforcement actions for violations of the ANR (prior to EPA removing the rule from the Ohio SIP). See Sierra Club, 60 F.4th at 1014 (citing Fisher v. Perma-Fix of Dayton, Inc. No., 3:04-C-V-418, 2006 WL 212076 (S.D. Ohio. Jan. 27, 2006); Sampson v. SunCoke Energy, No. 1:17-cv-00658 (S.D. Ohio)). The Court also noted Petitioners' past reliance on the ANR apart from actually bringing CAA litigation ( i.e., filing notices of intent to sue under the CAA). Id. While the Court acknowledged EPA's statement in its proposal that it had found “no information” indicating the State had relied or intended to rely on the ANR for attainment or maintenance of the NAAQS, the Court noted that there was nothing in EPA's proposal or EPA's January 2020 email exchange with the Ohio EPA official that discussed whether the ANR had a role in NAAQS enforcement. Sierra Club, 60 F.4th at 1015 (emphasis in original).

After a careful reevaluation of the November 2020 Final Rule in accordance with the Sixth Circuit's decision, EPA proposed in February 2024 that EPA's November 2020 action removing the ANR from the Ohio SIP was deficient and in error. Consequently, in February 2024, EPA also proposed to reverse its removal and reinstate the ANR into the Ohio SIP. EPA received both adverse and supportive comments on this proposed action. The adverse comments are addressed in Section II. of this preamble.

EPA received comments in support of the proposed rule from more than 600 individual commenters who submitted their comments as part of a letter-writing campaign. The supportive commenters also included Sierra Club, the Ohio Environmental Council, AltmanNewman Co. LPA, the FreshWater Accountability Project, the Case Western Reserve University School of Law Environmental Law Clinic, Communities United for Action, Mom's Clean Air Force (Ohio), and the Athens County Future Action Network. Several of these commenters had previously expressed disagreement with EPA's March 2020 Proposed Rule to remove the ANR from the SIP. Many of these supportive comments reinforced several comments on the March 2020 Proposed Rule, stating that the ANR's inclusion in the SIP is appropriate under the CAA as it provides for the implementation, maintenance, and enforcement of the NAAQS. The supportive commenters agreed with EPA's current position, and referenced the Sixth Circuit's acknowledgement, that the ANR has been used to limit emissions of criteria pollutants under the CAA, and that the CAA gives states wide discretion to design appropriate regulations to attain and maintain the NAAQS. The supportive commenters also reiterated that the ANR has been used in multiple CAA enforcement actions, and agreed with EPA that citizen suits under the CAA serve as a crucial implementation and enforcement mechanism. The supportive commenters also agreed with EPA's acknowledgement that, under CAA section 193, EPA was required to perform an anti-backsliding analysis before removing the ANR from the SIP in the November 2020 Final Rule, because the ANR is considered a control requirement, and EPA could not have properly used its error correction authority under CAA section 110(k)(6) to remove the ANR unless the removal would ensure equivalent or greater emission reductions under CAA section 193.

All of the comments received on the February 2024 Proposed Rule are included in the docket for this action. Relevant supportive comments were summarized in Section I. of this preamble. EPA received adverse comments from a group of Ohio trade associations, the Ohio Attorney General, and the Ohio Environmental Protection Agency (Ohio EPA). The relevant comment summaries are summarized and addressed below.

Comment : The commenter contends that EPA may not withdraw its 2020 final rule and reinstate the ANR in the Ohio SIP through its error correction authority under CAA section 110(k)(6). The commenter states that the 2020 Final Rule was not an action “approving, disapproving, or promulgating any plan or plan revision” as required by CAA section 110(k)(6). In addition, the commenter alleges that the 2020 Final Rule was not a “plan revision”; it was a revision to EPA's final action approving the ANR's inclusion in the Ohio SIP in 1974. The commenter states that EPA is not proposing to correct an error it made when it originally approved Ohio's SIP, or any part of the SIP; it is proposing to reverse a prior correction made in 2020. The commenter claims that EPA's error correction authority would not apply to EPA's 2020 correction, only to errors that existed in the SIP at the time the SIP was originally approved.

Response : As discussed in EPA's February 2024 Proposed Rule, the language in CAA section 110(k)(6) provides EPA authority to issue an error correction action whenever EPA “determines that [its] action approving, disapproving, or promulgating any plan or plan revision (or part thereof) . . . was in error.” Once EPA has made a determination that it erred, it “may in the same manner as the approval, disapproval, or promulgation, revise such action as appropriate without requiring any further submission from the State.” Ala. Envtl. Council v. EPA, 711 F.3d 1277 (11th Cir. 2013). As recognized by courts, EPA has broad authority to issue error corrections under CAA section 110(k)(6), which has been interpreted as a “broad provision [that] was enacted to provide the EPA with an avenue to correct its own erroneous actions and grant the EPA the discretion to decide when to act pursuant to the provision.” Assoc. of Irritated Residents v. EPA, 79 F.3d 934, 948 (9th Cir. 2015).

As explained in our February 2024 Proposed Rule, EPA's decision to correct its November 2020 Final Rule is based on a determination that our original action to remove the ANR from Ohio's SIP was in error, because that prior determination was deficient for two reasons: (1) because EPA failed to adequately consider the ANR's use in enforcement of the NAAQS, and (2) because EPA failed to conduct an anti-backsliding analysis pursuant to section 193 of the CAA.

With respect to the commenter's assertion that EPA's November 2020 Final Rule was not “approving, disapproving, or promulgating any plan or plan revision,” and that therefore EPA cannot correct the November 2020 Final Rule under section 110(k)(6), we disagree. In the November 2020 Final Rule, EPA clearly stated that “[u]pon the effective date of this action, the nuisance rule will no longer be part of the Ohio SIP.”  4 In other words, by that action, EPA revised the Ohio SIP to no longer include the ANR. This clearly qualifies as EPA “promulgating any . . . plan revision,” and therefore falls within the authority of EPA to correct under CAA section 110(k)(6). EPA further disagrees with the commenter's contention that CAA section 110(k)(6) can be used only to correct errors that existed in the SIP at the time the SIP was originally approved. This limitation on the scope of CAA section 110(k)(6) authority is not present in the text of the CAA and is not clearly inferable from it. The text authorizes EPA to make corrections to actions that EPA has taken in the past, and the commenter has not provided any statutory basis to support the claim that section 110(k)(6) may only be used to correct original SIP approvals. The only support that the commenter cites is an out of context statement from a dissenting opinion in a D.C. Circuit decision that, even if controlling, would not undermine EPA's action here. 5

Comment : The commenter contends that EPA may not reverse its 2020 final rule and reinstate the ANR in the Ohio SIP through its inherent authority. The commenter alleges that this is because inherent reconsideration does not apply where Congress has spoken, and the CAA carefully prescribes how SIPs may be amended. Congress authorized reconsideration of SIP-related final actions in sections 307(d)(7) and 110(k)(6) of the CAA and the agency cannot rely on its inherent authority to circumvent those express requirements. The commenter further states that even if EPA had reconsideration authority, the exercise of that authority is barred as untimely because an agency's inherent authority to reconsider a prior decision is proper only when “such reconsideration occurs within a reasonable time after the first decision” [citations omitted]. Here, EPA's reconsideration comes nearly four years after its original decision, which the commenter claims is not within a reasonable amount of time.

Response: As explained in our February 2024 Proposed Rule, an agency's authority to reconsider past decisions derives from its statutory authority to make those decisions in the first instance. See Trujillo v. General Electric Co., 621 F.2d 1084, 1086 (10th Cir. 1980) (“Administrative agencies have an inherent authority to reconsider their own decisions, since the power to decide in the first instance carries with it the power to reconsider.”) ( citing Albertson v. FCC, 182 F.2d 397, 399 (D.C. Cir. 1950)). See 621 F.2d at 1088 (“The authority to reconsider may result in some instances, as it did here, in a totally new and different determination.”). In other words, EPA's authority to reconsider its November 2020 Final Rule derives from our statutory authority under CAA section 110(k)(6) that we relied on to take that action in the first instance. Thus, with respect to the commenter's assertion that the agency cannot “circumvent” the express requirements of sections 307(d)(7) or 110(k)(6) and rely instead on its inherent reconsideration authority, the commenter misunderstands the basis for this action as articulated in our proposed rule. In this final action, EPA is relying both on its authority under CAA section 110(k)(6) as well as its inherent reconsideration authority to determine that our November 2020 Final Rule was in error. EPA notes that section 307(d)(7) is not applicable to the current action.

Further, EPA has inherent authority to reconsider, repeal, or revise past decisions to the extent permitted by law so long as the Agency provides a reasoned explanation. See FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (an agency may revise its policy, but must demonstrate that the new policy is permissible under the statute and is supported by good reasons, taking into account the record of the previous rule).

With respect to the commenter's assertion that EPA's reconsideration is barred because it did not occur within a “reasonable” amount of time, EPA notes that the commenter cites to a Sixth Circuit case stating that “[w]hat is a short and reasonable time period will vary with each case, but absent unusual circumstances, the time period would be measured in weeks, not years.” Belville Min. Co. v. United States, 999 F.2d 989, 1000 (6th Cir. 1993). However, EPA further notes that its reconsideration process did not actually begin until the Sixth Circuit issued its February 10, 2023, decision granting EPA's request for voluntary remand of the November 2020 action. To summarize the timeline, EPA's November 2020 Final Rule removing the ANR was challenged almost immediately, both through a Petition for Reconsideration submitted on January 18, 2021, and then a Petition for Review in the Sixth Circuit filed on January 19, 2021. The Sixth Circuit litigation continued until February 10, 2023, when the Court granted EPA's request for voluntary remand. The Agency represented to the Court, and the Court acknowledged in its opinion, that the Agency would “complete its reevaluation of the ANR within twelve months of remand,” Sierra Club, 60 F.4th at 1020. EPA accordingly reconsidered its November 2020 Final Rule for approximately twelve months, culminating in the February 2024 Proposed Rule at issue here. EPA's action here is therefore timely given the litigation and the Court's express acknowledgement of a twelve-month period to reconsider the ANR's removal. The commenter is incorrect to assert that the reconsideration process occurred over four years, where the majority of that time was spent litigating the original November 2020 Final Rule.

Comment: The commenter contends reinstating the ANR in the Ohio SIP would be arbitrary and capricious, and thus unlawful pursuant to the Administrative Procedure Act and section 307(d) of the CAA (if deemed applicable). The commenter states that in at least 16 separate actions in 14 different states, EPA has removed air and odor nuisance rules from SIPs or declined to include them in SIPs when requested by states, citing an insufficient connection to attainment and maintenance of the NAAQS. Further, the commenter notes that EPA has removed several nuisance rules from SIPs, in some cases using the same provision, CAA section 110(k)(6), that was used in the removal of the nuisance rule from the Ohio SIP. The ANR prohibits emissions “of smoke, ashes, dust, dirt, grime, acids, fumes, gases, vapors, or any other substances or combinations of substances in such manner or in such amounts as to endanger the health, safety or welfare of the public, or cause unreasonable injury or damage to property.” The commenter alleges that the generic categories of substances regulated by the ANR are unrelated to the NAAQS regulated pollutants, and the amounts prohibited bear no relation to compliance with the NAAQS standards. The commenter claims that reinstating the ANR into Ohio's SIP would contradict EPA's decades-long practice and policy toward other states, and that by proposing to reinstate the nuisance rule into the Ohio SIP, EPA is treating Ohio inconsistently with other states that no longer have a nuisance rule in the SIP. Further, the commenter notes that this can have a direct effect on facilities deciding in which location to expand or build, and claims that the ANR is not required to be part of the SIP as demonstrated by EPA's removal of nuisance provisions in other SIPs.

Response: EPA acknowledges that it has declined to approve certain nuisance rules into state SIPs, approved certain state requests to remove nuisance provisions from the respective SIPs, and removed certain nuisance rules from SIPs using our error correction authority under CAA section 110(k)(6). However, EPA maintains that each of the actions the commenter cites requires a distinct analysis based on the nature of the nuisance rule at issue, as well as the facts surrounding the particular rule in the particular state. As the Supreme Court has plainly stated, “[e]ach State is given wide discretion in formulating its [SIP], and the Act provides that the [EPA] `shall approve' the proposed plan if it has been adopted after public notice and hearing and if it meets eight specified criteria” in CAA section 110(a)(2). Union Elec. Co. v. EPA, 427 U.S. 246, 250 (1976). The criteria in section 110(a)(2) are broad, such as requiring the plan to “include enforceable emission limitations and other control measures, means, or techniques as may be necessary or appropriate to meet the applicable requirements of this chapter,” and these criteria implement the overarching requirement in CAA section 110(a)(1) that states must have a SIP that “provides for implementation, maintenance, and enforcement of the NAAQS.”

Importantly, Congress “left to the States considerable latitude in determining specifically how the [NAAQS] would be met. This discretion includes the continuing authority to revise choices about the mix of emission limitations.” Train v. Nat. Res. Def. Council, Inc., 421 U.S. 60, 87 (1975). This discretion also encompasses the flexibility that “[s]tates may submit [SIPs] more stringent than federal law requires” and the Supreme Court has instructed that EPA “must approve such plans if they meet the minimum requirements of § 110(a)(2).” Union Elec., 427 U.S. at 265.

EPA therefore is responsible for evaluating state SIPs and approving those SIPs that meet the requirements of the CAA. With respect to evaluating a state's SIP submission requesting to remove a nuisance provision from the state's SIP, or EPA's use of its error correction authority to remove a nuisance provision from a SIP, this would include an evaluation of the specific nuisance provision's connection to the “implementation, maintenance, and enforcement” of the NAAQS. In some cases, such an evaluation could lead to the conclusion that the nuisance provision does not have a connection to the NAAQS, and a conclusion that therefore the state's request to remove the relevant provision from the SIP, or that EPA's prior approval of the provision into the SIP was in error, could be appropriate. In other cases, however, in which the record indicates that there is a connection between the nuisance provision and the “implementation, maintenance, and enforcement” of the NAAQS, see CAA section 110(a)(1), an EPA action to unilaterally remove that provision from the SIP would be contrary to respecting the state's “considerable latitude in determining specifically how the [NAAQS] would be met.” See Train, 421 U.S. at 87.

In this case, the type of air pollution identified in the ANR—smoke, ashes, fumes, gases, and vapors—could have a nexus to several NAAQS, including particulate matter (PM), sulfur dioxide (SO 2 ), lead, and ozone. And as will be discussed at length in response to the next comment, the Ohio ANR has a demonstrated connection to the enforcement of the NAAQS. As acknowledged, the commenters have identified instances in which EPA has removed certain nuisance provisions from state SIPs. The commenters have not, however, identified any analogous situations in which EPA unilaterally removed a nuisance provision from a SIP notwithstanding a demonstrated connection between the nuisance provision and the attainment, maintenance, and enforcement of the NAAQS. As discussed in the February 2024 Proposed Rule, EPA's November 2020 Final Rule failed to consider information in the record demonstrating that the Ohio ANR had been used to enforce the NAAQS. Thus, the specific nature of Ohio's nuisance rule and the facts surrounding its use within the state indicate that EPA did not have an adequate basis in its November 2020 Final Rule to interfere with the choice that Ohio made to include the ANR when originally submitted for incorporation into its SIP in 1974. With respect to Ohio's position on this rulemaking, EPA notes that there is nothing to stop Ohio from undertaking the SIP revision process and exercising its “continuing authority to revise choices about the mix of emission limitations,” see Train, 421 U.S. at 87, included in its SIP, should Ohio determine that the ANR is no longer appropriate for inclusion in its SIP and such SIP revision removing the ANR meets applicable CAA requirements, including CAA section 193.

With respect to the commenter's contention that reinstating the ANR into Ohio's SIP would contradict EPA's decades-long practice and policy toward other states, and that EPA is treating Ohio inconsistently with other states that no longer have a nuisance rule in the SIP, EPA disagrees with this characterization of this action. As noted, any EPA action to include or remove a nuisance provision in a state SIP should be based on a fact-specific inquiry with respect to whether that specific provision helps provide for the “implementation, maintenance, and enforcement” of the NAAQS in that particular state. Commenters have not identified a factually analogous situation in which EPA has removed a nuisance provision from a SIP that has a demonstrated connection to the enforcement of the NAAQS. With respect to the commenter's contention that the inclusion of the ANR in the Ohio SIP impacts where facilities choose to build or expand, this is outside the scope of EPA's evaluation of whether EPA's action to remove the ANR from the SIP was in error. Again, we note that the State of Ohio has the discretion to submit a SIP revision to remove the ANR from its SIP at any time. In this action, EPA is not suggesting that the ANR must remain in Ohio's SIP in perpetuity; EPA is merely determining that its November 2020 Final Rule to unilaterally remove it was an error due to procedural and substantive deficiencies.

Comment: The commenter contends the ANR is not an enforceable emission limitation or other control measure, means, or technique. According to the commenter, nor does the ANR provide for the enforcement of such measures, so it is not a required element of Ohio's SIP. The commenter acknowledges that a state may, for its own purposes, however, have other regulations that have the effect of improving air quality but do not have NAAQS compliance implications. But the commenter contends that neither the Ohio EPA nor citizens use the ANR to enforce the NAAQS. In the proposed rule, EPA references three citizen suits and one Ohio EPA action as demonstrating where the ANR was used as a tool to enforce the NAAQS. The commenter claims that the three citizen suit actions cited by EPA did not use the ANR to enforce the NAAQS, they used the ANR solely to allege public nuisance impacts to property owners from nearby industrial operations. Further, the commenter states that nowhere in any of the Claims for Relief in the complaints associated with these citizen suits is there a reference to the NAAQS, any reference to ambient concentrations of criteria pollutants, or any reference to use of the ANR to reduce ambient concentrations of criteria pollutants to below a NAAQS standard. The commenter alleges that the NAAQS are only referenced in passing in the preliminary facts of the complaints in providing background on the CAA. With respect to Ohio EPA's action related to Republic Steel, State of Ohio v. Republic Steel, Case No. 2021VC00949 (Stark County, Ohio), the commenter claims that there is no evidence that Ohio used the ANR against Republic Steel as a means to attain or maintain the lead NAAQS in Stark County, Ohio. The commenter acknowledges that the action cited the ANR and the lead NAAQS, but claims that action did not use the ANR to enforce the NAAQS. Rather, the commenter states that it used exceedances of the NAAQS as evidence of noncompliance with the ANR. A NAAQS exceedance tied to a specific facility is relevant evidence under Ohio Evid. R. 401 tending to prove the existence of a nuisance under Ohio Adm. Code 3745-15-07. However, according to the commenter, a nuisance action is not a means of “enforcing” the NAAQS or ensuring attainment and maintenance of the NAAQS. In the Republic Steel case, the State alleged multiple additional facts beyond a NAAQS exceedance. However, the commenter states that a NAAQS exceedance does not automatically create a nuisance violation, and a nuisance violation is not dependent on having a NAAQS exceedance. According to the commenter, Ohio considered the plant's impact on an air quality monitor that exceeded the NAAQS to be evidence of a threat to public health and therefore a nuisance, not that the NAAQS exceedance would be sufficiently addressed by a nuisance claim.

The commenter states that while the ANR may improve air quality, it does not “enforce” the NAAQS. The commenter acknowledges that it is possible that, while addressing a nuisance violation, a facility may reduce emissions of a criteria pollutant. According to the commenter, that coincidence of result is not the same as using the air nuisance rule for the purpose of “enforcing” or maintaining and achieving the NAAQS. The commenter states that EPA appears to conflate any improvement in air quality with “enforce[ment of] the NAAQS.” According to the commenter, the result of this is that EPA looks at the improvement the ANR may make to air quality as “enforcing” the NAAQS. The commenter claims that the CAA and EPA's own regulations do not make such a loose connection between air improvement and the NAAQS, and that the use of a NAAQS violation is a far cry from EPA's claim that the nuisance rule is “used to enforce the NAAQS.”

Response: As a threshold matter, EPA reiterates the nature of the current action. Ohio included the ANR for approval into its SIP in 1974, and has not gone through the requisite SIP revision process to request that EPA remove the ANR from the State's SIP. As previously stated, EPA is not responsible for determining the appropriate “mix of emission limitations,” Train, 421 U.S. at 87, in the Ohio SIP to provide for attainment, maintenance, and enforcement of the NAAQS. Rather, EPA is tasked with evaluating whether Ohio's choices meet the CAA requirements. In this action, EPA is determining that our November 2020 Final Rule was deficient for multiple reasons. As relevant to this comment, one of those reasons is that EPA failed to adequately consider comments on the March 2020 Proposed Rule indicating the reliance on the ANR to enforce the NAAQS. Had we considered those comments, EPA would not have stated in the November 2020 Final Rule that “the Ohio nuisance rule is not associated with the implementation, maintenance, or enforcement of the NAAQS.”  6 For the reasons explained in our February 2024 Proposed Rule and this final rule and response to comments, EPA now acknowledges that the Ohio ANR does have a demonstrated connection to the implementation, maintenance, and enforcement of the NAAQS. Accordingly, our previous action to unilaterally remove it from Ohio's SIP was in error.

As a number of courts have recognized, Congress intended citizen suits under the CAA to be an important enforcement mechanism within the broader protective scheme of the CAA. “The legislative history of the Clean Air Act Amendments reveals that the citizen suits provision reflected a deliberate choice by Congress to widen citizen access to the courts, as a supplemental and effective assurance that the Act would be implemented and enforced.” NRDC v. Train, 510 F.2d 692, 700 (D.C. Cir. 1974). As noted by the Sixth Circuit, the petitioners in the Sierra Club case, and in comments on the March 2020 and February 2024 Proposed Rules, the ANR has been relied on in multiple CAA enforcement actions, including citizen suit enforcement cases.

Environmental Commenters' comments on the March 2020 Proposed Rule identified specific CAA citizen suits that relied on the ANR as a tool to enforce the NAAQS. As one example, Environmental Commenters pointed to a case in which an individual resident invoked the Ohio ANR to seek relief from numerous airborne pollutants emitted from a nearby waste treatment facility; the district court held, over the defendant's argument to the contrary, that the nuisance provision was federally enforceable. See Fisher v. Perma-Fix of Dayton, Inc., No. 3:04-CV-418, 2006 WL 212076, at *5 (S.D. Ohio Jan. 27, 2006). That suit prompted intervention by EPA, which obtained a consent decree citing to the violation of the Ohio ANR as part of the Ohio SIP. 7 EPA notes that the terms of that consent decree included requirements for the facility to, among other things, install controls to limit emissions of Volatile Organic Compounds (VOCs), which are precursors to the formation of both ozone and PM. Ozone and PM are both criteria pollutants that are regulated by the NAAQS, and EPA further notes that Ohio currently has multiple nonattainment and maintenance areas for the ozone and PM NAAQS.

Local governments have also relied on the ANR to halt harmful air pollution and enforce the CAA. See City of Ashtabula v. Norfolk S. Corp., 633 F. Supp. 2d 519, 528-29 (N.D. Ohio 2009). In that case, the Ohio Northern District Court determined that the ANR is an emission limitation as defined in CAA section 302(k). 8 The defendant, owner and operator of a Coal Dock facility, moved to dismiss the claim brought under the citizen suit provision of the CAA (section 304), arguing that the ANR was precluded from citizen suit enforcement because it does not establish an emission limitation or standard under CAA section 302(k) given that it does not provide any identifiable limitation on the “quantity, rate or concentration” of a pollutant. 9 The court disagreed and denied the motion to dismiss, stating that:

In their comments, Environmental Commenters also pointed to a case that was pending in the Southern District of Ohio at the time EPA finalized our November 2020 Final Rule to remove the ANR from Ohio's SIP. In that case, Sampson v. SunCoke Energy, 1:17-cv-00658-MRB (S.D. Ohio, filed in 2017), the plaintiffs alleged that numerous noxious and hazardous substances had previously been and continued to be released from the Haverhill Coke Company plant into the environment—that list included PM, PM 10 , PM 2.5 , nitrogen oxides (NO X ), VOCs, SO 2 , and carbon monoxide, among many others. 11 EPA has established NAAQS for PM 10 , PM 2.5 , SO 2 , and carbon monoxide; and NO X and VOCs are precursors of both PM and ozone, which is another criteria pollutant. Thus, this case had a clear connection to the enforcement of the NAAQS. A motion to dismiss filed by defendants in 2018 alleged that many of the citizen suit claims overlapped with an ongoing Federal enforcement action, and the case was ultimately settled in 2021. 12 This case thus provides another example of how citizen suits can use the ANR as a tool to help limit emissions of NAAQS criteria pollutants and their precursors, contrary to the commenter's suggestions that citizen enforcement actions relying on the ANR are not used to enforce the NAAQS.

The commenters acknowledge that the ANR may improve air quality, but claim that such improvements do not equate to enforcing, achieving, or maintaining the NAAQS. They allege that EPA appears to conflate any improvement in air quality with enforcement of the NAAQS. EPA disagrees with the commenters' narrow reading of the CAA. As stated at the outset of this response, it is not EPA's responsibility to determine what mix of emission limitations the State should impose in its SIP to improve air quality and ultimately attain and maintain the NAAQS. See Train, 421 U.S. at 87. Furthermore, EPA reiterates that the Northern District of Ohio affirmatively determined that the ANR is an emissions limitation as defined by CAA section 302(k). 13 Imposing emission limitations on sources of pollution is a primary method that states utilize in constructing SIPs that demonstrate how they will attain and maintain the NAAQS, and, contrary to the commenter's suggestion, a particular emissions limitation need not demonstrate how it would directly lower the concentration of a specific criteria pollutant as a prerequisite for approval into the SIP. In this action, EPA is merely determining that our prior determination that the ANR was “not associated with the implementation, maintenance, or enforcement of the NAAQS” was incorrect. Our unilateral removal of the ANR from Ohio's SIP was contrary to giving the State “considerable latitude in determining specifically how the [NAAQS] would be met”  14 where the Ohio ANR has a clear connection to the implementation, maintenance, and enforcement of the NAAQS. Even if the ANR were not considered to be an emissions limitation under the definition of that term in CAA section 302(k), it would still squarely fall into the category of “other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable requirements of this chapter.” CAA section 110(a)(2)(A). Unlike “emissions limitations,” which is a term with a specific definition under CAA section 302(k), the CAA does not specifically define “control measures, means, or techniques.” EPA notes that these are inherently capacious terms, and in the absence of a specific statutory definition, there is nothing about these terms that would preclude the ANR from being characterized as falling within their broad meanings. EPA therefore interprets these terms broadly in accordance with their plain meanings, i.e., that they refer to any “measures, means, or techniques” that impose some form of “control” with respect to any of the NAAQS pollutants. The plain meaning of measure, in this context, could include any requirement that imposes some sort of control that may be necessary or appropriate to meet the applicable requirements of the CAA. Similarly, a means or technique in this context could include any sort of method or procedure for imposing controls as may be necessary or appropriate to meet CAA requirements. As illustrated by the specific examples in this response, the ANR has been invoked on multiple occasions with the goal and ultimate outcome of limiting emissions of criteria pollutants and their precursors. Thus, the ANR has been used as a measure, means, or technique, to control relevant emissions as may be necessary or appropriate to meet CAA requirements.

With respect to the commenter's specific assertions regarding the Republic Steel case, 15 EPA disagrees with commenters' characterization of that case as being irrelevant to an evaluation of whether the ANR is used to enforce the NAAQS. The commenters acknowledge that the Republic Steel facility's NAAQS exceedances can be evidence of a nuisance claim, but allege that this is distinguishable from using the ANR to enforce the NAAQS. However, the complaint filed by the State of Ohio (“Complaint”), as well as the consent order and final judgment (“Consent Order”), provide important context and details with respect to the relationship of this case to the State's enforcement of the lead NAAQS.

First, the Complaint states the “Republic Steel is the only known source of lead in the vicinity of the Georgetown Rd. lead monitoring site” (emphasis added). 16 Second, the Complaint states that ambient air monitoring results from the Georgetown Rd. monitoring site measured 0.25 micrograms per cubic meter (µg/m 3 ) from March 2018 through May 2018, and 0.167 µg/m 3 from January 2019 through March 2019, while noting that the lead NAAQS is 0.15 µg/m 3 . 17 Third, the Complaint details how the Ohio EPA Director issued “Final Findings and Orders” to the defendant (Republic Steel), ordering the defendant “to alleviate the excess lead emissions at the Facility,” to include ceasing operation during times of high lead emissions or until corrective actions were taken. 18 Notwithstanding those Orders, the defendant then emitted levels of lead in the amounts of 1.69, 2.6, and 2.26 µg/m 3 on May 7, 9, and 13 of 2021, respectively. 19

In light of these facts, the State of Ohio brought the nuisance claim based on the Ohio ANR as the sole count in the original Complaint. 20 Under this count, the Complaint states: “[o]n numerous occasions since at least May 2018, Defendant has caused or allowed lead emissions to emit from the Facility that led to exceedances of the lead NAAQS three month average and thus endangered the health, safety or welfare of the public and/or caused unreasonable injury or damage to property” (emphasis added). 21 In other words, the Complaint did not merely point to NAAQS exceedances as evidence of a nuisance; instead, the complaint alleged that the lead emissions from the facility—the sole known source of lead emissions in the vicinity of the relevant air monitor— caused these NAAQS exceedances. And the State of Ohio used this action, relying on the ANR, to obtain permanent injunctive relief (as entered in the Consent Order) that requires the Republic Steel facility to “provide Ohio EPA and CAPC [Canton City Public Health Air Pollution Control Division] staff access to the air monitoring platform associated with the Fenceline Monitor,” explaining that “[t]he purpose of the source-oriented monitor pursuant to 40 CFR 58.10(a)(4) is to determine compliance with the NAAQS for lead.”  22 Further, the Consent Order requires that the facility either comply with the lead NAAQS (as demonstrated by the required monitoring), or “immediately cease activities that are creating or could possibly be contributing to the NAAQS exceedance.”  23

In short, the State of Ohio relied on the ANR to address excess lead emissions from the Republic Steel facility that were causing consistent NAAQS exceedances despite the Ohio EPA's attempts to address such excess emissions through another avenue (Director Final Findings and Orders). Ultimately, the State of Ohio secured injunctive relief to ensure that the facility either complies with the lead NAAQS, or ceases operations that could even possibly be contributing to the NAAQS exceedance ( i.e., anything contributing to excess lead emissions). This confirms that the State of Ohio used the ANR to ensure the Republic Steel Facility complies with the lead NAAQS—in other words, to enforce the lead NAAQS.

Comment : The commenter contends the ANR does not meet the CAA's requirements for inclusion in a SIP. The commenter states that when the ANR was incorrectly included into the SIP that was approved in 1974, then-section 110(a)(2)(A) of the CAA (reworded and renumbered section 110(a)(2) in the 1990 CAA amendments) called for approval of a SIP if it “includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of [the NAAQS].” According to the commenter, the ANR fails that test. The commenter claims that Ohio has never relied on the ANR as a strategy for attaining or maintaining the NAAQS. Further, the commenter states that Ohio has never given notice and opportunity to comment on, or proposed or supported, the proposition that the ANR is necessary or appropriate to attain and maintain the NAAQS. The commenter contends that Ohio's federally-approved NAAQS demonstrations, which rely exclusively upon enforceable numerical emission limitations and other control requirements applicable to existing stationary sources, do not rely on the ANR. The commenter notes that the ANR makes no reference to, and is not concerned with, criteria pollutants or NAAQS. The commenter states that EPA must consistently apply its interpretation that nuisance provisions, odor provisions, and general prohibitions on air pollution do not belong in SIPs, because they do not have a reasonable connection to the NAAQS and/or are not designed to control NAAQS pollutants such that EPA could rely on them as a NAAQS attainment and maintenance strategy. According to the commenter, while the nuisance rule may have an impact on emissions, it is not a tool that measures Ohio's compliance with the NAAQS as required by section 110(a)(2) of the CAA. The commenter alleges that the ANR is an inappropriate measure for attaining and enforcing the NAAQS, and claims that EPA would never approve it as a strategy for reducing emissions in a SIP. Further, the commenter states that EPA cannot use NAAQS attainment as a reason to reintroduce the ANR into the Ohio SIP, and that the ANR is too broad, vague, inchoate, and unpredictable in its application to and impact upon criteria pollutant emissions from existing stationary sources to be SIP approvable. In addition, the commenter states that the ANR was not designed or intended by Ohio to federalize “overkill” reductions of criteria pollutant emissions more stringent than necessary to attain and maintain the NAAQS. Further, the commenter claims that Ohio has not utilized the ANR for the SIP strategies for the 2015 ozone standards, the 2012 p.m. standard, and the “bump up” to moderate ozone nonattainment in the Cleveland area. In the upcoming Canton lead submittal to address the SIP call, according to the commenter, Ohio EPA will not rely on the ANR for attainment of the NAAQS. The commenter further states that EPA dictates a rigorous methodology for the approval of a SIP to address a revised NAAQS or a violation of the NAAQS. For example, the commenter notes that the various steps in developing an attainment demonstration SIP are involved and lengthy, and claims that none of those steps were used by EPA when it proposed to reinstate the nuisance rule into the Ohio SIP.

Response : EPA disagrees with the commenter's statement that the ANR is not appropriate for inclusion in the SIP because it fails the test for approval of a SIP, which in the CAA as it existed in 1974 was that the SIP “includes emission limitations, schedules, and timetables for compliance with such limitations, and such other measures as may be necessary to insure attainment and maintenance of [the NAAQS].”

The commenters misunderstand what the State is required to show to include a certain emissions limitation or control measure in its SIP. States are generally not required under CAA section 110 to “rely upon” a measure to model attainment or maintenance of the NAAQS in order for that measure to be eligible for inclusion in the SIP. A certain subset of SIPs, namely nonattainment SIPs under part D of the CAA, do require certain technical analyses to demonstrate measures included in the nonattainment SIP will model attainment or maintenance of the NAAQS, but this is not a requirement for each and every SIP submission. Ohio itself has submitted a number of SIPs that do not include a demonstration that its measures model attainment or maintenance of the NAAQS. 24 As stated in previous comment responses, Congress “left to the States considerable latitude in determining specifically how the [NAAQS] would be met. This discretion includes the continuing authority to revise choices about the mix of emission limitations”  25 in order to ensure implementation, maintenance, and enforcement of the NAAQS. 26

Moreover, the ANR does have a demonstrated connection to implementation, maintenance, and enforcement of the NAAQS, and is therefore properly included in Ohio's SIP. As described in a previous comment response, the Southern District of Ohio has confirmed that the ANR meets the definition of an emission limitation as defined under CAA section 302(k). Again, we note that the State has the discretion to revise its “choices about the mix of emission limitations” in its SIP at any time, Train, 421 U.S. at 87, and that EPA will approve such choices provided they are consistent with all CAA requirements. The ANR has been used in a number of actions to enforce the NAAQS. As such, the State of Ohio properly included the ANR in its SIP, and EPA's November 2020 Final Rule was in error.

With respect to specific attainment demonstrations related to SIP calls and relatively recently promulgated NAAQS cited by commenters, the State was not required to rely on the ANR in these attainment demonstrations in order to allow the ANR to remain in the SIP. As explained, states have wide discretion in how they implement the requirement to provide for “implementation, maintenance, and enforcement” of the NAAQS, and states can and do include control measures in their SIPs that are not cited in their modeled attainment demonstrations. Typically, emissions reductions that are modeled in the attainment demonstration are required for the state to attain the NAAQS by the applicable attainment date. But as discussed above, states' discretion in crafting their SIPs also encompasses the flexibility that “[s]tates may submit implementation plans more stringent than federal law requires” and the Supreme Court has instructed that EPA “must approve such plans if they meet the minimum requirements of § 110(a)(2).”  27 Thus, the mere fact that Ohio has not included the ANR in recent attainment demonstration submissions and therefore is not relying on the ANR in those demonstrations to result in a certain quantity of emissions reductions required to attain the NAAQS, does not mean that the ANR is not an approvable control measure for inclusion in the SIP.

Comment : The commenter asserts that the nuisance rule cannot be modeled and does not contain numerical criteria, technical control measures, or specific compliance standards. According to the commenter, without extensive and technical parameters, the nuisance rule cannot be relied on in demonstrating that a state has an approvable SIP. The commenter claims that for this reason, EPA has been using the error-correction authority in removing nuisance and other odor provisions similar to the ANR from other SIPs. The commenter further claims that EPA does not have the technical support to reintroduce the ANR into the SIP, and that the ANR does not contain a demonstration of how the rule is used to address the NAAQS. According to the commenter, EPA is not able to quantify the amount of emission reductions attributable to the application of the ANR or illustrate how the nuisance provisions have an impact on air quality through modeling. Without such analysis, the commenter claims that EPA fails to provide a justification that the ANR belongs in the SIP. The commenter states that it is clear that Ohio does not rely on the ANR to enforce the NAAQS because the applicability and emission impacts of the ANR are not known or knowable in advance and are not capable of pre-enforcement correlation with NAAQS attainment. The commenter alleges that the recent decision in the Environmental Committee   28 case illustrates the problem of EPA reintroducing the nuisance rule into the SIP because the nuisance rule is simply not a “necessary or appropriate” emissions limitation or other control strategy that is needed to be part of a SIP.

Response : As explained above, EPA is not responsible for quantifying the amount of emission reductions attributable to the application of the ANR, nor is EPA required to illustrate how the nuisance provisions have an impact on air quality through modeling or other technical justifications. Rather, the State is responsible for determining the appropriate mix of emissions limitations and control measures to ensure the SIP's compliance with CAA requirements. And as emphasized previously, “[e]ach State is given wide discretion in formulating its [SIP], and the Act provides that the [EPA] `shall approve' the proposed plan if it has been adopted after public notice and hearing and if it meets” the requirements of CAA section 110(a)(2). 29

As a general matter, EPA is tasked with evaluating SIP submissions for compliance with the CAA requirements, not with overriding state choices with respect to the appropriate mix of emissions limitations and control measures to meet those requirements. 30 And in this particular action, pursuant to the Sixth Circuit's remand of our November 2020 Final Rule, EPA must evaluate whether that November 2020 Final Rule unilaterally removing the ANR from the Ohio SIP was a proper use of our authority under CAA section 110(k)(6). For the reasons explained at length in this action, EPA has concluded that our November 2020 Final Rule revising the Ohio SIP was in error, and EPA has decided to reinstate the ANR into the SIP for those reasons.

Regarding the Environmental Committee decision, EPA disagrees with the commenter with respect to that decision's implications for the action here. That decision speaks to what is required for EPA to determine whether certain emissions limitations are substantially inadequate such that EPA could issue a SIP call under CAA section 110(k)(5) with respect to those emissions limitations. 31 In this action, EPA is not required to make a finding as to whether a particular emissions limitation is necessary or appropriate to ensure compliance with CAA requirements. To the contrary, EPA is concluding that EPA improperly disregarded the ANR's role in enforcement of the NAAQS, and improperly took action to override the State's decision to include the ANR in its SIP by unilaterally removing it in our November 2020 Final Rule. Accordingly, EPA is correcting that error in this action.

Comment : The commenter alleges the ANR is not part of Ohio's infrastructure SIP, which provides for the enforcement of the NAAQS. The commenter states that the CAA mandates a program for enforcement of the NAAQS through the development of an infrastructure SIP for enforcement of the control measures relied upon to attain and maintain the NAAQS. The commenter notes that EPA's Infrastructure SIP guidance requires the SIP to specifically identify the “statutes, regulations, or other provisions . . . that provide for enforcement of those emission limits” that have been identified as being necessary for NAAQS attainment and maintenance. According to the commenter, a state's program to “enforce the NAAQS” is therefore an EPA-approved program of specifically identified statutes and rules, not an ad hoc collection of any rules that have the potential to impact air emissions. The commenter alleges that the only statutory or regulatory provision that Ohio EPA has identified in its infrastructure SIP for the purposes of enforcing the NAAQS is O.R.C. section 3704.03(R), and that EPA cannot broaden the infrastructure SIP by unilaterally adding the ANR.

Response: EPA has issued non-binding guidance on what EPA refers to as “infrastructure SIP submissions.”  32 As stated in that guidance document, the “conceptual purpose of an infrastructure SIP submission is to assure that the air agency's SIP contains the necessary structural requirements for the new or revised NAAQS, whether by establishing that the SIP already contains the necessary provisions, by making a substantive SIP revision to update the SIP, or both.”  33

The commenter seems to suggest that every provision in a state's SIP that is used to enforce the NAAQS must be included in the state's infrastructure SIP submission, and that if a provision that is used to enforce the NAAQS is not included in that SIP submission, it is somehow improper for the state to include it in the SIP at all. However, EPA does not apply such a rigid approach to SIP submissions, nor is the commenter's suggested approach mandated by the CAA. The CAA does not indicate that all SIP provisions intended to enforce the NAAQS must be included in the “infrastructure SIP submission”—in fact, the CAA does not mention “infrastructure SIP submissions” at all. EPA has created the structure and deadlines for states to submit what we refer to as infrastructure SIP submissions in order to ensure that states meet certain CAA requirements. And as mentioned, the purpose of that SIP submission is to ensure that the SIP “contains the necessary structural requirements” for a new or revised NAAQS.

EPA therefore does not take the position that every single provision that is ever used to enforce the NAAQS must be included in a state's infrastructure SIP. Infrastructure SIP submissions are distinct from nonattainment plan SIP submissions, which also contain emissions limitations and methods for enforcement, such as required monitoring, recordkeeping, and reporting requirements. Just because a state does not include a certain provision in its infrastructure SIP submission does not mean that it is improper for the state to then use that provision for enforcement purposes.

Moreover, the commenter alleges that EPA is impermissibly broadening the infrastructure SIP by reinstating the ANR into the SIP. EPA is not, and could not, unilaterally place the ANR into an infrastructure SIP submission that has already been submitted and approved by EPA. EPA is not broadening the infrastructure SIP, rather, it is merely reinstating the ANR to the Ohio SIP as it existed prior to EPA's action in the November 2020 Final Rule, which for the reasons we have described in this action, we have determined was in error.

Comment : The commenter states that neither the Constitution nor the CAA permits EPA to delegate responsibility for establishing SIP emission control requirements to the Federal judiciary. The commenter alleges that the Proposed Rule is inconsistent with the CAA because it would give Federal district courts jurisdiction to decide, in CAA citizen suits, the source-specific controls needed to attain and maintain, and enforce, the NAAQS. The commenter states that the Constitution does not allow states to ordain and establish Federal judicial power, and the CAA should not be read to include any implicit delegation of that power to the states. In addition, the commenter notes that section 110 of the CAA gives each state primary authority to choose the mix of source-specific emission controls and associated monitoring, testing, and enforcement provisions that will suffice to attain and maintain the NAAQS. According to the commenter, including a nuisance rule in a SIP would effectively delegate state executive authority under section 110 to Federal judges. Finally, the commenter notes that section 307(b) of the CAA gives Federal circuit courts, not district courts, exclusive jurisdiction to review EPA actions to determine the approvability of state plans to achieve the NAAQS and state-promulgated SIP measures to enforce those plans.

Response : As stated throughout this action, EPA agrees with the commenter that section 110 of the CAA gives each state primary authority to choose the mix of source-specific emission controls and associated monitoring, testing, and enforcement provisions that will suffice to attain and maintain the NAAQS. To that end, in this action, EPA is restoring the ANR as Ohio had included it and as it had existed for more than four decades in the Ohio SIP prior to our erroneous action to remove it in November 2020.

With respect to the commenter's contention that Ohio's inclusion of the ANR in its SIP impermissibly delegates state authority to Federal judges, EPA observes that the CAA is structured around the principle of cooperative federalism. In other words, the CAA creates a system of shared state and Federal responsibility. With respect to enforcing the SIP, a state must provide “necessary assurances” that it has the authority to enforce SIP provisions as a prerequisite for EPA to approve those provisions into the SIP. See CAA section 110(a)(2)(E). Once a provision is approved into the SIP, the state retains the authority to enforce it, and in addition, EPA has the authority to enforce it, see CAA section 113, as do members of the public, under the CAA section 304 citizen suit provision. Thus, Federal enforcement of SIP provisions is integral to the structure of the CAA, whether by EPA or by the public. The commenter is correct that this could result (and, has in the past resulted) in CAA citizen suit claims to enforce the ANR in Federal district courts. But this does not mean that the states are delegating or establishing power in the Federal judiciary. This is just the CAA's structure of cooperative federalism that Congress created. The ANR can be enforced in state court, and it can be enforced in Federal court because it is part of the federally-approved SIP. The same is true of any SIP provision in any state. To the extent the commenter has an issue with the CAA's cooperative federalism model, that is of course outside the scope of the current rulemaking.

Additionally, EPA agrees with the commenter that CAA section 307(b) gives Federal circuit courts, not district courts, exclusive jurisdiction to review EPA actions on SIPs. The commenter appears to be conflating enforcement of SIP provisions (which as mentioned, could occur through state or Federal court actions), with Federal circuit court review of EPA actions on SIP submissions. Nothing about this action indicates that EPA disagrees that Federal circuit court review is the appropriate forum for review of EPA actions on SIP submissions.

Comment : The commenter notes that EPA contends it should have first performed an anti-backsliding analysis before correcting the SIP. However, according to the commenter, SIP corrections do not require an anti-backsliding analysis. The commenter asserts that requirements under CAA section 193 would not apply to the removal of the ANR from Ohio's SIP for attainment areas because the ANR is not a “control requirement.” The commenters further assert that, because the ANR's inclusion in the Ohio SIP was in error, it is not a “control requirement” triggering the need for an anti-backsliding analysis upon removal from the SIP under CAA section 193, 42 U.S.C. 7515.

The commenters also argue that EPA's interpretation of the anti-backsliding provision in CAA section 193 would conflict with EPA's SIP correction authority under CAA section 110(k)(6).

According to the commenters, if the ANR is not a necessary or appropriate element of a SIP, then removing it cannot be considered backsliding under CAA section 110(l), because an anti-backsliding analysis is only concerned with emissions of criteria pollutants in areas that are non-attainment for those pollutants. The commenters state that since emissions addressed by the ANR cannot be quantified, a backsliding analysis is not justified, and that given the State's position, engaging in a backsliding analysis does not make sense. The commenters also contend that even if an anti-backsliding analysis were required, EPA must conduct it before finalizing this rulemaking.

Response : EPA disagrees with the commenter's claim that an anti-backsliding analysis was not required for EPA's November 2020 Final Rule removing the ANR from the Ohio SIP. The plain language of CAA section 193 precludes this conclusion.

CAA section 193 provides, in relevant part, that no control requirement in effect before November 15, 1990, “in any area which is a nonattainment area for any air pollutant may be modified after November 15, 1990, in any manner unless the modification insures equivalent or greater emission reductions of such air pollutant” (emphasis added). The CAA does not specifically define what qualifies as a “control requirement” in the context of section 110 SIPs, and EPA therefore interprets the term broadly in accordance with its plain meaning, i.e., that it refers to any “requirement” that imposes some form of “control” with respect to any of the NAAQS pollutants. The term “control requirement” is similar to the language in CAA section 110(a)(2)(A) referring to “emissions limitations and other control measures, means, or techniques.” As explained and illustrated by the specific examples in a previous comment response, the ANR has been invoked on multiple occasions with the goal and ultimate outcome of limiting emissions of criteria pollutants and their precursors. Thus, the ANR has been used as a measure, means, or technique, to control relevant emissions, which means that it squarely falls within the definition of a “control requirement” as the term is used in CAA section 193.

Thus, CAA section 193 prohibits the modification of the ANR “in any manner” unless there is a showing that the modification would result in equivalent or greater emissions reductions, which is commonly referred to as an anti-backsliding analysis. The plain meaning of “modify” is to make a change to something, and the qualifier “in any manner” indicates that the requirement for an anti-backsliding analysis is triggered by any possible change to a control requirement that otherwise meets the requirements of this section. EPA does not see any statutory basis for concluding that an anti-backsliding analysis was not required for EPA's November 2020 Final Rule removing the ANR from Ohio's SIP. To the contrary, such an interpretation would directly undermine the plain language of section 193, which encompasses changes to the SIP made “in any manner.”

For support, the commenter cites to a 1996 SIP action approving Arizona's contingency measures and withdrawing its Federal Implementation Plan (FIP) “contingency process,” in which EPA took the position that CAA section 193 was not applicable. In the context of this action, EPA acknowledged that “the term `control requirement' is not defined in the Act,” and stated that “it is generally viewed as a discrete regulation directed at a specific source of pollution.”  34 EPA distinguished this from the “contingency process” at issue in that action, which was not grounded in a statutory requirement and was based on 1982 guidance “designed to fill a perceived gap in the absence of a statutory requirement.”  35 The 1982 guidance required “a list of planned transportation measures and projects that may adversely affect air quality and that will be delayed, while the SIP is being revised” (emphasis added), and “a description of the process that will be used to determine and implement additional transportation measures beneficial to air quality that will compensate for the unanticipated shortfalls in emission reduction.” Further, in the 1996 action, EPA explained how the 1990 Amendments to the CAA filled the identified statutory gap by adding the section 172(c)(9) contingency measure requirement to the CAA, rendering EPA's pre-amendment 1982 guidance, and the “contingency process” implementing that guidance, “inconsistent with this new statutory scheme” and thus “ineffective under section 193.”  36

In other words, EPA determined that the “contingency process” was not a control measure because “[a] list of highway projects that may be delayed and a description of actions that may occur at some later date are not control requirements,” and because section 193 precluded the contingency process under the first part of that section, which reads: “Each regulation, standard, rule, notice, order and guidance promulgated or issued by the Administrator as in effect before November 15, 1990 shall remain in effect according to its terms, except to the extent otherwise provided under this chapter, inconsistent with any provision of this chapter, or revised by the Administrator.”  37 The ANR is distinguishable from the “contingency process” because (1) it can be considered a control requirement with demonstrated impacts on emissions, as explained at length in this action, and (2) it is not based on outdated guidance that has been superseded by the CAA Amendments of 1990.

With respect to the commenter's assertions regarding the requirements of CAA section 110(l), EPA notes that we did not rely on CAA section 110(l) in our proposed rule as a basis for determining our prior November 2020 Final Rule was in error. As discussed elsewhere, EPA has concluded that an anti-backsliding analysis should have been conducted for the November 2020 Final Rule under section 193. While CAA section 110(l) was not a basis for EPA's proposed rule, EPA disagrees with the commenter that if the ANR is not a necessary or appropriate element of a SIP, then removing it cannot be considered backsliding under CAA section 110(l). The commenter misstates the requirements of 110(l), which prohibits EPA from approving a SIP revision if it would interfere with any applicable requirement concerning attainment of the NAAQS, or any other applicable requirement of the CAA. Whether the ANR is a necessary or appropriate element of a SIP because the State has not relied on it for attainment of the NAAQS therefore is not the only relevant inquiry under CAA section 110(l). As CAA section 110(l) is not applicable to the present action, EPA need not consider whether we are prohibited under this provision from approving removal of the ANR from the SIP.

Finally, EPA disagrees with the commenter that EPA is required to conduct an anti-backsliding analysis for this action reinstating the ANR into the Ohio SIP. The commenter misstates the standard that section 193 applies in asserting that EPA must determine that removing the ANR from Ohio's SIP would result in lesser reductions. Under section 193, the only requirement is that the modification must insure “equivalent or greater reductions.” The commenter identifies no basis for concluding that reinstating the ANR does not provide for “equivalent or greater reductions,” i.e., that it would increase emissions. As discussed at length in this action, the ANR has been used to enforce the NAAQS and has resulted in emissions reductions in the past. The ANR has also been deemed an emission limitation within the meaning of CAA section 302(k). 38 There is therefore no basis to conclude that reinstating the ANR into the SIP would result in increased emissions. There is reason to believe, based on the record, that having the ANR in the SIP will continue to result in emissions reductions. But even if that is not the case, the ANR would still result in at least “equivalent reductions” as would not including it in the SIP at all.

Comment: The commenter states that there are multiple mechanisms by which Ohio citizens can redress alleged air pollution at the state level regardless of whether the ANR is in the SIP. In contrast, according to the commenter, reinstating the ANR would harm Ohio businesses, with no corresponding benefit to the environment because potential citizen suits under the CAA could result in attorneys' fees being awarded to prevailing parties.

Response: With respect to the commenter's assertion that there are multiple mechanisms by which Ohio citizens can address air pollution regardless of whether the ANR is in the SIP, EPA wholeheartedly supports providing different mechanisms for the public to address air pollution. In this action, EPA is not making a determination as to whether the Ohio State system provides for adequate opportunities for the public to address air pollution. Instead, EPA is merely determining that its November 2020 Final Rule removing the ANR from the Ohio SIP was deficient because EPA failed to consider the ANR's role in the enforcement of the NAAQS, and because EPA failed to conduct an anti-backsliding analysis under CAA section 193.

EPA understands the commenter's assertion that reinstating the ANR into the SIP would harm Ohio businesses to suggest that the consequences of noncompliance with the ANR could be more severe in a CAA citizen suit brought in Federal court, because prevailing parties may be awarded attorney's fees. While EPA acknowledges that this could be a consequence of noncompliance with the ANR, EPA does not find this a relevant consideration for this action. EPA is not obligated, and the commenter has not identified any statutory or otherwise legal basis for such obligation, to consider the potential adverse consequences of noncompliance with the ANR for Ohio businesses in determining whether its November 2020 Final Rule was in error.

EPA has considered the comments received on its February 2024 Proposed Rule, and is finalizing its action as proposed, for the reasons described in the February 2024 Proposed Rule, this final rule, and the response to comments herein. EPA is taking this action to reverse its November 2020 removal of the ANR and to reinstate OAC 3745-15-07 into the Ohio SIP, under its authority in CAA section 110(k)(6) and its inherent reconsideration authority, and consistent with the requirements of CAA section 110(a)(2). EPA has determined that its prior action removing OAC 3745-15-07 from the Ohio SIP was deficient for two reasons: (1) because EPA failed to adequately consider the ANR's use in enforcement of the NAAQS, and (2) because EPA failed to conduct an anti-backsliding analysis pursuant to section 193 of the CAA. EPA has determined that the ANR was appropriately included in the Ohio SIP as part of the State's collection of “enforceable emission limitations and other control measures, means, or techniques . . . as may be necessary or appropriate to meet the applicable requirements of [the CAA].” See CAA section 110(a)(2). Accordingly, EPA is recodifying this reinstatement by revising the appropriate paragraph under 40 CFR part 52, subpart KK, § 52.1870 (Identification of Plan).

In this action, EPA is reinstating regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Ohio Regulations described in section III. of this preamble and set forth in the amendments to 40 CFR part 52 below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov and at EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by EPA for inclusion in the SIP, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 39

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. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements E.O. 12898 and defines EJ as, among other things, the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, or Tribal affiliation, or disability in agency decision-making and other Federal activities that affect human health and the environment.

EPA did not perform an EJ analysis and did not consider EJ in this action. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898/14096 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 March 24, 2025. 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, 40 CFR part 52 is amended as follows:

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

On April 16, 2024, 1 the EPA proposed to approve two SIP submittals from the South Coast Air Quality Management District (SCAQMD or “District”) and the California Air Resources Board (CARB) addressing the Extreme area planning requirements for the 1997 ozone NAAQS in Coachella Valley. The first submittal, the “Final Coachella Valley Extreme Area Plan for the 1997 8-Hour Ozone Standard” (“Coachella Valley Ozone Plan” or “Plan”), 2 was prepared by the SCAQMD and submitted by CARB on December 29, 2020. 3 We proposed to approve all elements of the Plan except the reasonably available control technology (RACT) demonstration, which we plan to address in a subsequent rulemaking. The second submittal, the “2020 Coachella Valley Vehicle Miles Traveled Emissions Offset Demonstration” (“VMT Offset Demonstration”), 4 was prepared by CARB and submitted on March 18, 2021. 5 We proposed to approve the entire VMT Offset Demonstration. Our proposed action contains more information on the two submittals and our evaluation.

On June 12, 2024, we finalized our proposed action on certain portions of the Coachella Valley Ozone Plan. 6 Specifically, we finalized approval of the reasonably available control measures demonstration, the attainment demonstration, and the State's demonstration that it has satisfied the clean fuels for boilers requirement for the Coachella Valley nonattainment area. Our June 12, 2024, notice stated that we intended to take final action on the remaining VMT Offset Demonstration and RFP demonstration in a future rulemaking. We are finalizing approval of these elements in this notice.

In summarizing the State's photochemical modeling and the associated control measures, the EPA's proposed rule incorrectly stated that the Coachella Valley control strategy for the 1997 ozone NAAQS relies on aggregate emissions reduction commitments from the “Final 2016 Air Quality Management Plan” (“2016 AQMP”). 7 While the Coachella Valley Ozone Plan discusses rules addressing the area's progress related to commitments needed for the area to meet the 2008 ozone NAAQS by 2026, the emissions reductions associated with these rules are not reflected in the area's inventory, and the Plan does not rely on the commitments to attain the 1997 ozone NAAQS in 2023. 8

The EPA's proposed action provided a 30-day public comment period. During this period, we received comments from Air Law for All (ALFA), dated May 16, 2024. These comments relate to our proposed action on the RFP demonstration. No comments were received on other parts of the proposal. The comments are summarized and addressed below.

Comment #1 : ALFA criticizes the EPA's proposal to decline to act on the area's contingency measures and new source review (NSR) submittals for the 1997 ozone NAAQS. The commenter argues that the EPA lacks discretion to act on selected portions of submittals when the 18-month statutory deadline for action has passed. The commenter states that CAA section 110(k) does not explicitly grant the EPA authority to act on selected portions of submittals, and argues that when an agency exercises discretion, it must give permissible reasons for doing so. The commenter asserts that the EPA has not given a permissible reason for acting on only portions of the submittal and speculates that the EPA has done so only to delay disapproval of the provisions and avoid starting the associated sanctions and federal implementation plan clocks. The commenter also points out that the EPA noted in the proposal that the State has not yet submitted certain required portions of the plan, and states that EPA has not offered an explanation for not making a finding of failure to submit for those missing portions of the attainment plan.

Response to Comment #1 : As a general matter, comments regarding SIP elements not addressed in the proposed rule are outside the scope of this action. The EPA intends to address all required planning elements for the Coachella Valley for the 1997 ozone NAAQS in subsequent actions. 9

While the EPA has a statutory deadline by which to act on all SIP submittals under CAA section 110(k)(2), the EPA is not obligated to act on all SIP submittals or all SIP elements for a nonattainment area in the same action. The EPA routinely takes separate actions on submittals or portions of submittals that address unique CAA requirements. 10 The EPA strives to meet all statutory deadlines; however, the EPA acknowledges that we are sometimes delayed due to resource limitations and other practical constraints.

With respect to the Coachella Valley contingency measures, the EPA notes that CARB and the SCAQMD previously made a submittal addressing the contingency measures requirement for the 1997 ozone NAAQS that was subsequently withdrawn, 11 and the EPA has no obligation to act on withdrawn submittals. The EPA's current approach for evaluating contingency measures submittals has been shaped by several recent court decisions. 12 In response to these decisions, the EPA has issued the draft guidance cited in our proposed action, titled “DRAFT: Guidance on the Preparation of State Implementation Plan Provisions that Address the Nonattainment Area Contingency Measure Requirements for Ozone and Particulate Matter.”  13 Following our issuance of this draft guidance document, the District and CARB submitted Coachella Valley contingency measures for the 1997 ozone NAAQS to the EPA on April 3, 2024. The EPA notes that the statutory deadline to act on that submittal under CAA section 110(k)(2) has not yet passed.

Comment #2 : ALFA comments that the submittal fails to show that the substitute NO X emissions reductions will “result in a reduction of ozone concentrations at least equivalent” to the required 3 percent per annum VOC emissions reductions, and that as a result, the EPA's proposed approval is arbitrary and capricious and contrary to law. The commenter describes the relative roles of VOC and NO X in ozone formation, including the existence of an “optimum” VOC to NO X ratio for a given level of VOC ( i.e., a NO X concentration at which the maximum amount of ozone is produced). As explained by the commenter, in a “NO X saturated” situation where NO X levels exceed this optimum ratio, a reduction in NO X levels can lead to increases in ozone levels, and in a “NO X limited” situation with NO X levels below the optimum ratio, VOC reductions toward the optimum ratio may have little effect on ozone levels. As a result, the commenter says, ozone response to precursor control can vary greatly between areas. The commenter argues that language in the CAA, including CAA sections 185B, 182(f), and 182(c)(2)(C), indicates that Congress was aware of these issues, including that in some scenarios NO X reductions may not decrease ozone concentrations.

The commenter also points to the EPA's consideration of the relative effectiveness of NO X and VOC controls for interpollutant offset trading under the new source review (NSR) permitting program and in applying requirements for major stationary sources of VOC to NO X sources under CAA 182(f), noting that in these situations EPA guidance indicates that photochemical grid modeling of multiple scenarios should be conducted to support demonstrations related to the relative effectiveness of controls. Through these comparisons, the commenter suggests that the Coachella Valley submittal should have included similar photochemical grid modeling to determine whether the substitute NO X emissions reductions result in equivalent ozone reductions.

While acknowledging that ozone isopleths, which are graphs of ozone levels resulting from various levels of emissions reductions for each monitoring station, are a technically sound method of comparing the relative benefits of reducing NO X and VOC emissions, the commenter states that the EPA's overall analysis is insufficient and that there are missing steps in going from isopleths to a justification for the percentage method in the NO X Substitution Guidance. The commenter states, “if EPA plans to rely on the isopleths” as the justification for NO X substitution, “EPA must re-propose its action with an explanation that is reasonably detailed enough for the public to be able to comment on it.” The commenter further states that CAA section 182(c)(2)(C)'s use of the plural “ozone concentrations” means that an equivalency demonstration at a single monitoring site would be contrary to the CAA and argues that Congress intended the equivalence requirement to apply throughout the nonattainment area.

Response to Comment #2: We disagree with the commenter's characterization of the District's submittal and the EPA's proposed approval. As described further in this document, the EPA concludes that the analysis included with the modeling and control strategy in the Coachella Valley Ozone Plan adequately demonstrates that plan reductions of VOC and NO X would result in a reduction in ozone concentrations at least equivalent to that resulting from VOC emissions reductions. This condition is required under CAA 182(c)(2)(C) for substituting NO X reductions for VOC reductions. We therefore conclude that the District's use of NO X substitution in the RFP demonstration for the Coachella Valley is appropriate in this circumstance.

One factor, not discussed in the Coachella Valley Ozone Plan, that contributes to the NO X -limited conditions is biogenic VOC emissions from vegetation. Biogenic VOC emissions are not required to be reported in nonattainment area inventories. Biogenic emissions are, however, included in the inventory used to model attainment in the Plan, and do contribute to the formation of ozone in the area. The most recent National Emissions Inventory estimates that biogenic VOC emissions represent more than 37 percent of VOC emissions in Riverside County. 14 California's statewide estimate for biogenic VOC emissions represents nearly 43 percent of the total VOC inventory. Biogenic NO X , in comparison, represent only 3.4 percent of Riverside County NO X emissions and 7.7 percent of statewide NO X . 15 Because biogenic VOC is such a large portion of the inventory, reducing anthropogenic VOC emissions represents a smaller reduction in total VOC than a corresponding reduction of anthropogenic NO X compared to total NO X reductions. 16 When biogenic emissions are taken into account, the amount of NO X relative to VOC is smaller, tending to make the ozone chemistry more NO X -limited. That is, reductions of NO X are even more effective than VOC reductions at reducing ozone, and appropriate to substitute for VOC reductions to achieve equivalent ozone concentration reductions.

The Coachella Valley Ozone Plan provides ample documentation that the transport of ozone and ozone precursors in the South Coast Air Basin is the primary cause of high ozone concentrations in the Coachella Valley, such as the correlation between the annual number of exceedance days for the two areas. 17 The Plan relies on upwind reductions within the South Coast Air Basin, where NO X and VOC emissions are respectively more than 20 and nearly 27 times larger than those within Coachella Valley. 18 By the time ozone precursors have been transported to the Coachella Valley, NO X has been preferentially removed by chemical and physical processes. 19 At the same time, there are fewer NO X emissions and more biogenic VOC emissions in moving from the more developed Los Angeles urban area to the more rural Coachella area. This leaves less NO X available to form ozone, creating a NO X -limited condition where NO X emissions reductions are more effective than VOC emissions reductions at decreasing ozone concentrations.

The isopleth diagrams in the Coachella Valley Ozone Plan show that NO X reductions are more effective than VOC reductions at decreasing ozone across a wide range of VOC emissions quantities, which is all that is needed to show that substitution on a 1-1 basis yields a reduction in ozone concentrations at least equivalent to the required VOC reductions. 20 The District generated these diagrams by using photochemical grid modeling to simulate various combinations of NO X and VOC emissions reductions and then plotting the resulting ozone concentrations for the monitor. Thus, while the commenter suggests that the submittal should have included photochemical modeling, that modeling is the basis of the analysis already provided in the form of the isopleth diagrams. The isopleth diagrams have VOC emissions on the horizontal x-axis and NO X emissions on the vertical y-axis. Isopleth lines represent the ozone concentration at different levels of VOC and NO X emissions, and a 45-degree line sloping from upper left to lower right would indicate that NO X and VOC emissions reductions are equally effective at reducing ozone concentrations.

For the Palm Springs monitor, which is the only monitor in the Coachella Valley exceeding the 1997 ozone NAAQS, the diagram shows nearly horizontal isopleth lines. 21 This indicates a very small ozone response to VOC reductions, so that ozone formation in the Palm Springs area is much more responsive to NO X emissions reductions than to VOC reductions. The 2016 AQMP's isopleth for Indio-Jackson Street monitor near the center of the nonattainment area shows a similarly flat slope. 22

In other words, the graphs show that when NO X emissions are reduced, the level of ozone decreases substantially, and that, in contrast, reducing the level of VOC emissions results in much less reduction in the level of ozone. The curve of the line on the graphs indicates that reductions in NO X emissions will be considerably more effective than VOC reductions in reducing ozone concentrations on both a mass and percentage basis, and that VOC reductions will achieve only minor reductions in ozone concentrations even under scenarios involving large VOC reductions relative to current levels. Because NO X reductions are more effective than VOC reductions at reducing ozone concentrations, the Plan's NO X to VOC substitution ratio of one to one (equivalent on a percentage basis) is a conservative way to determine the amount of NO X reductions needed to replace VOC emissions reductions and result in at least an equivalent ozone decrease in ozone concentration as required under CAA section 182(c)(2).

In fact, the isopleths show that a given percentage of NO X reductions provide more of a reduction in ozone concentration than the same percentage of VOC reductions. 23 Thus, the Plan's NOx to VOC substitution ratio of one to one is an appropriate ratio here and the analysis is not missing steps, as the commenter has alleged. As explained, the isopleths for the two Coachella Valley monitoring sites (Indio-Jackson Street and Palm Springs-Fire Station) show that ozone concentrations are more sensitive to reductions in NO X than reductions in VOC across a wide range of VOC emissions quantities. In addition, the Plan provides multiple lines of evidence to support its statement that “ozone concentration in Palm Springs is much more sensitive to changes in NO X emissions than to changes in VOC emissions and indicates that NO X emission reduction is key for ozone attainment in the Coachella Valley.”  24 Thus, as the Coachella Valley Ozone Plan's modeling and control strategy demonstrates, NO X reductions are more effective than VOC reductions in reducing ozone concentration for this area based on a one to one substitution ratio, and the underlying requirement in CAA section 182(c)(2)(C) has been met.

The EPA disagrees with the commenter's suggestion that our approval relies on demonstration of equivalence at a “a single monitoring site” and is therefore contrary to the CAA. As explained in this notice, this demonstration includes the analysis of isopleth graphs for both the Palm Springs-Fire Station and Indio-Jackson Street monitoring sites, which are the only two monitoring sites in the Coachella Valley nonattainment area. Moreover, the EPA disagrees that CAA section 182(c)(2)(C)'s use of the term “ozone concentrations” warrants the narrow interpretation that equivalence must be specifically demonstrated throughout a nonattainment area. As an initial matter, we note that the Act commonly uses the term “concentrations” to refer generally to ambient pollution levels at one or more (but not necessarily multiple) monitors or locations. 25 CAA section 182(c)(2)(C) grants the EPA discretion to define the conditions under which NO X reductions may be substituted for or combined with VOC reductions “in order to maximize the reduction in ozone air pollution” and does not further specify the conditions that represent an “equivalent” reduction in ozone; for instance, it does not require a specific concentration test at every monitor or at specific locations within an area. 26 No such requirement appears in the Act's other provisions governing the RFP demonstration, which define specific percentage reductions aimed at ensuring timely attainment of the NAAQS, 27 or in the EPA's 1993 NO X Substitution Guidance, which describes a recommended procedure for states to follow to utilize NO X substitution. 28 We interpret CAA section 182(c)(2)(C) and these supporting authorities as properly reflecting Congress' intent to allow NO X reductions to be considered to substitute for the required VOC reductions so long as these reductions are at least as effective in reducing ozone concentrations and consistent with the area's demonstration of timely attainment. 29

Further, we believe that the commenter's comparison to the EPA's requirements and recommendations for interpollutant trading and exemption from NO X requirements under CAA 182(f) misunderstands the purpose of and requirements for NO X substitution under CAA 182(c)(2)(B) relative to these other examples. First, interpollutant trading is no longer allowed for ozone. 30 Second, the guidance documents cited by the commenter for these examples are non-binding and do not constrain the EPA's discretion to adopt a different approach where appropriate. 31 The documents recommend photochemical grid modeling in some scenarios but do not require this approach or any other specific demonstration. This reflects the EPA's acknowledgement that the level of analysis required for any particular demonstration related to NO X and VOC reductions will differ based on context and local conditions, such as those noted by the commenter regarding the relative effectiveness of controlling each. In the context of CAA 182(c)(2)(C), in an area where isopleths generated through photochemical grid modeling and accompanying analysis indicate that the VOC reductions required under CAA 182(c)(2)(B) will be less effective for reducing ozone concentrations than a corresponding percentage reduction in NO X emissions, no additional modeling or demonstration is required.

For the reasons described herein, the EPA disagrees that additional justification is needed to show that equal percentage reductions of NO X emissions can substitute for VOC emissions to meet the CAA requirements for RFP in this context. We find that the District has provided ample evidence to demonstrate that NO X reductions will be more effective at reducing ozone concentrations in Coachella Valley, and that the photochemical grid modeling conducted for the attainment demonstration, in combination with the supporting analysis accompanying the control strategy and other demonstrations, is sufficient to support the District's use of NO X substitution.

Comment #3: ALFA faults the EPA's NO X Substitution Guidance, contending that it recommends a procedure that fails to demonstrate any equivalence between VOC and NO X reductions, as required by CAA Section 182(c)(2)(C); relies on incorrect policy assumptions; and gives legal justifications that are without merit.

Response to Comment #3: Comments relating solely to the NO X Substitution Guidance are outside the scope of this rulemaking action. Our proposed approval of the Plan's use of NO X substitution is consistent with the recommended approach outlined in the NO X Substitution Guidance, which, while non-binding and not having the force of regulation, provides a recommended procedure for substituting NO X emissions reductions for VOC reductions on a percentage basis, consistent with a state's ozone attainment plan, control strategy, modeled attainment demonstration, and RFP milestones and requirements. As noted in our response to Comment #2 above, our approval of the District's use of NO X substitution is supported by local conditions and needs as documented in the modeling and analysis included in the Coachella Valley Ozone Plan and the 2016 AQMP's use of NOx substitution in this RFP demonstration is consistent with the requirements of CAA 182(c)(2)(C) for the reasons described in this notice.

Pursuant to section 110(k)(3) of the CAA, and for the reasons provided in our April 16, 2024 proposed rule and this final action and response to comments, the EPA is taking final action to approve into the California SIP the RFP demonstration of the “Final Coachella Valley Extreme Area Plan for the 1997 8-Hour Ozone Standard,” dated December 2020, as meeting the requirements of CAA sections 172(c)(2) and 182(c)(2)(B), and 40 CFR 51.1105(a)(1) and 51.1100(o)(4).

In addition, the EPA is taking final action to approve CARB's “2020 Coachella Valley Vehicle Miles Traveled Emissions Offset Demonstration,” release date January 22, 2021, as meeting the requirements of CAA section 182(d)(1)(A) and 40 CFR 51.1105(a)(1) and 51.1100(o)(10).

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 applications 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 communities with environmental justice (EJ) concerns to the greatest extent practicable and permitted by law. Executive Order 14096 (Revitalizing Our Nation's Commitment to Environmental Justice for All, 88 FR 25251, April 26, 2023) builds on and supplements Executive Order 12898 and defines EJ as, among other things, “the just treatment and meaningful involvement of all people, regardless of income, race, color, national origin, Tribal affiliation, or disability, in agency decision-making and other Federal activities that affect human health and the environment.”

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. Our June 12, 2024 final action on other elements of the Plan includes additional discussion about how SCAQMD responded to comments related to EJ concerns during development of the Plan. 32 The 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 Executive Orders 12898 and 14096 of achieving EJ for communities with EJ concerns.

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 March 24, 2025. 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, the EPA amends Chapter I of Title 40 of the Code of Federal Regulations as follows:

The FOIA, 5 U.S.C. 552, provides a right of access to certain records that Federal agencies maintain and control. The FOIA directs each Federal agency to publish regulations that describe how the agency will process FOIA requests it receives from members of the public.

CEQ first adopted its FOIA regulations in 1977. 1 In 2010, CEQ amended its regulations to reflect legislative amendments to the FOIA, a 2009 Presidential Memorandum regarding FOIA policy, and additional guidance from the Department of Justice (DOJ) and the Office of Management and Budget (OMB). 2 CEQ's current FOIA regulations are codified at 40 CFR part 1515.

CEQ is revising and republishing its FOIA regulations in their entirety in order to make several improvements to the current rules. First, CEQ is making updates to reflect a number of important changes to the FOIA made by the FOIA Improvement Act of 2016 (Pub. L. 114-185). Section 3(a) of the Act directs each agency to review its FOIA regulations and update them to implement the changes set forth in the Act. Second, CEQ is including a number of provisions to improve the usefulness and readability of its FOIA regulations consistent with DOJ's 2017 revised Template for Agency Regulations (the Template). 3 CEQ modeled this final rule on the Template, which also incorporates the FOIA Improvement Act of 2016's amendments to the FOIA.

Third, CEQ is making updates to better convey the FOIA's and the CEQ regulation's requirements to members of the public who are interested in CEQ's operations and activities, so they can easily understand and use CEQ's FOIA process. 4 Specifically, CEQ referred to the Plain Writing Act of 2010 and the Federal Plain Language Guidelines  5 in preparing the final rule.

Finally, the final rule reflects updates to CEQ's FOIA policies and procedures, as well as the practical experience of CEQ's FOIA staff. As it does under its current regulations, CEQ will administer the FOIA under the final regulations with a presumption of openness, consistent with the Memorandum of the Attorney General dated March 15, 2022. 6

The Privacy Act, 5 U.S.C. 552a, governs each Federal agency's collection, maintenance, use, and dissemination of any information about individuals that it maintains in a system of records. The Privacy Act directs each Federal agency to publish regulations that describe the agency's procedures for carrying out the provisions of the Privacy Act. CEQ first adopted its Privacy Act regulations in 1977, 7 codified at 40 CFR part 1516.

CEQ is revising and republishing its Privacy Act regulation in its entirety to make it easier for the public to understand and use and to reflect updates to CEQ's Privacy Act procedures over the past five decades.

On December 11, 2024, CEQ published a notice of proposed rulemaking for public comment. 8 The public comment period concluded on January 10, 2025. Two commenters provided input on the proposal during the public comment period. As noted above, their comments are available on www.regulations.gov under docket number CEQ-2024-0001.

Comment 1: One commenter recommended that CEQ explicitly incorporate the “presumption of openness” in its FOIA regulations. The presumption of openness, which Congress codified in the FOIA through the FOIA Improvement Act of 2016, directs agencies to withhold information in response to a FOIA request “only if . . . the agency reasonably foresees that disclosure would harm an interest protected by an exemption [under the FOIA],” or disclosure is prohibited by law. 5 U.S.C. 552(a)(8)(A). As the Memorandum of the Attorney General dated March 15, 2022, explains, the presumption means that “[i]nformation that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure.”  9

As CEQ noted in the preamble to the proposed rule, CEQ currently administers its FOIA program consistent with the presumption of openness and will continue to do so under its revised regulations. CEQ has revised the language of § 1515.16(b) to clarify that it applies the presumption of openness in its FOIA program.

Comment 2: One commenter recommended that CEQ revise § 1515.4 to clarify that, when a FOIA requester submits an appeal, a CEQ official other than the one who was responsible for processing the original request will process the appeal. The commenter observed that the Department of Justice's Office of Information Policy, which provides guidance to agencies on FOIA administration, recommends this practice. 10 Consistent with this recommendation, the commenter recommended that CEQ delete the last sentence of § 1515.4(b) (“Otherwise, the Chief FOIA Officer or the Chief FOIA Officer's designee is responsible for processing FOIA appeals.”).

CEQ agrees with the commenter that it is good practice to assign the processing of a FOIA appeal to a different official than the one who was responsible for processing the original FOIA request. CEQ routinely follows this practice in its administration of the FOIA. CEQ is a small agency, however, whose size varies widely from one Presidential Administration to the next. From time to time, it may not be reasonably possible to assign a FOIA appeal to a different official than the one who reviewed the original request, if CEQ lacks sufficient personnel with FOIA expertise. Accordingly, CEQ has inserted a sentence in § 1515.22(b) to explain that, whenever reasonably practicable, CEQ will assign the processing of a FOIA appeal to a different official than the one who was responsible for processing the original request.

Comment 3: One commenter recommended that CEQ modify § 1515.11 and proposed § 1515.20 to change the requirement to include the phrase “Freedom of Information Act Request” in the subject line of a request (or “Freedom of Information Act Appeal” in the subject line of an appeal, as the case may be) into a recommendation.

CEQ agrees with the commenter that the FOIA statute does not impose this requirement. CEQ regularly receives correspondence, however, that is unclear about whether the sender is making a request for records or seeking some other kind of official action. CEQ has changed the language of §§ 1515.11 and 1515.21 to provide that FOIA requests and appeals must clearly identify themselves as such, and encourage, but do not require them to use the phrase “Freedom of Information Act Request” or “Freedom of Information Act Appeal.”

Comment 4: One commenter recommended that CEQ change § 1515.19(a)(4) to refer to “records,” rather than “information,” for consistency with the FOIA statute. CEQ has made this change.

Section 1515.1—What is the purpose of the rules in this part? This section describes the purpose of part 1515, which is to set forth CEQ's FOIA procedures, and explains the limitations of the regulations.

Section 1515.2—What kind of records does CEQ maintain? This section explains CEQ's activities and legal authorities.

Section 1515.3—Are there any CEQ records that CEQ proactively discloses and for which I do not have to make a request? This section describes CEQ information the public can access without filing a FOIA request. In the final rule, CEQ uses the term “proactive disclose” in the title and provision to improve clarity.

Section 1515.4—Who is responsible for processing FOIA requests and appeals to CEQ? This section explains the roles of Chief FOIA Officer and FOIA Appeals Officer at CEQ.

Section 1515.5—Who can help me with my FOIA request to CEQ? This section explains that FOIA requesters can obtain assistance from CEQ's FOIA Public Liaison and dispute resolution services from the National Archives and Records Administration's Office of Government Information Services. In the final rule, CEQ clarifies in § 1515.5(b) that CEQ will actively engage when CEQ agrees to participate in the voluntary dispute resolution services consistent with the Template.

Section 1515.6—What are CEQ's procedures for preserving records? This section explains CEQ's procedures for preserving records in connection with its administration of the FOIA.

Section 1515.11—How do I make a FOIA request to CEQ? This section explains how members of the public may request CEQ records under the FOIA. It also describes CEQ's procedures for clarifying requests that do not reasonably describe the records that the requester is seeking.

Section 1515.12—Will CEQ keep my request confidential? This section notes that FOIA requests and the identities of FOIA requesters are generally matters of public record. In the final rule, CEQ adds “generally” in the second sentence, for consistency with the third sentence, to account for certain circumstances where CEQ determines it appropriate to withhold a requester's identity.

Section 1515.13—When will CEQ respond to my request? This section describes CEQ's timeline for responding to FOIA requests, including circumstances in which CEQ will extend or pause the ordinary time period for processing FOIA requests. In the final rule, CEQ adds to the explanation of “unusual circumstances” in § 1515.13(b)(1) the need to search separate facilities consistent with 5 U.C.C. 552(a)(6)(B)(iii)(I), and adds the term “aggregate” for clarity in § 1515.13(b)(2).

Section 1515.14—What if my request is urgent? This section explains how to ask CEQ to expedite its processing of a FOIA request or appeal.

Section 1515.15—How will CEQ process my request? This section describes CEQ's procedures for processing requests and circumstances in which CEQ will deny requests. In the final rule, in § 1515.13(b)(3), CEQ changes “will include” to “may include” before “CEQ's estimate of the date on which we will respond to your request.” CEQ makes this change because FOIA does not require CEQ to provide such a date, but CEQ considers it a best practice to provide an estimate when it is able to do so.

Section 1515.16—How does CEQ determine when to withhold records or portions of a record? This section describes CEQ's procedures for applying the statutory exemptions from disclosure set forth in the FOIA.

Section 1515.17—What if I request records that involve another Government office or agency? This section describes CEQ's procedures for consulting with other Federal agencies regarding whether to disclose or withhold particular records in response to a FOIA request, as well as CEQ's procedures for referring records to another agency for processing.

Section 1515.18—What happens if CEQ grants my request in full or in part? This section describes CEQ's procedure for disclosing records in response to a FOIA request.

Section 1515.19—What happens if CEQ denies my request in full or in part? This section describes CEQ's procedure for withholding records in response to a FOIA request.

In the final rule, CEQ revised the numbering from the proposed rule to start with § 1515.21 instead of § 1515.20.

Section 1515.21—Can I appeal CEQ's response to my request? This section describes how a FOIA requester may appeal a determination that CEQ made in processing the requester's request.

Section 1515.22—How will CEQ process my appeal? This section describes CEQ's procedures for upholding, reversing, or modifying a prior determination on appeal. In the final rule, CEQ adds paragraph (e), to clarify that ordinarily, it will not adjudicate an appeal if the request becomes the subject of litigation.

Section 1515.31—Can CEQ charge fees for processing FOIA requests and appeals? This section explains that CEQ charges fees for processing FOIA requests, but not appeals, and describes the rules that CEQ will follow in determining whether to charge a fee and the amount of the fee. As in CEQ's current FOIA regulation, the provisions of this section and the subsequent sections reflect OMB's Uniform Freedom of Information Act Fee Schedule and Guidelines.

Section 1515.32—What is the amount of the fee for processing a request? This section describes how CEQ will determine the amount of the fee for processing a FOIA request.

Section 1515.33—Are there any exceptions for special requesters? This section describes the services that CEQ will exclude from the calculation of fees for non-commercial requesters, in general, and for representatives of non-commercial scientific institutions, educational institutions, and the news media, in particular.

Section 1515.34—Can I apply for a fee waiver? This section describes the availability of fee waivers and explains the criteria CEQ will apply in determining whether to grant a fee waiver.

Section 1515.35—When will CEQ contact me about fee-related matters? This section describes CEQ's procedures for contacting FOIA requesters to resolve fee-related matters.

Section 1515.36—Do I have to pay fees if CEQ misses the deadline for responding to my request? This section describes the circumstances in which CEQ will not charge fees for processing a FOIA request because CEQ did not respond to the request within the time period set forth in the FOIA.

Section 1515.37—When are fees due and how do I pay them? This section describes when and how FOIA requesters must pay fees to CEQ, including the circumstances in which CEQ may require a FOIA requester to pay fees in advance.

Section 1515.38—What will CEQ do if I do not promptly pay the fee? This section explains when CEQ will charge interest and use debt collection procedures.

Section 1515.41—How does CEQ handle confidential commercial information? This section implements the requirements of Executive Order (E.O.) 12600, Predisclosure Notification Procedures for Confidential Commercial Information, 11 which directs Federal agencies to allow submitters of information to designate records that contain confidential commercial information and to notify submitters when a FOIA requester seeks disclosure of confidential commercial information.

Section 1516.1—What is the purpose of this part? This section describes the purpose of part 1516, which is to set forth CEQ's Privacy Act procedures.

Section 1516.2—What records does this part cover? This section explains when part 1516 applies and explains the meaning of “record” and “system of records” for purposes of part 1516.

Section 1516.3—When will CEQ disclose records about me? This section describes the conditions under which CEQ will disclose records, which are (1) in response to an individual's request for the individual's own records; (2) as part of a routine use of records; or (3) pursuant to one of the other bases for disclosure that appear in section 3 of the Privacy Act, 5 U.S.C. 552a(b).

Section 1516.4—How can I obtain access to CEQ's records about me? This section describes the procedures for an individual to request access to the individual's own records.

Section 1516.5—How can I obtain information about how CEQ has used its records about me? This section describes the procedures for an individual to request an accounting of disclosures of the individual's own records.

Section 1516.6—How can I ask CEQ to correct my records? This section describes the procedures for an individual to request an amendment of the individual's own records and explains how CEQ will review such a request.

Section 1516.7—How can I appeal CEQ's decision to deny my request to access or correct records about me? This section describes the procedures for an individual to appeal CEQ's denial of the individual's request to amend the individual's own records.

Section 1516.8—Will CEQ charge me a fee for a copy of my records? This section describes the fees CEQ will charge for copies of records.

The Regulatory Flexibility Act (RFA), as amended, 5 U.S.C. 601 et seq., and E.O. 13272, Proper Consideration of Small Entities in Agency Rulemaking, 12 require agencies to assess the impacts of proposed and final rules on small entities. Under the RFA, small entities include small businesses, small organizations, and small governmental jurisdictions. An agency must prepare an Initial Regulatory Flexibility Analysis (IRFA) unless it determines and certifies that the rule, if promulgated, would not have a significant economic impact on a substantial number of small entities. 5 U.S.C. 605(b). The FOIA authorizes Federal agencies to charge fees only to certain requesters, and only in order to recover the direct costs of searching for, reviewing, and duplicating agency records. Under the final rule, CEQ will continue to charge fees in accordance with the FOIA and guidelines from DOJ and OMB. The Privacy Act authorizes Federal agencies to charge fees only to individuals, and accordingly CEQ will not charge fees under the Privacy Act to small entities within the meaning of the RFA.

The fees that CEQ assesses for processing FOIA requests are nominal and will not have a significant impact on a substantial number of small entities within the meaning of the RFA. Accordingly, CEQ hereby certifies that the rule will not have a significant economic impact on a substantial number of small entities.

Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 1531), requires Federal agencies to assess the effects of their regulatory actions on State, Tribal, and local governments, and the private sector to the extent that such regulations incorporate requirements specifically set forth in law. Before promulgating a rule that may result in the expenditure by a State, Tribal, or local government, in the aggregate, or by the private sector of $100 million, adjusted annually for inflation, in any 1 year, an agency must prepare a written statement that assesses the effects on State, Tribal, and local governments and the private sector. 2 U.S.C. 1532. This final rule will apply only to requesters under the FOIA or the Privacy Act and will not result in expenditures of $100 million or more for State, Tribal, and local governments, in the aggregate, or the private sector in any 1 year. This final action also will not impose any enforceable duty, contain any unfunded mandate, or otherwise have any effect on small governments subject to the requirements of 2 U.S.C. 1531-1538.

E.O. 12866, as supplemented and affirmed by E.O. 13563 and amended by E.O. 14094, provides that the Office of Information and Regulatory Affairs will review any regulatory action that qualifies as a “significant regulatory action” within the meaning of the E.O. 13 The final rule does not qualify as a significant regulatory action.

Under section 3(a) of E.O. 12988, 14 agencies must review their proposed regulations to eliminate drafting errors and ambiguities, draft them to minimize litigation, and provide a clear legal standard for affected conduct. Section 3(b) provides a list of specific matters that agencies must consider when conducting the review required by section 3(a). CEQ has conducted this review and determined that this final rule complies with the requirements of E.O. 12988.

This final rule will not impose any new information collection burden that will require additional review or approval by OMB under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq.

The National Environmental Policy Act of 1969 (NEPA) (Pub. L. 118-5, 42 U.S.C. 4321 et seq. ), as amended, and the CEQ regulations that implement NEPA, 40 CFR parts 1500 through 1508, require consideration of the environmental effects of proposed actions in agency decision making. NEPA provides for three levels of review. First, agencies may establish in their agency-specific NEPA procedures categorical exclusions (CEs) for categories of actions that normally do not have a significant effect on the human environment, individually or in the aggregate, and apply CEs to individual actions, as appropriate. 15 If an agency proposes to take an action that does not fall within a CE but is not likely to have significant environmental effects (or the significance of whose effects is unknown), CEQ's NEPA regulations direct the agency to prepare an environmental assessment (EA). 16 If, as a result of this assessment, the agency determines that the proposed action will not have significant effects, the agency may make a finding of no significant impact (FONSI), in which case the agency may proceed with the action. 17 Otherwise, the agency must prepare an environmental impact statement (EIS). 18

CEQ has not established a CE for the dissemination of information under the FOIA; the disclosure of records under the Privacy Act; or the preparation, revision, and adoption of regulations generally. Accordingly, CEQ prepared an EA to determine whether the revisions to CEQ's FOIA and Privacy Act regulations would have a significant effect on the human environment. Because, as set forth below, the final regulations will likely result in a small reduction in the use of resources in CEQ's administration of the FOIA and the Privacy Act, CEQ finds that the final rule will have no significant impact on the human environment and that it is therefore unnecessary to prepare an EIS.

Purpose and Need: As set forth in the proposed rule and the above Summary of the Final Rule, CEQ adopted its FOIA regulations in 1977 and has not updated them to reflect developments in FOIA law, policy, and practice since 2010. As such, the current regulations fail to reflect current FOIA requirements, including those set forth in the FOIA Improvement Act of 2016. Furthermore, CEQ's current FOIA regulations do not conform in all points to the Template and the directions in the Plain Writing Act of 2010, and do not fully reflect CEQ's current policy and practice with respect to the FOIA. Likewise, CEQ adopted its Privacy Act regulations in 1977, and has not updated them since that time to reflect updates to CEQ's Privacy Act procedures.

Proposed Action and Alternatives: A summary of the final action, which is one of two action alternatives analyzed in this EA, is set forth in the NPRM and in the above Summary of the Final Rule. Under a no action alternative, CEQ would continue to operate under its current regulations, addressing inconsistencies between the regulations and current law and agency procedure on a case-by-case basis. CEQ has decided that this approach is undesirable because it is confusing to the public and requires CEQ staff to address inconsistencies between the regulation, the law, and agency procedure that CEQ can obviate by updating the regulation.

CEQ considered another action alternative of making only narrowly tailored amendments to its current FOIA regulations in order to implement the FOIA Improvement Act of 2016. While this alternative would eliminate direct inconsistencies between CEQ's regulations and the FOIA, it would not address inconsistencies between CEQ's FOIA regulations, the Template and CEQ's FOIA policies and procedures, or inconsistencies between CEQ's Privacy Act regulations and CEQ's practice in implementing the Privacy Act.

CEQ's preferred alternative is to amend its regulations as described in the proposed rule and this final rule, for the reasons set forth in parts I through III of this preamble.

Environmental Effects of Alternatives: CEQ's FOIA and Privacy Act programs affect the environment primarily through requesters' use of paper and energy in submitting requests and CEQ's use of paper and energy in searching for, reviewing, and duplicating responsive records. CEQ's use of paper and energy for these purposes has remained within the range typical of the operations of a small office. Currently, CEQ accepts FOIA and Privacy Act requests by mail and fax, which require the use of paper and energy to print and transmit requests to CEQ. The final regulations will direct FOIA and Privacy Act requesters to submit their requests electronically if they are able to do so, thereby reducing the use of paper and energy associated with mailed and faxed requests. CEQ receives requests by fax or mail infrequently, however, so any reduction in the use of resources is likely to be modest. In addition, by improving the public's timely access to information contained in CEQ records, the final regulations support the meaningful involvement of all communities, including communities with environmental justice concerns, in Federal decision-making processes.

List of Agencies and Persons Consulted: CEQ's NEPA staff reviewed and commented on this EA, the proposed rule, and this final rule.

Based on the foregoing EA, CEQ finds that implementation of the final regulations will reduce the use of paper and energy resources in CEQ's FOIA and Privacy Act programs, streamline CEQ's FOIA and Privacy Act procedures, make CEQ more accessible and responsive to the public, and improve the opportunity for all communities to access information and be meaningfully involved in Federal decision-making processes. Thus, there will be no significant environmental effects associated with implementation of the proposed action, and it is not necessary for CEQ to prepare an EIS.

CEQ further finds that the final action is not one that normally requires the preparation of an EIS, closely similar to such an action, or an action without precedent.

This document announces that OMB approved the information collection requirement in § 4.18 on December 5, 2024.

The Commission publishes this document as an announcement of the compliance date of the rules.

If you have any comments on the burden estimates listed in the following, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include OMB Control Number, 3060-1033, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the FCC is notifying the public that it received final OMB approval as approved with changes on December 5, 2024, for the information collection requirement contained in § 4.18.

Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-1003.

OMB Approval Date: December 5, 2024.

OMB Expiration Date: December 31, 2027.

Title: Communications Disaster Information Reporting System (DIRS).

Form Number: N/A.

Respondents: Business or other for-profit entities, and State, local or tribal governments, and Federal Government.

Number of Respondents and Responses: 18,306 respondents; 292,896 responses.

Estimated Time per Response: 0.166 hours.

Frequency of Response: Annual and on occasion reporting requirements and recordkeeping requirements.

Obligation to Respond: Mandatory. Statutory authority for this collection of information is contained in sections 1, 4(i), 4(j), 4(n), 201, 214, 218, 251(e)(3), 301, 303(b), 303(g), 303(j), 303(r), 307, 309 316, 332, and 403 of the Communications Act of 1934, as amended, and 47 U.S.C. 151, 154(i)-(j) & (n), 201, 214, 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 309(j), 316, 332, 403; sections 2, 3(b), and 6-7 of the Wireless Communications and Public Safety Act of 1999, 47 U.S.C. 615 note, 615, 615a-1, 615b, section 106 of the Twenty First Century Communications and Video Accessibility Act of 2010, 47 U.S.C. 615c, section 506(a) of the Repack Airways Yielding Better Access for Users of Modern Services Act of 2018 (RAY BAUM'S Act), and section 6206 of the Middle Class Tax Relief and Job Creation Act of 2012, 47 U.S.C. 1426.

Total Annual Burden: 48,816 hours.

Total Annual Cost: No Cost.

Needs and Uses: Using DIRS, participating communications companies provide the Commission with their emergency contact information and can subsequently inform the Commission of damage to their infrastructure and facilities, as well as request resources for restoration from the Commission. DIRS respondents provide this information using web-based electronic forms tailored to their types of networks and facilities.

In the Mandated Disaster Information Reporting System Order, 89 FR 32373, April 26, 2024 (previously 89 FR 25535, April 11, 2024), the Commission is requiring cable communications, wireless, wireline and interconnected VoIP providers (Subject Providers) to report their infrastructure status information in DIRS on a daily basis while DIRS is activated. During that time, Subject Providers will not be required to file reports of system outages in the FCC's Network Outage Reporting System (NORS) that arise during the DIRS activation and that are timely reported in DIRS.

The new rules also require Subject Providers to provide a final report to the Commission within 24 hours of the Commission's deactivation of DIRS and the termination of required daily reporting that details the state of their infrastructure at the time of DIRS deactivation and provides an estimated date of resolution of any remaining outages. This mandatory reporting requirement replaces the former voluntary DIRS reporting framework because, after almost two decades of observation, the Commission notes that the United States has been experiencing an increasing number of perilous floods, hurricanes, winter storms, tornados, and wildfires necessitating a more regular activation of DIRS.

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 4 as follows: