67102 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

TABLE 1—APPROVED BUT NOT INCORPORATED BY REFERENCE REGULATIONS—Continued 

State/local citation Title/subject 

State/local 

effective 

date 

EPA 

approval date Explanations 

*******

400–270 ................ Confidentiality of Records and Information.9/10/21 9/29/23, [INSERT FEDERAL REGISTER CITATION].

400–280 ................ Powers of Agency ................................. 9/10/21 9/29/23, [INSERT FEDERAL REGISTER CITATION].

*******

* * * * * 

[FR Doc. 2023–21267 Filed 9–28–23; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Parts 52 and 97 

[EPA–HQ–OAR–2021–0668; FRL–8670.3– 

01–OAR] 

Federal ‘‘Good Neighbor Plan’’ for the 

2015 Ozone National Ambient Air 

Quality Standards; Response to 

Additional Judicial Stays of SIP 

Disapproval Action for Certain States 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Interim final rule; request for 

comment. 

SUMMARY: The Environmental Protection 

Agency (EPA) is taking interim final 

action to stay, for emissions sources in 

Alabama, Minnesota, Nevada, 

Oklahoma, Utah, and West Virginia 

only, the effectiveness of the Federal 

Implementation Plan (FIP) requirements 

established to address the obligations of 

these and other States to mitigate 

interstate air pollution with respect to 

the 2015 national ambient air quality 

standards (NAAQS) for ozone (the Good 

Neighbor Plan). The EPA is also revising 

certain other regulations to ensure the 

continued implementation of previously 

established requirements to mitigate 

interstate air pollution with respect to 

other ozone NAAQS while the Good 

Neighbor Plan’s requirements are 

stayed. The stay and the associated 

revisions to other regulations are being 

issued in response to judicial orders that 

partially stay, pending judicial review, a 

separate EPA action which disapproved 

certain State Implementation Plan (SIP) 

revisions submitted by these and other 

States. 

DATES: This interim final rule is 

effective on September 29, 2023. 

Comments on this rule must be received 

on or before October 30, 2023. 

ADDRESSES: You may send comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2021–0668, by any of the 

following methods: 

• Federal eRulemaking portal: 

https://www.regulations.gov (our 

preferred method). Follow the online 

instructions for submitting comments. 

• Mail: U.S. Environmental 

Protection Agency, EPA Docket Center, 

Air and Radiation Docket, Mail Code 

28221T, 1200 Pennsylvania Avenue 

NW, Washington, DC 20460. 

• Hand delivery or courier: EPA 

Docket Center, WJC West Building, 

Room 3334, 1301 Constitution Avenue 

NW, Washington, DC 20004. The Docket 

Center’s hours of operations are 8:30 

a.m.–4:30 p.m., Monday–Friday (except 

Federal holidays). 

Comments received may be posted 

without change to https://

www.regulations.gov, including any 

personal information provided. For 

detailed instructions on sending 

comments, see the ‘‘Public 

Participation’’ heading of the 

SUPPLEMENTARY INFORMATION section of 

this document. 

FOR FURTHER INFORMATION CONTACT: 

David Lifland, Clean Air Markets 

Division, Office of Atmospheric 

Protection, Office of Air and Radiation, 

U.S. Environmental Protection Agency, 

Mail Code 6204A, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone: 202–343–9151; email: 

lifland.david@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. General 

A. Public Participation 

Submit your written comments, 

identified by Docket ID No. EPA–HQ– 

OAR–2021–0668, at https://

www.regulations.gov (our preferred 

method), or by the other methods 

identified in the ADDRESSES section. 

Once submitted, comments cannot be 

edited or removed from the docket. The 

EPA may publish any comment received 

to its public docket. Do not submit to 

the EPA’s docket at https://

www.regulations.gov any information 

you consider to be Confidential 

Business Information (CBI), Proprietary 

Business Information (PBI), or other 

information whose disclosure is 

restricted by statute. Multimedia 

submissions (audio, video, etc.) must be 

accompanied by a written comment. 

The written comment is considered the 

official comment and should include 

discussion of all points you wish to 

make. The EPA will generally not 

consider comments or comment 

contents located outside of the primary 

submission (i.e., on the web, cloud, or 

other file sharing system). Please visit 

https://www.epa.gov/dockets/ 

commenting-epa-dockets for additional 

submission methods; the full EPA 

public comment policy; information 

about CBI, PBI, or multimedia 

submissions; and general guidance on 

making effective comments. 

B. Potentially Affected Entities 

This action revises on an interim basis 

the Good Neighbor Plan, which applies 

to electric generating units (EGUs) and 

non-EGU industrial sources. This action 

also revises other allowance trading 

program regulations that apply to EGUs 

but not to non-EGU industrial sources. 

The affected emissions sources are 

generally in the following industry 

groups: 

Industry group 

North American 

Industry 

Classification 

System (NAICS) 

code 

Fossil Fuel Electric 

Power Generation ....... 221112 

Pipeline Transportation of 

Natural Gas ................. 4862 

Cement and Concrete 

Product Manufacturing 3273 

Iron and Steel Mills and 

Ferroalloy Manufacturing ........................... 3311 

Glass and Glass Product 

Manufacturing ............. 3272 

Basic Chemical Manufacturing ........................... 3251 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67103 

1Federal ‘‘Good Neighbor Plan’’ for the 2015 

Ozone National Ambient Air Quality Standards; 

Response to Judicial Stays of SIP Disapproval 

Action for Certain States, 88 FR 49295 (July 31, 

2023). 

2Federal ‘‘Good Neighbor Plan’’ for the 2015 

Ozone National Ambient Air Quality Standards, 88 

FR 36654 (June 5, 2023). 

3Air Plan Disapprovals; Interstate Transport of 

Air Pollution for the 2015 8-Hour Ozone National 

Ambient Air Quality Standards, 88 FR 9336 

(February 13, 2023). 

4Order, Allete, Inc. v. EPA, No. 23–1776 (8th Cir. 

July 5, 2023), available in the docket. 

5Order, Nevada Cement Co. v. EPA, No. 23–682 

(9th Cir. July 3, 2023), available in the docket. 

6Order, Alabama v. EPA, No. 23–11173, and 

Alabama Power Co. v. EPA, No. 11196 (11th Cir. 

August 17, 2023), available in the docket. 

7Order, Utah v. EPA, No. 23–9509, PacifiCorp v. 

EPA, No. 23–9512, Utah Associated Municipal 

Power Systems v. EPA, No. 23–9520, Oklahoma v. 

EPA, No. 23–9514, Oklahoma Gas & Electric Co. v. 

EPA, No. 23–9521, Tulsa Cement LLC v. EPA, No. 

23–9533, and Western Farmers Electric Cooperative 

v. EPA, No. 23–9534 (10th Cir. July 27, 2023), 

available in the docket. 

8Order, West Virginia v. EPA, No. 23–1418 (4th 

Cir. August 10, 2023), available in the docket. Oral 

argument on the motions is scheduled for October 

27, 2023. 

9Order, Kentucky v. EPA, No. 23–3216, and 

Kentucky Energy and Environment Cabinet v. EPA, 

No. 23–3225 (6th Cir. July 25, 2023) (judicial stay 

order); see also Order, Kentucky v. EPA, No. 23– 

3216 (6th Cir. May 31, 2023) (administrative stay 

order). (Both orders are available in the docket.) The 

EPA’s response to the administrative stay order in 

the First Interim Final Rule also serves as a 

complete response to the more recent judicial stay 

order, with the consequence that no additional 

response to the judicial stay order as to Kentucky 

is necessary in this action. 

10The EPA’s authority to implement the Good 

Neighbor Plan’s FIP requirements as to emissions 

sources in Utah has two independent statutory 

bases: first, the Agency’s finding of the state’s 

failure to submit a good neighbor SIP for the 2015 

ozone NAAQS, 84 FR 66612 (December 5, 2019), 

and second, the Agency’s disapproval of the state’s 

subsequently submitted SIP in the SIP Disapproval 

action. See CAA section 110(c)(1). However, the 

order staying the SIP Disapproval action as to Utah 

includes the statement that ‘‘EPA may not enforce 

its Federal Good Neighbor Plan for the 2015 ozone 

NAAQS against . . . Utah while the stay remains 

in place.’’ Order, supra note 7, at 4. To comply with 

the order, the EPA is therefore staying the 

effectiveness of the Good Neighbor Plan’s 

requirements as to emissions sources in Utah 

notwithstanding the Agency’s independent basis for 

FIP authority arising from the finding of Utah’s 

failure to submit a good neighbor SIP. 

Industry group 

North American 

Industry 

Classification 

System (NAICS) 

code 

Petroleum and Coal 

Products Manufacturing ........................... 3241 

Pulp, Paper, and Paperboard Mills ................... 3221 

Metal Ore Mining ............ 2122 

Solid Waste Combustors 

and Incinerators .......... 562213 

As signed in March 2023, the Good 

Neighbor Plan applies to emissions 

sources in Alabama, Arkansas, 

California, Illinois, Indiana, Kentucky, 

Louisiana, Maryland, Michigan, 

Minnesota, Mississippi, Missouri, 

Nevada, New Jersey, New York, Ohio, 

Oklahoma, Pennsylvania, Texas, Utah, 

Virginia, West Virginia, and Wisconsin. 

The Good Neighbor Plan’s requirements 

for emissions sources in Arkansas, 

Kentucky, Louisiana, Mississippi, 

Missouri, and Texas were stayed in a 

previous action. This action stays the 

Good Neighbor Plan’s requirements for 

emissions sources in Alabama, 

Minnesota, Nevada, Oklahoma, Utah, 

and West Virginia. 

The information provided in this 

section on potentially affected entities is 

not intended to be exhaustive. If you 

have questions regarding the 

applicability of this action to a 

particular entity, consult the person 

listed in the FOR FURTHER INFORMATION

CONTACT section. 

C. Statutory Authority 

Statutory authority to issue the 

amendments finalized in this action is 

provided by the same Clean Air Act 

(CAA) provisions that provided 

authority to issue the regulations being 

amended: CAA section 110(a) and (c), 

42 U.S.C. 7410(a) and (c) (SIP and FIP 

requirements, including requirements 

for mitigation of interstate air pollution), 

and CAA section 301, 42 U.S.C. 7601 

(general rulemaking authority). 

Statutory authority for the rulemaking 

procedures followed in this action is 

provided by Administrative Procedure 

Act (APA) section 553, 5 U.S.C. 553. 

II. Regulatory Revisions 

In a previous action (referred to here 

as the First Interim Final Rule),1 the 

EPA stayed on an interim basis, for 

EGUs and non-EGU industrial sources 

in Arkansas, Kentucky, Louisiana, 

Mississippi, Missouri, and Texas, the 

effectiveness of the FIP requirements 

established to address the obligations of 

these and other States to mitigate 

interstate air pollution with respect to 

the 2015 ozone NAAQS (referred to here 

as the Good Neighbor Plan).2 To ensure 

the continued implementation of 

previously established requirements to 

mitigate interstate air pollution with 

respect to other ozone NAAQS, the First 

Interim Final Rule also required EGUs 

in these States to participate in the 

Cross-State Air Pollution Rule (CSAPR) 

NOX Ozone Season ‘‘Group 2’’ Trading 

Program while the Good Neighbor 

Plan’s requirements for these EGUs to 

participate in the CSAPR NOX Ozone 

Season ‘‘Group 3’’ Trading Program are 

stayed. The stay and the associated 

revisions to other regulations were 

issued in response to judicial orders that 

partially stay, pending judicial review, a 

separate EPA action which disapproved 

certain SIP revisions submitted by these 

and other States (the SIP Disapproval 

action).3

Since the EPA submitted the First 

Interim Final Rule for publication in the 

Federal Register, courts have issued 

orders granting partial stays of the SIP 

Disapproval action as to several 

additional States. The U.S. Courts of 

Appeals for the Eighth, Ninth, and 

Eleventh Circuits granted judicial stays 

pending review on the merits as to 

Minnesota,4 Nevada,5 and Alabama,6

respectively, and the U.S. Court of 

Appeals for the Tenth Circuit did the 

same as to Oklahoma and Utah.7 In 

addition, the U.S. Court of Appeals for 

the Fourth Circuit issued an 

administrative stay as to West Virginia 

pending oral argument on West 

Virginia’s motion to stay and the EPA’s 

motion to transfer venue or dismiss.8

Finally, the U.S. Court of Appeals for 

the Sixth Circuit granted a judicial stay 

pending review on the merits as to 

Kentucky which supersedes the 

administrative stay previously in effect 

as to that State.9

To respond to the stay orders as to the 

additional States, in this action the EPA 

is modifying and supplementing the 

regulatory revisions adopted in the First 

Interim Final Rule. The effect of this 

action is that emissions sources in 

Alabama, Minnesota, Nevada, 

Oklahoma, Utah,10 and West Virginia 

(and Indian country within the borders 

of the States) will not be subject to the 

Good Neighbor Plan’s requirements 

promulgated to address the States’ good 

neighbor obligations with respect to the 

2015 ozone NAAQS while the stay 

orders covering the States remain in 

place (i.e., at least for the 2023 ozone 

season and possibly longer). After the 

courts have reached final 

determinations on the merits in these 

proceedings (or possibly in the case of 

West Virginia, a final determination to 

deny the stay motion or to grant the 

motion to transfer venue or dismiss), the 

EPA will take further action consistent 

with the final determinations. At the 

time of this rulemaking, the EPA cannot 

predict how the Agency’s future action 

may affect the amendments being 

finalized in this action. However, for 

these States, as well as the States 

covered by the First Interim Final Rule, 

the EPA generally anticipates that any 

future action bringing the Good 

Neighbor Plan’s requirements into effect 

after a stay would phase in the 

requirements so as to provide lead times 


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67104 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

11The EPA has included a document in the 

docket that shows all the regulatory revisions being 

adopted in this action in redline-strikeout format. 

12See §§ 52.1492(b)(2) (Nevada), 52.1930(b)(2) 

(Oklahoma), 52.2356(b)(2) (Utah), 52.2540(c)(2) 

(West Virginia). 

13See §§ 52.54(b)(6) (Alabama), 52.1930(a)(6) 

(Oklahoma), 52.2540(b)(6) (West Virginia). 

14Like EGUs in Arkansas, Mississippi, Missouri, 

and Texas, EGUs in Alabama and Oklahoma were 

covered by the Group 2 trading program before the 

Good Neighbor Plan and therefore will use 

‘‘Original Group 2’’ allowances for compliance. Like 

EGUs in Kentucky and Louisiana, EGUs in West 

Virginia were already covered by the Group 3 

trading program before the Good Neighbor Plan and 

therefore will use ‘‘Expanded Group 2’’ allowances 

for compliance. For further discussion of the 

regulatory provisions relating to Original Group 2 

and Expanded Group 2 allowances, see the First 

Interim Final Rule at 88 FR 49297–98. 

15See §§ 52.1240(d)(3) (Minnesota), 52.1492(a)(3) 

(Nevada), 52.2356(a)(3) (Utah). 

16Under CAA section 307(d)(1)(B), the EPA’s 

revision of a FIP under CAA section 110(c) would 

normally be subject to the rulemaking procedural 

requirements of CAA section 307(d), including 

notice-and-comment procedures, but CAA section 

307(d) does not apply ‘‘in the case of any rule or 

circumstance referred to in subparagraphs (A) or (B) 

of [APA section 553(b)].’’ CAA section 307(d)(1). 

to implement the Good Neighbor Plan’s 

identified emissions control strategies 

comparable to the lead times that the 

Good Neighbor Plan would have 

provided in the absence of the stay, 

thereby giving parties sufficient time to 

prepare for implementation. 

The remainder of this section 

describes the specific regulatory 

revisions being adopted in this action.11

For further background and discussion 

of the basis for the regulatory revisions, 

see the First Interim Final Rule at 88 FR 

49296–97. 

To implement the stay orders with 

respect to non-EGU industrial sources in 

Nevada, Oklahoma, Utah, and West 

Virginia (and Indian country within the 

borders of the States), the EPA is adding 

these States to the list of States covered 

by the stay provision for non-EGU 

industrial sources adopted in the First 

Interim Final Rule at 40 CFR 52.40(c)(4) 

and is adding parallel text in the Statespecific subpart of 40 CFR part 52 for 

each of the States.12 No equivalent stay 

provisions are necessary for Alabama or 

Minnesota because the Good Neighbor 

Plan’s requirements for non-EGU 

industrial sources do not apply to 

emissions sources in Alabama or 

Minnesota. 

To implement the stay orders with 

respect to EGUs in Alabama, Oklahoma, 

and West Virginia (and Indian country 

within the borders of the States), the 

EPA is adding these States to the lists 

of States covered by the stay provisions 

for EGUs adopted in the First Interim 

Final Rule at 40 CFR 

52.38(b)(2)(iii)(D)(1) (West Virginia) and 

40 CFR 52.38(b)(2)(iii)(D)(2) (Alabama 

and Oklahoma) and is adding parallel 

text in the state-specific subparts of 40 

CFR part 52 for each of the States.13 In 

combination with other provisions 

adopted in the First Interim Final Rule 

at 40 CFR 52.38(b)(2)(ii)(D), the 

revisions will require the EGUs in each 

of these States to participate in the 

Group 2 trading program instead of the 

Group 3 trading program while a stay 

for the State remains in effect.14 The 

EPA is also revising the Group 2 trading 

program regulations at 40 CFR 97.810 

and 97.821 and the Group 3 trading 

program regulations at 40 CFR 97.1026 

to continue to provide the same 

amounts for State emissions budgets, 

variability limits, unit-level allowance 

allocations, and banked allowance 

holdings that would have applied for 

these States in the absence of the Good 

Neighbor Plan. 

To implement the stay orders with 

respect to EGUs in Minnesota, Nevada, 

and Utah (and Indian country within 

the borders of the States), the EPA is 

adding a new stay provision for EGUs in 

these States at 40 CFR 

52.38(b)(2)(iii)(D)(3) and is adding 

parallel text in the state-specific 

subparts of 40 CFR part 52 for each of 

the States.15 Unlike the stay provisions 

adopted in the First Interim Final Rule 

for EGUs in Arkansas, Kentucky, 

Louisiana, Mississippi, Missouri, and 

Texas and extended in this action to 

EGUs in Alabama, Oklahoma, and West 

Virginia, the stay provision for EGUs in 

Minnesota, Nevada, and Utah is not 

accompanied by requirements under 40 

CFR 52.38(b)(2)(ii)(D) to participate in 

the Group 2 trading program while the 

stay for a State is in effect, because 

EGUs in Minnesota, Nevada, and Utah 

are not subject to previously established 

requirements to mitigate interstate air 

pollution with respect to other ozone 

NAAQS. 

Finally, the EPA is making stayrelated revisions to two cross-references 

in the Group 2 and Group 3 trading 

program regulations. First, a revision at 

40 CFR 97.826(e)(1) clarifies that, like 

EGUs in other States covered by stay 

orders, EGUs in Minnesota, Nevada, and 

Utah will be excluded from the one-time 

procedures converting Group 2 

allowances into an initial bank of Group 

3 allowances. Second, a revision at 40 

CFR 97.1026(d)(2)(ii) clarifies that 

emissions budgets for States covered by 

stay orders will be excluded from 

calculations of the allowance bank 

target amounts used in the Group 3 

trading program’s annual bank 

recalibration procedure. 

III. Rulemaking Procedures and 

Findings of Good Cause 

As noted in section I.C of this 

document, the EPA’s authority for the 

rulemaking procedures followed in this 

action is provided by APA section 

553.16 In general, an agency issuing a 

rule under the procedures in APA 

section 553 must provide prior notice 

and an opportunity for public comment, 

but APA section 553(b)(B) includes an 

exemption from notice-and-comment 

requirements ‘‘when the agency for good 

cause finds (and incorporates the 

finding and a brief statement of reasons 

therefor in the rule issued) that notice 

and public procedure thereon are 

impracticable, unnecessary, or contrary 

to the public interest.’’ This action is 

being issued as an interim final rule 

without prior notice or opportunity for 

public comment because the EPA finds 

that the APA ‘‘good cause’’ exemption 

from notice-and-comment requirements 

applies here. 

The basis for the finding of good 

cause is that following notice-andcomment procedures is unnecessary for 

this action. The EPA has no discretion 

as to whether to stay the effectiveness of 

the Good Neighbor Plan’s requirements 

for emissions sources in the States 

covered by the additional stay orders. 

While some superficial discretion exists 

concerning the specific design of the 

regulatory revisions that provide an 

alternate mechanism for EGUs in States 

covered by the stay orders to continue 

to address the States’ good neighbor 

obligations with respect to other ozone 

NAAQS, no discretion exists as to the 

function of that design, which is to 

maintain the status quo by 

implementing requirements that are 

substantively identical to the preexisting requirements that would have 

continued to apply in the absence of the 

Good Neighbor Plan. The EPA’s design 

for the regulatory revisions in this 

action accomplishes this function. 

Taking comment so as to allow the 

public to advocate for not staying the 

Good Neighbor Plan’s requirements, not 

adopting regulatory revisions needed to 

implement requirements that are 

substantively identical to the 

requirements that would have applied 

in the absence of the Good Neighbor 

Plan, or adopting superficially different 

regulatory revisions to accomplish the 

same function would serve no purpose 

and is therefore unnecessary. 

The regulatory revisions made in this 

action will take effect immediately upon 

publication of the action in the Federal 

Register. In general, an agency issuing a 

rule under APA section 553 must 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67105 

17Omnipoint Corp. v. FCC, 78 F.3d 620, 630 (D.C. 

Cir. 1996). 

provide for a period of at least 30 days 

between the rule’s dates of publication 

and effectiveness, but APA section 

553(d) includes several exceptions. 

Under APA section 553(d)(1), an 

exception applies to a rule that ‘‘grants 

or recognizes an exemption or relieves 

a restriction.’’ Because the portions of 

this action that stay the effectiveness of 

the Good Neighbor Plan’s requirements 

for emissions sources in certain States 

grant an exemption (on an interim basis 

while the stay remains in place), the 

normal 30-day minimum period 

between this action’s dates of 

publication and effectiveness is not 

required. The EPA is making these 

portions of the action effective as of the 

action’s publication date to comply with 

the stay orders in a timely manner. 

Under APA section 553(d)(3), the 

normal 30-day minimum period 

between a rule’s dates of publication 

and effectiveness does not apply ‘‘as 

otherwise provided by the agency for 

good cause found and published with 

the rule.’’ With respect to the portions 

of this action that provide an alternate 

mechanism for EGUs in the States 

covered by the stay orders to continue 

to address the States’ good neighbor 

obligations under rules issued before the 

Good Neighbor Plan, the EPA finds good 

cause to make the regulatory revisions 

effective as of the action’s publication 

date for the following reasons. First, 

these regulatory revisions benefit the 

public by avoiding the possibility that 

interruption of the previously 

established requirements would cause 

air quality degradation. Second, these 

regulatory revisions benefit the 

regulated community by clarifying the 

regulatory requirements that apply in 

light of the stay orders. Finally, making 

these regulatory revisions effective less 

than 30 days after this action’s 

publication date does not violate the 

purpose of the normal requirement for 

a 30-day minimum period, which is ‘‘to 

give affected parties a reasonable time to 

adjust their behavior before the final 

rule takes effect.’’ 17 The regulatory 

revisions in this action facilitating 

continued implementation of previously 

established requirements impose no 

requirements on any emissions source 

that differ substantively from the 

requirements that would have applied 

to that source in the absence of the Good 

Neighbor Plan. Thus, no affected party 

needs time to adjust its behavior in 

preparation for these regulatory 

revisions. 

IV. Request for Comment 

As explained in section III of this 

document, the EPA finds good cause to 

take this interim final action without 

prior notice or opportunity for public 

comment. However, the EPA is 

providing an opportunity for comment 

on the content of the amendments. The 

EPA requests comment on this rule. The 

EPA is not reopening for comment any 

provisions of the Good Neighbor Plan, 

40 CFR part 52, or 40 CFR part 97 other 

than the specific provisions that are 

expressly added or amended in this 

rule. 

V. Statutory and Executive Order 

Reviews 

Additional information about these 

statutes and Executive Orders can be 

found at www.epa.gov/laws-regulations/ 

laws-and-executive-orders. 

A. Executive Order 12866: Regulatory 

Planning and Review and Executive 

Order 14094: Modernizing Regulatory 

Review 

This action is not a significant 

regulatory action as defined in 

Executive Order 12866, as amended by 

Executive Order 14094, and was 

therefore not subject to a requirement 

for Executive Order 12866 review. 

B. Paperwork Reduction Act (PRA) 

This action does not impose any new 

information collection burden under the 

Paperwork Reduction Act (PRA), 44 

U.S.C. 3501 et seq. The Office of 

Management and Budget (OMB) has 

previously approved the information 

collection activities that will apply to 

the EGUs affected by this action and has 

assigned OMB control numbers 2060– 

0258 and 2060–0667. Additional 

information collection activities that 

will apply to EGUs and non-EGU 

industrial sources under the Good 

Neighbor Plan have been submitted to 

OMB for approval in conjunction with 

that rulemaking. This action makes no 

changes to the information collection 

activities under the previously approved 

information collection requests (ICRs) or 

the additional information collection 

activities for which approval has been 

requested in the Good Neighbor Plan’s 

ICRs. 

C. Regulatory Flexibility Act (RFA) 

This action is not subject to the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 601–612. The RFA applies only 

to rules subject to notice-and-comment 

rulemaking requirements under APA 

section 553 or any other statute. This 

rule is not subject to notice-andcomment requirements because the 

Agency has invoked the APA ‘‘good 

cause’’ exemption under 5 U.S.C. 

553(b). 

D. Unfunded Mandates Reform Act 

(UMRA) 

This action does not contain any 

unfunded mandate as described in the 

Unfunded Mandates Reform Act 

(UMRA), 2 U.S.C. 1531–1538, and does 

not significantly or uniquely affect small 

governments. This action imposes no 

enforceable duty on any State, local, or 

Tribal governments or the private sector. 

This action simply stays the 

effectiveness of certain regulatory 

requirements for certain emissions 

sources on an interim basis in response 

to procedural court orders while 

ensuring that previously applicable 

regulatory requirements remain in 

effect. 

E. Executive Order 13132: Federalism 

This action does not have federalism 

implications. It will not have substantial 

direct effects on the States, on the 

relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications as specified in Executive 

Order 13175. This action simply stays 

the effectiveness of certain regulatory 

requirements for certain emissions 

sources on an interim basis in response 

to procedural court orders while 

ensuring that previously applicable 

regulatory requirements remain in 

effect. Thus, Executive Order 13175 

does not apply to this action. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

The EPA interprets Executive Order 

13045 as applying only to those 

regulatory actions that concern 

environmental health or safety risks that 

the EPA has reason to believe may 

disproportionately affect children, per 

the definition of ‘‘covered regulatory 

action’’ in section 2–202 of the 

Executive Order. This action responds 

to court orders issued by several U.S. 

Courts of Appeals and the EPA lacks 

discretion to deviate from those orders. 

The EPA’s assessment of health and 

safety risks for the action establishing 

the requirements that are being stayed is 

discussed in Chapter 5 of the regulatory 


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67106 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

18See Regulatory Impact Analysis for the Final 

Federal Good Neighbor Plan Addressing Regional 

Ozone Transport for the 2015 Ozone National 

Ambient Air Quality Standard (March 2023) at 197– 

257, available in the docket. 

19See 88 FR 36844–46. 

20Sierra Club v. EPA, 47 F.4th 738, 745 (D.C. Cir. 

2022) (‘‘EPA’s decision whether to make and 

publish a finding of nationwide scope or effect is 

committed to the agency’s discretion and thus is 

unreviewable’’); Texas v. EPA, 983 F.3d 826, 834– 

35 (5th Cir. 2020). 

21The Good Neighbor Plan is nationally 

applicable or based on a determination of 

nationwide scope or effect found and published by 

the EPA. See 88 FR 36859–60. 22See 86 FR 23163–64; 81 FR 74585–86. 

impact analysis for the Good Neighbor 

Plan.18

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 because it is not a 

significant regulatory action under 

Executive Order 12866. 

I. National Technology Transfer and 

Advancement Act (NTTAA) 

This rulemaking does not involve 

technical standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and 

Low-Income Populations 

Executive Order 12898 (59 FR 7629, 

February 16, 1994) directs Federal 

agencies, to the greatest extent 

practicable and permitted by law, to 

make environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations (people of color and/or 

Indigenous peoples) and low-income 

populations. This action responds to 

court orders issued by several U.S. 

Courts of Appeals and the EPA lacks 

discretion to deviate from those orders. 

The EPA’s assessment of environmental 

justice considerations for the action 

establishing the requirements that are 

being stayed is discussed in section VII 

of the Good Neighbor Plan preamble.19

K. Congressional Review Act (CRA) 

This action is subject to the 

Congressional Review Act (CRA), 5 

U.S.C. 801–808, and the EPA will 

submit a rule report to each House of 

the Congress and to the Comptroller 

General of the United States. 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 rule as discussed in 

section III of this document, including 

the basis for that finding. 

L. Judicial Review 

CAA section 307(b)(1) governs 

judicial review of final actions by the 

EPA. This section provides, in part, that 

petitions for review must be filed in the 

U.S. Court of Appeals for the District of 

Columbia Circuit (D.C. Circuit): (i) when 

the agency action consists of ‘‘nationally 

applicable regulations promulgated, or 

final actions taken, by the 

Administrator,’’ or (ii) when such action 

is locally or regionally applicable, but 

‘‘such action is based on a 

determination of nationwide scope or 

effect and if in taking such action the 

Administrator finds and publishes that 

such action is based on such a 

determination.’’ For locally or regionally 

applicable final actions, the CAA 

reserves to the EPA complete discretion 

to decide whether to invoke the 

exception in (ii).20

This rulemaking is ‘‘nationally 

applicable’’ within the meaning of CAA 

section 307(b)(1). In this action, in 

response to court orders, the EPA is 

amending on an interim basis the Good 

Neighbor Plan,21 which the EPA 

developed by applying a uniform legal 

interpretation and common, nationwide 

analytical methods to address the 

requirements of CAA section 

110(a)(2)(D)(i)(I) concerning interstate 

transport of pollution (i.e., ‘‘good 

neighbor’’ requirements) for the 2015 

ozone NAAQS. Based on that 

nationwide analysis, the Good Neighbor 

Plan established FIP requirements for 

emissions sources in 23 States located 

across eight EPA Regions and ten 

Federal judicial circuits. Given that this 

action amends an action implementing 

the good neighbor requirements of CAA 

section 110(a)(2)(D)(i)(I) in a large 

number of States located across the 

country and given the interdependent 

nature of interstate pollution transport 

and the common core of knowledge and 

analysis involved in promulgating the 

FIP requirements, this is a ‘‘nationally 

applicable’’ action within the meaning 

of CAA section 307(b)(1). 

In the alternative, to the extent a court 

finds this action to be locally or 

regionally applicable, the Administrator 

is exercising the complete discretion 

afforded to him under the CAA to make 

and publish a finding that this action is 

based on a determination of 

‘‘nationwide scope or effect’’ within the 

meaning of CAA section 307(b)(1). In 

this action, in response to court orders, 

the EPA is amending on an interim basis 

the Good Neighbor Plan, an action in 

which the EPA interpreted and applied 

section 110(a)(2)(D)(i)(I) of the CAA for 

the 2015 ozone NAAQS based on a 

common core of nationwide policy 

judgments and technical analysis 

concerning the interstate transport of 

pollutants throughout the continental 

United States. Based on that nationwide 

analysis, the Good Neighbor Plan 

established FIP requirements for 

emissions sources in 23 States located 

across eight EPA Regions and ten 

Federal judicial circuits. This action 

adjusts temporarily the scope and 

operation of the Good Neighbor Plan for 

six States in response to court orders, 

and also implements necessary 

measures to ensure the status quo is 

maintained with respect to existing 

obligations under previously issued 

regulations (that were themselves 

nationally applicable or based on a 

determination of nationwide scope or 

effect found and published by the 

EPA 22). 

The Administrator finds that, like the 

Good Neighbor Plan which it amends, 

this action is a matter on which national 

uniformity in judicial resolution of any 

petitions for review is desirable, to take 

advantage of the D.C. Circuit’s 

administrative law expertise, and to 

facilitate the orderly development of the 

basic law under the Act. The 

Administrator also finds that 

consolidated review of this action in the 

D.C. Circuit will avoid piecemeal 

litigation in the regional circuits, further 

judicial economy, and eliminate the risk 

of inconsistent results for different 

States, and that a nationally consistent 

approach to the CAA’s mandate 

concerning interstate transport of ozone 

pollution constitutes the best use of 

Agency resources. 

For these reasons, this final action is 

nationally applicable or, alternatively, 

the Administrator is exercising the 

complete discretion afforded to him by 

the CAA and finds that this final action 

is based on a determination of 

nationwide scope or effect for purposes 

of CAA section 307(b)(1) and is 

publishing that finding in the Federal 

Register. Under CAA section 307(b)(1), 

petitions for judicial review of this 

action must be filed in the D.C. Circuit 

by November 28, 2023. 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67107 

List of Subjects 

40 CFR Part 52 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Incorporation by 

reference, Intergovernmental relations, 

Nitrogen oxides, Ozone, Particulate 

matter, Sulfur dioxide. 

40 CFR Part 97 

Environmental protection, 

Administrative practice and procedure, 

Air pollution control, Electric power 

plants, Nitrogen oxides, Ozone, 

Particulate matter, Reporting and 

recordkeeping requirements, Sulfur 

dioxide. 

Michael S. Regan, 

Administrator. 

For the reasons stated in the 

preamble, parts 52 and 97 of title 40 of 

the Code of Federal Regulations are 

amended as follows: 

PART 52—APPROVAL AND 

PROMULGATION OF 

IMPLEMENTATION PLANS 

■ 1. The authority citation for part 52 

continues to read as follows: 

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

Subpart A—General Provisions 

■ 2. Amend § 52.38 by: 

■ a. In paragraph (b)(2)(iii)(D)(1), 

removing ‘‘Kentucky and Louisiana’’ 

and adding in its place ‘‘Kentucky, 

Louisiana, and West Virginia’’; 

■ b. In paragraph (b)(2)(iii)(D)(2), 

removing ‘‘Arkansas, Mississippi, 

Missouri, and Texas’’ and adding in its 

place ‘‘Alabama, Arkansas, Mississippi, 

Missouri, Oklahoma, and Texas’’; and 

■ c. Adding paragraph (b)(2)(iii)(D)(3). 

The addition reads as follows: 

§ 52.38 What are the requirements of the 

Federal Implementation Plans (FIPs) for the 

Cross-State Air Pollution Rule (CSAPR) 

relating to emissions of nitrogen oxides? 

* * * * * 

(b) * * * 

(2) * * * 

(iii) * * * 

(D) * * * 

(3) The effectiveness of paragraph 

(b)(2)(iii)(C) of this section is stayed for 

sources in Minnesota, Nevada, and Utah 

and Indian country located within the 

borders of such States with regard to 

emissions occurring in 2023 and 

thereafter. While a stay under this 

paragraph (b)(2)(iii)(D)(3) is in effect for 

a State, such State shall be deemed not 

to be listed in paragraph (b)(2)(iii)(C) of 

this section for purposes of part 97 of 

this chapter. 

* * * * * 

§ 52.40 [Amended] 

■ 3. Amend § 52.40 in paragraph (c)(4) 

by removing ‘‘Missouri, and Texas’’ and 

adding in its place ‘‘Missouri, Nevada, 

Oklahoma, Texas, Utah, and West 

Virginia’’. 

Subpart B—Alabama 

■ 4. Amend § 52.54 by adding paragraph 

(b)(6) to read as follows: 

§ 52.54 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

* * * * * 

(b) * * * 

(6) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (b)(3) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter, 

provided that while such stay remains 

in effect, the provisions of paragraph 

(b)(2) of this section shall apply with 

regard to such emissions. 

Subpart Y—Minnesota 

■ 5. Amend § 52.1240 by adding 

paragraph (d)(3) to read as follows: 

§ 52.1240 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

* * * * * 

(d) * * * 

(3) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (d)(1) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter. 

Subpart DD—Nevada 

■ 6. Amend § 52.1492 by: 

■ a. Adding paragraph (a)(3); and 

■ b. Redesignating paragraph (b) as 

paragraph (b)(1) and adding paragraph 

(b)(2). 

The additions read as follows: 

§ 52.1492 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

(a) * * * 

(3) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (a)(1) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter. 

(b) * * * 

(2) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (b)(1) of this section is 

stayed. 

Subpart LL—Oklahoma 

■ 7. Amend § 52.1930 by: 

■ a. Adding paragraph (a)(6); and 

■ b. Redesignating paragraph (b) as 

paragraph (b)(1) and adding paragraph 

(b)(2). 

The additions read as follows: 

§ 52.1930 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

(a) * * * 

(6) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (a)(3) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter, 

provided that while such stay remains 

in effect, the provisions of paragraph 

(a)(2) of this section shall apply with 

regard to such emissions. 

(b) * * * 

(2) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (b)(1) of this section is 

stayed. 

Subpart TT—Utah 

■ 8. Amend § 52.2356 by: 

■ a. Adding paragraph (a)(3); and 

■ b. Redesignating paragraph (b) as 

paragraph (b)(1) and adding paragraph 

(b)(2). 

The additions read as follows: 

§ 52.2356 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

(a) * * * 

(3) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (a)(1) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter. 

(b) * * * 

(2) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (b)(1) of this section is 

stayed. 

Subpart XX—West Virginia 

■ 9. Amend § 52.2540 by: 

■ a. Adding paragraph (b)(6); and 

■ b. Redesignating paragraph (c) as 

paragraph (c)(1) and adding paragraph 

(c)(2). 

The additions read as follows: 

§ 52.2540 Interstate pollutant transport 

provisions; What are the FIP requirements 

for decreases in emissions of nitrogen 

oxides? 

* * * * * 


lotter on DSK11XQN23PROD with RULES1
67108 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

(b) * * * 

(6) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (b)(3) of this section is 

stayed with regard to emissions 

occurring in 2023 and thereafter, 

provided that while such stay remains 

in effect, the provisions of paragraph 

(b)(2) of this section shall apply with 

regard to such emissions. 

(c) * * * 

(2) Notwithstanding any other 

provision of this part, the effectiveness 

of paragraph (c)(1) of this section is 

stayed. 

PART 97—FEDERAL NOX BUDGET 

TRADING PROGRAM, CAIR NOX AND 

SO2 TRADING PROGRAMS, CSAPR 

NOX AND SO2 TRADING PROGRAMS, 

AND TEXAS SO2 TRADING PROGRAM 

■ 10. The authority citation for part 97 

continues to read as follows: 

Authority: 42 U.S.C. 7401, 7403, 7410, 

7426, 7491, 7601, and 7651, et seq. 

Subpart EEEEE—CSAPR NOX Ozone 

Season Group 2 Trading Program 

■ 11. Amend § 97.810 by: 

■ a. Revising paragraphs (a)(1)(i) 

through (iii) and (a)(17)(i) through (iii); 

■ b. Adding paragraphs (a)(22)(iv) 

through (vi); 

■ c. Revising paragraphs (b)(1) and (17); 

and 

■ d. Redesignating paragraph (b)(22) as 

paragraph (b)(22)(i) and adding 

paragraph (b)(22)(ii). 

The revisions and additions read as 

follows: 

§ 97.810 State NOX Ozone Season Group 2 

trading budgets, new unit set-asides, Indian 

country new unit set-asides, and variability 

limits. 

(a) * * * 

(1) * * * 

(i) The NOX Ozone Season Group 2 

trading budget for 2017 and thereafter is 

13,211 tons. 

(ii) The new unit set-aside for 2017 

and thereafter is 255 tons. 

(iii) The Indian country new unit setaside for 2017 and thereafter is 13 tons. 

* * * * * 

(17) * * * 

(i) The NOX Ozone Season Group 2 

trading budget for 2017 and thereafter is 

11,641 tons. 

(ii) The new unit set-aside for 2017 

and thereafter is 221 tons. 

(iii) The Indian country new unit setaside for 2017 and thereafter is 12 tons. 

* * * * * 

(22) * * * 

(iv) The NOX Ozone Season Group 2 

trading budget for 2023 and thereafter is 

12,884 tons. 

(v) The new unit set-aside for 2023 

and thereafter is 261 tons. 

(vi) [Reserved] 

* * * * * 

(b) * * * 

(1) The variability limit for Alabama 

for 2017 and thereafter is 2,774 tons. 

* * * * * 

(17) The variability limit for 

Oklahoma for 2017 and thereafter is 

2,445 tons. 

* * * * * 

(22) * * * 

(ii) The variability limit for West 

Virginia for 2023 and thereafter is 2,706 

tons. 

* * * * * 

§ 97.821 [Amended] 

■ 12. Amend § 97.821 in paragraph 

(e)(2) by removing ‘‘By September 5, 

2023, the Administrator’’ and adding in 

its place ‘‘By September 5, 2023, or, 

with regard to sources in West Virginia, 

as soon as practicable on or after 

September 29, 2023, the Administrator’’. 

§ 97.824 [Amended] 

■ 13. Amend § 97.824 in paragraph 

(a)(2) by removing the period at the end 

of the paragraph and adding a 

semicolon in its place. 

§ 97.825 [Amended] 

■ 14. Amend § 97.825 in paragraph 

(a)(2) by removing the period at the end 

of the paragraph and adding a 

semicolon in its place. 

§ 97.826 [Amended] 

■ 15. Amend § 97.826 in paragraph 

(e)(1) introductory text by removing 

‘‘§ 52.38(b)(2)(ii)(A) or (D)’’ and adding 

in its place ‘‘§ 52.38(b)(2)(ii)(A) or 

(b)(2)(iii)(D)’’. 

Subpart GGGGG—CSAPR NOX Ozone 

Season Group 3 Trading Program 

§ 97.1026 [Amended] 

■ 16. Amend § 97.1026: 

■ a. In paragraph (d)(2)(ii) introductory 

text, by removing ‘‘§ 52.38(b)(2)(iii)’’ 

and adding in its place 

‘‘§ 52.38(b)(2)(iii)(A) through (C)’’; and 

■ b. In paragraph (e) introductory text, 

by removing ‘‘by September 18, 2023, 

the Administrator’’ and adding in its 

place ‘‘by September 18, 2023, or, with 

regard to sources in West Virginia, as 

soon as practicable on or after 

September 29, 2023, the Administrator’’. 

[FR Doc. 2023–21040 Filed 9–28–23; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 2, 15, 68, and 73 

[ET Docket No. 21–363; FCC 23–14; FR ID 

172974] 

Updating References to Standards 

Related to the Commission’s 

Equipment Authorization Program 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: In this document, the Federal 

Communications Commission 

(Commission) updates the rules to 

incorporate four new and updated 

standards that are integral to equipment 

testing. By updating the Commission’s 

rules to keep pace with significant 

developments in the standards-setting 

community, the Commission ensures 

that the equipment authorization 

program relies on the latest guidance so 

that the public has confidence that 

today’s advanced devices comply with 

its technical rules. 

DATES: This regulation is effective 

October 30, 2023. The incorporation by 

reference of certain publications listed 

in the rule is approved by the Director 

of the Federal Register as of October 30, 

2023. 

FOR FURTHER INFORMATION CONTACT: 

Jamie Coleman, Office of Engineering 

and Technology, (202) 418–2705 or 

Jamie.Coleman@FCC.gov. 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Commission’s Report 

and Order, in ET Docket No. 21–363; 

FCC 23–14, adopted on March 10, 2023, 

and released on March 14, 2023. The 

full text of this document is available for 

public inspection and can be 

downloaded at: https://docs.fcc.gov/ 

public/attachments/FCC-23-14A1.pdf. 

Alternative formats are available for 

people with disabilities (Braille, large 

print, electronic files, audio format) by 

sending an email to FCC504@fcc.gov or 

calling the Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). 

Procedural Matters 

Final Regulatory Flexibility Analyses. 

The Regulatory Flexibility Act of 1980 

(RFA) requires that an agency prepare a 

regulatory flexibility analysis for notice 

and comment rulemakings, unless the 

agency certifies that ‘‘the rule will not, 

if promulgated, have a significant 

economic impact on a substantial 

number of small entities.’’ Accordingly, 

the Commission has prepared a Final 


lotter on DSK11XQN23PROD with RULES1