Authority for This Rulemaking

The FAA's authority to issue rules on 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 III, Section 44701, “General Requirements.” Under that section, the FAA is charged with promoting safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for the design and performance of aircraft that the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority. It prescribes new safety standards for the design of transport-category airplanes.

This rule adds a new load condition to the design standards in title 14, Code of Federal Regulations (14 CFR) part 25, to require transport category airplanes that have a powered rudder control surface or surfaces to be designed to withstand the loads caused by rapid reversals of the rudder pedals. Specifically, applicants for design approval must show that their proposed airplane design can withstand an initial full rudder pedal input, followed by three full-pedal reversals at the maximum sideslip angle, followed by return of the rudder to neutral. Due to the rarity of such multiple reversals, the rule specifies the new load condition is an ultimate load condition rather than a limit load condition. Consequently, the applicant does not have to apply an additional factor of safety to the calculated load levels. 1

This final rule affects manufacturers of transport category airplanes applying for a new type certificate after the effective date of the final rule. The rule may also affect applicants applying for an amended or supplemental type certificate as determined under 14 CFR 21.101, “Designation of applicable regulations,” after the effective date of the final rule.

The final rule will entail minimal cost, with expected net safety benefits from the reduced risk of rudder reversal accidents.

The rudder is a vertical control surface on the tail of most airplanes that helps the airplane to turn. Rudder control systems are either powered or unpowered. 2 Accident and incident data show pilots sometimes make multiple and unnecessary rudder reversals during flight. In addition, FAA-sponsored research  3 indicates that pilots use the rudder more often than previously expected and often in ways not recommended by manufacturers. Section 25.1583(a)(3)(ii) requires manufacturers to provide documentation that warns pilots against making large and rapid control reversals, as they may result in structural failures at any speed, including airspeeds below the design maneuvering speed (V A ). Despite the § 25.1583(a)(3)(ii) requirement, and that such rudder reversals are unnecessary and discouraged by flightcrew training programs, these events continue to occur.

Section 25.351 (“Yaw maneuver conditions”), which sets forth the standard for protecting the airplane's vertical stabilizer from pilot-commanded maneuver loads, only addresses a single, full rudder input at airspeeds up to the design diving speed (V D ). 4 This design standard does not protect the airplane from the loads imposed by repeated inputs in opposing directions, or rudder reversals. 5 If the loads on the vertical stabilizer exceed those for which it is designed, the vertical stabilizer may fail, resulting in the catastrophic loss of airplane control.

The primary example of this risk is the crash of American Airlines Flight 587 (AA587), which occurred near Queens, New York, on November 12, 2001, and resulted in the death of all 260 passengers and crew aboard and of five persons on the ground. The National Transportation Safety Board (NTSB) found that the probable cause of the accident was “the in-flight separation of the vertical stabilizer [airplane fin] as a result of loads above ultimate design created by the first officer's unnecessary and excessive rudder pedal inputs.”  6 The NTSB also noted that contributing to these rudder pedal inputs were characteristics of the Airbus A300-600 rudder system design and elements of the American Airlines Advanced Aircraft Maneuvering Program.

Although the AA587 accident is the only catastrophic accident resulting from rudder reversals, other notable accidents and incidents involving airplanes that have a powered control ruder surface have occurred. 7 Ultimate loads were exceeded in two of the other notable rudder reversal events: an incident involving Interflug (Moscow, February 11, 1991) and an accident involving American Airlines Flight 903 (AA903) (near West Palm Beach, Florida, May 12, 1997). 8 The Interflug incident involved multiple rudder reversals, and loads of 1.55 and 1.35 times the limit load were recorded. For the AA903 incident, eight rudder reversals occurred, and a load of 1.53 times the limit load was recorded. 9 A catastrophe similar to AA587 was averted in these two events only because the vertical stabilizers were stronger than required by design standards. 10 In another event, an incident involving Air Canada Flight 190 (AC190) (over the state of Washington, January 10, 2008), four rudder reversals occurred, and the limit load was exceeded by 29 percent. 11 Finally, in an incident involving Provincial Airlines Limited (St. John's, Newfoundland and Labrador, May 27, 2005), the pilot commanded a pedal reversal during climb-out, when the airplane entered an aerodynamic stall. 12 The loads occurring during this event were less than limit loads, but this incident is additional evidence that pedal reversals occur in service.

In 2006, the FAA sponsored a survey  13 to better comprehend transport category pilots' understanding and use of the rudder. This survey inquired of transport pilots from all over the world. The FAA's analysis of the survey data found that—

• Pilots use the rudder more than FAA experts previously thought and often in ways not recommended by manufacturers.

• Pilots make erroneous rudder pedal inputs, some of which include rudder reversals.

• Even after specific training, many pilots are not aware that they should not make rudder reversals, even below V A . Over the last several years, training and changes to airplane flight manuals directed the pilot to avoid making cyclic control inputs. The rudder reversals that caused the AC190 incident in 2008 and the Provincial Airlines Limited incident in 2005 occurred despite these efforts.

Pilots in airplane upset situations ( e.g., wake vortex encounters) may revert to prior training and make sequential rudder reversals. Based on information from the survey, the FAA expects that repeated rudder reversals will continue to occur despite flightcrew training, because training alone cannot address all potential flightcrew behaviors that can lead to such inputs. For example, the relationship between rudder inputs and the roll and yaw responses of the airplane can become confusing to pilots. This is particularly true with the large yaw and roll rates that result from large rudder inputs, combined with naturally-occurring delays between pedal input and airplane response that result from transport airplane flight dynamics. Such confusion might lead pilots to command repeated rudder reversals.

Following the AA587 accident, the NTSB submitted safety recommendations to the FAA. The NTSB stated, “[f]or airplanes with variable stop rudder travel limiter systems, protection from dangerous structural loads resulting from sustained alternating large rudder pedal inputs can be achieved by reducing the sensitivity of the rudder control system (for example, by increasing the pedal forces), which would make it harder for pilots to quickly perform alternating full rudder inputs.”  14 In Safety Recommendation A-04-056, 15 the NTSB recommended the FAA modify part 25 to “include a certification standard that will ensure safe handling qualities in the yaw axis throughout the flight envelope, including limits for rudder pedal sensitivity.” This final rule addresses this recommendation and will reduce the likelihood of an event that would be similar to the AA587 accident.

In 2011, the FAA tasked the ARAC to consider the need to add a new flight maneuver load condition to part 25, subpart C, that would “ensure airplane structural capability in the presence of rudder reversals” and increasing sideslip angles (yaw angles) at airspeeds up to V D . The FAA also tasked the ARAC to consider whether other airworthiness standards would address this concern, such as pedal characteristics that would discourage pilots from making rudder reversals. 16 The ARAC delegated this task to the Transport Airplane and Engine subcommittee, which assigned it to the Flight Controls Harmonization Working Group (FCHWG) of the subcommittee.

The ARAC FCHWG completed its report in November 2013. 17 ARAC approved the report and submitted it to the FAA on December 30, 2013. One of the recommendations of the ARAC FCHWG Rudder Reversal Report was to require transport category airplanes to be able to withstand safely the loads imposed by three rudder reversals. 18 This final rule adopts that recommendation. The ARAC report indicates that requiring transport category airplanes to operate safely with the vertical stabilizer loads imposed by three full-pedal reversals accounts for most of the attainable safety benefits. With more than three rudder reversals, the ARAC FCHWG found little increase in vertical stabilizer loads.

The report's findings and recommendations guided the formation of the FAA's Yaw Maneuver Conditions—Rudder Reversals notice of proposed rulemaking (NPRM) (83 FR 32087, July 16, 2018) and this final rule.

On July 16, 2018, the FAA published an NPRM that proposed to add a new regulation to address rudder reversal conditions on transport category airplanes (83 FR 32087). The FAA intended that this new requirement would prevent structural failure of the rudder and vertical stabilizer caused by reversals of the rudder pedals. Thus, the FAA proposed to require that airplanes be able to withstand the structural loads caused by three full reversals (doublets) of the rudder pedals. The FAA proposed to apply the requirement only to airplanes with powered rudder control surfaces.

On November 5, 2018, EASA published amendment 22 to Certification Specifications 25 (CS-25). This amendment included a new regulation, CS 25.353, “Rudder control reversal conditions,” as well as Acceptable Means of Compliance 25.353. EASA's new regulation is similar to this final rule except that the final rule adopted by the FAA applies only to airplanes that have a powered rudder control surface or surfaces.

FAA Advisory Circular (AC) 25.353-1, “Rudder Control Reversal Conditions,” which accompanies this rule, provides guidance on acceptable means, but not the only means, of showing compliance with § 25.353. AC 25.353-1 is available in the public docket for this rulemaking.

The FAA received comments from the NTSB, Airline Pilots Association, International (ALPA), ATR, Crew Systems, Textron Aviation, Airbus, The Boeing Company, and Bombardier Aerospace. The NTSB, ALPA, ATR, and Crew Systems supported the proposal and did not suggest changes to it. Textron Aviation and Airbus requested that the rule specify a single, full-pedal command followed by one rudder reversal and return to neutral, rather than three rudder reversals as proposed in the NPRM. Those two companies, along with Boeing, also requested other changes, as described in this section of the preamble. Bombardier Aerospace commented on the rule's cost, suggesting that the FAA issue guidance to limit the rule's applicability.

In the NPRM, the FAA proposed a design load condition that consists of a single, full-pedal command followed by three full-pedal reversals and return to neutral. Two airplane manufacturers, Textron Aviation and Airbus, requested that the rule instead specify a single, full-pedal command followed by one rudder reversal and return to neutral. These companies believed this condition was more appropriate given the rarity of rudder reversals and the uniqueness of the AA587 accident airplane. They advocated that a single, full-pedal command followed by one rudder reversal and return to neutral would cover all other known incidents, stated their concern that the proposed criteria could result in weight penalties or detrimental system changes, and proposed that enhanced flightcrew training would be more effective than designing for multiple rudder reversals.

The FAA emphasizes that while rudder reversals are rare, they can lead to serious consequences. The AA587 accident and four other accidents and incidents involved multiple rudder reversals, some of which were full-pedal reversals. Since these accidents occurred, modern airplane design requirements have not changed in a manner that would deter pilots from making such multiple reversals. Additionally, based on information received in response to the 2006 pilot survey, the FAA found that some respondents reported making rudder pedal reversals (cyclic rudder-pedal commands). 19 Moreover, an analysis in the ARAC report shows that loads would continue to increase upon subsequent pedal reversals. Therefore, a single, full-pedal command followed by one full-pedal reversal and return to neutral would not represent the conditions resulting from multiple full-pedal reversals that may result in injuries to occupants or a structural failure that jeopardizes continued safe flight and landing of the airplane. Data from all manufacturers on the ARAC FCHWG showed that after three full-pedal reversals, the maximum sideslip angle does not increase significantly. Maximum sideslip angle causes the maximum loads on the vertical stabilizer; therefore, three full-pedal reversals result in a load condition that accounts for most of the attainable safety benefits.

Regarding the concern that the proposed multiple reversal condition could result in potential weight penalties or detrimental system changes in future designs, as discussed in the NPRM preamble, the FAA expects that most applicants will use control laws to comply with this rule. Because manufacturers typically implement control laws through systems and software, use of this solution to comply would result in little to no incremental cost in the form of weight, equipment, maintenance, or training for those airplanes with powered rudder control surfaces.

Based on information from the 2006 survey, the FAA does not agree with Textron and Airbus that enhanced flight crew training would be more effective than designing for multiple full-pedal reversals. As described earlier in the preamble, the FAA's analysis of the survey found that even after specific training, many pilots are not aware that they should not make full-pedal reversals, even below V A . While training and changes to airplane flight manuals directed the pilot to avoid making cyclic control inputs, the pedal reversals that caused the AC190 incident in 2008 and the Provincial Airlines Limited incident in 2005 occurred despite these efforts.

Moreover, in transport category airplanes, rudder inputs are generally limited to aligning the airplane with the runway during crosswind landings and controlling engine-out situations, which occur predominately at low speeds. At high speeds, the pilot normally directly rolls the airplane using the ailerons. 20 If the pilot does use the rudder to control the airplane at high speeds, there will be a significant phase lag between the rudder input and the roll response because the roll response is a secondary effect of the yawing moment generated by the rudder. 21 The roll does not result from the rudder input directly. Even if the rudder is subsequently deflected in the opposite direction (rudder reversal), the airplane can continue to roll and yaw in one direction before reversing because of the phase lag. The relationship between rudder inputs and the roll and yaw response of the airplane can become confusing to pilots, particularly with the large yaw and roll rates that would result from large rudder inputs, causing the pilots to input multiple rudder reversals.

For the foregoing reasons, the FAA has determined that a three full-pedal reversal condition is necessary to account for the effects of multiple rudder reversals that the FAA expects to occur in service. The FAA adopts this aspect of the proposal without change.

Airbus requested that the rule apply only to new aircraft designs; Bombardier requested that the rule apply only to new airplanes or to airplanes where the rudder system has been significantly modified. The FAA agrees in part with the comments regarding applicability. This final rule requires that new airplane designs meet the new standards. Where an applicant proposes a change to a previously approved type design, § 21.101, “Designation of applicable regulations,” requires an assessment to determine the amendment level (version) of each regulation to be applied to that type design change. The FAA would determine under the provisions of § 21.101 whether this final rule would be applied to a changed airplane design.

Additionally, Airbus requested that the rule apply to all transport category airplanes, including those with unpowered control surfaces. Similarly, the corresponding and recently adopted European Union Aviation Safety Agency (EASA) rule, CS 25.353, applies to all airplanes, including those with unpowered control surfaces. However, in the NPRM, the FAA proposed to apply this rule only to airplanes with a powered control surface or surfaces.

A powered rudder control surface is one in which the force required to deflect the surface against the airstream is generated or augmented by hydraulic or electric systems. In contrast, an unpowered rudder control surface is one for which the force required to deflect the surface against the airstream is transmitted from the pilot's rudder pedal directly through mechanical means, without any augmentation from hydraulic or electrical systems. Powered rudder control systems include fly-by-wire (FBW) and hydro-mechanical systems, while unpowered rudder control systems are also known as mechanical systems. Incorporation of a powered yaw damper into an otherwise unpowered rudder control system does not constitute a powered rudder control surface, for the purpose of this rule.

Small business jets that typically have unpowered rudder control surfaces provide immediate feedback to their flightcrews in response to yaw inputs. Those flightcrews are, therefore, less likely to execute inappropriate rudder pedal reversals. The FAA reviewed accident and incident records and found no events in which pilots commanded inappropriate full-pedal reversals on airplanes with unpowered rudder control surfaces. Also, the use of airplanes with unpowered rudder control surfaces is diminishing in the transport category fleet. The only transport category airplane model in U.S. production with an unpowered rudder control surface also has a yaw damper. The normal operation of the yaw damper would be adequate to reduce yaw overshoot loads from full-pedal reversals.

As explained in the NPRM and this final rule, the safety benefit of expanding this rule to airplanes with unpowered control surfaces does not outweigh the potentially higher costs of implementation. The FAA may consider the requested change later if data or information become available to indicate that either the safety case has changed or implementation costs have decreased.

Airbus and Boeing requested the FAA include in the rule the following text: “Flaps (or flaperons or any other aerodynamic devices when used as flaps) and slats extended configurations are also to be considered if they are used in en route conditions.” Including this provision would require applicants to evaluate the rudder reversal conditions with flaps and other devices extended, if the airplane uses those devices in en route conditions. 22 Airbus also requested that the rule include the following text: “Unbalanced aerodynamic moments about the center of gravity must be reacted in a rational or conservative manner considering the airplane inertia forces.” This language specifies how the applicant sums the various forces when analyzing the rudder reversal conditions. Both commenters requested the FAA include these requirements in the final rule to be consistent with the ARAC FCHWG report and to harmonize with the EASA regulation.

The FAA agrees that the additions identified by commenters should be included in the final rule because both requirements harmonize with the EASA rule (CS 25.353) and clarify how to analyze the load conditions. The two requirements are also found in other part 25 regulations, including §§ 25.345 and 25.351. The FAA notes that the requirement to consider the effect of flaps and slats in en route conditions has slightly different wording than the EASA rule, but has the same meaning. As these changes simply clarify how to analyze the load conditions, they will not add additional burdens.

Airbus also requested that the airplane be able to withstand the prescribed conditions at an uppermost speed of V C , rather than V C /M C , as proposed in the NPRM. The FAA disagrees with the commenter. The proposed rule included V C /M C because airplanes have defined limitations for both V C and M C . However, no substantive difference between the two exists because each value of V C has a corresponding value of M C . As a result, using V C /M C is appropriate in this rule.

Airbus requested that the rule allow an applicant to show compliance via implementing monitors that would warn the pilot of inappropriate rudder use. The FAA does not agree with this comment. Pilot-commanded rudder reversals have occurred during high workload and conditions that are often startling. Thus, depending on the pilot to react appropriately to a warning under such conditions would not provide the equivalent safety benefit as the load conditions in this final rule and would be inconsistent with the EASA regulation.

As previously noted, EASA published its regulation, CS 25.353, on November 5, 2018, a few months after the FAA issued the NPRM upon which this final rule is based. This final rule contains minor modifications to harmonize with the EASA standard. These modifications are in addition to those described earlier in the final rule (C. Load Condition Requirements). These modifications include:

(1) The proposed rule specified that the applicant evaluate the rudder reversal conditions “from V MC or the highest airspeed for which it is possible to achieve maximum rudder deflection at zero sideslip, whichever is greater, up to V C /M C .” This final rule establishes the speed range as “V MC to V C /M C .” This is simpler to apply because it does not require an additional calculation of “the highest speed for which it is possible . . .” and it is consistent with the current rudder maneuver condition required by § 25.351. (Section 25.351 prescribes the speed range as V MC to V D .)

(2) This final rule provides that any permanent deformation resulting from the specified ultimate load conditions must not prevent continued safe flight and landing. This requirement is necessary because this final rule, unlike most design load conditions codified in part 25, contains only an “ultimate” load requirement, and does not contain a “limit” load requirement. Design loads are typically expressed in terms of limit loads, which are then multiplied by a factor of safety, usually 1.5, to determine ultimate loads. The airplane structure must be able to withstand limit loads without detrimental permanent deformation and ultimate loads without failure in accordance with § 25.305. Because this rule does not include a limit load requirement, it is necessary to require that no detrimental permanent deformation occur at ultimate load (deformation that would prevent continued safe flight and landing). This requirement is also in the corresponding EASA regulation, CS 25.353.

(3) The proposed rule specified that the “rudder control is suddenly displaced” in evaluating the ultimate loads that result from the yaw maneuver conditions identified in the proposal. This final rule, however, specifies that the “rudder control is suddenly and fully displaced as limited by the control system or control surface stops.” The term “fully” makes it clear that full displacement of the rudder pedal is required. The phrase “as limited by the control system or control surface stops” further clarifies the requirement by indicating that the conditions may be conducted using rudder control system limiting hardware to establish the reversal loads. Furthermore, the aforementioned requirements are consistent with § 25.351.

Changes to Federal regulations must undergo several economic analyses. First, Executive Orders 12866 and 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354), as codified in 5 U.S.C. 603 et seq., requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act of 1979 (Pub. L. 96-39), 19 U.S.C. Chapter 13, prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), as codified in 2 U.S.C. Chapter 25, requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this final rule.

In conducting these analyses, the FAA has determined that this final rule has benefits that justify its costs and is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866. The final rule is also not “significant” as defined in DOT's rulemaking procedures. The final rule will not have a significant economic impact on a substantial number of small entities, will not create unnecessary obstacles to the foreign commerce of the United States, and will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified previously.

The genesis of this final rule is the crash of American Airlines Flight 587 (AA587), near Queens, New York, on November 12, 2001, resulting in the death of all 260 passengers and crew aboard, and the death of five persons on the ground. The airplane was destroyed by impact forces and a post-crash fire.

The NTSB found that the probable cause of the accident was “the in-flight separation of the vertical stabilizer [airplane fin] as a result of loads above ultimate design created by the first officer's unnecessary and excessive rudder pedal inputs.”  23 Ultimate loads on the airplane structure are the limit loads (1.0) multiplied by a safety factor, usually 1.5 (as for the vertical stabilizer). An airplane is expected to experience a limit load once in its lifetime and is never expected to experience an ultimate load. 24 For the AA587 accident, loads exceeding ultimate loads ranged from 1.83 to 2.14 times the limit load on the vertical stabilizer, 25 as a result of four, full, alternating rudder inputs known as “rudder reversals.”

Significant rudder reversal events are unusual in the history of commercial airplane flight, having occurred during five notable accidents and incidents, with the AA587 accident being the only catastrophic accident resulting from rudder reversals. 26 Ultimate loads were exceeded in two of the other notable rudder reversal events: an incident involving Interflug (Moscow, February 11, 1991) and an accident involving American Airlines Flight 903 (AA903) (near West Palm Beach, Florida, May 12, 1997). 27 The Interflug incident involved multiple rudder reversals, and loads of 1.55 and 1.35 times the limit load were recorded. For the AA903 incident, eight rudder reversals occurred, and a load of 1.53 times the limit load was recorded. 28 A catastrophe similar to AA587 was averted in these two events only because the vertical stabilizers were stronger than required by design standards. 29 In a fourth event—Air Canada Flight 190 (AC190) (over the state of Washington, January 10, 2008)—four rudder reversals occurred, and the limit load was exceeded by 29 percent. 30 The fifth event was a de Havilland DHC-8-100 (Dash 8) (St. John's, Newfoundland and Labrador, May 27, 2005) in which the pilot commanded a pedal reversal during climb-out, when the airplane entered an aerodynamic stall. 31 There were no injuries, and the airplane was not damaged. The ARAC FCHWG determined the loads occurring during this event were less than limit load, but this incident is additional evidence that pedal reversals occur in service.

In transport category airplanes, rudder inputs are generally limited to aligning the airplane with the runway during crosswind landings and controlling engine-out situations, which occur predominately at low speeds. At high speeds, the pilot normally directly rolls the airplane using the ailerons. 32 If the pilot does use the rudder to control the airplane at high speeds, there will be a significant phase lag between the rudder input and the roll response because the roll response is a secondary effect of the yawing moment generated by the rudder. 33 The roll does not result from the rudder input directly. Even if the rudder is subsequently deflected in the opposite direction (rudder reversal), the airplane can continue to roll and yaw in one direction before reversing because of the phase lag. The relationship between rudder inputs and the roll and yaw response of the airplane can become confusing to pilots, particularly with the large yaw and roll rates that would result from large rudder inputs, causing the pilots to input multiple rudder reversals.

Following the AA587 accident in November 2004, the NTSB issued Safety Recommendation A-04-56, recommending that the FAA modify part 25 “to include a certification standard that will ensure safe handling qualities in the yaw axis throughout the flight envelope . . . .”  34 In 2011, the FAA tasked ARAC to consider the need for rulemaking to address the rudder reversal issue. ARAC delegated this task to the Transport Airplane and Engine subcommittee, which assigned it to the FCHWG. One of the recommendations of the ARAC FCHWG Rudder Reversal Report, issued on November 7, 2013, was to require transport category airplanes to be able to withstand safely the loads imposed by three rudder reversals. This final rule adopts that recommendation. The ARAC report indicates that requiring transport category airplanes to operate safely with the vertical stabilizer loads imposed by three full-pedal reversals accounts for most of the attainable safety benefits. With more than three rudder reversals, the FCHWG found little increase in vertical stabilizer loads.

Since the catastrophic AA587 accident, the FAA has requested that applicants for new type certificates show that their designs are capable of continued safe flight and landing after experiencing repeated rudder reversals. For airplanes with fly-by-wire (FBW) systems, manufacturers have been able to show capability by means of control laws, incorporated through software changes, adding no weight and imposing no additional maintenance cost to the airplanes. Many, if not all, of these designs have demonstrated tolerance to three or more rudder reversals. Aside from converting to an FBW or hydro-mechanical system, alternatives available to manufacturers specializing in airplane designs with mechanical rudders include increasing the reliability of the yaw damper and strengthening the airplane vertical stabilizer.

To estimate the cost of the final rule, the FAA reviewed unit cost estimates from U.S. airplane manufacturers and incorporated these estimates into an airplane life cycle model. The FAA received one estimate for large part 25 airplanes and two estimates for small part 25 airplanes ( i.e., business jets).

A manufacturer specializing in mechanical rather than FBW rudder systems provided a business jet estimate that reflects significantly higher compliance costs. This manufacturer's most cost-efficient approach to addressing the requirement—although high in comparison to manufacturers that use FBW systems exclusively—is to comply with a strengthened vertical stabilizer. The cost of complying with a more reliable yaw damper was higher than strengthening the vertical stabilizer, and higher still if complying by converting to an FBW rudder system for new models.

As a result of these high costs and the reasons set forth in the NPRM and the preceding “Discussion of Comments and Final Rule,” this final rule will not apply to airplanes with unpowered (mechanical) rudder control surfaces. An unpowered rudder control surface is one whose movement is affected through mechanical means, without any augmentation (for example, from hydraulic or electrical systems). Accordingly, the final rule does not apply to models with mechanical rudder control systems, but applies only to models with FBW or hydro-mechanical rudder systems.

The FAA estimates the costs of the final rule using unit cost per model estimates from industry for FBW models and the agency's estimates of the number of new large airplane and business jet certifications with FBW rudder systems in the ten years after the effective date of the final rule. These estimates are shown in Table 1.

With these cost estimates, the FAA concludes the final rule will entail minimal cost, with expected net safety benefits from the reduced risk of rudder reversal accidents.

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

As noted above, because manufacturers with FBW rudder systems have been able to show compliance by means of low-cost changes to control laws incorporated through software changes, the FAA estimates the costs of this final rule to be minimal. Therefore, pursuant to section 605(b), the head of the FAA certifies that this final rule will not have a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39) prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to this Act, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the effect of this final rule and determined that its purpose is to protect the safety of U.S. civil aviation. Therefore, the final rule is in compliance with the Trade Agreements Act.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million.

This final rule does not contain such a mandate. Therefore, the requirements of Title II of the Act do not apply.

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

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.

FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 for regulations and involves no extraordinary circumstances.

The FAA has analyzed this final rule under the principles and criteria of Executive Order 13132, Federalism. The agency determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, does not have Federalism implications.

The FAA analyzed this final rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it is not a “significant energy action” under the executive order and it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policy and agency responsibilities of Executive Order 13609. The agency has determined that this action would eliminate differences between U.S. aviation standards and those of other civil aviation authorities by harmonizing with the corresponding EASA requirement. As noted above, EASA published its corresponding regulation, CS 25.353, on November 5, 2018. This final rule harmonizes with that standard, with the exception that this rule excludes airplanes that have an unpowered rudder control surface(s).

An electronic copy of a rulemaking document may be obtained by using the internet—

1. Search the Federal eRulemaking Portal ( http://www.regulations.gov );

2. Visit the FAA's Regulations and Policies web page at http://www.faa.gov/regulations_policies/; or

3. Access the Government Printing Office's web page at http://www.gpo.gov/fdsys/.

Copies may also be obtained by sending a request (identified by notice, amendment, or docket number of this rulemaking) to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9680.

Comments received may be viewed by going to http://www.regulations.gov and following the online instructions to search the docket number for this action. Anyone is able to search the electronic form of all comments received into any of the FAA's dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.).

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 (Pub. L. 104-121) (set forth as a note to 5 U.S.C. 601) requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit http://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:

Table of Contents I. Executive Summary II. Direct Final Rule III. Authority for This Rulemaking IV. Discussion of the Direct Final Rule A. Background and Purpose of Regulatory Action B. Implementation of Section 556 of the FAA Reauthorization Act of 2018 C. Other Part 47 Amendments V. Regulatory Notices and Analyses A. Regulatory Evaluation B. Regulatory Flexibility Determination C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis VI. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use C. Executive Order 13609, International Cooperation VII. Additional Information A. Comments Invited B. Confidential Business Information C. Electronic Access and Filing D. Small Business Regulatory Enforcement Fairness Act List of Abbreviations Frequently Used in This Document Application—Aircraft Registration Application, AC Form 8050-1 Certificate—Certificate of Aircraft Registration, AC Form 8050-3 Registry—Civil Aviation Registry, FAA Aircraft Registration Branch Renewal Form—Aircraft Registration Renewal Application, AC Form 8050-1B I. Executive Summary

This rulemaking amends the duration of all Certificates of Aircraft Registration (certificates) issued under part 47 of Title 14 of the Code of Federal Regulations (14 CFR) from three years to seven years. Aircraft owners will be required to confirm their registration information and renew their certificate every seven years, unless an event or circumstance necessitates a new registration being submitted prior to the expiration of the certificate. Accordingly, this rule adds a paragraph to § 47.40 to require aircraft owners to submit new registration forms to update their certificates prior to the seven-year expiration date if the Administrator determines that their registration information is inaccurate. These amendments apply to initial and renewed certificates in accordance with § 47.40(b) and (c).

The FAA is also revising 14 CFR 47.31(c)(1) to remove the requirement that the FAA issue a letter extending the temporary authority for an aircraft to operate when a certificate of aircraft registration has not been issued or denied within 90 days after the date the application was signed.

The FAA is also removing expired regulations pertaining to the re-registration requirement detailed in § 47.40(a) and references to re-registration in §§ 47.15(i)(1) and 47.17(a)(7). The re-registration regulations became obsolete January 1, 2014.

An agency typically uses direct final rulemaking when it anticipates the rule will be noncontroversial and the agency believes it will not receive any adverse comments, and thus finds that a notice of proposed rulemaking is unnecessary. 1 The FAA has determined that this rule is suitable for direct final rulemaking. This rule alleviates burdens from owners of all aircraft registered in the United States by extending the period of registration from three years to seven years. It also alleviates burdens for owners of aircraft registered in the United States by removing the requirement that the FAA issue a letter extending the validity of aircraft registration. This rule also amends certain part 47 regulations related to agency practice and procedure, and removes requirements that have expired. The FAA has determined that this rule is suitable for direct final rulemaking as these changes are noncontroversial and the FAA does not anticipate receiving adverse comments.

The FAA acknowledges that Section 556 of Public Law 115-254 specifically contemplates issuance of a notice of proposed rulemaking (NPRM); however, this direct final rule meets the intent of Section 556 because the agency is providing notice and seeking comment prior to effectuating changes to the regulation. 2 Further, if the agency receives any substantive adverse comments, it would treat this rule as an NPRM or revise this rule prior to issuance of another direct final rule.

For purposes of this direct final rule, an adverse comment is one that explains (1) why the rule is inappropriate, including challenges to the rule's underlying premise or approach; or (2) why the direct final rule will be ineffective or unacceptable without a change. 3 In determining whether an adverse comment necessitates withdrawal of this direct final rule, the FAA will consider whether the comment raises an issue serious enough to warrant a substantive response had it been submitted in response to publication of an NPRM. A comment recommending additional provisions to the rule will not be considered adverse unless the comment explains how this direct final rule would be ineffective without the added provisions. 4

Under the direct final rule process, the FAA does not consider a comment to be adverse if that comment recommends an amendment to a different regulation beyond the regulation(s) in the direct final rule at issue. The FAA also does not consider a frivolous or insubstantial comment to be adverse. 5

If the FAA receives an adverse comment during the comment period, the FAA will advise the public by publishing a document in the Federal Register before the effective date of the direct final rule. This document may withdraw the direct final rule in whole or in part. If the FAA withdraws a direct final rule because of an adverse comment, the FAA may incorporate the commenter's recommendation into another direct final rule or may publish a notice of proposed rulemaking. 6

If the FAA receives no adverse comments, the FAA will publish a confirmation notice in the Federal Register , generally within 15 days after the comment period closes. The confirmation notice announces the effective date of the rule. 7

The FAA's authority to issue rules on aviation safety is found in title 49 of the United States Code (49 U.S.C.). Section 106 of 49 U.S.C. describes the authority of the FAA Administrator. Subtitle VII of 49 U.S.C., Aviation Programs, describes in more detail the scope of the agency's authority. This rule is also promulgated pursuant to 49 U.S.C. 44101-44106 and 44110-44113, which require aircraft to be registered as a condition of operation and establish the requirements for registration and registration processes. The Registry is responsible for the registration and recordation of civil aircraft.

This rulemaking is promulgated under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.

This rule is also promulgated under the specific authority established in Sec. 556 of the FAA Reauthorization Act of 2018, Public Law 115-254, in which Congress required the FAA to initiate rulemaking to increase the duration of aircraft registrations for noncommercial general aviation aircraft to seven years and in which Congress gave the FAA the ability to require resubmission of aircraft registration applications that contain inaccurate information.

The Civil Aviation Registry, FAA Aircraft Registration Branch (Registry) is responsible for developing, maintaining, and operating the federal registration and recordation system for United States civil aircraft.

On July 20, 2010, the FAA published the Re-Registration and Renewal of Aircraft Registration final rule (Re-Registration Rule), 8 which became effective October 1, 2010. The Re-Registration Rule established the current three-year duration for aircraft registrations. Prior to the Re-Registration Rule, aircraft registrations were of indefinite duration, which made it difficult for the FAA to maintain accurate aircraft registration information. While there was a requirement for aircraft owners to keep their registration up-to-date, the FAA found that many aircraft owners failed to update their registration information. Adopting the three-year duration for certificates created a regular process for aircraft owners to update their registration information. As explained in the Re-Registration Rule, the three-year duration for certificates was found at the time to provide the best balance between cost and improved accuracy of registration information.

The first phase of the Re-Registration Rule required each aircraft owner to re-register the aircraft within the specified six-month time period. The second phase of the Re-Registration Rule is the current renewal process. Each aircraft owner must submit a complete Renewal Form prior to the expiration of the current certificate to maintain registration. An aircraft registration not renewed prior to the expiration of its current certificate is subject to cancellation. The Re-Registration Rule responded to the concerns of law enforcement and other government agencies related to accurate, up-to-date aircraft registration information without placing an undue burden on aircraft owners.

Section 556 of the FAA Reauthorization Act of 2018  9 mandated the FAA initiate rulemaking to increase the duration of aircraft registrations for noncommercial general aviation aircraft to 7 years. However, as discussed in the analysis that follows, the FAA cannot distinguish between commercial and noncommercial general aviation aircraft, as that determination is dependent upon the operations being conducted by general aviation aircraft. Consequently, it is impracticable to have different durations for commercial and noncommercial general aviation aircraft registrations. Therefore, the FAA is extending the registration duration for all aircraft to 7 years.

This action implements Section 556. Currently, an initial registration expires three years after the last day of the month it is issued. 10 A renewal certificate currently expires three years from the expiration of the previous certificate. 11

The FAA is amending the certificate duration period to seven years for all aircraft. The FAA does not possess a list of noncommercial general aviation aircraft. Moreover, an aircraft may operate as noncommercial general aviation on one flight and commercial aviation on another flight. Therefore, this rulemaking benefits all aircraft owners by lessening the burden and cost of renewing aircraft registration and aligning all aircraft registrations with the requirement set forth by Congress. Additionally, as discussed further in the regulatory evaluation section, the FAA determined that extending registration for only noncommercial general aviation aircraft would not be cost beneficial because there are no quantifiable or monetized benefits of not also extending the duration of certificates of commercial aircraft.

Therefore, the FAA revises § 47.40(b) and (c) to increase the duration of aircraft registration to seven years. The initial registration certificate will expire seven years after the last day of the month in which it is issued. The renewal will expire seven years after the last day of the month in which it is issued. This amendment will apply to all new Certificates of Aircraft Registration issued after the effective date of this rule and Certificates of Aircraft Registration valid on the date this rule becomes effective. The duration of new registrations issued after the effective date of this direct final rule will be seven years from the date of registration; valid registrations in effect on the date of this direct final rule will be extended such that the total term of registration will be seven years from the date of issuance of the currently valid renewal, notwithstanding the expiration date on the Certificate of Aircraft Registration. See Table 1.

Additionally, the FAA is updating § 47.40 to include paragraph (c), which allows the Administrator to require an aircraft owner to submit a registration form and fee to update a registration at any time prior to the expiration date of the certificate if the information provided to the Registry is found to be inaccurate. This requirement is consistent with section 556(b) of the FAA Reauthorization Act of 2018, which requires the FAA to consider any events or circumstances that may necessitate renewal before the registration expiration.

The Registry has previously encountered instances where the FAA has determined that Certificates of Aircraft Registration contain inaccurate information. However, because part 47 does not currently contain a provision allowing the FAA to require a new registration or early renewal, the FAA has had difficulty correcting the inaccurate information. Due to the extension in duration of registration certificate, the FAA also anticipates that registration information may need to be updated more frequently, as supported by Congress's inclusion of the requirement in section 556(b). This amendment enables timely provision of accurate aircraft registration information.

The FAA is making several other amendments to 14 CFR part 47. First, the FAA is revising 14 CFR 47.31(c)(1) by removing the time limit within which the FAA must either issue a letter extending the temporary authority to continue to operate or deny the application. Section 47.31(c)(2) provides a 12-month overall limit on such temporary authority. Therefore, the FAA finds the requirement to issue this separate letter unnecessary and is removing this requirement.

Second, the FAA is removing references to the Re-Registration program, which expired on January 1, 2014. This will include removing § 47.40(a) and revising § 47.17(a)(7) to delete the word “re-registration.” The Re-Registration Rule was intended to clean up aircraft records and issue certificates with a three-year expiration date. Registered owners desiring to continue registration were required to re-register their aircraft within the established schedule. The Re-Registration process ended December 31, 2013.

Third, the FAA also makes corresponding and technical revisions to § 47.61(c).

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble provides the FAA's regulatory evaluation of the economic impacts of this NPRM.

In conducting these analyses, the FAA has determined that this rule: (1) would result in net cost savings; (2) will impose no new costs to aircraft owners and the public without any reduction to airline safety; (3) is not an economically “significant regulatory action” under section 3(f) of Executive Order 12866; (4) will not have a substantial economic impact on a significant number of small entities; (5) will not create unnecessary obstacles to the foreign commerce of the United States; and (6) will not impose an unfunded mandate on State, local, or tribal governments, or on the private sector by exceeding the threshold identified above.

Section 556 of the FAA Reauthorization Act of 2018 directed the FAA to increase the duration of a certificate for noncommercial general aviation aircraft from three years to seven years. However, the FAA promulgates this rulemaking to modify the duration of a certificate for all registered aircraft, including commercial aircraft, instead of only noncommercial general aviation aircraft. Distinguishing commercial aircraft from noncommercial aircraft within the Registry is impractical and, therefore, not cost-justified. Additionally, the FAA did not identify quantifiable or monetized benefits of not extending the duration of certificates of commercial aircraft.

While the rule will reduce revenues to the FAA, it will provide private benefits in terms of cost savings to commercial and noncommercial general aviation aircraft owners.

The FAA considered the following regulatory alternative for this rulemaking:

The FAA was directed to provide relief to noncommercial general aviation aircraft owners by extending the current three-year duration of a certificate to a seven-year duration. However, after reviewing all the potential costs to multiple FAA programs in identifying the commercial aircraft within the Registry and separating them from noncommercial general aviation aircraft, the FAA did not find the congressionally mandated alternative as cost beneficial as there are no quantifiable or monetized benefits of not extending the duration of certificates of commercial aircraft.

The Registry collects the information necessary to establish and maintain the record for all United States civil aircraft. The aircraft record consists of three distinct elements: information about the registered owner of the aircraft, information about recorded aircraft security interests, and information concerning the airworthiness of the aircraft. In addition to the aircraft record, the Registry maintains certain ancillary files that contain related information maintained in support of registration and recordation.

The aircraft registration application requires information on the aircraft, including the registration number, manufacturer and model, and serial number. The aircraft record collected by the application does contain certain elements of personally identifiable information (PII), although generally, the PII collected is not sensitive in nature. PII collected includes registered owner name(s), aircraft identifiers, mailing address, email address, 12 and telephone numbers. The Registry does not ask the registered owners the nature or purpose of the aircraft operations, such as whether the aircraft will be used for commercial operations, noncommercial operations ( e.g., recreational or hobby), or a combination of both.

After a six-year rulemaking effort, the Re-Registration and Renewal program was implemented on October 1, 2010. The goal of the program was to develop a process that would achieve a level of registration data reliability to meet the current and evolving needs of users of the Registry. With the implementation of 14 CFR 47.40, aircraft owners who intended to maintain their registration were required to re-register their aircraft by December 31, 2013. Beginning October 1, 2010, all certificates issued expire 3 years from the date of issuance, but were renewable for successive three-year terms if there was no change in the ownership status of the aircraft.

Since re-registration ended on December 31, 2013, two three-year renewal cycles have taken place. The most current Aircraft Registration Information Collection Request (ICR 2120-0042), which expires on March 31, 2024, provides details of Registry records, including the annual numbers for “Applications” (74,443), “Renewal Form (paper)” (20,053), and “Renewal Form (electronic)” (55,919), along with forms that provide evidence of ownership, security agreement and flight hours report, such as AC Forms 8050-2, 8050-4, 8050-88, 8050-88A, 8050-98, and 8050-117.

The supporting statement for ICR 2120-0042 shows 75,972 renewals annually, including 55,919 electronic renewals and 20,053 paper renewals, based on workload statistics from FY 2019. 13 A total of 235,304 aircraft had their registration renewed during the last three fiscal years, including 75,972 in FY 2019, 83,711 in FY 2020, and 75,621 in FY 2021. Based on these three fiscal years' registration figures, the FAA estimates approximately 78,435 (=235,304/3) aircraft registration renewals each year. This estimate includes all aircraft, commercial and noncommercial.

The FAA used the following assumptions and data sources:

The FAA based its analysis of the rule primarily on data stored in the Aircraft Registration Database (‘Registry Database') and ICR 2120-0042. 14

The FAA used a 21-year period of analysis, or three seven-year renewal cycles, to show the full impacts of the rule starting from the effective date of this rule. 15

As discussed and explained in the Baseline Conditions above, the FAA estimated that approximately 78,435 aircraft registrations would be renewed each year using the FY 2019 through FY 2021 statistics on renewals using both electronic and paper versions of the Renewal Forms.

The FAA Aerospace Forecasts provide detailed forecast for the next twenty years (2021-2041) for all classes of aircraft. General Aviation aircraft make up the majority of aircraft that will be affected by the rule. For 2020, the FAA estimated there are 204,980 General Aviation aircraft, a total that is forecasted to increase slightly to 208,790 at the end of the forecast period in 2041. 16 Other categories of aircraft that need to register with the Aircraft Registry are passenger jets, cargo jets, and regional carriers. When all these aircraft are included, the FAA estimated 211,248 aircraft (General Aviation, Passenger Jets, Cargo Jets and Regional Carriers, all combined) for 2020. The FAA forecasted a total of 211,606 aircraft for this group of aircraft. The forecast figure is virtually unchanged from the current inventory of aircraft. Therefore, we assumed that the growth rate for the Aircraft Registry throughout the 21-year period of analysis would be zero, meaning the total number of aircraft in the Aircraft Registry would be unchanged. 17

The 2010 registry database showed a total number of 360,055 registered aircraft. As of December 31, 2020, the total number of registered aircraft was 286,989, a decrease of 73,066 aircraft that were de-registered in ten years, which included three 3-year renewal cycles. This significant drop of 20 percent is mainly attributed to the Re-Registration Rule that began in October 2010. 18

The total number of aircraft captured in the Aircraft Registry may continue to decline based on the current trends the FAA has observed. However, the FAA cannot determine or predict with any certainty how many aircraft will be de-registered in the coming renewal cycles. Therefore, we used the average of registration data from the last three fiscal years (FY 19 through FY 21) for the current total inventory of registered aircraft: 235,304.

The FAA is changing the duration of an aircraft registration certificate from the current three-year cycle to a seven-year cycle. This change would result in cost savings to aircraft owners. The FAA did not identify or assess any other impacts for this rule.

Using the baseline total number of 235,304 aircraft that renewed their registration over the last three-year cycle, the FAA calculated an annual average of 78,435 aircraft owners to renew their aircraft's registration by using either electronic or paper Renewal Form. 19

The supporting statement for ICR 2120-0042 from March 26, 2021, estimated 30 minutes (0.5 hours) to fill out the Renewal Form (either electronic or paper).

The FAA calculates an average of 39,217.5 annual burden hours (.5 hours × 78,435 renewals) for aircraft owners or their representatives to renew their aircraft registrations. Using a $25 per hour wage for a title search clerk/legal assistant, as published in the latest ICR 2120-0042 Supporting Statement, the FAA estimates the baseline current annual burden for aircraft owners would be $1,372,613 [($5 application fee + $12.5 labor cost  20 ) × 78,435 renewals], with $980,433 representing baseline opportunity costs associated with registration time and $392,175 representing baseline fees collected, which are considered baseline transfer payments from the private sector to government.

With this rule changing the duration of each certificate to seven years and the current inventory of aircraft in the Registry remaining the same at 235,304 throughout the 21-year period of analysis, the FAA estimates the average annual renewal applications to decrease to 33,615 (=thnsp;235,304/7). Using the same assumptions for application fee and wage rate, the annual burden for aircraft owners would be $588,262 [($5 application fee + $12.5 labor cost) × 33,615], with $ 420,187 representing the new opportunity cost associated with registration and $168,075 representing the new fees (or transfers) paid under this rule. This will result in annual private cost savings of $784,344 (undiscounted) to the aircraft owners.

The social cost savings attributable to this rule would be the difference in opportunity cost associated with time spent on registration. Note that the differences in total registration fees paid and collected are considered transfers with no net change in social costs or benefits. Based on the calculations as discussed earlier, the annual undiscounted cost savings of this rule would be equal to $560,246 ($980,433-$420,188). Over a 21-year period of analysis, the FAA estimates that the total undiscounted cost savings of this rule would be $11,765,162. At 7 percent and 3 percent discount rates, the net present value of those cost savings would be $6,070,559 and $8,636,203, respectively. Annualized cost savings would be $523,594 and $543,928 at 7 percent and 3 percent discount rates, respectively.

The FAA did not identify any incremental costs or burden to the 235,304 aircraft owners that would be affected by this rule. The FAA determined that there would be neither a reduction in public safety nor an increase in costs to the public.

As discussed previously, with the increase in the duration of aircraft registration from 3 to 7 years, there would be a decrease in registration fees paid by aircraft owners, which would reduce FAA's revenues. Over a 21-year period, this amount is $4,706,065 (undiscounted), and its net present value is $209,438 and $217,571 (at 7 percent and 3 percent discount rates, respectively).

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.

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

The FAA expects the economic impact of this rule on a small entity will be small. The rule will provide relief to small entity aircraft owners in terms of a small reduction in labor costs and registration fees per aircraft due to a longer duration for the certificate they hold for their aircraft from the current 3-year to the 7-year expiration of an aircraft registration certificate. Therefore, the FAA has determined this rule will not impose a significant economic impact on a substantial number of small entities.

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards.

The FAA has assessed the potential effect of this rule and determined that it ensures the safety of the American public and does not exclude imports that meet this objective. As a result, this rule is not considered as creating an unnecessary obstacle to foreign commerce.

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $164 million in lieu of $100 million. This rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.

OMB Control Number 2120-0042 is revised to reflect the reduced number of respondents, annual burden hours, and monetized costs and has been submitted to OMB for review.

Summary: The FAA amends 14 CFR part 47, § 47.40, requiring aircraft registration be renewed seven years after the issuance of the certificate and every seven years thereafter, as long as ownership is not transferred or the registration has been canceled. Information from the Renewal Form is used to update registration information in the Registry's database.

Use: This information collection supports the Department of Transportation's strategic goals on safety and security. The information collected is necessary to obtain a certificate.

49 U.S.C. 44101(a) provides that a person may operate an aircraft only when it is registered under section 44013.

Prior to adoption of this direct final rule, the certificate has a 3-year expiration date. If registration is to continue, each aircraft owner must apply for renewal by completing and submitting a Renewal Form with appropriate fee prior to the expiration date on the certificate. The owner verifies the existing registration information and reports any changes. The Registry uses this information to update aircraft ownership information and places the form in the record. This rule reduces the current requirement for renewal from once every three years to once every seven years. This rule reduces the information collected to support the Registry's database.

Respondents: The likely respondents to this information requirement are aircraft owners who want to continue registration past the expiration date on their certificate. The FAA estimates the number of registration renewals would be 33,615 annually; however, the number of aircraft owners affected may vary depending upon the type of registration ( e.g., individual, partnership, co-ownership, etc.). Currently, the average number of renewals is estimated at 78,435 (dividing by 3, the frequency of years in which aircraft owners are required to renew registration the total number of renewals, 235,304 (75,972 + 83,711 + 75,621) using FY19, FY20 and FY21 data.

Frequency: The FAA estimates that there would be 33,615 registration renewal forms completed annually over the 21-year period of analysis used for this rule. This is based on the current estimate of 235,304 active registered aircraft, calculated using the total number of registered aircraft from FY 2019 through FY 2021.

Annual Burden Estimate: Over 21 years, the FAA estimates an average of 33,615 Renewal Forms (either electronic or paper) would need to be completed each year. The time to complete the Renewal Form is estimated at 30 minutes. Therefore, 16,808 hours would be spent annually completing the required form. Currently, the FAA estimates an average of 39,217 annual burden hours. As described in the preliminary Regulatory Evaluation, the FAA estimates the hourly rate of an aircraft owner's or its representative's (title search or legal clerk) time at $25 per hour in 2020 dollars. The current average annual cost of completing 78,435 renewal forms, spending 39,217 hours, is approximately $980,433. On the other hand, the average cost per year to aircraft owners of renewing registration every 7 years would be $420,200 (16,808 hours multiplied by $25/hour). In addition, aircraft owners would pay a total of $168,075 to the FAA to register their aircraft ($5 fee multiplied by 33,615). The total annual burden to aircraft owners, including time to fill out the Renewal Form and $5 registration fee, would be $588,275.

The agency is soliciting comments to—

(1) Evaluate whether the proposed information requirement is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;

(2) Evaluate the accuracy of the agency's estimate of the burden;

(3) Enhance the quality, utility, and clarity of the information to be collected; and

(4) Minimize the burden of collecting information on those who are to respond, including by using appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

Individuals and organizations may send comments on the information collection requirement to the address listed in the ADDRESSES section at the beginning of this preamble by December 22, 2022. Comments also should be submitted to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for FAA, New Executive Office Building, Room 10202, 725 17th Street NW, Washington, DC 20053.

In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with this rule.

Further, ICAO Standards set forth a model registration certificate. The FAA's certificate will exceed the standard in that model because the certificate will still include an expiration date.

FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-6.6 for regulations and involves no extraordinary circumstances.

The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The FAA has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, will not have federalism implications.

The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use. The agency has determined that it will not be a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 13609, Promoting International Regulatory Cooperation, promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will have no effect on international regulatory cooperation.

The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The most helpful comments reference a specific portion of the rule, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking. Before acting on this rulemaking, the FAA will consider all comments it receives on or before the closing date for comments. The agency may change this rule in light of the comments it receives.

Confidential Business Information (CBI) is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this direct final rule contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this direct final rule, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this direct final rule. Submissions containing CBI should be sent to the person in the FOR FURTHER INFORMATION CONTACT section of this document. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

A copy of this direct final rule, all comments received, any confirmation document, and all background material may be viewed online at https://www.regulations.gov using the docket number listed above. A copy of this direct final rule will be placed in the docket. Electronic retrieval help and guidelines are available on the website. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's website at https://www.federalregister.gov and the Government Publishing Office's website at https://www.govinfo.gov. A copy may also be found on the FAA's Regulations and Policies website at https://www.faa.gov/regulations_policies.

Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW, Washington, DC 20591, or by calling (202) 267-9677. Interested persons must identify the docket or amendment number of this rulemaking.

All documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed in the electronic docket for this rulemaking.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996 requires the FAA to comply with small entity requests for information or advice about compliance with statutes and regulations within its jurisdiction. A small entity with questions regarding this document may contact its local FAA official, or the person listed under the FOR FURTHER INFORMATION CONTACT heading at the beginning of the preamble. To find out more about SBREFA on the internet, visit https://www.faa.gov/regulations_policies/rulemaking/sbre_act/.

In consideration of the foregoing, the FAA amends chapter I of title 14, Code of Federal Regulations, as follows:

List of Abbreviations and Acronyms Frequently Used in This Document AMCD Aerospace Medical Certification Division ADHD Attention Deficit Hyperactivity Disorder AME Aviation Medical Examiner ASI Aviation Safety Inspector ATP Airline Transport Pilot BFA Balloon Federation of America IRFA Initial Regulatory Flexibility Analysis LOA Letter of Authorization NAS National Airspace System NDR National Driver Register NPRM Notice of proposed rulemaking NTSB National Transportation Safety Board PDPS Problem Driver Pointer System PIC Pilot in Command SIC Second in Command SODA Statement of Demonstrated Ability Table of Contents I. Executive Summary A. Purpose of the Regulatory Action B. Changes Made in This Final Rule C. Summary of the Costs and Benefits II. Authority for This Rulemaking III. Background A. Need for Regulation B. National Transportation Safety Board (NTSB) Recommendations C. Summary of the NPRM D. General Overview of Comments IV. Discussion of Comments and the Final Rule A. Application of Medical Certificate Requirement to Only Operations Based on Size of Envelope or Passenger Capacity B. Application of Rule to Commercial Balloon Operations Without Passengers C. Drug and Alcohol Testing D. Miscellaneous Issues E. Comments Regarding Miscellaneous Amendments V. Regulatory Notices and Analyses A. Summary of the Regulatory Impact Analysis B. Regulatory Flexibility Act C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis VI. Executive Order Determination A. Executive Order 13132, Federalism B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use C. Executive Order 13609, International Cooperation VII. Privacy VIII. Additional Information A. Electronic Access and Filing B. Small Business Regulatory Enforcement Fairness Act I. Executive Summary A. Purpose of the Regulatory Action

This final rule implements section 318 (“Commercial Balloon Pilot Safety Act of 2018”) of Public Law 115-254, the FAA Reauthorization Act of 2018. In addition, this final rule responds to National Transportation Safety Board (NTSB) Safety Recommendation A-17-034, which recommends that the FAA remove the medical certification exemption in part 61 for commercial balloon pilots  1 receiving compensation for transporting passengers.

This final rule amends §§ 61.3 and 61.23 of title 14 of the Code of Federal Regulations (14 CFR) to require commercial balloon pilots conducting operations for compensation or hire to hold a valid second-class medical certificate. However, this final rule will continue to allow pilots to provide flight training in balloons without requiring a medical certificate. The rule also amends the table setting forth medical certificate durations in §  61.23(d) for consistency with amendments to §§  61.3 and 61.23(a) and (b).

The FAA is also making two miscellaneous amendments. First, the FAA is amending sections of part 61 to allow persons to act as pilot in command (PIC) during a special medical flight test authorized under part 67 without holding a medical certificate.

The second is making a minor change to regulations amended or established by the Alternative Pilot Physical Examination and Education Requirements final rule to  2 allow a required pilot flightcrew member who is not acting as PIC to operate under BasicMed.

The FAA published a Notice of Proposed Rulemaking (NPRM), Medical Certification Standards for Commercial Balloon Operations on November 18, 2021 (86 FR 64419). This rulemaking finalizes the proposal, without change.

This final rule will generate costs for balloon pilots to obtain a second-class medical certificate and for some pilots to seek an Authorization for Special Issuance of a Medical Certificate (special issuance). There will also be costs to the FAA to implement this requirement in terms of reviewing and processing submissions related to certification. The FAA estimates the present value of total costs over ten years is $2.4 million to $16.3 million with a mid-estimate of $6.9 million at a 7 percent discount rate and $2.9 million to $19.9 million with a mid-estimate of $8.4 million at a 3 percent discount rate. The annualized costs over ten years are $0.3 million to $2.3 million with a mid-estimate of $1.0 million at a 7 percent discount rate and $0.3 million to $2.3 million with a mid-estimate of $1.0 million at a 3 percent discount rate. The wide range in the cost estimates primarily reflects the uncertainty on the number of commercial balloon pilots who will seek medical certification.

The benefits of the final rule include enhanced safety of commercial balloon operations through reduced risks of accidents, fatalities, and injuries caused by medical impairment of balloon pilots.

The FAA's authority to issue rules on aviation safety is in Title 49 of the United States Code. Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

The FAA is issuing this final rule under the authority described in Section 44701, General Requirements; Section 44702, Issuance of Certificates; and Section 44703, Airman Certificates. Under these sections, the FAA prescribes regulations and minimum standards for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. The FAA is also authorized to issue certificates, including airman certificates and medical certificates, to qualified individuals. This rulemaking is within the scope of that authority.

Further, Section 318 of Public Law 115-254 directs the Administrator to “revise 14 CFR 61.3(c) (relating to second-class medical certificates) to apply to an operator of an air balloon to the same extent such regulations apply to a pilot flightcrew member of other aircraft.”

On the morning of July 30, 2016, a hot air balloon struck power lines and burst into flames over a pasture near Lockhart, Texas, killing all 15 passengers and the pilot. The flight was conducted in a balloon (N2469L) operated by Heart of Texas Hot Air Balloon Rides under part 91 as a sightseeing passenger flight. The pilot was exercising the privileges of a commercial pilot certificate.

Through its investigation, the NTSB determined that the pilot had been diagnosed with depression and attention deficit hyperactivity disorder (ADHD)  3 and identified medications found in the pilot's system that are known to cause impairment. 4

The NTSB determined that the probable cause of this accident was the pilot's pattern of poor decision-making that led to the initial launch, continued flight in fog and above clouds, and descent near or through clouds that decreased the pilot's ability to see and avoid obstacles. The NTSB further determined that (1) the pilot's impairing medical conditions and medications, and (2) the FAA's policy to not require a medical certificate for commercial balloon pilots, were contributing factors in the accident. 5

Prior to the Heart of Texas accident, the FAA generally considered commercial balloon operations to be a low-risk and extremely small segment of aviation in the United States. Research conducted by the FAA revealed 54 commercial hot air balloon accidents between 2003 and 2013, including four fatal accidents. In 2015, commercial sightseeing balloon operations represented 0.057% of the flight hours of total civil aircraft operations. 6 Prior to this accident, pilots conducted commercial balloon operations in the U.S. for decades without any accidents specifically attributed to medical deficiencies.

In response to the Heart of Texas accident, the FAA worked with industry advocacy organization Balloon Federation of America (BFA) to support its 2017 Envelope of Safety Program. 7 The voluntary program promoted safety within the commercial balloon industry by educating consumers with information when making balloon ride purchase decisions and offered multiple tiers of safety accreditation by the BFA. While the FAA supports the efforts of the BFA to enhance safety and professionalism of the industry while providing consumers with more information when choosing a commercial balloon ride operator, the agency notes that not all balloon operators are members of the BFA, and BFA members are not required to adhere to any specific standards in order to maintain professional membership. Consequently, the FAA considered BFA's efforts to achieve voluntary compliance with industry standards to be insufficient alone to address the need for additional oversight of airmen conducting balloon operations for compensation or hire.

In Section 318 (“Commercial Balloon Pilot Safety Act of 2018”) of Public Law 115-254, The FAA Reauthorization Act of 2018 (the Act), Congress directed the FAA to “revise section 61.3(c) of Title 14, Code of Federal Regulations (relating to second-class medical certificates), to apply to an operator of an air balloon to the same extent such regulations apply to a pilot flightcrew member of other aircraft.”

The NTSB made two Safety Recommendations in response to the 2016 Heart of Texas accident. Safety Recommendation A-17-034 urged the FAA to “Remove the medical certificate exemption in 14 [CFR] 61.23(b) for pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers.” Safety Recommendation A-17-045 urged the FAA to “analyze your current policies, procedures, and tools for conducting oversight of commercial balloon operations in accordance with your Integrated Oversight Philosophy, taking into account the findings of this accident; [and] based on this analysis, develop and implement more effective ways to target oversight of the operators and operations that pose the most significant safety risks to the public.”

The FAA agreed with the safety benefits of Safety Recommendation A-17-034  8 and stated its intention to add the recommended change to its rulemaking agenda. The FAA responded to Safety Recommendation A-17-045  9 by initiating a plan to develop and implement more effective ways to target oversight of operators posing the most significant safety risk to the public. The FAA identified and increased surveillance on the operators of the largest classes of balloons using information obtained from the Civil Aviation Registry, repair stations, and industry.

The FAA proposed amending the exception to hold a medical certificate for balloon pilots in §  61.3(c)(2)(vi) by limiting it to certain types of balloon operations. Specifically, the FAA proposed that any person holding a pilot certificate with a balloon class rating and exercising the privileges of a private pilot certificate in a balloon; or providing flight training in a balloon in accordance with §  61.133(a)(2)(ii) is not required to hold a medical certificate. As a result of the amendment, the general requirement in § 61.3(c)(1) for a person to hold a medical certificate to serve as a pilot flight crewmember would apply to balloon pilots conducting operations for compensation or hire in a balloon (other than flight training) to hold a medical certificate issued under part 67.

Section 61.23 sets forth the specific requirements for when a particular class of medical certificate is required. Under §  61.23(a)(2)(ii), a second-class medical certificate generally is required when exercising the privileges of a commercial pilot certificate. Currently, under §  61.23(b)(3), a second-class medical certificate is not required when exercising the privileges of a pilot certificate with a glider category rating or balloon class rating in a glider or balloon, as appropriate.

First, the NPRM proposed to amend §  61.23(a)(2) to add a requirement for any person exercising the privileges of a commercial pilot certificate for compensation or hire in a balloon to hold a second-class medical certificate. Second, the NPRM proposed to remove the allowance in §  61.23(b) by specifying that a medical certificate is not required when exercising the privileges of a private pilot certificate with a balloon class rating in a balloon or when a person is exercising the privileges of a commercial pilot certificate with a balloon class rating in a balloon and providing flight training in accordance with §  61.133(a)(2)(ii).

Section 61.23(d) includes a table providing the duration for each class of medical certificate depending on several factors, including the medical certificate privilege that is being exercised. In order to maintain consistency with other medical certificate privileges in §  61.23(d), the NPRM proposed related amendments to the table of medical certificate durations at §  61.23(d)(1)(iii) and (d)(2)(i). Specifically, the NPRM proposed to add persons who are exercising the privileges of a commercial pilot certificate (other than for flight training) in a balloon to the established medical certificate duration table in §  61.23(d).

In addition, the NPRM proposed amendments to alleviate confusion and eliminate burdens for persons obtaining special medical flight tests and for persons operating under BasicMed.

First, the NPRM proposed amending §§  61.3(c)(2) and 61.23(b) to allow persons to act as PIC during a special medical flight test authorized under part 67 without holding a medical certificate. Second, the NPRM proposed amending several sections to alleviate certain burdens that resulted from the BasicMed final rule. Specifically, the NPRM proposed amending §§  61.3(c)(2)(xiv), 61.23(c)(3)(i)(C) through (E), 61.113(i), 68.3(a) and (b), and 68.9(a) by expanding the requirements to allow required pilot flightcrew members to operate under BasicMed in addition to those individuals acting as PIC.

The FAA considered 192 comments received during the 60-day public comment period. Of the comments received, 15 were out of scope, 17 were generally supportive of the proposed rule, and 112 generally opposed the rule as proposed. A significant number of commenters (142 commenters) suggested changes to the proposed rule. The remaining comments expressed neither support nor opposition to the rule. The majority of commenters were individuals. Two industry advocacy organizations submitted comments, as well as the NTSB.

This rule amends part 61 to require a person who holds a commercial pilot certificate with a lighter-than-air category and balloon class rating to hold a valid second-class medical certificate when exercising the privileges of that certificate in a balloon for compensation or hire, unless that person is conducting flight training in accordance with § 61.133(a)(2)(ii).

Specifically, the exception in § 61.3(c)(2)(vi) is amended to reflect that any person holding a pilot certificate with a balloon class rating who is exercising the privileges of a private pilot certificate in a balloon; or providing flight training in a balloon in accordance with § 61.133(a)(2)(ii) is not required to hold a medical certificate. By revising the exception in § 61.3(c)(2)(vi), balloon pilots conducting operations for compensation or hire in a balloon (other than flight training), such as carrying passengers or property and advertising operations, are required under § 61.3(c)(1) to hold a medical certificate issued under part 67.

Further and for consistency across the regulations, the FAA is amending § 61.23(a)(2) to require any person exercising the privileges of a commercial pilot certificate for compensation or hire in a balloon, except when conducting flight training, to hold a second-class medical certificate; and § 61.23(b) to remove the allowance to exercise the privileges of a balloon pilot certificate without a medical certificate. Additionally, the FAA adds an exception at § 61.23(b)(4)-(5) to explain under what circumstances balloon operations are excepted from the requirement to hold a second-class medical certificate.

Seventy-two commenters recommended that the proposed rule should only apply to certain operations based on size of envelope or number of people in the basket. Commenters proposed a passenger threshold ranging from 3 or more to 8 or more people. The Balloon Federation of America (BFA) stated that “any medical requirement for commercial balloon pilots should be limited to those operating balloons of such size as to legally transport 6 or more passengers.” Other commenters described the threshold as balloons with envelopes with volumes ranging from 77,682 cubic feet to 180,000 cubic feet.

Many of the commenters emphasized that these thresholds separated small-scale commercial balloonists from large-scale professional balloon ride operators. A common sentiment among commenters was that small commercial balloon operators were being over-regulated as a result of mishaps from larger balloon operators. Some commenters suggested that the NTSB safety recommendations were specifically directed toward the safety of larger passenger-carrying balloons.

The FAA notes that the second-class medical certification requirement represents a minimum safety standard for commercial operations. For non-air carrier operations, the regulatory requirements for medical certification do not vary based on the number of passengers aboard the aircraft or the size of the balloon. The FAA has long held that a passenger who engages with an aircraft operator in common carriage has a higher expectation of safety and oversight. The FAA notes that while operators of smaller balloons generally carry fewer passengers per year, the risk to any individual passenger in a smaller balloon is not significantly different than the risk to which they are exposed in a larger balloon.

The FAA does not concur with the assertion that the NTSB safety recommendations were specifically directed toward the safety of larger passenger-carrying balloons. Recommendation A-17-034 recommends that the FAA “remove the medical certification exemption in 14 Code of Federal Regulations 61.23(b) for pilots who are exercising their privileges as commercial balloon pilots and are receiving compensation for transporting passengers.” The FAA notes that while the NTSB directed the recommendation towards operations receiving compensation for transporting passengers, the NTSB did not distinguish between classes of operators in terms of size or passenger carrying capacity. Likewise, Congress included no distinction based on size or passenger-capacity in Section 318 when it directed the FAA to remove the exception from medical certification for commercial balloon pilots.

Accordingly, this medical certification requirement will apply to all holders of a commercial pilot certificate with a lighter-than-air category balloon class rating when exercising the privileges of that certificate in a balloon for compensation or hire, unless that person is conducting flight training, regardless of the size of the aircraft or the number of passengers carried.

The medical certification requirement in this final rule does not provide an exception to commercial operations not involving the carriage of passengers.

Several commenters contended that commercial balloon operations that do not involve the carriage of passengers for compensation or hire should not require the PIC to hold a second-class medical certificate. BFA stated that “there is no more risk to the flying public in these activities, which include commercial advertising contract flying and special shape flying, than private ballooning for sport.” The BFA strongly opposed the inclusion of commercial operations that do not conduct paying passenger activities.

Commenters to the proposed rule provided multiple examples of how commercial operations frequently occur without passengers. For example, one commenter operates a one-of-a-kind specially shaped balloon that is hired by events for its uniqueness and popularity. The city of Albany Parks & Recreation noted that the proposed rule would have a significant impact on their ability to recruit pilots for their annual festival. This commenter noted that “the second-class medical requirement may significantly impact the number of balloons available for the festivals as some pilots may decide to forego the expense and trouble.”

Another commenter said that many companies incorporate balloons into their marketing strategies, noting that these balloons are utilized as portable billboards to either be displayed while tethering on the ground or while conducting promotional flights during balloon festivals. One commenter observed that some events exclude private pilots from attending “since they interpret that getting your room, show up money or propane as `compensation'.”  10

Section 318 of the FAA Reauthorization Act of 2018 directed the FAA to “revise section 61.3(c) of title 14, Code of Federal Regulations (relating to second-class medical certificates), to apply to an operator of an air balloon to the same extent such regulations apply to a pilot flightcrew member of other aircraft.”

The FAA proposed this rule specifically to implement section 318 of the FAA Reauthorization Act of 2018. Accordingly, the FAA proposed a requirement that any person exercising the privileges of a commercial pilot certificate for compensation or hire in a balloon, except when conducting flight training, hold a second-class medical certificate. The proposed rule made no distinction regarding whether the affected operation involved the carriage of passengers for compensation or hire, instead describing affected operations as including, but not limited to, operations for purposes of passenger sightseeing, aerial advertising, maintenance test flights, and research and development flights.

FAA regulations require a second-class medical certificate for all commercial pilots of fixed-wing aircraft and rotorcraft, regardless of whether the operation involves the carriage of passengers. Further, the statute does not allow an exception for commercial operations not involving the carriage of passengers. Therefore, in accordance with the express statutory language in Section 318 of the FAA Reauthorization Act of 2018, the FAA will require all commercial balloon pilots to hold a second-class medical certificate, as proposed in the NPRM. 11

As discussed in the NPRM, the FAA considered whether to expand the definition of an operator under § 91.147 to include commercial balloon operations carrying passengers for compensation or hire. Doing so would have created a new requirement for such operators to obtain a Letter of Authorization (LOA) from the FAA, which would include a requirement to implement drug and alcohol testing programs in accordance with 14 CFR part 120. The FAA specifically sought comment on whether drug and alcohol testing should be required for commercial balloon operations.

Several commenters noted that the rule is insufficient because it lacks drug and alcohol testing. Most of the commenters expressing this sentiment used it as a rationale for opposing the rule, pointing out that holding a medical certificate does not compel a person to be randomly tested for prohibited substances and, as such, would have done little to prevent the Lockhart, Texas and Albuquerque, New Mexico  12 accidents.

The FAA considered this alternative and concluded that such a requirement goes beyond the scope of the statutory mandate. The FAA established the § 91.147 provision in the 2007 National Air Tour Safety Standards final rule  13 following a pattern of accidents in powered aircraft. In that rule, the FAA specifically excluded balloon operations. The FAA notes that any future revisions of National Air Tour Safety Standards will require a risk-based assessment of need based on available safety data.

While medical certification under part 67 does not include a drug and alcohol testing component, it does require the applicant to authorize the FAA to access the applicant's National Driver Register (NDR) records. The NDR Problem Driver Pointer System (PDPS) identifies records on individuals whose privilege to operate a motor vehicle has been revoked, suspended, canceled or denied, or who have been convicted of serious traffic-related offenses. Even if the applicant fails to disclose these convictions on the medical certificate application, the FAA receives a report from the NDR, providing an additional safeguard and mechanism for verifying the accuracy of the information provided by the airman.

In the case of the pilot of the Lockhart accident, the accident pilot had a 20-year history of drug and alcohol convictions. Even if the airman had omitted his history of traffic offenses on an application for a medical certificate, the FAA would likely have been made aware of the motor vehicle actions from NDR records and had the opportunity to deny the application for a medical certificate based on evidence of substance dependence or substance abuse, in accordance with §§ 67.207(a)(4), 67.207(b), 67.107(a)(4), and 67.107(b).

Accordingly, this final rule does not set forth a regulatory requirement for commercial balloon operators and pilots to implement a drug and alcohol testing program at this time.

Multiple commenters stated that ballooning is an insignificant activity in the National Airspace System (NAS) and should not be subject to additional regulation.

The FAA does not consider commercial ballooning an insignificant activity. The FAA notes that the Lockhart, Texas and Albuquerque, New Mexico accidents demonstrate that ballooning is not insignificant, and the potential risk for catastrophic accidents is not insignificant. While the FAA concurs with commenters who asserted that balloon operations represent a small percentage of the total operations in the NAS, the FAA notes that balloons are frequently used for carrying passengers for compensation and present a risk that justifies a level of medical oversight equivalent to that of pilots of powered aircraft for certain operations such as commercial sightseeing operations. Further, the NTSB and Congress have identified this risk and called on the FAA to extend the requirements for medical certification to balloon pilots operating for compensation or hire.

A number of commenters expressed concerns that the final rule would greatly reduce the number of balloon pilots due to costs associated with obtaining a second-class medical certificate. The FAA acknowledges that in some cases, some commercial operators—particularly low-volume commercial operators—may opt to no longer conduct commercial operations due to the cost of obtaining a medical certificate outweighing the marginal economic benefit of conducting operations for compensation. While some pilots may leave the industry, other balloon pilots may opt to enter the commercial balloon industry to fill the void left by departing commercial pilots.

While the FAA does not expect a significant decrease in the availability of balloon pilots, changes in supply of balloon pilots could affect prices as well. The regulatory economic analysis does not quantify any potential changes in consumer and producer surplus from changes in supply. If the rule effectively screens out certain individuals for disqualifying medical conditions as intended, any potential adverse effects on individual applicants should be offset by the safety gains to the public. Nevertheless, the cost to obtain a second-class medical certificate is unlikely to be the sole reason to cause a commercial balloon pilot to discontinue commercial operations. The FAA estimates the cost per pilot to obtain a second-class medical certificate would be between $160 and $685 annually, depending on whether a special issuance would be necessary. This amount equates to about 0.06% to 0.37% of average annual revenues for small entities. 14

The opportunity cost (including the time and fees) of seeking a second-class medical certification for some pilots may outweigh the monetary gains of operating commercially, resulting in some pilots opting not to seek medical certification. The FAA does not have sufficient information to predict how the supply of commercial balloon pilots would change as a result of this rule.

Multiple commenters stated that following the Heart of Texas accident, the ballooning insurance providers have required all commercial pilots flying balloons larger than 120,000 cubic feet to hold a second-class medical certificate. The revised regulatory economic analysis has factored in roughly 8.8% out of 4,869 commercial pilots with balloon class ratings who probably fall into this group, based on 2021 data from the Airmen Certification Database. The intent of the rule is to provide safety protection for all balloon passengers, not just passengers flying with companies operating larger balloons.

Commenters acknowledged that, while they do receive compensation, they do not consider themselves “commercial” in a traditional sense. Many commenters used examples of being offered limited compensation in the form of lodging or fuel to participate in ballooning events, often without the expectation to carry passengers. Several commenters noted that many commercial operators only occasionally conduct operations for compensation or hire and do so to subsidize the cost of ballooning.

The concept of conducting commercial operations for compensation or hire for the purpose of defraying the cost of flying is not unique to ballooning. The FAA has long held that when a passenger responds to an offer made by an operator to the public to provide an aeronautical service in exchange for receipt of anything of value that is contingent on the pilot operating the aircraft, the public expects a higher level of oversight and safety assurance. The FAA does not delineate the volume of passenger activity for purposes of defining medical eligibility requirements.

The FAA notes that there are certain circumstances in which a pilot may accept limited compensation for operating an aircraft when exercising private pilot privileges. These exceptions are enumerated in § 61.113(b) through (h). Balloon pilots exercising private pilot privileges may share expenses with passengers under § 61.113(c), provided those expenses are limited to items such as fuel, oil, airport expenditures, or rental fees. Further, a pilot sharing expenses under § 61.113(c) may not pay less than the pro rata share of the operating expenses, and must not engage in common carriage by “holding out” to the public.

Several commenters suggested alternative methods of meeting medical eligibility requirements. A few commenters suggested the FAA should allow BasicMed in lieu of a second-class medical certificate for commercial balloon operations. Multiple commenters proposed to allow state division of motor vehicle (DMV) record checks or NDR checks in lieu of medical certificate requirements. Finally, commenters suggested the medical certificate requirement not be applied to existing commercial pilot certificate holders.

The FAA does not support allowing balloon pilots exercising commercial pilot privileges to establish medical eligibility under BasicMed. Section 318 of the 2018 FAA Reauthorization Act directed the FAA to revise regulations relating to second-class medical certificates to apply to commercial balloon pilots to the same extent such regulations apply to pilots of other aircraft.

Section 2307 of the FAA Extension, Safety, and Security Act of 2016 directed the FAA to issue or revise regulations to establish physical examination and education requirements, resulting in BasicMed. BasicMed was intended by statute to serve as an alternative means of establishing medical eligibility for limited non-commercial operations by persons exercising the privileges of a private pilot certificate. Section 2307 specifically excluded operations conducted for compensation or hire and specifically prohibited passenger or property carried for compensation or hire.

The FAA does not concur with the suggestion that the FAA implement motor vehicle record checks for commercial balloon pilots instead of a second-class medical certificate requirement. A motor vehicle record alone provides an incomplete picture of a person's medical history and does not provide enough information to determine whether that person has a medical condition that would prevent him or her from safely operating an aircraft. Further, the medical eligibility requirements to hold a driver's license are not consistent from state to state and, therefore, may not be sufficient to ensure the safety of pilots operating a balloon carrying passengers for compensation or hire.

When applying for a medical certificate in MedXPress, an applicant authorizes the NDR, through a designated State Department of Motor Vehicles, to furnish to the FAA information pertaining to his or her driving record consistent with 49 U.S.C. 30305(b)(3). The NDR PDPS identifies records on individuals whose privilege to operate a motor vehicle has been revoked, suspended, canceled or denied, or who have been convicted of serious traffic-related offenses.

NDR checks are just one part of the medical screening process and are insufficient alone to screen for disqualifying medical conditions. A person's motor vehicle arrest record reveals only the times an individual was arrested while operating a motor vehicle under the influence of alcohol or another drug. Further, an NDR check alone would not reveal evidence of a substance abuse problem if the applicant does not operate a motor vehicle while intoxicated. Most substantially, an NDR check alone would not uncover the myriad of potential non-substance abuse-related medical conditions that are evaluated in conjunction with a medical examination conducted under part 67.

The FAA does not consider the concept of excluding existing commercial pilot certificate holders from having to comply with a medical certificate requirement to be in the interest of flight safety. Existing commercial pilot certificate holders pose a similar medical risk to the NAS as new commercial pilot certificate holders. Such an exception for existing commercial pilots would remove this group from the safety benefit of medical certification without any additional medical risk mitigation.

Commenters contended the rule is unnecessary because commercial insurers already require medical certificates. One commenter reported that insurance companies now require second-class medical certification for pilots of large passenger-carrying hot air balloons. The commenter added that the insurance requirement makes the proposed rule redundant and unnecessary.

Commercial balloon operators are not required by regulation to be insured, so withholding a regulatory requirement to hold a medical certificate and relying on insurance companies and operators to comply voluntarily with the insurance requirements would be insufficient alone to address the need for additional oversight of airmen conducting balloon operations for compensation or hire.

The FAA notes that commercial insurance requirements are not uniform and apply only to operators who choose to obtain such coverage and comply with the policy conditions. Further, insurance requirements for a medical certificate are not universal. Insurance providers typically require medical certificates for the pilots of commercial operations that are larger in terms of passenger capacity and number of operations.

Commenters noted that the FAA should focus on enforcement of existing rules and/or surveillance for balloon operators, rather than put forward new regulations requiring medical certification.

The FAA establishes regulatory standards to ensure safe operations in the NAS. The FAA's system is largely based on, and dependent upon, a culture of compliance with regulatory standards within the regulated community. FAA personnel use compliance, administrative, or legal enforcement actions to uphold the public's safety interest in ensuring that all regulated persons conform their conduct to statutory and regulatory requirements.

The FAA applies risk-based analysis to determine how, when, and where oversight and surveillance activities take place. The Integrated Oversight Philosophy allows both certificate holders and non-certificate holders to work with the FAA to ensure corrective action is appropriate and aims to address the root cause(s) of safety issues. Using this philosophy, the FAA oversight focus has been on existing surveillance, education, and awareness to the entire balloon industry to reduce the accident rate and improve balloon safety.

Multiple commenters noted that the FAA stated in the NPRM that gliders were out of scope because they carried only 1 or 2 passengers. The commenters argued that based on the FAA's rationale, balloons that carry 2 passengers or less should be excluded as well.

The FAA proposed this rule specifically to implement section 318 of the FAA Reauthorization Act of 2018 and respond to NTSB Safety Recommendation A-17-034, which recommended that the FAA remove the medical certification exemption in part 61 for commercial balloon pilots receiving compensation for transporting passengers. Section 318 directed the FAA to revise regulations as they relate to operators of balloons. The FAA considered whether glider operations conducted for compensation or hire should be included in the scope of this rule. The FAA ultimately determined that as a category of aircraft, the safety record and general operational risk profile of gliders carrying passengers for compensation or hire did not warrant further regulatory oversight concerning the medical suitability of commercial glider pilots.

Several commenters expressed doubt that a medical certification requirement will reduce the accident rate of commercial balloon operations. Commenters noted that inflight medical incapacitation is rare, and the FAA medical standards do not address the operational considerations of ballooning versus other aircraft. They contended the FAA lacks sufficient data to support a medical certification requirement. Further, they contended that a medical certificate requirement would not have affected the outcome of the two most recent significant fatal commercial accidents in Lockhart, Texas and Albuquerque, New Mexico.

The FAA is statutorily mandated to establish standards necessary to determine that an airman is physically able to perform the duties related to the privileges of their pilot certificate. See 49 U.S.C. 44703. Further, the FAA is statutorily mandated to revise regulations related to second-class medical certificates to apply to commercial balloon pilots.

In regards to whether medical standards address the operational considerations of ballooning, the FAA notes that medical certification standards address multiple dimensions of medical qualification, including medical factors that could diminish judgment and decision-making in addition to sudden physical incapacitation. While the standards do not apply to any specific type of aircraft operation, the standards do address general categories of medical considerations that are applicable to balloon operations. These categories include: vision; ear, nose, and throat; equilibrium; mental; neurological; cardiovascular; and general health. The standards established under part 67 are minimum standards. However, the Federal Air Surgeon does have the discretion to authorize special issuance of a medical certificate or a Statement of Demonstrated Ability (SODA), which offers flexibility for the FAA to issue a medical certificate based on the individual circumstances of an applicant.

As noted in the proposed rule, the 2016 Lockhart accident served as an example of how a lack of medical oversight allowed the pilot to continue to operate a balloon for compensation or hire in spite of a questionable medical history. While instances of sudden inflight incapacitation are rare, there are documented cases of events occurring. Medical incapacitation incidents are often not reported if no accident occurred. When an accident does occur, it can be difficult to pinpoint whether medical issues of the pilot were a factor, as evidence is often limited to the pilot's available medical records, postmortem toxicology and autopsy reports. Consequently, it is difficult to quantify the impact of medical factors on aviation safety.

While medical certification cannot completely mitigate the risk of an accident due to a medical condition of the pilot, the public holds an expectation for a higher level of operational oversight when the flight is conducted for compensation or hire. One method the FAA has to accomplish this objective is medical certification.

One commenter suggested that medical certificates should be required for all balloon operations.

The FAA will not extend the medical certificate requirement to balloon pilots exercising private or sport pilot privileges. Non-commercial balloon operations are among the lowest-risk operations in the NAS and do not warrant the additional regulatory burden of medical certification requirements. While pilots exercising the privileges of a private pilot or sport pilot certificate in a balloon are not required to hold a medical certificate, they must comply with the 14 CFR 61.53(b) requirement to abstain from operating an aircraft while that person knows or has reason to know of any medical condition that would make that person unable to operate in a safe manner. In addition, these pilots have fewer privileges, and in the case of sport pilots, more operational restrictions, than a commercial pilot holding his or her flight services out to the public for compensation. The FAA has determined that compliance with a prohibition from operating an aircraft during a medical deficiency sufficiently mitigates the risk of an accident in a balloon due to a medical-related issue in an operation exercising private or sport pilot privileges.

Commenters recommended the FAA should delay the effective date of the medical certificate requirement provision beyond 180 days. Most of those comments suggested that the rule take effect one year after publication. Commenters cited a lack of Aviation Medical Examiners (AMEs), the ongoing COVID-19 public health emergency, and delays in processing applications by the FAA.

Multiple commenters expressed concern that there are delays in processing medical certificate applications if a special issuance is required, preventing applicants from complying with the rule within 180 days. The BFA asserted that the process of obtaining a special issuance is burdensome and may take months, or in some cases years, to obtain a medical certificate.

The FAA proposed in the NPRM that compliance with the medical certificate requirement become effective 180 days from publication of the final rule. This would provide sufficient time for the majority of affected persons to comply with this rule by obtaining a medical certificate prior to the effective date. For reasons explained below, the medical certificate requirement will go into effect on May 22, 2023, 180 days after publication of this rule.

Based on historical data, the FAA estimates that over 95% of applicants, including those who need a special issuance, will have a disposition within 150 days. Approximately 1% of all applicants for FAA medical certificates are issued a denial. Of those denials, 95% of the final dispositions resulted from a lack of response to FAA requests for additional information. Only 4% of applicants take over 150 days for certification. Many of these individuals have medical conditions, which require mandatory periods of observation to demonstrate stability and/or allow for the risk of recurrence to diminish.

The FAA acknowledges that pilots with certain medical conditions may be required to obtain additional evaluation(s) prior to issuance of a medical certificate. The FAA recommends that affected airmen, especially those with known health conditions, initiate the process to apply for a medical certificate in a timely manner, taking into consideration the time needed to obtain relevant medical information and the time necessary for the FAA to review. Individuals who delay applying for a medical certificate risk loss of some operating privileges due to the inability to comply with the requirement to hold a second-class medical certificate.

Several commenters noted that the ongoing COVID-19 public health emergency would affect the ability of balloon pilots to obtain a medical certificate within 180 days. These commenters noted that there is a limited availability of health care workers due to COVID-19.

Commenters did not provide evidence that COVID-19 continues to limit the access to AMEs. While initial response to COVID-19 did result in significant restrictions and more limited access to healthcare facilities and physicians, access to AMEs has since returned to pre-pandemic levels.

Multiple commenters noted that balloon pilots never had medical certification requirements prior to this rule. BFA noted that a significant proportion of commercial balloon pilots are older and at an age where they likely have one or more medical conditions requiring a special issuance. Accordingly, commenters suggested that, as a population, balloon pilots will require more time to obtain a medical certificate.

The FAA notes that, as a group, older pilots are more likely to have medical conditions that need additional evaluation. The FAA does not have evidence to support the assertion that balloon pilots are as a population older than other pilots.

Multiple commenters noted a lack of available AMEs. One commenter noted that there was only one AME serving Albuquerque, New Mexico.

The FAA notes that at the time of publication of the final rule, AMEs were practicing at 2,056 locations across the United States, including 13 locations in New Mexico. Of the 11 AMEs practicing at 13 locations in New Mexico, six were practicing in Albuquerque. 15

In the NPRM, the FAA proposed that the two miscellaneous amendments be made effective 30 days after publication of the final rule. No comments were received regarding the effective date of either miscellaneous amendment. Accordingly, both provisions will become effective on December 22, 2022, 30 days after publication of this rule.

The FAA received generally supportive comments from individual commenters and the Aircraft Owners and Pilots Association in regard to the two miscellaneous amendments in the NPRM. The proposal to remove the requirement for a medical certificate in order to act as PIC in a special medical flight test received two supporting comments. Accordingly, the FAA is implementing the amendments as proposed. To allow persons to act as PIC during special medical flight tests, the FAA is amending § 61.3(c)(2) by adding new paragraph (xv), which allows persons to act as PIC during authorized special medical flight tests without holding a medical certificate. The FAA also adds a parallel provision in § 61.23(b)(12).

The proposal to extend BasicMed to persons serving as required flightcrew members but not acting as PIC received ten supporting comments. Accordingly, the FAA is implementing the amendments as proposed. Specifically, the FAA is amending §§ 61.3(c)(2)(xiv), 61.23(c)(3)(i)(C) through (E), 61.113(i), 68.3(a) and, 68.3(b), and 68.9(a) by expanding the requirements to include required pilot flightcrew members.

Federal agencies consider impacts of regulatory actions under a variety of executive orders and other requirements. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify the costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year. The current threshold after adjustment for inflation is $165 million, using the most current (2021) Implicit Price Deflator for the Gross Domestic Product.

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

The final rule will generate costs for balloon pilots to obtain a second-class medical certificate and for some pilots to seek authorization through special issuance. There is a separate cost for the FAA to implement this requirement in terms of reviewing and processing submissions related to medical certification. The FAA estimates the present value of total costs over ten years is $2.4 million to $16.3 million with a mid-estimate of $6.9 million at a 7 percent discount rate, and $2.9 million to $19.9 million with a mid-estimate of $8.4 million at a 3 percent discount rate. The FAA estimates the annualized costs over ten years is $0.3 million to $2.3 million with a mid-estimate of $1.0 million at a 7 percent discount rate and $0.3 million to $2.3 million with a mid-estimate of $1.0 million at a 3 percent discount rate. While lack of data on the effectiveness of the rule prevents quantification of benefits, the FAA anticipates the rule will enhance safety of commercial balloon operations, including reduced risks of accidents, fatalities, and injuries caused by medical impairment of balloon pilots. The FAA estimates that it would take between 0.3 to 2.8 averted fatalities in the next ten years for the benefits to breakeven with the costs of this rule.

In addition to the requirement for commercial balloon pilots to hold a second-class medical certificate, the rule made two miscellaneous amendments. The first amendment addresses certain inconsistencies in current regulations for conducting special medical flight tests and the second amendment addresses inconsistencies regarding who may operate under BasicMed. The FAA does not quantify the effects of the two miscellaneous amendments, but anticipates there will be minor cost savings. By allowing persons to receive special medical flight tests under part 67 without holding a medical certificate, the FAA aviation safety inspector will no longer have the burden of assuming the responsibility as PIC while conducting a medical test flight with an applicant. This also eliminates the inconsistency of both having to hold a medical certificate for the purposes of receiving a special medical flight test and needing the special medical flight test to obtain a medical certificate. The amendment to extend BasicMed eligibility to other required pilot flightcrew members reduces the burden for those pilots not acting as PIC of having to hold a medical certificate under current regulations and holds them to the same standard as those pilots acting as PIC under BasicMed. This may also result in more pilots seeking opportunities to serve as a safety pilot by lowering the medical certificate barrier without compromising safety. It also increases the number of pilots eligible to serve as safety pilot, easing the burden of pilots with instrument privileges conducting flights to meet recent flight experience requirements and consequently increasing overall safety in the national airspace system.

This rulemaking addresses the need for additional oversight of airmen conducting balloon operations for compensation or hire by implementing the statutory mandate under the Commercial Balloon Pilot Safety Act of 2018 and NTSB Safety Recommendation A-17-034 to extend second-class medical certification requirements to operators of balloons. As discussed elsewhere in this document, the 2016 Heart of Texas accident highlights the potential for a pilot's medical condition to pose safety risks, which are not necessarily less than that of powered aircraft sightseeing operations that require at least a second-class medical certificate ( e.g., commercial transportation of skydivers, banner towing, or aerial photography). Following the 2016 Heart of Texas accident, there have been voluntary efforts by the industry to raise the standard for balloon pilots, notably through the Envelope of Safety Program. While incentives to ensure a certain level of safety exist in the private market for commercial balloon operations, it is unlikely in the absence of federal regulation that all balloon pilots would choose to comply with the requirements of a second-class medical certificate. At the same time, consumers may be insufficiently aware of the risks associated with balloon pilots operating under a lower standard to demand full compliance. Therefore, this rulemaking is necessary to achieve a higher level of safety for commercial balloon operations.

This section summarizes key data sources and assumptions used throughout the analysis:

• Costs and benefits are estimated over 10 years.

• Costs and benefits are presented in 2021 dollars.

• The present value discount rate of seven and three percent is used, as required by the Office of Management and Budget.

• The cost for a medical examination fee with an AME is in the following range: Low = $100, Mid = $150 or High = $200. 16

• The hourly rate of a pilot (VPT) exercising their commercial balloon rating varies greatly. Therefore, the FAA used the following hourly wages: Low = $15, Mid = $31.50 or High = $48. 17

• Vehicle operating cost per mile (VOC) as determined by the Internal Revenue Service (IRS) is $0.16. 18

• The FAA assumes 1.5 hours to complete the MedXPress form. 19

• The FAA assumes 1 hour to complete a medical examination.

• The FAA assumes 1 hour of travel time to and from an AME's office.

At the time of writing, the FAA used 2021 data from the Airmen Certification database to identify pilots certificated as commercial balloon pilots. There are currently 4,869 commercial pilots with balloon class ratings. During the public comment period, the FAA learned that most insurance providers have required commercial pilots flying balloons larger than 120,000 cubic feet to hold a second-class medical certificate. FAA sources indicate that of the 4,869 commercial pilots with balloon class ratings, 427 balloon pilots (approximately 8.8% of total commercial balloon pilots) fall into this category. 20 Therefore, the updated estimated number of balloon pilots without medical certification in 2021 is 4,442.

This balloon class rating does not have an expiration date, and unlike certain other pilot ratings, a person exercising the privileges of a balloon class rating is not required to hold a valid first-, second-, or third-class medical certificate. Because of this, there is uncertainty in the number of commercial balloon pilots actively exercising commercial pilot privileges. For this reason, the FAA produced a low, mid, and high-range estimate of how many pilots would possibly be affected by this final rule.

In addition to the current number of certificated pilots with a commercial balloon rating, the FAA gathered data from the last 14 years to estimate an average growth of newly certificated commercial balloon pilots per year. Over the course of the last 14 years, from 2007 through 2020, there was, on average, 56 newly certificated commercial balloon pilots per year.

As mentioned earlier, there is uncertainty with the number of active pilots exercising their commercial balloon privileges. The FAA assumes a low estimate of 20%, a mid-estimate of 50% and a high estimate of 100% of the 4,442 impacted commercial pilots with a balloon class rating. Table 1 displays the potential number of airmen that would be affected by the final rule over the course of ten years. Note that in the first year and thereafter, the number of impacted commercial pilots includes an additional 56 newly certificated commercial balloon pilots each year to account for growth over time. Corresponding to the number of active balloon pilots is the number of expected application submissions for second-class medical certificates each year.

The benefits of this rule come from the value of averted accidents attributable to pilots operating commercial balloons with medical deficiencies. While under current regulations, balloon pilots must comply with § 61.53(b), which states that “a person shall not act as pilot in command, or in any other capacity as a required pilot flight crewmember, while that person knows or has reason to know of any medical condition that would make the person unable to operate the aircraft in a safe manner,” the second-class medical certificate requirement would provide greater assurances of safety to balloon passengers and other balloon operations conducted for compensation or hire. By requiring balloon pilots to undergo a medical certification process, an AME will have the opportunity to identify potentially impairing medical conditions and treatments thereof to ensure sufficient mitigation of any associated risks.

To quantify the benefits from this rule, it is necessary to: (1) forecast a baseline level of accidents attributable to medically impaired balloon pilots in the absence of this rule and (2) estimate the extent to which the medical certification requirement effectively reduces the risk. Based on the FAA's analysis of the NTSB accident database during the ten-year period from 2010-2020, the FAA finds that there has been one accident, the Heart of Texas accident, where the medical condition of the pilot was a factor. The Heart of Texas accident resulted in 16 fatalities. The commercial pilot and all 15 passengers were killed, and the balloon was destroyed by impact forces and post-crash fire. For an accident of this magnitude, the FAA estimates that the social cost associated with the loss of life alone is $185.6 million using a value of statistical life of $11.6 million. 21 Additional costs of a similar accident would include non-fatal injuries, the value of property loss and damage as well as the cost of the accident investigation and clean-up efforts. However, the FAA currently does not have enough information to monetize those additional costs.

The FAA finds that the requirement for a second-class medical certificate could have prevented the Heart of Texas accident if: (1) information made available through the NDR database as part of the medical review process revealed the pilot's history of drug- and alcohol-related traffic offenses and resulted in a disqualification, (2) a medical review either prompted effective treatment of or disqualification for the pilot's medical conditions (depression and ADHD), or (3) discussion of the use of certain medications with an AME would have resulted in the pilot adjusting his behavior to avoid usage as a PIC during a balloon operation.

Due to the infrequency of such events and limitations in the available data, it is difficult to quantify and monetize the benefits of the rule. The FAA intended to update its estimates of quantified benefits for the final rule based on additional information and data identified during the comment period. Specifically, the FAA requested information and data, including references and sources that could be used to predict the number of similar accidents that may occur in the future and the number of accidents that may be averted by this rule. No additional data was provided during the comment period.

While the FAA describes the benefits of the rule qualitatively, the FAA expects that second-class medical certification provides additional screening to reduce the risk of commercial balloon pilots operating while medically impaired. In the section below, the FAA conducted a breakeven analysis to show that the monetized benefits of the rule equates costs if it averts 0.3 to 2.8 fatalities in the next ten years.

This final rule results in private sector costs to balloon pilots for obtaining a second-class medical certificate, including the opportunity cost of time and fee for the medical exam with an AME. Some balloon pilots with certain health conditions that are otherwise disqualifying may also incur the cost of seeking a special issuance medical certificate or SODA. The FAA incurs costs for reviewing and processing the applications ( i.e., MedXPress forms) and reviewing NDR information for a subset of submissions.

To obtain a second-class medical certificate, an applicant needs to complete the MedXPress form and a medical exam with an AME. Because the second-class medical certificate expires 12 months after the date of the medical exam, the FAA assumes that pilots incur these costs on an annual basis. The FAA estimates the opportunity cost of time for each applicant would include 1.5 hours to complete the MedXPress form, 1 hour for the medical examination, and 1 hour of travel time to and from the exam for a total of 3.5 hours. 22 The FAA assumes an hourly wage for a balloon pilot ranges from $15 per hour to $48 per hour, with a mid-estimate of $31.50 per hour, to value time for the medical exam and completing the MedXPress form. For valuing travel time, the FAA uses an estimate of $13.60 per hour consistent with 2016 DOT guidance (in this analysis, $14.44 was used for year 2021). 23 Multiplying the value of time by the amount of time spent yields an estimate of $51.94 to $134.44, with a mid-estimate of $93.19 per applicant in opportunity cost of time. FAA subject matter experts estimate the cost per medical exam with an AME ranges from $100 to $200, with an average of $150. Additional costs arise from vehicle operating costs (VOC) of 16 cents per mile for an average of 50 miles traveled by vehicle to and from a medical exam, which yields $8 for each exam. Taking the sum of the value of time spent, medical exam fee, and VOC, the FAA estimates that each applicant incurs costs of approximately $160 to $342, with a mid-estimate of $251 to obtain a second-class medical certificate each year.

Table 2 below shows the range of total costs to industry for obtaining a second-class medical certificate. The FAA derives the aggregated low, middle, and high costs by multiplying the estimated number of active pilots (low, middle, high) as shown in Table 1 by the corresponding low, middle, and high costs per applicant by cost category.

For applicants that do not initially meet the requirements of a second-class medical certification, there may be an additional cost to seek a special issuance medical certificate or SODA. 24 The FAA assumes that an applicant seeking special issuance would incur the same costs and time of a second-class medical certification as estimated per applicant above. Based on the historical rate of special issuances, the FAA assumes that approximately 10 percent of affected balloon pilots would seek special issuance, including SODAs. Therefore, the FAA takes the sum of costs in each cost category for obtaining a second-class medical certification and multiplies by 0.1 to obtain the total industry cost for obtaining special issuances. Table 3 below shows the range of special issuance costs in each year.

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it updates the listed airports ARP geographic coordinates information, amends the airspace description header information by changing the airspace title and adding the Pocket City VORTAC. Finally, this action corrects the airspace description by updating the Airport/Facility Directory reference.

Class C airspace areas are designed to improve air safety by reducing the risk of midair collisions in high volume airport terminal areas and to enhance the management of air traffic operations in that area. During a recent inquiry regarding the Evansville Regional Airport, IN, Class C airspace description and the surface area cutout for the Skylane Airport, the FAA identified that the Evansville Regional Airport and Skylane Airport ARP geographic coordinates were incorrect. This action updates the ARP geographic coordinates for both airports listed in the airspace description to coincide with the FAA's NASR database information. After reviewing the existing airspace description, this action also makes technical amendments to the airspace description header information by changing the title of the Class C airspace area to reflect city and state instead of the airport name the airspace is designated around and by adding the Pocket City, IN (PXV), VORTAC since it is used to define the surface area cutout for the Skylane Airport. Further, a technical amendment to the airspace description corrects the Airport/Facility Directory reference. There are no changes to the boundaries, altitudes, or air traffic control services resulting from this action.

Class C airspace areas are published in paragraph 4000 of FAA Order 7400.11G, dated August 19, 2022, and effective September 15, 2022, which is incorporated by reference in 14 CFR 71.1. The Class C airspace listed in this document will be published subsequently in FAA Order JO 7400.11.

This document amends FAA Order 7400.11G, Airspace Designations and Reporting Points, dated August 19, 2022, and effective September 15, 2022. FAA Order 7400.11G is publicly available as listed in the ADDRESSES section of this document. FAA Order 7400.11G lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending the Evansville Regional Airport, IN, Class C airspace description to update the Evansville Regional Airport and Skylane Airport ARP geographic coordinates contained in the airspace description. The ARP geographic coordinates for the Evansville Regional Airport are changed from “lat. 38°02′17″ N, long. 87°31′50″ W.” to “lat. 38°02′27″ N, long. 087°31′43″ W.” and for the Skylane Airport are changed from “lat. 38°01′00″ N, long. 87°35′30″ W.” to “lat. 38°00′43″ N, long. 087°35′42″ W.”. These ARP geographic coordinates changes are made to coincide with the FAA's NASR database information. Additionally, this action makes technical amendments to the airspace description header by changing the airspace title from the “Evansville Regional Airport, IN” to “Evansville, IN” and by adding the Pocket City, IN (PXV), VORTAC that is used to define the Class C surface area cutout. Finally, this action makes a technical amendment to the airspace description by correcting the “Airport/Facility Directory” reference to the “Chart Supplement”. These technical amendments are made to comply with airspace legal description guidance contained in FAA Order JO 7400.2.

This action does not affect the boundaries, altitudes, or operating requirements of the airspace. Therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.

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 Department of Transportation (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 making technical amendments to the Evansville, IN, Class C airspace description qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. Since this action does not change the boundaries, altitudes, or operating requirements of the Class C airspace area, and only amends the legal description to contain the current Evansville Regional Airport and Skylane Airport ARP geographic coordinates, this airspace action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

Authority and Background: The Social Security Number Fraud Prevention Act of 2017 (the Act) (Pub. L. 115-59; 42 U.S.C. 405 note), restricts Federal agencies from including individuals' SSNs on documents sent by mail, unless the head of the agency determines that the inclusion of the SSN on the document is necessary (section 2(a) of the Act). The Act requires agency heads to issue regulations specifying the circumstances under which inclusion of an SSN on a document sent by mail is necessary. These regulations, which must be issued no later than five years after the date of enactment, shall include instructions for the partial redaction of SSNs where feasible, and shall require that SSNs not be visible on the outside of any package sent by mail (section 2(b) of the Act).

Discussion of Public Comments Received: NASA published a proposed rule in the Federal Register at 87 FR 46908 on August 1, 2022, to amend to its regulations at 14 CFR part 1212, subpart 1212.6. The Agency received one comment from an individual that expressed the importance of keeping SSNs safe to prevent fraud, one comment from an individual that expressed the importance of continuously updating and clarifying all revisions pertaining to SSNs because citizens value and expect privacy, and one comment from an individual who provided information about Social Security income that is not related to this rule. As no significant issues or questions were raised by the commenters, NASA is issuing this final rule with no changes from the version proposed in August.

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 of reducing costs, harmonizing rules, and promoting flexibility. This final rule is not a significant regulatory action under section 3(f) of Executive Order 12866 and was not reviewed by the Office of Management and Budget.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to prepare an initial regulatory flexibility analysis to be published at the time the final rule is published. This requirement does not apply if the agency “certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities” (5 U.S.C. 605(b)). This final rule does not have any economic impact on small entities.

This final rule does not contain any information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999), requires regulations be reviewed for federalism effects on the institutional interest of states and local governments, and, if the effects are sufficiently substantial, preparation of the Federal assessment is required to assist senior policy makers. The amendments will not have any direct effects on state and local governments within the meaning of the Executive order. Therefore, no federalism assessment is required.

For reasons discussed in the preamble, NASA amends 14 CFR part 1212 as follows:

The Census Bureau typically prepares, in most years between decennial censuses, statistical estimates of the number of people residing in states and their governmental units. Under 15 CFR part 90, “Procedure for Challenging Population Estimates,” the Census Bureau generally provides general-purpose governmental units the opportunity to seek a review of these estimates by providing additional data to the Census Bureau's Population Estimates Program as evidence relating to the accuracy of the estimates. In most years, a general-purpose governmental unit may file a challenge to its population estimate any time up to 90 days after the release of the estimate by the Census Bureau on its website. The Census Bureau, upon receipt of appropriate documentation to support the challenge, will attempt to resolve the discrepancy with the governmental unit in a timely manner.

With this publication, the Census Bureau provides notice that it is now resuming the Population Estimates Challenge Program to provide eligible governmental units the opportunity to challenge population estimates for 2021 and subsequent years in forthcoming estimates series, beginning with the Vintage 2022 series that is scheduled to be published in 2023.

Previously, the Census Bureau published a final rule on January 9, 2020, in the Federal Register (85 FR 1100) to announce that it would temporarily suspend the Population Estimates Challenge Program to accommodate the taking of the 2020 Census. This suspension ensured that the Bureau could allocate sufficient resources to conduct and complete the 2020 decennial census, including time for the Census Bureau's Population Division staff to effectively review and evaluate the 2020 Census results, and to assist with other important post-Census activities, including the development of the 2020 Demographic Analysis estimates of net coverage error and expediting the dissemination of the Vintage 2020 estimates products for use as a benchmark in 2020 Census evaluations.

The Census Bureau has previously suspended the Population Estimates Challenge Program around the time of other censuses, and the program is typically resumed when staff assigned to decennial census-related work complete those assignments and become available to reinstate and support the operation of the Population Estimates Challenge Program. For example, the Population Estimates Challenge Program was suspended in 2010 in support of work pertaining to the 2010 Census and then resumed in 2013. 1

The Census Bureau had planned to resume the Population Estimates Challenge Program in 2022; however, those efforts were delayed as a result of significant and unexpected changes to the operational schedule for the 2020 Census, which were primarily caused by the effects of the COVID-19 pandemic and related mitigation measures. 2 Most notably, 2020 Census field operations were interrupted and delayed due to lockdown orders and health concerns which prevented data collection activities from proceeding on their original schedule. For example, the Nonresponse Followup Operation was originally scheduled for May 13, 2020, to July 31, 2020, but the actual dates for the operation were July 16, 2020, to October 15, 2020.

The Population Estimates Program depends on the decennial census data to serve as the starting point (or estimates base) for each new decade of annual population estimates. The schedule changes described above translated into significant and unexpected delays for processing of the 2020 Census data and the subsequent availability of data files required to research and develop the April 1, 2020 estimates base for the 2021 estimates series known as “Vintage 2021.” These files only became available for use by the Population Estimates Program on June 24, 2021, instead of the originally projected date of January 25, 2021. The resulting work leveraging these files to develop population estimates for subcounty geographies was completed on April 7, 2022, instead of the originally projected completion in early fall 2021. The methodology that is used to create the estimates informs what components of the estimates are subject to challenge. As a result, the supporting materials for the Population Estimates Challenge Program, such as the Review Guide for the Population Estimates Challenge Program, could not be finalized until the method to develop the estimates of population for subcounty geographies had been completed to ensure that the materials made available feature current methodologies and input data requirements. Once it became clear that the amount of time remaining to reinstate the Population Estimates Challenge Program for the Vintage 2021 estimates series was insufficient, the timeline for resuming the program was updated on the Census Bureau's website, in February 2022. 3

The Census Bureau will resume accepting challenges to the population estimates as of November 22, 2022. At that time, states, counties, and other units of general-purpose government may initiate challenges to population estimates under the procedures set forth in 15 CFR part 90. The Census Bureau will accept challenges to the estimates for 2021 and subsequent years in forthcoming estimates series, beginning with the Vintage 2022 series that is scheduled to be published in March and May of 2023. Challenges to previous estimates series will not be accepted. See 15 CFR 90.6(a) (“A request for a challenge to a population estimate may be filed any time up to 90 days after the release of the estimate by the Census Bureau.”). Although the Census Bureau has the discretion to accept untimely requests in certain circumstances, see id. § 90.6(b), this is not an appropriate circumstance to exercise such discretion, given the need to prioritize the agency's limited resources to prepare the forthcoming 2022 estimates, and to ensure that sufficient resources and program materials are available to support the operation of the Challenge Program and the evaluation of future challenges received.

Executive Order 12866: It has been determined that this rule is not significant for purposes of E.O. 12866.

Executive Order 13132: It has been determined that this rule does not contain policies with federalism implications as that term is defined in E.O. 13132.

Administrative Procedure Act: The provisions of the Administrative Procedure Act (APA) requiring prior notice and opportunity for public comment are inapplicable under 5 U.S.C. 553(b)(B) because prior notice and opportunity for public comment is impracticable, unnecessary, and contrary to the public interest, given the agency's desire and ability to restart this program after an extended period of suspension to accommodate the decennial census and COVID-19-related delays. The Population Estimates Challenge Program is routinely suspended during decennial census operations in order to ensure that resources within the Population Division are allocated toward reviewing and evaluating the decennial census results. This rule only resumes the suspended program. This rule does not implement revisions to the program or its requirements. Furthermore, there is good cause to waive the thirty-day delay in effective date pursuant to 5 U.S.C. 553(d)(3), as this rule does not burden any regulated entity, including state and local governments such as county, city, town, or village. Moreover, allowing an additional thirty days before challenges is not practicable since entities have expected the return of the Population Estimates Challenge Program.

Regulatory Flexibility Act:

Because a notice of proposed rulemaking and an opportunity for public comment are not required for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Robert L. Santos, Director, Census Bureau, approved the publication of this rule in the Federal Register .

A. Background

The CGBPA was enacted on July 17, 2008. Section 2(b) of the Act requires that each portable gasoline container manufactured on or after January 17, 2009, for sale in the United States, “shall conform to the child-resistance requirements for closures on portable gasoline containers specified in the standard ASTM F2715-05,” Standard Specification for Determination of Child Resistance of Portable Fuel Containers for Consumer Use. CGBPA, Public Law 110-278; 122 Stat. 2602, Sec. 2(b) (July 17, 2008), codified as a note to 15 U.S.C. 2056. ASTM F2715-05 established requirements for determining the child resistance of gasoline containers and other types of portable fuel containers, to mitigate hazards associated with children under age 5 accessing gasoline. Section 2(a) of the Act states that the provision of section 2(b) shall be considered to be a consumer product safety rule issued by the CPSC under section 9 of the Consumer Product Safety Act, 15 U.S.C. 2058.

Under section 2(d) of the Act, ASTM must notify the Commission of any revision to the child-resistance requirements of ASTM F2517-05. Once ASTM notifies the CPSC, the revisions will be incorporated by operation of law into the consumer product safety rule unless, within 60 days of such notice, the Commission determines that the revisions do not carry out the purposes of section 2(b) of the CGBPA, and so notifies ASTM.

In February 2015, ASTM notified CPSC that it had revised ASTM F2517-05 with the publication of ASTM F2517-15. The Commission determined that the revisions in ASTM F2517-15 carried out the purposes of section 2(b) of the CGBPA, and those revisions were incorporated into the mandatory standard in April 2015. The Commission published a direct final rule (DFR) codifying the incorporation by reference of ASTM F2517-15 at 16 CFR part 1460. 80 FR 16961 (Mar. 31, 2015). In November 2017, ASTM again notified the Commission that it had revised ASTM F2517. The Commission allowed ASTM F2517-17 to be incorporated into the mandatory standard and published a DFR updating the incorporation by reference in the CFR. 82 FR 58728 (Dec. 14, 2017).

On September 1, 2022, ASTM notified CPSC of another revision, ASTM F2517-22e1. Unless the Commission determines that the revised standard does not carry out the purposes of section 2(b) of the CGBPA and notifies ASTM of such a determination by October 31, 2022, the revision will be incorporated into the mandatory consumer product safety standard by operation of law.

As set forth in section B. Description of the Rule in this preamble, the Commission has determined that the revisions made to ASTM F2517 carry out the purposes of section 2(b) of the CGBPA. Accordingly, by operation of law, ASTM F2517-22e1 will be incorporated into mandatory standard, and this direct final rule updates 16 CFR part 1460 to incorporate by reference ASTM F2517-22e1. 1

ASTM F2517-22e1, which was published in August 2022, is an editorially corrected version of ASTM F2517-22, which was published in July 2022. Compared to ASTM F2517-17, ASTM F2517-22e1 contains substantive revisions as well as editorial, non-substantive revisions. After reviewing the changes to the child-resistance requirements in sections 2 through 7 of F2517-22e1, the Commission concludes that these revisions carry out the purposes of section 2(b) of the Act.

The revisions in ASTM F2517-22e1 update the standard to reflect current gasoline container designs, remove ambiguities in the child test requirements, creates an adult test that reflects usage patterns and applies requirements to aftermarket products such as pour spouts which make it more likely that containers will not be left unsecured and accessible to children. The Commission concludes that these changes carry out the purposes of section 2(b) of the Act by improving the portable gasoline container standard, compared to the requirements of ASTM F2517-05. Below is a discussion of ASTM F2517-05, subsequent revisions to the standard, and the substantive and non-substantive changes made to ASTM F2517-22e1. These changes, and the background of the voluntary standard, are described in more detail in the CPSC staff's briefing memorandum. 2

The Act made the child-resistance requirements in ASTM F2517-05 for closures on portable gasoline containers a mandatory consumer product safety standard. Section 2(d) of the Act makes this 2005 version of the standard a benchmark for assessing revisions to the standard. ASTM F2517-05 required that container closures have adequate resistance to opening by children between 42 months (3 years and 6 months) and 51 months of age (4 years and 3 months). ASTM 2517-05 also required performance testing to demonstrate that containers could be opened by older adults.

The child and older adult testing requirements in ASTM F2517-05 were based on the Poison Prevention Packaging Act (PPPA), 15 U.S.C. 1471-77. In 2005, gasoline containers had one opening to fill and pour from the container. To store the container, a consumer would screw on a threaded cap, typically using a ratchet mechanism similar to child-resistant medicine bottles. To fill the gasoline container, or attach a nozzle to pour from the container, one would use force and squeeze to defeat the ratchet. The nozzles used in 2005 generally did not contain any closures or child-resistance features. Containers also had a second small opening to vent the container. ASTM F2517-05 did not require a child-resistant closure for the vent opening. Gasoline vapors would escape the gasoline container through the vent opening.

ASTM F2517-05 included a requirement for a child test program using a panel of children. The child test required the container to pass a two-part test. First, the tester would ask a pair of children to open the container and give them 5 minutes to open it. If a child opened a container, the test result for that child was marked a failure. The second part of the test was for children who did not open their containers in the first part of the test. The tester would visually demonstrate opening the container, ask the children to open it, and then give the children 5 minutes to open the container. If a child opened a container, the test result was marked a failure. If a child did not open a container, the result was marked a pass.

The older adult test program used 100 adults between 50 and 70 years old, consisting of at least 70 percent women. The older adult test had two parts. First, the tester would ask an older adult to open all the caps on the container according to the instructions on the caps and gave the older adult 5 minutes to familiarize themselves with the container and open the caps. If the older adult was unable to open the container in 5 minutes, the tester gave the older adult two “screener packages” to open. A screener package is a gasoline container with the child-resistance mechanism defeated. If the older adult was able to open both screener packages, then the test result was marked a failure, because the test showed that the child-resistance feature made the cap too difficult for the older adult to open. If the older adult could not open either screener package, then the older adult was not counted, because the older adult could not open the gas can, even with the child-resistance mechanism already defeated.

The second part of the older adult test was for older adults who opened a container in the first 5 minutes. The tester replaced the older adult's first container with an identical container. The tester then asked the older adult to open the caps according to the instructions on them. After the older adult completed that step, the tester asked the older adult to close the caps on the container according to the instructions. A test where the older adult completed both tasks within 1 minute total was marked a pass, because the test showed that an older adult could open and close two child-resistant containers. Otherwise, the test was marked a failure. For the container to pass the older adult test, at least 90 percent of the older adults must have passed.

The 2015 and 2017 revisions are described in detail in the staff package. Significant elements of the 2015 revision included a new requirement that the tester tell the child to “use your teeth if you want to” during a child test. This instruction was based on testing provisions in the CPSC regulations related to the PPPA, 16 CFR 1700.20. ASTM F2517-15 also expanded the scope of the standard to include diesel and kerosene containers, as well as aftermarket components.

In 2017, to account for changes to gasoline container closures, ASTM revised the requirements to prepare containers for testing as well as the instructions given to children. ASTM F2517-17 also allowed the use of centralized testing as long as socio-economic diversity was maintained. Testing laboratories were finding it difficult to test in daycare facilities, and centralized testing permitted increased testing options.

Gasoline container designs have changed considerably since 2005, primarily in response to U.S. Environmental Protection Agency (EPA) vapor emission requirements. Gasoline containers made before 2009 generally contained only one closure to refill and dispense gasoline. Typically, gasoline containers now contain two closures, one to secure the container after refilling (refilling closure) and a second within the spout to prevent vapors from escaping (dispensing closure). Gasoline containers also no longer contain a separate vent; instead, they use a venting mechanism incorporated in the dispensing closure.

When a dispensing closure on current gasoline containers is not activated, the opening automatically closes and seals in the fuel and vapors. This self-sealing closure is typically achieved using a spring-loaded mechanism. Opening the dispensing closure on EPA-compliant gasoline containers also generally requires a more complex series of actions ( e.g., insert the nozzle into receptacle, then push, then turn), compared to older gasoline containers ( e.g., squeeze then turn).

The ASTM subcommittee working on the 2022 standard revision identified three ambiguities that had arisen in applying ASTM F2517-17. The first involved a failure provision relating to children “accessing liquid” in the container. This requirement was added in 2017, to account for self-sealing mechanisms on EPA-compliant gasoline containers. Laboratories, however, were uncertain whether a child passes the test who was able to open momentarily a self-sealing closure without keeping it open long enough to get liquid.

The second ambiguity involved screener packages used to determine if an older adult was an acceptable participant for testing. Prior to EPA emission limits, the screener package was typically made by replacing the child-resistant screw cap with a non-child-resistant screw cap ( e.g., a screw cap with the ratchet removed) on the only closure. EPA-compliant gasoline containers, however, now also have a second closure with integrated child-resistance features, so a new approach was needed to screen older adult participants. ASTM F2517-17 did not clearly indicate a solution.

The final ambiguity involved the resecuring portion of the older adult test. Older adults were given 1 minute to open and then resecure the container. EPA-compliant gasoline containers, however, now include separate dispensing closures and filling closures, and the standard did not indicate whether the dispensing closure, filling closure, or both closures, should be tested.

To address the ambiguity of the term “accessing liquid,” the revised standard changed the test to evaluate whether children are able to “dispense liquid” from a self-sealing closure. This new requirement maintains the understanding that a child should not gain access to the liquid, but does not necessarily fail a container with a spring-loaded closure simply because a child pressed the trigger momentarily but could not keep it open long enough to dispense liquid from the container. This revision represents an improvement over ASTM F2517-05 because it enables self-sealing solutions such as spring-loaded closures, and the momentary exposure of children to gasoline fumes and vapors from a self-sealing closure exposes children to less fumes and vapors than a gasoline container from prior to 2009, which, by design, allowed gasoline fumes and vapors to escape.

Testing laboratories indicated during the development process of ASTM F2517-22e1 that they seldom witnessed children trying to use their teeth when testing gasoline containers. Furthermore, because gasoline container closures are larger and shaped more irregularly than products like medicine bottle caps, and they rely on a sequence of actions rather than just exceeding a certain torque threshold, children are unlikely to gain a meaningful advantage by using their teeth when attempting to open a gasoline container closure. Additionally, stakeholders raised concerns that children using their teeth could sustain injuries to their mouth or swallow pieces of plastic.

Therefore, ASTM F2517-22e1 removes the instruction to encourage children to use their teeth. The standard does not prohibit children from using their teeth, so that children can interact with the closures as they choose to, including using their teeth. However, the risk of harming the children during the test is reduced, without adversely affecting the ability to ascertain the child-resistance of the container. Removing this instruction aligns with international standards. 3

The revised standard includes a new adult test. Adults are still given 5 minutes to read the instruction, familiarize themselves with the container, and demonstrate that it can be opened and resecured. Then the adults are given two, 1-minute periods to open and resecure each closure. However, the demographics, mixture of genders of adults, and suitability of participants have been changed to reflect more accurately those who actually use gasoline containers.

Many of the ASTM F2517-17 older adult test requirements were based on requirements for products subject to 16 CFR 1700.15(b)(2)(i) and the PPPA. However, the usage and demographics of users of gasoline containers differ from those for products subject to the PPPA, such as medicine bottles. Gasoline containers are generally used to fuel products for yard work ( e.g., lawn mowers, leaf blowers), and other activities ( e.g., ATVs); so gasoline container users are expected to have a baseline physical ability that allows them to complete these tasks. In addition, gasoline containers are designed to be used repeatedly, so gasoline container users are expected to have some experience in their operation.

• The new adult test requirements broaden the age range of adults, rather than all participants being between 50 and 70, as in the previous older adult test. Adults between the ages of 50 and 70 are still included; the new age distribution is:

○ 22%-28% are 18 to 29 years of age;

○ 45%-55% are 30 to 49 years of age; and

○ 22%-28% are 50 to 70 years of age.

• The new adult test includes more men, but it still requires at least 30 percent women, rather than 70 percent women, as in the previous older adult test.

The adult test also replaces the screener package with a self-certifying question, asking adult participants if they have used a gasoline container in the last 2 years. Adults who report unfamiliarity with gasoline containers are not used for the test.

Additionally, the revised standard permits adult test participants to view videos and other informative materials that might be found on the internet to reflect better the modern methods that manufacturers use to provide information to consumers, if those test subjects attempt to find the videos. Adult participants who try to access additional information that a manufacturer has on the internet during the familiarization period of the test would be given that information by the tester. Finally, the adult test sequence specifically instructs the adult to open and resecure both the refilling and dispensing closures within 1 minute for each closure.

In addition to addressing implementation issues that had arisen with ASTM F2517-17, ASTM F2517-22e1 allows a “family” of gasoline containers to be acceptable if the smallest container (which is very likely the easiest for children to manipulate) is tested by children and the largest container (which is very likely the hardest for children to manipulate) is tested by adults. A “family” of gasoline containers consists of containers that share the same design features, including the same child-resistance features, but in varying sizes and colors. The child-resistance features still need to be tested, but the same features do not need to be tested repeatedly when shown to be acceptable on other containers. This revision maintains child-resistance because the child-resistance features are the same within the “family” of containers. Accordingly, if children cannot access the smallest container in the family, then it is likely they will not be able to access the larger containers in the same family.

In addition to clarifying ambiguities in the prior standard, as discussed above, the ASTM subcommittee made several non-substantive changes to the standard that are relevant to CPSC's implementation of the Act. First, ASTM F2517-22e1 newly includes the terms “dispensing system,” “closure,” “filling opening,” and “portable fuel container” in the terminology section. ASTM F2517-22e1 also includes a new “requirements” section, Section 4. Requirements that are applicable to both child and adult testing were moved into this section.

Two unnecessary requirements were removed from ASTM F2517. The ASTM subcommittee removed repetitive testing steps for containers where dispensing systems may be stowed in the container. Some modern gasoline containers include a dispensing system that is stowed for sale, but is not intended or practical for the consumer to re-stow in regular use. Un-stowing a dispensing system was an unnecessary component to testing. Additionally, a requirement to seal containers 72 hours before testing was removed because statistical data indicated that the torque required to open the container did not change over time.

The readability of ASTM F2517-22e1 was improved. The protocol steps are now written in the imperative. For instance, the language stating that “the testing shall take place in a well-lit location that is or becomes familiar to the children and is isolated from all distractions” was revised to state in the imperative “conduct the testing in a test area that is well-lit and where the children are isolated from all distractions.” The test protocols also were reorganized into a consistent structure of “Test Parameters,” “Test Environment,” and “Test Panel.”

These non-substantive changes do not impact the purposes of the Act regarding the child resistance requirements, because the technical requirements that affect the determination of child resistance were not changed.

When Congress enacted the CGBPA in 2008, section 2(c) of the Act defined “portable gasoline container” as “any portable gasoline container intended for use by consumers.” In 2020, Congress amended the definition of “portable gasoline container,” by inserting after “for use by consumers” the following: “and any receptacle for gasoline, kerosene, or diesel fuel, including any spout, cap, and other closure mechanism and component of such receptacle or any retrofit or aftermarket spout or component intended or reasonably anticipated to be for use with such receptacle, produced or distributed for sale to or use by consumers for transport of, or refueling of internal combustion engines with, gasoline, kerosene, or diesel fuel.”  4 The current mandatory standard incorporated the previous statutory definition at 16 CFR 1460.2. This definition is being updated to reflect the revised statutory definition. Therefore, in addition to updating the incorporation by reference to ASTM F2517-22e1, the draft final rule also updates the definition of “portable gasoline container” stated in 16 CFR 1460.2 to reflect the current statutory definition.

The Commission is issuing this rule as a direct final rule. Although the Administrative Procedure Act (APA; 5 U.S.C. 551-559) generally requires agencies to provide notice of a rule and an opportunity for interested parties to comment on it, section 553 of the APA provides an exception when the agency “for good cause finds” that notice and comment are “impracticable, unnecessary, or contrary to the public interest.” Id. 553(b)(B). The Commission concludes that when it updates a reference to ASTM F2517 that is incorporated by reference under section 2(d) of the CGBPA, notice and comment are not necessary.

Specifically, under section 2(d) of the CGBPA, when ASTM revises ASTM F2517, that revision will become the new CPSC standard, unless the Commission determines that ASTM's revision does not carry out the purposes of section 2(b) of the Act. Thus, unless the Commission makes such a determination, the ASTM revision becomes CPSC's mandatory standard by operation of law. The Commission is allowing ASTM F2517-22e1 to become CPSC's new standard. The purpose of this direct final rule is to update the Code of Federal Regulations (CFR) so that it reflects the version of the standard that takes effect by statute. This rule updates the reference in the CFR, but under the terms of the CGBPA, ASTM F2517-22e1 takes effect as the new CPSC mandatory standard for portable fuel containers, even if the Commission does not issue this rule. Additionally, the revision of the definition of portable gasoline container in the regulation is merely to ensure the definition comports with the revised statutory definition. Thus, public comments would not alter substantive changes to the standard or the effect of the revised standard as a consumer product safety standard under section 2(b) of the CGBPA. Under these circumstances, notice and comment are unnecessary.

In Recommendation 95-4, the Administrative Conference of the United States (ACUS) endorses direct final rulemaking as an appropriate procedure to expedite rules that are noncontroversial and not expected to generate significant adverse comments. See 60 FR 43108 (Aug. 18, 1995). ACUS recommends that agencies use the direct final rule process when they act under the “unnecessary” prong of the good cause exemption in 5 U.S.C. 553(b)(B). Consistent with the ACUS recommendation, the Commission is publishing this rule as a direct final rule, because CPSC does not expect any significant adverse comments.

Unless CPSC receives a significant adverse comment by December 7, 2022, the rule will become effective on December 22, 2022. In accordance with ACUS's recommendation, the Commission considers a significant adverse comment to be “one where the commenter explains why the rule would be inappropriate,” including an assertion challenging “the rule's underlying premise or approach,” or a claim that the rule “would be ineffective or unacceptable without a change.” 60 FR 43108, 43111 (Aug. 18, 1995). As noted, this rule merely updates a reference in the CFR to reflect a change that occurs by statute and a change to the statutory definition of “portable fuel container,” and public comments should address these specific actions.

If the Commission receives a significant adverse comment, the Commission will withdraw this direct final rule. Depending on the comment and other circumstances, the Commission may then incorporate the adverse comment into a subsequent direct final rule or publish a notice of proposed rulemaking, providing an opportunity for public comment.

Section 1460.3 of the direct final rule incorporates by reference ASTM F2517-22e1. The Office of the Federal Register (OFR) has regulations regarding incorporation by reference. 1 CFR part 51. Under these regulations, agencies must discuss, in the preamble to a final rule, ways in which the material the agency incorporates by reference is reasonably available to interested parties, and how interested parties can obtain the material. In addition, the preamble to the final rule must summarize the material. 1 CFR 51.5(b).

In accordance with the OFR regulations, section B. Description of the Rule of this preamble summarizes the major provisions of ASTM F2517-22e1 that the Commission incorporates by reference into 16 CFR part 1460. The standard is reasonably available to interested parties. Until the direct final rule takes effect, a read-only copy of ASTM F2517-22e1 is available for viewing, at no cost, on ASTM's website at: www.astm.org/CPSC.htm. Once the rule takes effect, a read-only copy of the standard will be available for viewing, at no cost, on the ASTM website at: www.astm.org/READINGLIBRARY/. Interested parties can also schedule an appointment to inspect a copy of the standard at CPSC's Office of the Secretary, U.S. Consumer Product Safety Commission, Room 820, 4330 East West Highway, Bethesda, MD 20814, telephone: (301) 504-7479; email: cpsc-os@cpsc.gov. Interested parties can purchase a copy of ASTM F2517-22e1 from ASTM International, 100 Barr Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428-2959 USA; telephone: (610) 832-9585; www.astm.org.

The CGBPA provides that “the proposed revision shall be incorporated in the consumer product safety rule . . . unless, within 60 days of such notice, the Commission notifies ASTM International that the Commission has determined that such revision does not carry out the purposes” of section 2(b) of the Act. Unless the Commission receives a significant adverse comment by December 7, 2022, the rule will become effective on December 22, 2022. Portable gasoline containers manufactured or imported on or after the effective date must comply with the child-resistance requirements for closures on portable gasoline containers in ASTM F2517-22e1.

Section 14(a) of the CPSA requires that products subject to a consumer product safety rule under the CPSA, or to a similar rule, ban, standard, or regulation under any other act enforced by the Commission, be certified as complying with all applicable CPSC requirements. 15 U.S.C. 2063(a). Such certification must be based on a test of each product, or on a reasonable testing program. Because ASTM F2517-22e1 is considered a consumer product safety rule under the CPSA, portable gasoline containers manufactured or imported on or after December 22, 2022, are subject to the testing and certification requirements of section 14 of the CPSA with respect to ASTM F2517-22e1.

The Regulatory Flexibility Act (RFA; 5 U.S.C. 601-612) generally requires agencies to review proposed and final rules for their potential economic impact on small entities, including small businesses, and prepare regulatory flexibility analyses. 5 U.S.C. 603, 604. The RFA applies to any rule that is subject to notice and comment procedures under section 553 of the APA. Id. As discussed in section C. Direct Final Rule Process of this preamble, the Commission has determined that notice and the opportunity to comment are unnecessary for this rule. Therefore, the RFA does not apply. CPSC also notes the limited nature of this document, which merely updates the incorporation by reference to reflect the standard that becomes mandatory under the CGBPA and to conform the definition of “portable gasoline containers” in the regulation with the revised statutory definition.

The Commission's regulations provide a categorical exclusion for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement where they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(2). This rule falls within the categorical exclusion, so no environmental assessment or environmental impact statement is required.

Section 26(a) of the CPSA provides that where a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a requirement dealing with the same risk of injury unless the state requirement is identical to the federal standard. 15 U.S.C. 2075(a). Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to CPSC for an exemption from this preemption under certain circumstances. The CGBPA deems rules issued under that statute a “consumer product safety rule.” Therefore, once a rule issued under the CGBPA takes effect, it will preempt in accordance with section 26(a) of the CPSA.

The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that before a rule can take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The CRA submission must indicate whether the rule is a “major rule.” The CRA states that the Office of Information and Regulatory Affairs determines whether a rule qualifies as a “major rule.”

Pursuant to the CRA, this rule does not qualify as a “major rule,” as defined in 5 U.S.C. 804(2). To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.

For the reasons stated above, the Commission amends 16 CFR part 1460 as follows:

Legal Authority

The United States is a party to the 1971 United Nations Convention on Psychotropic Substances (1971 Convention), February 21, 1971, 32 U.S.T. 543, 1019 U.N.T.S. 175, as amended. Procedures respecting changes in drug schedules under the 1971 Convention are governed domestically by 21 U.S.C. 811(d)(2)—(4). When the United States receives notification of a scheduling decision pursuant to Article 2 of the 1971 Convention adding a drug or other substance to a specific schedule, the Secretary of the Department of Health and Human Services (HHS), 1 after consultation with the Attorney General, shall first determine whether existing legal controls under subchapter I of the Controlled Substances Act (CSA) and the Federal Food, Drug, and Cosmetic Act meet the requirements of the schedule specified in the notification with respect to the specific drug or substance. 2 Based on those determinations, as appropriate, the Secretary of HHS (Secretary) shall recommend to the Attorney General that he initiate proceedings for scheduling the drug or substance pursuant to 21 U.S.C. 811(a) and (b). 3 The CSA also stipulates that in certain circumstances where the permanent section 811(a) scheduling will not be completed in time as required by the 1971 Convention, the Attorney General shall, after satisfying other specified conditions, issue a temporary order controlling the drug or substance under schedule IV or V, whichever is most appropriate to carry out the minimum United States obligations under the 1971 Convention. 4

In the event that the Secretary did not so consult with the Attorney General to make a determination about the existing legal controls, and the Attorney General did not issue a temporary order, the procedures for permanent scheduling are set forth in 21 U.S.C. 811(a) and (b). Pursuant to 21 U.S.C. 811(a)(1), the Attorney General may, by rule, add to such a schedule or transfer between such schedules any drug or other substance, if he finds that such drug or other substance has a potential for abuse, and makes with respect to such drug or other substance the findings prescribed by 21 U.S.C. 812(b) for the schedule in which such drug or other substance is to be placed. The Attorney General has delegated this scheduling authority to the Administrator of the Drug Enforcement Administration (Administrator). 5

Mesocarb (chemical name: N -phenyl- N′  -(3-(1-phenylpropan-2-yl)-1,2,3-oxadiazol-3-ium-5-yl)carbamimidate) is a central nervous system (CNS) stimulant.

At its 38th session (March 1995), the United Nations Commission on Narcotic Drugs added mesocarb to Schedule IV of the 1971 Convention, thus notifying all parties to the 1971 Convention.

On April 3, 2012, in accordance with 21 U.S.C. 811(b), and in response to the Drug Enforcement Administration's (DEA) August 12, 2008 request, HHS provided to DEA a scientific and medical evaluation and a scheduling recommendation for mesocarb. DEA subsequently reviewed HHS' evaluation and recommendation for schedule I placement and all other relevant data and conducted its own analysis under the eight factors stipulated in 21 U.S.C. 811(c). DEA found, under 21 U.S.C. 812(b)(1), that this substance warrants control in schedule I. Both DEA and HHS analyses are available in their entirety under “Supporting and Related Material” of the public docket for this rule at https://www.regulations.gov under docket number DEA-397.

On August 11, 2021, DEA published a notice of proposed rulemaking (NPRM) entitled “Schedules of Controlled Substances: Placement of mesocarb in schedule I.”  6 The NPRM provided an opportunity for interested persons to file a request for a hearing in accordance with DEA regulations on or before September 10, 2021. No requests for such a hearing were received by DEA. The NPRM also provided an opportunity for interested persons to submit comments on the proposed rule on or before October 12, 2021.

DEA received two comments on the proposed rule to control mesocarb in schedule I of the CSA.

Support for rulemaking: One commenter supported the placement of mesocarb in schedule I due to the continued abuse of controlled substances.

DEA Response: DEA appreciates the comment in support of this rulemaking.

Opposition to rulemaking: One commenter opposed the placement of mesocarb in schedule I by suggesting it be placed in schedule II due to the infrequent use in the United States and its availability and use in other countries.

DEA Response: DEA does not agree. DEA is not aware of any availability or source of mesocarb in the United States, and the commenter did not provide any evidence of its use in the United States. As discussed in HHS's eight-factor analysis, mesocarb is not approved by the United States Food and Drug Administration (FDA) for use in the United States. As explained in the NPRM, the medical and scientific evaluation and scheduling recommendation issued by the Assistant Secretary for Health of HHS (Assistant Secretary) concludes that mesocarb has no currently accepted medical use in treatment in the United States and lacks accepted safety for use under medical supervision.

In addition, DEA conducted an eight-factor analysis pursuant to 21 U.S.C. 811(c), and based its scheduling determination on a comprehensive evaluation of all available data. As stated in the NPRM, after careful review of all data, DEA concurred with HHS' assessment that mesocarb has a high potential for abuse with no currently accepted medical use in treatment in the United States and lacks accepted safety for use under medical supervision. Congress established only one schedule, schedule I, for drugs of abuse with “no currently accepted medical use in treatment in the United States” and “lack of accepted safety for use under medical supervision.”  7 The other four schedules require the drug or other substance to have a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions (schedule II) or a currently accepted medical use in treatment in the United States (schedules III through V). 8 DEA is therefore promulgating this final rule placing mesocarb in schedule I under the CSA.

After consideration of the public comments, the scientific and medical evaluation and accompanying recommendation of HHS, and conducting an independent eight-factor analysis, DEA finds substantial evidence of potential for abuse of mesocarb. As such, DEA is permanently scheduling mesocarb as a controlled substance under the CSA.

The CSA establishes five schedules of controlled substances known as schedules I, II, III, IV, and V. 9 The CSA also outlines the findings required to place a drug or other substance in any particular schedule. 10 After consideration of the analysis and recommendation of the Assistant Secretary and review of all other available data, the Administrator, pursuant to 21 U.S.C. 811(a) and 812(b)(1), finds that:

(1) Mesocarb has a high potential for abuse. This potential is comparable to certain schedule II substances ( e.g., methamphetamine or amphetamine);

(2) Mesocarb has no currently accepted medical use in treatment in the United States;  11 and

Section 1250A(d) of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92) and section 205(d) of the Eastern Mediterranean Security and Energy Partnership Act of 2019 (Pub. L. 116-94, Div. J.) provide that the policy of denial for exports, re-exports, and transfers of defense articles on the United States Munitions List to the Republic of Cyprus shall remain in place unless the President determines and certifies to the appropriate congressional committees not less than annually that: (A) the Government of the Republic of Cyprus is continuing to cooperate with the United States Government in efforts to implement reforms on anti-money laundering regulations and financial regulatory oversight; and (B) the Government of the Republic of Cyprus has made and is continuing to take the steps necessary to deny Russian military vessels access to ports for refueling and servicing.

On April 14, 2020, the President delegated to the Secretary of State the functions and authorities vested by section 1250A(d) of the National Defense Authorization Act for Fiscal Year 2020 (Pub. L. 116-92) and section 205(d) of the Eastern Mediterranean Security and Energy Partnership Act of 2019 (Pub. L. 116-94, Div. J.) (85 FR 35797, June 12, 2020). On September 12, 2022, utilizing these authorities, the Secretary of State certified to the appropriate congressional committees that the Republic of Cyprus meets the statutory requirements to remove the policy of denial for exports, re-exports, and transfers of defense articles to the Republic of Cyprus for fiscal year 2023. The Secretary of State further approved the suspension of the policy of denial for exports, reexports, and transfers of defense articles and defense services to the Republic of Cyprus for fiscal year 2023. In conjunction with the Secretary of State's decision, the Under Secretary for Arms Control and International Security used the Department's delegated authority (Executive Order 13637) under the Arms Export Control Act (22 U.S.C. 2751 et seq. ) to suspend the policy of denial for retransfers and temporary imports destined for or originating in the Republic of Cyprus and brokering activities involving the Republic of Cyprus for fiscal year 2023. Accordingly, the Department now amends section 126.1 of the International Traffic in Arms Regulations (22 CFR parts 120 through 130) to specify that the Republic of Cyprus' status as a proscribed destination is suspended from October 1, 2022, through September 30, 2023. As a result of this change, certain exemptions to licensing requirements are now available for exports, re-exports, retransfers, and temporary imports destined for or originating in the Republic of Cyprus and brokering activities involving the Republic of Cyprus, provided the conditions for use of those exemptions are met. Applications for licenses and other authorizations submitted to the Directorate of Defense Trade Controls involving the Republic of Cyprus and nationals of the Republic of Cyprus are subject to case-by-case review.

The Department of State (the Department) is of the opinion that controlling the import and export of defense articles and services is a military or foreign affairs function of the United States Government and that rules implementing this function are exempt from sections 553 (rulemaking) and 554 (adjudications) of the Administrative Procedure Act (APA), pursuant to 5 U.S.C. 553(a)(1). Since the Department is of the opinion that this rule is exempt from 5 U.S.C 553, it is the view of the Department that the provisions of section 553 do not apply to this rulemaking.

Since this rule is exempt from the notice-and-comment provisions of 5 U.S.C. 553(b), it does not require analysis under the Regulatory Flexibility Act.

This rulemaking does not involve a mandate that will result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Department does not believe this rulemaking is a major rule within the definition of 5 U.S.C. 804.

This rulemaking 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, it is determined that this amendment does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this rulemaking.

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, distributed impacts, and equity). Because the scope of this rule does not impose additional regulatory requirements or obligations, the Department believes costs associated with this rule will be minimal. This rule has been designated a “significant regulatory action” by the Office and Information and Regulatory Affairs under Executive Order 12866.

The Department reviewed this rulemaking in light of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

The Department determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not preempt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking.

This rule does not impose or revise any information collections subject to 44 U.S.C. chapter 35.

Arms and munitions, exports.

Accordingly, for the reasons set forth above, Title 22, Chapter I, Subchapter M, part 126 is amended as follows:

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the San Diego Parade of Lights in San Diego Bay, CA in 33 CFR 100.1101, Table 1, Item 5 of that section from 4p.m. until 8:30 p.m. on December 11, 2022 and on December 18, 2022. This enforcement action is being taken to provide for the safety of life on navigable waterways during the event. The Coast Guard's regulation for recurring marine events in the San Diego Captain of the Port Zone identifies the regulated entities and area for this event. During the enforcement periods and under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area, unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

In addition to this document in the Federal Register , the Coast Guard will provide the maritime community with advance notification of this enforcement period via the Local Notice to Mariners, marine information broadcasts, and local advertising by the event sponsor.

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The safety zone must be established by November 28, 2022 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zones until after the scheduled date for the drilling operations.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because this action is necessary to ensure the safety of vessels and persons during the drilling operations on November 28, 2022.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Marine Safety Unit Pittsburgh (COTP) has determined that a safety zone from mile marker 0.3 to 1.5 is needed to protect personnel, vessels, and the marine environment from potential hazards created from drilling operations starting November 28, 2022 until December 3, 2022.

This rule establishes a safety zone on from 6 a.m. on November 28, 2022 through 11:59 p.m. on December 3, 2022. The safety zone will cover all navigable waters on the Ohio River between mile marker 0.3 and 1.5, it would create a slow speed/no wake zone and limit commercial traffic to one way passing. The duration of the safety zone is intended to protect personnel, vessels, and the marine environment from potential hazards created by drilling operations.

No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard (USCG) assigned to units under the operational control of the COTP. To seek permission to enter, contact the COTP or a designated representative via VHF-FM channel 16, or through Marine Safety Unit Pittsburgh at 412-221-0807. Persons and vessels permitted to enter the safety zone must comply with all lawful orders or directions issued by the COTP or designated representative. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs), as appropriate.

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

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

This regulatory action determination is based on the size, location, and duration of the temporary safety zone. This safety zone impacts only a 1.2 mile stretch of the Ohio River for 24 hours a day starting November 28, 2022 at 6 a.m. until December 3, 2022 at 11:59 p.m. Vessel traffic will be informed about the safety zone through local notices to mariners. Moreover, the Coast Guard will issue LNMs, MSIBs, and/or BNMs via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting from 6 a.m. on November 28, 2022 until 11:59 p.m. on December 3, 2022 that will prohibit entry on the Ohio River between mile marker 0.3 and 1.5, create a slow speed/no wake zone and limit commercial traffic to one way passing during drilling operations. It is categorically excluded from further review under paragraph L60(A) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

On November 5, 2021, VA published a proposed rule in the Federal Register (86 FR 81094) that would establish the Readjustment Counseling Service Scholarship Program (RCSSP) in 38 CFR 17.545 through 17.553 pursuant to section 502 of Public Law 116-171, the Commander John Scott Hannon Veterans Mental Health Care Improvement Act of 2019 (the Act), enacted on October 17, 2020. The Act established new sections 7698 through 7699B and created the RCSSP to serve as an incentive to individuals who are pursuing a graduate degree in psychology, social work, marriage and family therapy, or mental health counseling to fill existing vacancies in Vet Centers that are located in areas that are designated as medically underserved populations and in States with a per capita population of more than five percent veterans according to the National Center for Veterans Analysis and Statistics and the Bureau of the Census (42 U.S.C. 254b(b)(3)).

VA provided a 60-day comment period, which ended on January 4, 2022. VA received two comments on the proposed rule. One comment was supportive of the rule. We thank the commenter for their support and do not make any changes based on the comment.

The other comment was supportive of the rule but expressed concern about the amount of funding for psychology doctoral students and the supervision requirements in the rule. VA stated in proposed § 17.549(c) that VA would fund RCSSP for social work, marriage and family therapy, professional mental health counseling, and psychology graduate students for a maximum of two years. The commenter suggested that VA increase the RCSSP funding period for psychology students to be commensurate with their increased experience, training, and value and to account for the fact that the other occupations only require a two-year degree whereas a psychology degree is five years, thereby leaving psychology participants with potentially significant debt compared to their counterparts in the other occupations. The commenter was concerned that psychology students could be dissuaded from participating in the RCSSP if they will still carry significant debt after graduation.

VA has considered the issues presented by the commenter, however, we reiterate from the proposed rule that the two-year limit on funding is intended to equalize the award and obligated service requirements across all four health care professions. VA believes that the two-year limit will provide full parity across the four disciplines to all scholarship awardees and provide for the equitable recruitment of individuals in the four health care professions. In this regard, the Act requires a six-year period of obligated service following the completion of the program of study. 38 U.S.C. 7699(c)(2). Therefore, VA believes it would be inequitable to fund two years for certain participants and five for others when all participants will have the same six-year period of obligated service. VA also does not believe that the two-year period for the scholarship will dissuade psychology graduates from participating in the RCSSP. We are not making any changes based on this comment.

The commenter also had concerns regarding supervision. Because VA health care professionals may be licensed in any State and not every Vet Center employs professionals from each of the professions, proposed § 17.549(b) stated that when determining which Vet Center a scholarship recipient would be placed to carry out their service obligation, VA would consider the size and professional makeup of the current Vet Center staff to ensure appropriate supervision as required by VA professional qualification standards and for State licensure. The commenter was concerned that the unintended result of the proposed rule could be that the Vet Centers with the greatest need for additional mental health professionals will be left out because of inadequate staffing levels to supervise a scholarship recipient. The commenter acknowledged that each participant requires supervision by another professional in the same disciple who is also licensed in the State they seek to gain licensure in order to obtain their license and stated that it is important that the individual requirements of each State's licensing board be considered when placing scholarship recipients. The commenter further stated that any potential solution must prioritize State licensure for the scholarship recipient and high-quality care for veterans. The commenter encouraged VA to allow scholarship recipients to be supervised by another VA health care professional or even a community health care professional if no appropriate supervisor is available at a Vet Center. The commenter also recommended that VA split a scholarship recipient's service obligation between two sites; one site with appropriately licensed health care professionals for the scholarship recipient to gain State licensure and another in a medically underserved veteran dense community as required in § 17.549(b).

We agree with the commenter that the requirement for recipients to receive supervision from a licensed staff within their respective professions who has the necessary State license, as a condition for their own licensure, is a critical point for the consideration of the potential location of the obligated service. VA would assist the participants in making certain that they have all of the resources needed to obtain a State license. We note that proposed § 17.549(b) does not require a certain level of staffing in a Vet Center, but does require that the Vet Center have adequate staff for the purposes of supervision of participants. This requirement will ensure that all recipients can utilize their experience at the Vet Center toward obtaining their desired State license.

Regarding the commentor's recommendation that the participant be supervised by a health care professional that is not in the same health care profession as the participant, we respectfully disagree with this recommendation. It is both a VA and a requirement in some States for some of the disciplines that the health care professional be supervised by an individual within the same health care profession. Having a supervisor that is not in the same health care profession may lead to the participant not being able to obtain a State license and thus making them in violation of their agreement. VA would also not allow participants to be supervised by health care professionals in the community as these individuals are not VA employees appointed under 38 U.S.C. 7306, 7401, 7405, 7406, 7408, or title 5, U.S. Code.

We also agree with the commenter that the goal of the RCSSP is to help fill vacancies in medically underserved communities. However, we believe that splitting locations of assignment for the scholarship participant would defeat the purpose of the RCSSP, which is to provide mental health care professionals to Vet Centers that are in medically underserved areas or in States with a per capita population of more than five percent veterans. Splitting the locations of assignment would reduce the amount of time a participant would provide vital health care services to a Vet Center location in these areas. In addition, the rapid turnover in order to accommodate two locations could negatively impact services to veterans by undermining active case coordination. We are not making any changes based on this comment.

The commenter also encouraged VA to advertise the VA Health Professional Scholarship Program (HPSP) to psychology students who are newly eligible and requested VA educate Veterans Integrated Services Network (VISN) and VA medical facility directors on the importance of offering Education Debt Reduction Program (EDRP) funds to psychologists. However, the HPSP and EDRP are beyond the scope of the proposed rule. We are not making any changes based on this comment.

VA is making a technical correction to § 17.549(b) for clarity. Proposed paragraph (b) stated when determining which Vet Center a scholarship recipient will be placed to carry out their service obligation, VA will consider the priority criteria in paragraph (a) of this section and the size and professional makeup of the current Vet Center staff to ensure that the Vet Center staff has health care professionals that are licensed to supervise participants of the RCSSP from the same health care profession as required by VA professional qualification standards for licensure for each of the four professions. We note that the text as proposed may be confusing as to whether the supervision of a health care professional from the same health care profession is a VA or State requirement. To clearly provide that the supervision is both a VA and a requirement of some States for some disciplines, we are now stating that the supervision requirements are required by VA professional qualification standards and a requirement of some State licensure boards for some disciplines for each of the four professions. No other changes to the meaning of this paragraph are intended by this change.

VA is making a technical correction to § 17.549(c)(2) for clarity. Proposed paragraph (c)(2) stated in part that psychology graduates are required to undergo a one-year residency at either an American Psychology Association (APA) or Canadian Psychological Association (CPA) accredited internship program prior to qualifying for full time VA employment. We are clarifying that the one-year residency at either an APA or CPA should have instead stated a one-year internship. This technical correction will change the term residency to internship to make the term consistent throughout paragraph (c)(2). No other changes to the meaning of this paragraph are intended by this change.

VA is also making technical edits to § 17.553(b) for clarity. Proposed paragraph (b) stated that “except as provided in paragraph (d) of this section, a participant of the RCSSP will be liable to the United States for the amount that has been paid to or on behalf of the participant under the agreement if any of the following occurs: Liability under paragraph (b) of this section is in lieu of any service obligation arising under the agreement.” We are eliminating the reference to paragraph (b) in the last sentence of this paragraph because liability applies to all of § 17.553. In addition, we are moving the last sentence of paragraph (b) to now be the first sentence of the paragraph for clarity. Paragraph (b) will now state that liability under this section is in lieu of any service obligation arising under the agreement. Except as provided in paragraph (d) of this section, a participant of the RCSSP will be liable to the United States for the amount that has been paid to or on behalf of the participant under the agreement if any of the following occurs. No other changes to the meaning of this paragraph are intended by this change.

Based on the rationale set forth in the SUPPLEMENTARY INFORMATION to the proposed rule and in this final rule, VA is adopting the proposed rule with the technical changes discussed in this rule.

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Office of Information and Regulatory Affairs has determined that this rule is not a significant regulatory action under Executive Order 12866. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601-612). The RCSSP will solely be operated and administered within VA. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This final rule would have no such effect on State, local, and tribal governments, or on the private sector.

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that VA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number. This final rule includes provisions constituting a new collection of information under the Paperwork Reduction Act of 1995 that require approval by the OMB. Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking action to OMB for review. OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Sections 17.548 and 17.551 contain a new collection of information. OMB has filed a comment on the information collection that was submitted in conjunction with the proposed rule in accordance with 5 CFR 1320.11(c) with a control number of 2900-0899. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by OMB.

This information would be collected for applicants who wish to participate in the RCSSP. The information would also be collected for those individuals who are selected to participate in the RCSSP and who must sign an agreement between VA and the eligible individual. This agreement would hold the eligible individual accountable for upholding the terms and conditions of the agreement and alert the eligible individual of the consequences of a breach in the agreement.

VA estimates that there will be 50 applicants per year with five selected participants from the 50 applicants. The estimated average burden per response for applicants is three hours and for selected participants is 1.6 hours. VA estimates the annual cost to all respondents will be $4,277 per year (158 burden hours × $27.07 per hour). VA used the Bureau of Labor Statistics (BLS) median hourly wage for hourly wage for “all occupations” of $27.07 per hour. This information is available at https://www.bls.gov/oes/current/oes_nat.htm#13-0000.

There are no Assistance Listing numbers and titles for this final rule.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (known as the Congressional Review Act) (5 U.S.C. 801 et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a major rule, as defined by 5 U.S.C. 804(2).

Denis McDonough, Secretary of Veterans Affairs, approved this document on October 27, 2022, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

For the reasons stated in the preamble, the Department of Veterans Affairs amends 38 CFR part 17 as set forth below:

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

The background for this action is discussed in detail in our March 23, 2022 proposed rulemaking (87 FR 16439). In that document we proposed to approve revisions to Colorado's minor source NSR permitting program. Specifically, EPA proposed to approve revisions to Regulation Number 3 (Stationary Source Permitting and Air Pollution Emission Notice Requirements), including Part A (General Provisions Applicable to Reporting and Permitting), Part B (Construction Permits), and Part C (Operating Permits).

We invited comment on all aspects of our proposal and provided a 30-day comment period. The comment period ended on April 22, 2022. We received comments on our proposed rulemaking. The comments and our responses are listed below.

On April 22, 2022, the EPA received comments from The Center for Biological Diversity, Henceforth referred to as “commenter.”

Comment: Commenter asserts, “EPA must disapprove the Colorado permitting program because it excludes emissions prior to operations such as drilling, fracking, and completion which may cause or contribute to violations of the NAAQS.” In support of this assertion, commenter offers three arguments. First, Commenter states that EPA has not supported its approval of the State's revised definition of “Commencement of Operation” with modeling data to demonstrate that the revised definition will not cause or contribute to NAAQS violations. Commenter states that such modeling is required by EPA regulations to be included in State Implementation Plan (SIP) submittals. Second, Commenter states that available evidence indicates that “pre-production” emissions from oil and gas facilities endanger the National Ambient Air Quality Standards (NAAQS). Commenter cites broadly to Colorado Air Mobile Monitoring Lab (CAMML) data, asserting that it shows that “activities which EPA proposes to approve into the SIP can endanger the NAAQS in violation of EPA's regulations for minor source permitting programs.” Commenter also states that, “Preproduction emissions from oil and gas well pads are significant emitters of VOCs which contributes to ozone.” Finally, Commenter states that the revised definition of Commencement of Operation “excludes oil and gas pollution emitting activities such as drilling wells, `fracking' wells, and completing wells.” Commenter argues, “40 CFR 51.160(e) requires states to justify the exclusion of any types of sources from review which is what the definition of commencement of operations does. But no justification has been provided here.”

Response: This SIP revision is approving limited rule revisions by Colorado that update the State's permitting regulations to reflect consistency within the permitting program and with Colorado Statutes. This comment raises issues that extend beyond those presented by the two changes to Part A, Section I.B of Regulation 3, that EPA is approving. This includes the addition of clarifying language to the definition of “Commencement of Operation” at Section I.B.12 and a new definition of the term “Well Production Facility” at Section I.B.47. Prior to these changes, “Commencement of Operation” at any facility was defined to occur when the facility “first conduct[ed] the activity that it was designed and permitted for.” This part of the definition has not been revised and remains applicable to all facilities. With the two additions, however, “Commencement of Operation” at an oil and gas well production facility has been clarified and is now defined to occur on “the date any permanent production equipment is in use and product is consistently flowing to sales lines, gathering lines or storage tanks from the first producing well at the stationary source, but no later than end of well completion operations (including flowback).” These additions, while limited in scope, provide improved clarity for operators of oil and gas well production facilities and for the State as to the timelines for certain actions required in the minor NSR permit application process in Part B of Regulation 3. This includes establishing a clear date for assessing compliance and impacts under Section III.B and a firm deadline for submitting notices and demonstrations under Section III.G. These regulatory changes are essentially procedural in nature and do not alter Colorado's approach to issuing construction permits for emissions from facilities that have completed construction and begun operating.

This comment does not address the revisions described above and, instead, is based entirely on the part of the definition of “Commencement of Operation” that was not revised or addressed in the proposal. As described above, the State has retained its original, already approved definition and added language to clarify how that definition applies to oil and gas well production facilities. The limited revisions submitted for EPA's review in this instance do not create a need for EPA to review the original definition language that has not been amended.

Commenter contends that EPA must use modeling data to support its conclusion that the revised definition does not cause or contribute to a violation of the NAAQS. However, Commenter bases this argument on an assertion that the revised definition “excludes oil and gas pollution emitting activities such as drilling wells, `fracking' wells, and completing wells.” This comment conflates the revisions being approved today with the original definition that is not being revised. This comment seeks to have EPA and the State conduct air quality modeling for already approved SIP elements.

Because the two revisions being approved today serve only to clarify timelines for making assessments and deadlines for making submissions during the permit application process, the changes will have no impact on emissions from facilities and no impact on the NAAQS. The State has not revised the nature of the discussion of air quality data under its regulations in a way that requires EPA to reevaluate compliance with 40 CFR 51.160(f). Given the limited effect of the revision here, there was no need for Colorado to submit air quality modeling to support approval of these revisions.

Commenter also argues that EPA must disapprove the revisions being approved today because “pre-production” emissions from oil and gas facilities endanger the NAAQS. Again, this is outside the scope of the rulemaking because the Commenter does not tie this assertion to the actual revisions to Part A, Section I.B, but instead points to the existing part of the definition of “Commencement of Operation” that is not being revised. Commenter provides links to the CAMML dataset, but does not explain how this data relates to EPA's approval of the revisions being approved today. Contrary to the Commenter's assertion, the State is not required to consider air quality data concerning already approved SIP elements when it revises other elements in a SIP and did not do so here. And, because the revisions being approved today are essentially procedural and only serve to establish timelines for conducting assessments or deadlines for making submissions during the permit application process, there is no air quality data available or that can be generated to assess the effect of the State's revisions on the NAAQS for this action. Moreover, the provisions of Regulation 3 contain requirements for Stationary Source Permitting and Air Pollution Emission Notice Requirements. Drilling and fracking are not subject to regulation under Regulation 3. Instead, completion (pre-production flowback requirements) and production are regulated by Colorado's Regulation 7, part D, which sources must be in compliance with immediately, upon commencement of operation.

Commenter also argues that the definition of “Commencement of Operation” excludes certain types of oil and gas well development activities and that the State must justify this exclusion. Commenter again relies on the existing part of the definition of “Commencement of Operation” that is not being modified or revised, rather than the revisions to Part A, Section I.B that EPA is approving today. As explained above, those additions serve to clarify certain timelines for the minor NSR permit application process for oil and gas well production facilities and have no impact on the State's determination as to what facilities will be subject to review under the construction permit program. Because these revisions provide clarity on procedures, and do not by themselves exclude any types of sources from review, they do not create a need in this rulemaking for EPA to review whether unamended elements of the State's rule meet the requirements in 40 CFR 51.160(e).

On the basis of the above arguments, Commenter states that EPA must disapprove the entire Colorado minor NSR permitting program. This assertion is incorrect. Under Section 110(l) of the CAA, “The Administrator shall not approve a revision to a plan if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress (as defined in section 171), or any other applicable requirement of this chapter.” This is captured in 40 CFR 51.105, which provides, “Revisions of a plan, or any portion thereof, will not be considered part of an applicable plan until such revisions have been approved by the Administrator in accordance with this part.” Even if the Commenter had identified deficiencies with the actual revisions being approved today, which they did not, the proper action for EPA would be to disapprove the revisions we are acting on in this rulemaking, not the entire Colorado minor NSR program. In this case, because the revisions to Part A, Section I.B of Regulation 3 serve only to clarify the timelines for certain actions required in the minor NSR permit application process in Part B of Regulation 3, there is sufficient basis to conclude that the revisions will not interfere with attainment, reasonable further progress, or any other applicable requirement of the CAA. EPA has made no changes to its proposed action in response to this comment.

Comment: Commenter states, “EPA must disapprove Colorado's SIP submittal because Colorado cannot prevent the construction of a source authorized to pollute by a general permit even if the source will cause or contribute to a violation of a NAAQS or interfer [sic] with reasonable further progress.” In support of this comment, Commenter states that Part B, Section III.I.2.a authorizes a source to construct and operate once they have obtained a valid general construction permit. Commenter then argues that because Colorado's GP10 version 10 is considered valid upon receipt of a complete APEN registration for a source, Section III.I.2.a allows a source to begin constructing and operating before the Division takes any action on a general permit for that source. Commenter explains that sources are not required to demonstrate that they will not cause or contribute to a violation of the NAAQS, that the Division does not require modeling for these sources, that there is no public comment period during which the public can submit modeling for these sources, and that when the Division does require modeling for sources obtaining individual construction permits, the Division uses significant impact levels (SILs) to allow sources to avoid cumulative modeling. Commenter states that because EPA has provided no evidence that allowing sources to construct and operate pursuant to a general construction permit will not cumulatively or individually cause or contribute to a NAAQS violation or interfere with reasonable further progress, EPA cannot approve this SIP submittal.

Commenter notes that Section 110(a)(2)(C) provides that a state minor source program must “include . . . regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that [NAAQS] are achieved.” Commenter asserts that “EPA's minor source permitting regulations require that the state minor source program must enable the permitting agency to reject any permit application if it will interfere with attainment,” citing to 40 CFR 51.160(a)-(b). Commenter further asserts that “this requires the prevention of construction” and that because Colorado allows a source to construct and operate under a general permit prior to Division review of the registration, EPA must disapprove the SIP submittal.

Finally, commenter asserts that Section III.I.2.a authorizes sources to commence construction and operations by obtaining a valid general construction permit without any opportunity for public notice and comment with regard to that source. Commenter asserts that the single public notice and comment period the State offers on a general permit is insufficient, and that EPA and the Division must ensure that all sources which obtain coverage under a general permit are subjected to public notice and a public comment period.

Response: Part B, Section III.I.2 of Regulation 3 provides that “[a] source shall not perform” the activities listed in Sections III.I.2.a through III.I.2.e without first obtaining a valid construction general permit. The State is revising Part B, Section III.I.2.a by removing the words “Commence construction” and replacing them with “Construct, operate.” Before the change, sources could not commence construction or modify any facility without a valid permit. After the change, sources cannot construct, operate or modify any facility without a valid permit. The effect of the change is to make the regulation textually consistent with Section 25-7-114.2 C.R.S., which provides that “No person shall construct or substantially alter any building, facility, structure, or installation . . . or commence operations of any of the same . . . without first obtaining or having a valid construction permit.”

Because the Division implemented its construction permit program to include operation with construction or modification, the change to the wording within this provision has no effect on the scope or NAAQS protection of the existing general permits program, or timing of when permit coverage under the program is required. As such, the comment is unrelated to the revised language that EPA is approving today and does not demonstrate that EPA should not approve the submission addressed by EPA in this rulemaking.

In addition, EPA notes that the State's general permit regulation includes provisions by which the State can prevent “construction or modification” of a source under a permit, as required by 40 CFR 51.160(b). This includes denying a permit under Section III.I.4, requiring a source to apply for and obtain an individual permit under Section III.I.3.c.(i), or revoking or terminating a permit under Section III.I.3.a.

The EPA is taking final action to approve the repealing and addition of new and revised rules to Regulation 3 that were submitted by the State of Colorado on May 13, 2020. Specifically, the EPA is approving the following revisions: Regulation Number 3, Part A: I. (Applicability)—I.B.12; I.B.47; Regulation Number 3, Part A: II (Air Pollution Emission Notice (APEN) Requirements—II.A.1; II.A.2; II.A.2(a); II.D.1.III; II.D.1.uuu; II.D.1.zzz; Regulation Number 3, Part B: II. (General Requirements for Construction Permits)—II.A.1; II.B; II.D.7;; Regulation Number 3, Part B: III. (Construction Permit Review Procedures)—III.B.1; III.B.2; and III.G.1.a., III.I.2(a).

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the State of Colorado's revisions to regulations for its minor source NSR permitting program into the SIP as described in section III of this preamble. The EPA will continue to make these materials generally available through www.regulations.gov and at the EPA Region 8 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 the EPA for inclusion in the State implementation plan, have been incorporated by reference by the 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 the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 1

VA is correcting its regulations that published in the final rule “VA Acquisition Regulation: Acquisition Planning; Required Sources of Supplies and Services; Market Research; and Small Business Programs,” which published October 18, 2022, in the rule document in the Federal Register at 87 FR 62999.

Accordingly, 48 CFR parts 819 and 852 are corrected by making the following correcting amendments:

Background

The ocean salmon fisheries in the exclusive economic zone (EEZ) (3-200 nautical miles; 5.6-370.4 kilometers) seaward of Washington, Oregon, and California are managed under the Salmon FMP. The Magnuson-Stevens Fishery Conservation and Management Act (MSA) requires that each regional fishery management council submit any fishery management plan (FMP) or plan amendment it prepares to NMFS for review and approval, disapproval, or partial approval by the Secretary of Commerce (Secretary) (MSA 304(a)). The MSA also requires that NMFS, upon receiving an FMP or plan amendment, immediately publish a notice that the FMP or plan amendment is available for public review and comment.

The Notice of Availability (NOA) for Amendment 23 was published in the Federal Register on August 18, 2022 (87 FR 50824), with a 60-day comment period that ended on October 17, 2022. In the NOA, NMFS also announced that a draft EA analyzing the environmental impacts of the actions implemented under Amendment 23 was available for public review and comments by October 3, 2022. NMFS summarized and responded to comments in the final EA, and under Comments and Responses, below.

NMFS completed a biological opinion under section 7 of the ESA on the implementation of the Salmon FMP, including Amendment 23, and determined that this action is not likely to jeopardize the continued existence of any endangered or threatened species under the jurisdiction of NMFS (NMFS Consultation Number: WCRO-2021-03260; biological opinion signed April 28, 2022).

NMFS determined that Amendment 23 is consistent with the MSA and other applicable laws, and the Secretary of Commerce approved Amendment 23 on November 10, 2022. The August 18, 2022 NOA contains additional information on this action. Amendment 23 will be implemented through the annual salmon management measures; no changes to existing Federal regulations are necessary.

Amendment 23 will replace the current HCR with two new HCRs. The first will limit total fishery exploitation rates (ERs) on each of five individual representative population units within the SONCC coho salmon ESU to 15 percent annually, except for the Trinity River population (represented by the Upper Trinity River, Lower Trinity River, and South Fork Trinity River populations). The second HCR will limit the total ER on the Trinity River population unit to 16 percent. Both HCRs account for all ocean and inland sources of fishery mortality annually and include landed and non-landed mortality of age-3 adult SONCC coho salmon.

During its annual salmon preseason planning process for developing recommended annual management measures governing ocean salmon fisheries, the Council will evaluate ocean salmon fisheries using the coho salmon Fishery Regulation Assessment Model (FRAM) so that, when combined with estimated freshwater impacts, the preseason projected total ERs will not exceed the adopted HCRs. The estimated freshwater impacts will be determined using projections provided by co-managing agencies ( i.e., the Oregon Department of Fish and Wildlife, Yurok Tribe, Hoopa Valley Tribe, or California Department of Fish and Wildlife). Postseason ERs will be estimated for each year once postseason harvest and abundance estimates become available. Coho salmon-directed salmon fisheries and retention of coho salmon in Chinook salmon-directed salmon fisheries will remain prohibited in the EEZ seaward of California. Annual salmon management measures implemented consistent with Amendment 23 will be applied in concert with measures designed to meet other requirements of the FMP including conservation objectives and annual catch limits for specific salmon stocks and stock complexes.

NMFS received four comments during the public comment period. Three comments were from private citizens and the fourth comment was a letter from the United States (U.S.) Environmental Protection Agency (EPA). One comment from private citizens was in support of Amendment 23 and two comments were not relevant to the scope of Amendment 23. The EPA specifically addresses the draft EA by providing recommendations for NMFS to clearly document tribal engagement and to clearly describe the final project in the final EA. NMFS incorporated the recommendations from the comments received from the EPA into the final EA.