Background

The Secretary of Agriculture is authorized under the United States Cotton Futures Act (7 U.S.C. 15b) to designate at least five bona fide spot markets from which cotton price information can be collected. A spot market—also called the “cash market” or “physical market”—is a market where commodities are sold on the spot for cash at current market prices and delivered immediately. Updated designations for these bona fide spot markets and the determination of which counties and states compose each of these spot markets were most recently published in the Federal Register on April 30, 2013 (78 FR 25181). For each of these bona fide spot markets, the Agricultural Marketing Service's (AMS) Cotton and Tobacco Program collects market price information under the United States Cotton Futures Act (7 U.S.C. 15b), the Cotton Statistics and Estimates Act (7 U.S.C. 473b) and the Agricultural Marketing Act of 1946 (7 U.S.C. 1622(g)). This price information is then used to calculate price differences for cotton futures contracts.

The Cotton and Tobacco Program (Program) received a request from the American Cotton Shippers Association (ACSA) and the National Cotton Council of America (NCC), to evaluate the structure of the cotton spot markets in East and West Texas, Oklahoma, and Kansas. The Program's analysis of the East Texas/Oklahoma market determined that cotton grown in Oklahoma and Kansas has similar quality characteristics and was traded under the same terms and conditions as West Texas cotton. Further, the analysis showed that there was not any significant difference in the prices reported to Cotton and Tobacco Market News when comparing Oklahoma and Kansas cotton to West Texas cotton. As a result, ACSA and NCC requested that market price data for cotton grown in Oklahoma and Kansas be reassigned from the East Texas/Oklahoma spot market to the West Texas spot market by amending the definitions of cotton spot markets in 7 CFR part 27. Revisions to the regulations concerning bona fide spot market definitions are necessary to assure consistency with the revised Cotton Research and Promotion Act and to allow for published spot quotes to consider spot prices of cotton marketed in Kansas and Oklahoma. Corresponding changes the names of these two spot markets are made to describe the markets more accurately.

A proposed rule concerning this action was published in the Federal Register on March 27, 2023 (88 FR 18076). A copy of the proposed rule was made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending May 26, 2023, was provided for interested persons to respond to the proposal. AMS received a total of seven comments. Six of the seven comments were explicitly supportive of the proposed action and one expressed concern about market concentration within the U.S. cotton industry, which is not relevant to the proposed action. Accordingly, no changes were made to the rule as proposed.

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation would not have substantial and direct effects on Tribal governments and would not have significant Tribal implications.

This proposed rule has been determined to be non-significant for purposes of Executive Order 12866; and, therefore has not been reviewed by the Office of Management and Budget (OMB).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. There are no administrative procedures that must be exhausted prior to any judicial challenge to the provisions of this rule.

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS has considered the economic impact of this action on small entities and has determined that its implementation will not have a significant economic impact on a substantial number of small businesses.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. There are an estimated 25,000 cotton growers in the U.S. who voluntarily use the AMS cotton classing services annually, and the majority of these cotton growers are small businesses under the criteria established by the Small Business Administration (13 CFR 121.201).

Changes in cotton spot market definitions as stated will not significantly affect small businesses as defined in the RFA because:

(1) How spot prices are estimated are not expected to be impacted by this action;

(2) Business practices of the U.S. cotton industry are not expected to change as a result of this action;

(3) Costs associated with providing market news services will not be significantly changed by this action;

(4) Market news services are paid for by appropriated funds; therefore, users are not charged fees for the provision of the services.

In compliance with OMB regulations (5 CFR part 1320), which implement the Paperwork Reduction Act (PRA) (44 U.S.C. 3501), the information collection requirements contained in the provisions amended by this rule have been previously approved by OMB and were assigned OMB control number 0581-0009, Cotton Classification and Market News Service. No changes in these requirements will be necessary as a result of this rule. Should any changes become necessary, they will be submitted to OMB for approval.

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

AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

For the reasons set forth in the preamble, the Agricultural Marketing Service amends 7 CFR part 27 as follows:

Background

The regulations in 9 CFR part 130 (referred to below as the regulations or the user fee regulations) cover user fees to reimburse the U.S. Department of Agriculture's (USDA's) Animal and Plant Health Inspection Service (APHIS) for the costs of providing veterinary diagnostic services and import/export related services for live animals, animal products and byproducts, poultry, birds, germplasm, organisms, and vectors. These user fees are authorized by section 2509(c) of the Food, Agriculture, Conservation, and Trade Act (FACT Act) of 1990, as amended (21 U.S.C. 136a(c)), which provides that the Secretary of Agriculture may, among other things, prescribe regulations and collect fees to recover the costs of providing import/export related services for animals, animal products and byproducts, birds, germplasm, organisms, and vectors, and for veterinary diagnostics relating to the control and eradication of communicable diseases of livestock or poultry within the United States.

Since fiscal year (FY) 1992, APHIS has received no directly appropriated funds to cover the cost of certain veterinary diagnostics or to provide import/export related services for animals, animal products and byproducts, birds, germplasm, organisms, and vectors. Our ability to provide these services depends on user fees. User fees are associated with providing services for live animal, animal product, bird, and germplasm imports and exports and fund, among other things, quarantine services, the processing of import permit applications, port of entry inspections, inspections and approvals of import/export facilities and establishments, endorsements of export certificates, and services related to emergency situations that arise during the export or import process.

On October 3, 2022, we published in the Federal Register (87 FR 59731-59740, Docket No. APHIS-2021-0052) a proposal  1 to amend the regulations concerning user fees that we charge for veterinary diagnostic services and for certain import-related and export-related services for live animals, animal products and byproducts, birds, germplasm, organisms, and vectors. We proposed to remove the tables providing the individual fees from the regulations and post them on an APHIS website.

We proposed that the regulations would instead specify the methodology (formula) used to calculate the fees (including imputed costs), and APHIS would update the fees using a notice-based process. Replacing the current user fee listings with a standardized methodology would increase transparency in the process of setting fee rates, align the regulations with other Departmental practices, and allow us to streamline processes and reduce the number of rules needed to update the fees.

We solicited comments concerning our proposal for 60 days ending December 2, 2022. We received 11 comments on the proposal. They were from stakeholder organizations and the general public.

One commenter, noting that user fees are charged for permit issuance, proposed that we extend the import/export duration for permits to reduce the workload for applicants and the agency. Additionally, the commenter mentioned that there were no details provided regarding the relative cost of a permit versus a renewal or an amendment.

Although permit duration goes beyond the scope of the rule, APHIS may, if warranted, adjust the duration of a permit after analysis of the request; this will depend upon the product and overall risk. Because of the amount of time necessary to complete the work, renewals and amendments of permits currently cost less than new permit issuance, and we anticipate this will continue to be the case under the terms of this rule.

Two commenters raised concerns regarding the potentially burdensome impact of user fees on stakeholders who move and trade livestock and requested that user fees should be updated through a process that notifies them of potential increases well in advance of the actual fee setting and allows for public comment. The commenters stressed the need for such advance notification in order for stakeholders to make informed decisions regarding future business planning and decision making.

The notice-based process established by this rule provides such advance notification and opportunity for comment. As we stated in the proposed rule, if this rule is finalized, we will publish an annual notice proposing the fee rates for the coming year and will provide information regarding the basis for any fee change. This includes changes to the values of component costs. The notice will also afford an opportunity for public comment.

Several commenters stated there was insufficient context to enable users to either understand the values of the component costs or to evaluate the impact of the proposed changes upon users' operations. The commenters suggested the proposed rule should be revised to provide a comparison of historical user fee rates to the new estimated user fees under this methodology for recent years ( e.g., 2018 to 2022).

The specific values of components as they pertain to various fee rates were not included in the proposed rule because this rule does not change the fees, but rather establishes a notice-based process to change the fees. As we stated in the proposed rule and mention immediately above, if this rule is finalized, we will publish an annual notice proposing the fee rates for the coming year and will provide information regarding the basis for any fee change. This includes changes to the values of component costs. The notice will also afford an opportunity for public comment.

Several commenters stated the existing process for calculating commuted travel time as it pertains to user fees should be updated to be more reflective of actual travel time. One of the commenters specifically asked that APHIS evaluate such processes as they pertain to equine import facilities. The commenters also suggested this reevaluation should take into consideration the particular employee's tour of duty hours in calculating fees assessed.

APHIS' regulations regarding Commuted Travel Time are in 9 CFR part 97. As we stated in the proposed rule, we proposed no changes to those regulations. Accordingly, the requested evaluations are outside of the scope of this rule.

Several commenters asked that fee increases be capped annually. One commenter suggested the cap be a 10 percent increase annually.

As noted in the proposed rule, we will make efforts to reduce the likelihood of significant year-over-year increases in the fees. For example, within the reserve component of the fee, at the time annually when we calculate the proposed new fee rates, we will conduct forecasts of the upcoming 5 fiscal years to identify when IT infrastructure and facilities capital needs and investments are likely to be actualized, so that the cost of that expenditure can be prorated based on the estimated date of cost actualization. This forecasting will help ensure that no one fiscal year bears the brunt of a reasonably foreseeable capital cost when it comes to fee setting.

However, there are certain cost components and other factors beyond our control that preclude us from capping the fee increases annually as requested by commenters. For example, as noted in the proposed rule, imputed costs must be included in user fee calculations in order to comply with Office of Management and Budget circular A-25, but these imputed costs are outside of APHIS' control. They are the costs of the U.S. Department of Labor, U.S. Office of Personnel Management, and the U.S. Department of State (State Department) in order to provide retirement, health, life insurance, worker's compensation, legal defense, and other related benefits to the Agency and employees who provide the services covered by the fees. Likewise, for capital expenditures such as those for facility maintenance, fluctuations in the raw price of goods and labor are not within the Agency's control, but we must consider them in fee-setting.

In the proposed rule, we proposed that the user fees for the APHIS Veterinary Services user fee program would have a reserve component. We proposed to define reserve as: “Funds above expected obligations that are required to effectively manage uncertainties in demand and timing to ensure sufficient operating funds in cases of bad debt, customer insolvency, fluctuations in activity volumes, information technology development costs, cash flow, facilities capital needs, or fluctuations in activity volumes caused by unforeseen global and national events.”

We indicated that the reserve would be calculated each year based on the forecasted needs identified during the annual fee setting session by estimating 25 percent or 90 days of annual expenditures for that fiscal year, adding a prorated component of forecasted IT and facilities capital needs and investments, and offsetting that sum by the existing amount in the reserve.

One commenter inquired about the baseline economic level for the user fee reserve to support the user fee system, as well as whether there is a maximum economic reserve level.

The commenter misunderstands the nature of the reserve. APHIS will not calculate the reserve component of the fee in order to ensure that a certain fixed dollar amount is maintained in the reserve year after year. Rather, as noted above, the reserve will be calculated each year based on the forecasted needs identified during the annual fee setting session by estimating 25 percent or 90 days of annual expenditures for that fiscal year, adding a prorated component of forecasted IT and facilities capital needs and investments, and offsetting that sum by the existing amount in the reserve. Thus, projected costs and the existing amount in the reserve will determine the reserve component requirements in any particular year.

The same commenter requested assurances that user fees reserve funds are solely used for the APHIS Veterinary Services user fee program.

Cross-subsidization is prohibited by the FACT Act. As a result, APHIS does not use these user fees for any purpose other than the APHIS Veterinary Services user fees program.

A commenter asked for timelines regarding how long the notice-based process will take in order to adjust fees.

While this will vary depending on the nature and number of comments received, it is the Agency's intent, as stated in the proposed rule, to issue initial and second notices adjusting the fees on an annual basis.

In the proposed rule, we indicated that removal of the specific tables of user fees from the regulations in favor of listing them online necessitated reorganization of the entirety of part 130. This was because many of the sections in the part were tables that we were proposing to remove. For those provisions that we elected to retain, we indicated that the information presented would remain the same, although the streamlining did reorganize it. In the regulatory text in the proposed rule, for ease of readability, we laid out the entirety of the revised part 130.

One commenter requested clarity regarding proposed § 130.4, “Hourly rate and minimum fees.” Although we did not propose to change any of the information regarding hourly rates and minimum fees previously found in the regulations, the commenter nonetheless pointed to an apparent discrepancy between paragraphs (a)(2), (15), and (17), regarding pet food facilities engaged in testing and export services. Paragraph (a)(2) stated that an hourly rate “does not apply to inspection and approval of import/export facilities and establishments.” The commenter read that to suggest that APHIS would not charge an hourly rate for inspection of such facilities. The commenter read paragraphs (a)(15) and (17), which contained provisions relative to the export-related inspection of pet food facilities and export-related inspection of various other facilities, respectively, to indicate we would.

As noted in the introductory text of that section, import- or export-related veterinary services in the paragraphs specified in the section are subject to the hourly rate calculations. Accordingly, the pet food facilities will be charged an hourly rate, as indicated in paragraphs (a)(15) and (17). The statements in paragraph (a)(2) are intended to indicate that paragraph (a)(2) does not pertain to inspection of export facilities. They are not intended to address the section as a whole and the proposed rule did not propose to revise their scope.

Another commenter stated that the rule had economic impacts that were not discussed in the proposed rule, insofar as services charged an hourly rate would be borne by importers.

The comment was outside the scope of this rulemaking because the rule did not revise the list of services subject to an hourly rate, but rather reduplicated the current list for the sake of completeness and readability of the regulatory text.

Two commenters noted that the rule indicated that several services would continue to be charged an hourly rate under the terms of the proposed rule and asked that APHIS develop guidance regarding how long specified services should be expected to take.

The estimated time of service can vary greatly depending on various factors ( e.g., nature of the work, travel time to the facility, facility size, number of animals, etc.). Therefore, providing general, overarching guidance regarding expected times of service is not possible. However, we do provide an estimate based on the statement of work as requested by the facility or by the requester prior to providing services that are charged the hourly rate.

One commenter stated that the fees should not be changed and inquired why user fees are not government-funded activities.

As we stated in the proposed rule, we are not changing the fees, but the methodology used to calculate the fees. The fees themselves are not being changed.

The FACT Act's intent was for import and export activities to be funded through user fees, so the individuals or parties receiving the services are the ones paying for the service. As noted previously in this document, since fiscal year (FY) 1992, and consistent with the intent of the FACT Act, APHIS has received no directly appropriated funds to cover the cost of certain veterinary diagnostics or to provide import/export related services for animals, animal products and byproducts, birds, germplasm, organisms, and vectors. In light of this, in order for us to continue to provide these diagnostics and services, they must be funded by user fees.

Finally, we noticed that 9 CFR part 93 currently has two references (in §§ 93.308(c)(1)(i)(A) and 93.412(d)(1)(i)(A)) to § 130.30. However, due to the revision of part 130 in this rule, § 130.30 no longer exists. Therefore, we are revising the references in those two sections of part 93 to simply refer to part 130.

Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with the changes discussed in this document.

This final rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.

In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is below.

APHIS Veterinary Services (VS) is revising the regulations in 9 CFR part 130 to provide for a set of standardized formulas by which import/export and veterinary diagnostic user fees would be calculated. These regulations will specify the methodology used to calculate and implement the user fees and will remove tables showing specific fees. VS will also post the fee rates on its website and annually issue a notice providing all fees calculated for the upcoming year using formulas contained in the regulations and request public comment.

VS charges user fees to recover the costs of inspection and certification services for imports and exports of live animals and animal products and byproducts and for providing veterinary diagnostic goods and services. VS does not receive appropriated funding to support these activities.

While we do not expect this rule to result in cost savings for affected entities, the methodology will provide a transparent, streamlined approach to user fee calculations. The change to annual fee revisions using formula-based calculations based on previous year costs will enable APHIS to avert potential funding shortfalls. Increased confidence that rate adjustments will closely match revenue requirements would benefit financial planning by both the private sector and the Agency.

The component costs that VS will use to calculate user fee revisions will be the same as at present, with the exception of imputed labor costs, such as:

The user fee rates will also include imputed labor costs to ensure that the full cost of providing user fee services is captured. Imputed labor costs include Department of Labor, Office of Personnel Management, and State Department costs to provide retirement, health, life insurance, and other benefits to employees.

The annual regularity of the proposed VS user fee revisions will be in contrast to current circumstances. At present, VS establishes fees for 5 years at a time through rulemaking, and this process can be lengthy. VS has had to project costs 6 to 7 years into the future, which can result in unforeseen funding needs not being accounted for. For example, VS did not anticipate the high level of technological investment that has been necessary in order to meet the needs of customers.

APHIS' animal health import and export user fees cover significant activities across the country, including at border locations and quarantine facilities. These fees support personnel, brick and mortar facilities, and information technology systems. The veterinary diagnostic user fees support activity at the National Veterinary Services Laboratories facilities in Ames, IA, and Plum Island, NY.

The last rate increase went into effect October 2012 and import/export user fee revenue has been flat, on average, since 2015, at $44 million. Veterinary diagnostic user fee revenue has also been flat at an average of $6 million per year since the last veterinary diagnostic user fee rate increase went into effect October 2011. The cost of providing services has continued to increase.

USDA's Agricultural Marketing Service and Food Safety and Inspection Service have recently implemented noticed-based processes for annual user fee revisions that are very similar to the APHIS process outlined in the proposed rule. The two agencies and their stakeholders have benefited from increased program efficiency and transparency.

A large number of the entities that will benefit from this rule are small. The import/export user fees provide for inspection and other services at the ports or point of entry. Users of these services and products include importers, exporters, non-APHIS veterinarians, commercial laboratories and pharmaceutical manufacturers, State laboratories, universities, and foreign governments.

The Small Business Administration (SBA) has established guidelines for determining which entities are to be considered small. Importers and exporters of live animals are identified within the broader wholesaling trade sector of the U.S. economy. A firm primarily engaged in wholesaling animals or animal products and byproducts is considered small if it employs not more than 100 persons. These entities either sell goods on their own account (import/export merchants) or arrange for the sale of goods owned by others (import/export agents and brokers).

Veterinary testing laboratories are identified within the broader veterinary services trade sector. A firm providing veterinary services is considered small if it generates $6.5 million or less in annual sales. The criterion for a small pharmaceutical manufacturing firm is one with 750 or fewer employees.

The number of entities that use VS diagnostic services and materials and qualify as small by SBA standards has not yet been determined. However, more than 91 percent of the firms in the NAICS Livestock Wholesale category and Other Farm Product Raw Material Wholesale category can be considered small. In addition, more than 99 percent of veterinary services firms (including veterinary diagnostic testing laboratories) are small.

Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.

This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)

This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.

This final rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

Accordingly, we are amending 9 CFR parts 93 and 130 as follows:

I. Background

On November 2, 2015, the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Inflation Adjustment Act), Public Law 114-74, 129 Stat. 584, was enacted. This act amended the Federal Civil Penalties Inflation Adjustment Act of 1990, Public Law 101-410, 104 Stat. 890 (the 1990 Inflation Adjustment Act), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The 2015 Inflation Adjustment Act required agencies to issue a final rule by August 1, 2016, to adjust the level of civil monetary penalties with an initial “catch-up” adjustment and to annually adjust these monetary penalties for inflation by January 15 of each subsequent year.

Based on the definition of a “civil monetary penalty” in the 1990 Inflation Adjustment Act, agencies are to make adjustments only to the civil penalties that (i) are for a specific monetary amount as provided by Federal law or have a maximum amount provided for by Federal law; (ii) are assessed or enforced by an agency; and (iii) are enforced or assessed in an administrative proceeding or a civil action in the Federal courts. Therefore, penalties that are stated as a percentage of an indeterminate amount or as a function of a violation (penalties that encompass actual damages incurred) are not to be adjusted.

SBA published in the Federal Register an interim final rule with its initial adjustments to the civil monetary penalties, including an initial “catch-up” adjustment, on May 19, 2016, (81 FR 31489) with an effective date of August 1, 2016. SBA published its first annual adjustments to the monetary penalties on February 9, 2017 (82 FR 9967), with an immediate effective date. SBA published its subsequent annual adjustments for 2018 on February 21, 2018 (83 FR 7361), for 2019 on April 1, 2019 (84 FR 12059), for 2020 on March 10, 2020 (85 FR 13725), for 2021 on September 24, 2021 (86 FR 52955), and on May 11, 2022 (87 FR 28756), all with immediate effective dates. This rule will establish the adjusted penalty amounts for 2023 with an immediate effective date upon publication.

On December 15, 2022, the Office of Management and Budget (OMB) published its annual guidance memorandum for 2023 civil monetary penalties inflation adjustments (M-23-05, Implementation of Penalty Inflation Adjustments for 2023, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). The memorandum provides the formula for calculating the annual adjustments based on the Consumer Price Index for all Urban Consumers (CPI-U) for the month of October preceding the adjustment, and specifically on the change between the October CPI-U preceding the date of adjustment and the prior year's CPI-U. Based on this methodology, the 2023 civil monetary penalty inflation adjustment factor is 1.07745 (October 2022 CPI-U (298.012)/October 2021 CPI-U (276.589). The annual adjustment amounts identified in this rule were obtained by applying this multiplier of 1.07745 to those penalty amounts that were published in SBA's 2022 adjustments to civil monetary penalties at 87 FR 28756 (May 11, 2022).

This rule adjusts civil monetary penalties authorized by the Small Business Act, the Small Business Investment Act of 1958 (SBI Act), the Program Fraud Civil Remedies Act, and the Byrd Amendment to the Federal Regulation of Lobbying Act. These penalties and the implementing regulations are discussed below.

SBA licenses, regulates, and provides financial assistance to financial entities called small business investment companies (SBICs). Pursuant to section 315 of the SBI Act, 15 U.S.C. 687g, SBA may impose a penalty on any SBIC for each day that it fails to comply with SBA's regulations or directives governing the filing of regular or special reports. The penalty for non-compliance is incorporated in § 107.665 of the SBIC program regulations.

This rule amends § 107.665 to adjust the current civil penalty from $291 to $314 per day of failure to file. The current civil penalty of $291 was multiplied by the multiplier of 1.07745 to reach a product of $314, rounded to the nearest dollar.

According to the regulations at § 120.465, any SBA Supervised Lender, as defined in 13 CFR 120.10, that violates a regulation or written directive issued by the SBA Administrator regarding the filing of any regular or special report is subject to the civil penalty amount stated in § 120.465(b) for each day the company fails to file the report, unless the SBA Supervised Lender can show that there is reasonable cause for its failure to file. This penalty is authorized by section 23(j)(1) of the Small Business Act, 15 U.S.C. 650(j)(1).

This rule amends § 120.465(b) to adjust the current civil penalty to $7,805 per day of failure to file from $7,244 per day of failure to file. The current civil penalty of $7,244 was multiplied by the multiplier of 1.07745 to reach a product of $7,805, rounded to the nearest dollar.

According to the regulations at § 120.1500(b), SBA may assess a civil monetary penalty against a 7(a) Lender. In determining whether to assess a civil monetary penalty and, if so, in what amount, SBA may consider: the gravity ( e.g., severity and frequency) of the violation; the history of previous violations; the financial resources and good faith of the 7(a) Lender; and any other matters as justice may require. This penalty is authorized by the Small Business Act, 15 U.S.C. 657t(e)(2)(B).

This rule amends § 120.1500(b)(2) to adjust the current civil penalty from $268,694 to $289,504. The current civil penalty of $268,694 was multiplied by the multiplier of 1.07745 to reach a product of $289,504, rounded to the nearest dollar.

SBA has promulgated regulations at 13 CFR part 142 to implement the civil penalties authorized by the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-3812. Under the current regulation at 13 CFR 142.1(b), a person who submits, or causes to be submitted, a false claim or a false statement to SBA is subject to a civil penalty of not more than $12,537, for each statement or claim.

This rule amends § 142.1(b) to adjust the current civil penalty from $12,537 to $13,508. The adjusted civil penalty amount was calculated by multiplying the current civil penalty of $12,537 by the multiplier of 1.07745 to reach a product of $13,508, rounded to the nearest dollar.

SBA's regulations at 13 CFR part 146 govern lobbying activities by recipients of Federal financial assistance. These regulations implement the authority in 31 U.S.C. 1352 and impose penalties on any recipient that fails to comply with certain requirements in the part. Specifically, under § 146.400(a) and (b), penalties may be imposed on those who make prohibited expenditures or fail to file the required disclosure forms or to amend such forms, if necessary.

This rule amends § 146.400(a) and (b) to adjust the current civil penalty amounts to “not less than $23,727 and not more than $237,268.” The current civil penalty amounts of $22,021 and $220,213 were multiplied by the multiplier of 1.07745 to reach a product of $23,727 and $237,268, respectively, rounded to the nearest dollar.

This rule also amends § 146.400(e) to adjust the civil penalty that may be imposed for a first-time violation of § 146.400(a) and (b) to $23,727 and to adjust the civil penalty that may be imposed for second and subsequent offenses to “not less than $23,727 and not more than $237,268.” The current civil penalty amounts of $22,021 and $220,213 were multiplied by the multiplier of 1.077455 to reach a product of $23,727 and $237,268, respectively, rounded to the nearest dollar.

The Office of Management and Budget has determined that this final rule is not a significant regulatory action under Executive Order 12866.

This action meets applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

For the purpose of Executive Order 13132, SBA determined that the rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, this final rule has no federalism implications warranting preparation of a federalism assessment.

The APA requires agencies generally to provide notice and an opportunity for public comment before adopting a rule unless the agency for good cause finds that notice and comment are impracticable, unnecessary, or contrary to the public interest. 5 U.S.C. 553(b). The APA also requires agencies to allow at least 30 days after publication for a final rule to become effective “except as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d). For the following reasons prior public notice, an opportunity for public comment, and a delayed effective date are not required for this rule. The 2015 Inflation Adjustment Act directs agencies to adjust their civil penalties annually notwithstanding section 553 of the APA. 28 U.S.C. 2461 note, sec. 4(b)(2).

This exemption from the notice and comment, and delayed effective date requirements of the APA, in effect provides SBA with the good cause justification to promulgate this as a final rule that will become effective immediately on the date it is published in the Federal Register . Additionally, the 2015 Inflation Adjustment Act provides a non-discretionary cost-of-living formula for making the annual adjustment to the civil monetary penalties; SBA merely performs the ministerial task of calculating the amount of the adjustments. Therefore, even without the statutory exemption from the APA, notice and comment would be unnecessary.

The Office of Management and Budget determined that this rule is not a major rule under 5 U.S.C. 804(2).

SBA has determined that this rule does not impose additional reporting or recordkeeping requirements.

The Regulatory Flexibility Act (RFA) requires agencies to consider the effect of their regulatory actions on small entities, including small non-profit businesses, and small local governments. Pursuant to the RFA, when an agency issues a rule, the agency must prepare an analysis that describes whether the impact of the rule will have a significant economic impact on a substantial number of such small entities. However, the RFA requires such analysis only where notice and comment rulemaking are required. As stated above, SBA has express statutory authority to issue this rule without regard to the notice and comment requirement of the APA. Since notice and comment is not required before this rule is issued, SBA is not required to prepare a regulatory analysis.

For the reasons set forth in the preamble, SBA amends 13 CFR parts 107, 120, 142, and 146 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2020-20-05, Amendment 39-21261 (85 FR 65197, October 15, 2020) (AD 2020-20-05), and AD 2022-09-16, Amendment 39-22036 (87 FR 31943, May 26, 2022) (AD 2022-09-16). AD 2020-20-05 and AD 2022-09-16 applied to certain Model A318-111, -112, -121, and -122 airplanes; Model A319-111, -112, -113, -114, -115, -131, -132, -133, -151N, and -153N airplanes; Model A320-211, -212, -214, -216, -231, -232, -233, -251N, -252N, -253N, -271N, -272N, and -273N airplanes; and Model -111, -112, -131, -211, -212, -213, -231, -232, -251N, -251NX, -252N, -252NX, -253N, -253NX, -271N, -271NX, -272N, and -272NX airplanes. AD 2020-20-05 and AD 2022-09-16 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2020-20-05 and AD 2022-09-16 to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.

The NPRM published in the Federal Register on October 20, 2022 (87 FR 63712). The NPRM was prompted by AD 2022-0085, dated May 12, 2022, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0085) (also referred to as the MCAI). The MCAI states that new and/or more restrictive maintenance tasks have been published.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2022-1296.

In the NPRM, the FAA proposed to continue to require the actions in AD 2022-09-16 and require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2022-0085. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2021-0140.

The FAA issued a supplemental notice of proposed rulemaking (SNPRM) to amend 14 CFR part 39 to supersede AD 2020-20-05 and AD 2022-09-16. The SNPRM published in the Federal Register on March 23, 2023 (88 FR 17429) (the SNPRM). The SNPRM was prompted by a determination that new or more restrictive airworthiness limitations are necessary. In the SNPRM, the FAA proposed to continue to require the actions in AD 2022-09-16 and require revising the existing maintenance or inspection program, as applicable, to incorporate additional new or more restrictive airworthiness limitations, as specified in EASA AD 2022-0085. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2021-0140. The FAA is issuing this AD to address fatigue cracking, accidental damage, or corrosion in principal structural elements, which could result in reduced structural integrity of the airplane.

The FAA received a comment from Air Line Pilots Association, International (ALPA), who supported the SNPRM without change.

The FAA received an additional comment from United Airlines. The following presents the comment received on the SNPRM and the FAA's response.

United Airlines requested that the FAA allow Airbus-issued ASACs as acceptable means of compliance when they support extensions to the compliance time of specified airworthiness limitation section (ALS) part 2 tasks.

The FAA has determined that the requested change is unnecessary because the provisions of paragraph (r)(2) permit means of compliance approved by Airbus SAS's EASA Design Organization Approval (DOA), provided that the approval includes the DOA-authorized signature. This AD has not been changed with regard to this request.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the SNPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed EASA AD 2022-0085 and EASA AD 2023-0008. This service information specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits. These documents are distinct since one includes all damage tolerant airworthiness limitations items and the other revises certain damage tolerant airworthiness limitation items.

This AD would also require EASA AD 2021-0140, which the Director of the Federal Register approved for incorporation by reference as of June 30, 2022 (87 FR 31943, May 26, 2022).

This AD would also require EASA AD 2020-0036R1, which the Director of the Federal Register approved for incorporation by reference as of November 19, 2020 (85 FR 65197, October 15, 2020).

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 1,864 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2020-20-05 and AD 2022-09-16 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate. The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A350-941 and -1041 airplanes. The NPRM published in the Federal Register on March 30, 2023 (88 FR 19021). The NPRM was prompted by AD 2022-0217R1, dated March 1, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2022-0217R1) (also referred to as the MCAI). The MCAI states Airbus received reports from the manufacturer of a non-full life clearance in the low-pressure hydraulic pipes of the nose landing gear return line, due to two separate quality escapes. One quality escape occurred after alodine process application on aluminum pipes, when black spots and stains caused by corrosion pitting were found on inner and outer diameters. In a second quality escape, aluminum pipes were identified with an average ovality value (which measures the maximum and minimum outer diameter of the pipe) above the admissible value. This condition, if not corrected, could lead to a premature rupture in the yellow hydraulic line, which, in case of additional independent system failures, could result in reduced airplane controllability.

In the NPRM, the FAA proposed to require replacing the affected aluminum pipes with titanium pipes, as specified in EASA AD 2022-0217R1. The NPRM also proposed to prohibit the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products. You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-0656.

The FAA received comments from an individual and Air Line Pilots Association, International (ALPA) who supported the NPRM without change.

The FAA received an additional comment from Delta Air Lines (Delta). The following presents the comment received on the NPRM and the FAA's response to the comment.

Delta requested a change to the compliance time for airplanes having an affected part listed in the A350-941 Service Bulletin A350-29-P020, dated July 28, 2022, modification of low pressure tubes S11-12, from before exceeding 6 years since airplane date of manufacture, or within 10 months after the effective date of this revised [EASA] AD to 7,600 flight cycles. Delta expressed Airbus Engineering has determined the impacted pipes, based on test results and analytical calculation, have a maximum life limitation of 7,600 flight cycles. Delta stated that Airbus developed a compliance time to ensure the affected parts were replaced at their 6 year check. However, due to a materials shortage, some affected aircraft did not embody Service Bulletin A350-29-P020, dated July 28, 2022, at their 6 year check and instead, would need to use the 10 months after the effective date timeline. Delta expressed that 10 months after the effective date would likely not align with a required aircraft check and does not follow the Airbus calculated flight-cycle limit. Therefore, Delta stated that a flight-cycle limit of 7,600 flight cycles should either replace the calendar-driven compliance time; or for affected aircraft that already completed the 6 year check the compliance time should be 7,600 flight cycles since date of manufacture.

The FAA considered the recommendations of the manufacturer, the availability of parts and the safety implications, and determined that accomplishing the applicable action prior to the accumulation of 7,000 total flight cycles, will provide an adequate level of safety. The FAA determined that 7,000 flight cycles is more appropriate than 7,600 flight cycles based on an average fleet usage of 600 to 700 flight cycles a year; this revised compliance time will ensure the unsafe condition is addressed in a timely manner. The FAA has changed this AD to include an additional exception to the EASA AD that will allow for accomplishing the actions at the latest of before exceeding 6 years since airplane date of manufacture, within 10 months after the effective date of this AD or prior to the accumulation of 7,000 flight cycles.

This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

EASA AD 2022-0217R1 specifies procedures for replacing the affected aluminum pipes with titanium pipes. EASA AD 2022-0217R1 also prohibits the installation of affected parts.

This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 24 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2022-04-09, Amendment 39-21951 (87 FR 10958, February 28, 2022) (AD 2022-04-09). AD 2022-04-09 applied to certain AVOX Systems Inc. (formerly Scott Aviation) oxygen cylinder and valve assemblies, and oxygen valve assemblies, installed on but not limited to various transport airplanes. AD 2022-04-09 was prompted by reports of cylinder and valve assemblies having oxygen leakage from the valve assembly vent hole, caused by the absence of a guide that maintains appropriate spacing between certain parts. The NPRM published in the Federal Register on January 27, 2023 (88 FR 5278). The NPRM was prompted by a determination that additional assemblies and parts are affected by the unsafe condition. In the NPRM, the FAA proposed to continue to require an inspection of the oxygen valve assemblies, and oxygen cylinder and valve assemblies, to determine the serial number of the valve, cylinder, and entire assembly. For assemblies and parts with certain serial numbers, the FAA also proposed to continue to require a detailed inspection for correct spacing of the gap between the bottom of the packing retainer and top of the valve body on the assemblies, and replacement of assemblies having unacceptable gaps. The NPRM also proposed to limit the installation of affected parts under certain conditions and reporting inspection results and returning certain assemblies to the manufacturer. The FAA is issuing this AD to address oxygen leakage from the cylinder and valve assemblies, which could result in decreased or insufficient oxygen supply during a depressurization event; and heating or flow friction, which could cause an ignition event in the valve assembly.

The FAA received comments from four commenters, including Atlas Air, Aviation Partners Boeing, FlyPersia Airlines, and SIA Engineering. The following presents the comments received on the NPRM and the FAA's response to each comment.

Aviation Partners Boeing stated that the installation of winglets per Supplemental Type Certificate (STC) ST00830SE, STC ST01219SE, STC ST01518SE, and STC ST01920SE does not affect the accomplishment of the manufacturer's service instructions.

The FAA agrees with the commenter that STC ST00830SE, STC ST01219SE, STC ST01518SE, and STC ST01920SE do not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST00830SE, STC ST01219SE, STC ST01518SE, and STC ST01920SE do not affect the ability to accomplish the actions required by this AD. The FAA has not changed this AD in this regard.

FlyPersia Airlines requested that paragraph (c)(12) of the proposed AD be changed to “The Boeing Company Airplanes.” The commenter asserted that some of the affected oxygen cylinder and valve assemblies may be installed on other Boeing airplanes.

The FAA does not agree with the change requested. The applicability of this AD includes the airplane models that are known to be affected. However, as stated in paragraph (c) of this AD, the affected oxygen cylinder and valve assemblies might be installed on, but are not limited to, the aircraft identified in paragraphs (c)(1) through (12) of this AD, certificated in any category. This AD has not been changed in regard to this request.

SIA Engineering requested clarification on whether Boeing Model 737-8 airplane, Manufacturer Serial Number (MSN) 44257, is in compliance with the proposed AD. The commenter declared that the airplane was delivered in May of 2022 and was in compliance with AD 2022-04-09. The commenter also pointed out that the proposed AD provided credit for the service information that was required by AD 2022-04-09 and asked if credit may be taken for airplanes that have complied with AD 2022-04-09 and reported the results as required by that AD.

The FAA agrees to clarify. An airplane without a part identified in paragraph (c) of this AD is not affected by this AD. However, an airplane delivered without an affected part, but on which the part was later replaced with an affected part (one identified in paragraph (c) of this AD) is affected by this AD and must comply with this AD; this includes complying with the revised parts installation prohibition specified in paragraph (k) of this AD.

Atlas Air and SIA Engineering noted a typographical error in the regulatory text of the proposed AD. The commenters pointed out that the paragraph designation of the Parts Installation Limitation paragraph should have been designated as paragraph (k) of the proposed AD.

The FAA agrees and has redesignated that paragraph, and subsequent paragraphs, accordingly.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed the following service information, which describes procedures for an inspection to determine the serial numbers of the oxygen cylinder and valve assemblies, and the oxygen valve assemblies, a detailed inspection for correct spacing of the gap between the bottom of the packing retainer and top of the valve body on the assemblies, parts marking, inspection report, and return of parts to the manufacturer. These documents are distinct since they apply to different assembly part numbers.

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-01, Revision 03, dated June 7, 2021.

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-02, Revision 03, dated March 11, 2022.

• AVOX Systems Inc. Alert Service Bulletin 10015804-35-03, Revision 03, dated June 18, 2021.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA estimates that this AD affects 3,034 oxygen cylinder and valve assemblies, and oxygen valve assemblies, installed on various transport category airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary follow-on actions that would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these actions:

The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.

A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a currently valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to take approximately 1 hour per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. All responses to this collection of information are mandatory. Send comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Information Collection Clearance Officer, Federal Aviation Administration, 10101 Hillwood Parkway, Fort Worth, TX 76177-1524.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 767 airplanes. The NPRM published in the Federal Register on April 25, 2022 (87 FR 24276). The NPRM was prompted by reports of inoperative manual and alternate horizontal stabilizer trim switches, as a result of blocked drain holes in the area aft of body station (STA) 1725.5, which caused water to accumulate and eventually submerge the three LSPTMs, affecting their function. In the NPRM, the FAA proposed to require repetitive inspections for immersion of each LSPTM and of the LSPTM electrical wiring, repetitive inspections for blockage of the drain holes and cleaning of each drain hole, repetitive inspections for loose or cracked leveling compound, and applicable on-condition actions. For certain airplanes, the FAA proposed to also require installing two new drain holes, performing repetitive inspections for blockage of the drain holes and cleaning each drain hole, and applicable on-condition actions. The FAA is issuing this AD to address collected water or ice that could damage the LSPTMs and cause stabilizer trim position sensors to generate corrupt or erroneous signals to the flight crew. This condition, if not addressed, could result in misleading or confusing flight deck indications, a high speed overrun during takeoff, or a low altitude stall immediately after takeoff.

The FAA received comments from The Air Line Pilots Association, International (ALPA), United Airlines, and an individual who supported the NPRM without change.

The FAA received additional comments from four commenters, including UPS, FedEx, Delta Air Lines (Delta), and Aviation Partners Boeing (APB). The following presents the comments received on the NPRM and the FAA's response to each comment.

APB stated that the installation of winglets per Supplemental Type Certificate (STC) ST01920SE does not affect the accomplishment of the manufacturer's service instructions.

The FAA agrees with the commenter that STC ST01920SE does not affect the accomplishment of the manufacturer's service instructions. Therefore, the installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. The FAA has not changed this AD in this regard.

FedEx requested that the repetitive interval for the inspections specified in Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, be revised from 90 days to 225 days. FedEx noted that, in anticipation of an AD, it had begun inspecting all Model 767-300F aircraft at 90 day intervals, but could not maintain that schedule, and even a 120 day inspection interval was challenging to comply with. FedEx added that, during those initial inspections, it found only one aircraft with a clogged drain hole and no evidence of water pooling, damaged leveling compound, or damaged LSPTMs in its fleet. Based on those findings, FedEx stated that it had revised its inspection intervals to 450 flight cycles (the equivalent of 225 days). FedEx noted that if the FAA mandates a 90 day repetitive interval, it will be forced to ground aircraft. FedEx concluded that a 225 day inspection interval would eliminate undue burden on operators while maintaining an acceptable level of safety.

The FAA partially agrees with the commenter's request. Based on the FAA's risk assessment, the FAA has determined that a 225 day interval, which equates to approximately 3 inspections during the 24 month interval before the new drain holes must be added, is not adequate to address the unsafe condition because the inspections would not be frequent enough. However, the FAA has determined that extending the interval to 150 days, which equates to approximately 5 inspections during the 24 month interval before the new drain holes must be added, provides an adequate level of safety. The FAA has added paragraph (h)(4) of this AD to specify the 150 day inspection interval.

Delta requested that paragraph (h)(3) of the proposed AD be revised to clarify the intent. Delta claimed the wording is very confusing and initially lead it to believe that both service bulletins, Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, and Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, must be accomplished in 90 days. Delta added that it understands the intent of paragraph (h)(3) of the proposed AD is to address a discrepancy where Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, Action 1, gives a compliance time of 24 months to do Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, which in turn has an initial compliance time of 90 days. Delta suggested that paragraph (h)(3) could be clarified to specify the compliance times for each referenced bulletin.

The FAA agrees with the commenter's request. The FAA has revised paragraph (h)(3) of this AD to clarify that although Action 1 in Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, specifies to accomplish the actions in Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, within 24 months after the date of issuance of the original airworthiness certificate or original export certificate of airworthiness, or within 24 months after the original issue date of Boeing Alert Requirements Bulletin 767-27A0243 RB, whichever occurs later; Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, contains the applicable compliance times for accomplishing the actions specified in Action1. The applicable compliance times for all other actions in Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, is at the times specified in Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, except as specified in paragraph (h)(1) of this AD.

FedEx requested that the FAA delay issuance of a final rule until parts are available from Boeing. FedEx noted that it is planning to modify its aircraft as soon as possible, which would allow it to stop the repetitive inspections. However, FedEx stated that it has been trying unsuccessfully to order the necessary parts from Boeing since August, 2021. FedEx added that it was told the delivery schedule was “to be determined,” causing it to miss many scheduled aircraft checks.

The FAA disagrees with the commenter's request. The FAA notes that this AD requires repetitive inspections until the terminating modification is accomplished, so delaying issuance of this AD would also delay those vital inspections. Additionally, the FAA has confirmed with the manufacturer that adequate parts will be available to comply with this AD in the required compliance time. This AD has not been changed regarding this issue.

FedEx requested that the FAA revise Note 1 to paragraph (g)(1) and Note 2 to paragraph (g)(2). FedEx requested revised wording to ensure that the new AD would not require the service information referenced in those notes.

The FAA agrees to clarify. The wording in the notes is intended to inform operators that the service information specified contains additional guidance for accomplishing the required actions. The service information referenced in the notes is not mandated by this AD, and operators are not required to use it. This AD has not been changed regarding this issue.

Delta requested that the proposed AD be revised to allow operators to skip certain close access steps. Delta stated that certain conditions in Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021; and Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021, include reference to close access or open access steps. Delta added that, based on how an operator would perform the steps, it doesn't make sense to close access when finishing the actions in one table, only to have to open access to begin work on the actions in the next table. Delta noted that some close access steps in Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, include a flagnote allowing operators to skip the close access steps if additional work is required. Delta concluded that the flagnote should have been included for close access steps throughout Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021; and Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021.

The FAA agrees to clarify. The close access steps are not listed in the “Action” or “Method of Compliance” columns in the referenced service information. Instead, the close access steps are in a “Refer to” column, which is for reference only; the procedures within that column are not required by this AD and are for guidance only. Therefore, operators may deviate from those steps using accepted procedures. Acceptable deviations include not performing close access steps until all applicable actions are completed. This AD has not been changed regarding this issue.

UPS requested that the proposed AD be revised to not require the actions specified in paragraph (g)(2) of the proposed AD. UPS stated that it understands that accomplishment of the repetitive inspections at the shorter interval specified in Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, is an acceptable means to detect and prevent the accumulation of water and ice in the area of the LSPTMs. UPS suggested that these frequent inspections provide an equivalent level of safety as adding new drain holes and inspections with a longer inspection interval. Therefore, UPS requested that the actions in paragraph (g)(2) of the proposed AD be made optional and terminate the actions in paragraph (g)(1) of the proposed AD if accomplished.

The FAA disagrees with the commenter's request. The addition of the two drain holes will create a configuration where multiple unique blockage events must occur before the accumulation of water or ice can happen. The FAA has therefore determined that the addition of drain holes, combined with the repetitive inspections, cleaning, and on-condition actions, is the best method to address the unsafe condition. However, under the provisions specified in paragraph (i) of this AD, the FAA will consider requests for alternative methods of compliance (AMOCs). This AD has not been changed regarding this issue.

The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.

The FAA reviewed Boeing Alert Requirements Bulletin 767-27A0240 RB, dated January 19, 2021, which specifies procedures for repetitive general visual inspections (GVIs) for immersion in water or ice of each LSPTM and of the LSPTM electrical wiring, repetitive GVIs for blockage of the three drain holes and cleaning of each drain hole, repetitive GVIs for loose or cracked leveling compound, and applicable on-condition actions. On-condition actions include removing any water or ice, doing a detailed inspection for damage (corrosion or water damage) of any immersed LSPTM or LSPTM electrical wiring, installing a serviceable LSPTM, repairing or replacing any damaged LSPTM electrical wiring, clearing any drain hole blockages, and repairing any loose or cracked leveling compound.

The FAA also reviewed Boeing Alert Requirements Bulletin 767-27A0243 RB, dated May 28, 2021. This service information specifies procedures for installing two new drain holes, performing repetitive GVIs for blockage of the five drain holes and cleaning each drain hole, and applicable on-condition actions. On-condition actions include clearing any drain hole blockages.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 613 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the following costs to do any necessary inspections that would be required based on the results of the inspection. The agency has no way of determining the number of aircraft that might need these inspections:

The FAA has received no definitive data on which to base the cost estimates for the other on-condition actions specified in this AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. 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.

The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: General requirements. Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

This AD will not have federalism implications under Executive Order 13132. This AD will not have 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.

For the reasons discussed above, I certify that this AD:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Will not affect intrastate aviation in Alaska, and

(3) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it expands the availability of RNAV in Alaska and improve the efficient flow of air traffic within the National Airspace System by lessening the dependency on ground-based navigation.

The FAA published a NPRM for Docket No. FAA-2022-0244 in the Federal Register (87 FR 16679; March 24, 2022), establishing RNAV T-route, T-380, in the vicinity of Emmonak, AK in support of a large and comprehensive T-route modernization project for the state of Alaska. Interested parties were invited to participate in this rulemaking effort by submitting comments on the proposal. No comments were received.

United States Area Navigation routes are published in paragraph 2006 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11G, dated August 19, 2022, and effective September 15, 2022. FAA Order JO 7400.11G is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11G 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 establishing RNAV route T-380 in the vicinity of Emmonak, AK in support of a large and comprehensive T-route modernization project in the state of Alaska.

The new route is described below.

T-380: T-380 extends from the Emmonak, AK, (ENM) Very High Frequency (VHF) Omnidirectional Range/Distance Measuring Equipment (VOR/DME) to the Sparrevohn, AK (SQA), VOR/DME, due to the decommissioning of the St. Mary's, (SMA) AK, the Aniak, (ANI) AK, and the Cairn Mountain, (CRN) AK, Non-directional Radio Beacons (NDB).

The full description of T-380 is listed in the amendments to part 71 set forth below. This action is necessary to support T-route modernization project for the state of Alaska.

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 airspace action of establishing RNAV route T-380 in the vicinity of Emmonak, AK qualifies for categorical exclusion under the National Environmental Policy Act (42 U.S.C. 4321 et seq. ) and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points), and paragraph 5-6.5i, which categorically excludes from further environmental review the establishment of new or revised air traffic control procedures conducted at 3,000 feet or more above ground level (AGL); procedures conducted below 3,000 feet AGL that do not cause traffic to be routinely routed over noise sensitive areas; modifications to currently approved procedures conducted below 3,000 feet AGL that do not significantly increase noise over noise sensitive areas; and increases in minimum altitudes and landing minima. As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. Accordingly, the FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

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

1. Purpose of Regulatory Action

The Department is committed to ensuring that our air transportation system is safe and accessible for all. This includes taking necessary action to remove transportation barriers that exist for individuals with disabilities. Like all individuals, those with disabilities rely on transportation for all aspects of their lives. Transportation connects individuals to family and friends, to jobs and to vital services, and it opens the door to opportunity.

While accessible lavatories have been required on twin-aisle aircraft for decades, until now, there has been no requirement that airlines provide accessible lavatories on single-aisle aircraft. However, single-aisle aircraft are increasingly used by airlines for long-haul flights because the fuel efficiency and range of the aircraft have improved. The percentage of flights between 1,500 and 3,000 miles flown by single-aisle aircraft increased from less than 40 percent in 1991 to 86 percent in 2021. 1 These flights can last four or more hours.

The inability to safely access and use the lavatory on long flights can impact the dignity of passengers with disabilities and deter them from traveling by air, limiting their independence and freedom to travel. This final rule addresses a human rights issue and promotes freedom to travel for people with disabilities. It is an unfortunate reality that today, many air travelers with disabilities, knowing that they will not be able to use the lavatory during a flight, may dehydrate themselves or even withhold bodily functions so that they do not need to urinate. These actions can cause adverse health effects, including increased chances of urinary tract infections. Other passengers may use adult diapers or catheters, which they may find degrading and uncomfortable. Some wheelchair users avoid flying altogether. For example, a recent survey conducted by Paralyzed Veterans of America (PVA) and 11 other veterans' and disability advocacy organizations found that 56% of respondents reported that inaccessible lavatories were reason enough to choose not to fly unless absolutely necessary. 2 These are conditions that passengers without disabilities would justifiably consider intolerable.

Regulation is necessary because the private marketplace has not met this basic need for accessible lavatories. While a relatively small number of single-aisle aircraft do have lavatories that approximate the size and functionality of accessible twin-aisle aircraft lavatories, the vast majority of aircraft lavatories are too small to accommodate on-board wheelchairs or attendants. While accessible lavatory options do exist in the marketplace, airlines have largely chosen to forgo them in favor of an additional row of seats or extra galley space. Existing lavatories often lack accessible features and a safe and reliable means of accessing those lavatories using an on-board wheelchair. Information regarding the accessible features of lavatories is difficult to obtain.

We expect this rule to directly benefit millions of individuals with mobility impairments who cannot independently access the lavatory as a result of neuromuscular injury, disease, or weakness. The rule will also benefit individuals with visual or other impairments who can access the lavatory but need accessible features within the lavatory. We also anticipate that the rule will indirectly benefit passengers of size and families with small children.

The Air Carrier Access Act (ACAA), 49 U.S.C. 41705, prohibits discrimination in airline service based on disability. When enacted in 1986, the ACAA applied only to U.S. air carriers. On April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century amended the ACAA to include foreign carriers. The ACAA, while prohibiting discrimination by U.S. and foreign air carriers in air transportation against qualified individuals with disabilities, does not specify how carriers must act to avoid such discrimination. The statute similarly does not specify how the Department should regulate with respect to these issues. In addition to the ACAA, the Department's authority to regulate nondiscrimination in airline service on the basis of disability is based in the Department's rulemaking authority under 49 U.S.C. 40113, which states that the Department may take action that it considers necessary to carry out this part, including prescribing regulations. The Department, through reasonable interpretation of its statutory authority, has issued regulations (at 14 CFR part 382) that require carriers to provide nondiscriminatory service to individuals with disabilities.

In 2016, the Department established the Advisory Committee on Accessible Air Transportation (ACCESS Advisory Committee or Committee) to negotiate and develop proposed regulations on various issues, including accessible lavatories on single-aisle aircraft. 3 The Committee consisted of stakeholders including disability rights advocates, airlines, flight attendants, aircraft manufacturers, and the Department itself. On November 22, 2016, the Committee reached consensus on recommendations for new regulatory proposals to improve the accessibility of lavatories on single-aisle aircraft. 4 The agreement included recommendations for both short-term and long-term accessibility improvements. During the negotiated rulemaking process, the Department indicated that if the stakeholders reached consensus, the Department would act in good faith to propose rules reflecting that consensus.

In June 2019, the Department announced that the most appropriate course of action was to conduct two separate accessible lavatory rulemakings: one for short-term improvements, and one for long-term improvements. On January 2, 2020, the Department published a notice of proposed rulemaking (NPRM) relating to short-term improvements (the Part 1 NPRM). 5 In that rulemaking, the Department proposed improvements to lavatory interiors, additional training and information procedures relating to lavatory accessibility, and improvements to the aircraft's on-board wheelchair (OBW), but without requiring airlines to expand the size of the lavatory itself. The comment period to the Part 1 NPRM closed on March 2, 2020.

On December 16, 2021, the Department and the Architectural Transportation Barriers and Compliance Board (Access Board) held a joint public meeting to gather additional information regarding proposed improvements to the OBW. In connection with this public meeting, the Department reopened the comment period for the Part 1 NPRM from December 16, 2021, to January 17, 2022.

On March 28, 2022, the Department issued an NPRM regarding long-term accessibility improvements that would require airlines to install larger lavatories on certain single-aisle aircraft to permit a qualified individual with a disability to perform a seated independent (unassisted) and dependent (assisted) transfer from an OBW to and from the toilet (the Part 2 NPRM). 6 In that rulemaking, the Department expressed its intention to issue one final rule regarding accessible lavatories that would address the issues in both the Part 1 NPRM and the Part 2 NPRM. The comment period to the Part 2 NPRM closed on May 28, 2022.

The Part 1 NPRM addressed accessibility improvements that could be implemented on a relatively short-term basis that did not involve expanding the size of the lavatory itself. These improvements included accessible lavatory interiors, information and training requirements, and improvements to the aircraft's OBW. In general, the NPRM proposed performance standards rather than design standards. 7 The Department also indicated that it was considering whether to prohibit the floor dimensions (footprint) of lavatories from being further reduced from current measurements, on the ground that further reduction would adversely impact accessibility.

The Department received 336 comments to the Part 1 NPRM during the original comment period (January 2-March 2, 2020). The majority of comments were from individuals. All individual commenters either expressed support for the rule, or expressed the view that lavatories should be larger, or both. Broadly speaking, disability advocates expressed a preference for design standards over performance standards, observing that design standards are used for Amtrak and commuter rail. They supported the proposal that lavatory footprints should not be reduced beyond current measurements. They generally supported the information and training requirements. Airlines supported the Department's proposed improvements to lavatory interiors, including the adoption of performance standards. They also supported the Department's proposals for information, signage, and procedures for disposing of sharps (such as needles and syringes) and bio-waste (defined as any waste containing infectious materials or potentially infectious substances). However, they opposed the Department's OBW proposal in its entirety, arguing that the Department failed to adequately consult with stakeholders and failed to adequately consider safety. They also opposed the position that lavatory footprints must not be reduced from current measurements. Aircraft manufacturers (Airbus and Boeing) generally supported the Part 1 NPRM. Airbus generally commented that the proposals were feasible from an engineering perspective. Boeing supported the Department's view that at least one lavatory should not be reduced from existing measurements and supported the use of performance standards.

As noted above, the Department and the Access Board held a joint public meeting to solicit input from stakeholders regarding OBW standards. 8 The Department indicated that the meeting was intended to satisfy the consultation provisions of the negotiated rulemaking with respect to OBW standards. 9 The Department specifically solicited comment from disability advocates, airlines, and aircraft manufacturers regarding all aspects of OBW design, including but not limited to costs, benefits, safety considerations, and stowage. The Department also made significant efforts to elicit data and comment from OBW manufacturers themselves, with no success; OBW manufacturers did not participate in the meeting or file comments. During the reopened comment period, the Department received a total of 12 comments from individuals and stakeholders. 10 We will discuss the details of this meeting and stakeholder comments in greater detail below.

The Department proposed that grab bars be installed and positioned as required to meet the needs of individuals with disabilities. The proposed rule did not include a specific weight-support minimum threshold ( e.g., 250 pounds). In keeping with the Department's preference for performance standards, we indicated that a specific weight threshold would be unduly prescriptive, and that grab bars must necessarily support significant weight in order to adequately meet the needs of individuals with disabilities. The Department sought comment on whether this general performance standard provides sufficient guidance to airlines and lavatory manufacturers. The Department sought comment on whether a weight-support minimum threshold is necessary, and if so, what that threshold would be. Airlines for America (A4A) and the International Air Transport Association (IATA)  11 supported the proposal and asked the Department to clarify in guidance or in the preamble that airlines may comply with the performance standard by reference to other Federal standards, such as Americans with Disabilities Act (ADA) standards. Boeing supported the Department's use of performance standards throughout the Part 1 NPRM.

Next, the Department proposed that lavatory faucets have controls with tactile information concerning temperature. Alternatively, airlines may comply with this requirement by ensuring that lavatory water temperature is adjusted to eliminate the risk of scalding for all passengers. The proposed rule would also require that automatic or hand-operated faucets shall dispense water for a minimum of five seconds for each application or while the hand is below the faucet. Here, A4A and IATA asked the Department to consider the increased chance of wasted water.

Next, the Department proposed that attendant call buttons and door locks must be accessible to an individual seated in the lavatory. We sought comment on whether to further define “accessible” with respect to call buttons and door locks. For example, we sought comment on whether they should be discernible through the sense of touch and/or through specific means of communication such as braille, or whether airlines should be permitted to develop their own methods of providing accessibility. On this topic, the Consortium for Constituents with Disabilities (CCD)  12 and the Ability Center of Greater Toledo urged the Department to require that buttons and door controls be marked to assist passengers with visual disabilities by using braille, large font, contrasting colors, and embossed symbols.

Next, the Department proposed that lavatory controls and dispensers must be discernible through the sense of touch, and that operable parts of the lavatory must be operable with one hand and not require tight pinching, grasping, or twisting of the wrist. In the preamble to the proposed rule, we noted that such requirements would apply if those accessible operable parts are reasonably available and certificated for the applicable aircraft type. We sought comment on the availability of accessible controls and other lavatory parts that are operable by passengers with disabilities, along with the costs and benefits of requiring such accessible controls. The Ability Center of Greater Toledo indicated that if automatic faucets are not available, lever faucet handles should be used as opposed to knobs so that the faucet is operable with one hand and does not require tight pinching. A4A and IATA urged the Department to state in the regulatory text, rather than the preamble, that such requirements would apply if those accessible operable parts are reasonably available and certificated for the applicable aircraft type. They indicated that they did not want to be in the position of filing “waivers” to establish that such parts are not available.

Next, the Department proposed to require the lavatory door sill to provide minimum obstruction for the passage of an OBW, consistent with applicable safety regulations. The Department recognized that door sills must prevent the spillage of water into the aircraft cabin. The provision was intended to promote accessibility without compromising safety. We sought comment on whether the term “minimum obstruction” should be further defined and if so, what that definition should be. The comments that we received on this issue supported the proposed rule as written.

Next, recognizing that adequate toe clearance is necessary to permit the OBW to maneuver into and out of the lavatory, the Department proposed to require airlines not to reduce toe clearance below the current measurements of the lavatory. The Department sought comment on this proposed provision and on whether the term “toe clearance” should be specifically defined. Here, the Open Doors Organization remarked that toe clearance should be clearly identified, “with minimum measurements determined by industry experts.” Airlines supported the provision as written. Boeing suggested that the rule be amended to provide that “toe clearance must not be reduced from current measurements applicable to the selected lavatory existing design. ” Airbus suggested that “alternatively, toe clearance reduction can be compensated by design measures to achieve equivalent performance by wheelchair users.”

Finally, the Department proposed that airlines must provide a visual barrier, on request, for passengers with disabilities who may require the use of the lavatory but who cannot do so with the door closed. The purpose of the visual barrier is to afford passengers with disabilities a level of privacy equivalent to that afforded to ambulatory users. We sought comment on the means by which this proposed visual barrier may be installed and operated in an efficient and cost-effective manner, consistent with the privacy interests of passengers entering and using the lavatory. One disability advocate (Christopher Wood, of Flying Disabled) remarked that a curtain would be an inappropriate visual barrier, and that the barrier should be rigid and lockable. In contrast, Boeing urged the Department to clarify that an opaque curtain would be a barrier that provides “substantially equivalent” privacy. A4A and IATA commented that the Department should confirm or clarify that the barrier must provide “substantially equivalent” privacy only in the visual sense. They remarked that DOT should clarify that airlines have flexibility to choose the best barrier for their aircraft, and the barrier does not have to be permanent or physically attached to the aircraft. They also commented that the barrier requirement should only apply to aft-facing lavatories or the SpaceFlex models on Airbus A320 aircraft because barriers on mid or forward lavatories pose safety and security hazards. Spirit asked the Department to clarify that airlines should not be required to change aircraft interiors to accommodate a barrier. Spirit also stated that airlines should be deemed compliant if they use all reasonable efforts to put up an appropriate barrier but cannot.

The Department proposed that lavatories on new aircraft with an FAA-certificated maximum capacity of 125 seats or more should have these accessible features. The Department expressed the view that because aircraft with fewer than 125 seats tend to be shorter-haul aircraft, with shorter flight times, it may not be cost-beneficial to require interior improvements to lavatories on those aircraft. The Department sought comment on this issue.

PVA  13 urged the Department to “fully consider” requiring improved lavatory interiors on smaller aircraft. Open Doors and the Ability Center of Greater Toledo commented that these requirements should apply to lavatories on aircraft with a capacity of 60 or more, because the improvements do not require expanding the footprint of the lavatory itself. Airlines supported the proposed rule as written, with IATA asking the Department to clarify that the rule applies to newly manufactured aircraft, rather than existing aircraft that are newly acquired by the carrier.

After carefully considering the comments, the Department has decided to adopt requirements for lavatory interiors mostly as proposed. With respect to grab bars, the rule text provides that they must be “provided and positioned as required to meet the needs of individuals with disabilities.” Complying with ADA grab bar standards would be an acceptable way to comply with this provision.

With respect to the provision that “attendant call buttons and door locks must be accessible to an individual seated in the lavatory,” we agree with CCD's comment that these elements must be readily usable by passengers with visual disabilities. While the rule does not specifically prescribe how airlines must comply with this provision, we agree that features such as braille, large font, contrasting colors, and embossed symbols are all available means of compliance.

With respect to the provision that “lavatory controls and dispensers must be discernible through the sense of touch, and that operable parts of the lavatory must be operable with one hand and not require tight pinching, grasping, or twisting of the wrist,” we agree with airlines' request that they should not be held responsible for obtaining lavatory controls and dispensers that meet those standards if those accessible operable parts are not reasonably available and certificated for the applicable aircraft type. The Department specifies in the rule text that an airline is not responsible for acquiring such lavatory controls and dispensers so long as an airline makes reasonable efforts to purchase such items and informs the Department of the unavailability despite the airline's reasonable efforts. In these situations, the Department requires airlines to purchase lavatory controls and dispensers that comply with as many requirements as set forth. For example, as the Ability Center of Greater Toledo noted, if automatic faucets are not available, lever faucet handles should be purchased as opposed to knobs so that the faucet is operable with one hand.

We have adopted, as proposed, the requirement that toe clearance not be reduced below current measurements. We have determined that it is not necessary to require that toe clearance should be set with minimum measurements determined by industry experts, because a performance-standard approach still ensures that the OBW is able to maneuver into and out of the lavatory while providing flexibility to airlines in how this is done. The purpose of adequate toe clearance is to permit the passenger to access the lavatory by means of the OBW (for example, partial entry of the OBW in a forward-facing position to facilitate a stand-and-pivot maneuver). 14 Airlines may or may not find it necessary to increase toe clearance within the interior of the lavatory to meet this OBW performance standard, depending on the design of their lavatories and OBWs. However, we prohibit airlines from reducing existing toe clearance to prevent reduction in accessibility.

Next, we will adopt as written the proposed rule text relating to the visual barrier. The text states that “the aircraft must include a visual barrier that must be provided upon request of a passenger with a disability. The barrier must provide passengers with disabilities using the lavatory (with the lavatory door open) a level of privacy substantially equivalent to that provided to ambulatory users.” The barrier does not need to be permanent or physically attached to the aircraft to afford that level of privacy. The term “visual barrier” adequately indicates that the privacy is of a visual nature. In sum, we believe that the proposed rule text provides sufficient flexibility for airlines to provide the necessary privacy without compromising safety. We do, however, clarify in rule text that visual barriers are only appropriate as a short-term accessibility improvement. They will not be an appropriate means of providing privacy for the larger lavatories that will be required in the longer term.

Finally, we remain of the view that changes to lavatory interiors should be provided on new single-aisle aircraft with an FAA-certificated maximum seating capacity of 125 or more, because such aircraft tend to operate longer flights where the need for a lavatory access is greatest. As the Regulatory Impact Analysis explains, single-aisle aircraft with at least 125 seats are used for most domestic flights in the United States (67% in 2021) and are increasingly used for longer flights due to improvements in fuel efficiency and range. In response to IATA's comment, we believe that the rule text already adequately conveys that the rule applies to newly manufactured aircraft delivered three years after the effective date of the final rule, rather than existing aircraft that are newly acquired by an airline.

The Department proposed that retrofitting of lavatories on aircraft currently in service would not be required; however, if an airline replaces a lavatory three years or more after the effective date of the rule, airlines would be required to install a lavatory that meets the new requirements. Under this proposal, “a lavatory is not considered replaced if it is removed for specified maintenance, safety checks, or any other action that results in returning the same lavatory into service.” For retrofitted lavatories, there would be no requirement to install a visual barrier if doing so would obstruct the visibility of exit signs.

A4A and IATA suggested that DOT clarify in the preamble to the final rule that to trigger the new compliant lavatory, airlines must totally replace the lavatory shell, not only replace limited components. Boeing suggested that the Department clarify that retrofitting would not be required for “any other action that results in returning the same lavatory part number or lavatory with the same design intent into service.” Boeing reasoned that “there may be instances where, during a heavy maintenance check, a lavatory is removed and must be replaced with a new lavatory of the same part number or design intent.”

We have decided to adopt the final rule as proposed. The text provides that “a lavatory is not considered replaced if it is removed for specified maintenance, safety checks, or any other action that results in returning the same lavatory into service.” In our view, the regulatory text adequately explains what constitutes a replacement lavatory that triggers installation of a compliant lavatory. 15 We reject Boeing's suggestion that retrofitting is not required if the airline wishes to replace an existing lavatory with a new lavatory of the same part number or design intent. To the contrary, the Department is of the view that this is the type of replacement where the airline would be required to install a compliant lavatory.

The Department proposed training and information requirements that would apply to airlines operating aircraft with an FAA-certificated maximum capacity of greater than 60 seats ( i.e., airlines that do not qualify as small businesses under 14 CFR 399.73). The training and information requirements would apply to the airlines' operations generally, not to the operation of any specific aircraft. These provisions would apply three years after the effective date of the final rule.

Specifically, the Department proposed to require airlines to train flight attendants to proficiency on proper procedures for assisting qualified individuals with disabilities to and from the lavatory from the aircraft seat. 16 Such training would include annual hands-on training on the retrieval, assembly, stowage, and use of the aircraft's OBW, and training regarding the accessibility features of the lavatory. The Department sought comment on whether annual training is necessary, or whether a different frequency of training would be more appropriate.

Stakeholders generally supported this proposal. PVA contended that the rule should include training on “any assembly or modifications to accessibility features” of accessible lavatories. 17 PVA reasoned that certain lavatories, such as the SpaceFlex lavatory installed on certain Airbus aircraft, require flight attendants to remove a partition to create a larger lavatory space. A4A supported the rule as written without the phrase suggested by PVA. A4A also stated that DOT should consider hands-on training on a phased-in schedule, combined with online/video training. A4A recommended that DOT clarify exactly what constitutes hands-on training of interior lavatory features. A4A also argued that it is not feasible to provide hands-on training for retrieval and stowage of OBWs on every aircraft type, so the training should only address following instructions on how to stow and retrieve any type of OBW. Finally, A4A asserted its belief that DOT has not conducted a complete analysis of the costs of hands-on training, but A4A did not supply any such data to assist the Department's analysis. IATA indicated that DOT should clarify specifically whether contractor employees are included, or instead clarify that the rule only applies to flight attendants. IATA expressed the view that annual hands-on training is onerous, and that DOT did not adequately consider the costs of training and constructing lavatory mockups. Spirit expressed safety concerns to the extent that the rule requires flight attendants to lift passengers out of their seats, because many contracts limit flight attendants from lifting more than 50 pounds. Responses to these comments pertaining to the economic analysis can be found in the RIA.

At the OBW public meeting held in December 2021, stakeholders discussed whether to clarify that the training requirements should include the “transfer features” of the OBW. In supplemental comments, A4A and IATA indicated that they supported this amendment. RAA, representing regional airlines, asked the Department to clarify that staff must only be trained with respect to each airline's operational environment.

After review of the comments, we are adopting training requirements largely as proposed. In our view, annual hands-on training is necessary and appropriate with respect to any OBW that the flight attendant may be required to retrieve, use, and stow. We are also persuaded by PVA's comment to specifically include training on “any assembly or modifications to accessibility features” of a lavatory. Such an addition would make it clear that airlines are required to provide hands-on training with respect to elements such as the movable partition of a SpaceFlex lavatory, because such a partition would be an “accessibility feature” of the lavatory. Also, the training requirements apply only to flight attendants rather than off-aircraft contractors because flight attendants would be the staff that assist passengers in flight to access the lavatory.

We agree with the stakeholders' suggestion to clarify that training must include the “transfer features” of the OBW. In response to Spirit's comment, we note that while the rule would require flight attendants to assist passengers in transferring to and from the OBW, and maneuvering the OBW to and from the lavatory, it does not necessarily require staff to lift passengers. In other words, flight attendants are required to assist the person with a disability to transfer to the aisle chair as best as they can but may not be able to physically lift or carry the person even with the use of a sliding board. We have not amended the rule text to clarify that staff must only be trained with respect to each airline's operational environment, because we believe that the rule is already sufficiently clear on that point.

The Department proposed to require airlines to provide information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning the accessibility of aircraft lavatories. We proposed that this information must also be available on the carrier's website, and in printed or electronic form on the aircraft, including picture diagrams of accessibility features in the lavatory and the location and usage of all controls and dispensers. We stated that the intent of this proposal is to provide passengers with accurate information about the types of accessibility features that will be available on the aircraft, so that passengers may plan their flights appropriately.

PVA urged the Department to require that this information be “affirmatively sent” to anyone who self-identifies as using a mobility device or a service animal. In response to the Part 2 NPRM, NDRN noted that many airlines with relatively accessible lavatories in their fleet (such as the Airbus SpaceFlex) do not make clear to passengers whether their specific flight actually includes such a lavatory. RAA, representing regional carriers, urged the Department to reconsider the website requirement. RAA explained that the vast majority of its airline members are operating carriers that do not market flights or sell tickets. RAA explained that its members operate flights through agreements with larger mainline partners (marketing carriers) who are responsible for providing flight information to the public. RAA contended that because the traveling public rarely visits RAA members' websites, the more appropriate rule would be to apply the information requirements to marketing carriers.

On further review of this provision, and after reviewing the comments, we believe it is appropriate to clarify the Department's intent with respect to information on accessibility of aircraft lavatories. First, rather than broadly requiring airlines to provide information regarding “the accessibility of aircraft lavatories,” the final rule specifies that the information must include, at a minimum, information about the accessibility features of aircraft lavatories that are set forth in § 382.63(f) (relating to lavatory interiors). This change is consistent with the proposed requirement that the information must include picture diagrams of accessibility features in the lavatory and the location and usage of all controls and dispensers.

We also note that, consistent with the current requirements of part 382, this information must be flight-specific to the extent possible. Specifically, a different provision of part 382 states that carriers must provide, on request, certain information “concerning the accessibility of the aircraft expected to make a particular flight,” including “whether the aircraft has an accessible lavatory.”  18 Under current rules, that information “must be specific to the aircraft you [airlines] expect to use for the flight unless it is unfeasible for you to do so (e.g ., because unpredictable circumstances such as weather or a mechanical problem require substitution of another aircraft that could affect the location or availability of an accommodation).” In keeping with current rules, this final rule requires airlines to provide the required information regarding the accessibility of lavatory features on a flight-specific basis. 19

We do find persuasive RAA's comment that the website requirement should not apply to operating carriers that do not market flights or sell tickets. In situations where the operating and marketing carrier are different entities, the operating carrier is the airline that flies the aircraft while the marketing carrier is the airline that sells the ticket and generally provides flight-specific information to the public. Under this rule, marketing carriers will have the responsibility to provide information on their website concerning the accessibility of aircraft lavatories. We have amended the final rule accordingly.

The Department proposed to require airlines to remove the International Symbol of Accessibility from new and in-service aircraft that are equipped with lavatories that are not capable of facilitating a seated independent transfer ( i.e., a transfer from an OBW to the toilet seat without requiring the use of an assistant). In the Part 1 NPRM, we noted that removal of the symbol is the only proposed requirement that would apply to existing in-service lavatories, and to lavatories on aircraft with FAA-certificated maximum capacity of fewer than 125 seats. We noted that the goal is to provide greater consistency regarding the use of the symbol.

Stakeholders generally supported this provision. Airlines, while in favor of the rule, commented that DOT had not adequately considered the cost of such removal (without providing data to assist in the Department's analysis).

We adopt the proposal as written. In addition, we are requiring airlines to include the International Symbol of Accessibility if the lavatory is capable of facilitating a seated independent transfer. As noted above, the Department's intent is to provide greater consistency as to the meaning of the symbol as it applies to lavatories on single-aisle aircraft. Accordingly, it is appropriate to specify when the symbol must be applied, as well as when it must be removed. We note that at present, the additional cost of this provision will be relatively low, as few lavatories on single-aisle aircraft are capable of facilitating a seated independent transfer. As fully accessible lavatories become more commonplace, we expect the proper use and application of the symbol to grow.

The Department proposed to require airlines to develop and, on request, inform passengers about their procedures for disposing of sharps and bio-waste. The Department reasoned that as lavatories on single aisle aircraft become more accessible, they may be used increasingly as a location where passengers with disabilities may perform personal functions which require the disposal of sharps and bio-waste. Like the information and training requirements, the proposed rule would apply to airlines that operate aircraft with a maximum FAA-certificated capacity of more than 60 seats.

All responses to this proposal were in support. A4A and IATA asked the Department to clarify that airlines are not required to provide special facilities or equipment for disposal.

We adopt the proposal as written. The intent of the rule is to require airlines to develop procedures for sharps and bio-waste disposal and to inform passengers of those procedures on request. The rule does not require any specific type of disposal procedures; similarly, the rule does not require airlines to provide special facilities or equipment for disposal.

As a first step in developing proposed OBW standards for the Part 1 NPRM, the Department asked the Access Board to develop advisory guidelines for technical assistance. The Department then adapted the Access Board's design standards into more flexible performance standards. The Department proposed that airlines could use the Access Board's design standards as one method of compliance. In the Part 1 NPRM, the Department proposed that the OBW have the following features:

(1) it must be maneuverable both forward and backward through the aircraft aisle by an attendant;

(2) it must be maneuverable in a forward orientation partially into at least one aircraft lavatory to permit transfer from the on-board wheelchair to the toilet;  20

(3) it must be maneuverable into the aircraft lavatory in a backward orientation to permit positioning over the toilet lid without protruding into the clear space needed to completely close the lavatory door (an over-the-toilet, or “OTT” feature);

(4) the height of the OBW seat must align with the height of the aircraft seat so as to facilitate a safe transfer between the OBW seat and the aircraft seat;

(5) it must have wheels that lock in the direction of travel, and that lock in place so as to permit safe transfers, with any other moving parts being capable of being secured such that they do not move while the occupied OBW is being maneuvered;

(6) when occupied for use, it shall not tip or fall in any direction under normal operating conditions;

(7) it must have a padded seat and backrest, and must be free of sharp or abrasive components;

(8) it must have arm supports that are sufficiently structurally sound to permit transfers and repositionable so as to allow for unobstructed transfers; adequate back support; torso and leg restraints that are adequate to prevent injury during transport; and a unitary foot support that provides sufficient clearance to traverse the threshold of the lavatory and is repositionable so as to allow for unobstructed transfer, with all restraints operable by the passenger; and

(9) it must prominently display instructions for proper use.

As noted above, the Department then held a public meeting to solicit additional comment and data regarding OBW standards. At the meeting, a representative of PVA expressed support for the OBW provisions set forth in the Part 1 NPRM but indicated that they should be expressed as design standards rather than performance standards.

A4A and IATA expressed support for many of the Department's OBW proposals. However, they expressed significant design, cost, and safety concerns regarding the Department's proposal that the OBW be maneuverable into the lavatory in a backwards position such that it would be positioned over the closed toilet seat (the OTT feature). A representative of the Volpe Center, which performed the regulatory analysis on the Part 1 NPRM, asked questions of the meeting attendees about the feasibility and cost of manufacturing OBWs with an OTT feature. This individual noted that the OTT feature could be implemented either by (1) manufacturing different OBWs to accommodate different toilet seat heights, or (2) by manufacturing a single adjustable OBW that accommodates multiple toilet seat heights. This commenter noted that neither product exists on the market today, and that the cost and feasibility of producing either design is largely unknown. An engineer from the University of Hamburg, which developed the original prototype of the OTT design, indicated that an OBW with a height fixed to the toilet lid may be problematic in terms of transfers to and from the aircraft seat, while adjustable-height OBWs pose different design challenges.

In supplemental comments following the OBW meeting, PVA again expressed support for the proposed design features, but urged the Department to adopt design standards. A4A and IATA expressed strong support for all of the proposed OBW design features, except for element (3) (the OTT feature). They urged the Department to withdraw this proposal based on safety and feasibility concerns. Specifically, they argued that the Department lacked data from which to conclude that such a feature can be manufactured at all, let alone that it would meet FAA safety standards. They expressed concerns that the design may add weight, complexity, and safety hazards to the OBW, particularly if the OTT design is adjustable to fit over toilet lids of various sizes. They also noted that the Department has limited data from which to estimate the costs of designing and manufacturing such a device. Airlines urged the Department to continue to consult with stakeholders regarding the OTT feature, but not to impose the requirement in a final rule.

Airbus commented that it generally supported the Department's performance standards. However, Airbus expressed concern that a fully compliant OBW may be too large to be transported down the aircraft aisle or into the lavatory, or stowed in existing spaces. Airbus also noted that the OTT feature would not be necessary on its accessible Airbus A220 lavatories, because that lavatory was designed to facilitate an independent transfer using the aircraft's existing OBW.

The Department proposed that these new OBW features should be required on new single-aisle aircraft with a maximum FAA-certificated capacity of 125 seats or more. In this way, the OBW provisions mirror the provisions relating to the accessible features of lavatory interiors. Again, the Department reasoned that larger aircraft tend to conduct longer flights where the need to access the lavatory may be greatest.

PVA urged the Department to “seriously consider” expanding these OBW standards to smaller aircraft. The Ability Center of Greater Toledo agreed, noting that individuals may have the need to access lavatories on shorter flights as well. A4A urged the Department not to expand OBW standards to smaller aircraft unless the Department engaged in a full consultation process to determine feasibility, safety, and costs. A4A noted that smaller aircraft have smaller aisles, smaller lavatory entrances, smaller stowage spaces, and fewer crew resources.

After review of the Part 1 NPRM comments, the information gathered at the OBW public meeting, and the post-meeting supplemental comments, we have decided to finalize these OBW provisions largely as proposed, with one important amendment. We remain of the view that performance standards provide meaningful guideposts for safety and accessibility while providing stakeholders flexibility and the opportunity to innovate in how to meet those standards. We also remain of the view that these new OBW standards should apply to new aircraft with a maximum capacity of 125 seats or more, because those aircraft tend to fly longer routes where the need for lavatory use in flight is greatest.

However, we have reconsidered the proposal to require that the OBW must be maneuverable into the aircraft lavatory in a backward orientation to permit positioning over the toilet lid without protruding into the clear space needed to completely close the lavatory door (the OTT requirement above). The purpose of the proposed OTT requirement was to assist passengers with significant mobility impairments who cannot use the “stand-and-pivot” maneuver to enter the lavatory. The OTT requirement was intended to allow such passengers full access to the lavatory space while still seated on the OBW to permit non-toileting functions such as catheterization.

We recognize that members of the ACCESS Advisory Committee saw and used a simple prototype OBW with an OTT feature developed by the University of Hamburg. On the other hand, since the development of that prototype in 2016, we have seen no evidence that it is feasible to manufacture a fully compliant OBW with an OTT feature. The costs of developing such a device remain unknown. We also share stakeholders' concerns about the complexity and safety of such a device, particularly if it is adjustable to accommodate various aircraft seat heights and toilet seat heights. Accordingly, we have eliminated this requirement.

We remain concerned, however, about lavatory accessibility for passengers who are unable to use the stand-and-pivot maneuver. We also recognize that an OTT design may not be the only method for accommodating such passengers. For example, certain Airbus SpaceFlex lavatories are large enough to accommodate an OBW inside the lavatory space without the use of an OTT design. Accordingly, rather than specifically mandating an OTT design, we have adjusted this requirement to broadly state that the OBW must be maneuverable into the aircraft lavatory without protruding into the clear space needed to completely close the lavatory door. If the lavatory itself is not large enough to accommodate an OBW without an OTT feature, and an OBW with an OTT feature is not available, airlines must provide the use of a visual barrier on request to enable the passenger to perform lavatory functions in privacy (see section 7c, below). A visual barrier would not be an acceptable means of compliance for lavatories that are required to be expanded beyond current measurements. As for comments to expand the OBW standards to smaller aircraft, the Department plans to address this issue as part of its rulemaking on Ensuring Safe Accommodations for Air Travelers with Disabilities Using Wheelchairs. 21

The Department proposed that airlines are not required to expand the existing FAA-certificated on-board wheelchair stowage space of the aircraft, or to modify the interior arrangement of the lavatory or the aircraft, in order to comply with the OBW provisions of the rule. During the OBW public meeting, Airbus and Boeing provided information regarding available stowage spaces.

In supplemental comments to the OBW public meeting, PVA commented that because OBWs serve a critical function with respect to lavatory accessibility, the final rule “should require an air carrier to use any FAA-approved OBW stowage location, not just its preferred or existing stowage location.” Airlines supported DOT's proposal as written. Spirit contended that if a compliant OBW does not fit in the existing space, then airlines should not be required to provide such an OBW. Spirit also argued that airlines should not be required to stow the OBW in an alternate location such as an overhead bin, this would limit bin space and raise prices for consumers. They also expressed safety concerns for flight attendants if the new OBW weighs more than 50 pounds.

The Transport Workers Union of America, AFL-CIO, expressed concerns regarding the safe operation of OBWs while in flight, noting that it would be unsafe to operate them unless the aircraft is at a safe cruising altitude. They asked DOT to provide guidance to the public about when OBWs can be used.

We remain of the view that airlines should not be required to expand the existing FAA-certificated on-board wheelchair stowage space of the aircraft, or to modify the interior arrangement of the lavatory or the aircraft, in order to comply with the OBW provisions of the rule. These provisions are consistent with the overarching premise that short-term solutions should not require modification of aircraft interiors. On the other hand, we agree with PVA that we should amend the final rule relating to stowage.

We recognize the possibility that newly compliant OBWs may not fit within pre-existing OBW stowage spaces. The rule as proposed could be reasonably interpreted to read that if the new OBW does not fit within pre-existing OBW stowage spaces, then airlines would not be required to supply them at all. We agree with PVA that this is unacceptable. Compliant OBWs will include important new safety and accessibility features. Accordingly, the Department is requiring airlines to stow the OBW in any other available stowage space where it can be safely accommodated ( e.g., a stowage closet or an overhead bin). Airlines are also required to seek any necessary approval from the FAA to stow the OBW in this alternate location. We also note that all ACAA requirements are subject to safety restrictions, including the use of the OBW. We have added rule text clarifying this point. Airline training should also make it clear to relevant staff that OBW stowage spaces does not affect the options for individuals with disabilities to stow personal wheelchairs on board.

In the Part 1 NPRM, the Department recognized that airlines typically rely on third parties to develop and manufacture OBWs, and that an OBW meeting all of the Department's proposed requirements does not currently exist. Accordingly, the Department proposed that airlines would not be responsible for the failure of third parties to develop and deliver an OBW that complies with a required feature described above, so long as the airline notifies and demonstrates to the Department that an OBW meeting that requirement is unavailable despite the airline's reasonable efforts.

PVA generally agreed with this proposal but argued that there should be a “higher standard of proof.” A4A strongly supported this provision, noting that extensive design and testing is necessary to determine whether an OBW meeting DOT's new standards can be made commercially available and safely stowable on-board the aircraft.

After review of the comments and on further consideration, the Department has decided to amend the final rule in certain material respects. First, the final rule clarifies that airlines must acquire an OBW with as many required features as are available, even if no OBW is available that meets all of the required standards. Next, the final rule relieves airlines of the burden of proving a negative: i.e., demonstrating that an OBW with a required feature is unavailable despite the airline's reasonable efforts. The final rule still requires airlines to make reasonable efforts to purchase OBWs with all required features. If an OBW with a required feature is unavailable despite reasonable efforts, airlines must inform the Department of that fact.Finally, the Department recognizes that many OBWs may not be maneuverable in the aircraft lavatory as required without protruding into the clear space needed to completely close the lavatory door (e.g., because the OBW is not of an OTT design and/or because the lavatory itself is too small to allow full entry of the OBW). The final rule specifies that if airlines cannot provide an OBW meeting that requirement, then they must provide the use of a visual barrier on request to enable the passenger to perform lavatory functions in private. The intent of this rule is to provide an option for passengers who cannot enter the lavatory by performing a stand-and-pivot from the OBW. The Department anticipates that while such passengers may not be able to fully enter the lavatory, they may be able to perform non-toileting functions such as catheterization in the lavatory area behind a visual barrier.

The Department proposed that if an airline replaced an OBW on aircraft with an FAA-certificated maximum seating capacity of 125 or more on a date later than three years after the effective date of the final rule, then the airline must replace it with an on-board wheelchair that meets the new OBW standards. This proposal mirrors the requirement (described above) relating to retrofitting and replacement of aircraft lavatories themselves. A4A commented that airlines should be permitted to replace a broken or worn- out OBW with a new OBW of the same part number, and that the new standards should be required only if airlines adopt a new OBW design. Airbus commented that relocating the OBW stowage space should not count as replacing the OBW.

We are adopting the proposed rule as written. As written, airlines are provided a three-year time frame to acquire compliant OBWs. If an airline replaces an OBW after that date, it is reasonable to require airlines to provide a new OBW that meets DOT's updated safety and accessibility standards, because such OBWs will presumably be available and on the market by that time. This rule is also consistent with the general rule, found at 14 CFR 382.71(b), which states that airlines must ensure that any replacement or refurbishing of the aircraft cabin or its elements does not reduce the accessibility of that element to a level below that specified for new aircraft in part 382.

In the Part 1 NPRM, the Department solicited comment on whether to prohibit airlines from reducing lavatory footprints below their current size. The Department sought comment and data on the extent to which the footprint of aircraft lavatories on single-aisle aircraft has been reduced in recent years, and the effect that any such reduction has on accessibility for passengers with disabilities.

Three disability advocacy organizations (PVA, the National Multiple Sclerosis Society and Flying Disabled) urged the Department to prohibit further reduction of lavatory footprints. PVA argued that such a provision would be consistent with the spirit of part 382. 22 A4A and IATA urged the Department not to adopt such a proposal. A4A contended that the Department does not have baseline data on current lavatory footprints, and without that data, it cannot calculate the cost of the proposal (which may be significant). IATA argued that if the lavatory met performance standards, airlines should be permitted to select a footprint that is best suited to their operations. Boeing supported the Department's suggestion, reasoning that maintaining one lavatory on single aisle aircraft at current size would not further limit accessibility to the traveling public as a whole. Like A4A, Boeing noted that clarity on starting lavatory measurements would be necessary as there are a variety of different designs in the industry.

After reviewing the comments on this issue, we do not have sufficient data to prohibit airlines from further reducing the footprint of lavatories at this time, though this remains an area of interest given that the small size of current lavatories is one significant reason that they are largely inaccessible today. DOT may revisit this issue in a future rulemaking.

Airlines are required to comply with all of the short-term accessibility improvements discussed above three years after the effective date of this final rule. This time frame will allow airlines, aircraft manufacturers, OBW manufacturers, and other stakeholders sufficient time to develop accessible lavatory interiors, training programs, accessibility information, compliant OBWs, and appropriate OBW stowage space.

The Department addressed long-term improvements in the Part 2 NPRM. The Department proposed to require that airlines expand the size of at least one lavatory on new single-aisle aircraft with an FAA-certificated maximum capacity of 125 seats or more. The most significant issue in the NPRM was the time frame for implementation. The Department proposed that the rule would apply to new single-aisle aircraft ordered 18 years after the effective date of the final rule, or delivered 20 years after the effective date of the final rule (18/20). 23 The Department proposed this time frame because it tracked the ACCESS Advisory Committee's agreement from 2016. 24 At the same time, the Department recognized the slow pace of this proposed implementation period, particularly in light of the roughly six-year delay between the date of the Committee's agreement (in 2016) and the issuance of the Part 2 NPRM (in 2022). The Department sought comment and data on whether and how to accelerate this implementation period for the final rule.

The comment period closed on May 28, 2022. Broadly speaking, disability rights organizations supported the rule but also urged a faster implementation period. For example, PVA argued that the Department should subtract the six-year delay in issuance of the rulemaking, and therefore that the requirement for larger lavatories should apply to aircraft ordered 12 years after the effective date of the final rule or delivered 14 years after the effective date of the final rule (12/14). The MDA urged the Department to adopt a 10-year maximum implementation. United Spinal did not propose a specific time frame but urged the Department to act “with all deliberate speed.” Individual commenters universally supported the rule but urged the Department for a faster implementation period. Certain advocates also urged the Department to apply the rule to smaller aircraft.

Airlines supported the proposal as written. A4A/IATA argued that if the Department reduced the implementation period, (1) it should be to 15/17, (2) DOT must fully explain the basis, data, and information that justifies its deviation from the original proposal, and (3) DOT must allow stakeholders to submit supplemental comment. Airbus and Boeing supplied technical comments, with Boeing also supporting the implementation time frame as written. DOT's responses to these and other significant issues raised by the commenters are provided below.

The Department proposed that larger lavatories would be required on new single-aisle aircraft with an FAA-certificated maximum capacity of 125 seats or more. The Department reasoned that such aircraft operate a significant percentage of longer-haul flights, where the in-flight need for a lavatory would be greatest. The Department sought comment on the costs and benefits of extending the rule to smaller aircraft. The Department noted that the Committee considered, but rejected, a rule that would require accessible lavatories based on the length of the flight as opposed to the size of the aircraft. The Committee also rejected other approaches such as phased or tiered approaches to full accessibility. Nevertheless, the Department sought comment on these issues as well.

Two organizations (Open Doors and Disability Rights PA) urged the Department to apply the rule to all new aircraft. Airlines supported the proposal as written, contending that this standard captures the near-total volume of U.S. passenger traffic. A4A and IATA further stated that aircraft with fewer than 125 seats are only used on short flights, that requiring accessible lavatories on smaller aircraft would impose substantial costs that may increase fares and potentially disrupt service to smaller communities, and that there is no technical solution for accessible lavatories on these smaller aircraft. 25 Spirit Airlines also supported the rule as written, and further argued that it should apply on a fleet-wide basis instead of a route-by-route basis. Similarly, RAA supported the 125-seat standard and preferred the seating-capacity approach instead of a scheduled-duration approach. 26 Boeing commented that the proposed standard is reasonable, noting that smaller aircraft are operated on shorter routes, there is no current technical solution for smaller aircraft, and lowering the threshold would increase compliance costs. Airbus did not comment.

The Department is finalizing this aspect of the proposal as written. We recognize that determining a reasonable threshold for larger accessible lavatories will always involve a measure of judgment. On balance, the Department continues to hold the view that a 125-seat threshold is reasonable because it covers a substantial portion of lengthy flights. As we explain in the RIA, we chose not to extend the rule to aircraft with 100 to 124 seats because aircraft of this size are increasingly rare, leading to uncertainty about the benefits of extending the rule to such aircraft. In contrast, flights on aircraft of 125 seats or more made up 58% of all flights and 90% of medium- and long-haul flights in 2021. We do recognize that in general, as future aircraft become more efficient, smaller aircraft may increasingly operate longer flights; if so, the Department may revisit this issue in the future. Finally, after reviewing the comments, we find essentially no support for alternative standards of applicability such as scheduled flight length, or for tiered/phased approaches to implementing fully accessible lavatories. 27

The Department proposed that for applicable aircraft, airlines must include at least one lavatory of sufficient size to (1) permit a qualified individual with a disability equivalent in size to a 95th percentile male to approach, enter, maneuver within as necessary to use all lavatory facilities, and leave, by means of the aircraft's on-board wheelchair, in a closed space that affords privacy equivalent to that afforded to ambulatory users; and (2) permit an assistant equivalent in size to a 95th percentile male to assist a qualified individual with a disability, including assisting in transfers between the toilet and the aircraft's on-board wheelchair, within a closed space that affords privacy equivalent to that afforded to ambulatory users.

NDRN commented that the 95th percentile standard was preferable to the non-specific standard set forth in the rule for twin-aisle aircraft lavatories, which are inconsistent in terms of accessibility. A4A and IATA supported the proposal, noting that it tracked the Committee's agreement. Airbus supported the proposal, noting that the 95th percentile overweight/tall U.S. male is an appropriate reference measure for an assisted transfer within the limited space of a lavatory. 28 Boeing argued that the 95th percentile standard should be placed in guidance, rather than regulatory text, noting that DOT took this approach with respect to the size of twin-aisle aircraft. Boeing also urged the Department to add that airlines may use curtains to create the closed space that affords privacy equivalent to that afforded to ambulatory users.

After reviewing the comments, the Department is finalizing the proposed rule as written. We have chosen to place size standards in the rule text, rather than in guidance, because those standards are necessary to ensure that the lavatory is of sufficient size to accommodate larger passengers and larger attendants alike. We have not adopted Boeing's suggestion that in the long term, airlines should be permitted to use curtains to help create a substantially equivalent privacy space. Such visual barriers may be necessary in the short term when lavatories are not required to be expanded beyond current measurements. However, such a solution would be inappropriate in the long term, given that the Department is providing airlines and aircraft manufacturers ample time to engineer and develop fully compliant solutions.

In the Part 2 NPRM, the Department included for reference its proposed rules from the Part 1 NPRM relating to lavatory interiors. The Department did not propose new rules for lavatory interiors that would apply to the larger lavatories described in the Part 2 NPRM.

PVA noted that passengers with disabilities should be able to access flush controls, call buttons, the lavatory door, the sink, paper towels, and trash dispenser from a seated position. A4A supported the proposal as written. Boeing noted that larger lavatories may produce situations where certain controls may not be reachable from a seated position (on the toilet or on the OBW).

The Department is adopting the provisions regarding lavatory interiors as described above in the discussion of the Part 1 NPRM. In response to PVA's comment, we anticipate that passengers with disabilities will be able to access, from a seated position, the components that they described.

In keeping with its commitment to the ACCESS Advisory Committee, the Department proposed to require accessible lavatories on new single-aisle aircraft that are: (1) ordered 18 years after the effective date of the final rule; (2) delivered 20 years after the effective date of the final rule; or (3) part of a new type-certificated design filed with the FAA or a foreign carrier's safety authority one year after the effective date of the final rule. 29 The Department also proposed that airlines not be required to retrofit existing aircraft to install larger lavatories. This proposal was consistent not only with the ACCESS Advisory Committee's agreement, but also with existing part 382. 30 The Department asked extensive questions regarding whether and how to accelerate this time frame for the final rule, along with the costs and benefits of doing so.

As noted above, disability advocates argued for a more accelerated implementation period. PVA and NDRN stated that the Department should deduct the 6-year gap between the Committee's agreement and the Part 2 NPRM, for a current implementation period of 12/14 rather than 18/20. They argued that this reduction would meet the parties' reasonable expectations at the time the agreement was formed. The MDA urged the Department to adopt a 10-year maximum implementation. United Spinal did not propose a specific time frame but urged the Department to act “with all deliberate speed,” including a requirement for retrofitting when an aircraft is taken out of service. 31 Similarly, advocacy organizations including AARP, FlyersRights, Disability Rights Pennsylvania, Flying Disabled, and Dementia-Friendly Airports Working Group all argued for significantly accelerated implementation. Some urged retrofitting, and others noted that DOT required accessible lavatories on twin-aisle aircraft within only two years from the date of that rule. FlyersRights argued that the larger lavatories should also be required on aircraft manufactured pursuant to amended type certificates filed three years after the effective date of the final rule.

Airlines supported the proposed rule as written. A4A/IATA posited that the six-year delay identified by PVA was a result of the Department's choices and not those of the stakeholders. A4A/IATA opposed any reduction in the rule's proposed timing and asked for a full explanation of DOT's justification for any accelerated implementation, as well as additional public comment if such a reduction would occur. With those qualifications, A4A/IATA indicated that it was open to supporting a 15/17 implementation period. Spirit Airlines described the timeline as proposed by the Department as “reasonable.”

As for aircraft manufacturers, Boeing asked the Department to honor the timeline of the negotiated rulemaking. 32 Airbus did not comment on the implementation period but noted that many of its aircraft are already accessible, with more on the way to delivery.

After careful consideration of all of the comments, the Department concludes that a faster implementation period is both necessary and appropriate. First, in our view, requiring accessible lavatories on an 18/20 implementation period would penalize passengers with disabilities and other stakeholders who would benefit from the rule, for the Department's own delay in finalizing the rule. The Department proposed 18/20 years for the implementation period to honor the promise to stakeholders during the negotiated rulemaking. However, given the technical feasibility of having accessible lavatories earlier and the Department's position that accessible toileting is a basic human need and right, the Department determined that it is unacceptable to have individuals with disabilities wait another 18/20 years after the effective date of the rule. In our view, reducing the implementation period by six years would be the minimum that the Department could do to maintain the reasonable expectations of the stakeholders as expressed in the 2016 ACCESS Advisory Committee's Term Sheet. Given the significance of accessible lavatories to passengers with disabilities and other stakeholders, it is also appropriate to do more than the bare minimum. The Department is mandating implementation on the fastest basis that is both realistic and economically feasible. After reviewing the record of the ACCESS Advisory Committee and the comments received to the NPRM, we believe that a 10/12 implementation period for newly-manufactured aircraft is realistic from a technological, engineering, and manufacturing perspective. This is particularly true given that the core lavatory specifications found in this final rule are essentially unchanged from the 2016 Term Sheet and the 2021 NPRM. In short, we are confident that technical solutions do exist, and can be implemented within a 10/12 time frame. This time frame also allows airlines and manufacturers time to satisfy existing orders and deliveries without interruption.

So far as we can determine, the primary driver of industry's concern is cost, in the form of lost revenue from removal of seats and/or impingement of a larger lavatory into space that could be used for galleys (food and beverage service). 33 As we explain in our Regulatory Impact Analysis, those costs may be recoverable in the form of higher air fares. Moreover, while the Department could reduce those burdens by extending the implementation period, any such extension will necessarily impose burdens on passengers with disabilities who will be forced to wait longer to enjoy the basic human dignity of being able to use a lavatory on a long-haul flight.

Our economic analysis reflects that with a 10/12 implementation period, that net revenue impacts to airlines will range from a loss of 1.6 percent to a gain of less than one percent. Airfare increases could range from zero to 3 or 4 percent of baseline airfares, depending on the ability of airlines to pass on increased costs through increases in airfare. These are relatively small impacts considering access to toilets is a basic human need and should be available to all.

We have considered the even more aggressive solution of retrofitting, but continue to hold the view that retrofitting should not be required because of cost uncertainties. Similarly, we have not required accessible lavatories on amended type-certificated aircraft earlier than 10/12 because this could again require either retrofitting or early replacement of existing aircraft, which would add significant costs or may not be technically feasible due to the production cycle of new aircraft. We will continue to require accessible lavatories on new type-certificated (clean sheet) designs filed with the FAA or a foreign safety authority more than 1 year after the effective date of the rule. 34

The overall purpose of this rule is to improve accessibility of lavatories on single-aisle aircraft in both the short term and the long term. The short-term elements include improvements to lavatory interiors, information requirements, training requirements, required procedures for sharps and bio-waste, removal of the International Symbol of Accessibility, improvements to the aircraft's OBW, and a requirement for a visual barrier under certain circumstances. All of these measures are designed to improve accessibility in the time period before the size of the lavatories themselves must be expanded. The Department finds that these short-term improvements can operate independently of the long-term measures to increase the size of the lavatory. Moreover, while the short-term measures form a suite of improvements, they can each function separately from each other. For example, the required standards for an accessible OBW can function separately from the required improvements to existing lavatory interiors.

The long-term improvements include a lavatory size requirement for the passenger onboard an OBW, a lavatory size requirement for the passenger's attendant, and a requirement that airlines provide such lavatories on new single-aisle aircraft within a 10/12 time frame as discussed above. These measures can function separately from each other and are intended to operate as such. In the event that a court were to invalidate one or more of this final rules unique provisions, the Department's intent is that the remaining provisions should remain in effect to the greatest extent possible.

This final rule has been determined to be significant under section 3(f)(1) of Executive Order 12866 (“Regulatory Planning and Review”), as amended by Executive Order 14094, (“Modernizing Regulatory Review”), 35 and under the Department of Transportation's Regulatory Policies and Procedures because of its considerable interest to the disability community and the aviation industry. It has been reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. A summary of the Department's economic analysis is provided in the paragraphs to follow, and the complete Regulatory Impact Analysis is available in the docket for this rulemaking.

The objective of the rule is to ensure that passengers with disabilities not only can access lavatories on single-aisle aircraft, but also have privacy and dignity while using the lavatory during air travel. As such, this final rule addresses a human rights issue and promotes freedom to travel for people with disabilities. The lack of accessible lavatories on single-aisle aircraft makes air travel difficult for passengers with disabilities, especially if they use wheelchairs and need help transferring to a lavatory toilet. Some of the passengers, knowing that they will not be able to use the lavatory during a flight, may dehydrate themselves or even withhold bodily functions so that they do not need to urinate. These actions can cause adverse health effects, including increased chances of urinary tract infections. Other passengers may use adult diapers or catheters, which they may find degrading and uncomfortable. Some wheelchair users avoid flying altogether.

The Department has determined that regulation is necessary because society cannot count on the private market to provide accessible lavatories reliably. The provision of accessible lavatories involves resource costs, as evident in the airlines' comments on the proposed rule and their reluctance to comply with the terms they agreed to during a negotiated rulemaking. Moreover, the lack of reliable information on accessibility means that consumers do not have an adequate mechanism for expressing their preferences when they have a choice between flights with or without accessible lavatories. This final rule includes requirements that airlines provide accurate and consistent accessibility information under a more immediate timeframe to address the information problem. Accurate information benefits passengers with disabilities as well as those who simply would prefer additional space to perform routine lavatory functions if presented with the option.

The primary benefits of the rule are due to expected improvements in the quality of travel experience for persons with disabilities who currently participate in the market for air travel. In addition, greater convenience and accessibility could lead passengers with disabilities to increase their use of air travel, either by switching from slower modes of travel or by making more long-distance trips. Assigning monetary values to such basic human rights as the ability to relieve oneself involves intangible dimensions that are inherently difficult to quantify. These values are not necessarily observed in the market. Nevertheless, the Department gives full consideration to such unquantified and non-monetized benefits in its evaluation of this this rule. These attributes interact with and can be difficult to empirically distinguish from other aspects, including convenience or reductions in the amount of time needed for travel planning or for travel itself, that are easier to value. Using an estimate of passengers' willingness to pay to avoid inconvenience, the benefits analysis applies a value of $194 one-way trip to monetize benefits of accessible lavatories to passengers with disabilities.

The cost analysis is premised on the assumption that installing an accessible lavatory will require airlines, on average, to eliminate three passenger seats per aircraft. The three-seat loss assumption originated from airline industry analysis presented early in the rulemaking proceedings, and the Department recognizes that there will be variation in impacts across airlines. The Department lacks sufficient data to support an alternative assumption.

Table 1 summarizes the results of the analysis and the potential economic effects of the rule over the analysis timeframe, 2023-2067. Benefits analyzed over 2023-2067 are $1 billion at a 3% discount rate or $571 million at a 7% discount rate. The loss of three passenger seats per aircraft results in societal costs that include lost producer surplus due to the reduction in the number of passengers transported and the value of lost consumption. There also are resource costs due to manufacturing and designing improved lavatories and on-board wheelchairs as well as for flight attendant training. The cost analyzed over 2023 through 2067, are $459 million at a 3% discount rate or $228 million at a 7% discount rate. The rule also could result in a transfer from passengers to airlines due to airlines increasing airfares in response to the reduced supply of seats. The annualized transfers estimated for the primary analysis are $2.2 billion at a 3% discount rate or $1.1 billion at a 7% discount rate.

Passengers might experience economic effects in the form of increased airfares. The primary analysis estimates that in 2060 when all aircraft have accessible lavatories, domestic passengers would pay an additional $2.54 per ticket on average and international passengers would pay an additional $12.28. Passengers flying in earlier years, when some aircraft would not have accessible lavatories and reduced seating, would experience smaller airfare increases. The increase in ticket prices and resulting transfer from passengers offsets the direct revenue loss to airlines. Analysis of potential revenue and price effects suggests that relative to the baseline, net revenue impacts to airlines will range from a loss of 1.6 percent loss to a gain of less than one percent. Airfare increases could range from zero to 3 or 4 percent of baseline airfares, depending on the ability of airlines to pass on increased costs through increases in airfare. Segments of the market characterized by a low price elasticity of demand will experience the largest potential fare increases, while the most price sensitive passengers will likely experience little to no airfare increases. In any case, the Department does not view compromises in accessibility as an acceptable mechanism for airlines to achieve or maintain lower prices in the market for air travel when the solution is technically and economically feasible.

Based upon the economic analysis and other information received from stakeholders throughout the rulemaking, the Department finds that the benefits of the final rule justify its costs. While the benefits of the rule have not been monetized, the available information sufficiently demonstrates that the status quo is untenable for passengers with disabilities who want or need to travel by air. In the context of the market for air travel and the airline industry, the estimated costs and expected impacts to airfares and industry revenues are reasonable, especially when viewed against the lengthy lead time for compliance and that industry agreed to make the accessibility improvements reflected in the final rule in 2016. These facts considered as a whole provide the basis for the Department's reasoned determination that the benefits of the rule justify its costs.

The Regulatory Flexibility Act (5 U.S.C. 601 et seq. ) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities. A direct air carrier or foreign air carrier is a small business if it provides air transportation only with small aircraft ( i.e., aircraft with up to 60 seats/18,000-pound payload capacity). Relative to typical airlines' operating costs and revenues, the impact is expected to be nonsignificant. We received no comment on the preliminary finding of nonsignificance or, more generally, the potential impact of this rulemaking on small entities. Therefore, the Department certifies that this final rule will not have a significant impact on a substantial number of small entities.

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This final rule does not include any provision that: (1) on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government; (2) imposes substantial direct compliance costs on State and local governments; or (3) preempts State law. States are already preempted from regulating in this area by the Airline Deregulation Act, 49 U.S.C. 41713. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.

This rulemaking has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this rulemaking does not significantly or uniquely affect the communities of the Indian Tribal governments or impose substantial direct compliance costs on them, the funding and consultation requirements of Executive Order 13084 do not apply.

This final rule adds two new collections of information that would require approval OMB under the Paperwork Reduction Act of 1995 (Pub. L. 104-13, 44 U.S.C. 3501 et seq. ). The rule requires carriers operating at least one aircraft with an FAA-certificated maximum seating capacity of 60 or more to provide information, on request, to qualified individuals with a disability or persons making inquiries on their behalf concerning, at a minimum, the accessibility features of aircraft lavatories set forth in the rule. A “carrier” is defined as a U.S. citizen or foreign citizen that undertakes, directly or indirectly, or by a lease or any other arrangement, to engage in air transportation.

This information must be available on the carrier's website (if the carrier markets tickets to the public). The information must also be provided in printed or electronic form on the aircraft, including picture diagrams of accessibility features in the lavatory and the location and usage of all controls and dispensers. Carriers must provide the information required by this rule three years after the effective date of the rule.

Under the Paperwork Reduction Act, before an agency submits a proposed collection of information to OMB for approval, it must first publish a document in the Federal Register providing notice of the proposed information collection and a 60-day comment period, and otherwise consult with members of the public and affected agencies concerning each proposed collection of information. The Department has not yet published a notice of the proposed information collection because the information will not be required until three years after the effective date of the final rule.

The Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501, 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 expenditures by States, local or Tribal governments, or by the private sector, of $100 million or more (adjusted annually for inflation with base year of 1995) in any one year. The 2021 threshold after adjustment for inflation is $165 million, using the Implicit Price Deflator for the Gross Domestic Product. The assessment may be included in conjunction with other assessments, as it is here.

The final rule is unlikely to result in expenditures by State, local, or Tribal governments of more than $100 million annually. However, it is estimated to result costs to the airline industry that may exceed $165 million annually. The estimated costs are discussed in the Department's Regulatory Impact Analysis.

The Department has analyzed the environmental impacts of this action pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq. ) and has determined that it is categorically excluded pursuant to DOT Order 5610.1C, Procedures for Considering Environmental Impacts (44 FR 56420, Oct. 1, 1979). Categorical exclusions are actions identified in an agency's NEPA implementing procedures that do not normally have a significant impact on the environment and therefore do not require either an environmental assessment (EA) or environmental impact statement (EIS). 36 In analyzing the applicability of a categorical exclusion, the agency must also consider whether extraordinary circumstances are present that would warrant the preparation of an EA or EIS. 37 Paragraph 4.c.6.i of DOT Order 5610.1C categorically excludes “[a]ctions relating to consumer protection, including regulations.” Because this rulemaking relates to ensuring both the nondiscriminatory access to air transportation for consumers with disabilities, as well as the safe transport of the traveling public, this rulemaking is a consumer protection rulemaking. The Department does not anticipate any environmental impacts, and there are no extraordinary circumstances present in connection with this rulemaking.

Pursuant to Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (the Congressional Review Act), OMB's Office of Information and Regulatory Affairs has found that this rule falls within the scope of 5 U.S.C. 804(2).

For the reasons set forth in the preamble, the Department of Transportation amends 14 CFR part 382 as follows:

On December 18, 2014, the Designer Anabolic Steroid Control Act of 2014, Public Law 113-260 (128 Stat. 2929) (DASCA), became law. The purpose of this final rule is to codify in Drug Enforcement Administration (DEA) regulations the statutory amendments to the Controlled Substances Act (CSA) made by DASCA. This final rule merely conforms the DEA's regulations to the statutory amendments to the CSA that have already taken effect, and does not add additional requirements to the regulations. Thus, because this rule does no more than incorporate statutory amendments into DEA's regulations, publishing a notice of proposed rulemaking and soliciting public comment are unnecessary; and the rule is instead being issued as a final rule effective immediately.

A House Report for DASCA stated that the purpose of the Act is “to more effectively regulate anabolic steroids.” H.R. Rep. No. 113-587, Part 2, at 4 (2014). DASCA makes four changes to the CSA: DASCA (1) revises and adds additional substances to the existing definition of “anabolic steroid” in 21 U.S.C. 802(41); (2) provides a new mechanism for temporary and permanent scheduling of anabolic steroids in 21 U.S.C. 811(i); (3) adds labeling requirements for anabolic steroids under 21 U.S.C. 825(e); and (4) provides new penalties for violating the labeling requirements under 21 U.S.C. 842(a)(16) and 842(c)(1)(C) and (D).

It is evident from the enactment of DASCA that Congress believed the prior two public laws addressing steroids under the CSA (the Anabolic Steroids Control Act of 1990, Pub. L. 101-647, and the Anabolic Steroid Control Act of 2004, Pub. L. 108-358) had not sufficiently stemmed the misuse of anabolic steroids by athletes, students, and others. Among other things, Congress found that the prior statutory definition of an anabolic steroid was too narrow and that this narrowness was being exploited by some manufacturers and distributors. DASCA was designed to remedy this situation by: (1) expressly controlling under the CSA additional anabolic steroids that have emerged in the United States in recent years; and (2) expanding the definition of an anabolic steroid to allow other such steroids to be controlled as they emerged in the future. Indeed, the word “designer” in DASCA's title reflects that Congress was targeting those who sought to circumvent the CSA by producing anabolic steroids that were slightly different in chemical structure from those substances specifically listed in the CSA but which were intended to cause the same effects—and thus were potentially harmful to users. The following statement by one of the sponsors of the legislation, Senator Whitehouse, illustrates these considerations:

Background

The final regulations (TD 9515) that are the subject of this correction are under section 1502 of the Code. Treasury Decision 9515 was corrected at 76 CFR 17781; however, the correction included an erroneous amendatory instruction. The instruction was intended to revise only the introductory text of § 1.1502-13(c)(6)(ii)(D)( 1 ), but it inadvertently removed § 1.1502-13(c)(6)(ii)(D)( 1 )( i ) and ( ii ). This correction restores the two deleted paragraphs as they existed prior to the correcting amendment.

As published March 4, 2011 (76 CFR 11956), the final regulations (TD 9515, FR Doc. 2011-4846) contain errors that needed to be corrected. Treasury Decision 9515 was corrected at 76 FR 17781, March 31, 2011; however, the correcting amendment contained an erroneous amendatory instruction, and two paragraphs (26 CFR 1.1502-13(c)(6)(ii)(D)( 1 )( i ) and ( ii )) were incorrectly removed from the Code of Federal Regulations.

Generally, the amendments to TD 9515 apply with respect to items taken into account on or after March 4, 2011. Section 1.1502-13(c)(6)(ii)(D), the regulatory provision corrected in this amendment, only applies to taxpayers that receive a determination from the Commissioner in the form of a private letter ruling. Taxpayers and the Internal Revenue Service have consistently applied § 1.1502-13(c)(6)(ii)(D) as if the incorrectly deleted paragraphs had not been deleted.

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

The Coast Guard will enforce the safety zone in 33 CFR 165.1198 for the Military Ocean Terminal Concord, CA (MOTCO) regulated area from 12:01 a.m. on August 1, 2023, until 11:59 p.m. on August 2, 2023, or as announced via marine local broadcasts. This safety zone is necessary to protect personnel, vessels, and the marine environment from potential explosion within the explosive arc. The regulation for this safety zone, § 165.1198, specifies the location of the safety zone which encompasses the navigable waters in the area between 500 yards of MOTCO Pier in position 38°03′30″ N, 122°01′14″ W and 3,000 yards of the pier. During the enforcement periods, as reflected in § 165.1198(d), if you are the operator of a vessel in the regulated area you must comply with the instructions of the COTP or the designated on-scene patrol personnel. Vessel operators desiring to anchor or otherwise loiter within the safety zone must contact Sector San Francisco Vessel Traffic Service at 415-556-2760 or VHF Channel 14 to obtain permission.

In addition to this notification of enforcement in the Federal Register , the Coast Guard plans to provide notification of this enforcement period via marine information broadcasts.

I. Background

In FR Doc. 2023-07115 of April 12, 2023 (88 FR 22120), the final rule titled “Medicare and Medicaid Programs; Contract Year 2024 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, Medicaid Program, Medicare Cost Plan Program, and Programs of All Inclusive Care for the Elderly”, there was a technical error that is identified and corrected in this correcting amendment.

On page 22328 in § 422.62, we erroneously retained a proposed amendatory instruction that removed and reserved existing § 422.62(b)(18). To correct this error, we are restoring the language of § 422.62(b)(18).

Under 5 U.S.C. 553(b) of the Administrative Procedure Act (APA), the agency is required to publish a notice of the proposed rule in the Federal Register before the provisions of a rule take effect. Specifically, 5 U.S.C. 553 requires the agency to publish a notice of the proposed rule in the Federal Register that includes a reference to the legal authority under which the rule is proposed, and the terms and substance of the proposed rule or a description of the subjects and issues involved. Further, 5 U.S.C. 553 requires the agency to give interested parties the opportunity to participate in the rulemaking through public comment on a proposed rule. Similarly, section 1871(b)(1) of the Act requires the Secretary to provide for notice of the proposed rule in the Federal Register and provide a period of not less than 60 days for public comment for rulemaking to carry out the administration of the Medicare program under title XVIII of the Act. In addition, section 553(d) of the APA, and section 1871(e)(1)(B)(i) of the Social Security Act (the Act) mandate a 30-day delay in effective date after issuance or publication of a rule. Sections 553(b)(B) and 553(d)(3) of the APA provide for exceptions from the notice and comment and delay in effective date APA requirements. In cases in which these exceptions apply, sections 1871(b)(2)(C) and 1871(e)(1)(B)(ii) of the Act, also provide exceptions from the notice and 60-day comment period and delay in effective date requirements of the Act. Section 553(b)(B) of the APA and section 1871(b)(2)(C) of the Act authorize an agency to dispense with normal rulemaking requirements for good cause if the agency makes a finding that the notice and comment process are impracticable, unnecessary, or contrary to the public interest. In addition, both section 553(d)(3) of the APA and section 1871(e)(1)(B)(ii) of the Act allow the agency to avoid the 30-day delay in effective date where such delay is contrary to the public interest and an agency includes a statement of support.

We believe that this correcting amendment does not constitute a rule that would be subject to the notice and comment or delayed effective date requirements of the APA or section 1871 of the Act. This correcting amendment corrects technical errors in the regulatory text of the final rule but does not make substantive changes to the policies that were adopted in the final rule. As a result, this correcting amendment is intended to ensure that the information in the final rule accurately reflects the policies adopted in that final rule.

In addition, even if this were a rule to which the notice and comment procedures and delayed effective date requirements applied, we find that there is good cause to waive such requirements. Undertaking further notice and comment procedures to incorporate the regulatory text correction in this document into the final rule or delaying the effective date would be unnecessary, as we are not altering our policies or regulatory changes, but rather, we are simply implementing the policies and regulatory changes that we previously proposed, requested comment on, and subsequently finalized.

Specifically, the regulation at § 422.62(b)(18) was adopted in the final rule titled “Medicare Program; Contract Year 2021 Policy and Technical Changes to the Medicare Advantage Program, Medicare Prescription Drug Benefit Program, and Medicare Cost Plan Program,” which appeared in the June 2, 2020 Federal Register (85 FR 33902). A proposal to amend § 422.62(b)(18) was included in the proposed rule (with the same title as the subject final being corrected) that appeared in the December 27, 2022 Federal Register (87 FR 79710). However, the proposed changes to § 422.62(b)(18) have not been finalized and we have indicated that the changes will be addressed in a subsequent rulemaking document as appropriate (88 FR 22120). We note that no rulemaking has finalized removal of § 422.62(b)(18). This final rule correcting document is intended solely to ensure that the final rule and the text at 42 CFR 422.62(b)(18) accurately reflect policies and regulatory changes that have been adopted through rulemaking. Furthermore, such notice and comment procedures would be contrary to the public interest because it is in the public's interest to ensure that the final rule accurately reflects our policies and regulatory changes. Therefore, we believe we have good cause to waive the notice and comment and effective date requirements.

Accordingly, 42 CFR chapter IV is corrected by making the following correcting amendments to part 422:

On July 15, 2022, NSF published proposed regulations for its CyberCorps® Scholarship for Service (SFS) program, pursuant to the Cybersecurity Enhancement Act of 2014 (Pub. L. 113-274, sec. 302, 15 U.S.C. 7442), as amended. See 87 FR 42431 (proposing new 45 CFR part 620). The goal of the program, which is led and managed by NSF in coordination with the U.S. Office of Personnel Management (OPM) and Department of Homeland Security (DHS), is to recruit and train the next generation of information technology professionals, industrial control system security professionals, and security managers to meet the needs of the cybersecurity mission for Federal, State, local, and tribal governments. 1

Under the program, NSF makes grant awards to qualified institutions of higher education to provide scholarships to students pursuing degrees or specialized program certifications in the cybersecurity field and cybersecurity-related aspects of other related fields as appropriate, including artificial intelligence, quantum computing and aerospace, covering the student's tuition and fees for not more than three years, plus stipend. 2 In return, scholarship recipients must agree that, after receiving their degree, they will work for a period equal to the length of their scholarship in the cybersecurity mission of a Federal executive agency or other qualifying entity ( i.e., Congress, interstate agency, State, local, or tribal government or affiliated critical infrastructure non-profit, or as a cybersecurity educator in a qualified institution of higher education that provides SFS scholarships to students). 3 Recipients must also agree to provide OPM (in coordination with NSF) and their qualified institution of higher education with “annual verifiable documentation of post-award employment” and “up-to-date contact information” while they are completing their service obligation. 4

Scholarship recipients who fail to fulfill their service or reporting obligations, or other scholarship conditions required by the Cybersecurity Enhancement Act, become liable to the United States for repayment of the scholarship. 5 In these cases, the Act provides that the recipient's institution shall be responsible for: (1) determining the repayment amount, based on how much of the post-award employment obligation the recipient has completed, if any; (2) notifying the recipient, OPM, and NSF; and (3) collecting repayment within a time period determined by the Director of NSF. 6 The Act provides that such amounts “shall . . . be repaid” by the scholarship recipient “or[,]” if not repaid, the repayment obligation “shall be treated” as a Federal Direct Unsubsidized Loan, “subject to repayment, together with interest thereon accruing from the date of the scholarship award, in accordance with terms and conditions specified by the Director of the National Science Foundation (in consultation with the Secretary of Education) in regulations promulgated to carry out this subsection.”  7

In support of the above requirements, NSF's proposed rule set forth repayment standards (terms and conditions) to be applied to recipients who fail to fulfill their service obligation. See proposed § 620.6 (obligation to repay). The proposed rule also set forth procedures by which scholarship recipients may request that the NSF Director defer or discharge their post-award employment or repayment obligation under the Director's legal authority to suspend or waive such obligations. See proposed § 620.4 (deferral of obligation), § 620.5 (discharge of agreement to serve or pay). 8 In addition, the proposed rule included a provision reflecting the requirement that scholarship recipients provide annual post-award employment documentation and up-to-date contact information while completing their service obligation. See proposed § 620.3 (documenting the service obligation). The remaining provisions of the proposed rule explained the rule's scope and purpose (proposed § 620.1), defined key terms used in the rule (proposed § 620.2), and included a severability clause ( i.e., if one provision of the rule is invalidated, its other provisions will remain in force) (proposed § 620.7).

In response to the proposed rule, NSF received one anonymous public comment, suggesting that the agency more clearly define the circumstances in which enforcement of a student's service obligation would be so “impossible,” “unconscionable,” or result in such “extreme hardship” that a partial or complete waiver of the obligation would be justified. The commenter suggested that such a clarification would provide additional guidance to administrators advising students who might apply for a waiver, would allow agency decisionmakers to stand behind their waiver decisions more strongly, and would give students a level of confidence “that each application for a waiver will be treated [the same] as the last, as much as that is possible.”

The agency has determined that it is unnecessary to clarify these terms further. The rule ( see §§ 620.4 and 620.5) already sets forth several specific examples that provide meaningful and substantial guidance to students ( i.e., scholarship recipients) potentially applying for a deferral (suspension) of the period to fulfill their service obligation or, if appropriate, a waiver (discharge) of the service or repayment obligation ( e.g., death, total or permanent disability, financial or economic burden, other medical situations). At the same time, the rule preserves flexibility for students to demonstrate, and for the agency to determine, the circumstances under which a deferral or waiver, in whole or part, may be justified.

Students will submit their waiver or deferral requests, for consideration by the Director (or other designated NSF official), through the program's official online portal, https://sfs.opm.gov/. As explained in the proposed rule, this portal is maintained and used by OPM's SFS program office to administer the scholarship program under reimbursable agreement with NSF. 9 Students already use the portal to register with the program, to ask questions and obtain information, including about qualifying cybersecurity employment opportunities, to provide and update their current contact information, and to submit documentation of their post-graduation employment. 10 As noted above, when requesting a waiver or deferral, students will have the opportunity to explain the specific reason or basis for their request, and to submit supporting information or documentation to justify the request, including why it would be impossible, unconscionable, or an extreme hardship for them to fulfill their service or repayment obligation.

In adopting the proposed rule as final, the agency has made other technical clarifications and corrections.

First, in § 620.2 (definitions), it has removed the definitions of “payment data” and “monitoring phase,” since these terms are not used in the rule and are not needed to interpret or apply it. In addition, the definition of “Scholarship Phase” has been revised to reflect the statutory requirement that the individual be enrolled in a full-time program of study, except individuals in community college, who must be enrolled at least half-time.

Second, in § 620.1 (scope and purpose) and § 620.2 (definitions), the agency has corrected language stating that scholarship recipients shall fulfill their service obligation “in a position related to cybersecurity” for a Federal, state, local, or Tribal government organization. These rule provisions have been revised to conform to the language of the Cybersecurity Enhancement Act, which states that the scholarship recipient shall be employed “in the cybersecurity mission” of a Federal executive agency, Congress (including any agency, entity, office, or commission established in the legislative branch), an interstate agency, a state, local or Tribal government or government-affiliated non-profit considered to be critical infrastructure (as defined in 42 U.S.C. 5195c(e)), or as an educator in the field of cybersecurity at a qualified institution of higher education (as defined in 15 U.S.C. 7442(b)(3)(B)). 11 Additionally, in § 620.2, the agency has revised the definition of “service obligation” by clarifying what employment may be credited towards that obligation, 12 and requiring that scholarship recipients obtain prior approval of their proposed cybersecurity positions from the SFS program office. Such approval is necessary to ensure that the individual will be employed in a position that qualifies under the statute, and to prioritize the placement of certain percentages of scholarship recipients in various positions in Government and other organizations, as discussed earlier. See note 3. The definition of “agreement to serve or repay” in § 620.2 has also been revised to make clear that a scholarship recipient who fails to fulfill the service obligation must repay the “scholarship or” the amount shall be treated as a Federal direct unsubsidized loan, and that the recipient must also comply with both the recipient's service agreement “and these rules.” Further, the definition of “Commitment Phase” ( i.e., the five-year period within which the scholarship recipient must complete the service obligation and submit verifiable documentation of that service) has been revised to clarify that it begins immediately following the date when the Scholarship Phase ends, and not 18 months later, as the proposed rule might be read to suggest. 13 The revised definition also makes clear that the duration of the Commitment Phase is subject to any deferral (extension) granted by the NSF Director under § 620.4 (deferral of service obligation).

Third, § 620.6 (obligation to repay) has been revised in paragraph (a) to make clear that a scholarship recipient's obligation to repay may result not only from failure to fulfill the recipient's service obligation, but also failure to provide annual verifiable post-award employment documentation and up-to-date contact information, or to fulfill any of the other terms and conditions of support imposed by the Cybersecurity Enhancement Act, as discussed earlier. 14

Fourth, § 620.6 (obligation to repay) has been further revised in paragraph (a) to clarify that the amount of the scholarship for which the recipient shall be liable will be calculated in accordance with the formula set forth in the Cybersecurity Enhancement Act, at 15 U.S.C. 7442(i), which depends on whether the recipient has completed less than one year of service, or one or more years of service.

Fifth, in § 620.4 (deferral of obligation) and § 620.5 (discharge of agreement to serve or repay), the agency has added language permitting a scholarship recipient to seek reconsideration if the NSF Director denies the recipient's request for a deferral or discharge under those sections. Although the Cybersecurity Enhancement Act does not provide for a right of appeal or any right to an oral hearing, the rule will provide an opportunity for a scholarship recipient to request reconsideration in written form where there may be new or additional facts or applicable law that the recipient believes should be considered. If reconsideration is requested, the Director's decision on that request shall be considered final, with no further reconsideration. Furthermore, the agency has revised §§ 620.4 and 620.5 to clarify the deadline for requesting a deferral or discharge. Specifically, a request for a deferral of the service obligation must be received before the period for completing that service has expired ( i.e., Commitment Phase). Furthermore, NSF will not consider any request to defer or discharge any scholarship amounts that have already been repaid or referred to the Department of the Treasury for collection. In addition, the heading of § 620.4 is amended to refer to deferral of the “service” obligation, in contrast to § 620.5, which pertains to the partial or total discharge (waiver) of either the service or repayment obligation.

Sixth, in § 620.6 (obligation to repay), the agency has deleted language from paragraph (c) that stated that, when a CyberCorps SFS scholarship is treated for repayment purposes as a Direct Unsubsidized Loan, it “is not counted against the scholarship recipient's annual or aggregate loan limits under 34 CFR 685.203 [Department of Education loan limits].” This language, which NSF included in consultation with the Department of Education, was intended to allow the full amount of a SFS scholarship to be treated as a Direct Unsubsidized Loan under NSF's regulations, 15 regardless whether the total amount would exceed the limits normally applicable to such loans under the Department's loan regulations. To better reflect that intent, the final rule, now in paragraph (b), rather than paragraph (c), of § 620.6, states that an SFS scholarship shall be repaid or treated as a Direct Unsubsidized Loan under NSF's rule, “without regard to” the annual or aggregate loan limits set forth in the Department of Education's loan regulations. Whether SFS scholarship amounts treated as a Direct Unsubsidized Loan will be “counted” or not against the Department's loan limits ( i.e., if and when the individual applies for other Federal student loans) is a separate issue that falls outside the scope of these regulations and NSF's authority. 16 In addition, paragraphs (b) and (c) have been revised to clarify that the interest rate applicable to SFS scholarship amounts treated as Direct Unsubsidized Loans is determined by the statute governing the terms and conditions of such loans ( i.e., 20 U.S.C. 1078e), that such interest accrues from the date of the scholarship award, as specified in the Cybersecurity Enhancement Act ( see supra note 7), and that, if the loan goes into default, the individual will also be liable for reasonable collection fees and costs (plus court costs and attorney fees, if the Government has to sue the individual to collect). 17

Seventh, other clarifications have been made to § 620.6 (obligation to repay), aside from those already discussed above. Paragraph (a) no longer contains a sentence stating that SFS scholarships treated as Direct Unsubsidized Loans will be repaid in accordance with terms and conditions prescribed by the Director of NSF. That sentence has been rendered unnecessary in light of paragraphs (b) and (g), which directly address such repayment terms and conditions. Paragraph (b), as proposed, allowed individuals to avoid repayment by submitting documentation showing that they have actually completed their service obligation. Additional language has been added to that paragraph in the final rule, to explain that individuals who have violated other scholarship terms and conditions and become liable for repayment may similarly submit documentation, if any, demonstrating that they have not in fact violated those terms and conditions, to avoid repayment. Paragraph (d) informs scholarship recipients that they will be sent notices during the Commitment Phase, prior to the deadlines for beginning and completing their service obligation, reminding them that they must timely submit verifiable documentation of such service; the proposed rule mentioned only the latter notice. Paragraph (f) is revised to explicitly warn individuals that failure to receive these notices, or the annual notices described in paragraph (e), will not relieve them from liability for scholarship repayment. Paragraph (g) now emphasizes that all benefits and terms and conditions normally applicable to a borrower under the Direct Unsubsidized Loan program ( e.g., interest rate, repayment schedule) will apply when a CyberCorps scholarship is treated as a Direct Unsubsidized Loan for repayment purposes, i.e., not only the initial six-month grace period mentioned in the proposed rule. Finally, paragraph (h) of § 620.6 has been revised to make clear that, when an individual's repayment obligation is treated as a Direct Unsubsidized Loan, NSF cannot convert it back into a scholarship once it has been referred to the Department of the Treasury for debt collection. 18

Eighth, § 620.3 (documenting the service obligation) and paragraph (e)(2) of § 620.6 (obligation to repay) are revised to clarify that the recipient must provide the required post-award employment documentation and up-to-date contact information annually to both OPM and NSF in a “form and manner” (rather than a “form”) approved by the SFS program office, to allow that office flexibility in determining the specific format in which such information shall be provided. For consistency, § 620.3 and § 620.6(e)(2) are revised to state that this documentation is to be provided to OPM and NSF via the “SFS program office,” rather than sent directly to the “Director,” or the “Director and OPM,” as had been stated in the proposed rule. Furthermore, a sentence is added at the end of § 620.3 to reflect the Act's requirement that the recipient also provide this information to the recipient's SFS institution. 19 Additionally, proposed § 620.3 could be read to imply that this documentation must be submitted only “if” the individual is completing the service obligation. In the final rule, § 620.3 states that this documentation must be submitted “[t]o demonstrate” that the individual is completing that obligation.

Ninth, the authority for the rule (following the table of contents) has been revised to include the Cybersecurity Enhancement Act, 15 U.S.C. 7442, as authority and basis for the rule's requirements, in addition to the agency's general rulemaking authority under the NSF Act of 1950, 42 U.S.C. 1870.

Tenth, the final rule has been revised throughout to remove references to SFS scholarships being “converted” into Direct Unsubsidized Loans for repayment purposes. The final rule reverts to the statutory language, which states that, when an individual fails to serve or otherwise violates the SFS scholarship's conditions of support, it must be repaid or “shall be treated as” a Direct Unsubsidized Loan. See 15 U.S.C. 7442(g), (i)-(k). For example, SFS scholarship repayment plans, agreements, or promissory notesshall be “treated [i.e., the same] as” a Direct Unsubsidized Loan, and subject to repayment under the same terms and conditions that would apply to such loans, as NSF has stated in § 620.6(g). By using the language expressly prescribed by Congress, the final rule conforms to the statute's requirements, without suggesting that SFS scholarships will be routinely “converted” into Direct Unsubsidized Loans ( i.e., payable to the Department of Education). At the same time, the rule does not foreclose SFS institutions from utilizing that option, if it becomes available and feasible to do so.

Consistent with requirements applicable to significant regulatory actions within the meaning of Executive Order 12866, 20 the notice of the proposed rule included a regulatory analysis explaining the expected impact of the rule, including its impact on Federal agencies. See 87 FR at 42433. Although no public comments were received on the impact analysis, certain changes have been made to that analysis to reflect more accurately the anticipated impact of the revised rule.

There are three main reasons that the rule is needed. First, under the law, a scholarship recipient's obligation to repay “shall be treated as” a Direct Unsubsidized Loan in accordance with terms and conditions that the Director of the National Science Foundation (in consultation with the Secretary of Education) is required by law to be set forth in regulations promulgated to carry out subsection (j) of 15 U.S.C. 7442. Second, without these regulations, current practice creates limited options for OPM, NSF, and SFS institutions, as well as potential hardship for students. In many cases, the participating CyberCorps® SFS institution is neither able to collect a repayment nor convert it to a loan due to lack of cooperation from a scholarship recipient, closing an NSF award at an institution, or the amounts exceeding annual or aggregate loan limits under 34 CFR 685.203. Thus, if the individual does not submit a one-time payment to the SFS institution or NSF, the matter has typically been referred to Treasury as a delinquent debt for collection purposes. Third, under current practice, students are not afforded the terms and conditions of a Direct Unsubsidized Loan if the scholarship is not treated as such a loan.

Three groups will be affected by the final rule: Students (SFS scholars), universities (SFS institutions), and certain Federal agencies (OPM, NSF, and Treasury). Table 1, Table 2, and Table 3 summarize expected impacts on those three groups.

This is a summary of the Commission's Report and Order, document FCC 23-50, adopted on June 8, 2023, released on June 12, 2023, in CG Docket Nos. 23-161, 10-213, and 03-123. The Commission previously sought comment on the issue in a Further Notice of Proposed Rulemaking, published at 76 FR 82240, December 30, 2011, and a Public Notice, published at 87 FR 30442, May 19, 2022. The full text of document FCC 23-50 is available for public inspection and copying via the Commission's Electronic Comment Filing System (ECFS). To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530.

1. Since the March 2020 outbreak of the COVID-19 pandemic in the United States, video conferencing has grown from a niche product to a central pillar of our communications infrastructure. The new social interaction paradigm occasioned by the pandemic appears to have permanently altered the norms of modern communication in the workplace, healthcare, education, social interaction, civic life, and more. For millions of Americans, video conferencing has become a mainstay of their business and personal lives. With the growing use of video conferencing has come heightened concern about accessibility. In recent years, various accessibility features have been introduced by a number of video conferencing providers. However, the accessibility of video conferencing services remains limited for many users.

2. Under the Twenty-First Century Communications and Video Accessibility Act (CVAA), enacted in 2010, providers of advanced communications services (ACS) and manufacturers of equipment used for ACS must make such services and equipment accessible to and usable by people with disabilities, unless these requirements are not achievable. 47 U.S.C. 617(a)(1), (b)(1). Service providers and manufacturers may comply with section 716 of the Act either by building accessibility features into their services and equipment or by using third-party applications, peripheral devices, software, hardware, or customer premises equipment (CPE) that are available to individuals with disabilities at nominal cost. 47 U.S.C. 617(a)(2), (b)(2). If accessibility is not achievable through either of these means, then manufacturers and service providers must make their products and services compatible with existing peripheral devices or specialized CPE commonly used by people with disabilities to achieve access, subject to the achievability standard. 47 U.S.C. 617(c).

3. The Act defines advanced communications services as: (1) interconnected VoIP service; (2) non-interconnected VoIP service; (3) electronic messaging service; (4) interoperable video conferencing service; and (5) any audio or video communications service used by inmates for the purpose of communicating with individuals outside the correctional institution where the inmate is held, regardless of technology used. 47 U.S.C. 153(1). Interoperable video conferencing service, in turn, is defined as a service that provides real-time video communications, including audio, to enable users to share information of the user's choosing. 47 U.S.C. 153(27).

4. In adopting rules to implement section 716 of the Act, the Commission incorporated without change the statutory definitions of ACS and the four then-existing types of ACS, including interoperable video conferencing service. 47 CFR 14.10(m). However, in that 2011 rulemaking a question was raised as to what Congress meant by including the word interoperable as part of the term interoperable video conferencing service. Agreeing with some commenters that the word “cannot be read out of the statute,” the Commission found that the record before it was insufficient to decide the correct interpretation, and sought further comment on the issue. Implementing the Provisions of the Communications Act of 1934, as Enacted by the Twenty-First Century Communications and Video Accessibility Act of 2010, Final Rule, published at 76 FR 82353, 82358, December 30, 2011; Proposed Rule, published at 76 FR 82240, 82245-46, December 30, 2011.

5. Based on the record at that time, the Commission specifically invited comment on the following three possible definitions of the word interoperable as used in this context: able to function inter-platform, inter-network, and inter-provider; having published or otherwise agreed-upon standards that allow for manufacturers or service providers to develop products or services that operate with other equipment or services operating pursuant to the standards; or able to connect users among different video conferencing services, including video relay service (VRS). Commenters did not reach consensus on any of the three suggested alternatives.

6. Recently, the Commission refreshed the record on this matter. First, in April 2021, the Consumer and Governmental Affairs, Media, and Wireless Telecommunications Bureaus issued a joint Public Notice seeking comment generally on whether any updates were needed to the Commission's rules implementing the CVAA and inviting stakeholders to provide input on aspects of the Commission's CVAA implementation that are working well, on specific areas in which commenters believe improvements are needed, and on requirements that may not be serving their intended purpose or have been overtaken by new technologies. Some of the comments responding to the 2021 Public Notice specifically addressed the interpretation of the term interoperable video conferencing service. The Accessibility Advocacy and Research Organizations (AARO), for example, urged the Commission to simply clarify that the statutory definition of interoperable video conferencing service, as a service that uses real-time video communications, including audio, to enable users to share information of the user's choosing, is an exhaustive articulation of what Congress intended to be covered.

7. Next, on April 27, 2022, the Commission's Consumer and Governmental Affairs Bureau (CGB or Bureau) released a Public Notice specifically inviting additional comment on the questions originally posed in 2011 as to the meaning of interoperable video conferencing service. Interoperable Video Conferencing Service, published at 87 FR 30442, May 19, 2022. The Bureau also invited commenters to submit additional relevant information about what types of services are currently available in the video conferencing marketplace, the kinds of interoperability they currently offer, and how such developments may assist in reaching an interpretation of interoperable video conferencing service that is consistent with the intent of Congress in enacting the CVAA. The Commission also sought comment on how consumers access video conferencing services, whether various components of such services are accessible and usable, and any other developments that the Commission should consider in resolving this issue. Eight entities filed comments in response to the 2022 Public Notice; seven filed reply comments.

8. The rapid growth of video conferencing underscores the need to resolve lingering uncertainty as to the application of the Commission's accessibility rules in this area. The social shift born of the pandemic has altered the norms of modern communication. The record, other relevant FCC documents, and public sources indicate that substantial barriers to effective communication remain for many people with disabilities. As video conferencing becomes further entrenched as an essential means of communication, it is of critical importance to resolve the extent to which these services are covered by section 716 of the Act and the Commission's accessibility rules. In the absence of clarity, service providers are left uncertain as to their obligations, and consumers face an inconsistent patchwork of accessibility features that limit their ability to reliably achieve effective communication.

9. In light of these changed circumstances, and taking into account comments in the record, the Commission revisits its previously stated views regarding the interpretation of the statutory term interoperable video conferencing service. The Act defines interoperable video conferencing service as a service that provides real-time video communications, including audio, to enable users to share information of the user's choosing. 47 U.S.C. 153(27). The Commission finds no persuasive reason to modify or limit the scope of the statutory definition of this term. Therefore, it declines to revise part 14 of the Commission's rules, which incorporates the statutory definition, and concludes that part 14 applies to all services and equipment that provide real-time video communications, including audio, to enable users to share information of the user's choosing.

10. By its terms, the statutory definition of interoperable video conferencing service encompasses a variety of video communication services that are commonly used today, or that may be used in the future, to enable two or more users to share information with one another. In 2011, the Commission interpreted a qualifying phrase in the definition—“to enable users to share information of the user's choosing”—to mean that services “providing real-time video communications, including audio, between two or more users ” would be included, “even if they can also be used for video broadcasting purposes ( only from one user ).” 76 FR 82354, December 30, 2011 (emphasis in original). However, a service that provides real-time video and audio communications “ only from one user ” ( i.e., “video broadcasting”) would not meet the definition of interoperable video conferencing service. (Emphasis in original.)

11. Nothing in the definition suggests that it is limited to services that are only suitable for particular kinds of users— e.g., professional users who need a wide selection of features and tools to conduct online meetings, or casual users who want to have spontaneous video conversations with friends. The definition also does not indicate an intention to exclude any service based on whether it is used primarily for point-to-point or multi-point conversations, or based on the type of device used to access the service. Similarly, based on the wording of this definition, its application does not depend on the options offered to users for connecting to a video conference ( e.g., through a dial-up telephone connection or by broadband, through a downloadable app or a web browser), what operating systems or browsers their devices may use, whether the service works with more than one operating system, or whether the service may be classified as offered to the public or to a private group of users (such as a telehealth platform). What matters is that two or more people can use the service to share information with one another in real-time, via video.

12. Narrowing the scope of the part 14 rules to a more limited class of services by importing the Commission's own definition of interoperable would bring those rules into conflict with the definition mandated by Congress. In terms of the Commission's codified rules, this conclusion maintains the status quo, as the statutory definition of interoperable video conferencing service has been incorporated in the Commission's rules for more than a decade.

13. While the Commission stated in 2011 that it must determine the meaning of interoperable in the context of the statute, in light of the further comments received the Commission concludes that, as the Supreme Court has repeatedly held, when a statute includes an explicit definition, that definition must be followed, even if it varies from a term's ordinary meaning. Here the interpretation of the statutory term has already been given by the statutory definition: IVCS is a service that provides real-time video communications, including audio, to enable users to share information of the user's choosing. Because that definition does not include the word interoperable, it is unnecessary to construe that word separately in this context. In cases of circularity—where the statutory term and the statutory definition of that term include a common word—it might be appropriate for an agency to interpret the common word. That is not the case here because interoperable does not appear in the statutory definition.

14. The legislative history of the CVAA also supports the conclusion that the Commission may rely on the statutory definition of interoperable video conferencing service without further elaboration on the word interoperable. As the Commission noted in 2011, early versions of the legislation used the term video conferencing service, without the word interoperable. The term was left unchanged in the House of Representatives committee report on H.R. 3101, released in July 2010. However, in the Senate report on S. 3304, released in December 2010, the Senate Committee on Commerce, Science, and Transportation added the word interoperable to video conferencing service. The Commission has found nothing in the legislative history of the CVAA to explain why the word was added, or what that change was meant to communicate, if anything. The interpretation of statutes cannot safely be made to rest upon mute intermediate legislative maneuvers. Trailmobile Co. v. Whirls, 331 U.S. 40, 61 (1947).

15. Additionally, nothing in the legislative history suggests that Congress intended for the insertion of interoperable in the defined term to change the draft bill's existing definition of video conferencing service. The definition remained the same in all versions, even when the term it was defining metamorphosed without explanation. This compels the Commission to conclude that, whatever reason the Senate Committee may have had for altering the term used to describe the service, there was no intent to alter the definition of that term or to require separate interpretation of any word within that defined term. As the D.C. Circuit noted in 1982, courts must:

16. Some commenters also stress that the Commission should not use this proceeding to mandate that video conferencing services be interoperable. That is a different question, which the Commission settled in 2011: There is no language in the CVAA supporting the view that interoperability is required or should be required as a subset of accessibility, usability, or compatibility. 76 FR 82354, December 30, 2011. The Commission sees no need to revisit that question.

17. Alternative Suggested Definitions. The Commission finds unpersuasive the alternative definitions of interoperable video conferencing service that various commenters proffer in lieu of the statutory definition. The Consumer Technology Association (CTA) continues to advocate a proposal advanced in 2011: that covered services be limited to those that have the ability to operate among different platforms, networks and providers without special effort or modification by the end user. At that time, the Commission expressed concern that this proposed definition would exclude virtually all existing video conferencing services and equipment from the accessibility requirements of section 716 of the Act, which it believes would be contrary to congressional intent. 76 FR 82240, December 30, 2011. In its 2022 comments, citing the development of standards that improve interoperability, CTA suggested that its proposed definition would include a number of commonly used video services such as Webex, Google Meet, and BlueJeans by Verizon. However, CTA emphasizes that its approach will ensure that only the subset of video conferencing services that are genuinely interoperable is covered under section 716.

18. CTIA suggests a modified version of this formulation that would limit covered services to those that can function inter-platform and inter-network. By contrast with CTA's proposed definition, CTIA's proposal would define interoperable video conferencing services to include services that are interoperable inter-platform and inter-network but that are not interoperable between different providers. Under CTIA's proposal, inter-platform refers to the ability of a user to access a video conferencing service on multiple software platforms and operating systems, such as Google Android, Apple iOS, and Microsoft Windows, and inter-network refers to the ability of a user to access a video conferencing service via the internet and on data networks, such as through a broadband connection like 4G LTE or 5G. According to CTIA, this definition reflects the video conferencing market today, which likely means the most widely used services today would be covered by the Commission's ACS rules. Nonetheless, like CTA, CTIA acknowledges that its interpretation would narrow covered services to a smaller group than those fitting under the statutory definition. The American Council of the Blind (ACB) and American Foundation for the Blind (AFB) state that vertically integrated services such as Apple Facetime would likely not meet CTIA's narrow definition of IVCS.

19. The fundamental defect of these proposed alternatives is that they substantially alter the definition of interoperable video conferencing service provided by Congress. Supporters of alternative definitions fail to show how their proposed approaches, which they acknowledge are less inclusive than the statutory definition, could be harmonized with Congress's definition. Instead, CTA and CTIA argue that relying on the statutory definition would render the word interoperable superfluous, effectively reading the word out of the statute.

20. The Commission rejects CTA and CTIA's argument because it is far from clear that interoperable is superfluous. For instance, information sharing cannot take place at all without some degree of interoperability between the devices or software that each sharing user operates. The inclusion of the word interoperable in the term interoperable video conferencing service may simply reflect the fact that any video service satisfying that definition— i.e., any real-time video communication service that enable[s] users to share information of the user's choosing—necessarily involves some level of interoperability among the particular devices and software employed by users of that service.

21. In any event, while the Commission should construe statutes, where possible, so as to avoid rendering superfluous any parts thereof, Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104, 112 (1991), it is not always possible to do so, given the imperfections of the legislative process. Further, the Commission must also read the text harmoniously. Accordingly, interpretations that result in irreconcilable internal discord must be rejected. In this instance, as the proponents agree, their interpretive attempts to give independent meaning to the word interoperable are inconsistent with the statutory definition. Therefore, the Commission must conclude that it is not possible to interpret interoperable in the way that these commenters request.

22. Administrative Procedure Act Notice. The Commission also concludes that it has provided adequate notice in this proceeding that it could arrive at the decision it reaches today. The 2022 Public Notice, which was published in the Federal Register , invited the public to file additional comments on the questions posed in 2011 regarding the meaning of the term interoperable in the context of video conferencing services and equipment. In the very next sentence, the 2022 Public Notice made direct reference to a recent filing by AARO proposing that the Commission apply the statutory definition. The 2022 Public Notice also specifically invited commenters to suggest additional alternatives or other types of input on how to interpret the word interoperable beyond the three approaches suggested by the Commission in 2011. 87 FR 30444, May 19, 2022. The 2022 Public Notice thus provided ample indication that the interpretive question could have a broader range of outcomes than those specifically suggested in 2011.

23. Even assuming, arguendo, that notice was lacking, the Commission finds no conflict with the Administrative Procedure Act. Contrary to the arguments of several commenters, it is procedurally proper for the Commission to conclude that interoperable video conferencing service has the meaning given by the statutory definition. The Commission is not adopting or amending any substantive rule. Therefore, the notice-and-comment requirements of the Administrative Procedure Act (APA) are not implicated by any action taken here. The Commission is simply revisiting its 2011 assertion of a perceived need to resolve, through further interpretation, the correct interpretation of the word interoperable. At most that assertion was an interpretive rule, and hence prior notice was not required to revisit that interpretation. The Supreme Court has confirmed that the adoption or modification of interpretive rules occurs outside the APA's notice-and-comment requirements. Perez v. Mortgage Bankers Ass'n, 575 U.S. 92, 96 (2015).

24. Given the extended pendency of questions regarding the application of these requirements to video conferencing, the Commission recognizes that some service providers may need additional time to fully comply with the Report and Order. For that reason, the Commission extends the date for compliance with the part 14 video conferencing service rules until September 3, 2024. The Commission directs the Consumer and Governmental Affairs Bureau to announce the compliance date by subsequent Public Notice.

25. The Regulatory Flexibility Act of 1980, as amended (RFA), requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities. 5 U.S.C. 603, 605(b). In document FCC 23-50, the Commission declines to adopt rule changes and therefore a Final Regulatory Flexibility Analysis has not been performed.

26. Pursuant to sections 1, 2, 3, and 716 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 152, 153, 617, the foregoing Report and Order is adopted.

27. The Commission has determined, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, concurs, that this rule is non-major under the Congressional Review Act, 5 U.S.C. 804(2). The Commission sent a copy of the Report and Order to Congress and the Government Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A).

28. The Report and Order does not contain new or modified information collection requirements subject to the Paperwork Reduction Act of 1995. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002.

I. Corrections

On April 8, 2022, PHMSA published a final rule titled “Pipeline Safety: Requirement of Valve Installation and Minimum Rupture Detection Standards”  1 (final rule) amending the Federal Pipeline Safety Regulations (49 CFR parts 190 through 199) to, among other provisions, require the installation of rupture-mitigation valves (RMV) or alternative equivalent technologies and establish minimum performance standards for the operation of those valves to mitigate the public safety and environmental consequences of pipeline ruptures. The final rule became effective on October 5, 2022. This document identifies several editorial and technical corrections clarifying those regulations, as set forth below.

The final rule added a new § 192.179(e) requiring the installation of rupture-mitigation valves (RMV) on certain onshore gas pipeline segments 6 inches or greater in diameter. The paragraph included an exemption for those pipelines in Class 1 or Class 2 locations where the potential impact radius (PIR) of the pipeline is 150 feet or less. However, a comma was inadvertently left in between “Class 1” and “or Class 2 locations,” which led some readers to interpret that all pipelines in Class 1 locations were exempt from the RMV installation requirements, in addition to those pipelines in Class 2 locations with a PIR of 150 feet or less. As the preamble of the final rule explains (see, e.g., 87 FR 20942, 20972), the exemption was meant to apply to pipelines with a PIR of 150 feet or less in either Class 1 locations or Class 2 locations. Therefore, PHMSA is correcting that regulatory text in this document by removing the comma, restructuring the sentence for clarity, and adding “either” before the reference to Class 1 and Class 2. PHMSA is also making a conforming change to § 192.179(f), which contained similar language and will reflect the same regulatory intent.

Additionally, PHMSA is also correcting § 192.179(e) and (f) by removing a potentially confusing cross- reference. At both § 192.179(e) and (f), the regulatory text states that, for applicable pipelines, “all RMVs and alternative equivalent technologies installed pursuant to [these] paragraphs must meet the requirements of §§ 192.634 and 192.636.” The requirement for valve installation under paragraphs (e) and (f) of § 192.179 was intended to apply to pipelines in all class locations and regardless of a pipeline's high-consequence area (HCA) status, as applicable. However, paragraph (a) of § 192.634 states that section is only applicable to certain pipelines located in HCAs or in Class 3 or Class 4 locations. Therefore, with the cross-reference to § 192.634 in § 192.179, it may be unclear as to what installation requirements pipelines in non-HCA Class 1 or Class 2 locations must follow. Accordingly, in this document, PHMSA is deleting the cross-references to § 192.634 from the valve installation requirements at § 192.179(e) and (f) so that it is clear that all new pipelines, regardless of HCA status or class location, must install RMVs in accordance with § 192.179. This change does not otherwise impact the additional requirements at § 192.634 specific to certain pipelines located in HCAs or in Class 3 or Class 4 locations.

The final rule also added a new § 192.610 that established the valve spacing requirements certain gas pipeline operators must follow when a class location change occurs. Paragraph (a) of § 192.610, by its reference to “transmission,” provides these requirements apply to class location changes on onshore gas transmission pipelines. In contrast, paragraph (b), as written, did not include the reference to “transmission” that would limit application of that paragraph in the same manner as paragraph (a). As a result, some readers were confused regarding whether the provisions in paragraph (b) were intended to apply to different pipelines than those subject to paragraph (a). PHMSA did not intend for paragraphs (a) and (b) to apply to different pipelines. Therefore, PHMSA is amending paragraph (b) to add a reference to “transmission” mirroring that in paragraph (a), thereby clarifying those provisions will have the same scope of application.

In § 192.634, PHMSA notes that there was an “and” omitted from paragraph (b)(3) that could potentially cause confusion. In this document, PHMSA is correcting this error by inserting the word “and” following the comma after the references to §§ 192.18 and 192.179 and the word “develop.”

When drafting the final rule, PHMSA created a new § 192.636 that contained the operational requirements for RMVs. The notice of proposed rulemaking  2 (NPRM) had proposed these requirements in § 192.634, which also contained design and installation requirements for pipelines in Class 3 locations, Class 4 locations, and HCAs specifically. In the final rule, PHMSA moved the majority of the operational requirements, including those for rupture identification, valve shut-off time, and flow modeling for automatic shut-off valves (ASVs), into the new § 192.636, so that it was clear that these operational requirements applied to all RMVs. However, in the final rule, PHMSA inadvertently neglected to relocate from § 192.634 into the new § 192.636 one operational requirement it had proposed in the NPRM for the manual operation of valves upon identification of a rupture. Therefore, PHMSA is correcting that oversight in this correction document by moving § 192.634(c) into § 192.636 at a new paragraph (h). The requirements at § 192.634 are otherwise unchanged. PHMSA is also adding to that relocated language each of (1) in the first sentence, a cross-reference to the RMV installation requirement and valve shut-off requirement at § 192.634, and (2) in the last sentence, a reference to § 192.636(c) (governing RMV operation beyond the 30-minute default timeline set forth in § 192.636(b)) that had been inadvertently omitted from the final rule.

PHMSA also in § 195.258(e) mistakenly provided that operators could use a “manual compressor station valve” at a continuously manned station as an alternative equivalent technology. As hazardous liquid pipelines have pump stations, and not compressor stations, this phrasing could cause confusion. Accordingly, in this document, PHMSA is correcting this at § 195.258(e) by revising the phrase “manual compressor station valve” to read “manual pump station valve.”

At § 195.402(c)(5)(ii) of the final rule, PHMSA uses the term “incident” when discussing the identification and implementation of preventive and mitigative measures following the analyses of ruptures and RMV valve closures on hazardous liquid pipelines. As “incident” is a defined term in part 192 and not part 195, PHMSA believes there could be some potential confusion regarding the requirements of that paragraph. Accordingly, in this document, PHMSA is revising the term “incident” at § 195.402(c)(5)(ii) to read “accident” to be consistent with part 195 terminology.

PHMSA established a new § 195.417 in the final rule to describe a “notification of potential rupture” for hazardous liquid and carbon dioxide pipelines. The introductory text of paragraph (a) of that section contains an error that “a notification of a potential rupture “means refers” to the notification to [. . .].” In this document, PHMSA is correcting that typographical error to read “a notification of potential rupture means the notification to [. . .].” Additionally, PHMSA noted that the regulatory text in that section lacked an explicit reference to the uncontrolled release of carbon dioxide in addition to hazardous liquids. PHMSA explained in the final rule that, in the interest of convenience, it understood references to “hazardous liquid” within the preamble discussion of the final rule's regulatory amendments to refer to both carbon dioxide and hazardous liquids. See 87 FR 20940 at n. 1. Consistent with that approach, most of the regulatory language amended by the final rule explicitly extended the final rule's RMV installation and operation requirements to both hazardous liquid pipelines and carbon dioxide pipelines; however, PHMSA inadvertently omitted including explicit reference to carbon dioxide within § 195.417's elaboration on the “notification of potential rupture.” Therefore, PHMSA has revised both the introductory text of paragraph (a) and paragraph (a)(3), where appropriate, to clarify that a “notification of potential rupture” can be triggered by one or more of the indicia of a potential unintentional or uncontrolled release of either hazardous liquids or carbon dioxide.

Similarly, in § 195.418, paragraph (a) states that the requirements of the section apply to both hazardous liquid and carbon dioxide pipelines. After publication of the final rule, PHMSA noticed that paragraph (b)(3) of the section, “laterals,” did not specifically mention “carbon dioxide” when discussing the commodity volumes that factor into the shut-off segment volume. Therefore, to clarify the fact that carbon dioxide laterals are also applicable to the requirements of paragraph (b)(3), PHMSA has inserted the term “carbon dioxide” where appropriate.

Prior to the final rule publishing, § 195.420(b) stated that “each operator shall, at intervals not exceeding 7 1/2 months, but at least twice each calendar year, inspect each mainline valve to determine that it is functioning properly.” In the NPRM  3 for the final rule, PHMSA essentially retained this requirement and added that operators must partially operate valves installed in accordance with § 195.258(c) and RMVs, as they were defined under proposed § 195.418. However, in the final rule, the word “mainline” was removed from paragraph (b), which then caused the paragraph to require that “each operator must, at least twice each calendar year but at intervals not exceeding 7 1/2 months, inspect each valve to determine that it is functioning properly.” PHMSA understands that removing the word “mainline” from those requirements could be interpreted to mean that PHMSA expects all valves to be inspected and maintained at the intervals specified within that paragraph, even valves such as those within pump stations. It was never PHMSA's intent to expand the valve maintenance requirement to all valves, and this is reflected throughout both the discussion in the preamble of the final rule and in the Liquid Pipeline Advisory Committee (LPAC) discussion and voting, where such an expansion is not contemplated. Therefore, in this document, PHMSA is correcting this omission by reinserting the word “mainline” in the requirements of § 195.420(b).

PHMSA also revised the valve maintenance requirements at § 195.420(b) to include specific provisions for RMVs. More specifically, PHMSA added RMV-specific requirements where operators are required to partially operate each RMV or alternative equivalent technology as a part of the requirement for operators to inspect each valve at least twice per calendar year. The requirement continues to state that “operators are not required to close the valve fully during the drill [. . .].” PHMSA notes that, as distinguishable response time drills requirements for manually or locally operated alternative equivalent technology are set out in § 195.420(e), there could be some confusion as to what the reference to “drill” means in the context of paragraph (b). Therefore, in this document, PHMSA is replacing the term “drill” used in paragraph (b) with “inspection” to more closely align with the language used earlier within the same paragraph and better distinguish between the “inspections” required under § 195.420(b) and the “drills” conducted pursuant to § 195.420(e).

On May 16, 2023, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacated the final rule as it applies to gas and hazardous liquid gathering pipelines. 4 Therefore, in this document, PHMSA is removing gathering line-specific amendments introduced in the final rule and revising the regulatory text throughout parts 192 and 195 to clarify that the final rule amendments do not apply to gas or hazardous liquid gathering lines. These corrections include revisions to §§ 192.3, 192.9(b), (c), and (e)(1)(iv), 195.2, 195.11(b)(2), 195.258, 195.260, 195.402, 195.417, 195.418, 195.419, 195.420, and 195.452. Specific amendments are discussed below:

• Sections 192.3 and 195.2 are being revised to exempt gathering lines from the new definitions introduced in the final rule (“entirely replaced onshore transmission segments,” “entirely replaced onshore hazardous liquid or carbon dioxide segments,” “notification of potential rupture,” and “rupture-mitigation valve”). While some of those definitions may not have been used within provisions applicable to gas or hazardous liquid gathering lines, the term “notification of potential rupture” was used in sections of parts 192 and 195 that had been applicable to gathering lines. Nevertheless, to minimize confusion for operators, PHMSA is now revising all of the final rule's new definitions to incorporate explicit exceptions for gathering lines so as to ensure that operators are not subject to those terms.

• Section 192.9 is being revised to ensure that this section accurately lists the provisions of part 192 applicable to part 192-regulated gas gathering lines by: (1) excluding §§ 192.615 (to the extent modified by the final rule  5 ), 192.617(b) through (d), and 192.635 from applying to offshore gas gathering lines; (2) excluding §§ 192.179(e) through (g), 192.610, 192.615 (to the extent modified by the final rule), 192.617(b) through (d), 192.634, 192.635, 192.636, and 192.745(c) through (f) from applying to Type A regulated onshore gas gathering lines; and (3) excluding § 192.615 (to the extent modified by the final rule) from applying to Type C regulated onshore gas gathering lines. While the language of § 192.617(a) (formerly § 192.617) was modified slightly in the final rule, the preamble of the final rule explains that these non-substantive changes simply provided “additional specificity to the existing regulation at § 192.617,” and that “the underlying requirement remained unchanged,”  6 and therefore PHMSA is not exempting gas gathering lines from § 192.617(a) in this document. No revisions were required to exempt Types B and C gas gathering lines from § 192.610, § 192.617(b) through (d), § 192.634, § 192.635, § 192.636, or § 192.745(c) through (f), nor to exempt Type B gas gathering lines from the revised requirements of § 192.615, because those sections are already non-applicable to those types of pipelines pursuant to § 192.9(d) and (e). Similarly, no revisions were required to exempt offshore gas gathering lines from §§ 192.179(e) through (g), 192.610, 192.634, 192.636, and 192.745(c) through (f), since those sections are limited to onshore gas pipelines.

• Finally, PHMSA is revising §§ 195.258, 195.260, 195.402, 195.417, 195.418, 195.419, 195.420, and 195.452 to expressly exempt hazardous liquid gathering lines from the requirements in those sections that were introduced in the final rule. For clarity, PHMSA is also revising § 195.11(b)(2) to remove cross-references to any of those requirements.

PHMSA revised § 195.11(b)(2) in the final rule to establish the regulated rural gathering lines on which operators are required to install RMVs (at § 195.11(b)(2)(ii)). While the RMV installation requirement at § 195.11(b)(2)(ii) has been vacated by the D.C. Circuit and is therefore being removed in this document, PHMSA is also correcting a typographical error introduced in § 195.11(b)(2) when the word “constructed” was mistakenly written as “contracted” during transcription of the original paragraph in the final rule.

Statutory authority for this document's corrections to the final rule, as with the final rule itself, whose discussion of statutory authority at section VI.A., 87 FR 20978, is incorporated herein by reference, is provided by the Federal Pipeline Safety Act (49 U.S.C. 60101 et seq. ). The Secretary delegated his authority under the Federal Pipeline Safety Act to the PHMSA Administrator under 49 CFR 1.97.

PHMSA finds it has good cause to make these corrections without notice and comment pursuant to section 553(b) of the Administrative Procedure Act (APA, 5 U.S.C. 551 et seq. ). Section 553(b)(B) of the APA provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. As explained above, the textual alterations herein consist of editorial and technical corrections, including revisions to or codification of regulatory language (1) inadvertently deleted or omitted by the final rule, consistent with statements in the administrative record (including the preamble and amendatory text to the final rule and that make no substantive changes to the final rule but merely facilitate its implementation by aligning the regulatory text with the explanatory material in the final rule's preamble, amendatory text, and administrative record; or (2) consistent with judicial review of the final rule. 7 Because the final rule is the product of an extensive administrative record with numerous opportunities for public comment, including through written comments and the Pipeline Advisory Committees, and because any requirements of the final rule vacated by the D.C. Circuit must be removed and “commentators could not have said anything during a notice and comment period that would have changed that fact,”  8 PHMSA finds that additional comment on the corrections herein is unnecessary.

The immediate effective date of the corrections contained in this document is authorized under 5 U.S.C. 553(d)(3) of the APA. Section 553(d)(3) provides that a rule should take effect “not less than 30 days” after publication in the Federal Register , except for when good cause is found by the agency and published within the rule, thus allowing for earlier effectiveness. 5 U.S.C. 553(d)(3). “[T]he purpose of the thirty-day waiting period is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.” Omnipoint Corp. v. F.C.C., 78 F.3d 620, 630 (D.C. Cir. 1996). PHMSA finds that good cause under section 553(d)(3) of the APA supports making the revisions effective upon publication in the Federal Register because the editorial and technical corrections at §§ 192.179(e) and (f), 192.610(b), 192.634, 192.636, 195.11(b)(2), 195.258(e), 195.402(c)(5)(ii), 195.417(a) introductory text and (a)(3), 195.418(b)(3), and 195.420(b) provide regulatory clarity for gas and hazardous liquid pipeline operators, and the correction to § 195.420 returning the word “mainline” to the regulations is consistent with the preamble of the final rule and the LPAC discussions on the subject.

This document has been evaluated in accordance with existing policies and procedures, and is considered not significant under Executive Order 12866 (“Regulatory Planning and Review”), 9 as amended by Executive Order 14094 (“Modernizing Regulatory Review”), 10 and DOT Order 2100.6A (“Rulemaking and Guidance Procedures”); therefore, this document has not been reviewed by the Office of Management and Budget (OMB). PHMSA finds that the editorial and technical corrections herein, in all respects consistent with the final rule (as modified by judicial review), impose no incremental compliance costs nor adversely affect safety, as they either (1) merely correct non-substantive typographical errors made during the drafting of the final rule and restore the intent of the final rule as discussed in its preamble and supporting documentation, or (2) codify the results of judicial review limiting the scope of application of the final rule.

The Regulatory Flexibility Act, as amended by the Small Business Regulatory Flexibility Fairness Act of 1996 (5 U.S.C. 601 et seq. ), generally requires Federal regulatory agencies to prepare a Final Regulatory Flexibility Analysis (FRFA) for a final rule subject to notice-and-comment rulemaking under the APA. 5 U.S.C. 604(a). 11 The Small Business Administration's implementing guidance explains that “[i]f an NPRM is not required, the RFA does not apply.”  12 Because PHMSA has “good cause” under the APA to forego comment on the corrections herein, no FRFA is required. Moreover, PHMSA prepared a FRFA for the final rule, which is available in the docket for this rulemaking;  13 because the corrections herein will impose no new incremental compliance costs, the analysis in that FRFA remains unchanged.

The corrections in this document impose no new or revised information collection requirements beyond those discussed in the final rule. As explained above, the changes being made in this document are non-substantive, and they will require no change to the current incident and annual reporting forms and their respective instructions.

PHMSA analyzed the corrections in this document under the factors in the Unfunded Mandates Reform Act of 1995 (UMRA, 2 U.S.C. 1501 et seq. ) and determined that the corrections to the final rule herein do not impose enforceable duties of $100 million or more, adjusted for inflation, in any one year, on state, local, or tribal governments, or on the private sector. PHMSA prepared an analysis of the UMRA considerations in the Final Regulatory Impact Analysis for the final rule, which is available in the docket for the rulemaking. Because the corrections herein will impose no new incremental compliance costs, the analysis in that UMRA discussion for the final rule need not be changed.

The National Environmental Policy Act of 1969 (NEPA, 42 U.S.C. 4321 et seq. ) requires Federal agencies to prepare a detailed statement on major Federal actions significantly affecting the quality of the human environment. PHMSA analyzed the final rule in accordance with NEPA, implementing Council on Environmental Quality regulations (40 CFR parts 1500 through 1508) and DOT implementing policies (DOT Order 5610.1C, “Procedures for Considering Environmental Impacts”), and determined the final rule would not significantly affect the quality of the human environment. 14 The corrections to the final rule in this document either (1) have no effect on PHMSA's earlier NEPA analysis, as they are consistent with, and facilitate compliance with, the final rule, or (2) merely codify the results of judicial review of the final rule.

In accordance with 5 U.S.C. 553(c), the DOT solicits comments from the public to inform its rulemaking process. The DOT posts these comments, without edit, including any personal information the commenter provided, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

PHMSA has analyzed this document in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). 15 The corrections herein are consistent with, and facilitate compliance with, the final rule, and they do not have any substantial direct effect on the states, the relationship between the Federal Government and the states, or the distribution of power and responsibilities among the various levels of government beyond what was accounted for in the final rule. This document does not contain any provision that imposes any substantial direct compliance costs on state or local governments, nor any new provision that preempts state law. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply. 16

PHMSA analyzed the final rule and determined that the requirements of Executive Order 13211 (“Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use”)  17 did not apply. The corrections to the final rule herein are not a “significant energy action” under Executive Order 13211 either, as they are not likely to have a significant adverse effect on supply, distribution, or energy use. Further, OMB has not designated the corrections herein as a significant energy action.

This document was analyzed in accordance with the principles and criteria contained in Executive Order 13175 (“Consultation and Coordination with Indian Tribal Governments”)  18 and DOT Order 5301.1 (“Department of Transportation Policies, Programs, and Procedures Affecting American Indians, Alaska Natives, and Tribes”). Because none of the corrections herein have tribal implications or impose substantial direct compliance costs on Indian tribal governments, the funding and consultation requirements of Executive Order 13175 do not apply.

Under Executive Order 13609 (“Promoting International Regulatory Cooperation”), 19 agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The corrections to the final rule in this document do not impact international trade.

A RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

The purpose of these editorial and technical corrections is to facilitate operator compliance with, and codify the results of judicial review of, the final rule. However, PHMSA recognizes that certain provisions focus on unique topics. Therefore, PHMSA finds that each of the editorial and technical corrections in this rule are severable and able to function independently if severed from each other. In the event a court were to invalidate one or more of the unique provisions of this rule, the remaining provisions should stand, thus allowing their continued effect.

In consideration of the foregoing, PHMSA makes the following correcting amendments to 49 CFR parts 192 and 195:

The Gulf of Mexico Fishery Management Council (Council) manages reef fish in Federal waters of the Gulf of Mexico (Gulf) under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (Reef Fish FMP or FMP). The Gulf Council prepared the Reef Fish FMP, and NMFS implements the FMP through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq. ).

On May 5, 2023, NMFS published a proposed rule in the Federal Register for the framework action and requested public comment (88 FR 29048). The proposed rule and the framework action outline the rationale for the action contained in this final rule. A summary of the management measure described in the framework action and implemented by this final rule is provided below.

The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems.

Gray triggerfish are managed under the Reef Fish FMP, and are harvested by commercial and recreational fishermen in the Gulf. The stock was determined to be undergoing overfishing according to the results of the 2006 Southeast Data, Assessment, and Review (SEDAR) 9 stock assessment. Based on the criteria selected by the Council in Amendment 30A to the FMP, the gray triggerfish stock was also considered overfished. Therefore, NMFS implemented a gray triggerfish rebuilding plan through Amendment 30A, as well as annual catch limits (ACLs), annual catch targets (ACTs), and accountability measures (73 FR 38139, July 3, 2008). Amendment 30A also established the current allocation of the stock ACL as 21 percent for the commercial sector and 79 percent for the recreational sector. The 2011 SEDAR 9 Update Assessment found that gray triggerfish were still overfished and undergoing overfishing. NMFS published a final temporary rule (77 FR 28308, May 14, 2012) that reduced the commercial and recreational ACLs and ACTs to end overfishing while the Council developed Amendment 37 to the FMP. Amendment 37 established a plan for gray triggerfish to rebuild the stock in 5 years and the implementing final rule reduced the ACLs and ACTs for gray triggerfish (78 FR 27084, May 9, 2013). Amendment 37 also established the first commercial trip limit of 12 gray triggerfish to reduce commercial landings. The commercial trip limit is the amount of the applicable species that may be possessed on the vessel, or landed, purchased, or sold from a vessel per day (50 CFR 622.43). The Council decided to establish the commercial trip limit in numbers of fish instead of weight based on recommendations made by the Council's Law Enforcement Advisory Panel, who advised it would be difficult to enforce a low poundage limit of fish per trip, e.g., if a commercial trip limit was set at less than 75 lb (34 kg). All weights in this final rule are given in round weight.

In 2017, the Council developed Amendment 46 to the Reef Fish FMP in response to the 2015 SEDAR 43 stock assessment. The assessment indicated the gray triggerfish stock was not experiencing overfishing, but was not rebuilt and remained overfished. Amendment 46 specified a new rebuilding timeline, and revised ACLs and ACTs. Commercial landings per trip were analyzed to determine the impact of changing the trip limit because the commercial sector was often harvesting gray triggerfish below its ACT since the implementation of the 12-fish commercial trip limit. The analyses supported an increase of the commercial trip limit to 16 fish to provide a better opportunity for the commercial sector to catch its ACT while the gray triggerfish stock continued to rebuild (82 FR 59523, December 15, 2017).

In 2017, the Council also developed Amendment 44 to the Reef Fish FMP. Amendment 44 reduced the overfished thresholds for gray triggerfish and six other reef fish species to reduce the likelihood that stock status changes between overfished and not overfished would occur frequently as a result of scientific uncertainty or natural fluctuations in biomass levels (82 FR 61487, December 28, 2017). Although this action resulted in the determination that gray triggerfish was no longer overfished, the rebuilding plan remained in place because the rebuilding target, which is the biomass that produces maximum sustainable yield, had not been achieved.

In 2020, the Council's Scientific and Statistical Committee (SSC) reviewed an interim analysis of the gray triggerfish stock conducted by the NMFS Southeast Fisheries Science Center. The analysis suggested an increasing biomass trend of the gray triggerfish stock could support a greater harvest. The Council's SSC determined the interim analysis was suitable for providing sufficient catch advice to update the acceptable biological catch (ABC), and the SSC recommended an increase in the ABC. As a result, the Council increased the ACLs and ACTs consistent with the ABC increase through a framework action under the Reef Fish FMP. The final rule, implemented on July 29, 2021, increased the commercial ACL for gray triggerfish from 64,100 lb (29,075 kg) to 95,949 lb (43,522 kg) and the commercial ACT increased from 60,900 lb (27,624 kg) to 88,273 lb (40,040 kg) based on the current sector allocations (86 FR 34159, June 29, 2021).

Since implementation of the 16-fish trip limit in 2018, commercial landings have been below the commercial ACL and ACT, with the exception of 2018 when landings reached 100.9 percent of the ACL. Additionally, since the most recent ACL and ACT increase in 2021, commercial landings in 2021 and preliminary 2022 commercial landings were 45 and 47 percent, respectively, of the sector's ACL, and 49 and 51 percent, respectively, of the sector's ACT.

During public testimony at meetings of the Council and the Council's Reef Fish Advisory Panel, commercial industry stakeholders indicated that the 16-fish trip limit is still limiting commercial landings and gray triggerfish are only landed incidentally when targeting other species. As a result, the commercial industry stakeholders requested the Council increase the trip limit to reduce discards when encountering gray triggerfish and allow for increased harvest of these fish to make it worthwhile to retain them when they are encountered. Analyses of alternatives increasing the trip limit to 20, 25, and 30 fish indicated that increasing the trip limit is not expected to result in an early closure of the commercial harvest of gray triggerfish. The Council selected the 25-fish commercial trip limit based on the advice of its Reef Fish Advisory Panel, which advocated for a conservative approach that allows for an increased trip limit but reduces the likelihood of an in-season closure that may occur with a higher trip limit.

This final rule will increase the Gulf gray triggerfish commercial trip limit from 16 fish to 25 fish. Although projections developed for the framework action indicated that this trip limit would increase annual commercial landings of gray triggerfish by 33 percent, the same projections estimated the commercial season would stay open through each fishing year, with the exception of the existing seasonal closure from June 1 through July 31.

NMFS received comments from 13 individuals, fishing organizations, and a seafood dealer on the proposed rule for the framework action. Nine comments were in support of the proposed rule, three comments were opposed to the proposed rule, and one comment that neither supported or opposed the proposed rule.

A summary of the public comments in opposition to the action follows, along with NMFS' responses. NMFS made no changes to the action based on public comment.

Comment 1: The commenter supported this action but also felt that a commercial trip limit of 28 to 32 gray triggerfish could also work and still not result in a commercial ACL overage.

Response: The Council considered alternatives to increase the commercial trip limit to 30 and 40 gray triggerfish during the development of the framework action, and heard public testimony that the trip limit should be increased as high as 40 fish. However, the Council was concerned that if the commercial trip limit was increased too much from the limit of 16 fish, more commercial fishermen would begin to harvest gray triggerfish. If enough additional harvest occurred, the commercial sector would be at an increased risk of an early season closure, which the Council wanted to avoid. Therefore, the Council removed the alternative for a 40-fish commercial trip limit from the framework action and selected a more conservative approach as its preferred alternative for revising the trip limit. The Council indicated that an increase to a 25-fish trip limit would allow more opportunity for the commercial sector to harvest its ACT, but not exceed its ACL, and maintain the gray triggerfish stock rebuilding timeline.

Comment 2: Three commenters expressed opposition to an increase in the commercial “limit” or “commercial harvest” because there is no proposed increase for the recreational sector. One commenter asked if an increase in the commercial trip limit meant there would also be an increase in the recreational limit.

Response: This final rule is not changing the commercial ACL or ACT for gray triggerfish. This rule is only increasing the maximum number of gray triggerfish that commercial fishermen can harvest per trip, because commercial landings have been below the established commercial catch limits since 2019. Regarding the request for an increase in the recreational limit, the problem addressed in this framework action and proposed rule occurs only in the commercial sector, and the Council did not address recreational management of gray triggerfish in this action. Therefore, any adjustment to recreational management measures for gray triggerfish is outside the scope of this final rule.

Pursuant to section 304(b)(3) of the Magnuson-Stevens Act, the NMFS Assistant Administrator has determined that this final rule is consistent with the framework action, the Reef Fish FMP, the Magnuson-Stevens Act, and other applicable laws.

This final rule has been determined to be not significant for purposes of Executive Order 12866.

The Magnuson-Stevens Act provides the legal basis for this rule. No duplicative, overlapping, or conflicting Federal rules have been identified. A description of this final rule, why it is being implemented, and the purpose of this final rule are contained in the SUMMARY and SUPPLEMENTARY INFORMATION sections of this final rule.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for the certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

This final rule contains no information collection requirements under the Paperwork Reduction Act of 1995.

For the reasons set out in the preamble, NMFS amends 50 CFR part 622 as follows:

Federal regulations at § 648.82(n)(2)(ii) require the Regional Administrator to close a common pool Trimester Total Allowable Catch (TAC) Area for a stock when 90 percent of the Trimester TAC is projected to be caught. The closure applies to all common pool vessels fishing with gear capable of catching that stock, and remains in effect for the remainder of the trimester. During the closure, affected common pool vessels may not fish for, harvest, possess, or land regulated multispecies or ocean pout in or from the Trimester TAC Area for the stock.

The Trimester 1 TAC for Gulf of Maine (GOM) cod is 9,480 lb (pounds) (4.3 metric tons (mt)). Catch data (including landings and discards) indicate that the common pool fishery caught 9,066 lb (4.1 mt) of GOM cod, or 95.6 percent of the Trimester 1 TAC, through July 18, 2023. Based on best available data, we estimate that the common pool has achieved over 90 percent of the Trimester 1 TAC.

Effective July 27, 2023, the GOM Cod Trimester TAC Area is closed for the remainder of Trimester 1, through August 31, 2023. The GOM Cod Trimester TAC Area consists of statistical areas, 513 and 514. During the closure, common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear, may not fish for, harvest, possess, or land regulated multispecies or ocean pout in or from this area. The area reopens at the beginning of Trimester 1 of fishing year 2023 on September 1, 2023.

If a vessel declared its trip through the Vessel Monitoring System (VMS) or the interactive voice response system, and crossed the VMS demarcation line prior to July 27, 2023, it may complete its trip within the GOM Cod Trimester TAC Area. A vessel that has set gillnet gear prior to July 27, 2023, may complete its trip by hauling such gear.

If the common pool fishery exceeds its annual sub-Allowable Catch Limit (sub-ACL) for a stock in the 2023 fishing year, the overage must be deducted from the common pool's sub-ACL for that stock for fishing year 2024.

Weekly quota monitoring reports for the common pool fishery are on our website at: https://www.greateratlantic.fisheries.noaa.gov/ro/fso/reports/h/nemultispecies.html. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, VMS catch reports, and other available information and, if necessary, will make additional adjustments to common pool management measures.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.

The regulations require the Regional Administrator to close a trimester TAC area to the common pool fishery when 90 percent of the Trimester TAC for a stock has been caught. Updated catch information through July 18, 2023, only recently became available indicating that the common pool fishery is projected to have caught 90 percent of its Trimester 1 TAC for GOM cod. The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, would prevent the immediate closure of the GOM Cod Trimester TAC Area. This would be contrary to the regulatory requirement and would increase the likelihood that the common pool fishery would exceed its annual quota of GOM cod. Any overage of the Trimester 1 TAC is deducted from the Trimester 3 TAC, and any overage of the annual quota would be deducted from common pool's quota for the next fishing year, to the detriment of this stock. This could undermine conservation and management objectives of the Northeast Multispecies Fishery Management Plan. Fishermen expect these closures to occur in a timely way to prevent overages and their payback requirements. Overages of the trimester or annual common pool quota could cause negative economic impacts to the common pool fishery as a result of overage paybacks deducted from a future trimester or fishing year.