The NRC's regulations in part 140 of title 10 of the Code of Federal Regulations (10 CFR), “Financial Protection Requirements and Indemnity Agreements,” implement the financial protection requirements of certain licensees and other persons under section 170 of the AEA, also known as the Price-Anderson Act (Pub. L. 85-256, 71 Stat. 576), as amended and codified at 42 U.S.C. 2210. In 2005, Congress amended section 170 of the AEA (Pub. L. 109-58, 119 Stat. 780) to require the NRC to adjust for inflation the maximum total and annual standard deferred premiums that may be charged to a licensee following a nuclear incident. These adjustments must be performed not less than once during each 5-year period following August 20, 2003, in accordance with the aggregate percentage change in the Consumer Price Index (CPI) ( https://www.bls.gov/cpi ) for all urban consumers published by the Secretary of Labor. The NRC made the first periodic inflation adjustment required by this section on September 29, 2008 (73 FR 56451). The NRC last adjusted this amount in 2018, establishing the current maximum total deferred premium at $131,056,000, and the maximum annual deferred premium at $20,496,000 (83 FR 48202; September 24, 2018.) This final rule makes the fourth required periodic inflation adjustment and results in a maximum total premium of $158,026,000 and an annual standard deferred premium of $24,714,000.

Section 170(t) of the AEA (42 U.S.C. 2210(t)) requires the NRC to “adjust the amount of the maximum total and annual standard deferred premium not less than once during each 5-year period following August 20, 2003, in accordance with the aggregate percentage change in the Consumer Price Index,” since the previous adjustment. These amounts are codified in § 140.11, “Amounts of financial protection for certain reactors.” Accordingly, the NRC is amending § 140.11(a)(4) to adjust for the increase in inflation, since the last adjustment to these amounts was made in 2018.

The inflation adjustment that the NRC made on September 24, 2018 (83 FR 48202), which took effect on November 1, 2018, raised the maximum total deferred premium in § 140.11(a)(4) to $131,056,000 and the maximum annual deferred premium to $20,496,000. The CPI figure used in calculating this adjustment was 251.588 (May 2018). The inflation adjustment issued in this final rule is based on the change in the CPI between March 2019 and April 2023. During this period the CPI changed from 243.801 to 303.363. This represents an increase of approximately 24.44 percent. The adjustment methodology used to calculate these values is described on the Bureau of Labor Statistics' website ( https://www.bls.gov ). When this increase is applied to the maximum total and annual standard deferred premiums and rounded to the nearest thousand, the new maximum total deferred premium is $158,026,000, and the maximum annual deferred premium is $24,714,000. Section 140.11(a)(4) is amended accordingly.

This final rule is being issued without prior public notice or opportunity for public comment. The Administrative Procedure Act (5 U.S.C. 553(b)(B)) does not require an agency to use the public notice and comment process “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefore in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” In this instance, the NRC finds, for good cause, that solicitation of public comment on this final rule is unnecessary because the Price-Anderson Act requires these non-discretionary adjustments in the maximum total and annual standard deferred premiums. Requesting public comment on these adjustments, which are made pursuant to a formula required by statute, would not result in a change to the adjusted amount. Consistent with this finding of good cause, and as permitted by 5 U.S.C. 808(2), the NRC has determined that the effective date of this rule will be October 5, 2023.

The Regulatory Flexibility Act does not apply to regulations for which a Federal agency is not required by law, including the rulemaking provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), to publish a general notice of proposed rulemaking (5 U.S.C. 604). As discussed in this document under Section III, “Rulemaking Procedure,” the NRC is not publishing this final rule for notice and comment. Accordingly, the NRC has determined that the requirements of the Regulatory Flexibility Act do not apply to this final rule.

A regulatory analysis has not been prepared for this final rule. As discussed in this document under Section III, “Rulemaking Procedure,” the Price-Anderson Act requires that the NRC perform this rulemaking according to a formula required by statute. This final rule does not involve an exercise of Commission discretion.

The NRC has not prepared a backfit analysis for this final rule. This final rule does not involve any provision that would impose a backfit, nor is it inconsistent with any issue finality provision, as those terms are defined in 10 CFR chapter I. These mandatory adjustments are non-discretionary, required by statute, and do not represent any change in position by the NRC with respect to the design, construction, or operation of a licensed facility.

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

The NRC has determined that this final rule is the type of action described in § 51.22(c)(1). Therefore, neither an environmental impact statement nor environmental assessment has been prepared for this final rule.

This final rule does not contain any new or amended collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ). Existing collections of information were approved by the Office of Management and Budget (OMB), approval number 3150-0039.

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

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). The Office of Management and Budget has found it to be a major rule as defined in the Congressional Review Act. As explained under Section III, “Rulemaking Procedure,” the NRC has found good cause that solicitation of public comment on this final rule is unnecessary. Therefore, consistent with 5 U.S.C. 808(2), the NRC has determined that the effective date of this rule will be October 5, 2023, in lieu of the customary 60-day delay in effectiveness for “major rules” under the Congressional Review Act.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendment to 10 CFR part 140:

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1808; Project Identifier MCAI-2023-00906-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Sungmo Cho, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2023-0152, dated July 25, 2023 (EASA AD 2023-0152) (also referred to after this as the MCAI), to correct an unsafe condition for all RRD Model BR700-715A1-30, BR700-715B1-30, and BR700-715C1-30 engines. The MCAI states that occurrences have been reported of finding malformed scallop edge geometry and surface conditions at the front flange of scallops of certain LPC booster rotors. To address this unsafe condition, the manufacturer published service information that specifies procedures for inspecting the front flange scallops of the LPC booster rotors with accept and reject criteria.

Prior to the issuance of EASA AD 2023-0152, the FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to RRD Model BR700-715A1-30, BR700-715B1-30, and BR700-715C1-30 engines. The NPRM published in the Federal Register on June 14, 2023 (88 FR 38762). The NPRM was prompted by EASA AD 2022-0252, dated December 16, 2022 (later revised to EASA AD 2022-0252R1, dated April 28, 2023 (EASA AD 2022-0252R1)). The NPRM proposed to require repetitive FPIs of the front flange scallops of the LPC booster rotor for any cracks, replacement or repair of the LPC booster rotor if necessary and, as an optional terminating action to the repetitive FPIs, a visual inspection for malformed scallop edge geometry and malformed surface conditions to prevent failure of the LPC booster rotor. However, since the NPRM was issued, the FAA has reviewed the MCAI which supersedes EASA AD 2022-0252R1 and includes both reduced compliance times for certain engines and extended compliance times for certain other engines. Therefore, the FAA has determined that it is necessary to withdraw the NPRM under a separate action; and instead issue this final rule to address the unsafe condition.

For further information, you may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1808.

The FAA received comments from four commenters. Commenters included Hawaiian Airlines (Hawaiian), Delta Air Lines (Delta), The Boeing Company, and Air Line Pilots Association, International (ALPA). Boeing and ALPA supported the NPRM without change. However, comments from Hawaiian and Delta identified concerns with the NPRM. The FAA has determined that it is necessary to withdraw the NPRM and instead issue this final rule to address the unsafe condition. The following presents the comments received on the NPRM and the FAA's response to each comment.

Delta suggested that the instructions for the FPI referenced in EASA AD 2022-0252 do not provide procedures for the application of non-aqueous aerosol developer (NAD). Additionally, Delta requested that the FAA include an exception to the AD to allow this NAD or industry equivalent for the FPI procedure.

Delta pointed out that the manufacturer has published a revision to the service information that was referenced in EASA AD 2022-0252 and requested that the FAA include credit in the NPRM for actions accomplished using RRD Non-Modification Service Bulletin (NMSB) SB-BR700-72-A900738, Initial Issue, dated December 15, 2022. Delta mentioned that the inspections specified in RRD NMSB SB-BR700-72-A900738, Initial Issue, dated December 15, 2022, are equivalent to those contained in RRD NMSB SB-BR700-72-A900738, Revision 1, dated July 11, 2023. The FAA infers that Delta is requesting that RRD NMSB SB-BR700-72-A900738, Revision 1, dated July 11, 2023, as the required service information for the actions specified in the NPRM.

Hawaiian stated that the materials necessary to accomplish the required actions listed in the NPRM are obsolete or otherwise unavailable for use in the United States. Hawaiian requested that the FAA revise the NPRM to include suitable materials for accomplishing the required actions.

After careful consideration of these comments, the FAA agrees to withdraw the NPRM. However, the FAA will accomplish the withdrawal of the NPRM as a separate action. The MCAI specified in this final rule refers to the revised service information, and both now adequately address the concerns Delta and Hawaiian. The FAA has updated this final rule to include the revised service information which also contains the change of materials necessary to support the required inspections.

These products have been approved by the aviation authority of another country and are 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 has determined to withdraw the NPRM. Instead of publishing the NPRM, the FAA has also determined that air safety requires adopting this final rule. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products.

The FAA reviewed EASA AD 2023-0152, which specifies procedures for accomplishing repetitive FPIs (on-wing or in-shop) of the front flange scallops of the affected part and, if any cracks are detected, removing the engine from service and contacting the manufacturer for approved corrective actions. EASA AD 2023-0152 also specifies procedures for performing a visual inspection, taking photographs, and submitting photograph documentation of the LPC booster rotor front flange scallops for malformed scallop edge geometry and malformed surface conditions, including validation of the results from the manufacturer, as terminating action for the repetitive FPIs.

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 ADDRESSES .

These products have been approved by the aviation authority of another country and are 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 is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires accomplishing the actions specified in the MCAI, except for any differences identified as exceptions in the regulatory text of this AD, and except as discussed under “Differences Between this AD and the MCAI.” This AD requires sending certain inspection results, the Part C Accomplishment Form, and photographic evidence to the manufacturer if operators elect to perform the optional terminating action specified in Part C of the service information referenced in EASA AD 2023-0152.

Where paragraphs (2) and (3) of EASA AD 2023-0152 specify to contact RRD for approved corrective action(s) and accomplish those actions accordingly, this AD requires replacement or repair of the LPC booster rotor.

Where paragraph (1) requires accomplishment of the initial inspection to be determined by certain flight missions and engine flight cycles (EFC), after the effective date of the EASA AD, but not later than August 31, 2023, this AD requires accomplishment of the initial inspection within 150 EFC after the effective date of this AD.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule due to a reassessment performed by the manufacturer that determined an increased risk of a crack developing on the LPC booster. This unsafe condition may result in release of high-energy debris, with consequent engine in-flight shutdown, and reduced control of the airplane. Due to this increased risk, the FPI of the LPC booster for cracking must be accomplished within 150 flight cycles (which is equivalent to 30 days) after the effective date of this AD. Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 148 engines installed on 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 replacement, repair, or visual inspection that would be required based on the results of the inspection. The agency has no way of determining the number of engines that might need this replacement, repair, or visual inspection:

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, and

(2) Will not affect intrastate aviation in Alaska.

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

Comments Invited

The FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1809; Project Identifier MCAI-2023-00945-E” at the beginning of your comments. The most helpful comments reference a specific portion of the final rule, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this final rule because of those comments.

Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to regulations.gov , including any personal information you provide. The agency will also post a report summarizing each substantive verbal contact received about this final rule.

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this AD contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this AD, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this AD. Submissions containing CBI should be sent to Barbara Caufield, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The European Union Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Emergency AD 2023-0156-E, dated August 2, 2023 (referred to after this as the MCAI), to address an unsafe condition on Rotax 912 A, 912 F, 912 S and 912 iSc Sport (series) engines, all models, all serial numbers; and Rotax 914 F (series) engines, all models, all serial numbers. The MCAI states that the manufacturer reported an occurrence of surface abnormalities on certain propeller shafts. Further investigation by the manufacturer revealed that this abnormality was caused by a deviation in the machining process. The manufacturer determined on which engines the affected propeller shafts were initially installed and that several of the affected propeller shafts were delivered as spare parts. The manufacturer published service information that identifies the affected propeller shafts and specifies instructions for inspection and replacement of the propeller shaft. This condition, if not addressed, could lead to increased wear of the propeller shaft bearings, which could lead to failure of the propeller shaft bearings, propeller shaft, and engine. This could result in engine in-flight shutdown, and (for a single-engine airplane) consequent emergency landing or loss of control of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1809.

The FAA reviewed Rotax Service Bulletin (SB) SB-912-078/SB-914-059/SB-912 i-014, dated July 25, 2023 (published as a single document). This service information identifies the serial numbers of the affected engines and spare parts and specifies procedures for inspecting the magnetic plug and replacing the propeller shaft with a part eligible for installation.

The FAA also reviewed Rotax SB SB-912-078UL/SB-914-059UL/SB-912 i-014iS, dated July 25, 2023 (published as a single document). This service information identifies the serial numbers of the affected engines and spare parts.

These documents are distinct since they apply to different engine models. 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 .

These products have been approved by the aviation authority of another country and are 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 and service information referenced above. The FAA is issuing this AD after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This AD requires initial and repetitive inspections of the magnetic plug for the accumulation of metal chips to assess the condition of the propeller gearbox for wear of the propeller shaft bearings and removal of the affected propeller shaft from service and replacing it with a part eligible for installation as a terminating action either immediately or at a certain time depending on inspection findings. This AD also prohibits the installation of the affected propeller shaft on any engine.

The MCAI applies to all Rotax 912 A, 912 F, 912 S and 912 iSc Sport (series) engines, all models, all serial numbers; and Rotax 914 F (series) engines, all models, all serial numbers. Rotax Model 912 A, 912 A2, and 912 A3 engines are not type certificated in the United States but are part of the type design for certain aircraft. This AD applies to all Rotax Model 912 F2, 912 F3, 912 F4, 912 iSc2 Sport, 912 iSc3 Sport, 912 S2, 912 S3, 912 S4, 914 F2, 914 F3, and 914 F4 engines; and Model 912 A, 912 A2, and 912 A3 engines included as part of the type design for Aeromot-Indústria Mecânico-Metalúrgica Ltda Model AMT-200 (Super Ximango); Diamond Aircraft Industries Model HK 36 R “SUPER DIMONA”; Diamond Aircraft Industries GmbH Models HK 36 TC and HK 36 TS; Diamond Aircraft Industries Inc. Model DA20-A1; HOAC-Austria Model DV 20 KATANA; Magnaghi Aeronautica S.p.A Model Sky Arrow 650 TC; and SCHEIBE-Flugzeugbau GmbH Model SF 25C aircraft, as applicable.

Section 553(b)(3)(B) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq. ) authorizes agencies to dispense with notice and comment procedures for rules when the agency, for “good cause,” finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under this section, an agency, upon finding good cause, may issue a final rule without providing notice and seeking comment prior to issuance. Further, section 553(d) of the APA authorizes agencies to make rules effective in less than thirty days, upon a finding of good cause.

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies forgoing notice and comment prior to adoption of this rule because the presence of material anomalies on the propeller shaft could lead to wear of the propeller shaft bearings, which could lead to failure of the propeller shaft bearings, propeller shaft, and engine, which could result in engine in-flight shutdown, and (for a single-engine airplane) consequent emergency landing or loss of control of the airplane. Since this condition happens rapidly and without warning, the initial inspection must be done before further flight with repetitive inspections done every 10 flight hours (FHs) with terminating replacement before further flight if wear of the propeller shaft bearings is found or 50 FHs if no wear is found. These compliance times are shorter than the time necessary for the public to comment and for publication of the final rule.

Accordingly, notice and opportunity for prior public comment are impracticable and contrary to the public interest pursuant to 5 U.S.C. 553(b)(3)(B).

In addition, the FAA finds that good cause exists pursuant to 5 U.S.C. 553(d) for making this amendment effective in less than 30 days, for the same reasons the FAA found good cause to forgo notice and comment.

The requirements of the Regulatory Flexibility Act (RFA) do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without prior notice and comment, RFA analysis is not required.

The FAA estimates that this AD affects 287 engines installed on aircraft of U.S. registry.

The FAA estimates the following costs to comply with 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, and

(2) Will not affect intrastate aviation in Alaska.

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

I. Background A. Legal Authority

Under section 212(a)(4) of the Immigration and Nationality Act (“INA”), 8 U.S.C. 1182(a)(4), a noncitizen is inadmissible to the United States, and therefore ineligible for a visa, if, in the opinion of the consular officer at the time of the application for a visa, the applicant is likely at any time to become a “public charge.”  1 The Department implements the public charge ground of inadmissibility with respect to visa ineligibility through regulations at 22 CFR 40.41.

On August 14, 2019, DHS issued a final rule amending standards in its regulations for determining inadmissibility under public charge grounds. See Inadmissibility on Public Charge Grounds, 84 FR 41292, as amended on October 2, 2019, 84 FR 52357 (“2019 DHS Final Rule”). Among other changes to these regulations, the 2019 DHS Final Rule expanded DHS's definition of “public charge” and designated certain factors or factual circumstances that could be weighted positively or negatively, and some that would be “heavily” weighted, either positively or negatively, to consider whether an applicant was likely at any time to become a public charge.

On October 11, 2019, the Department issued the 2019 IFR, which amended Department regulations at 22 CFR 40.41 to modify its standards for when a consular officer would determine that a noncitizen is ineligible for a visa under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), because they are likely at any time to become a public charge. 2 The Department issued the 2019 IFR largely to avoid situations when a consular officer would evaluate an applicant's circumstances and conclude that the applicant is not likely to become a public charge, only for DHS to evaluate the same applicant when seeking admission to the United States on a visa issued by the Department, and find that the applicant is inadmissible on public charge grounds under the same facts. Though the 2019 IFR included minor deviations from the 2019 DHS Final Rule, its purpose was to align the Department's approach with that of DHS's. 3

While the term “public charge” is not defined in the INA, the definition set forth in the 2019 IFR and the 2019 DHS Final Rule differed significantly from the definition applied for decades previously, and most notably from the 1999 Field Guidance on Deportability and Inadmissibility on Public Charge Grounds (“1999 Interim Field Guidance”)  4 issued by the former Immigration and Naturalization Service and related FAM guidance issued by the Department, as further described below. Similar to the 2019 DHS Final Rule, the 2019 IFR defined public charge to mean a noncitizen who receives one or more public benefits, as defined in the 2019 IFR, for more than 12 months in the aggregate within any 36-month period. Receipt of two benefits in one month would count as two months' worth of benefits. 5 Public benefits under the 2019 IFR included any Federal, State, local, or Tribal cash assistance for income maintenance (other than tax credits), the Supplemental Nutrition Assistance Program, 7 U.S.C. 2011 et seq., the Housing Choice Voucher Program, as authorized under section 8(o) of the United States Housing Act of 1937 (42 U.S.C. 1437f), Project-Based Rental Assistance (including Moderate Rehabilitation) authorized under section 8 of the United States Housing Act of 1937, Medicaid (with enumerated exclusions), and Public Housing under section 9 of the U.S. Housing Act of 1937 (42 U.S.C. 1437g). 6 Further, the 2019 IFR included certain factors and factual circumstances that weighed heavily in determining whether a visa applicant was likely to become a public charge, including negative and positive factors.

On July 29, 2020, the U.S. District Court for the Southern District of New York granted a preliminary injunction against implementation of the 2019 IFR, holding that the plaintiffs were likely to succeed in their claim that the 2019 IFR did not comply with the requirements of the Administrative Procedure Act. 7 The government filed a notice of appeal from this preliminary injunction, but the appeal was later dismissed at the government's request. 8

Following the preliminary injunction against enforcement of the 2019 IFR, the Department issued FAM guidance to consular officers  9 regarding compliance with the court order. The FAM guidance generally instructed consular officers adjudicating visas to apply the standards that had been in place prior to the 2019 IFR, standards which were based on the 1999 Interim Field Guidance.

There have been significant developments related to the public charge ground of inadmissibility since the publication of the 2019 IFR. On February 2, 2021, President Biden issued Executive Order 14012, Restoring Faith in Our Legal Immigration System and Strengthening Integration and Inclusion Efforts for New Americans (“E.O. 14012”). 10 E.O. 14012 directed the Secretary, along with the Attorney General, the Secretary of Homeland Security, and other relevant agency heads, to ”review all agency actions related to implementation of the public charge ground of inadmissibility . . . and the related ground of deportability.”  11 The President ordered each of the agencies to submit a report “identify[ing] appropriate agency actions, if any, to address concerns about the current public charge policies' effect on the integrity of the Nation's immigration system and public health” and “recommend[ing] steps that relevant agencies should take to clearly communicate current public charge policies and proposed changes, if any, to reduce fear and confusion among impacted communities.”  12

On November 17, 2021, the Department published a notice in the Federal Register , 86 FR 64070 (“Public Comment Reopening”), soliciting public comment on the 2019 IFR for an additional 60-day period, noting significant changes in circumstances since publication of the 2019 IFR. 13 As described in the Public Comment Reopening, the changes in intervening circumstances included public health and economic conditions arising from the COVID-19 pandemic; a court's vacatur of the 2019 DHS Final Rule on a nationwide basis; and DHS's publication on August 23, 2021, of an Advance Notice of Proposed Rulemaking, soliciting public feedback on the DHS interpretation of the public charge ground of inadmissibility to inform a future rulemaking on the issue. In light of those developments, in the Public Comment Reopening, the Department specifically sought public feedback on whether: (1) the 2019 IFR should be rescinded or revised; and (2) if so, what final rule should be adopted regarding visa ineligibility on public charge grounds.

As detailed below, following receipt of a range of public comments in response to the 2019 IFR and the 2021 Public Comment Reopening, the Department has decided not to finalize the regulatory amendments made by the 2019 IFR. Instead, the Department is removing from 22 CFR 40.41 the regulations promulgated in the 2019 IFR and restoring the regulatory text as it appeared prior to the issuance of the 2019 IFR (“Prior Rule”). 14 The Prior Rule was published in 1997, and, with non-substantive changes, 15 remained in place until the publication of the 2019 IFR. The subsequently published 1999 Interim Field Guidance set forth a public charge rule substantially similar to the Prior Rule. The majority of public comments opposed the 2019 IFR or recommended substantial revisions, noting an array of public harms that they attributed to the overall public charge policy reflected in the 2019 IFR, including a measurable decline in enrollment in assistance programs by children in families with noncitizen members, far more than the decline of enrollment in assistance programs by children in families with no noncitizen members.

In 2022, DHS promulgated the 2022 DHS Final Rule in which it explained why it believed its 2019 Final Rule did not represent the best interpretation of the public charge statute. 16 The 2022 DHS Final Rule adopts a significantly different standard for determining whether an individual is likely at any time to become a public charge than the standard reflected in DHS's 2019 Final Rule and the Department's 2019 IFR. The 2022 DHS Final Rule promulgated a rule governing the public charge grounds of inadmissibility, which, while not identical, is substantially similar to the 1999 Interim Field Guidance.

Accordingly, the 2019 IFR no longer meets the policy aim of consistency with DHS standards, which was the Department's principal reason for adopting the 2019 IFR. The Department therefore will not finalize the provisions in the 2019 IFR, which have been subject to a preliminary injunction since July 2020, and will instead return to the Prior Rule pending further rulemaking. The standards contained in the Prior Rule, together with the associated FAM guidance, align better with the 2022 DHS Final Rule than the 2019 IFR. After the instant rule is finalized, the Department anticipates that it will initiate new notice-and-comment rulemaking in light of the 2022 DHS Final Rule to pursue any further amendments to the Department's regulatory text on public charge ineligibility, as appropriate.

The Department considered alternatives to this final rule. For example, the Department considered promulgating a final rule, following the 2019 IFR, but taking into account comments received, that would amend significantly the standards of the 2019 IFR to more closely align with the 2022 DHS Final Rule. The Department declined to pursue this alternative, because, despite the two periods of public comment on the 2019 IFR, it would not provide the public an opportunity to provide comment on the new standards, in the context of the Department's rulemaking. For that reason, the Department believes it is appropriate not to finalize the 2019 IFR with revised standards and instead to undertake new notice-and-comment rulemaking in light of the 2022 DHS Final Rule.

The Department also considered publishing a proposed rule with new standards for visa ineligibility based on the public charge ground of inadmissibility, without first removing changes to the regulations promulgated under the 2019 IFR. The Department determined that this alternative would not best achieve the Department's policy objective of consistency in administration of the public charge grounds of inadmissibility with DHS, because amendments from the 2019 IFR would remain in Department regulations while the new standards underwent public notice and comment. Because the 2019 IFR was principally designed to align with the standards of the 2019 DHS Final Rule, the 2019 IFR, if applied now, would create a pronounced inconsistency with the standards in the 2022 DHS Final Rule, and the Department determined that neither retaining nor finalizing the regulatory amendments made by the 2019 IFR while it undertook further rulemaking was appropriate.

The Department also considered whether there might be policy alternatives to amending the 2019 IFR or removing changes to regulations from the 2019 IFR. The Department determined that there are no such viable alternatives because the standards promulgated under the 2019 IFR are entirely inconsistent with the standards implemented by DHS in the 2022 DHS Final Rule with respect to inadmissibility under the public charge grounds.

In preparing this final rule, the Department also considered whether there were any serious reliance interests that would be harmed by removing the 2019 IFR and returning to the Prior Rule.

While no comments submitted in response to the 2019 IFR or Public Comment Reopening directly or indirectly identified reliance interests of any individuals or public or private entities that have relied on the policy articulated in the 2019 IFR, the Department's regulations, which can affect the interests of individuals and entities in the United States, could have potentially engendered degrees of reliance. The 2019 IFR may have engendered such an interest, for example, by individuals or public or private entities. For instance, public entities such as state or local governments may assert reliance on the enjoined rule given potential effects on noncitizens obtaining public benefits in the United States. The Department has considered those potential interests and taken them into consideration in formulating this final rule.

The Department concludes that the reasons not to finalize the regulatory amendments made by the 2019 IFR outweigh any such reliance interests, which appear minimal, in light of a number of factors, including: (1) the limited period in which this policy was in effect prior to the preliminary injunction, as any reliance interests have been significantly reduced as compared to a longstanding rule or agency policy; (2) the significant time during which the Department has been enjoined from implementing the policy; (3) the Department's notice to the public in the Public Comment Reopening that it was considering removing the regulations promulgated under the 2019 IFR, and solicitation of public comments on whether to adopt, revise, or rescind it; (4) the explicitly “interim” nature of the 2019 IFR itself; and (5) the significant policy interests articulated in this rule that support removal of the regulations, specifically the interest in ensuring that the Department and DHS do not apply significantly different public charge standards to determine a given individual's visa eligibility and eligibility for admission to the United States.

In reverting to the Prior Rule and in continuing to apply the FAM guidance, consular officers will continue to apply the Department's policy of implementing the public charge ground of inadmissibility consistently with current DHS standards and the Department's FAM guidance. As the nationwide preliminary injunction has been in place since July 2020, the Department has in practice reverted to the Prior Rule since that time. Compared with the standards set forth in the 2019 IFR, the Prior Rule more closely aligns with the standards articulated by DHS in the 2022 DHS Final Rule.

In the 2019 IFR, the Department solicited public comments on the rule for a 30-day period following publication on October 11, 2019. During that period, the Department received 199 comments from individuals, local and state governments, public officials, and non-governmental organizations. The Department reviewed these comments, of which 4 expressed support for the 2019 IFR; 19 were non-responsive to the 2019 IFR; and 34 did not clearly reflect support or opposition to the 2019 IFR. The remaining 142 comments expressed opposition to the 2019 IFR.

The Public Comment Reopening solicited public comments on the IFR for an additional 60-day period following publication of the notice on November 17, 2021. In response, the Department received 32 comments  17 from individuals, local and state governments, public officials, and non-governmental organizations. The Department reviewed these comments, of which 3 expressed support for the 2019 IFR and 29 opposed the 2019 IFR and suggested rescission or substantial revision of the 2019 IFR on a variety of bases, discussed below.

The below table provides a summary of the total comments received:

The summary and discussion of comments below reflects the comments received in response to the 2019 IFR, including those received in response to the Public Comment Reopening. Of those comments expressing opposition to the 2019 IFR, the most common reasons expressed were opposition to policies first articulated in the 2019 DHS Final Rule; harmful effects of the overall public charge policy reflected in the 2019 IFR on immigrant families; that the interpretation of the public charge ground of inadmissibility in the 2019 IFR was unlawful; that the 2019 DHS Final Rule was enjoined; and that the overall public charge policy reflected in the 2019 IFR had a chilling effect that deterred families from receiving public benefits to which they were eligible. As detailed in Table 3, other comments in opposition to the 2019 IFR included objections to the rule's circumstantial eligibility factors and concerns that calculations related to the statutory factors were arbitrary. Several commenters opined that the 2019 IFR was discriminatory against immigrants from particular regions or that it would unduly burden the U.S. national economy. The two tables below describe the categories of comments submitted by the public both in favor of and in opposition to the 2019 IFR, noting that some comments expressed more than one basis for support or opposition to the rule.

Comment: Three commenters expressed support for the 2019 IFR, because, in the commenters' opinion, levels of immigration to the United States are too high and finalizing the 2019 IFR would have the effect of restricting or lowering immigration levels overall.

Response: The INA governs the standards regarding a noncitizen's admissibility to the United States, and the Department seeks to faithfully implement the statutory public charge ground of inadmissibility. The Department will continue to apply the public charge ground of inadmissibility to nonimmigrant and immigrant visa applicants in classifications that are subject to this ground, noting that, by statute, the ground does not apply to certain nonimmigrant visa classifications. 19 The INA sets out worldwide levels of immigration for each fiscal year for certain family-sponsored, employment-based, and diversity immigrants, while excluding certain immigrants (notably the immediately relatives of U.S. citizens) from numerical limitations. Most nonimmigrant visa classifications are not subject to numerical limitations. Between FY 2016 and 2019, DOS issued approximately 543,000 immigrant visas and 9,458,000 nonimmigrant visas annually (on average). Considering the overall demand for visas and pre-pandemic trends in visa issuance, the Department does not expect that the 2019 IFR or this final rule would change the overall level of immigration.

This conclusion is supported by the immigrant and nonimmigrant visa statistics available for fiscal year 2020, which covers the time period when the 2019 IFR was in effect. 20 In fiscal year 2020, consular officers made 6,541 inadmissibility findings based on public charge grounds when adjudicating immigrant visas, and 6,175 were overcome. For nonimmigrants, the Department made 343 inadmissibility findings based on public charge grounds, and 193 were overcome. When compared to the overall volume of immigrant and nonimmigrant visa issuances, the number of noncitizens found inadmissible who did not overcome that finding while the 2019 IFR was in effect was negligible. Consequently, the Department does not believe that reversion to the prior regulatory text will affect worldwide levels of immigration.

Comment: Two commenters expressed support for the 2019 IFR, stating that immigrants should be self-sufficient, and that visas should not be issued to individuals who will not be able to support themselves.

Response: Even after the publication of this final rule, consular officers will continue to apply the public charge ground of inadmissibility to applicants for nonimmigrant and immigrant visas in classifications that are subject to this ground of inadmissibility. A consular officer who finds that an applicant for a visa is likely at any time to become a public charge is required to refuse the applicant's application on that basis. 21 However, this refusal may be overcome by presenting additional evidence to the consular officer that the inadmissibility no longer applies, or by posting a “suitable and proper bond or undertaking.”  22

Additionally, federal law generally prevents noncitizens who are subject to the public charge ground of inadmissibility from taking advantage of means-tested benefits programs by generally excluding them from participation for the five years after admission to the United States or adjustment of status. 23

Consular officers shall apply the grounds in accordance with the regulatory text that was in place prior to the publication of the 2019 IFR. Additionally, they will be advised to continue applying FAM guidance that implements the public charge ground of inadmissibility, which generally is aligned with the current DHS standards. After the instant Final Rule takes effect, the Department anticipates that it will undertake new notice-and-comment rulemaking in light of the 2022 DHS Final Rule.

Comment: One commenter expressed support for the 2019 IFR, stating that visa applicants should be vetted to ensure they will not overstay their visas, have children in the United States, and then apply for welfare.

Response: All visa applicants undergo a thorough screening and vetting process, and must establish to the satisfaction of the consular officer that they are eligible to receive a visa in accordance with U.S. law. Just as the Department will continue to faithfully administer the public charge ground of inadmissibility, it will also continue to administer the other wide-ranging grounds of inadmissibility in section 212(a) of the INA, 8 U.S.C. 1182(a), that apply to nonimmigrant and immigrant visa applicants. However, whether an applicant is likely to overstay their visa within the United States or have children is outside the scope of a review of an applicant's admissibility on public charge grounds.

Comment: One commenter expressed support for the 2019 IFR because, in the commenter's view, it would reduce levels of unauthorized presence of noncitizens in the United States. The commenter expressed their belief that many immigrants in the United States “refuse to assimilate.”

Response: Levels of unauthorized presence and “assimilation” are outside the scope of this rule. Consular officers apply the public charge ground of visa ineligibility with respect to visa applicants, and specifically those who are likely to become a public charge. This rule and policy have no direct bearing on whether noncitizens remain in lawful status in the United States.

Comment: One commenter expressed support for the 2019 IFR, stating that according to some statistics, immigrants to the United States are more highly educated and seek public benefits less often than citizens born in the United States. For that reason, the commenter stated that finalizing the 2019 IFR would not harm immigrant communities.

Response: The Department's policy goal of consistency with DHS standards in applying the public charge ground of inadmissibility weighs against finalizing on a permanent basis amendments to regulations that were implemented as a result of the 2019 IFR.

Comment: 105 commenters expressed opposition to the Department's 2019 IFR citing their opposition to the 2019 DHS Final Rule. The stated reasons for opposing the 2019 DHS Final Rule were varied and included many of the other reasons listed in Table 3 above.

Response: The Department acknowledges the opposition expressed towards the 2019 DHS Final Rule. The Department issued the 2019 IFR in part to avoid situations when a consular officer would evaluate an applicant's circumstances and conclude that the applicant is not likely to become a public charge, only for DHS to reach a different conclusion under the 2019 DHS Final Rule when the applicant sought admission to the United States. In light of DHS's removal of the regulatory text promulgated in the 2019 DHS Final Rule, as well as DHS's subsequent issuance of the 2022 DHS Final Rule in which DHS explained its decision to not again pursue the policies contained in the 2019 DHS Final Rule, 24 the Department's policy interest in ensuring that noncitizen travelers to the United States in similarly situated circumstances are subject to fair and consistent adjudications under U.S. law when applying for a visa and when seeking admission to the United States on that visa is not advanced by finalizing the regulatory amendments made by the 2019 IFR. Rather, reverting to the Prior Rule will better ensure that the Department maintains consistency with the 2022 DHS Final Rule because the Prior Rule aligns with the standards contemplated by the 1999 Interim Field Guidance, which influenced the policy reflected in the 2022 DHS Final Rule. Additionally, following reversion to the Prior Rule, consular officers will apply the FAM guidance currently in place, which generally is aligned with the current DHS standards, and avoids treating visa applicants differently from similarly situated applications for admission or adjustment of status under the 2022 DHS Final Rule.

Comment: Many commenters suggested that the 2019 IFR should be rescinded because it was contrary to the statute and was unlawful. Many commenters had submitted their comments stating that the 2019 IFR was unlawful before it was preliminarily enjoined by a federal district court, but after the 2019 DHS Final Rule had been found unlawful and preliminarily enjoined or vacated by federal courts. Some commenters in 2019 noted that federal district courts had issued injunctions against the 2019 DHS Final Rule. Some commenters in response to the Public Comment Reopening noted that on March 9, 2021, a federal district court order vacating the 2019 DHS Final Rule went into effect.

Response: The judicial decision regarding the 2019 IFR that enjoined its application, and the judicial decisions enjoining or vacating the 2019 DHS Final Rule were considered in the Department's decision to reopen the public comment period on the 2019 IFR. 25 In the 2019 IFR, the Department noted that, as a policy matter, coordination of the Department's and DHS's implementation of the public charge inadmissibility ground is critical to the Department's interest in preventing inconsistent adjudication standards and different outcomes between determinations of visa eligibility and determinations of admissibility at or between a port of entry or in an application for adjustment of status. 26 Given DHS's adoption of the 2022 DHS Final Rule, the Department's interest in coordinating adjudication standards no longer favors retention of the regulatory amendments made by the 2019 IFR and instead favors a return to the Prior Rule.

Comment: Some commenters expressed opposition to the overall public charge policy reflected in the 2019 IFR because of what they alleged to be its detrimental public health effect on immigrant families.

Response: The Department understands these commenters' concerns about the relationship between public charge inadmissibility determinations under the standards set forth in the 2019 DHS Final Rule and the 2019 IFR and the willingness of immigrant families, including U.S. citizen children in immigrant families, to receive public benefits for which they were eligible. Following the reversion of regulations to those in place prior to the 2019 IFR, the public charge grounds of visa ineligibility have been and will be applied in a way that should ameliorate the concern of these commenters. This final rule will be accompanied by public outreach by the Department to ensure that immigrant communities understand this rule, including how it differs from the 2019 IFR.

Comment: A large number of commenters argued that the 2019 IFR should be rescinded because the 2019 DHS Final Rule, which was consistent in substance with the 2019 IFR, was vacated by a federal district court, and preliminarily enjoined by that court and multiple other federal district courts. In response to the Public Charge Reopening, several commenters also noted that the 2019 IFR itself was preliminarily enjoined by a federal district court.

Response: As stated above, the judicial orders enjoining or vacating the 2019 DHS Final Rule were considered in the Department's decision to reopen the public comment period on the 2019 IFR. 27 For the reasons stated above, the Department is not finalizing that regulatory text, and is instead reverting to the Prior Rule and continuing to apply current FAM guidance, 28 while considering new rulemaking in light of the 2022 DHS Final Rule.

Comment: 41 comments stated that the 2019 IFR was either racially biased or discriminatory in how it applied the public charge ground of inadmissibility. Commenters claimed that the 2019 IFR rendered certain visa applicants inadmissible on public charge grounds due to conditions in their countries of origin.

Response: The 2019 IFR explained the Department's reasons for adopting the IFR, in particular as a means to ensure consistency with the 2019 DHS Final Rule. As noted, the Department will not finalize the regulatory amendments made by the 2019 IFR for the reasons stated previously and anticipates that it will undertake further rulemaking in light of the 2022 DHS Final Rule. In the development of any future rulemaking regarding the public charge ground of inadmissibility, the Department will continue to be faithful to the relevant statute and congressional directions, including developing a rule that can be applied fairly and consistently to applicants worldwide in a manner consistent with the laws and values of the United States.

Comment: 39 commenters expressed opposition to the 2019 IFR due to what were described as circumstantial eligibility factors to be considered in the totality of the circumstances analysis. The 2019 IFR listed a number of factors that an adjudicator would consider in the totality of the circumstances when determining whether a visa applicant is inadmissible on public charge grounds and listed a number of different benefits the receipt of which over a certain period of time could lead to a finding of inadmissibility. Some commenters argued that these factors were designed to increase the percentage of applicants who would be found inadmissible. Others argued that the factors were so complicated that public benefit administrators had difficulty advising potential recipients on a course of action they could take that would be consistent with the public charge policy set forth in the 2019 IFR.

Response: The Department's consular officers will continue to apply a totality of the circumstances framework for the analysis of the public charge ground of inadmissibility consistent with the statute, the Prior Rule, and guidance published in the FAM. Under the FAM guidance, in making public charge inadmissibility determinations, consular officers will look at “many factors . . . including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of a qualifying affidavit of support, in accordance with INA 213A, if required, will determine whether an individual is a public charge.”  29 Under this FAM guidance, these factors make up the “totality of the circumstances” framework that was in place prior to the publication of the 2019 IFR. This framework aligns more closely with the current DHS standards than the 2019 IFR. 30 The FAM guidance clearly notes for adjudicators and the public that the application of the public charge ground of inadmissibility differs significantly from the heavily weighted positive and negative factors set forth in the 2019 IFR. The FAM guidance is also consistent with the Prior Rule, which along with the statute will govern adjudications.

Comment: 39 commenters stated that the overall public charge policy reflected in the 2019 IFR imposed economic burdens on immigrant families and other vulnerable populations within the United States, increasing healthcare costs on an aggregate basis and increasing food insecurity.

Response: Neither the 2019 IFR nor this final rule address eligibility standards for the receipt of public benefits. However, the Department acknowledges the data provided by public commenters showing a measurable drop in receipt of public benefits by individuals who were eligible to receive such benefits during the time period after the publication of the 2019 DHS Final Rule and the 2019 IFR. 31 Following the effective date of this Final Rule, the public charge inadmissibility ground will be applied as interpreted by the Prior Rule and FAM guidance, which generally are aligned more closely with the current DHS standards than the 2019 IFR. Reverting to the Prior Rule will reduce any unintended economic burdens among immigrant populations not subject to the public charge ground of inadmissibility, while not imposing undue burdens on the public.

Comment: Distinct from the opposition to the “totality of the circumstances” framework set forth in the 2019 IFR, a number of commenters argued that its methods of calculation of factors in public charge inadmissibility determinations, both positively and negatively weighted, with certain factors being heavily weighted in either direction, were themselves unfairly derived and applied. Specifically, commenters argued that the way in which factors were heavily weighted, either positively or negatively, would result in inconsistent adjudicatory results in applying the public charge grounds of inadmissibility.

Response: Under section 212(a)(4) of the INA, 8 U.S.C. 1182(a)(4), consular officers are required to consider specific factors, at a minimum, in determining whether an applicant for a nonimmigrant or immigrant visa is inadmissible because they are likely at any time to become a public charge. These factors are the applicant's age; health; family status; assets, resources, and financial status; and education and skills. Furthermore, a consular officer may also consider an Affidavit of Support Under Section 213A of the INA submitted on the noncitizen's behalf when such is required. 32 The 2019 IFR sought to ensure the Department was consistent with the policy set forth in the 2019 DHS Final Rule in how the Department considered such factors when applying the public charge ground. DHS promulgated a new rule in 2022 that departs from the 2019 DHS Final Rule and the 2019 IFR's approach to consideration of such factors. Accordingly, as explained, the Department will not finalize the regulatory amendments made by the 2019 IFR, including its approach to consideration of such factors, because doing so would create rather than avoid inconsistency with DHS. The Department is also inclined to agree with DHS's analysis regarding the issues posed by the weighing of factors in the 2019 DHS Final Rule. The Department anticipates that it will engage in further rulemaking in light of DHS's 2022 rule.

As the Department is not finalizing the regulatory amendments made by the 2019 IFR, the inadmissibility of applicants for nonimmigrant and immigrant visas subject to the public charge ground shall be reviewed on the basis of the totality of their circumstances, consistent with Department regulations and guidance in place prior to the promulgation of the 2019 IFR.

Comment: 31 commenters opposed the definition of “public charge” set forth in the 2019 IFR. Commenters stated that the definition was too broad; asserted that it was inconsistent with congressional intent, historical practice, judicial decisions, and administrative guidance; and raised other objections to the definition listed therein.

Response: While the term “public charge” is not defined in the text of the INA and the statute vests the Department with discretion in its administration, the Department acknowledges that the definition set forth in the 2019 IFR and the 2019 DHS Final Rule differed significantly from the definition applied for decades previously, most notably in the 1999 Interim Field Guidance and related FAM guidance issued by the Department. The 2019 IFR had implemented this definition out of a desire to more closely align with the standards then applied by DHS in determining inadmissibility on public charge grounds. In 2022, DHS published a new Final Rule, implementing different standards. In the 2022 DHS Final Rule, DHS discussed in depth the definition that it used in the 2019 DHS Final Rule, and how it will not be applied in implementing the 2022 DHS Final Rule. As such, the 2019 IFR no longer meets the policy aim of consistency with DHS standards. The Department will instead restore the Prior Rule, and after the instant rule is finalized, anticipates that it will initiate new rulemaking in light of the 2022 DHS Final Rule.

Comment: Some commenters, particularly those focused on healthcare, asserted that the overall public charge policy reflected in the 2019 IFR had an adverse effect on the private health insurance industry. In particular, commenters stated that the increased numbers of immigrants not accepting public health benefits to which they would normally be eligible caused overall healthcare costs to increase, leading to an aggregate increase in private health insurance premiums for the public.

Response: The Department appreciates these commenters' concerns about the relationship between public charge inadmissibility determinations and private health insurance. We acknowledge evidence provided by many commenters suggesting that perceptions about the overall public charge policy reflected in the 2019 IFR had unintended effects on the willingness of individuals outside the scope of the IFR, such as U.S. citizens with noncitizen family members, to enroll in health insurance programs for which they are eligible. 33 The reversion to the Prior Rule will provide applicants with a clearer understanding of the application of the public charge grounds of inadmissibility, which should mitigate unintended consequences such as disenrollment in health insurance programs by U.S. citizens with non-citizen family members.

Comment: Three commenters suggested that the 2019 IFR should be rescinded because it contradicts E.O. 14012, 34 which called on government departments and agencies to review public charge policies and other current immigration policies, in order to consider their effect on the integrity of the national immigration system. E.O. 14012 also called upon government departments to consider better methods of communicating its public charge policies and proposed changes, if any, with the public.

Response: Through the instant rulemaking, the Department is declining to make permanent the regulatory amendments made by the 2019 IFR. The Department anticipates that it will engage in rulemaking in light of the 2022 DHS Final Rule, pursuant to the Executive Branch's policy as articulated in section 1 of E.O. 14012. Until a subsequent rule is developed and published, the Department will continue to instruct its consular officers to apply the public charge ground of inadmissibility consistent with the statute, Prior Rule, and guidance contained in the FAM. 35

Comment: Some localities and states submitted comments, arguing that the overall public charge policy reflected in the 2019 IFR constituted a burden on state, local and territorial governments' ability to administer their own public health services and other benefits.

Response: The Department acknowledges the uncertainty many state, local, Tribal, and territorial governments experienced due to the administrative changes caused by the overall public charge policy reflected in the 2019 IFR. According to a joint public comment by attorneys general from twenty states and the District of Columbia, immigrant parents of school aged children, whether citizens, LPRs, or noncitizens, were hesitant to participate in distance learning, accept loaned technology, or participate in food distribution programs such as the National School Lunch Program, School Breakfast Program, and the Summer Food Service Meal Program provided by state and local governments due to confusion regarding the overall public charge policy. Other public commenters have expressed concern that the 2019 IFR dissuaded individuals in several communities, such as U.S. citizen family members of noncitizens overseas applying for visas, from applying for, collecting or retaining public benefits for which they would have been eligible. And some commenters representing local and state governments stated that they found a decline in enrollment in public benefit programs relating to the overall change in public charge policy, which resulted in unexpected changes to program usage. Following the reversion of regulations to those in place prior to the 2019 IFR, the public charge ground of visa ineligibility has been and will be applied in a way that should ameliorate the concern of these commenters. This final rule will be accompanied by public outreach by the Department and other stakeholders to ensure that immigrant communities understand this rule, including how it differs from the 2019 IFR.

In continuing to apply the interpretation of the public charge ground of inadmissibility that existed prior to the 2019 IFR, this final rule removes the amendments to the regulation made by the 2019 IFR and restores the regulatory text of the Prior Rule. The Department finds, following its review of the public comments and the changes in circumstances following publication of the 2019 IFR, that the Department's policy of ensuring consistency with DHS no longer supports the 2019 IFR and that the Department should conduct further notice-and-comment rulemaking in light of the 2022 DHS Final Rule.

The Public Comment Reopening solicited comments on (1) whether the 2019 IFR should be rescinded or revised, and (2) what final rule should be adopted, if any. In reviewing the public comments submitted in response to it, along with public comments provided in response to the 2019 IFR, together with E.O. 14012 and the standards set forth in the 2022 DHS Final Rule, the Department has concluded that reverting to the Prior Rule is the most appropriate path forward.

The Department is therefore not finalizing the regulatory amendments made by the 2019 IFR and is instead reverting to the Prior Rule. This does not represent any change from the policies the Department has applied since 2020, when the preliminary injunction of the 2019 IFR took effect. This final rule restores the Prior Rule, with the exception of a technical change made to remove an outdated reference to a particular portion of the Schedule of Fees for Consular Services. 36

The interpretation of the public charge ground of inadmissibility in the Prior Rule more closely aligns with the standards articulated in the 2022 DHS Final Rule. There is a significant policy interest in ensuring that similarly situated noncitizen travelers to the United States are subject to fair and consistent adjudications under U.S. law when applying for a visa and when seeking admission to the United States on that visa. While the Prior Rule differs in some respects from the 2022 DHS Final Rule (for example, while the 2022 DHS Final Rule amends an existing information collection, the Department is not implementing any changes to its information collections in reverting to the Prior Rule), the change will greatly decrease the potential for unequal treatment and undue barriers for noncitizens applying for visas.

Following publication of this final rule, the Department intends to commence new rulemaking, which will have the goal of publishing and implementing a more comprehensive public charge regulation. For the reasons discussed in this rule, the Department has removed the regulations promulgated under the 2019 IFR and reverted to the prior text of 22 CFR 40.41.

The Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1532 (“UMRA”), generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more (adjusted for inflation) by State, local, territorial, or Tribal governments, or by the private sector. This rule will generally continue consular practices that had been in place prior to 2019, and that have been applied since the 2019 IFR was preliminarily enjoined by a District Court in 2020. This rule does not require the Department to prepare a statement because it is not anticipated that it will result in an annual expenditure of $100 million or more (adjusted for inflation) by State, local, territorial, or Tribal governments, or by the private sector. 37 Additionally, this rule does not contain any Federal mandate (as defined in UMRA) because it does not impose any enforceable duty upon any level of government or private sector entity.

The Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866. The Office of Management and Budget (OMB) has determined that this is a significant regulatory action under Executive Order 12866. As such, OMB has reviewed this regulation accordingly.

In comparison to the 2019 IFR, which was previously published and put into effect, this rule may result in new costs, benefits, and transfers. The Department does not believe there are any quantifiable new direct costs for this final rule, as the Department is not proposing to add additional information collection burdens on visa applicants. As such, visa applicants will see no increase in the time it takes to complete either the immigrant visa application or the nonimmigrant visa application or associated opportunity costs.

The Department believes that this final rule may have indirect effects on State, local, territorial, and/or Tribal governments, primarily in the form of increased transfer payments from federal, state, territorial and Tribal governments to individuals. According to OMB Circular A-4, transfer payments are payments of money from one group to another for which no goods or services are exchanged, and do not affect the total resources available to society. 38 Changes in transfer payments are considered neither costs nor benefits of a rule. While acknowledging the potential chilling effects caused by the 2019 IFR, the Department emphasizes that neither the public charge statute nor this final rule directly regulates eligibility for public benefits for any population. While the removal of the 2019 IFR from the regulations may result in increased transfer payments, the Department is unable to concretely quantify these effects. This final rule is being published after DHS published the 2022 DHS Final Rule, which may have a more significant impact on the willingness of noncitizens to accept transfer payments than the removal of the 2019 IFR.

Further, the 2019 IFR was only in effect between October 15, 2019, when it was published in the Federal Register , 39 and July 29, 2020, when the United States District Court for the Southern District of New York issued a preliminary injunction enjoining the Department from its application. 40 In addition, on March 20, 2020, in response to the worldwide COVID-19 pandemic the Department temporarily suspended routine visa services at all U.S. Embassies and Consulates. 41 A phased resumption of services began on July 15, 2020, just two weeks before the preliminary injunction was issued. 42

Consistent with E.O. 12866, the Department considered the costs and benefits of available regulatory alternatives. One alternative that the Department considered was finalizing the regulatory amendments made by the 2019 IFR. However, as noted above, the Department adopted the 2019 IFR largely to conform with the 2019 DHS Final Rule, which has been supplanted by the 2022 DHS Final Rule. In publishing this final rule, the public charge grounds of inadmissibility will be applied using the Prior Rule and FAM Guidance, as they were applied prior to 2019. The Department believes that, to the extent practicable, standards for the enforcement of the public charge ground of inadmissibility should be consistent in order to ensure consistent application among similarly situated noncitizens. As such, the Department does not believe that finalizing the regulatory amendments made by the 2019 IFR would be the best course of action.

Along with Executive Order 12866, Executive Order 13563 directs agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributed impacts, and equity). The Department has reviewed the final rule under Executive Order 13563 and has determined that this rulemaking is consistent with the principles therein.

Additionally, the Department has reviewed this rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 14094 and confirms this rulemaking is consistent with the principles therein.

This final rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor will the final rule have federalism implications warranting the application of Executive Orders 12372 and 13132.

The Department has determined that this rulemaking will not have Tribal implications, will not impose substantial direct compliance costs on Indian Tribal governments, and will not preempt Tribal law. Accordingly, the requirements of Section 5 of Executive Order 13175 do not apply to this rulemaking.

The Department has reviewed the rule considering sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.

This final rule does not impose any new reporting or recordkeeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. 3501-3520. The 2019 IFR imposed a new information collection requirement. OMB subsequently granted an emergency approval for the use of a new form by the Department, DS-5540, Public Charge Questionnaire (“DS-5540”). 43 The emergency approval was granted only until August 31, 2020, and expired after that date. OMB has not approved the information collection under the DS-5540 since that time, and on March 26, 2021, the Department published a notice stating that visa applicants are not required to complete and should not present a DS-5540. 44

The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., requires agencies to perform an analysis of the potential impact of regulations on small businesses, small governmental jurisdictions, and small organizations during the development of their rules. “Small entities” comprises small business, not-for-profit organizations that are independently owned and operated and not dominant within their fields, or governmental jurisdictions with populations under 50,000. This final rule would not regulate “small entities” as that term is defined in 5 U.S.C. 601(6) and as such does not have a significant economic impact on a substantial number of small entities. This final rule only applies to individual visa applicants, which are not defined as a “small entity” by the RFA.

The Office of Information and Regulatory Affairs has determined that this final rule is not a “major rule” as defined by Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the Congressional Review Act, 5 U.S.C. 804(2). This final rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and import markets. The Department will send this final rule to Congress and to the Comptroller General pursuant to the Congressional Review Act, 5 U.S.C. 801.

For the reasons stated in the preamble, the Department amends 22 CFR part 40 as follows:

I. Background

In accordance with the Privacy Act of 1974, OPCL is establishing a new system of records, Data Protection Review Court Records System, JUSTICE/OPCL-001, to maintain an accurate record of the DPRC review of determinations made by the Civil Liberties Protection Officer of the Office of the Director of National Intelligence (ODNI CLPO) in response to complaints alleging violations of United States law in the conduct of United States signals intelligence activities, under the EU-U.S. Data Protection Framework established on October 7, 2022, pursuant to Executive Order (E.O.) 14086, Enhancing Safeguards for United States Signals Intelligence Activities, 87 FR 62283 (Oct. 14, 2022).

E.O. 14086 directed the Attorney General to issue a regulation establishing the DPRC as the second level of a two-level redress mechanism for alleged violations of law regarding signals intelligence activities. The Attorney General issued the regulation on October 7, 2022, “Data Protection Review Court.” 87 FR 628303 (Oct. 14, 2022) (codified at 28 CFR part 201).

The first level of the new redress mechanism established by E.O. 14086 is the investigation, review, and determination by the ODNI CLPO of whether a covered violation occurred and, where necessary, the appropriate remediation in response to a complaint. The complainant or an element of the Intelligence Community may seek review by the DPRC of the ODNI CLPO's determination.

Exercising the Attorney General's authority under 28 U.S.C. 511 and 512 to provide his advice and opinion on questions of law and the authority delegated to the Attorney General under E.O. 14086, the DPRC will review whether the ODNI CLPO's determination regarding the occurrence of a covered violation was legally correct and supported by substantial evidence and whether, in the event of a covered violation, the ODNI CLPO's determination as to the appropriate remediation was consistent with E.O. 14086.

The regulations require the DPRC, and OPCL in support of the DPRC, to maintain all records relating to the DPRC's review. For each application for review, OPCL shall maintain records of the information reviewed or created by the DPRC and the decision of the DPRC panel, which records shall be made available for consideration as non-binding precedent to future DPRC panels considering applications for review. 28 CFR 201.9(j), see also 28 CFR 201.5 through 201.15. Records of the DPRC's review will include material created by the complainant, the public authority of a designated state, ODNI CLPO, elements of the Intelligence Community, DPRC Judges and Special Advocates, and Department of Justice personnel. Most of the information in this system consists of records that are classified, including the record of review received from the ODNI CLPO.

Pursuant to 28 CFR 201.9(i), information in the system indicating a violation of any authority subject to the oversight of the Foreign Intelligence Surveillance Court (FISC) will be shared with the Assistant Attorney General for National Security, who shall report violations to the FISC as required by law and in accordance with its rules of procedure. Similarly, information in the system will be provided to the Privacy and Civil Liberties Oversight Board (PCLOB) as necessary for the PCLOB to conduct the annual review of the redress process described in section 3(e) of E.O. 14086, consistent with the protection of intelligence sources and methods.

The Privacy Act allows Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including those that provide individuals with a right to request access to and amendment of records about the individual. If an agency intends to exempt a particular system of records, it must first issue a rulemaking pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e).

The Department modifies 28 CFR part 16 to add a new Privacy Act exemption for the new system of records, Data Protection Review Court Records System, JUSTICE/OPCL-001. The Department adds this exemption because most of the records in this system will contain classified national security information. As such, notice, access, amendment, and disclosure (to include accounting for those records) to an individual, as well as certain record-keeping requirements, may cause damage to national security. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an exemption for systems of records that contain information properly classified pursuant to applicable law. Pursuant to 5 U.S.C. 552a(k)(1), the Department has claimed an exemption from several provisions of the Privacy Act, including provisions for individual access, amendment, disclosure of accounting, as well as certain provisions for record-keeping and notice, to prevent disclosure of any information properly classified pursuant to applicable law.

The Department has also claimed an exemption for this system of records from the above references provision of the Privacy Act because the records in this system relate to criminal law enforcement activities, and certain requirements of the Privacy Act may interfere with the effective execution of these law enforcement activities. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), authorizes agencies with a principal law enforcement function pertaining to the enforcement of criminal laws (including activities of prosecutors, courts, etc.) to claim an exemption for systems of records that contain information identifying criminal offenders and alleged offenders, information compiled for the purpose of criminal investigation, or reports compiled for the purpose of criminal law enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2), agencies may exempt a system of records from certain provisions of the Privacy Act if it contains investigatory material compiled for law enforcement purposes, other than materials within the scope of 5 U.S.C. 552a(j)(2). The Department has claimed exemptions from several provisions of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to prevent the harms articulated in this rule from occurring. Records in this system of records are only exempt from the Privacy Act to the extent the purposes underlying the exemption pertain to the record.

In accordance with 5 U.S.C. 552a(j) and 552a(k), this regulation was subject to formal rulemaking procedures by giving interested persons an opportunity to participate in the rulemaking process “through submission of written data, views, or arguments,” pursuant to 5 U.S.C. 553. This regulation exempts this system of records from certain provisions of the Privacy Act to protect national security and law enforcement sensitive information, preserve judicial independence and to ensure the integrity of adjudicatory records in cases before DPRC.

The Department has determined that this rule is not a “significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866.

This rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), Principles of Regulation; Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1(b), General Principles of Regulation; and Executive Order 14094, “Modernizing Regulatory Review”. OPCL anticipates no costs or benefits accruing from this rule.

This regulation will impact records related to or reviewed in handling complaints in accordance with E.O. 14086 and DOJ regulation, 28 CFR part 201, which are personal and generally do not apply to an individual's entrepreneurial capacity, subject to limited exceptions. Even though this system will contain records that are not covered by the Privacy Act, the Chief Privacy and Civil Liberties Officer has nevertheless reviewed this regulation in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996, 5 U.S.C. 801 et seq., requires the Department to comply with small entity requests for information and advice about compliance with statutes and regulations within the Department's jurisdiction. Any small entity that has a question regarding this document may contact the person listed in FOR FURTHER INFORMATION CONTACT . Persons can obtain further information regarding SBREFA on the Small Business Administration's web page at https://www.sba.gov/advocacy. This regulation is not a major rule as defined by 5 U.S.C. 804 of the Congressional Review Act.

This regulation will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 13132, it is determined that this regulation does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of E.O. 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

This regulation will have no implications for Indian Tribal governments. More specifically, it does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. Therefore, the consultation requirements of E.O. 13175 do not apply.

This regulation will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000, as adjusted for inflation, or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

The Paperwork Reduction Act of 1995, 44 U.S.C. 3507(d), requires the Department to consider the impact of paperwork and other information collection burdens imposed on the public. There are no current or new information collection requirements associated with this regulation.

Pursuant to the authority vested in the Attorney General by 5 U.S.C. 552a and delegated to me by Attorney General Order 2940-2008, the Department of Justice amends 28 CFR part 16 as follows:

Coast Guard District Commanders and Captains of the Port (COTP) must be immediately responsive to the safety and security needs within their jurisdiction; therefore, District Commanders and COTPs have been delegated the authority to issue certain local regulations. Safety zones may be established for safety or environmental purposes. A safety zone may be stationary and described by fixed limits or it may be described as a zone around a vessel in motion. Security zones limit access to prevent injury or damage to vessels, ports, or waterfront facilities. Special local regulations are issued to enhance the safety of participants and spectators at regattas and other marine events.

Timely publication of these rules in the Federal Register may be precluded when a rule responds to an emergency, or when an event occurs without sufficient advance notice. The affected public is, however, often informed of these rules through Local Notices to Mariners, press releases, and other means. Moreover, actual notification is provided by Coast Guard patrol vessels enforcing the restrictions imposed by the rule. Timely publication of notifications of enforcement of reoccurring regulations may be precluded when the event occurs with short notice or other agency procedural restraints.

Because Federal Register publication was not possible before the end of the effective period, mariners were personally notified of the contents of these safety zones, security zones, special local regulations, regulated navigation areas or drawbridge operation regulations by Coast Guard officials on-scene prior to any enforcement action. However, the Coast Guard, by law, must publish in the Federal Register notice of substantive rules adopted. To meet this obligation without imposing undue expense on the public, the Coast Guard periodically publishes a list of these temporary safety zones, security zones, special local regulations, regulated navigation areas and drawbridge operation regulations. Permanent rules are not included in this list because they are published in their entirety in the Federal Register . Temporary rules are also published in their entirety if sufficient time is available to do so before they are placed in effect or terminated. In some of our reoccurring regulations, we say we will publish a notice of enforcement as one of the means of notifying the public. We use this notification to announce those notifications of enforcement that we issued and will post them to their dockets.

The following unpublished rules were placed in effect temporarily during the period between January 2023 and March 2023 unless otherwise indicated. To view copies of these rules, visit www.regulations.gov and search by the docket number indicated in the following table.

On February 23, 2023, the Copyright Office (“Office”) published a notification of inquiry (“NOI”) in the Federal Register seeking public comments regarding when fees for late royalty payments should be assessed in connection with reporting by digital music providers (“DMPs”) under the Orrin G. Hatch-Bob Goodlatte Music Modernization Act's (“MMA's”) statutory mechanical blanket license (the “blanket license”). 1 The Office opened the February NOI based on interested parties' requests for guidance on this matter.

Having carefully considered the comments and thoroughly examined the statute and legislative history, the Office is terminating the inquiry without issuing any regulations on this subject. Rather, the Office is issuing an interpretive rule to provide the mechanical licensing collective (“MLC”), DMPs, and other parties with its conclusion that the statute's due date provisions are unambiguous. Interpretive rules “advise the public of the agency's construction of the statutes and rules which it administers.”  2 Under the Administrative Procedure Act, interpretive rules are not subject to notice and comment procedures and can be published with an immediate effective date. 3 Consequently, the publication of this document concludes this proceeding. 4

The MMA substantially modified the statutory “mechanical” license for reproducing and distributing phonorecords of nondramatic musical works under 17 U.S.C. 115, including by switching from a song-by-song licensing system to a blanket licensing regime that became available on January 1, 2021 (the “license availability date”), administered by the MLC designated by the Office. 5 The Office also designated a digital licensee coordinator (the “DLC”) to represent DMPs in proceedings before the Copyright Royalty Judges (“CRJs,” also sometimes referred to as the “Copyright Royalty Board” or “CRB”). The DLC also serves as a non-voting member of the MLC and carries out other functions. 6 Under the MMA, DMPs are able to obtain the blanket license to make digital phonorecord deliveries of nondramatic musical works, including in the form of permanent downloads, limited downloads, or interactive streams, subject to various requirements, including payment and reporting obligations. 7

As relevant to this proceeding, the MMA states that with respect to DMPs' payment and reporting obligations under the blanket license, “monthly reporting shall be due on the date that is 45 calendar days . . . after the end of the monthly reporting period.”  8 The MMA also states that “[l]ate fees for past due royalty payments shall accrue from the due date for payment until payment is received by the [MLC].”  9 Other reporting and payment deadlines, including regulations governing estimates and adjustments, are regulatory in nature. These provisions are further discussed below.

The Copyright Act, as amended by the MMA, assigns different responsibilities to the CRJs and Office with respect to the blanket license. Congress granted the CRJs the responsibility to set the blanket license's royalty rates and terms. 10 As part of this ratesetting authority, the CRJs' determinations “may include terms with respect to late payment[s].”  11 These “late fees” are a consequence of late royalty payments. While the CRJs' authority to set such late fees predated the MMA, the MMA added a provision stating that, with respect to the blanket license, “[l]ate fees for past due royalty payments shall accrue from the due date for payment until payment is received by the [MLC].”  12

The Office's responsibilities under the MMA include overseeing the administration of the blanket license, including by promulgating various regulations specifically required by Congress, such as those governing reporting and payment requirements for DMPs. 13 Relevant to this proceeding, Congress directed the Office to adopt regulations “regarding adjustments to reports of usage by digital music providers, including mechanisms to account for overpayment and underpayment of royalties in prior periods.”  14 Additionally, Congress granted the Office “broad regulatory authority”  15 to “conduct such proceedings and adopt such regulations as may be necessary or appropriate to effectuate the provisions of [the MMA pertaining to the blanket license].”  16

On September 17, 2020, the Office issued an interim rule adopting regulations concerning reporting and payment requirements under the blanket license (the “September 2020 Rule”). 17 The September 2020 Rule addressed the ability of DMPs to make adjustments to monthly and annual reports and related royalty payments, including to correct errors and replace estimated royalty calculation inputs ( e.g., the amount of applicable public performance royalties) with finally determined figures. 18 The interim regulations permit DMPs to make adjustments in other situations as well, such as in exceptional circumstances, following an audit, or in response to a change in the applicable statutory rates or terms adopted by the CRJs. 19

During the rulemaking proceeding that culminated in the September 2020 Rule, the MLC and DLC raised differing views about when a payment should be considered “late,” thus triggering the obligation to pay a late fee, in the context of the MMA, the Office's adjustments to reports of usage regulations, and the CRJs' late fee regulations. The MLC's view was that the MMA requires a DMP's payment to be considered “late” if not received by the 45th calendar day after the end of the monthly reporting period. 20 The DLC took an opposing view and contended that late fees should not be due for any timely adjustments to good faith estimates made pursuant to the Office's regulations or in response to a change in rates and terms made by the CRJs. 21 At the time of the September 2020 Rule, the Office declined to address the interplay between the statute, the CRJs' late fee regulation, and the Office's provisions for adjustments, in part, because it believed that “the CRJs may wish themselves to . . . update their operative regulation in light of the [September 2020 Rule].”  22

Since the Office issued the September 2020 Rule, the CRJs published two ratesetting determinations applicable to the blanket license: the Phonorecords III Remand determination (covering the 2018-2022 rate period)  23 and the Phonorecords IV determination (covering the 2023-2027 rate period). 24 Neither determination addressed the competing views within the industry on when the CRJ's late fee provisions are triggered.

The Phonorecords IV determination, which adopted the terms of the participants' settlement, 25 contains the current late fee regulation, which states that, “[a] Licensee shall pay a late fee of 1.5% per month, or the highest lawful rate, whichever is lower, for any payment owed to a Copyright Owner and remaining unpaid after the due date established in 17 U.S.C. 115(c)(2)(I)  26 or 17 U.S.C. 115(d)(4)(A)(i), 27 as applicable and detailed in part 210 of [the Office's regulations governing reporting and payments under the statutory mechanical license].”  28 It further provides that “[l]ate fees shall accrue from the due date until the Copyright Owner receives payment.”  29 In approving the parties' settlement, the CRJs found that the late fee provision was “not unreasonable.”  30

Both the Phonorecords III Remand and Phonorecords IV determinations resulted in rate calculations that use multiple steps to ultimately determine royalties due under the blanket license. 31 These calculations require inputs that may not be known at the time a DMP's reporting is due under the MMA, including the amounts expensed by DMPs for sound recording licenses and for musical works' public performance licenses as a factor in the calculation to determine mechanical royalties due under the blanket license.

In late 2022, before the CRJs' Phonorecords III Remand and Phonorecords IV determinations were finalized, the MLC and DLC submitted comments to the Office following a May 2022 amendment  32 to the September 2020 Rule and again raised the issue of late fees, confirming their continued disagreement on the subject. 33 Both the MLC and DLC requested the Office provide guidance and regulatory amendments. 34 The DLC requested that the Office “specify that when both the initial estimated payments and the later adjustment of such payments to account for the updated and finalized information are made according to the timelines established in the regulations, such payments are proper and have been made by the `due date for payment' as set forth in 17 U.S.C. [sec.] 115(d)(8)(B)(i).”  35 The MLC opposed the DLC's position  36 and instead proposed regulatory language providing that nothing in the adjustment provisions “shall change a blanket licensee's liability for late fees, where applicable.”  37

The Office's February NOI sought public comments on this disagreement and explained that, while it “typically does not offer interpretations of the CRJs' regulations,” the Office is squarely within its authority to advise the public on the construction of the Copyright Act. 38 Interested parties, including the MLC, National Music Publishers' Association (“NMPA”), DLC, publishers, groups representing songwriters, and others submitted comments responding to the Office's NOI. 39

The Copyright Alliance, Dina LaPolt, NMPA, Nashville Songwriters Association International (“NSAI”), Songwriters of North America (“SONA”), Songwriters Guild of America, Society of Composers & Lyricists, and Music Creators North America supported the MLC's position that the MMA's plain language indicates that the due date for payment is 45 calendar days after the end of a monthly reporting period and that late fees begin accruing after that point in time or that equitable policy considerations dictate the same result. 40

These parties generally argued that the MMA's plain language is conclusive with respect to the blanket license's “due date for payment.” The NMPA reasoned that “Congress was clear and unambiguous in establishing precisely when late fees shall begin to accrue,” as “the date that is 45 calendar days . . . after the end of the monthly reporting period.”  41 The Copyright Alliance echoed this reasoning, adding that there is language in the MMA's legislative history stating that a DMP must provide the MLC certain data “along with its royalty payments due 45 calendar days after the end of a monthly reporting period.”  42

The NMPA added that the statute does not contain any exceptions for underpayments, including for those “caused by an error, a misestimate, or any other reason,” including “where the DMP later corrects its underpayment through an adjustment.”  43 It noted that Congress could have created an exemption to when late fees accrue, as it did for royalty payments under the optional statutory limitation on liability for certain unlicensed uses prior to the license availability date, but it did not do so. 44

These parties also made policy arguments supporting their view that late fees should begin to accrue starting after 45 calendar days after the end of a monthly reporting period. For example, they argued that their approach would incentivize DMPs to pay the MLC—and, in turn, songwriters and publishers—accurately and on time and that the DLC's opposing interpretation, discussed below, would disincentivize accurate and timely royalty payments. 45 Some argued that the harm to songwriters under the DLC's position would be significant, while the MLC's position would not cause significant harm to DMPs. 46 As NSAI explained, “[a]n underpayment of even a few hundred dollars for a few months can mean meaningful life decisions for a songwriter. The gravity of that must be considered against the inconsequential burden a minimal late fee imposes on a DMP.”  47

The DLC contends that “the clear text of the statute and relevant regulations, unbroken historical precedent, and interests of efficiency and equity” support its position that late fees are not due for payments that are compliant with the Office's estimate and adjustment reporting regulations. 48 The DLC explained that because the MMA states that monthly payments must “comply with requirements that the Register of Copyrights shall prescribe by regulation” and because the CRJs referenced the Office's section 115 regulations in their late fee provision, 49 “[t]aken together, these provisions compel the conclusion that when a payment is made on or before the due date, and is made in compliance with the regulatory requirements, it is not `late' or otherwise legally deficient, even if it is based on estimated inputs, or is an adjustment to a payment made earlier.”  50 It asserts that “estimates and adjustments are a necessary consequence of the CRB's . . . rate structure” because the required inputs under the rate structure ( e.g., royalties for sound recordings or the public performance of musical works) may not be final or known when reporting is due to the MLC, therefore DMPs must be allowed to rely on estimates and adjustments and not incur late fees when doing so. 51

The DLC also offered policy-based reasons in support of its position. For example, it claimed that “[i]f DMPs are threatened with late fees for every routine royalty payment, one can reasonably expect that at least some [DMPs] will systematically over pay royalties” and subsequent “clawback[s]” would cause operational challenges for the MLC and harm to songwriters and publishers. 52 Finally, the DLC claimed that “[i]t defies common sense that failing to guess at and pay royalties at not-yet-determined rates would trigger late fees,”  53 and suggested that Congress would not have intended such a “facially illogical result.”  54

The Office has reviewed the MMA's text, context, and statutory scheme along with cannons of statutory construction in its consideration of whether the statute is ambiguous. 55 It concludes that the statute's (i) due date provisions, (ii) direction to the Office to adopt regulations governing adjustments, and (iii) delegation of authority to the CRJs to promulgate late fee provisions are compatible and unambiguous. The Office, therefore, declines to issue any associated regulations.

Starting with the statute's text, section 115(d)(8)(B)(i) states that CRJ-adopted “[l]ate fees for past due royalty payments [under blanket licenses] shall accrue from the due date for payment until payment is received by the mechanical licensing collective.”  56 The phrase “due date for payment” is undefined and, therefore, these words must “be interpreted as taking their ordinary, contemporary, common meaning.”  57 Black's Law Dictionary defines “due date” as “[t]he date on which something is supposed to happen, esp. as a matter of requirement.”  58

In the Office's view, “due date for payment” unambiguously refers to the “date on which” monthly royalty payments are required to be delivered to the MLC. Section 115(d)(4)(A)(i) provides that “[a] digital music provider shall report and pay royalties to the mechanical licensing collective under the blanket license on a monthly basis in accordance with . . . subsection (c)(2)(I), except that the monthly reporting shall be due on the date that is 45 calendar days, rather than 20 calendar days, after the end of the monthly reporting period.”  59 Section (c)(2)(I), in turn, states that monthly “royalty payments . . . shall include all royalties for the month next preceding.”  60 Taken together, the plain and natural meaning of the statute is that “all royalties” for a given monthly reporting period are “due” no later than 45 days after the end of the monthly reporting period. Thus, any royalties received by the MLC for such reporting period after this “due date for payment” are late. They are “past due royalty payments” that are subject to such “late fees” as the CRJs may adopt.

The DLC argues that this construction of the statute yields an absurd result. 61 While a statutory ambiguity can be found if clear statutory text would produce an absurd result, 62 that is not the case here. Rather, the Office understands that the DLC's concerns are really aimed at the potential effect of the CRJs' regulations, not the statute itself.

The fact that the final amount due on the statutory due date may not be known to a DMP on that date is a product of the rate structure adopted by the CRJs, which involves calculating royalties using inputs that may not be finally determined at the time the royalty is due, necessitating the use of estimates and adjustments. 63

To the extent Congress disapproved of this result, and instead intended the result advocated for by the DLC, Congress either would not have adopted the version of section 115(d)(8)(B)(i) that it did or it would have made other changes to the statute. A version of the CRJs' current rate structure has been in place since the Phonorecords I settlement, 64 which predated the MMA's enactment by nine years. Congress would have been aware of the CRJs' longstanding rate structure in passing the MMA, including with respect to the operation of estimates and adjustments, therefore the decision to enact section 115(d)(8)(B)(i) and the rest of the MMA against that backdrop must be understood as intentional.

This understanding is not incompatible with the MMA's direction, in section 115(d)(4)(A)(iv)(II), for the Office to adopt regulations regarding adjustments. First, while the MMA requires the Office to establish regulations regarding adjustments, it does not require the CRJs to set royalty rates and terms using inputs that are not final at the time the royalties are due. For example, the CRJs could have set a per-stream rate that did not use any such inputs. 65 Second, while DMPs who take advantage of the Office's estimate and adjustment regulations  66 may have to pay late fees under the CRJs' regulations for any underpayments, that has no bearing on whether the statutory text is ambiguous. As the MLC points out, the estimate and adjustment regulations adopted by the Office pursuant to that provision allow DMPs “to use estimates where appropriate without violating the law[,] . . . but not the ability to pay royalties later than the statutory due date.”  67

Further, as the NMPA noted, Congress knows how to exempt certain types of royalty payments from incurring late fees, as it did with the optional statutory limitation on liability for certain unlicensed uses prior to the license availability date. 68 Under the negative-implication cannon of statutory construction, “[w]hen Congress includes particular language in one section of a statute but omits it from a neighbor, we normally understand that difference in language to convey a difference in meaning,”  69 i.e., that textual difference is presumed to be intentional.

Commenters appear to be in agreement that late fees do not apply to adjustments resulting from the change in rates and terms following the CRJs' Phonorecords III Remand determination. For example, the MLC reasoned that where applicable royalty rates are changed, as with the Phonorecords III Remand proceeding, there would be no underpayment to trigger late fees, as the “rates were not in effect at those times.”  70 Similarly, the NMPA states that “where rates have not yet been determined, payment under the not-yet determined rates are not `due' ” and “[payment] only become[s] `due' when [the rates] are determined.”  71 The DLC believes that it would be illogical and inconsistent for DMPs' “true-up” payments made after the Phonorecords III Remand determination to be considered “late.”  72

The Office concurs that no late fees are owed in connection with any Phonorecords III Remand adjustments. Under section 115(c)(1)(C), for digital phonorecord deliveries (including uses under the blanket license), “the royalty payable shall be the royalty prescribed under subparagraphs (D) through (F), paragraph (2)(A), and chapter 8.”  73 Therefore, what constitutes “all royalties”  74 that are “due” for any given monthly reporting period  75 are the royalties “prescribed” under the rates and terms that are in effect at that time. 76 By definition, the newer rates and terms, despite having retroactive effect, were not “the royalty prescribed” at the time the previous payment was due, and therefore did not constitute “the royalty payable” at that time. 77 Previously timely payments cannot subsequently be rendered late because of a retroactive change in the rates and terms adopted by the CRJs.

As noted above, the Copyright Office concludes that the MMA's provisions are not ambiguous or silent on the issue of when royalty payments are due; therefore our inquiry ends here. To the extent that interested parties have competing policy concerns about when or how late fees should be incurred, such concerns must be addressed either to Congress or the CRJs, as Congress delegated authority over the substance of late fees to the CRJs and not the Office.

While we offer no views regarding what late fee regulations should be adopted by the CRJs, if any, the Office does take the position that the CRJs have broad and flexible authority under section 803(c)(7) to adopt late fee terms, including by adopting differentiated or variable late fees ( e.g., where the amounts can change over time), if the CRJs see fit to do so and such regulations are otherwise consistent with title 17 and based on an appropriate record. Nothing in title 17 suggests that the CRJs cannot adopt different late fees (whether with respect to their amount(s) or how they operate) based on competing policy concerns.

On April 11, 2023, EPA published a Notice of Proposed Rulemaking (NPRM) for the State of Connecticut. The NPRM proposed approving CT DEEP's revised SIP for its NSR permit program at Regulations of Connecticut State Agencies (RCSA) 22a-174-2a, 22a-174-3a, and 22a-174-20. The NPRM also proposed to convert a conditional approval to full approval for the 2015 NAAQS ozone standard infrastructure SIP as it relates to Clean Air Act (CAA) section 110(a)(2)(K) and for the Prevention of Significant Deterioration (PSD) requirements of CAA sections 110(a)(2)(D)(i)(II), 110(a)(2)(C), and 110(a)(2)(J). CT DEEP initially submitted a formal SIP revision to EPA on December 15, 2020, and a supplemental clarification letter was submitted on February 14, 2023. The rationale for EPA's proposed approval of the revised SIP is explained in the NPRM and will not be restated here. No germane comments were received regarding the NPRM.

EPA received four comments during the comment period, all of which were identical and outside the scope of this action. As such, these comments are nongermane and do not require further response to finalize the action as proposed. Nevertheless, EPA is including these comments in the docket for this rule.

EPA is approving CT DEEP's revised SIP for its NSR permit program as well as converting a conditional approval to a full approval for 2015 NAAQS ozone standard requirements in the Connecticut infrastructure SIP. Specifically, EPA is amending 40 CFR part 52, subpart H—Connecticut to include revisions to RCSA 22a-174-2a (Procedural Requirements for New Source Review and Title V Permitting), 22a-174-3a (Permit to Construct and Operate Stationary Sources), and 22a-174-20 (Control of Organic Compound Emissions) and is updating the CAA 110(a)(2) infrastructure requirements. Specifically, EPA is approving revisions to:

• Regulations of Connecticut State Agencies Section 22a-174-2a “Procedural Requirements for New Source Review and Title V Permitting,” 22a-174-2a(c)(3), 22a-174-2a(d)(9), 22a-174-2a(e)(3)(C), 22a-174-2a(e)(3)(E), 22a-174-2a(e)(7), 22a-174-2a(f)(2), and 22a-174-2a(f)(2)(G), amended by the State of Connecticut on November 18, 2020;

• Regulations of Connecticut State Agencies Section 22a-174-3a, “Permit to Construct and Operate Stationary Sources,” at 22a-174-3a(a)(2)(A)(ii) through (v), 22a-174-3a(a)(5), 22a-174-3a(d)(3)(B) and (C), 22a-174-3a(i) Table 3a(i)-1, 22a-174-3a(i)(2), 22a-174-3a(j)(1)(B), 22a-174-3a(j)(8)(A), 22a-174-3a(k)(3) and (4), 22a-174-3a(k)(6)(A), 22a-174-3a(k)(7) Table 3a(k)-1, and 22a-174-3a(l)(1), amended by the State of Connecticut on November 18, 2020; and

• Regulations of Connecticut State Agencies Section 22a-174-20, “Control of Organic Compound Emissions,” at 22a-174-20(gg)(8), amended by the State of Connecticut on November 18, 2020.

In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the provisions regulating NSR permitting as described in section III. of this preamble. These provisions update the CT DEEP's NSR procedural requirements, add to substantive review criteria for CT DEEP's NSR permitting process, and revise provisions related to the control of VOCs. EPA has made, and will continue to make, these documents generally available through https://www.regulations.gov and at EPA Region 1 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA.

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on Tribal Governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, February 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”

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

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 6, 2023. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

• Crop production (NAICS code 111).

• Animal production (NAICS code 112).

• Food manufacturing (NAICS code 311).

• Pesticide manufacturing (NAICS code 32532).

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

Under FFDCA section 408(g), 21 U.S.C. 346a(g), any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0384 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before November 6, 2023. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2022-0384, by one of the following methods:

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

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

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

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

In the Federal Register of January 3, 2023 (88 FR 38) (FRL-9410-08-OCSPP), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide petition (PP 2E8994) by IR-4, North Carolina State University, 1730 Varsity Drive, Venture IV, Suite 210, Raleigh, NC 27606. The petition requested to amend 40 CFR part 180 by establishing tolerances for residues of spinetoram in or on the raw agricultural commodities Stalk and stem vegetable subgroup 22A at 0.4 parts per million (ppm), and Spice group 26 at 1.7 ppm.

The petition also requested to remove established tolerances for residues of spinetoram in or on the following: Asparagus, and Spice subgroup 19B, except black pepper.

That document referenced a summary of the petition, which is available in the docket, https://www.regulations.gov. There were no comments received in response to the notice.

Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”

Consistent with FFDCA section 408(b)(2)(D), and the factors specified therein, EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for spinetoram including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with spinetoram follows.

In an effort to streamline its publications in the Federal Register , EPA is not reprinting sections that repeat what has been previously published for tolerance rulemaking of the same pesticide chemical. Where scientific information concerning a particular chemical remains unchanged, the content of those sections would not vary between tolerance rulemaking, and EPA considers referral back to those sections as sufficient to provide an explanation of the information EPA considered in making its safety determination for the new rulemaking.

EPA has previously published several tolerance rulemakings for spinetoram, in which EPA concluded, based on the available information, that there is a reasonable certainty that no harm would result from aggregate exposure to spinetoram and established tolerances for residues of that chemical. EPA is incorporating previously published sections of those rulemakings that remain unchanged, as described further in this rulemaking. Specific information on the risk assessment conducted in support of this action, including on the studies received and the nature of the adverse effects caused by spinetoram, can be found in the document titled “Spinosad and Spinetoram: Human Health Risk Assessment in Support of Proposed Uses on Stalk and Stem Vegetables (22A) and Greenhouse-Grown Cucumbers, Lettuce, Pepper, and Tomato; and Crop Group Conversion for Spice Group 26” (hereinafter “Spinosad and Spinetoram Human Health Risk Assessment”) which is available in the docket for this action at https://www.regulations.gov.

Toxicological profile. For a discussion of the Toxicological Profile of spinetoram, see Unit III.A. of the rulemaking published in the Federal Register of August 8, 2018 (83 FR 38976) (FRL-9978-83).

Toxicological points of departure/Levels of concern. For a summary of the Toxicological Points of Departure/Levels of Concern used for the safety assessment of spinetoram, see Unit III.B. of the August 8, 2018, rulemaking.

Exposure assessment. Much of the exposure assessment remains unchanged from the August 8, 2018, rulemaking, although the new exposure assessment incorporates the additional dietary exposure from the petitioned-for tolerances. Other changes are described below.

A chronic dietary exposure assessment was conducted using DEEM-FCID Version 4.02. This software uses 2005-2010 food consumption data from the U.S. Department of Agriculture's (USDA's) National Health and Nutrition Examination Survey, What We Eat in America, (NHANES/WWEIA). Acute and cancer analyses were not conducted as toxicological effects attributable to a single dose were not identified, and spinetoram is classified as not likely to be carcinogenic. The chronic dietary analysis assumed 100 percent crop treated (PCT), average field-trial residues or tolerance-level residues for crop commodities, average residues from the livestock feeding studies, experimental processing factors when available, and modeled drinking water estimates.

Anticipated residue information. Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under FFDCA section 408(f)(1). Data will be required to be submitted no later than 5 years from the date of issuance of these tolerances.

Drinking water and non-occupational exposures. The estimated drinking water concentrations (EDWCs) of spinetoram have been updated since the last assessment. Based on the Tier I Rice Model and Pesticide Root Zone Model Ground Water (PRZM GW), the EDWCs of spinetoram for chronic exposures are estimated to be 38 parts per billion (ppb) for surface water and below the levels of detection for ground water.

Modeled estimates of drinking water concentration were directly entered into the dietary exposure model. For the chronic dietary risk assessment, the water concentration value of 38 ppb was used to assess the contribution to drinking water.

There have been no changes to residential exposures since the August 8, 2018, rulemaking. For calculation of aggregate short-term exposure, residential exposure to adults (residential handler exposure from applying spinetoram to turf/ornamentals/home garden), children 3 to less than 6 years old (combined post-application inhalation and ingestion of water exposure during recreational swimming), and children 1 to less than 2 years old (post-application exposure resulting from the application of spinetoram to turf/ornamentals/home gardens) yield the highest residential short-term exposure and were therefore used in calculation of aggregate exposure.

Cumulative exposure. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.” Unlike other pesticides for which EPA has followed a cumulative risk approach based on a common mechanism of toxicity, EPA has not made a common mechanism of toxicity finding as to spinetoram and any other substances and spinetoram does not appear to produce a toxic metabolite produced by other substances. For the purposes of this action, therefore, EPA has not assumed that spinetoram has a common mechanism of toxicity with other substances.

Safety factor for infants and children. EPA continues to conclude that there is reliable data showing that the safety of infants and children would be adequately protected if the Food Quality Protection Act (FQPA) safety factor were reduced from 10X to 1X. The reasons for that decision are articulated in Unit III.D. of the August 8, 2018, rulemaking.

Aggregate risks and determination of safety. EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing dietary exposure estimates to the acute population-adjusted dose (aPAD) and chronic population-adjusted dose (cPAD).Short-, intermediate-, and chronic-term aggregate risks are evaluated by comparing the estimated total food, water, and residential exposure to the appropriate points of departure to ensure that an adequate margin of exposure (MOE) exists.

An acute assessment was not conducted because toxicological effects attributable to a single dose were not identified. Chronic dietary (food and drinking water) risks are below the Agency's level of concern of 100% of the cPAD: they are 73% of the cPAD for children 1 to 2 years old, which is the population subgroup with the highest exposure estimate.

The short-term aggregate risks combine chronic dietary (food and drinking water) and residential exposures. The short-term aggregate risk for adults is an aggregate MOE of 740; for children aged 3 to less than 6, the aggregate MOE is 330; and for children 1 to less than 2 years old, the aggregate MOE is 200. MOEs below 100 are of concern; these MOEs are above 100 and therefore are not of concern. Short-term aggregate risk calculations are protective of the intermediate-term duration of exposure.

Because spinetoram is classified as “not likely to be carcinogenic to humans”, EPA has concluded that aggregate exposure to spinetoram is not likely to pose a cancer risk.

Therefore, based on the risk assessments and information described above, EPA concludes there is a reasonable certainty that no harm will result to the general population, or to infants and children, from aggregate exposure to spinetoram residues. More detailed information about the Agency's analysis can be found at https://www.regulations.gov in the Spinosad and Spinetoram Human Health Risk Assessment in docket ID EPA-HQ-OPP-2022-0384.

For a discussion of the available analytical enforcement method, see Unit IV.A. of the August 8, 2018, rulemaking.

In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

There are currently no established Codex MRLs for residues of spinetoram in or on Stalk and stem vegetable subgroup 22A or Spice Group 26.

Therefore, tolerances are established for residues of spinetoram in or on Spice group 26 at 1.7 ppm, and the Stalk and stem vegetable subgroup 22A at 0.4 ppm.

Additionally, the established tolerances on Asparagus, and Spice, subgroup 19B, except black pepper, are removed as unnecessary.

This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq. ), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerances in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq. ), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or Tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or Tribal Governments, on the relationship between the National Government and the States or Tribal Governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian Tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq. ).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq. ), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter 1 as follows:

Regulations for the blueline tilefish fishery are at 50 CFR part 648. The regulations at § 648.295(b)(2)(ii) require that when NMFS projects that blueline tilefish catch will reach 100 percent of the total allowable landings (TAL), the Regional Administrator must close the commercial blueline tilefish fishery for the remainder of the fishing year. No vessel may retain or land blueline tilefish in or from the Tilefish Management Unit after the announced closure date. NMFS monitors the blueline tilefish fishery catch based on dealer reports, state data, and other available information. NMFS must publish a notice in the Federal Register notifying blueline tilefish vessel and dealer permit holders of the closure date when 100 percent of the TAL is projected to be landed.

The Regional Administrator has determined, based on dealer reports and other available information, that the blueline tilefish commercial fishery will catch 100 percent of the TAL by September 5, 2023. Effective 0001 September 5, 2023, vessels may not retain or land blueline tilefish in or from the Tilefish Management Unit through December 31, 2023.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. This action is required by 50 CFR part 648, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

NMFS 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 delayed effectiveness period because it would be contrary to the public interest and impracticable. Data and other information indicating the blueline tilefish commercial fishery will have landed 100 percent of the TAL have only recently become available. Landings data are updated by dealer reports dealers on a weekly basis, and NMFS monitors data as catch increases toward the limit. This action is routine and formulaic. The regulations at § 648.295(b)(2)(ii) require such action to ensure that blueline tilefish commercial vessels do not exceed the 2023 TAL. If implementation of this action is delayed, the TAL for the 2023 fishing year may be exceeded, thereby undermining the conservation objectives of the Tilefish Fishery Management Plan. Also, the public had prior notice and full opportunity to comment on this process when the provisions regarding closures and the 2023 quota levels were put in place.

NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

The 2023 Pacific cod total allowable catch (TAC) apportioned to catcher vessels using trawl gear in the Central Regulatory Area of the GOA not participating in the cooperative fishery of the Rockfish Program is 4,155 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023).

In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the 2023 Pacific cod TAC apportioned to catcher vessels using trawl gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,155 mt and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip. This closure does not apply to fishing by vessels participating in the cooperative fishery of the Rockfish Program for the Central GOA.

NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of August 28, 2023.

The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.