On February 26, 2008, MSPB issued final regulations at 5 CFR parts 1201, 1203, 1208, and 1209 governing e-filing. 73 FR 10127. Under those regulations, virtually any type of pleading could be filed electronically via MSPB's e-filing application. In the February 26, 2008 Federal Register notice, MSPB announced that it was giving serious consideration to mandating e-filing for agencies and attorneys who represent appellants in MSPB proceedings. 73 FR 10127-28.

On October 13, 2011, MSPB issued an interim final rule, with request for comments, launching a pilot program under which the Washington Regional Office (WRO) and Denver Field Office (DEFO) required all pleadings filed by agencies and attorneys who represent appellants in MSPB proceedings to be e-filed. In the October 13, 2011 Federal Register notice, MSPB noted that should the pilot program in WRO and DEFO prove to be successful, the Board would consider proposing a final comprehensive rule that would make e-filing mandatory for agencies and attorneys who represent appellants. Since the launch of the pilot program, the proportion of pleadings e-filed has steadily increased. In fiscal year 2022, 85% of initial appeals and 95% of pleadings were filed electronically using MSPB's e-filing application.

On October 2, 2023, MSPB will launch an updated e-filing system, e-Appeal. The extensive capabilities of MSPB's current e-filing application that allow appellants, their representatives, and agencies to e-file an appeal and pleadings and view case records will still be available in the new, modernized e-Appeal system. Additionally, in the new e-Appeal, parties and their representatives will have access to a dashboard that allows management of all their Board cases and case materials in one place, providing new efficiencies for our customers. Although MSPB's current e-filing application has been valuable to both MSPB and its customers, some benefits can only be fully realized by maximizing the number of pleadings that are e-filed. By requiring e-filing for agencies and attorneys who represent appellants, MSPB can improve efficiency in adjudication and reduce costs associated with the need to scan pleadings that are submitted in paper form.

Finally, while these amendments are being issued immediately as interim final rules, the Board still requests that all stakeholders or other interested individuals provide their views on the amendments. The Board will thoroughly consider all input and respond to all comments as necessary.

Set forth below is a summary of amendments being implemented by MSPB.

This amendment modifies the procedures related to e-filing with the Board to require agency representatives and appellant attorney representatives to register as e-filers with MSPB and to file all pleadings using MSPB's e-Appeal. The amendment further modifies the scope of registration as an e-filer to now include all cases a party has with MSPB, and the requirements for what may be included with electronic pleadings in Board appeals. The amendment adds the requirement for agencies to designate an individual agency representative to whom the Board will serve a copy of an appeal when it is docketed.

This amendment modifies the requirements for the information contained in an appeal to include the email address of the appellant and the appellant's representative, if any. Because free email addresses are widely available, requiring an email address should not be an undue burden on appellants or appellant non-attorney representatives who do not register as e-filers. The amendment further removes references to the direct link to MSPB's e-Appeal, which can be accessed directly from MSPB's website.

This amendment removes the requirement for the appellant to file two copies of the appeal with the Board and modifies the formatting requirements for pleadings filed via postal mail, facsimile, or commercial or personal delivery in Board appeals. This amendment further adds the requirements for how audio and video evidence may be submitted to the Board.

This amendment reflects the change to the contact information of the Board's New York Field Office. Appendix II of this part is amended to show the new address and facsimile number. The geographical areas served by the New York Field Office are unchanged. This amendment also removes obsolete language regarding text-based telecommunications capabilities of the facsimile numbers for the Board's Regional and Field Offices.

The amendments described above will go into effect on October 2, 2023.

Pursuant to 5 U.S.C. 553(b), MSPB has determined that good cause exists for waiving the general notice of proposed rulemaking and public comment procedures as to these technical amendments. The notice and comment requirements of section 553(b) do not apply to interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice. The Board finds that use of an interim final rule instead of notice and comment rulemaking is appropriate here because the amendments contained herein apply solely to the Board's rules of agency organization, procedure, or practice. All of the amendments solely address how appeals proceed at the Board, and do not affect any substantive rights of parties before the Board or interested stakeholders. No substantive changes in existing law or policy are effected from these amendments. Under these circumstances, notice and comment rulemaking is unnecessary and not required by any public interest.

MSPB has determined that this is not a significant regulatory action under E.O. 12866. Therefore, no regulatory impact analysis is required.

The Regulatory Flexibility Act (RFA) requires an agency to prepare a regulatory flexibility analysis for rules unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The RFA applies only to rules for which an agency is required to first publish a proposed rule. See 5 U.S.C. 603(a) and 604(a). As discussed above, notice and comment rulemaking is unnecessary for these changes due to the lack of substantive changes being made to existing law or policy. Thus, the RFA does not apply to this final rule.

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. Chapter 35).

Pursuant to the Congressional Review Act (5 U.S.C. 801, et seq. ), the Office of Information and Regulatory Affairs designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

Accordingly, for the reasons set forth above, 5 CFR part 1201 is amended as follows:

To adapt to recent trends in FOIA requests made to the FLRA, the amendments centralize and streamline its FOIA request system. In addition to some minor non-substantive changes to correct typographical errors, the FLRA consolidates responsibility under the FOIA regulations for the FLRA's three-member Authority component, the Office of General Counsel, and the Federal Service Impasses Panel by transferring those responsibilities to the Solicitor of the FLRA (“Solicitor”) as their FOIA representative. The Solicitor serves as the agency's in-house counsel and typically as the agency's Chief FOIA Officer. The FLRA revises the relevant regulations in order to reflect the Solicitor's role as the representative of the Authority, the General Counsel, and the Panel for FOIA matters.

Consistent with the Office of Management and Budget's 2020 Update to the Uniform Freedom of Information Act Fee Schedule and Guidelines, 85 FR 81955 (Dec. 17, 2020), and the decision of the U.S. Court of Appeals for the District of Columbia Circuit addressing the “educational institution” fee category, the revisions also clarify the individuals who may qualify for reduced fees as an educational or noncommercial scientific institution under 5 CFR 2411.13(c)(2). See Sack v. Dept. of Defense, 823 F.3d 687, 693 (D.C. Cir. 2016) (“To be clear, to qualify for reduced fees as an educational institution, the requester—whether teacher or student—must seek the information in connection with his or her role at the educational institution.”).

This rule is internal and procedural rather than substantive. It does not create a right to obtain FLRA records, nor does it create any additional right or privilege not already available to the public as a result of the FOIA Improvement Act of 2016. It merely builds upon and clarifies the previous agency procedures for processing FOIA-related requests.

Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FLRA has determined that these regulations, as amended, will not have a significant impact on a substantial number of small entities.

This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 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.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 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 export markets.

The amended regulations contain no additional information-collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

This rule is published as a final rule. It is exempt from public comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of “agency organization, procedure, or practice.” If you wish to contact the agency, please do so at the above listed address. However, before including your address, phone number, email address, or other personal identifying information in any communications with the agency, you should be aware that your communications—including your personal identifying information—may be made publicly available at any time. While you can ask us in your communications to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

For the reasons stated in the preamble, the Federal Labor Relations Authority amends 5 CFR part 2411 as follows:

Pursuant to section 217 of the Immigration and Nationality Act (INA), 8 U.S.C. 1187, the Secretary of Homeland Security (the Secretary), in consultation with the Secretary of State, may designate certain countries as Visa Waiver Program (VWP) countries  1 if certain requirements are met. Those requirements include: (1) a U.S. Government determination that the country meets the applicable statutory requirement with respect to nonimmigrant visitor visa refusals for nationals of the country during the previous full fiscal year; (2) a U.S. Government determination that the country extends or agrees to extend reciprocal privileges to citizens and nationals of the United States; (3) an official certification that it issues machine-readable, electronic passports that comply with internationally accepted standards; (4) a U.S. Government determination that the country's designation would not negatively affect U.S. law enforcement and security interests; (5) an agreement with the United States to report, or make available through other designated means, to the U.S. Government information about the theft or loss of passports; (6) a U.S. Government determination that the government accepts for repatriation any citizen, former citizen, or national not later than three weeks after the issuance of a final executable order of removal; and (7) an agreement with the United States to share information regarding whether citizens or nationals of the country represent a threat to the security or welfare of the United States or its citizens.

The INA also sets forth requirements for continued eligibility and, where appropriate, probation and/or termination of program countries.

Prior to this final rule, the designated countries in the VWP were Andorra, Australia, Austria, Belgium, Brunei, Chile, Croatia, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, the Netherlands, New Zealand, Norway, Poland, Portugal, Republic of Korea, San Marino, Singapore, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Taiwan, 2 and the United Kingdom. 3 See 8 CFR 217.2(a).

Citizens and eligible nationals of VWP countries may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for a period of ninety days or less for business or pleasure without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements. To travel to the United States under the VWP, any person who is not a citizen or national of the United States (hereinafter a “noncitizen”) must satisfy the following:

(1) be seeking admission as a nonimmigrant visitor for business or pleasure for ninety days or less;

(2) be a national of a program country;

(3) present a machine-readable, electronic passport issued by a designated VWP participant country to the air or vessel carrier before departure;

(4) execute the required immigration forms;

(5) if arriving by air or sea, arrive on an authorized carrier;

(6) not represent a threat to the welfare, health, safety, or security of the United States;

(7) have not violated U.S. immigration law during any previous admission under the VWP;

(8) possess a round-trip ticket, unless exempted by statute or federal regulation;

(9) the identity of the noncitizen has been checked to uncover any grounds on which the noncitizen may be inadmissible to the United States, and no such ground has been found;

(10) certain aircraft operators, as provided by statute and regulation, must electronically transmit information about the noncitizen passenger;

(11) obtain an approved travel authorization via the Electronic System for Travel Authorization (ESTA). For more information about the ESTA, please see 8 CFR part 217.5 (regulation effective July 8, 2015), 80 FR 32,267 (June 8, 2015), 75 FR 47,701 (Aug. 9, 2010);

(12) has not been present, at any time on or after March 1, 2011 in Iraq, Syria, a country that is designated by the Secretary of State as a state-sponsor of terrorism, or a country or area of concern designated by the Secretary of Homeland Security, in accordance with 8 U.S.C. 1187(a)(12)(D), subject to statutorily delineated exemptions or a waiver authorized by the Secretary; and

(13) waive the right to review or appeal a decision regarding admissibility or to contest, other than on the basis of an application for asylum, any action for removal.

See sections 217(a) and 217(b) of the INA, 8 U.S.C. 1187(a)-(b); see also 8 CFR part 217.

The Department of Homeland Security, in consultation with the Department of State, has evaluated Israel for VWP designation to ensure that it meets the requirements set forth in section 217 of the INA. The Secretary has determined that Israel has satisfied the statutory requirements for initial VWP designation; therefore, the Secretary, in consultation with the Secretary of State, has designated Israel as a program country.

This final rule adds Israel to the list of countries authorized to participate in the VWP. Accordingly, beginning November 30, 2023, eligible citizens and nationals of Israel may apply for admission to the United States at U.S. ports of entry as nonimmigrant visitors for business or pleasure for a period of ninety days or less without first obtaining a nonimmigrant visa, provided that they are otherwise eligible for admission under applicable statutory and regulatory requirements.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. The final rule merely lists a country that the Secretary of Homeland Security, in consultation with the Secretary of State, has designated as a VWP eligible country in accordance with section 217(c) of the INA, 8 U.S.C. 1187(c). This amendment is a technical change to merely update the list of VWP countries. Therefore, notice and comment for this rule is unnecessary and contrary to the public interest because the rule has no substantive impact, is technical in nature, and relates only to management, organization, procedure, and practice.

This final rule is also excluded from the rulemaking provisions of 5 U.S.C. 553 as a foreign affairs function of the United States because it advances the President's foreign policy goals and directly involves relationships between the United States and its noncitizen visitors. Accordingly, DHS is not required to provide public notice and an opportunity to comment before implementing this final rule.

The Regulatory Flexibility Act (RFA) (5 U.S.C. 604(a)), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996 (SBREFA), requires an agency to prepare and make available to the public a regulatory flexibility analysis that describes the effect of a rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions) when the agency was required “to publish a general notice of proposed rulemaking” prior to issuing the final rule. Because this rule is being issued as a final rule without a prior proposal, on the grounds set forth above, a regulatory flexibility analysis is not required under the RFA.

In addition, DHS has considered the impact of this rule on small entities and has determined that this rule will not have a significant economic impact on a substantial number of small entities. The individual noncitizens to whom this rule applies are not small entities as that term is defined in 5 U.S.C. 601(6). Accordingly, there is no change expected in any process as a result of this rule that would have a direct effect, either positive or negative, on a small entity.

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more 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.

This amendment does not meet the criteria for a “significant regulatory action” as specified in Executive Order 12866, as amended by Executive Order 14094.

The rule will not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, DHS has determined that this final rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The Department of Homeland Security is modifying the Office of Management and Budget (OMB) Control Number 1651-0111, Arrival and Departure Record, to allow eligible Israeli passport holders to use an ESTA to apply for authorization to travel under the VWP prior to departing for the United States. U.S. Customs and Border Protection (CBP) uses the information to assist in determining if an applicant is eligible for travel under the VWP. The Department is requesting emergency processing of this change to 1651-0111 as the information is essential to the mission of the agency and is needed prior to the expiration of time periods established under the Paperwork Reduction Act of 1995 (PRA). Because of the designation of Israel for participation in the VWP, the Department is requesting OMB approval of this information collection in accordance with the PRA (44 U.S.C. 3507).

The addition of Israel to the VWP will result in an estimated annual increase to information collection 1651-0111 of 30,000 responses and 6,500 burden hours. The total burden hours for ESTA, including Israel, is as follows:

Estimated annual reporting burden: 3,256,500 hours.

Estimated number of respondents: 15,030,000 respondents.

Estimated average annual burden per respondent: 13 minutes.

For the reasons stated in the preamble, DHS amends part 217 of title 8 of the Code of Federal Regulations (8 CFR part 217), as set forth below.

The NRC is issuing a new guide in the NRC's “Regulatory Guide” series. This series was developed to describe methods that are acceptable to the NRC staff for implementing specific parts of the agency's regulations, to explain techniques that the staff uses in evaluating specific issues or postulated events, and to describe information that the staff needs in its review of applications for permits and licenses.

RG 3.77 was issued with a temporary identification of Draft Regulatory Guide, DG-3057.

The NRC published a notice of the availability of DG-3057 (ADAMS Accession No. ML23089A012), in the Federal Register on June 5, 2023 (88 FR 36514), for a 30-day public comment period. The public comment period closed on July 5, 2023, and the staff has incorporated public comments submitted on DG-3057. Public comments on DG-3057 and the staff responses to the public comments are available under ADAMS under Accession No. ML23192A534.

This RG is a new RG 3.77, and provides the NRC staff and the industry with guidance that would provide applicants and licensees the option, in certain limited circumstances, to use administrative controls to ensure that the structures, systems, and components important to safety are designed to withstand the effects of weather-related wind and tornado natural phenomena without impairing their capability to perform their intended design functions during outdoor dry storage system handling activities. This RG is endorsing Nuclear Energy Institute 22-02, Revision 2, “Guidelines for Weather-Related Administrative Controls for Short Duration Outdoor Dry Cask Storage Operations,” with clarifications and exceptions.

As noted in the Federal Register on December 9, 2022 (87 FR 75671), this document is being published in the “Rules” section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

This RG is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, the Office of Management and Budget has not found it to be a major rule as defined in the Congressional Review Act.

Issuance of this regulatory guide does not constitute backfitting as defined in section 72.62 of title 10 of the Code of Federal Regulations (10 CFR), “Backfitting,” as defined in 10 CFR 50.109, “Backfitting,” and as described in NRC Management Directive (MD) 8.4, “Management of Backfitting, Forward Fitting, Issue Finality, and Information Requests” (ADAMS Accession No.ML18093B087); or constitute forward fitting as that term is defined and described in MD 8.4; or affect the issue finality of any approval issued under 10 CFR part 52, “Licenses, Certificates, and Approvals for Nuclear Powerplants.” As explained in RG 3.77, applicants and licensees would not be required to comply with the positions set forth in RG 3.77.

A member of the public may, at any time, submit suggestions to the NRC for improvement of existing RGs or for the development of new RGs. Suggestions can be submitted on the NRC's public website at https://www.nrc.gov/reading-rm/doc-collections/reg-guides/contactus.html. Suggestions will be considered in future updates and enhancements to the “Regulatory Guide” series.

The NRC published a notice of opportunity for public comment on this RIS in the Federal Register on March 7, 2023 (88 FR 14091). The agency received comments from six commenters. The staff considered all comments, but no changes were made to the RIS. The NRC staff's evaluation of these comments is discussed in a publicly available memorandum which is available in ADAMS under Accession No ML23191A262.

RIS 2014-06, Revision 1, “Consideration of Current Operating Issues and Licensing Actions in License Renewal” is available in ADAMS under Accession No. ML23167A044.

As noted in the Federal Register on May 8, 2018 (83 FR 20858), this document (like other draft and final Regulatory Issue Summaries) is being published in the Rules section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

On June 23, 2021, NOAA published a final rule to implement the designation of the WSCNMS (86 FR 32737). The designation and regulations became effective on August 16, 2021 (86 FR 45860; August 17, 2023), although the effectiveness of the provision at 15 CFR 922.213(a)(2) was stayed until October 1, 2023. As discussed in the final rule (86 FR 32737; June 23, 2021), the effectiveness of § 922.213(a)(2), which prohibits grappling into or anchoring on shipwreck sites, was stayed until October 1, 2023, to provide NOAA with adequate time to develop a shipwreck mooring program and plan, begin installing mooring buoys, and develop best practices for accessing shipwrecks when mooring buoys are not present. With this final rule, NOAA is further delaying the effectiveness for the prohibition of grappling into or anchoring on shipwreck sites for one year, to October 1, 2024.

Section 922.213(a)(2) prohibits grappling into or anchoring on shipwreck sites to protect fragile shipwrecks within the sanctuary from damage. The initial two-year delay, and also this thirteen-month extension of the effectiveness, is necessary to provide additional time for NOAA to develop a shipwreck mooring program, which will include the installation of mooring buoy systems and public outreach and education.

While the prohibition on grappling into or anchoring on shipwreck sites is essential to protect shipwrecks from damage, NOAA believes this interest should be balanced with the interest of promoting public access to the sanctuary. It is important to have permanent mooring buoys installed at priority shipwreck sites before the grappling and anchoring provision comes into effect, and NOAA needs additional time to install buoys.

NOAA established the initial two-year stay to delay the date of effectiveness for § 922.213(a)(2) when it issued the final rule to designate and implement regulations for the WSCNMS (86 FR 32737; June 23, 2021) in response to public comments expressing concerns that the prohibition would negatively affect commercial vessels that may need to anchor in the sanctuary, and also would limit public access to shipwrecks when alternatives to anchoring ( i.e., buoys) are not available (86 FR 32737, at 42144). NOAA delayed the date of effectiveness to allow NOAA time to install buoys and provide education on the location of shipwrecks and on how to access shipwrecks using other methods.

Since designation of the sanctuary in August 2021, NOAA has identified 19 shipwreck sites for installation of mooring buoys and engaged with the Lake Carriers Association to ensure the moorings do not impact commercial shipping. NOAA worked with State and Federal authorities to obtain required permits, and has awarded contracts to purchase various mooring components. NOAA intended to begin installing buoys during the summer months of 2023, but was ultimately unable to secure ship time from its partners. Buoy installation must occur during the summer months on Lake Michigan. Therefore, NOAA must wait until the summer season of 2024 to perform this work. This action extends the stay to delay the date of effectiveness until October 1, 2024, thus giving NOAA the necessary additional time to install buoys. During the continuing delay, NOAA will minimize risks to shipwrecks by continuing its educational outreach efforts.

NOAA will continue its educational outreach to provide the public notice of shipwreck locations and best practices for accessing shipwrecks when mooring buoys are not present. All other regulatory provisions will remain in effect, including the prohibition on altering, destroying, or otherwise injuring any sanctuary resource (including shipwrecks) (§ 922.213(a)(1)). It also continues to be a violation of State law to damage shipwrecks, including damage from anchoring.

This action is issued pursuant to the National Marine Sanctuaries Act (NMSA), 16 U.S.C. 1431 et seq., the NMSA implementing regulations at 15 CFR part 922, and the WSCNMS implementing regulations at 15 CFR part 922, subpart T. The provision at 15 CFR 922.213(a)(2) prohibits grappling into or anchoring on shipwreck sites.

NOAA's Policy and Procedures for Compliance with the National Environmental Policy Act (NEPA) and Related Authorities (NOAA Administrative Order (NAO) 216-6A and Companion Manual for NAO 216-6A) provide that all NOAA major Federal actions be reviewed with respect to environmental consequences on the human environment. In the June 2020 Final Environmental Impact Statement (FEIS) ( see https://nmssanctuaries.blob.core.windows.net/sanctuaries-prod/media/docs/2020-wisconsin-shipwreck-coast-national-marine-sanctuary-designation-final-eis.pdf ) for the designation of the WSCNMS, NOAA identified a preferred action, which was to establish a grappling and mooring program and to prohibit the grappling into and anchoring on shipwreck sites throughout the sanctuary. NOAA selected this alternative, as finalized in the June 23, 2021, final rule. The 2020 FEIS specifically stated that the provision prohibiting grappling into or anchoring on shipwreck sites would lead to beneficial impacts for historical resources and water quality resources, and that delaying the effectiveness of the grappling and anchoring provision would not cause adverse impacts to the existing shipwrecks because existing State regulations already prohibit damaging historic shipwrecks sites within the sanctuary area and because all other WSCNMS regulatory prohibitions (including the prohibition on damaging or injuring sanctuary resources at § 922.213(a)(1)) would remain in effect during this postponement. In the FEIS and implementing regulations, NOAA also explained that, to help vessels avoid inadvertently anchoring on known shipwrecks sites, NOAA will publish maps with coordinates of known and estimated shipwreck locations to help vessels avoid inadvertently anchoring on known shipwrecks sites.

Extending the delay of the date of effectiveness an additional year does not change NOAA's 2020 FEIS analysis of the environmental impacts of the delay. Additionally, NOAA will continue its educational outreach to provide the public notice of shipwreck locations and best practices for accessing shipwrecks when mooring buoys are not present. NOAA further believes there has not been a significant change to the environmental conditions, such as changes to the risks to shipwreck sites, that would change the potential environmental effects of continuing the delay analyzed in the FEIS. NOAA has determined that no additional NEPA analysis is required for this action.

Copies of the FEIS, the record of decision and other related materials that are specific to this action are available at https://sanctuaries.noaa.gov/wisconsin/, or by contacting NOAA at the address listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.

This rule is not to be significant for purposes of Executive Order 12866, as amended by Executive Order 14094.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that the action designating the WSCNMS would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was discussed in the proposed rule issued on January 9, 2017 (82 FR 2269, at 22742275). As noted n the June 23, 2021 final rule (86 FR 32737, at 32752), the changes from the proposed rule would not have an impact on small entities and therefore would not change the conclusion of the certification at the proposed rule stage. In addition, NOAA did not receive any comments on the certification. Therefore, a final regulatory flexibility analysis was not required and was not prepared. This action to extend the delay in the effectiveness for the provision to prohibit the grappling into or anchoring on shipwreck sites similarly does not change the outcome of the certification.

Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator of the National Ocean Service, NOAA, finds good cause to not provide prior notice and opportunity for public comment. This action extends the delay of the date of effectiveness for § 922.213(a)(2), which prohibits grappling into or anchoring on shipwreck sites. NOAA originally established the initial two-year stay to delay the date of effectiveness for § 922.213(a)(2) when it issued the final rule to designate and implement regulations for the WSCNMS (86 FR 32737; June 23, 2021) in response to public comments expressing concerns that the prohibition would negatively affect commercial vessels that may need to anchor in the sanctuary, and also would limit public access to shipwrecks when alternatives to anchoring ( i.e. buoys) are not available (86 FR 32737, at 42144). NOAA delayed the date of effectiveness to allow NOAA time to install buoys and provide education on the location of shipwrecks and on how to access shipwrecks using other methods. Buoy installation must occur during the summer months on Lake Michigan. NOAA intended to begin installing buoys during the summer months of 2023, but was ultimately unable to secure ship time from its partners. Therefore, NOAA must wait until the summer season of 2024 to perform this work. This action extends the delay of the date of effectiveness until October 1, 2024, thus giving NOAA the necessary additional time to install buoys. During the continuing delay, NOAA will minimize risks to shipwrecks by continuing its educational outreach efforts. Providing notice and opportunity for public comment under the Administrative Procedure Act for the extension of the delay of the effectiveness would serve no useful purpose because and the continued delay in effectiveness is consistent with the public comments already received. This delay in the date of effectiveness also supports the public interest in accessing shipwrecks. For these reasons, we find for good cause that notice and public procedure are unnecessary and contrary to the public interest.

On November 28, 2022, Commerce published a proposed modification of its regulations governing procedures related to APOs and service of documents submitted in AD and CVD proceedings and to procedural aspects of its AD/CVD regulations (hereafter, the Proposed Rule ). 1 The Proposed Rule explained Commerce's proposal to make permanent certain changes to its service procedures that have been adopted on a temporary basis due to COVID-19, and proposed additional clarifications and corrections to its AD/CVD regulations, including updating the scope, circumvention, and covered merchandise referrals, and deleting from its regulations two provisions that have been invalidated by the Federal Circuit. Commerce received nine comments on the Proposed Rule and has addressed those comments below. After analyzing and carefully considering each comment it received in response to the Proposed Rule, Commerce has adopted the proposed modification with certain changes and is amending its regulations accordingly.

As we explained in the Proposed Rule, one of the purposes for modifying our regulations is to assist in making the administration of Commerce's AD/CVD proceedings more efficient by allowing parties to utilize available electronic or other efficient means of service. In this final rule, Commerce has determined to make certain modifications from the Proposed Rule in response to the comments received. With these modifications, as discussed further below, this final rule codifies the regulations proposed on November 28, 2022.

In this final rule, Commerce is amending proposed section 351.303(f)(1)(iii) to make service via electronic transmission for public documents and public versions of a business proprietary document, and service via secure electronic transmission for business proprietary documents, the default method of alternative service when service of such documents cannot be effectuated on ACCESS or when ACCESS is unavailable. This includes, for example, service of business proprietary documents filed under the one-day lag rule under section 351.303(c) ( i.e., non-final business proprietary documents filed on the due date under the one-day lag rule). As a result of adopting this change, Commerce is not adopting its proposed modification that parties file a standalone certificate of service for documents filed under the one-day lag rule under proposed section 351.303(c)(2)(i). Commerce is also modifying section 351.303(f)(2)(i) to permit electronic service of certain requests for review. In addition, Commerce is modifying section 351.305(c)(2) to specify that service of earlier-filed business proprietary submissions that are no longer available on ACCESS may be effectuated via secure electronic transmission. Commerce is also making some additional modifications for clarity and consistency. Finally, in this final rule, we are adopting the proposed amendments to the regulations discussed in the Proposed Rule for which we did not receive comments, or that we are not otherwise modifying, as discussed in greater detail below.

The following sections generally contain a brief discussion of each regulatory provision for which we received comments, a summary of the comments we received, and Commerce's responses to those comments. These sections contain further explanation of any changes Commerce is making in this final rule from the Proposed Rule, either in response to comments or that Commerce deems necessary for conforming to, or clarification of, the regulations, or for providing additional public benefit. The final section discusses additional comments suggesting other modifications to the ACCESS system and filing procedures that were not covered or addressed in the Proposed Rule and are therefore not included in this final rule.

Commerce received nine comments on the Proposed Rule. Below is a summary of the comments, grouped by issue category, followed by Commerce's response.

Proposed section 351.303(c)(2)(i) would require a party filing a business proprietary document on ACCESS to also file a separate, standalone, public certificate of service with its submission. Although the Preamble to the Proposed Rule indicates that this provision would apply to business proprietary documents filed under the one-day lag rule, two commenters interpret the certificate of service requirement under section 351.303(c)(2)(i) as applying to any business proprietary filing. One commenter suggests that Commerce modify proposed section 351.303(c)(2)(i) to limit the standalone certificate of service requirement to only business proprietary documents filed under the one-day lag rule.

Several other commenters argue that any requirement to file a standalone certificate of service is burdensome, inefficient, costly, would clutter the docket, and would not necessarily provide same-day notice of a filing, because documents submitted close to 5:00 p.m. often do not appear on ACCESS until the next day. Another commenter argues that the standalone certificate of service would add little value if Commerce reinstates the requirement to serve documents submitted under the one-day lag rule and even if Commerce does not reinstate that service rule, the standalone certificate of service will only inform parties that the filing was made, which would become apparent anyway in one business day.

These commenters suggest several alternatives, including making technical changes to ACCESS to permit the one-day lag filing to appear on the ACCESS docket and digests, but not be viewable or downloadable, which would give parties notice of the filing without it becoming part of the official record. One commenter argues that Commerce should simply require a certificate of service with every public and proprietary filing. Another suggestion, further discussed below, is to require electronic service of documents filed under the one-day lag rule on the same day they are filed with Commerce, thereby obviating the need to file a standalone certificate of service.

Response: We clarify that the proposal to file standalone certificates of service only applies to documents submitted under the one-day lag rule and does not apply to all business proprietary documents. However, as explained below, we are amending the regulation to permit the service of one-day lag documents via secure electronic transmission. That will obviate the need to file a standalone certificate of service, because parties served via secure electronic transmission will be able to receive the documents the same day they are filed on ACCESS. Thus, we are removing from this final rule the provision of section 351.303(c)(2)(i) that would require the filing of a standalone certificate of service with the submission of business proprietary documents filed under the one-day lag rule.

Further, we are not adopting the suggestion that Commerce make one-day lag documents appear on the ACCESS docket and digests without being viewable or downloadable, as an alternative way of providing notice to parties that a one-day lag submission has been filed. As stated in the Proposed Rule, business proprietary documents filed under the one-day lag rule and containing non-final bracketing cannot be served via ACCESS using the same technology used for serving official record documents. 2 Similarly, ACCESS does not have the technical capability at this time to make these documents appear on the ACCESS docket and digests without being viewable or downloadable or becoming part of the official record. As stated above, we are amending the regulation to permit the service of one-day lag documents via secure electronic transmission, which will enable parties to receive the documents the same day they are filed on ACCESS. Therefore, we find it unnecessary to adopt this commenter's suggestion.

Most commenters express support for the proposal in proposed sections 351.303(f)(1)(i) and (ii)(A) that, in general, service of a public document, public version of a business proprietary document, and a business proprietary document will be effectuated on parties on the public and APO service lists upon filing of the submission on ACCESS, unless ACCESS is unavailable. Two commenters particularly support the proposal to move service requirements of case and rebuttal briefs from current section 351.303(f)(3)(i) (service of case and rebuttals briefs through personal service on the same day the brief is filed, or overnight mail or courier on the next day) to proposed section 351.303(f)(1), which would generally allow service through ACCESS.

However, some commenters express concern that due to the time it takes ACCESS to process filed documents and release digest notifications, parties are not able to download documents the same day they are filed and sometimes must wait a day or longer when documents are filed before a weekend or holiday. One commenter remarks that under the Temporary Rule, 3 case and rebuttal briefs were often not available on ACCESS the same day as filing, which was particularly problematic when filed under the one-day lag rule, which could result in parties not receiving case or rebuttal briefs until two days or more after the initial filing. Several commenters remark that ACCESS delays in making documents available shorten the time parties must respond to filings because certain response deadlines are triggered from the filing date. This in turn creates inefficiencies and compresses the time in which Commerce has to conduct a proceeding when parties file extension requests that Commerce must take the time to consider.

One commenter proposes that Commerce adjust ACCESS release times to ensure that documents are “served” on the same business day they are filed. Another commenter asserts that ACCESS delays in making documents available the same day as filing contravenes the statutory requirement under section 777(d) of the Act that “[a]ny party submitting written information, including business proprietary information, to the administering authority . . . during a proceeding shall, at the same time, serve the information upon all interested parties who are parties to the proceeding, if the information is covered by a protective order” (emphasis added). This commenter suggests that Commerce revise proposed sections 351.303(f)(1)(i) and (f)(1)(ii)(A) to require that if ACCESS does not release a business proprietary, public, or public version of a document within one business day, then the submitter must effectuate service of the document upon the request of a party on the service list, using one of the alternative methods of service provided for under proposed section 351.303(f)(1)(iii). The commenter relatedly proposes to add a requirement to proposed section 351.303(f)(1)(iii) that if such an alternative method of service is used when ACCESS does not release documents within one business day, the submitter would then be required to file a revised certificate of service pursuant to sections 351.303(c)(2)(i) and 351.303(f)(3).

Response: We understand the concerns expressed by some commenters that parties sometimes must wait a day or longer to download filed documents due to ACCESS delays. While most of the time documents are made available on the same day they are filed on ACCESS, this is not always achievable. Commerce endeavors to review and approve for release on ACCESS all documents submitted on the same day of filing, but this is sometimes not possible due to Commerce's limited resources, as well as other factors, including the timing of when the document is filed on ACCESS, and the volume of files that must be reviewed and approved. On balance, Commerce makes documents available on ACCESS as soon as possible, and many times, on the same day the document is filed.

Relatedly, we disagree with the comment that section 777(d) of the Act requires documents to be made available the same day as filing. The statute requires that a document be served at the same time as it is filed, but it does not require that the document be received by parties on the same day as filing. 4 Thus, the requirements of the statute are fulfilled for those situations under the revised regulations where service is effectuated upon filing on ACCESS, even if the document is not received by other parties on the same day as filing. This is consistent with how service operates under the current regulations where, for example, parties may serve certain documents by first-class mail on the day the document is filed, but the documents are not necessarily received on the same day as filing.

For the reasons discussed above, we are not adopting the suggestion that Commerce revise the regulations to provide that if ACCESS does not release a business proprietary, public, or public version of a document within one business day, the submitter must effectuate service using an alternative method of service and file a revised certificate of service. Such a rule would be difficult for Commerce to administer given its limited resources. Moreover, submitters would not be able to predict when the submission will be made available in ACCESS, and thus, may not know that they should effectuate service using an alternative method.

Several commenters raise concerns about mail or hand delivery as alternative methods of service authorized under proposed section 351.303(f)(1)(iii) when service of a public, business proprietary, or public version of a business proprietary document cannot be effectuated through ACCESS. Commenters argue that mail or hand delivery is regressive, contrary to the stated purpose of the Proposed Rule to make service more efficient, costly, burdensome, less reliable than electronic transmission, out of step with modern professional practice of electronic transmission, wasteful (when the documents will usually be scanned and the delivered hard copy destroyed), and inequitable in that it requires some personnel to be in the office rather than telework. Several commenters also point out that Commerce itself uses encrypted electronic platforms when transmitting business proprietary documents.

One commenter argues that proposed section 351.303(f)(1)(iii) places a greater burden on petitioners' firms, which often file submissions containing business proprietary information of multiple parties, and therefore are required to serve submissions by hand delivery or mail. Even if a petitioner is commenting on the business proprietary information of only one respondent, the petitioner only has the option of seeking consent to electronic service from that particular respondent and would still have to serve all other parties on the APO service list by hand or by mail. One commenter points out that for documents submitted under the one-day lag rule, service by mail or hand delivery does not necessarily result in parties receiving the documents on the day of filing, but rather after filing of the final business proprietary version on ACCESS.

Thus, several commenters propose that Commerce eliminate the requirement for service by mail or hand delivery and make electronic service through secure electronic transmission the default rule. Some commenters propose that in making electronic service the default rule, Commerce should require that when parties sign an APO or make an entry of appearance, they agree to electronic transmission via secure file transfer unless they specifically opt out and request service by hand delivery or mail on their forms. One commenter suggests that Commerce may also consider giving parties the option to express inability to receive certain types of electronic service. Another commenter recommends amending proposed section 351.303(f)(1)(iii) to establish that service of documents containing business proprietary information of a person who is not included on the APO service list shall be made via secure electronic file transfer unless the party has “opted out” in its entry of appearance, in which case service may be effectuated by hand delivery or first-class mail. One commenter similarly proposes that electronic service through encrypted platforms should also be available to pro se and non-APO represented parties.

Several commenters also argue that Commerce should specify certain security standards that electronic transmission platforms used to transmit documents are required to contain.

Some commenters argue that under proposed section 351.303(f)(1)(iii), Commerce should allow secure electronic transmission of a third party's business proprietary information, rather than just that of the sender and recipient and eliminate the requirement of consent from the recipient for service through secure electronic transmission. Commenters argue that the requirement to seek consent for electronic service of business proprietary documents that contain business proprietary information of the sender or the recipient only is burdensome. For certain documents that include issues and arguments relating to multiple parties ( e.g., case briefs), it may not be possible to include business proprietary information without preparing party-specific versions of the submission. Thus, commenters argue that the default rule for electronic service through secure electronic transmission (unless a party affirmatively opts out) would eliminate the inefficiency of requiring parties to obtain consent before using electronic file transfer and eliminate the need for multiple different versions of the same document depending on whether a party affirmatively consented to electronic service.

If Commerce permits service by unencrypted email, several commenters argue that such submissions should still only contain the recipient's or submitter's business proprietary information, and that all parties must consent. Another commenter proposes that, in addition to these requirements, the recipient must explicitly request an unencrypted email transmission.

One commenter raises concern regarding the requirement of section 351.303(f)(1)(ii)(B) that if a document contains the business proprietary information of a party who is not on the APO service list, the submitter of the document must serve the unrepresented party its own business proprietary information using one of the alternative service methods under section 351.303(f)(1)(iii). This requirement, according to the commenter, would require represented parties to reach an agreement with unrepresented parties on an alternative means of service, and potentially place the represented party in the position of needing to explain the regulations to the unrepresented party, which could lead to conflicts in which Commerce would need to intervene. The commenter proposes that Commerce amend section 351.303(f)(1)(ii)(B) to include specific language stating that Commerce will instruct, and will assume the responsibility for such instruction of, the parties as to the alternative means of service submitters must use under section 351.303(f)(1)(iii).

Another commenter requests clarification of the statements that public and business proprietary documents will be served via ACCESS “unless ACCESS is unavailable” and that an alternative method of service must be used if service “cannot be effectuated on ACCESS (for any reason).” Although the commenter interprets these phrases to encompass situations where a filing is not submitted through ACCESS ( e.g., ACCESS is temporarily unavailable due to technical failure) or a party is unable to receive service via ACCESS ( e.g., a pro se party that would not be able to receive service via ACCESS of a document containing only its own business proprietary information), the commenter notes that these phrases could be interpreted to encompass other situations. For example, there may be a situation in which a party files a document on ACCESS but due to a technical error the document is not made available via ACCESS, and the submitter is unaware and unable to know that it is necessary to take alternative measures. Thus, the commenter seeks clarification on the circumstances under which service would not be “effectuated on ACCESS.”

Response: Upon consideration of these comments, we agree that electronic service via secure electronic transmission between parties should be the primary method of service when service cannot be effectuated on ACCESS or when ACCESS is unavailable. This approach is consistent with modern professional practice and would fulfill the goal of these regulatory amendments to make service more efficient. Thus, for this final rule we are amending section 351.303(f)(1)(iii) so that service via electronic transmission for public documents and public versions of business proprietary documents, and secure electronic transmission for business proprietary documents, is the default method of alternative service when service of such documents cannot be effectuated on ACCESS or when ACCESS is unavailable.

This default rule for electronic service will apply to APO-authorized, non-APO authorized, and pro se parties. Thus, non-APO authorized representatives and pro se parties generally will be permitted to transmit business proprietary information electronically, subject to additional restrictions as explained below. Accordingly, we find that the concern expressed by one commenter that a represented party may be put in a situation where it needs to explain the regulations to an unrepresented party is rendered moot by adoption of electronic transmission as the default method of alternative service under section 351.303(f)(1)(iii).

Because this is the default rule, parties generally will not need to affirmatively consent to receiving business proprietary information by electronic transmission. Service by mail or personal service  5 will continue to be an acceptable means of alternative service only in the very limited circumstance that a party does not have the capacity to send or receive documents electronically ( e.g., an interested party in a foreign country that does not have access to email). Because electronic service is the default rule, we are not adopting the proposal that parties be permitted to affirmatively opt out of electronic service in their entries of appearance and APO applications.

We also clarify that in making electronic service the default rule, APO-authorized representatives will be permitted to serve documents on other APO-authorized representatives that include third-party business proprietary information, and not just that of the sender or the recipient, and the recipient need not affirmatively consent to service (as was required in the Proposed Rule ). That is, any APO-authorized representative may serve documents that include any business proprietary information (including that of a third party) on another APO-authorized representative. This alleviates the concern expressed by some commenters that there is a greater burden on petitioners' firms because they often file submissions containing the business proprietary information of multiple parties. However, the APO-authorized representative must ensure that when serving documents on non-APO authorized representatives and pro se parties, the documents contain only the business proprietary information of the non-APO authorized representative or of the pro se party.

When compared to APO-authorized representatives, the procedures differ for non-APO authorized representatives and pro se parties where electronic service is the default rule. Non-APO authorized representatives and pro se parties will be permitted to serve documents containing the business proprietary information of the non-APO represented party or the pro se party (respectively) on APO-authorized representatives. 6 They may also receive service of documents containing their own business proprietary information.

We strongly encourage the transmission of business proprietary information through secure electronic transmission. However, we will permit service via unsecure electronic transmission ( i.e., electronic mail) if an APO-authorized representative, pro se party, or non-APO authorized representative of a party requests service via unsecure electronic transmission, the recipient consents, and the document contains only the business proprietary information of the submitter or recipient. If the business proprietary document is encrypted, then consent is not required.

Given rapid changes in technology, we do not find it practical to set minimum security standards in these regulations. Thus, we are not adopting the proposal to specify a particular encryption level for secure electronic transmission in the regulation but rather advise that generally, business proprietary documents should be served through platforms that use secure electronic transmission ( e.g., encrypted emails, File Transfer Protocol Secure (FTPS), or secure file share such as Kiteworks, DocuSign, or Google Drive). However, more specific security standards may be added to the ACCESS Handbook and updated from time to time as technological changes necessitate.

In response to the comment that language describing ACCESS as “unavailable” under sections 351.303(f)(1)(i) and (f)(1)(ii)(A) could be interpreted to include multiple situations, we have amended the regulation to add a requirement that an alternative form of service in accordance with section 351.303(f)(1)(iii) is needed when a submission is filed manually, including bulky document filings, super bulky filings, and data files that exceed the file size limit. The reason for this change is to expedite the availability of these submissions, which require additional processing. In some cases, as a commenter mentioned, there may be delays in making those files available, especially in situations where the ACCESS team may need to find an alternative method of releasing the files. In our experience, the transmittal of extremely large collections of documents has, at times, required a corresponding large use of ACCESS resources. The use of such resources has, in turn, caused the ACCESS system to operate at much slower speeds, resulting in extensive download times for parties and forcing them to download documents during non-peak times. Considering the above, Commerce has determined that for such manual filings (including bulky document filings, super bulky filings and data files exceeding the file size limit), that the submitter who is filing the submission in this alternative manner also be required to serve the submission in an alternative manner in accordance with section 351.303(f)(1)(iii). This additional step for the submitter to ensure timely service will be offset by the time savings the submitter will gain in manually filing its voluminous submission. This requirement also addresses the concerns of those commenters who expressed concern about receiving access to submissions in a timely manner.

We also clarify that ACCESS is considered “unavailable” when, due to a technical failure, ACCESS is unable to accept electronic filings, as specified in the Handbook on Electronic Filing Procedures, which is available on the ACCESS website at https://access.trade.gov (via the ACCESS Handbook link). If ACCESS is unable to accept electronic filings for more than one hour between the hours of 12:00 p.m. and 4:30 p.m. Eastern Time, or for any duration of time between the hours of 4:31 p.m. and 5:00 p.m. Eastern Time, Commerce will allow a document or data to be filed manually. In such a situation, if a submitter files a submission manually, it must also serve the submission on the parties to the proceeding in accordance with section 351.303(f)(1)(iii). Thus, generally, if a submitter must file a submission manually, the submitter must also use an alternative form of service. The reason for requiring alternative service is that a technical failure that requires manual filing will cause a delay in service, as discussed above. At the time of filing, the submitter will be aware of the technical failure and therefore should also be aware of the service obligations for manual filings.

If a technical failure occurs, but a submitter already successfully filed a submission electronically before the technical failure occurred, the submitter does not need to serve the submission using an alternative method. Rather, the would-be recipients should wait until the ACCESS technical failure has been resolved, and the submissions will be available at that time. If Commerce determines that the technical failure will be lengthy in duration given the severity of the problem or a large backlog of filings to process, Commerce may direct parties to seek service copies from one another.

Finally, we clarify what is meant by situations when service “cannot be effectuated on ACCESS” under section 351.303(f)(1)(iii). There are certain situations in which ACCESS does not have the capability to effectuate service based on the way the system is structured. There are two categories that determine who and what gets served. Who gets served is determined by the individuals on the APO and public service lists. What gets served is determined by the documents that are on the record. A party to the proceeding can use these guidelines to understand whether, at the time of filing, service of a particular submission can be effectuated on ACCESS.

For example, a document submitted under the one-day lag rule under section 351.303(c)(2)(i) is not considered a record document due to the non-final nature of the designation of business proprietary information; therefore, service cannot be effectuated on ACCESS. Another example is a document that contains the business proprietary information of a person who is not included on the APO service list. Under section 351.303(f)(1)(ii)(B), service cannot be effectuated on ACCESS for that person and must be made in accordance with section 351.303(f)(1)(iii). A further example is a situation where a representative of an interested party is granted APO access after other parties to the proceeding have already filed submissions to the record and they are no longer available for download on ACCESS, as addressed in section 351.305(c)(2).

Other situations in which a document is not immediately made available on ACCESS are not situations in which service cannot be effectuated on ACCESS.

Commenters are divided in their support of Commerce's proposed reinstatement of the requirement that business proprietary documents filed under the one-day lag rule be served on interested parties. Commenters who oppose the reinstatement of the service requirement argue that it is burdensome (even if done by electronic means); creates inconsistencies; increases the likelihood of errors, including APO violations; and does not allow the flexibility to manage varied situations, such as another pandemic, inclement weather, and increased telework. One commenter argues that the burden of service of one-day lag documents is greater for petitioners' firms, because they are more likely to file submissions containing multiple parties' business proprietary information, and such documents cannot be served by electronic means under the Proposed Rule.

Several commenters address Commerce's observation in the Proposed Rule that under the waiver of the service requirement for one-day lag submissions under the Temporary Rule, parties were sometimes not aware of a filing. One commenter notes that any uncertainty as to whether a document has been filed under the one-day lag rule lasts only about a day, and parties have been dealing with that uncertainty now for over two years under the Temporary Rule. This commenter points out that any inconvenience in having a tighter rebuttal period could be alleviated by maintaining the extension of the time for rebuttal briefs from five to seven days, as adopted under the Temporary Rule. Another commenter points out that lack of same-day notice of the filing of a business proprietary document under the one-day lag rule also occurred before the Temporary Rule, for example when first-class mail delivery of the document arrived the next business day after filing with Commerce. Some commenters note that under the proposed alternative methods of service under section 351.303(f)(1)(iii), one-day lag filings might still be received after the final bracketed version is released by Commerce because of delays in the type of service used ( e.g., first-class mail). Thus, several commenters conclude that the benefits of notice through reinstatement of the service requirement for one-day lag documents do not outweigh the burdens and risks.

Other commenters propose measures to address Commerce's concern that parties are not aware of the filing of documents under the one-day lag rule, without reinstating the service requirement for one-day lag documents. For example, one commenter suggests that Commerce adopt the proposal under section 351.303(c)(2)(i) to file a standalone certificate of service for documents filed under the one-day lag rule that would include the name of the submission and the party for whom it was filed. This would effectively be a “certificate of non-service” because the documents would not be served but would give parties notice of the filing of the one-day lag document through the ACCESS public service list. This commenter also proposes that parties be permitted to file the “certificate of non-service” before the filing of the document on ACCESS to reduce the burden on parties filing multiple submissions on the same day, to help ensure submissions are made in their entirety prior to the filing deadline, and to increase the likelihood that other parties will be made aware of the filing on the actual filing day. Alternatively, the commenter proposes that Commerce permit that the “certificate of non-service” be filed two hours after the deadline for the one-day lag document ( e.g., 7:00 p.m. for a 5:00 p.m. filing deadline), and still be deemed timely.

One commenter suggests that Commerce itself release the one-day lag submission under the same procedures as the release of the final bracketed business proprietary versions. Another commenter suggests that Commerce could require that final business proprietary and public versions of one-day lag documents contain a header indicating whether the one-day lag rule was used, an approach that is similar to the current “bracketing not final” designations on documents filed under the one-day lag rule.

Several other commenters support reinstatement of the service requirement for documents filed under the one-day lag rule. One commenter states that Commerce's concern over parties not receiving notice of filings of one-day lag documents under the Temporary Rule' s waiver of service requirements was borne out by its own experiences. That commenter states that parties often did not know if a document had been filed under the one-day lag rule, or a party had missed the deadline. Moreover, because parties did not receive the document the day it was filed with Commerce, they missed a day or more of the regulatory rebuttal period, requiring the filing of extension requests. Another commenter supports the reinstatement of the service requirement of documents filed under the one-day lag rule because it prevents parties from delaying service of documents through the one-day lag rule, and because it enables other parties to ensure that the only changes made between the document filed by the deadline under the one-day lag rule and the final document relate to identification of business proprietary information.

Some commenters support the reinstatement of the service requirement for documents filed under the one-day lag rule, but object to the requirement that such service be effectuated outside of ACCESS. These commenters suggest that documents submitted under the one-day lag rule should be deemed served on parties on the APO service list when filed on ACCESS. Several parties address Commerce's explanation in the Proposed Rule that a business proprietary document filed under the one-day lag rule contains non-final bracketing that is not treated as an official record document, and thus cannot be served via ACCESS with the same technology used for serving official record documents. Some commenters suggest that Commerce make technical changes to ACCESS to prevent one-day lag filings from becoming part of the official record, including permitting parties 14 days to download business proprietary documents filed under the one-day lag rule before deleting the documents from the record.

Several commenters state that if documents filed under the one-day lag rule are not served via ACCESS, parties should be permitted to serve such documents via secure electronic transmission on the day the document is filed with Commerce, and object to any requirement that service be completed via first-class mail or hand delivery as inefficient, costly, and burdensome on parties. These commenters argue that parties often do not receive the documents filed under the one-day lag rule before the final proprietary version is filed on ACCESS because documents served by such means are not always received on the same day as filing. One commenter proposes that documents filed under the one-day lag rule may be served via email if all parties agree, and that first-class mail or hand delivery should only be required when a party explicitly requests that method of service. Other commenters state that electronic service of one-day lag documents would obviate the need for the standalone public certificate of service requirements under proposed section 351.303(c)(2)(i).

One commenter notes that because the bracketing in one-day lag filings is only provisional, an attorney may not be able to share it with a client until the final business proprietary version is filed. The commenter indicates that delays in receipt when documents are served via first-class mail are particularly problematic with respect to case and rebuttal briefs, and suggests that Commerce could require that business proprietary case and rebuttal briefs served under the one-day lag rule be served by hand delivery or overnight mail or courier, and that Commerce could set an earlier deadline for submission of the final proprietary and public versions of a document submitted under the one-day lag rule. According to this commenter, setting an earlier deadline would result in a greater likelihood that the submissions would be “approved” and available to other parties on ACCESS on the same day.

Finally, two commenters argue that if Commerce reinstates the service requirement for business proprietary documents filed under the one-day lag rule, service should only be made on parties on the APO service list, and not on pro se or non-APO authorized parties. The commenters argue that to require service of such documents to non-APO authorized parties before the final bracketing is checked creates significant risk of an APO violation, particularly when submissions contain the business proprietary information of multiple parties. These commenters argue that this undermines the purpose of the one-day lag rule to protect business proprietary information.

Response: Upon consideration of these comments, we are adopting our proposal to reinstate the requirement that a business proprietary document filed on the due date under the one-day lag rule must also be served on the persons on the APO service list and those non-APO authorized parties whose business proprietary information is contained in the document. However, as discussed above, for this final rule we are amending section 351.303(f)(1)(iii) so that electronic service via secure electronic transmission is the default method of alternative service, including for business proprietary documents filed under the one-day lag rule. We believe that reinstating the service requirement of such documents eliminates uncertainties that resulted from waiving service during the past three years under the Temporary Rule and helps with providing parties as much time as possible with such documents to protect their interests. In our view, this fulfills the goal of these regulatory amendments to make service more efficient and addresses many of the concerns raised regarding the burden of other forms of service, such as first-class mail or personal service, while also maintaining flexibility. Although some commenters oppose the reinstatement of service requirements for documents filed under the one-day lag rule, we are not convinced that, overall, the benefits of not being required to serve these documents under the Temporary Rule outweigh the benefits of requiring service. This is particularly true when considering that Commerce is amending the regulations to permit such documents to be served via secure electronic transmission, which greatly reduces the burdens expressed by certain commenters.

Further, as discussed above, because we are amending the regulation to permit the service of one-day lag documents via secure electronic transmission, we are removing the requirement to file a standalone certificate of service from this final rule. For similar reasons, we determine it is not necessary to adopt one commenter's alternative proposal to require a “certificate of non-service.” Because we are reinstating the service requirements for business proprietary documents filed under the one-day lag rule, filing a “certificate of non-service” would not be needed because such documents would in fact be served.

Allowing electronic service of business proprietary documents filed under the one-day lag rule removes the uncertainty parties may have experienced over whether a document was filed under the one-day lag rule or whether the document was untimely filed or not filed at all. Having the submitter serve parties via secure electronic service will also help to reduce delays in service, enable parties to ensure that any changes made to the final business proprietary document are only related to bracketing, and increase the likelihood that parties will receive the documents the same day they are filed on ACCESS. Accordingly, we find it unnecessary to adopt the suggestion that the time for submitting rebuttal briefs be increased from five to seven days as a method of relieving the potential compressed period for submitting rebuttal briefs that may result from delays in receiving documents filed under the one-day lag rule. For similar reasons, we also find it unnecessary to adopt the suggestion that Commerce set an earlier deadline for the submission of final business proprietary and public versions of documents submitted under the one-day lag rule as a potential way for these documents to be approved faster on ACCESS. We also note that neither of these suggestions are responsive to the proposed regulatory amendments in the Proposed Rule, and thus, such modifications would be outside the scope of this rulemaking.

Moreover, as discussed above, in making electronic service the default rule, APO-authorized representatives will be permitted to serve third-party business proprietary information, not just that of the sender or the recipient, and the recipient need not affirmatively consent to service. This alleviates the concern expressed by some commenters that there is a greater burden on petitioners' firms that often file submissions containing the business proprietary information of multiple parties, because these parties will be able to electronically serve documents containing the business proprietary information of multiple parties.

Some commenters suggest that Commerce itself should release non-final business proprietary documents filed under the one-day lag rule by making technical changes to ACCESS to prevent such documents from becoming part of the official record. These commenters suggest that this would be a method of allowing ACCESS to effectuate service of such documents without reinstating service requirements outside of ACCESS. As stated in the Proposed Rule, business proprietary documents filed under the one-day lag rule and containing non-final bracketing cannot be served via ACCESS using the same technology used for serving official record documents. 7 Should ACCESS technology capabilities change in the future, we will consider whether service of non-final bracketing documents can be effectuated upon filing on ACCESS. At this time, however, we believe that permitting electronic service of non-final bracketing documents is efficient, consistent with modern professional practice, and sufficiently addresses the various concerns raised by parties.

Finally, certain commenters argue that if Commerce reinstates service requirements for non-final business proprietary documents filed under the one-day lag rule, such requirement should only apply to persons on the APO service list and not on non-APO authorized representatives or pro se parties because it creates a significant risk of an APO violation. We recognize there may be some risk of a potential APO violation if parties do not properly bracket business proprietary information in a non-final business proprietary submission. At the same time, we are cognizant that non-APO authorized representatives and pro se parties would benefit from service of such documents in defending their interests during a segment of the proceeding. We remind parties of their responsibility to properly safeguard business proprietary information. 8 Commerce's regulations have required parties to identify whose business proprietary information is contained in a submission; this is not a new requirement. 9 If a submitter cannot identify certain business proprietary information as definitively belonging to a non-APO authorized representative or pro se party, then it is the submitter's responsibility to bracket the information accordingly in the non-final business proprietary submission and consider whether service of the submission needs to be made. When preparing the final version of the submission, the submitter should assess whether the bracketing should be updated or corrected. On balance, we believe it is important to reinstate service requirements for non-final business proprietary documents filed under the one-day lag rule on all parties, whether or not they are APO-authorized, and are adopting this change.

To be clear, the requirement to serve business proprietary documents filed under the one-day lag rule applies to non-final business proprietary documents. For final business proprietary documents, with or without bracketing corrections, and public versions of final business proprietary documents, the general rule applies that ACCESS will effectuate service, as outlined elsewhere in this final rule and in the Proposed Rule.

Two commenters express concern over the requirement in proposed section 351.303(f)(2)(i) that requests for an expedited AD review, an administrative review, a new shipper review, or a changed circumstances review be served by personal service or first-class mail on each exporter or producer specified in the request. One commenter argues that such delivery methods are inefficient, costly, and prejudice small- and medium-sized enterprises (particularly for overseas deliveries), and that publicly listed addresses are sometimes undeliverable or refuse service. Moreover, the commenter notes that the Federal Register already provides public notice of the initiation of such proceedings. Thus, the commenter proposes that Commerce permit parties to serve requests for these reviews through electronic means, unless there are no means for electronic service.

Response: Upon consideration of these comments, we are amending the regulation so that requests for an expedited AD review, an administrative review, a new shipper review, or a changed circumstances review may be served via electronic service. Service of documents containing business proprietary information must be effectuated in accordance with the rules provided elsewhere in this final rule. Although the Federal Register provides public notice of the initiation of these proceedings, there is a delay between when parties may request these reviews and when Commerce will initiate the proceeding itself and publish the Federal Register notice. There is a benefit to service of requests for these types of proceedings because it may inform another party's decision whether to participate in the proceeding or to potentially comment on another party's request prior to a decision by Commerce to initiate the proceeding. Therefore, we are maintaining the requirement to serve requests for these types of reviews but are permitting parties to serve these requests via electronic service.

The only commenter remarking on this provision in proposed section 351.305(b)(2) supports the codification of the APO application process to use electronic Form ITA-367, because it would expedite the APO application approvals by Commerce, as well as service of applications and updated service lists.

Response: Upon consideration of this comment, we have made no changes to this provision from the Proposed Rule.

Several commenters support the general proposal in proposed section 351.305(c)(2) that representatives that are newly granted APO access would be responsible for requesting business proprietary documents that are no longer available on ACCESS from the party that made the business proprietary submission. However, one commenter notes that proposed section 351.305(c)(2) does not indicate the acceptable means of service for such documents, or whether a certificate of service would be required. Thus, the commenter suggests that Commerce amend subparagraphs (c)(2)(i) and (ii) to state that parties may agree upon any acceptable means of service listed in section 351.303(f)(1)(iii), and to state that a certificate of service is not required.

Response: Upon consideration of these comments, we clarify that service via secure electronic transmission is permitted and that a certificate of service is not required and are amending this regulation accordingly.

Commenters generally support the proposal in proposed section 351.306(c)(2) that when a party is not represented, or when its representative is not APO-authorized, another party need only serve that party or its representative its own business proprietary information, and not the business proprietary information of other parties. However, one commenter notes that in some instances a party files its own submission even when it is otherwise represented, and requests that Commerce clarify that a submitting party need only serve a party's representative rather than serve both the party and its representative.

Another commenter requests that Commerce limit the service exceptions under section 351.306(c)(2) to parties and representatives who are not eligible to obtain approval for access under an APO. The commenter states that if a U.S. attorney is eligible to obtain APO access, it should be required to do so to receive business proprietary information, including that of its client. If the attorney is eligible to obtain APO access but simply chooses not to, the commenter asserts other parties should not be required to serve the attorney under the service exceptions under section 351.306(c)(2) for pro se parties and non-APO authorized representatives and suggests that Commerce could require that parties indicate in their entry of appearance if they are not eligible to submit an APO application and the reasons why they are ineligible to submit an APO application.

Response: We clarify that a submitting party is required to serve the party or parties that are on the service list. If a party is not on the service list, but its representative is, the submitting party is only required to serve the party's representative, even if the party itself, and not its representative, filed the submission.

In addition, we decline to adopt the suggestion that Commerce limit service exceptions under this provision to parties that are not eligible to obtain approval for access to an APO. There is no requirement to file an APO application, and we do not view it as appropriate to require a person to file an APO application simply because that person is an attorney. As such, we are not making changes to the regulations to limit the service exceptions in this manner.

One commenter argues that if Commerce adopts its proposal to remove paragraph (c)(3) and redesignate paragraph (c)(4) as paragraph (c)(3) under proposed section 351.408, Commerce should also remove the reference to current paragraph (c)(3) in paragraph (c)(2). The commenter notes that paragraph (c)(2) currently reads: “Except for labor, as provided in paragraph (d)(3) of this section, the Secretary normally will value all factors in a single surrogate country.” The commenter argues that for consistency, that paragraph could be revised to state: “The Secretary normally will value all factors in a single surrogate country.”

Response: We agree and are amending the regulation accordingly.

Commenters recommended several modifications to the ACCESS system and filing procedures that were not covered or addressed in the Proposed Rule.

Commenters suggested a variety of changes to ACCESS, including:

• creating a separate docket and separate notification digests for procedural documents such as APO applications, entries of appearance, and amendments thereto;

• adding additional notification digests;

• adding a “released date” column to show the date and time a document is made available to parties;

• extending the number of days business proprietary documents are available on ACCESS to 30 days;

• increasing the number of ACCESS proxy users, including a proposal to create firm-wide proxies;

• increasing the ACCESS file-size limit;

• increasing the number of files available for batch download;

• requiring optimization of PDFs for maximum compression; and

• consolidating all parts of a filing under one barcode.

Response: We note that these suggestions are not responsive to the proposed regulatory amendments in the Proposed Rule. Thus, such modifications would be outside the scope of this rulemaking. However, Commerce is committed to improving the ACCESS system by implementing features that will foster efficiency and ease of use for the most users while staying within Commerce's resource constraints. As such, we will take these proposals into consideration and may address one or more in possible future rulemakings. To the extent consideration or implementation of certain new features would not require notice and comment, Commerce will consider these proposals and any new features adopted will be announced on the ACCESS website at https://access.trade.gov and included in the ACCESS Handbook.

Commenters also proposed three additional changes to Commerce's filing procedures that were not included in the Proposed Rule: amending section 351.309(d) to require rebuttal briefs to be due seven days after the due date for case briefs, rather than the current five days; amending section 351.303(b)(1) to set a filing deadline of 12:00 a.m. Hawaiian Standard Time, or at a minimum changing to a midnight Eastern Time deadline rather than 5:00 p.m. Eastern Time; and amending section 351.303(b)(1) to deem the time of filing of a submission as the time the party begins the filing process, rather than the end time at which it is filed in its entirety.

Response: Commerce has not adopted these three recommendations in this final rule. The Proposed Rule did not cover or address these regulatory provisions in sections 351.309(d) and 351.303(b)(1), and the comments are outside the scope of the modifications and additions to regulations that we proposed for comment.

OMB has determined that this rule is not significant for purposes of Executive Order 12866.

This rule does not contain policies with federalism implications as that term is defined in section 1(a) of Executive Order 13132, dated August 4, 1999 (64 FR 43255 (August 10, 1999)).

This rule does not contain a collection of information subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35.

The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this rule, if adopted, would not have a significant economic impact on a substantial number of small business entities under the provisions of the Regulatory Flexibility Act, 5 U.S.C. 605(b). The factual basis for the certification was published with the Proposed Rule and is not repeated here. We received no comments and were not made aware of any positions of opposition to the certification. As a result, a Final Regulatory Flexibility Analysis was not required and none was prepared.

For the reasons stated in the preamble, the Department of Commerce amends 19 CFR part 351 as follows:

On December 3, 2020, we published the final rule, Revised Medical Criteria for Evaluating Musculoskeletal Disorders (final rule), 1 which became effective on April 2, 2021. This final rule revised the criteria in the listings that we use to evaluate disability claims involving musculoskeletal disorders in adults and children at the third step of our sequential evaluation process under titles II and XVI of the Social Security Act (Act). 2 The final rule, among other things, revised the listings in response to the decision in Radford v. Colvin, 3 which interpreted former listing 1.04A to require a disability claimant to show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from [the condition] continuously for at least 12 months.”  4 Under the court's interpretation of the former listing, a claimant did not need to show that each necessary criterion was present simultaneously or in particularly close proximity, as required by our interpretation of that listing. 5 The final rule clarified that, for the purposes of applying certain musculoskeletal disorders listings, 6 all of the required medical criteria must be present simultaneously, or within a close proximity of time, to satisfy the level of severity needed for the impairment to meet the listing. The final rule further defined the phrase “within a close proximity of time” to mean “that all of the relevant criteria must appear in the medical record within a consecutive 4-month period” (emphasis in original). 7 We also provided that “[w]hen the criterion is imaging, we mean that we could reasonably expect the findings on imaging to have been present at the date of impairment or date of onset.”  8

We established the consecutive 4-month period as a criterion to meet the level of severity in some of the musculoskeletal disorders listings based on our research of relevant medical literature and clinical guidelines. 9 When we proposed this requirement as part of a notice of proposed rulemaking (NPRM), 10 we specifically asked interested members of the public to comment on this issue and provide us with any studies and data that supported their comments for a different standard;  11 however, no studies or data were submitted in response. In the final rule, we concluded that the consecutive 4-month period was consistent with the timeframe medical providers were generally trained to use for scheduling their patients, 12 the general standard of care, 13 and the frequency of healthcare visits by individuals with musculoskeletal conditions. 14 At the same time, the consecutive 4-month period provided some leeway for claimants, because the standard for patient revisits was once every 3 months. 15 Our rules recognize that one visit alone may not ensure all necessary criteria required for a medical listing will be appropriately documented; however, the consecutive 4-month time period provided a sufficient period to ensure the criteria were present “within a close proximity of time” and that the musculoskeletal disorder met the requisite severity for the listing.

In 2020, COVID-19 began to spread throughout the country, prompting the Secretary of Health and Human Services to declare a national PHE on January 31, 2020. 16 With the outbreak of COVID-19, access to and the provision of healthcare changed significantly. Throughout the PHE, individuals across the country—including those with musculoskeletal disorders—altered their frequency and manner of seeking access to healthcare. This was due in part to healthcare organizations and government agencies such as the Centers for Medicare & Medicaid Services (CMS)  17 prioritizing the most urgent services and encouraging patients to delay other procedures during the PHE. Likewise, many individuals delayed or deferred important treatments due to closures of medical offices, fears of contracting COVID-19 infection (including fear of exposing high-risk individuals living in their household to infection), and other challenges created or exacerbated by the pandemic, such as difficulty accessing transportation.

In July 2021, we published a TFR entitled Flexibility in Evaluating “Close Proximity of Time” Due to COVID-19 Related Barriers to Healthcare   18 (prior TFR), which recognized the changes in healthcare provision and consumption described above. In the prior TFR, we acknowledged that the response to the COVID-19 pandemic dramatically changed the provision of, and access to, healthcare services throughout the country, and we cited evidence showing that significant numbers of people had foregone or delayed care, or replaced in-person medical visits with telehealth visits. 19 Therefore, we concluded that individuals with musculoskeletal impairments who, before the pandemic, would have sought and received healthcare at a frequency consistent with the standards in our final rule, now might be unable or choose not to seek care for their condition in the same manner and frequency. Affected individuals whose impairments might have previously met the listings requirements may now fail to meet the “close proximity of time” standard because of the changes in the provision of healthcare resulting from COVID-19. We therefore extended the timeframe for an individual's record to demonstrate the necessary listing criteria throughout the pandemic period.

The prior TFR defined the “pandemic period” for the purposes of our regulations and provided that during the pandemic period, the phrase “within a close proximity of time” meant that all of the relevant criteria must appear in the medical record within a consecutive 12-month period.”  20 The prior TFR defined the “pandemic period” as beginning on April 2, 2021 and ending 6 months after the Secretary of HHS determined that the COVID-19 national PHE no longer existed. We extended the “pandemic period” for 6 months after the end of the COVID-19 national PHE to allow time for healthcare access to normalize and return to pre-pandemic period levels as well as to account for potential backlogs in medical care that may continue to interfere with access to the relevant care and documentation needed to satisfy the listing criteria. We also indicated that we would study the application of the TFR on our programs. 21

When we published the prior TFR in the Federal Register , we provided the public with a 60-day comment period, which ended on September 21, 2021. We specifically contemplated extending the prior TFR, and we invited comments on all aspects of the rule, including the definition of “pandemic period” and the expiration date. We received one comment from the National Organization of Social Security Claimants' Representatives (NOSSCR)  22 that encouraged us to make permanent the temporary 12-month standard. The commenter also recommended, if we chose not to make the 12-month standard permanent, that we extend the period covered by the prior TFR to one year after the end of the PHE. They argued that access to care issues exist regardless of the pandemic and that it would take longer than 6 months for healthcare delivery to normalize after the end of the PHE.

With this temporary rule, we are partially adopting this comment. Although we provided support for the consecutive 4-month period in our 2020 final rule, we agree with NOSSCR that some of the changes in healthcare caused by the COVID-19 pandemic may last longer than 6 months after the end of the PHE and that some changes may become permanent, including the increased use of telehealth, the nature of which limits documentation of clinical findings needed for certain listings. However, as discussed in the Rationale for this Rule section below, the healthcare data that was captured during the PHE has limitations both in data collection and in the ability to make ultimate conclusions about post-PHE healthcare delivery, particularly in light of policy changes affecting healthcare that will occur throughout calendar years 2023 and 2024. 23 Therefore, we are extending the flexibility provided in the prior TFR by extending the definition of “pandemic period” through May 11, 2025, so we can continue to review emerging evidence about post-PHE healthcare access and use. At the conclusion of that period, we expect to be able to determine whether we should extend the TFR again, make the flexibility in the TFR permanent, as the commenter recommended, propose a different standard for “close proximity of time,” or let the TFR expire, so that we would revert to the 4-month rule on “close proximity of time” in our 2020 final rule. The commenter also raised issues regarding general barriers to accessing care that disability benefit applicants may be disproportionally likely to experience. These comments are outside the scope of this very limited TFR, so we are not addressing them here. We will address these comments in a future venue. We also note that although the commenter provided significant discussion of the wait times for imaging, including citing research about these wait times, they appear to have mischaracterized the “close proximity of time” requirement for imaging. The listings specify at 1.00C7c and 101.00C7c that “[w]hen the criterion is imaging, we mean that we could reasonably expect the findings on imaging to have been present at the date of impairment or date of onset.”  24 Therefore, in listings that have an imaging criterion, we do not require the imaging to have been taken within a close proximity of time to the other required elements, as long as we can reasonably expect the findings on imaging to have been present within a close proximity of time to the other required elements.

We are extending the flexibility provided by the prior TFR through May 11, 2025 to allow for additional time to study changes in healthcare access and provision, and to account for the ongoing increased use of telehealth services following the COVID-19 PHE. We will evaluate these evolving practices and their effects to determine the appropriate “close proximity of time” standard to include in the musculoskeletal disorders listings going forward.

We published the prior TFR to provide a more flexible 12-month “close proximity of time” standard in the musculoskeletal disorders listings to account for changes in the provision of and access to healthcare during the COVID-19 PHE. Although the PHE has now ended, 25 the state of healthcare has not fully returned to pre-pandemic norms and the impact of ending the PHE and related flexibilities will not be fully understood for some time. For example, and as discussed in more detail below, studies and reports from multiple government agencies as well as professional medical associations document an ongoing prevalence of telehealth service methodologies at higher levels than seen pre-PHE. In addition, several PHE-related policy flexibilities aimed at increasing healthcare access through telehealth have been extended through 2023 or 2024. At the same time, Medicaid and the Children's Health Insurance Program's (CHIP) continuous coverage protections, which had required states to maintain ongoing eligibility for Medicaid and CHIP for individuals who were enrolled on or after March 18, 2020, ended on March 31, 2023, leaving states until May 31, 2024, to complete eligibility redeterminations, 26 potentially leading to an increase in uninsured individuals. These factors suggest that U.S. healthcare will be in a state of rapid change in the period immediately following the PHE, so we will need to study the changes in healthcare provision before defining the appropriate “close proximity of time” interval going forward.

As we discussed in the prior TFR, after the initial sharp drop in total healthcare capacity due to PHE-related closures and disruptions of care, policy flexibilities around telehealth provision and reimbursement allowed for the use of telehealth to increase substantially from pre-pandemic norms, partially offsetting the decline in in-person care, particularly for management of chronic conditions and for established patients. 27 Although telehealth visits can provide the information that clinicians need to care for patients, audio-only telehealth appointments do not provide clinical signs and findings, and video telehealth musculoskeletal examinations have inherent limitations, including in provocative testing (that is, testing that manipulates the areas where an individual has pain in order to reproduce the pain), discrete palpation (that is, a technique that uses targeted pressure to identify and quantify the abnormalities of the musculoskeletal system, such as warmth, swelling, pain, tenderness, and trigger points), strength or stability testing, and precise measurements, such as range of motion or reflexes. 28 Therefore, use of telehealth in place of in-person visits may make it more difficult for some claimants to provide the necessary findings in the medical record to satisfy some of the musculoskeletal disorders listing criteria within a consecutive 4-month period.

Trends suggest telehealth usage will continue into the foreseeable future. Since the prior TFR was published, the use of telehealth as a percentage of total use has remained stable, with total healthcare visits and in-person visits trending higher than in 2020, but with an increased use of telehealth compared to pre-PHE norms. For example, the Veterans' Health Administration's (VHA) update to Congress covering the period from August 2021 to March 2022 showed that total visits had surpassed pre-PHE 2019 visits during this period, but in-person visits remained below pre-PHE totals, with both video and audio telehealth visits showing steady use over the period. VHA concluded that the data marked “positive progress for resumption of services with continued use of telehealth encounters.”  29 Similarly, Medicare data showed telehealth use leveling off between 16 and 19 percent of eligible users in all quarters beginning in the second quarter of 2021 and through the second quarter of 2022, which is significantly higher than the 7 percent of eligible users who used telehealth services in the first quarter of 2020. 30 An HHS summary of national survey trends from the Census Bureau's April to October 2021 Household Pulse Survey found that 23.1 percent of respondents reported use of telehealth in the previous four weeks, with the data showing a leveling off around the 20 percent mark in July 2021. 31 The results of these studies suggest that the changes in healthcare delivery related to the PHE have continued, and we may not know the long-term effects of those changes before the prior TFR expires. Consequently, we are extending the expiration date of the TFR so we can continue to analyze evolving changes and new norms in healthcare delivery, including the use of telehealth, and devise the appropriate definition of “close proximity of time” for the musculoskeletal disorders listings. We will also continue to study other related factors such as those raised by the commenter.

Extending the TFR will further allow us to review and adapt to new clinical guidelines evolving in a post-PHE landscape. Although the research is still developing and most professional organizations have yet to update their clinical practice guidelines for a post-PHE “new normal,” the emerging research and data suggest that patients and providers generally appreciate the increased use of telehealth, and such increased use is expected to continue post-PHE. This increased use appears true for both audio-only and video telehealth modalities and includes specialties, such as orthopedic surgery and spine surgery, that previously used telehealth only sparingly. For example, an American Medical Association (AMA) survey of 2,232 physicians released in 2022 revealed that 85 percent of responding physicians continued to use telehealth, that nearly 70 percent of respondents reported their organization was motivated to continue using telehealth in their practice, that physicians felt telehealth increased timely access to care, and that physicians anticipated providing telehealth services for chronic disease management and ongoing medical management, care coordination, mental/behavioral health, and specialty care after the pandemic. 32

Similarly, studies specific to the field of spine medicine generally found that practitioners and patients expected to continue using telehealth and that the majority of patients and providers only felt a need for in-person visits for the initial encounter and, if applicable, the pre-operative visit. 33 Studies of orthopedic medicine showed similar results, with a large study of orthopedic surgeons reporting that physician use of telehealth has increased significantly as a result of the COVID-19 pandemic (from 21 percent using telehealth prior to the pandemic to 85 percent using it during the pandemic), and the majority of surgeons were satisfied with its use in their practice and planned on incorporating telehealth in their practices beyond the pandemic, particularly for follow-up or postoperative patients. 34 In the realm of chronic pain, a Delphi consensus article about management of chronic pain concluded that telemedicine and remote monitoring improves management of chronic pain and that the remote management of chronic diseases can improve access to care, but that at least the first assessment should be performed in person. 35

Some clinical practice organizations have provided recommendations or policy statements regarding the use of telehealth after the acute phase of the pandemic, suggesting an ongoing, but potentially more limited, role in healthcare provision for people with musculoskeletal disorders going forward. An international set of recommendations published in June 2022, and endorsed by the North American Spine Society, included a recommendation to expand telehealth for spine care in order to help patients with spinal diseases obtain timely advice toward alleviating pain and recognizing critical symptoms that need urgent care, and thus obtain treatment in a timely manner. 36 Additionally, the American College of Rheumatology (ACR) released a 2023 health policy statement in which it supported ongoing expanded use of telehealth as a “tool that can increase access and improve outcomes for patients with rheumatic diseases when used [with] face-to-face assessments.” However, it cautioned that telehealth should not replace essential face-to-face assessments conducted at medically appropriate intervals. 37 The AMA also released a blueprint for digitally-enabled care, in which it recommended fully integrated in-person and virtual care models that based the type of care on clinical appropriateness and other factors, such as convenience and cost, and focused on health equity and centering the needs of patients and providers. 38

The expected shift towards greater use of telehealth in medical practice after the PHE, compared to prior to the PHE, could mean that the evidence upon which we based the consecutive 4-month “close proximity of time” period may no longer accurately describe the standard frequency of in-person healthcare visits. In fact, some of the sources cited in the 2020 final rule and prior TFR have provided new guidance that removed specific revisit intervals. For example, in both rules, we noted that our use of the consecutive 4-month proximity of time requirement was also consistent with the standard recognized by the VHA and Department of Defense (DoD), as set out in their clinical practice guidelines. 39 We noted that the VHA and DoD's Clinical Practice Guideline for the Management of Medically Unexplained Symptoms: Chronic Pain and Fatigue directed initial revisits at 2 to 3 week intervals, with visits every 3 to 4 months once the patient is doing well. 40 However, a 2021 updated VHA and DoD Clinical Practice Guideline for Management of Chronic Multisymptom Illness (formerly known as Medically Unexplained Symptoms) does not provide suggested revisit intervals. Instead, it includes recommendations to “[d]evelop personal health plan and timeline for follow-up and monitor progress toward personal goals” and “[m]aintain continuity and [a] caring relationship via in-person and/or virtual modalities,” without specifying intervals. 41 Similarly, the previous version of the VHA's and DoD's Clinical Practice Guideline for Diagnosis and Treatment of Low Back Pain, which we also cited in our prior rulemaking, described the duration of time for intervention, based on a systematic review, as requiring a minimum follow-up for effectiveness of 12 weeks and recommended monthly reassessment after initiation of therapy if low back pain continued and no serious specific underlying cause of low back pain was found. 42 However, the updated 2022 version of this guideline allows for a more flexible, patient-centered approach and has replaced the specific interval language with recommendations to “assess response as appropriate” and “reassess as appropriate.”  43 We need the additional time provided by this TFR to assess whether and how these changes in clinical practice guidelines may affect the period we chose to use in our 2020 final rule.

In addition to the extension of telehealth flexibilities, other policy changes related to the end of the PHE may impact healthcare use and create a period of rapid changes in healthcare. Some national telehealth flexibilities have been extended until the end of calendar year 2023 (for example, payment parity for audio and video telehealth visits, which allows providers to be reimbursed for telehealth visits originated at the patient's home at the same rate and using the same “place of service” code as they would be if provided in-person). 44 Other flexibilities have been extended through December 31, 2024 (for example, Medicare coverage of audio-only and of video telehealth services no matter where in the United States a patient lives, rather than covering telehealth services for beneficiaries living in rural areas only, and with the ability to access telehealth services from their home, rather than going to a health care facility). 45 Conversely, certain other flexibilities, such as flexibilities related to telehealth platforms and the continuous enrollment provision for Medicaid, began winding down at the end of the PHE. 46 Extra federal payments to hospitals during the PHE, including a 20 percent increase in the Medicare payment rate for inpatient treatment of patients diagnosed with COVID-19 and the ability to charge “facility fees” for telehealth services to patients who are not located at the hospital, were also phased out at the end of the PHE, 47 putting additional financial strain on the medical system.

In particular, the expected substantial rise in the uninsured population after the PHE-related Medicaid and CHIP continuous enrollment provision ends will exacerbate access to care challenges during this transitional time, making it more difficult to predict revisit intervals and use of healthcare, particularly for people facing barriers to healthcare.

An HHS issue brief published in 2022 projected that 17.4 percent of Medicaid and CHIP enrollees (approximately 15 million individuals) will leave the programs after the continuous enrollment provisions end based on historical patterns of coverage loss, including 7.9 percent (6.8 million) of Medicaid enrollees losing Medicaid coverage despite still being eligible (sometimes referred to as “administrative churning”). HHS predicted there would be a disproportionate impact on historically underserved populations, although they noted they were taking steps to reduce that outcome. 48 Information from the Centers for Disease Control and Prevention (CDC) already shows an uptick in the uninsured population beginning in late 2022, with the uninsured population increasing to 12.6 percent of adults in the United States in the third quarter of 2022 from a low of 11.8 percent in the first quarter of 2022. 49 Initial data on the end of Medicaid's continuous enrollment provision from 20 states provided by the Kaiser Family Foundation demonstrated that over 1 million people had already been disenrolled from Medicaid, with many disenrolled for procedural reasons, as of June 12, 2023. 50 Data analyzed by the Kaiser Family Foundation found that the uninsured population was the only population that had delayed or foregone care due to cost more than due to the pandemic, suggesting that gaps in access to care will remain high for a growing uninsured population even as pandemic-related concerns are expected to decrease. 51 Additionally, a Gallup poll released in January 2023 noted that a record high 38 percent of Americans reported putting off medical treatment due to cost, up 12 percentage points from 2021, and that lower-income adults, younger adults, and women were more likely than their counterparts to say they or a family member have delayed care for a serious medical condition. 52

Initial evidence also suggests that the ongoing impacts of the COVID-19 PHE and the increased use of telehealth may also affect certain populations differently. For example, the HHS' summary of national survey trends from the Census Bureau's April to October 2021 Household Pulse Survey found that the highest rates of telehealth visits were among those with Medicaid (29.3%) and Medicare (27.4%), Black individuals (26.8%), and those earning less than $25,000 (26.7%). The report found disparities in use of telehealth services, including the use of video versus audio modalities, along dimensions including race and ethnicity, age, education, income, and health insurance. 53 Similarly, an October 2022 report on telehealth use in Medicare from 2019 to 2021, issued by the Bipartisan Policy Center, found that, although the distribution of beneficiaries using telehealth by race and ethnicity was roughly proportionate to the distribution of the overall study population by race and ethnicity, there was variation in the telehealth visit rates for those who used telehealth across racial and ethnic groups. They noted that telehealth visit rates for American Indian/Alaska Native (AI/AN), Black/African American (AA), and Hispanic beneficiaries exceeded the overall telehealth rates, with AI/AN beneficiaries having the highest audio-only visit rates, and that non-Hispanic/White beneficiary telehealth visit rates were lower than the overall telehealth visit rates by 2 percent, on average, across the study period. 54 Further, a cross-sectional study of over a million veterans published in the Journal of the American Medical Association (JAMA) in January 2023 found that wait time disparities increased significantly from the pre-COVID-19 period (October 1, 2018 to March 10, 2020) to the COVID-19 period (March 11, 2020 to September 30, 2021) for Black and Hispanic veterans, and that disparities in mean wait times for orthopedic services were statistically significant both before and after the COVID-19 period. 55

In sum, the emerging data suggests that an increased use of telehealth will likely replace some in-person visits for some people with musculoskeletal disorders even after the end of the PHE and that other policy and healthcare changes could impact access to care during the period immediately following the end of the PHE, possibly leading to extended revisit intervals between thorough examinations. However, evidence on expanded telehealth use and its expected long-term effect on healthcare quality and the use of in-person examinations is limited, partially by data challenges, although the research base is expected to grow during the period immediately following the end of the PHE. For example, a report published by CDC experts in 2022 stated that “one of the central public health issues in the U.S. identified by CDC was the absence of telehealth identifiers in many datasets, including most of CDC's national surveillance datasets.” The report authors stated that the CDC was working to improve access to data related to healthcare and telehealth. 56 To this end, Medicare provided for additional use of telehealth identifiers in its 2023 fee schedule, including identifiers for audio-only telehealth. 57

There are also inherent limitations in relying on healthcare use data gathered during the PHE to determine post-PHE outcomes. For example, in an October 2022 report, the Bipartisan Policy Center concluded that studies of telehealth use during the PHE would not provide enough information to understand the impact of permanently expanded telehealth use on healthcare utilization, quality, equity, cost, and other factors due to confounding pandemic-related changes in healthcare needs, and they urged further study of telehealth during the period following the end of the PHE. The report recommended a two-year extension of telehealth flexibilities after the end of the PHE and indicated that researchers should evaluate the benefits of hybrid (in-person and virtual) care models for primary and specialty care, including for which conditions and specialties it is most effective; further evaluate full telehealth flexibilities in the context of value-based payment models; and rigorously assess the quality of audio-only care. 58 Similarly, in September 2022, the Medicare Payment Advisory Commission (MedPAC), an independent congressional agency that advises Congress on Medicare payment policy, recommended using a one- to two-year period of extended flexibilities after the PHE to allow policymakers to gather more evidence about the impact of telehealth on access, quality, and cost, which could inform permanent changes to telehealth policies. 59 Along these lines, a 2021 Medicare telehealth report concluded that more research is needed on the impact of telehealth on health outcomes, stating that “if telehealth flexibilities are temporarily extended post-pandemic . . . this would allow evaluations of whether telehealth use during non-pandemic times may increase overall healthcare utilization as suggested by some studies, or simply substitute for in-person services.”  60 Recognizing the need for more data on telehealth use, Congress required HHS to report on Medicare telehealth use during the period immediately following the end of the PHE, with the interim report due in October 2024. 61

Because healthcare provision has not returned to pre-pandemic norms and emerging evidence suggests that ongoing changes may lead to decreased use of in-person healthcare, we need to continue to evaluate the evidence upon which we based the consecutive 4-month “close proximity of time” period. We need to determine whether the evidence we relied on in adopting the 4-month standard continues to match the current status of healthcare, including the standard frequency of in-person healthcare visits. Consequently, we are extending the flexibility provided in the prior TFR until May 11, 2025.

We will use the extension period to study the actual changes in healthcare access and provision after the expiration of the PHE. We expect this additional period will allow us to consider whether a permanent change to the consecutive 12-month “close proximity of time” period, or to a different timeframe, would be appropriate to account for ongoing changes in healthcare access and delivery. During the extension period, we will also continue to review information about disparities in access to care or modalities of care for people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality and who have been affected by the changes in healthcare provision during the pandemic. This review is consistent with Executive Order 13985, entitled “Advancing Racial Equity and Support for Underserved Communities Through the Federal Government,” which directs agencies to recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity. 62

We will also continue to study the application of the “close proximity of time” rule in our programs after the expiration of the PHE. We expect that continued review of case trends over time can help inform our understanding of how the end of the PHE may affect claimants' ability to provide the required evidence within a 4-month or 12-month period for the applicable musculoskeletal disorders. We will also continue to monitor the quality of our determinations and decisions to inform our policy decision and ensure the appropriate adjudication of claims for people with musculoskeletal disorders.

Although we are publishing a temporary final rule, we invite public comment on all aspects of the rule, including:

• The appropriate standard for “close proximity of time” to account for barriers to access to care or changes in healthcare delivery;

• Information about barriers to access to care, changes in healthcare delivery, and disproportionate burdens faced by any subset of the population; and

• The expiration date of this rule.

Please share any supporting information that you might have. We will consider any substantive comments we receive within 60 days of the publication of this TFR.

This rule revises sections 1.00C7a and 101.00C7a of the musculoskeletal disorders listings to redefine the term “pandemic period” to mean “the period beginning on April 2, 2021, and ending on May 11, 2025.”

We follow the Administrative Procedure Act's (APA) rulemaking procedures specified in 5 U.S.C. 553 when we develop regulations. Generally, the APA requires that an agency provide prior notice and opportunity for public comment before issuing a final rule. However, the APA provides exceptions to its notice and public comment procedures when an agency finds there is good cause for dispensing with such procedures because they are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 553(b)(B)).

We find that there is good cause to issue this TFR without prior notice. 63 Because we have already been following the flexible 12-month “close proximity of time” standard, it would be impracticable and contrary to the public interest to delay implementing this TFR. Delayed implementation of this TFR would require us to delay adjudicating affected claims, potentially resulting in delayed benefits to vulnerable individuals. 64 Otherwise (if we did not delay adjudications), we would need to apply the 4-month “close proximity of time” standard, which does not consider changes in healthcare access and delivery related to the PHE, as discussed in the preamble. Thus, individuals might be unable to show that they meet a listing under the 4-month “close proximity of time” standard merely due to changes in how the healthcare system works. To give individuals the benefit of the flexible standard that has already been in place for over two years, we would delay adjudicating affected claims until the effective date of this TFR.

Delay in implementing this TFR would be impracticable and contrary to the public interest because it may cause some applicants to experience immediate and severe financial hardship, placing them at risk of losing their homes, means of transportation, access to health care, and other important resources, in addition to experiencing increased stress as they await the outcome of their case and their award of benefits. This is particularly true for the population that is eligible for Supplemental Security Income (SSI), which has, by definition, severely limited income and financial resources. 65 An unnecessary delay would cause significant harm and detract substantially from the effectiveness of the disability program in providing meaningful economic relief for disabled individuals. Even if affected claimants received the same benefits at a later date, these individuals may suffer from long term or permanent consequences of the lost income during the period of delay.

For good cause shown, to avoid delaying benefits to vulnerable individuals while providing appropriate flexibility to account for COVID-19-related healthcare changes, we are dispensing with prior notice and public comment on this rule pursuant to 5 U.S.C. 553(b)(B).

Executive Order 12866, as supplemented by Executive Orders 13563 and 14094, requires each agency to write all rules in plain language. In addition to your substantive comments on this rule, we invite your comments on how to make the rule easier to understand.

For example:

• Would more, but shorter, sections be better?

• Are the requirements in the rule clearly stated?

• Have we organized the material to suit your needs?

• Could we improve clarity by adding tables, lists, or diagrams?

• What else could we do to make the rule easier to understand?

• Does the rule contain technical language or jargon that is not clear?

• Would a different format make the rule easier to understand, e.g., grouping and order of sections, use of headings, paragraphing?

We consulted with the Office of Management and Budget (OMB) and determined that this rule is a non-significant regulatory action under Executive Order 12866, as supplemented by Executive Orders 13563 and 14094.

Our Office of the Chief Actuary estimates that implementation of this temporary final rule would result in negligible changes ( i.e., less than $500,000) in scheduled Old-Age, Survivors, and Disability Insurance benefits and Federal SSI payments.

The Office of Budget, Finance, and Management expects the extension provided by the TFR will have a minimal administrative effect on the agency.

We anticipate the following qualitative benefits generated from this policy:

• Provide a more flexible and appropriate 12-month “close proximity of time” standard in the musculoskeletal disorders listings to account for healthcare changes that have occurred since the beginning of the COVID-19 PHE.

• Potentially allow for faster disability determinations and decisions by preventing adjudication delays for additional medical development, which would also have quantitative financial effects.

We do not believe there are any more than de minimis costs to the public associated with this rule. The requirements in this rule will not impose new additional costs outside of the normal course of business for applicants or change how the public interacts with our disability programs.

We analyzed this temporary final rule in accordance with the principles and criteria established by Executive Order 13132 and determined that the rule will not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. We also determined that this rule will not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions.

We certify that this temporary final rule will not have a significant economic impact on a substantial number of small entities because it affects individuals only. Therefore, a regulatory flexibility analysis is not required under the Regulatory Flexibility Act, as amended.

These rules do not create any new or affect any existing collections and, therefore, do not require Office of Management and Budget approval under the Paperwork Reduction Act.

The Acting Commissioner of Social Security, Kilolo Kijakazi, Ph.D., M.S.W., having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for the Social Security Administration, for purposes of publication in the Federal Register .

For the reasons stated in the preamble, we are amending part 404 of chapter III of title 20 of the Code of Federal Regulations as set forth below:

This document and additional information concerning OFAC are available on OFAC's website: https://ofac.treasury.gov.

On September 14, 2023, OFAC issued GLs 55A and 72 to authorize certain transactions otherwise prohibited by the Russian Harmful Foreign Activities Sanctions Regulations, 31 CFR part 587. GL 55A has an expiration date of June 28, 2024. GL 72 has an expiration date of December 13, 2023. Each GL was made available on OFAC's website ( https://ofac.treasury.gov ) at the time of publication. The text of these GLs is provided below.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable and contrary to the public interest. This safety zone must be established by October 2, 2023, to provide for the safety of life on the navigable waters during a helicopter operation, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the date of the helicopter operation. Vessels inside of the safety zone have the potential of getting hit by derby from the helicopter.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable and contrary to the public interest because action is needed by October 2, 2023, to ensure the safety of the of life on the navigable waters during a helicopter operation.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Pittsburgh (COTP) has determined that potential hazards associated with a helicopter operation on October 2 through October 5, 2023, will be a safety concern for anyone on the Ohio River from mile markers 79.5 to mile marker 80 from 8 a.m. to 7 p.m. daily. The purpose of this rule is to ensure safety of the participant, vessels, and the navigable waters in the safety zone before, during, and after the scheduled event.

This rule establishes a temporary safety zone that will be enforced each day from 8 a.m. until 7 p.m. on October 2 through October 5, 2023. The safety zone will cover all navigable waters on the Ohio River from mile markers 79.5 to mile marker 80. The duration of the zone is intended to protect personnel, vessels, and the marine environment in the navigable waters during an installation of aerial transverse wirelines using a helicopter.

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

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

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

This regulatory action determination is based on size, location, and duration of the temporary safety zone. This safety zone only impacts a 0.5-mile stretch on the Ohio River for 11 hours each day from October 2 through October 5, 2023. Moreover, the Coast Guard will issue Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission from the COTP to transit the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting 11 hours each day from October 2 through October 5, 2023, on the Ohio River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the ADDRESSES section of this preamble.

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

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

The Ocean Cup Pacific Rum Run race is planned in conjunction with the Pacific Air Show. The course begins off Huntington Beach Pier, proceeds to Ship Rock, circumnavigates Catalina Island back to Ship Rock, and returns to the finish at the Huntington Beach Pier. The Captain of the Port (COTP), Los Angeles—Long Beach has determined that potential hazards associated with event safety may arise due to the expected high concentration of vessels in the general area, along with the high-speed race vessels. For these reasons, the Coast Guard believes that a safety zone is necessary to ensure the safety of, and reduce the risk to, the public and mariners around Catalina Island.

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under Section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard did not receive final details for this event until July 14, 2023. There was insufficient time to undergo the full rulemaking process, including providing a reasonable comment period and considering those comments, because the Coast Guard must establish this temporary safety zone by September 29, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to address potentially hazardous conditions associated with high-speed maneuvers from vessels during the race.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port (COTP), Los Angeles—Long Beach has determined that potential hazards associated with event safety may arise due to the expected high concentration of vessels in the general area along with the high-speed race vessels. The purpose of this rule is to ensure the safety of, and reduce the risk to, the public, and mariners around Catalina Island before, during, and after the scheduled event.

This rule establishes a safety zone from 6:30 a.m. to noon on September 29, 2023. The safety zone would encompass all navigable waters from the surface to the sea floor consisting of a line connecting the following coordinates: 33°39′11″ N, 118°0′22″ W; 33°27′42″ N, 118°29′28″ W; 33°24′51″ N, 118°30′7″ W; 33°39′5″ N, 118°0′28″ W. All coordinates displayed are referenced by North American Datum of 1983. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled race. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866, as amended by Executive Order 14094. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. Commercial vessel traffic will be able to safely transit through this safety zone, with coordination by the Captain of the Port or their designated representative. The Coast Guard and Vessel Traffic Service/Marine Exchange will coordinate and mitigate all inbound and outbound commercial traffic movements through the racecourse. Recreational traffic will be able to transit around this safety zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing an area near Ship Rock, Catalina Island for the Ocean Cup Pacific Rum Run. It is categorically excluded from further review under paragraph 60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this safety zone immediately to protect personnel, vessels, and the marine environment from potential hazards created by the possibility that the rig, a Floating Production Unit being towed by a heavy-lift vessel, could separate from the towing vessel and float off, and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because there are fewer than 30 days left before the towing is to occur, and publication of this rule is needed to respond to the potential safety hazards associated with towing the offshore rig through the La Quinta Channel and Corpus Christi Shipping Channel.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port, Sector Corpus Christi (COTP) has determined that hazards inherent in the towing of the rig NFE PIONEER II, which will take place between September 26, 2023 and October 10, 2023, will be a safety concern for anyone within the La Quinta and Corpus Christi Shipping Channel between gated pair lights 11 and 12 and the sea buoy. The purpose of this rule is to protect the marine environment, and to ensure safety of vessels and persons on these navigable waters who might be present in the safety zone while the rig is being towed but for the existence of the safety zone.

This rule is subject to enforcement from 6 a.m. to 6 p.m. each day, from September 26, 2023 through October 10, 2023. The transit will begin at the Kiewit Offshore Services facility, adjacent to the La Quinta Channel between gated pair lights 11 and 12 to the sea buoy. No vessel or person will be permitted to enter the temporary, moving safety zone during the period in which the rule is subject to enforcement without obtaining permission from the COTP or a designated representative, who may be contacted on Channel 16 VHF-FM (156.8 MHz) or by telephone at 361-939-0450. The Coast Guard will issue Broadcast Notices to Mariners, Local Notices to Mariners, and/or Safety Marine Information Broadcasts as appropriate.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This rule has not been designated a “significant regulatory action,” under Executive Order 12866, as amended by Executive Order 14094 (Modernizing Regulatory Review). Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB).

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone covers a 5 nautical mile area of the La Quinta and Corpus Christi Shipping Channel near Ingleside, TX. The temporary, moving safety zone will be subject to enforcement for a period of only 12 hours a day, from September 26, 2023 through October 10, 2023. The rule does not completely prohibit vessel traffic within the waterway and it allows mariners to request permission to enter the zone.

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

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

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

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

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

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

Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section above.

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves establishment of a temporary moving safety zone for navigable waters of the La Quinta Channel between gated pair lights 11 and 12 to the sea buoy. The safety zone is needed to protect personnel, vessels, and the marine environment from potential hazards created by the rig NFE PIONEER II while it is towed from Kiewit Offshore Services. It is categorically excluded from further review under paragraph L60(c), in Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1.

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

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. The Coast Guard received final details for this event on August 30, 2023 and the final details for a related and adjacent marine event impacting the drafting of this rule on July 14, 2023. There was insufficient time to undergo the full rulemaking process, including providing a reasonable comment period and considering those comments, because the Coast Guard must establish this temporary safety zone by September 29, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be contrary to the public interest because immediate action is needed to address potentially hazardous conditions associated with high-speed maneuvers from aircraft and waterborne vessels for a search and rescue demonstration.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The COTP has determined that potential hazards associated with navigational safety may arise due to multiple low flying aircraft flight paths and stunt performances over the waters off Huntington Beach. This air show will consist of numerous military and civilian aircraft performing aerobatic maneuvers at high speed within the lateral limits of an aerobatic box that would extend from the surface of the water to 15,000 feet above mean sea level (MSL). The event at Huntington Beach generates over 800 spectator craft in attendance each year. This safety zone is to ensure the safety of and reduce the risk to the public and mariners in the vicinity of the aerobatic performance.

This rule establishes a safety zone from 9:30 a.m. on September 29, 2023, through 5 p.m. on October 1, 2023. Based on the safety risks described above, the Coast Guard is proposing to establish a safety zone in the vicinity of Huntington Beach for the Pacific Air Show. The safety zone would encompass all navigable waters from the surface to the sea floor in an area bound by the following coordinates: 33°38.391′ N; 117°58.820′ W, 33°37.984′ N; 117°59.187′ W, 33° 39.184′ N; 118°1.111′W, 33°39.591′ N; 118°0.745′ W. All coordinates displayed are referenced by North American Datum of 1983. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled race. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866, as amended by Executive Order 14094. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, and duration of the safety zone. The size of the zone is the minimum necessary to provide adequate protection for the waterway's users, adjoining areas, and the public. The zone will be enforced during the scheduled times of 9:30 a.m. to 5 p.m. on three days. Commercial vessel traffic will not be affected by the establishment of the safety zone due to its overall proximity to the shore. Recreational water users will be able to transit around the safety zone.

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

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A. above, this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the FOR FURTHER INFORMATION CONTACT section.

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone encompassing an area in vicinity of Huntington Beach and the Huntington Beach Pier. It is categorically excluded from further review under paragraph L60(a), in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures. It is categorically excluded from further review under paragraph 60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES .

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

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

Throughout this document wherever “we” or “our” is used, it means the EPA.

On June 22, 2023, Washington submitted a SIP revision to the EPA. In the submission, Southwest Clean Air Agency (SWCAA) made minor revisions to the general air quality regulations and requested, in coordination with the Washington Department of Ecology, to update the federally approved SIP. On July 31, 2023, we proposed to approve the submission (88 FR 49398). The reasons for our proposed approval are included in the proposal and will not be restated here. The public comment period closed on August 30, 2023. We received no comments on our proposed action and therefore we are finalizing our action as proposed.

The EPA is approving and incorporating by reference the regulatory changes to SWCAA 400 General Regulations for Air Pollution Sources submitted by Washington on June 22, 2023. 1 The EPA is also approving a minor, non-substantive change to the Code of Federal Regulations (CFR) at 40 CFR 52.2470(c)— Table 8 under the applicability subheading to more clearly reflect jurisdiction for issuing permits under the Prevention of Significant Deterioration (PSD) program. Upon the effective date of this action, the Washington SIP will include the following regulations as they apply in the SWCAA local jurisdiction:

• 400-025 Adoption of Federal Rules (adopting Federal regulations cited in the local agency rules) state effective September 10, 2021;

• 400-030 Definitions (establishing definitions used in the local agency rules) state effective September 10, 2021;

• 400-036 Portable Sources From Other Washington Jurisdictions (outlining requirements for portable sources locating within the local jurisdiction) state effective September 10, 2021;

• 400-050 Emission Standards for Combustion and Incineration Units (establishing emissions standards for sources within the local jurisdiction) state effective September 10, 2021;

• 400-060 Emission Standards for General Process Units (establishing particulate matter emissions standards) state effective March 21, 2020;

• 400-072 Small Unit Notification for Selected Source Categories (establishing uniform standards for certain small source categories) state effective September 10, 2021;

• 400-074 Gasoline Transport Tanker Registration (establishing standards for gasoline transport tankers) state effective June 18, 2017;

• 400-091 Voluntary Limits on Emissions (allowing stationary sources to take a voluntary reduction in potential to emit) state effective September 10, 2021;

• 400-105 Records, Monitoring and Reporting (establishing compliance requirements on stationary sources) state effective September 10, 2021;

• 400-106 Emission Testing and Monitoring at Air Contaminant Sources (establishing emissions testing standards for sources and emissions units) state effective September 10, 2021;

• 400-109 Air Discharge Permit Applications (establishing permit processes for new sources in the local jurisdiction) state effective September 10, 2021;

• 400-110 Application Review Process for Stationary Sources (New Source Review) (establishing agency review standards for air permit applications) state effective September 10, 2021;

• 400-111 Requirements for New Sources in a Maintenance Plan Area (establishing specific permit requirements within a former nonattainment area) state effective September 10, 2021;

• 400-112 Requirements for New Sources in Nonattainment Areas (establishing permit requirements for current nonattainment areas) state effective September 10, 2021;

• 400-113 Requirements for New Sources in Attainment or Nonclassifiable Areas (establishing permit requirements in areas that have not been designated as nonattainment for criteria pollutants) state effective September 10, 2021;

• 400-114 Requirements for Replacement or Substantial Alteration of Emission Control Technology at an Existing Stationary Source (establishing permit requirements for modification of emissions controls at existing facilities) state effective September 10, 2021;

• 400-136 Maintenance of Emission Reduction Credits in Bank (supporting an emissions reduction trading program) state effective September 10, 2021;

• 400-151 Retrofit Requirements for Visibility Protection (establishing requirements to minimize regional haze) state effective September 10, 2021;

• 400-171 Public Involvement (establishing public notice and other requirements for agency actions) state effective September 10, 2021;

• 400-260 Conflict of Interest (requires SWCAA board members to comply with Clean Air Act section 128) state effective September 10, 2021;

• 400-810 Major Stationary Source and Major Modification Definitions (establishing specific definitions for permitting requirements at major sources located in a nonattainment area) state effective September 10, 2021;

• 400-850 Actual Emissions—Plantwide Applicability Limitation (PAL) (adopting the Federal Emission Offset Ruling) state effective March 21, 2020;

• Appendix A SWCAA Method 9 Visual Opacity Determination Method (establishing test methods for opacity compliance) state effective March 21, 2020.

In addition to the regulations approved and incorporated by reference above, the EPA reviews and approves state and local clean air agency submissions to ensure they provide adequate enforcement authority and other general authority to implement and enforce the SIP. However, regulations describing such agency enforcement and other general authority are generally not incorporated by reference so as to avoid potential conflict with the EPA's independent authorities. We are therefore approving the submitted revisions, effective September 10, 2021, to sections 400-230, 400-240, 400-270, and 400-280 in 40 CFR 52.2470(e), EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures.

In this document, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are finalizing the incorporation by reference of the Southwest Clean Air Agency regulatory provisions described in section II of this preamble and set forth in the amendments to 40 CFR part 52 in this document. The EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 10 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the Clean Air Act as of the effective date of the final rule of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation. 2

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

• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 14094 (88 FR 21879, April 11, 2023);

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

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

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

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

• Is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it approves a state program;

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

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

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. The 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.” The 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.”

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

In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and it 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).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 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).

For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

Submit your written comments, identified by Docket ID No. EPA-HQ-OAR-2021-0668, at https://www.regulations.gov (our preferred method), or by the other methods identified in the ADDRESSES section. Once submitted, comments cannot be edited or removed from the docket. The EPA may publish any comment received to its public docket. Do not submit to the EPA's docket at https://www.regulations.gov any information you consider to be Confidential Business Information (CBI), Proprietary Business Information (PBI), or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission ( i.e., on the web, cloud, or other file sharing system). Please visit https://www.epa.gov/dockets/commenting-epa-dockets for additional submission methods; the full EPA public comment policy; information about CBI, PBI, or multimedia submissions; and general guidance on making effective comments.

This action revises on an interim basis the Good Neighbor Plan, which applies to electric generating units (EGUs) and non-EGU industrial sources. This action also revises other allowance trading program regulations that apply to EGUs but not to non-EGU industrial sources. The affected emissions sources are generally in the following industry groups:

As signed in March 2023, the Good Neighbor Plan applies to emissions sources in Alabama, Arkansas, California, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nevada, New Jersey, New York, Ohio, Oklahoma, Pennsylvania, Texas, Utah, Virginia, West Virginia, and Wisconsin. The Good Neighbor Plan's requirements for emissions sources in Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas were stayed in a previous action. This action stays the Good Neighbor Plan's requirements for emissions sources in Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia.

The information provided in this section on potentially affected entities is not intended to be exhaustive. If you have questions regarding the applicability of this action to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section.

Statutory authority to issue the amendments finalized in this action is provided by the same Clean Air Act (CAA) provisions that provided authority to issue the regulations being amended: CAA section 110(a) and (c), 42 U.S.C. 7410(a) and (c) (SIP and FIP requirements, including requirements for mitigation of interstate air pollution), and CAA section 301, 42 U.S.C. 7601 (general rulemaking authority). Statutory authority for the rulemaking procedures followed in this action is provided by Administrative Procedure Act (APA) section 553, 5 U.S.C. 553.

In a previous action (referred to here as the First Interim Final Rule), 1 the EPA stayed on an interim basis, for EGUs and non-EGU industrial sources in Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas, the effectiveness of the FIP requirements established to address the obligations of these and other States to mitigate interstate air pollution with respect to the 2015 ozone NAAQS (referred to here as the Good Neighbor Plan). 2 To ensure the continued implementation of previously established requirements to mitigate interstate air pollution with respect to other ozone NAAQS, the First Interim Final Rule also required EGUs in these States to participate in the Cross-State Air Pollution Rule (CSAPR) NO X Ozone Season “Group 2” Trading Program while the Good Neighbor Plan's requirements for these EGUs to participate in the CSAPR NO X Ozone Season “Group 3” Trading Program are stayed. The stay and the associated revisions to other regulations were issued in response to judicial orders that partially stay, pending judicial review, a separate EPA action which disapproved certain SIP revisions submitted by these and other States (the SIP Disapproval action). 3

Since the EPA submitted the First Interim Final Rule for publication in the Federal Register , courts have issued orders granting partial stays of the SIP Disapproval action as to several additional States. The U.S. Courts of Appeals for the Eighth, Ninth, and Eleventh Circuits granted judicial stays pending review on the merits as to Minnesota, 4 Nevada, 5 and Alabama, 6 respectively, and the U.S. Court of Appeals for the Tenth Circuit did the same as to Oklahoma and Utah. 7 In addition, the U.S. Court of Appeals for the Fourth Circuit issued an administrative stay as to West Virginia pending oral argument on West Virginia's motion to stay and the EPA's motion to transfer venue or dismiss. 8 Finally, the U.S. Court of Appeals for the Sixth Circuit granted a judicial stay pending review on the merits as to Kentucky which supersedes the administrative stay previously in effect as to that State. 9

To respond to the stay orders as to the additional States, in this action the EPA is modifying and supplementing the regulatory revisions adopted in the First Interim Final Rule. The effect of this action is that emissions sources in Alabama, Minnesota, Nevada, Oklahoma, Utah, 10 and West Virginia (and Indian country within the borders of the States) will not be subject to the Good Neighbor Plan's requirements promulgated to address the States' good neighbor obligations with respect to the 2015 ozone NAAQS while the stay orders covering the States remain in place ( i.e., at least for the 2023 ozone season and possibly longer). After the courts have reached final determinations on the merits in these proceedings (or possibly in the case of West Virginia, a final determination to deny the stay motion or to grant the motion to transfer venue or dismiss), the EPA will take further action consistent with the final determinations. At the time of this rulemaking, the EPA cannot predict how the Agency's future action may affect the amendments being finalized in this action. However, for these States, as well as the States covered by the First Interim Final Rule, the EPA generally anticipates that any future action bringing the Good Neighbor Plan's requirements into effect after a stay would phase in the requirements so as to provide lead times to implement the Good Neighbor Plan's identified emissions control strategies comparable to the lead times that the Good Neighbor Plan would have provided in the absence of the stay, thereby giving parties sufficient time to prepare for implementation.

The remainder of this section describes the specific regulatory revisions being adopted in this action. 11 For further background and discussion of the basis for the regulatory revisions, see the First Interim Final Rule at 88 FR 49296-97.

To implement the stay orders with respect to non-EGU industrial sources in Nevada, Oklahoma, Utah, and West Virginia (and Indian country within the borders of the States), the EPA is adding these States to the list of States covered by the stay provision for non-EGU industrial sources adopted in the First Interim Final Rule at 40 CFR 52.40(c)(4) and is adding parallel text in the State-specific subpart of 40 CFR part 52 for each of the States. 12 No equivalent stay provisions are necessary for Alabama or Minnesota because the Good Neighbor Plan's requirements for non-EGU industrial sources do not apply to emissions sources in Alabama or Minnesota.

To implement the stay orders with respect to EGUs in Alabama, Oklahoma, and West Virginia (and Indian country within the borders of the States), the EPA is adding these States to the lists of States covered by the stay provisions for EGUs adopted in the First Interim Final Rule at 40 CFR 52.38(b)(2)(iii)(D)( 1 ) (West Virginia) and 40 CFR 52.38(b)(2)(iii)(D)( 2 ) (Alabama and Oklahoma) and is adding parallel text in the state-specific subparts of 40 CFR part 52 for each of the States. 13 In combination with other provisions adopted in the First Interim Final Rule at 40 CFR 52.38(b)(2)(ii)(D), the revisions will require the EGUs in each of these States to participate in the Group 2 trading program instead of the Group 3 trading program while a stay for the State remains in effect. 14 The EPA is also revising the Group 2 trading program regulations at 40 CFR 97.810 and 97.821 and the Group 3 trading program regulations at 40 CFR 97.1026 to continue to provide the same amounts for State emissions budgets, variability limits, unit-level allowance allocations, and banked allowance holdings that would have applied for these States in the absence of the Good Neighbor Plan.

To implement the stay orders with respect to EGUs in Minnesota, Nevada, and Utah (and Indian country within the borders of the States), the EPA is adding a new stay provision for EGUs in these States at 40 CFR 52.38(b)(2)(iii)(D)( 3 ) and is adding parallel text in the state-specific subparts of 40 CFR part 52 for each of the States. 15 Unlike the stay provisions adopted in the First Interim Final Rule for EGUs in Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas and extended in this action to EGUs in Alabama, Oklahoma, and West Virginia, the stay provision for EGUs in Minnesota, Nevada, and Utah is not accompanied by requirements under 40 CFR 52.38(b)(2)(ii)(D) to participate in the Group 2 trading program while the stay for a State is in effect, because EGUs in Minnesota, Nevada, and Utah are not subject to previously established requirements to mitigate interstate air pollution with respect to other ozone NAAQS.

Finally, the EPA is making stay-related revisions to two cross-references in the Group 2 and Group 3 trading program regulations. First, a revision at 40 CFR 97.826(e)(1) clarifies that, like EGUs in other States covered by stay orders, EGUs in Minnesota, Nevada, and Utah will be excluded from the one-time procedures converting Group 2 allowances into an initial bank of Group 3 allowances. Second, a revision at 40 CFR 97.1026(d)(2)(ii) clarifies that emissions budgets for States covered by stay orders will be excluded from calculations of the allowance bank target amounts used in the Group 3 trading program's annual bank recalibration procedure.

As noted in section I.C of this document, the EPA's authority for the rulemaking procedures followed in this action is provided by APA section 553. 16 In general, an agency issuing a rule under the procedures in APA section 553 must provide prior notice and an opportunity for public comment, but APA section 553(b)(B) includes an exemption from notice-and-comment requirements “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” This action is being issued as an interim final rule without prior notice or opportunity for public comment because the EPA finds that the APA “good cause” exemption from notice-and-comment requirements applies here.

The basis for the finding of good cause is that following notice-and-comment procedures is unnecessary for this action. The EPA has no discretion as to whether to stay the effectiveness of the Good Neighbor Plan's requirements for emissions sources in the States covered by the additional stay orders. While some superficial discretion exists concerning the specific design of the regulatory revisions that provide an alternate mechanism for EGUs in States covered by the stay orders to continue to address the States' good neighbor obligations with respect to other ozone NAAQS, no discretion exists as to the function of that design, which is to maintain the status quo by implementing requirements that are substantively identical to the pre-existing requirements that would have continued to apply in the absence of the Good Neighbor Plan. The EPA's design for the regulatory revisions in this action accomplishes this function. Taking comment so as to allow the public to advocate for not staying the Good Neighbor Plan's requirements, not adopting regulatory revisions needed to implement requirements that are substantively identical to the requirements that would have applied in the absence of the Good Neighbor Plan, or adopting superficially different regulatory revisions to accomplish the same function would serve no purpose and is therefore unnecessary.

The regulatory revisions made in this action will take effect immediately upon publication of the action in the Federal Register . In general, an agency issuing a rule under APA section 553 must provide for a period of at least 30 days between the rule's dates of publication and effectiveness, but APA section 553(d) includes several exceptions. Under APA section 553(d)(1), an exception applies to a rule that “grants or recognizes an exemption or relieves a restriction.” Because the portions of this action that stay the effectiveness of the Good Neighbor Plan's requirements for emissions sources in certain States grant an exemption (on an interim basis while the stay remains in place), the normal 30-day minimum period between this action's dates of publication and effectiveness is not required. The EPA is making these portions of the action effective as of the action's publication date to comply with the stay orders in a timely manner.

Under APA section 553(d)(3), the normal 30-day minimum period between a rule's dates of publication and effectiveness does not apply “as otherwise provided by the agency for good cause found and published with the rule.” With respect to the portions of this action that provide an alternate mechanism for EGUs in the States covered by the stay orders to continue to address the States' good neighbor obligations under rules issued before the Good Neighbor Plan, the EPA finds good cause to make the regulatory revisions effective as of the action's publication date for the following reasons. First, these regulatory revisions benefit the public by avoiding the possibility that interruption of the previously established requirements would cause air quality degradation. Second, these regulatory revisions benefit the regulated community by clarifying the regulatory requirements that apply in light of the stay orders. Finally, making these regulatory revisions effective less than 30 days after this action's publication date does not violate the purpose of the normal requirement for a 30-day minimum period, which is “to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”  17 The regulatory revisions in this action facilitating continued implementation of previously established requirements impose no requirements on any emissions source that differ substantively from the requirements that would have applied to that source in the absence of the Good Neighbor Plan. Thus, no affected party needs time to adjust its behavior in preparation for these regulatory revisions.

As explained in section III of this document, the EPA finds good cause to take this interim final action without prior notice or opportunity for public comment. However, the EPA is providing an opportunity for comment on the content of the amendments. The EPA requests comment on this rule. The EPA is not reopening for comment any provisions of the Good Neighbor Plan, 40 CFR part 52, or 40 CFR part 97 other than the specific provisions that are expressly added or amended in this rule.

Additional information about these statutes and Executive Orders can be found at www.epa.gov/laws-regulations/laws-and-executive-orders.

This action is not a significant regulatory action as defined in Executive Order 12866, as amended by Executive Order 14094, and was therefore not subject to a requirement for Executive Order 12866 review.

This action does not impose any new information collection burden under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq. The Office of Management and Budget (OMB) has previously approved the information collection activities that will apply to the EGUs affected by this action and has assigned OMB control numbers 2060-0258 and 2060-0667. Additional information collection activities that will apply to EGUs and non-EGU industrial sources under the Good Neighbor Plan have been submitted to OMB for approval in conjunction with that rulemaking. This action makes no changes to the information collection activities under the previously approved information collection requests (ICRs) or the additional information collection activities for which approval has been requested in the Good Neighbor Plan's ICRs.

This action is not subject to the Regulatory Flexibility Act (RFA), 5 U.S.C. 601-612. The RFA applies only to rules subject to notice-and-comment rulemaking requirements under APA section 553 or any other statute. This rule is not subject to notice-and-comment requirements because the Agency has invoked the APA “good cause” exemption under 5 U.S.C. 553(b).

This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any State, local, or Tribal governments or the private sector. This action simply stays the effectiveness of certain regulatory requirements for certain emissions sources on an interim basis in response to procedural court orders while ensuring that previously applicable regulatory requirements remain in effect.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

This action does not have Tribal implications as specified in Executive Order 13175. This action simply stays the effectiveness of certain regulatory requirements for certain emissions sources on an interim basis in response to procedural court orders while ensuring that previously applicable regulatory requirements remain in effect. Thus, Executive Order 13175 does not apply to this action.

The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action responds to court orders issued by several U.S. Courts of Appeals and the EPA lacks discretion to deviate from those orders. The EPA's assessment of health and safety risks for the action establishing the requirements that are being stayed is discussed in Chapter 5 of the regulatory impact analysis for the Good Neighbor Plan. 18

This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

This rulemaking does not involve technical standards.

Executive Order 12898 (59 FR 7629, February 16, 1994) directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations (people of color and/or Indigenous peoples) and low-income populations. This action responds to court orders issued by several U.S. Courts of Appeals and the EPA lacks discretion to deviate from those orders. The EPA's assessment of environmental justice considerations for the action establishing the requirements that are being stayed is discussed in section VII of the Good Neighbor Plan preamble. 19

This action is subject to the Congressional Review Act (CRA), 5 U.S.C. 801-808, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. The CRA allows the issuing agency to make a rule effective sooner than otherwise provided by the CRA if the agency makes a good cause finding that notice and comment rulemaking procedures are impracticable, unnecessary, or contrary to the public interest (5 U.S.C. 808(2)). The EPA has made a good cause finding for this rule as discussed in section III of this document, including the basis for that finding.

CAA section 307(b)(1) governs judicial review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit): (i) when the agency action consists of “nationally applicable regulations promulgated, or final actions taken, by the Administrator,” or (ii) when such action is locally or regionally applicable, but “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” For locally or regionally applicable final actions, the CAA reserves to the EPA complete discretion to decide whether to invoke the exception in (ii). 20

This rulemaking is “nationally applicable” within the meaning of CAA section 307(b)(1). In this action, in response to court orders, the EPA is amending on an interim basis the Good Neighbor Plan, 21 which the EPA developed by applying a uniform legal interpretation and common, nationwide analytical methods to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of pollution ( i.e., “good neighbor” requirements) for the 2015 ozone NAAQS. Based on that nationwide analysis, the Good Neighbor Plan established FIP requirements for emissions sources in 23 States located across eight EPA Regions and ten Federal judicial circuits. Given that this action amends an action implementing the good neighbor requirements of CAA section 110(a)(2)(D)(i)(I) in a large number of States located across the country and given the interdependent nature of interstate pollution transport and the common core of knowledge and analysis involved in promulgating the FIP requirements, this is a “nationally applicable” action within the meaning of CAA section 307(b)(1).

In the alternative, to the extent a court finds this action to be locally or regionally applicable, the Administrator is exercising the complete discretion afforded to him under the CAA to make and publish a finding that this action is based on a determination of “nationwide scope or effect” within the meaning of CAA section 307(b)(1). In this action, in response to court orders, the EPA is amending on an interim basis the Good Neighbor Plan, an action in which the EPA interpreted and applied section 110(a)(2)(D)(i)(I) of the CAA for the 2015 ozone NAAQS based on a common core of nationwide policy judgments and technical analysis concerning the interstate transport of pollutants throughout the continental United States. Based on that nationwide analysis, the Good Neighbor Plan established FIP requirements for emissions sources in 23 States located across eight EPA Regions and ten Federal judicial circuits. This action adjusts temporarily the scope and operation of the Good Neighbor Plan for six States in response to court orders, and also implements necessary measures to ensure the status quo is maintained with respect to existing obligations under previously issued regulations (that were themselves nationally applicable or based on a determination of nationwide scope or effect found and published by the EPA  22 ).

The Administrator finds that, like the Good Neighbor Plan which it amends, this action is a matter on which national uniformity in judicial resolution of any petitions for review is desirable, to take advantage of the D.C. Circuit's administrative law expertise, and to facilitate the orderly development of the basic law under the Act. The Administrator also finds that consolidated review of this action in the D.C. Circuit will avoid piecemeal litigation in the regional circuits, further judicial economy, and eliminate the risk of inconsistent results for different States, and that a nationally consistent approach to the CAA's mandate concerning interstate transport of ozone pollution constitutes the best use of Agency resources.

For these reasons, this final action is nationally applicable or, alternatively, the Administrator is exercising the complete discretion afforded to him by the CAA and finds that this final action is based on a determination of nationwide scope or effect for purposes of CAA section 307(b)(1) and is publishing that finding in the Federal Register . Under CAA section 307(b)(1), petitions for judicial review of this action must be filed in the D.C. Circuit by November 28, 2023.

For the reasons stated in the preamble, parts 52 and 97 of title 40 of the Code of Federal Regulations are amended as follows:

This is a summary of the Commission's Report and Order, in ET Docket No. 21-363; FCC 23-14, adopted on March 10, 2023, and released on March 14, 2023. The full text of this document is available for public inspection and can be downloaded at: https://docs.fcc.gov/public/attachments/FCC-23-14A1.pdf. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to FCC504@fcc.gov or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

Final Regulatory Flexibility Analyses. The Regulatory Flexibility Act of 1980 (RFA) requires that an agency prepare a regulatory flexibility analysis for notice and comment rulemakings, unless the agency certifies that “the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.” Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes and/or policy contained in the Report and Order on small entities. As required by the RFA, an Initial Regulatory Flexibility Analysis (IRFA) was incorporated in the Notice of Proposed Rulemaking (NPRM), 87 FR 151189 (March 17, 2022). The Commission sought written public comment on the proposals in the NPRM, including comments on the IRFA. No comments were filed addressing the IRFA. Accordingly, the Commission has prepared a Final Regulatory Flexibility Analysis (FRFA) concerning the possible impact of the rule changes contained in the document on small entities. The present FRFA conforms to the RFA and can be viewed under Appendix B of the item.

Paperwork Reduction Act. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or modified information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). The Commission has described impacts that might affect small businesses, which includes most businesses with fewer than 25 employees, in the Final Regulatory Flexibility Analysis (FRFA), and can be viewed under Appendix B of the item at: https://www.fcc.gov/document/fcc-updates-equipment-authorization-standards.

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

Section 302 of the Communications Act of 1934, as amended (the Act), authorizes the Commission to make reasonable regulations governing the interference potential of devices that emit RF energy and can cause harmful interference to radio communications. The Commission generally implements this authority by establishing technical rules for RF devices. One of the primary ways the Commission ensures compliance with the technical rules is through the equipment authorization program for RF devices, procedures for which are codified in part 2 of its rules. The Office of Engineering and Technology (OET) administers the day-to-day operation of the equipment authorization program.

Part 2 of the Commission's rules provides two different approval procedures for RF devices subject to equipment authorization—certification and Supplier's Declaration of Conformity (SDoC). While both processes involve laboratory testing to demonstrate compliance with Commission requirements, testing associated with certification must be performed by an FCC-recognized accredited testing laboratory. Additionally, part 68 of the Commission's rules sets forth requirements to ensure that terminal equipment can be connected to the telephone network without harming its functioning and for the compatibility of hearing aids and land-line telephones so as to ensure that, to the fullest extent made possible by technology and medical science, people with hearing loss have equal access to communications services.

Equipment testing is central to the equipment authorization program in ensuring that RF devices comply with Commission rules. Acknowledging the best practices widely followed by industry, the Commission's equipment authorization rules often incorporate by reference various standards established by standards-setting bodies, including, but not limited to, the American National Standards Institute (ANSI), Accredited Standards Committee C63 (ANSC C63); the International Organization for Standardization; and the International Electrotechnical Commission. Use of these standards is intended to ensure the integrity of the measurement data associated with an equipment authorization. Among other things, such standards provide procedures for conducting measurements at testing facilities and specify the conditions expected in the testing environment.

Standards bodies periodically update existing standards or adopt new standards to reflect best practices in response to advancements in technologies and measurement capabilities. The Commission initiated this proceeding in response to such developments. Specifically, in the NPRM, the Commission addressed two petitions filed by ANSC C63: one seeking to incorporate by reference into its rules a new standard pertaining to test site validation; and one proposing to incorporate by reference a newer version of a currently referenced standard that addresses a variety of compliance testing requirements. The Commission also proposed to clarify the status of two standards on which OET previously sought comment.

Incorporation by reference (IBR) is the process that federal agencies use when referring to materials published elsewhere to give those materials the same force and effect of law in the Code of Federal Regulations (CFR) as if the materials' text had actually been published in the Federal Register . By using IBR, the Commission is able to give effect to technical instructions, testing methodologies, and other process documents that are developed and owned by standards development organizations. Referencing these documents in the Commission's rules in accordance with requirements established by the Office of the Federal Register substantially reduces the volume of material that the Commission otherwise would have to publish in the Federal Register and the CFR. Once the Commission has completed any necessary notice-and-comment rulemaking proceedings and determined based on the record that any standards the Commission adopts is sound and appropriate, the Commission need only update the references to the standards in the Commission's rules.

As an initial matter, the Commission addresses a comment regarding the IBR process in general as opposed to the merits of the particular standards under consideration. Specifically, Public Resource Org. Inc., iFixit, Inc., and Make Community, LLC (Joint Commenters) express concerns related to “the public availability and accessibility of documents that are proposed to be incorporated by reference into law.” Joint Commenters claim that the materials subject to IBR should be broadly available to members of the public on a free and unrestricted basis ( e.g., in a format that can be easily copied without cost), that the standards documents were not made available in this manner during the rulemaking process, and that the Commission's failure to do so was “illegal and arbitrary.” Joint Commenters are concerned that the accessibility of the relevant materials is often limited by what it characterizes as onerous conditions put in place by the associated private entities. It asks that the Commission “restart” the rulemaking process with “everyone having free access and the right to copy” the standards under consideration.

The Commission recognizes that the benefit of using the IBR process to incorporate standards that are developed and hosted by professional standards development organizations into the rules—that the Commission can “draw on the expertise and resources of private sector standard developers to serve the public interest”—is typically accompanied with limitations on how those standards are accessed due to the standard developers' intellectual property interests in those materials. For example, the National Archives and Records Administration, Office of the Federal Register (NARA OFR), in its final rule addressing incorporation by reference, concluded that a requirement to make available, for free, all materials incorporated by reference into the CFR would “compromise the ability of regulators to rely on voluntary consensus standards, possibly requiring them to create their own standards, which is contrary to the [National Technology Transfer and Advancement Act of 1995] and the OMB Circular A-119.” The Commission therefore disagrees with the sweeping nature of Joint Commenters' claims. The requirements for availability as suggested by Joint Commenters would be inconsistent with established government-wide guidance and practice for IBR and would potentially burden test laboratories, manufacturers, and consumers if the Commission were unable to recognize state-of-the-art technical standards adopted and frequently updated through the consensus-driven standards development process.

The Commission further concludes that the information the Commission provided about the standards it proposed to adopt, including the means by which individuals could inspect copies of those standards, was sufficient to satisfy the requirements for incorporation by reference as set forth in the Administrative Procedure Act (APA) and implemented by NARA OFR in that the Commission made the information reasonably available to the class of persons affected thereby. In the summary of the NPRM published in the Federal Register , the Commission provided sources through which interested persons could obtain copies of the relevant standards and stated that a copy of each standard was available for inspection at the FCC's main office. Each of the relevant standards has remained available throughout the rulemaking proceeding in the manner described in the NPRM. In addition, Commission staff further acted consistent with guidance from the Administrative Conference of the United States (ACUS) to “take steps to promote the availability of incorporated materials within the framework of existing law” by communicating with the relevant standards bodies to encourage availability of materials in an online read-only format and, prior to publication of the NPRM in the Federal Register , confirmed that each standard was available for purchase by any interested party.

In addressing the proposed rulemaking, Joint Commenters specifically address the terms by which interested parties may purchase copies of the standards. As an initial matter, the Commission notes there is nothing unusual about a direct purchase option being available as part of the IBR process. However, the Commission disagrees with the Joint Commenters' assertion that “[i]n order to comment on [the NPRM], [the Joint Commenters] would have to each expend $589” by purchasing copies of the standards. Direct purchase was only one of the means of obtaining information about the standards under consideration. In this case, at least two of these standards were available online in a read-only format without cost, abstracts and information related to the standards are widely available without restriction, and the Commission, per its longstanding practice, ensured that the materials were available for in-person inspection. The Commission is not aware of any party that actually desired to inspect the materials but was unable to do so because of difficulties in traveling to the specified inspection site. Moreover, none of the comments filed in the proceeding that were related to the technical merits of the proposed standards incorporations identified any impediments to finding and accessing the standards under consideration. Based on these facts, and the established policy, the Commission concludes that the materials proposed to be incorporated by reference have been made reasonably available to the class of person affected, consistent with 5 U.S.C. 552(a) and the requirements and procedures under 1 CFR part 51. The Commission therefore disagrees with Joint Commenters' assertion that parties could not “see” or “have access to the text of the standards” such that they could not meaningfully participate in the rulemaking process.

The Commission is also confident that interested parties will have sufficient opportunities to access the standards on an ongoing basis once the Commission has incorporated them into its rules. The FCC will make a copy of the standards available for public inspection upon request, and NARA OFR makes legal record copies of all standards that have been incorporated by reference. In addition to continued opportunities to purchase copies through the standards development organizations and other online sources, the Commission anticipates that all of the standards, once adopted, will be made available to the public through the on-line reading rooms that the standards bodies maintain. For example, ANSI maintains an “Incorporated by Reference Portal” at www.ibr.ansi.org that it describes as “a one-stop mechanism for access to standards that have been incorporated by reference in the U.S. Code of Federal Regulations (CFR),” and which provides access to these documents at no cost in “read only” format for online reading. Collectively, these resources are more than sufficient to permit interested parties to accomplish the objectives identified by the Joint Commenters, including use of the standards by people who fix and evaluate equipment and make new things for understanding how the devices work and identifying whether they are working properly. While the Commission recognizes that each of these access mechanisms may have individual limitations ( e.g., cost, travel for in-person inspection, limitations on how the materials may be downloaded, shared, or otherwise used) that would not exist if the standards were made available “on a public website without charge, and without limitation of use” as the Joint Commenters request, none of these limitations would prevent interested parties from accessing and using the standards the Commission is adopting. For these reasons, the Commission explicitly rejects the Joint Commenters' assertion that the Commission's actions will be inconsistent with established law and policy balancing the public interest in promoting the development of and reliance on voluntary standards against the need for public access to any such standards incorporated by reference by federal agencies.

The OFR has regulations concerning incorporation by reference. These regulations require that, for a final rule, agencies must discuss in the preamble to the final rule the way in which materials that the agency incorporates by reference are reasonably available to interested parties, and how interested parties can obtain the materials. Additionally, the preamble to the final rule must summarize the material.

Sections 2.910 and 2.948 of the rules adopted in the Report and Order incorporate by reference the following standard: “American National Standard Validation Methods for Radiated Emission Test Sites; 1 GHz to 18 GHz” (ANSI C63.25.1-2018). The ANSI C63.25.1-2018 standard consolidates guidance from existing standards to provide test site validation procedures from 1 GHz to 18 GHz. Incorporation of this standard will provide an additional option for test site validation of radiated emission measurements from 1 GHz to 18 GHz, while continuing to provide for the validation option currently specified in the Commission's rules. Interested persons may purchase a copy of ANSI C63.25.1 from the sources provided in 47 CFR 2.910. A copy of the standard may also be inspected at the FCC's main office.

Sections 15.31 and 15.38 of the rules adopted in the Report and Order incorporate by reference the following standard: “American National Standard of Procedures for Compliance Testing of Unlicensed Wireless Devices” (ANSI C63.10-2020). The ANSI C63.10-2020 standard is an update to a standard previously incorporated by reference within the Commission's rules and it addresses “the procedures for testing the compliance of a wide variety of unlicensed wireless transmitters.” Interested persons may purchase a copy of ANSI C63.10-2020 from the sources provided in 47 CFR 2.910. A copy of the standard may also be inspected at the FCC's main office.

Sections 2.910, 2.948, 2.949, 2.962, and 68.162 of the rules adopted in the Report and Order incorporate by reference the following standard: “General requirements for the competence of testing and calibration laboratories” (ISO/IEC 17025:2017(E)). The ISO/IEC 17025:2017(E) standard is an update to the standard currently incorporated by reference within the Commission's rules that replaces certain prescriptive requirements with performance-based requirements for test laboratory accreditation. The standard contains the requirements related to test laboratory accreditation, including requirements for processes, procedures, documented information, and organizational responsibilities. The laboratory accreditation bodies assess a variety of laboratory aspects, including the technical competence of staff; the validity and appropriateness of test methods; traceability of measurements and calibration to national standards; suitability, calibration, and maintenance of the testing environment; sampling, handling, and transportation of test items; and quality assurance of test and calibration data. Interested persons may purchase a copy of ISO/IEC 17025:2017(E) from the sources provided in 47 CFR 2.910 and 68.162. A copy of the standard may also be inspected at the FCC's main office.

Sections 2.910 and 2.948 of the rules adopted in the Report and Order incorporate by reference the following standard: “American National Standard for Methods of Measurement of Radio-Noise Emissions from Low-Voltage Electrical and Electronic Equipment in the Range of 9 kHz to 40 GHz, Amendment 1: Test Site Validation” (ANSI C63.4a-2017). The ANSI C63.4a-2017 standard introduces modifications to the normalized site attenuation procedures for validating radiated test sites for use in the 30 MHz to 1 GHz frequency range. Interested persons may purchase a copy of ANSI C63.4a-2017 from the sources provided in 47 CFR 2.910. A copy of the standard may also be inspected at the FCC's main office.

In consideration of an ANSC C63 petition for rulemaking, in the NPRM, the Commission proposed to incorporate by reference the standard titled “American National Standard Validation Methods for Radiated Emission Test Sites; 1 GHz to 18 GHz” (ANSI C63.25.1-2018), into the test site validation requirements of § 2.948(d) of the Commission's rules. Under the Commission's current rules, measurement facilities that make radiated emission measurements from 30 MHz to 1 GHz must comply with the site validation requirements in ANSI C63.4-2014 (clause 5.4.4), and, for radiated emission measurements from 1 GHz to 40 GHz, the site validation requirements in ANSI C63.4-2014 (clause 5.5.1 a) 1)) apply. The Commission proposed to incorporate ANSI C63.25.1-2018 in order to provide an additional option for test site validation of radiated emission measurements from 1 GHz to 18 GHz.

As noted in the NPRM, the C63.25.1-2018 standard consolidates guidance from existing standards to provide test site validation procedures from 1 GHz to 18 GHz. For example, the C63.25.1-2018 standard includes a CISPR 16 method known as the site voltage standing wave ratio (SVSWR) approach to validate test sites for frequencies above 1 GHz, which measures responses between antennas while varying their distances. This method is included in the standard currently referenced in the Commission's rules, ANSI C63.4-2014 (clause 5.5.1 a) 1)). Additionally, C63.25.1-2018 introduces the option of using a new effective test validation method called time domain site validation (TDSV), the benefits of which are cited by ANSC C63 in the C63.25.1 Petition. The Commission tentatively concluded that incorporating C63.25.1-2018 in the Commission's rules by reference would have the benefit of providing the availability of TDSV as an additional option, while continuing to allow use of the procedures currently described in § 2.948(d) of the Commission's rules for test site validation of radiated emission measurements from 1 GHz to 18 GHz. While the Commission tentatively concluded that the entire standard should be incorporated by reference, it also asked whether any procedures or techniques included in ANSI C63.25.1-2018 would not be appropriate for demonstrating compliance with the Commission's equipment authorization rules. Finally, because the Commission proposed to incorporate ANSI C63.25.1-2018 as an option to an already existing requirement, it tentatively concluded that there would be no need to designate a transition period.

Several commenters expressed support for adopting ANSI C63.25.1-2018 in full. Information Technology Industry Council, while suggesting that C63.25.1-2018 be applied immediately, also suggests that the Commission continue to accept measurements that reference C63.4-2014 for two years. Cisco Systems Inc. (Cisco) supports adopting the proposed references to ANSI C63.25.1-2018; however, it asks the Commission to make some specific clarifications regarding the application of the standard. Specifically, Cisco encourages the Commission to clarify that site voltage standing wave ratio (SVSWR) and time domain site validation (TDSV) are the only acceptable methods of site verification under ANSI C63.25.1-2018. Additionally, Cisco states that as both the SVSWR and TDSV validation methods require some calibration, ANSI C63.5-2017 does not appear to add any value as a reference. Thus, Cisco suggests that the FCC simply state that all appropriate devices (antennas, positioners, etc.) must be validated in a manner that ensures they satisfy the necessary characteristics defined by each method.

The Commission believes, and the record does not suggest otherwise, that the Commission was correct to tentatively conclude that incorporating ANSI C63.25.1-2018 among the procedures currently described in § 2.948(d) of the Commission's rules would serve the public interest by providing useful options and potential benefits for test site validation of radiated emission measurements from 1 GHz to 18 GHz. As the Commission noted when discussing the C63.25.1 Petition, while the TDSV and SVSWR methods are similar in that both measure responses between antennas, TDSV does not require varying the distance between antennas, providing a reduction in the sensitivity of test results caused by small test setup changes at higher frequencies where the associated wavelengths are relatively short. This feature and other aspects of the TDSV method introduce process efficiency improvements that could result in less time to perform the validation. Accordingly, the Commission is incorporating the complete ANSI C63.25.1-2018 standard into § 2.948(d) of the rules. The Commission clarifies that incorporating ANSI C63.25.1-2018 into § 2.948(d), as amended herein, provides two options of test site validation procedures for radiated emission measurements from 1 GHz to 18 GHz: SVWSR and TDSV. The Commission is not adopting Cisco's suggestion that the Commission remove references to ANSI C63.5-2017 from the version of the C63.25.1-2018 standard incorporated into the Commission's rules. References to the use of ANSI C63.5-2017 for the calibration of measurement and reference antennas are prevalent among the ANSI standards already incorporated by reference in the Commission's rules. Finally, the Commission sees no need to adopt a transition period for the use of ANSI C63.25.1-2018 as it includes the test site validation option provided by the previous ANSI C63.4-2014.

In the NPRM, in response to a petition filed by ANSC C63, the Commission proposed to incorporate by reference ANSI C63.10-2020, “American National Standard of Procedures for Compliance Testing of Unlicensed Wireless Devices,” into the Commission's rules to replace existing references to ANSI C63.10-2013. The ANSI C63.10-2020 standard was approved by ANSI on September 10, 2020, and updates the measurement procedures set forth in ANSI C63.10-2013, which is currently referenced in §§ 2.910, 2.950, 15.31, and 15.38 of the Commission's rules. The standard addresses “the procedures for testing the compliance of a wide variety of unlicensed wireless transmitters . . . including, but not limited to, remote control and security unlicensed wireless devices, frequency hopping and direct sequence spread spectrum devices, anti-pilferage devices, cordless telephones, medical unlicensed wireless devices, Unlicensed National Information Infrastructure (U-NII) devices, intrusion detectors, unlicensed wireless devices operating on frequencies below 30 MHz, automatic vehicle identification systems, and other unlicensed wireless devices authorized by a radio regulatory authority.”

The Commission tentatively concluded that it would be appropriate to simply replace the existing standard references with references to the new standard, subject to a two-year or other appropriate transition period. The Commission asked whether any procedures or techniques included in the standard would not be appropriate for use in the context of demonstrating compliance with the Commission's equipment authorization rules. Similarly, the Commission also asked which, if any, of the Commission rules that do not currently reference ANSI C63.10-2013 should reference ANSI C63.10-2020. Finally, the Commission asked whether a transition period during which either version of ANSI C63.10 could be used would be appropriate.

Several commentors support adopting the updated standard. National Technical Systems states that “it is assumed that if C63.4a is not adopted then adoption of ANSI C63.10-2020 would exclude the normative reference to ANSI C63.4a.” ITI supports the adoption of the standard in full, while suggesting that C63.10-2020 be applied immediately while accepting reference to C63.10-2013 for up to two years in order to “allow test labs and manufacturers adequate time to procure and complete necessary actions.” It also notes that products that were assessed and released in accordance with the previous standard should not be required to be assessed to C63.10-2020 unless the product changes or needs an updated certification. Cisco, A2LA, and ANSI C63 support adopting the new standard in full and offer no further comment.

The new edition of ANSI C63.10-2020 not only provides updates to the methods in the standard but also adds new methods. The Commission finds that it is necessary at this time to update §§ 2.910, 2.950, 15.31(a)(3), and 15.38(g)(3) to incorporate by reference ANSI C63.10-2020. This update to the Commission's rules will address advancements in compliance testing methods that have accompanied the growth of wireless devices and ensure the continued integrity of the relevant measurement data. With regard to the normative reference to ANSI C63.4-2017, the Commission does not find it necessary to exclude it. The Commission notes that C63.10-2020 refers to ANSI C63.4-2017 for 0.3 GHz to 1 GHz (NSA) test site validation procedures in lieu of the NSA validation methods contained in ANSI C63.4-2014. The C63.10-2020 standard includes ANSI C63.4-2017 in its list of normative references, in Clause 5.2 when specifying an appropriate radiated test site for performing the compliance measurements, and in Clause 6.5.2 when specifying permissible distances between antennas when performing radiated tests. The C63.10-2020 standard is a North American standard rather than a U.S. standard and thus accommodates both Canadian and U.S. regulations. Canada has already recognized ANSI C63.4-2017 in its regulations but, prior to this proceeding, the U.S. has not. The reference to ANSI C63.4-2017 in the standard contains a footnote reference to 47 CFR 15.31 in recognition that ANSI C63.4-2017 may not be adopted by the U.S. regulators. To accommodate the transition to this new standard, and as proposed in the NPRM and supported by ITI, the Commission will permit the use of either ANSI C63.10-2013 or ANSI C63.10-2020 for a period of two years following the effective date of the rules adopted in this Order. The record supports this time period as sufficiently reasonable for the affected entities to procure the necessary equipment and implement the required changes.

In addition to addressing new specific incorporation by reference proposals, the Commission in the NPRM made tentative proposals and sought to refresh the record obtained in response to the Standards Update Notice that was previously issued by OET. Further, the Commission made proposals intended to “clean up” the rules by addressing several obsolete references and asked whether any additional similar rules changes would be appropriate.

Measurement data intended to demonstrate compliance with certain Commission requirements must be obtained from an accredited testing laboratory. Currently, §§ 2.910, 2.948, 2.949, 2.962, and 68.162 incorporate by reference ISO/IEC 17025:2005(E) for the requirements related to test laboratory accreditation. In November 2017, ISO/IEC published ISO/IEC 17025:2017(E)—a new version of the test laboratory accreditation standard currently referenced in the Commission's rules. In the Standards Update Notice, OET proposed to update the Commission's rules by replacing references to ISO/IEC 17025:2005(E) with references to ISO/IEC 17025:2017(E).

In the NPRM, the Commission proposed to incorporate by reference into its rules ISO/IEC 17025:2017(E) in its entirety, including Clause 8.1—Option A and Option B. Options A and B were specifically addressed in light of comments made in response to the Standards Update Notice. The Commission tentatively concluded that the flexibility of having both options merits that both options should be included when incorporating ISO/IEC 17025:2017(E) into the Commission's rules. Additionally, in the NPRM, the Commission discussed issues related to the passage of time since the release of the Standards Update Notice, and, noting the two year re-accreditation process, it tentatively proposed a two-year transition to the new standard instead of the originally proposed three-year period.

A2LA supports the updated standard and claims that it “provides a greater emphasis on impartiality, transparency, and the complaint processes;” takes a process approach and is outcome-focused;” “is less prescriptive and less procedure-burdened;” and “provides laboratories with greater flexibility as the standard is now underpinned with a risk-based approach to the processes.” A2LA began transitioning its organization to the new standard in November 2017 in order to meet the International Laboratory Accreditation Cooperation mandate requiring completion of the transition by June 2021. ITI, ANSC C63, and Cisco all support adopting the standard and using Options A and B for lab accreditation under ISO/IEC 17025:2017(E). Additionally, Cisco welcomes any transition period up to, and including, the two-year period proposed by the Commission in the NPRM.

No party opposed the Commission's proposal, and for the reasons stated in the NPRM and as supported by the record, the Commission continues to believe that adoption of the updated standard is in the public interest, and will provide greater transparency, procedural efficiency, and flexibility. The Commission therefore incorporates by reference ISO/IEC 17025:2017(E) into §§ 2.910, 2.948, 2.949, 2.950, 2.962, and 68.162 of the Commission's rules. To accommodate the transition to this new standard, as proposed in the NPRM, the Commission will permit the use of either ISO/IEC 17025:2005(E) or ISO/IEC 17025:2017(E) for a period of two years following the effective date of the rules adopted in the Report and Order. While both ISO/IEC 17025:2005(E) and ISO/IEC 17025:2017(E) were considered valid during the transition period in effect at the time of the Standards Update PN, accreditations to ISO/IEC 17025:2005(E) became invalid after June 1, 2021. In the Standards Update PN, OET proposed to adopt a three-year transition period for use of the proposed updated standard. In consideration of the time that has passed since publication of the Standards Update PN, combined with the facts that the Commission's rules require test laboratories to complete the accreditation process every two years and that the prior standard has since become invalid within the standards body, the Commission provides a two-year transition period for compliance with ISO/IEC 17025:2017(E).

Sections 2.910, 2.948, 2.950, 15.31, 15.35, and 15.38 of the Commission's rules reference ANSI 63.4-2014, “American National Standard for Methods of Measurement of Radio-Noise Emissions from Low-Voltage Electrical and Electronic Equipment in the Range of 9 kHz to 40 GHz,” as an electromagnetic compatibility (EMC) measurement standard for unintentional radiators. In late 2017, ANSC C63 published ANSI C63.4a-2017, “American National Standard for Methods of Measurement of Radio-Noise Emissions from Low-Voltage Electrical and Electronic Equipment in the Range of 9 kHz to 40 GHz, Amendment 1: Test Site Validation” (ANSI C63.4a-2017). In the Standards Update Notice, OET sought comment on incorporating by reference ANSI C63.4a-2017 in the appropriate rules. Although some commenters supported incorporation of the amended standard, several negative responses were received in this regard. In the NPRM, the Commission considered the comments filed pursuant to the Standards Update Notice and tentatively concluded that ANSI C63.4-2014 continues to sufficiently address current needs and that incorporation by reference of ANSI C63.4a-2017 into the Commission's rules was not warranted at that time.

Many commenters in this proceeding support the tentative conclusion made by the Commission in the NPRM that ANSI C63.4-2014 continues to sufficiently address current needs and that incorporation by reference of ANSI C63.4a-2017 into the Commission's rules is not warranted at this time. In its reply comments, ANSC C63 supports that tentative conclusion but notes that a reference to ANSI C63.4a-2017 in the Commission's rules should be optional and not a requirement because it would “allow labs to meet both Canadian and U.S. requirements with a single site validation test.”

After further consideration of the information on the record, including the comments from ET Docket No. 19-48, the Commission affirms its tentative determination that ANSI C63.4-2014 continues to sufficiently address current needs and continues to retain the incorporation by reference into the Commission's rules of ANSI C63.4-2014. However, the Commission recognizes that ANSI C63.4a-2017 introduced modifications to the normalized site attenuation procedures for validating radiated test sites for use in the 30 MHz to 1 GHz frequency range. Some of these modifications involve a new acceptable test distance (five meters) and an expanded test volume to accommodate devices with heights that exceed two meters. As noted in the NPRM, several parties objected to making this a mandatory requirement because of cost concerns over the potential need to redesign and retrofit existing test facilities. However, the Commission also recognizes that in some cases these modifications may be necessary to accommodate testing of larger devices. In addition, Innovation, Science and Economic Development Canada (ISED)—a department of the Government of Canada—has adopted the amended standard. The Commission also affirms its Office of Engineering and Technology's acceptance of the use of this standard as an alternative pursuant to KDB 414788 D01 Radiated Test Site v01r01. Therefore, to accommodate testing of larger devices (greater than two meters in height) and to allow for harmonization with ISED requirements, the Commission adopts ANSI C63.4-2017 through incorporation by reference. By retaining the existing standards and also adopting the modified standard, the Commission provides two options for an electromagnetic compatibility (EMC) measurement standard for unintentional radiators to accommodate the improvements where they are most needed and retains the status quo for testing that would not benefit from the updates.

In the NPRM, the Commission noted that several part 2 rules incorporate references that have become outdated as a result of prior updates to standards that were phased in over specific transition periods—once the newer standards became the only valid procedure for compliance with the Commission's rules, the prior references became irrelevant. Specifically, the Commission proposed to delete from § 2.910 of the Commission's rules references to: ISO/IEC Guide 58:1993(E), “Calibration and testing laboratory accreditation systems—General requirements for operation and recognition,” First Edition 1993; ISO/IEC Guide 61:1996(E), “General requirements for assessment and accreditation of certification/registration bodies,” First Edition 1996; and ISO/IEC Guide 65:1996(E), “General requirements for bodies operating product certification systems.” Additionally, the Commission proposed to delete the related transition periods provided in § 2.950 and make any necessary related administrative rule changes. The Commission also asked whether there were additional conforming or administrative updates to its rules and if any other rule modifications were needed, including updating other standards currently referenced in the rules or incorporating by reference additional standards not currently referenced in the rules.

In its comments, ITI notes that §§ 15.38(b) and 15.109(g) still reference CISPR 22 and requested that these references be updated to the latest edition of CISPR 32. ITI also recommends that a specific statement permitting grandfathering would benefit the industry, avoid confusion, and facilitate compliance. Cisco supports these additional updates. Additionally, ANSC C63 also points out that “the proposed amendment to Rule 2.910 references CISPR 16-1-4:2010-04, however, that version of the standard is out of date” and the rule “should reference the current version of the standard which is CISPR 16-1-4 2019+AMD:2020.”

Absent any opposition in the record, the Commission adopts the proposals to delete references to: ISO/IEC Guide 58:1993(E), First Edition 1993; ISO/IEC Guide 61:1996(E), First Edition 1996; and ISO/IEC Guide 65:1996(E) from § 2.910 of the Commission's rules. Additionally, the Commission adopts the proposal to delete the related transition periods provided in § 2.950. The commenter recommendations to update additional references were not contemplated in the Commission's proposal, and it therefore takes no action here.

Accordingly, it is ordered , pursuant to the authority found in sections 4(i), 301, 302, and 303 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 301, 302a, 303, that this Report and Order is hereby adopted.

It is further ordered that the amendments of parts 2, 15, 68, and 73 of the Commission's rules as set forth in Appendix A are adopted , effective 30 days after publication in the Federal Register .

It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

It is further ordered that the Office of the Managing Director, Performance Evaluation and Records Management, shall send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2, 15, 68, and 73 as follows: