The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 777-200, 777-200LR, 777-300, 777-300ER, and 777F series airplanes. The NPRM published in the Federal Register on April 6, 2023 (88 FR 20433). The NPRM was prompted by a report of a “FLAPS DRIVE” caution message in flight due to the torque trip indicator of the No. 2 TE flap transmission assembly being in the set position, which resulted in an air turn-back. In the NPRM, the FAA proposed to require an inspection or records review to determine the serial numbers of the TE flap transmission and gearbox assemblies, and applicable on-condition corrective actions. The FAA also proposed to limit the installation of affected parts. The FAA is issuing this AD to address a broken ratchet pawl assembly in combination with an upstream torque tube disconnect, which can cause failure of the no-back brake to hold flap surfaces in a commanded position, and possible debris in the transmission assembly, which can prevent the pawl from engaging the ratchet plate or cause other damage to the transmission assembly. The unsafe condition, if not addressed, could result in asymmetric loss of the lift that can prevent continued safe flight and landing.

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

The FAA received additional comments from four commenters, including Air France Industries, China Eastern Tech, FedEx, and United Airlines (United). FedEx and United supported the NPRM and had additional comments. The following presents the comments received on the NPRM and the FAA's response to each comment.

China Eastern Tech, FedEx, and United requested that paragraph (j) of the proposed AD be revised to allow installation of parts on which the inspection and applicable corrective actions have been accomplished in accordance with Boeing Alert Requirements Bulletin 777-27A0123 RB, dated October 11, 2021.

The FAA agrees with the commenters' request. Paragraph (i) of this AD allows credit for actions accomplished using Boeing Alert Requirements Bulletin 777-27A0123 RB, dated October 11, 2021. Therefore, the FAA has determined that it is also acceptable to allow installation of parts on which, prior to the effective date of this AD, the inspection and applicable corrective actions have been accomplished as specified in Boeing Alert Requirements Bulletin 777-27A0123 RB, dated October 11, 2021. The FAA has revised paragraph (j) of this AD accordingly.

Air France Industries requested that the FAA specify that the service information and proposed AD are applicable to the component (assembly), regardless of the component's installation status. The commenter stated that this would clarify the work of operators and shops and prevent shops from providing airlines with a replacement part on which the actions specified in the proposed AD have not been accomplished. Air France Industries noted that the proposed AD does not provide instructions for spare parts.

The FAA disagrees with the commenter's request. When the unsafe condition results from the installation of the appliance or part on an aircraft, the AD action is issued against the aircraft, not the appliance or part. In this case, the affected assemblies are rotable parts, so it is possible that an affected assembly could be installed on numerous airplanes during its service life. Paragraph (j) of this AD prohibits the installation of an affected assembly on an airplane, unless the actions specified in the service information have been accomplished on that assembly. Therefore, no change to this AD is necessary.

United and FedEx requested that the proposed AD be revised to specify a different method of marking parts on which the service information has been accomplished. United noted that the service information specifies to mark the service bulletin number on the part, and suggested that having only a visual clue can be challenging to track. FedEx noted that the part number does not change after modification, which will present difficulties with operators' part tracking systems. FedEx requested that the FAA work with Boeing to identify a standardized method for identifying modified parts, such as adding a letter after the serial number.

The FAA disagrees with the commenters' request. While the FAA acknowledges that it may be easier for the commenters to track modified parts using a revised serial number, the FAA cannot assume all operators would use the same tracking system. Additionally, part marking with a service bulletin number is an established process that has been required by other ADs. However, under the provisions specified in paragraph (k) of this AD, the FAA will consider requests for an alternative method of compliance (AMOC).

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

The FAA reviewed Boeing Alert Requirements Bulletin 777-27A0123 RB, Revision 1, dated January 16, 2023. This service information specifies procedures for an inspection or records review for affected serial numbers of the TE flap transmission and gearbox assemblies at positions 1 through 8. For affected serial numbers, the service information specifies procedures for either (1) removing the TE flap transmission assembly and installing a new or serviceable assembly, or (2) removing the TE flap transmission and ratchet pawl assemblies, inspecting the ratchet pawl assembly for damage and missing material, and, depending on the findings, either installing a new ratchet pawl assembly and a changed TE flap transmission assembly or replacing the ratchet pawl assembly and TE flap transmission assembly with new or serviceable parts. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in ADDRESSES .

The FAA estimates that this AD affects 267 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

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

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

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

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

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

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it amends Class D and Class E airspace in Eastman, GA. An airspace evaluation determined that this update is necessary to support IFR operations in the area.

The FAA published a notice of proposed rulemaking for Docket No. FAA 2023-1674 in the Federal Register (88 FR 54249; August 10, 2023), amending Class D airspace and Class E airspace extending upward from 700 feet above the surface for Heart of Georgia Regional Airport, Eastman, GA. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and Class E airspace designations are published in Paragraphs 5000 and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, which is incorporated by reference in 14 CFR 71.1 on an annual basis. This document amends the current version of that order, FAA Order JO 7400.11H, dated August 11, 2023, and effective September 15, 2023. FAA Order JO 7400.11H is publicly available as listed in the ADDRESSES section of this document. These amendments will be published in the next update to FAA Order JO 7400.11.

FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This action amends 14 CFR part 71 by amending Class D airspace and Class E airspace extending upward from 700 feet above the surface for Heart of Georgia Regional Airport, Eastman, GA, by increasing the Class D radius to 4.6 miles (previously 4.4 miles) and the Class E airspace extending upward from 700 feet above the surface to 7.1-miles (previously 7.0 miles), and updating the geographic coordinates to coincide with the FAA's database. This action removes the city name from the second line of the Class E airspace description. This action also replaces the terms Notice to Airmen with Notice to Air Missions and Airport/Facility Directory with Chart Supplement in the Class D description. Finally, this action updates the airport name to Heart of Georgia Regional Airport (formerly Eastman-Dodge County Airport) in the Class E airspace extending upward from 700 feet above the surface. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations in the area.

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a.

This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant the preparation of an environmental assessment.

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

Congress enacted the Gramm Leach Bliley Act (“GLBA”) in 1999. 1 The GLBA provides a framework for regulating the privacy and data security practices of a broad range of financial institutions. Among other things, the GLBA requires financial institutions to provide customers with information about the institutions' privacy practices and about their opt-out rights, and to implement security safeguards for customer information.

Subtitle A of Title V of the GLBA required the Commission and other Federal agencies to establish standards for financial institutions relating to administrative, technical, and physical safeguards for certain information. 2 Pursuant to the GLBA's directive, the Commission promulgated the Safeguards Rule in 2002. 3 The Safeguards Rule became effective on May 23, 2003. 4

On April 4, 2019, the Commission issued a notice of proposed rulemaking (“NPRM”) setting forth proposed amendments to the Safeguards Rule. 5 In response, the Commission received 49 comments from various interested parties including industry groups, consumer groups, and individual consumers. 6 On July 13, 2020, the Commission held a workshop concerning the proposed changes and conducted panels with information security experts discussing subjects related to the proposed amendments. 7 The Commission received 11 comments following the workshop. After reviewing the initial comments to the NPRM, conducting the workshop, and then reviewing the comments received following the workshop, the Commission issued final amendments to the Safeguards Rule on December 9, 2021. 8

In the NPRM, the Commission explained that its proposed amendments to the Safeguards Rule were based primarily on the cybersecurity regulations issued by the New York Department of Financial Services, 23 NYCRR 500 (“Cybersecurity Regulations”). 9 The Commission also noted that the Cybersecurity Regulations require covered entities to report security events to the superintendent of the Department of Financial Services. 10 Relatedly, for many years, some other Federal agencies enforcing the GLBA have required financial institutions to provide notice to the regulator, and in some instances notice to consumers as well. 11 Although the Commission did not include a similar reporting requirement in the NPRM, it did seek comment on whether the Safeguards Rule should be amended to require that financial institutions report security events to the Commission. Specifically, the Commission requested comments on whether such a requirement should be added and, if so, (1) the appropriate deadline for reporting security events after discovery, (2) whether all security events should require notification or whether notification should be required only under certain circumstances, such as a determination of a likelihood of harm to customers or that the event affects a certain number of customers, (3) whether such reports should be made public, (4) whether events involving encrypted information should be included in the requirement, and (5) whether the requirement should allow law enforcement agencies to prevent or delay notification if notification would affect law-enforcement investigations. 12

The final rule, which the Commission published in the Federal Register on December 9, 2021, did not include a reporting requirement. 13 However, on the same date, the Commission published a supplemental notice of proposed rulemaking (“SNPRM”) in the Federal Register , which proposed further amending the Safeguards Rule to require financial institutions to report to the Commission certain security events as soon as possible, and no later than 30 days after discovery of the event. 14 Specifically, the Commission proposed to require financial institutions to notify the Commission electronically through a form located on the FTC's website about any security event that resulted or is reasonably likely to result in the misuse of customer information affecting at least 1,000 consumers. The Commission proposed that the notification include a limited set of information, consisting of (1) the name and contact information of the reporting financial institution, (2) a description of the types of information involved in the security event, (3) the date or the date range of the security event, if it can be determined, and (4) a general description of the security event. In response to the SNPRM, the Commission received 14 comments from various interested parties, including industry groups, consumer groups, and individual consumers. 15

After reviewing the comments, the Commission now finalizes the proposed amendments with minor changes.

The Final Rule requires financial institutions to report notification events, defined as the unauthorized acquisition of unencrypted customer information, involving at least 500 customers to the Commission. The notice to the Commission must include: (1) the name and contact information of the reporting financial institution; (2) a description of the types of information that were involved in the notification event; (3) if the information is possible to determine, the date or date range of the notification event; (4) the number of consumers affected; (5) a general description of the notification event; and, if applicable, whether any law enforcement official has provided the financial institution with a written determination that notifying the public of the breach would impede a criminal investigation or cause damage to national security, and a means for the Federal Trade Commission to contact the law enforcement official. The notice must be provided electronically through a form located on the FTC's website, https://www.ftc.gov.

The following section discusses the comments that the Commission received in response to the SNPRM.

Several commenters generally supported the inclusion of a notification requirement in the Rule. 16 Some of these commenters pointed to frequent data breaches as an indication that companies' data security practices are inadequate and stated that requiring companies to provide notice to the Commission would enable the Commission to more easily enforce the Rule. 17 The Clearing House argued that the requirement is appropriate because it would place financial institutions covered by the Rule in the same position as banks, which are required to report data breaches to their prudential regulators. 18 The Electronic Privacy Information Center (“EPIC”) suggested that the amendment would incentivize “use of strong data security measures by financial institutions, bring additional accountability and transparency to the handling of security events, and enhance the data security and privacy of all consumers.”  19

Other commenters opposed the proposal. 20 Many of these commenters argued that the proposed notification requirement would be duplicative of State breach notification laws and is, therefore, unnecessary. 21 The Commission, however, disagrees that requiring financial institutions to provide notice to the Commission is redundant because of State breach notification laws. State breach notification laws provide notice to consumers and in some cases also to State regulators, while the notice requirement of the Final Rule requires notice to the Commission and is designed to ensure that the Commission receives notice of security breaches affecting financial institutions under the Commission's jurisdiction. Notice to consumers or to State regulators does not achieve this purpose. Receipt of these notices will enable the Commission to monitor for emerging data security threats affecting financial institutions and to facilitate prompt investigative response to major security breaches. CTIA argued that the Commission could achieve this goal by accessing and reviewing regulated entities' reports to consumers and State authorities under State notification laws. 22 The Commission disagrees that this indirect method would be as efficient or effective as requiring regulated financial institutions to directly notify the Commission. 23 Such an approach would be extremely burdensome on the Commission and would require the diversion of resources from enforcement to search for and collect information about breaches involving regulated financial institutions. Also, as some of the commenters noted, 24 State laws vary in what types of incidents must be reported and to whom. 25 The Safeguards Rule notice requirement will establish a uniform reporting requirement for all regulated financial institutions, assisting the Commission in getting consistent information about notification events affecting those financial institutions regardless of which State's consumers are affected. This benefit is not offset by the cost to financial institutions because the burden on individual financial institutions is minimal, as the Final Rule does not require an extensive report and, in many instances, financial institutions will already be preparing notices to consumers and State agencies.

Some commenters argued that the notification requirement would not improve financial institutions' data security. 26 Other commenters disagreed with this assertion, arguing that the notification requirement would further incentivize financial institutions to protect customer information. 27 The Commission agrees with these commenters that the notification requirement will increase the efficiency and effectiveness of the Commission's enforcement of the Rule. As noted above, while State breach notification laws require notice to consumers, some States do not require that such notices be provided to State regulators as well, and not all State regulators that do receive such notices publish them. By requiring financial institutions to provide notice directly to the Commission, the Commission will not have to devote resources to continually search for breach notifications posted by other sources in order to know that a financial institution has experienced a breach. Without a notification, the Commission would have no guarantee that it has found all breaches in its searches. The required notices will enable the Commission to identify breaches that merit investigation more quickly and efficiently. Also, receiving notice of breaches will allow the Commission to develop better awareness of emerging risks to financial institutions' security. The Commission expects that these benefits will enable more efficient enforcement of the Rule, which will in turn increase financial institutions' incentive to comply. In addition, as discussed below, making the notices public will enable consumers to make more informed decisions about which financial institutions they choose to entrust with their information, providing financial institutions with an additional incentive to comply with the Rule.

The National Automobile Dealers Association (“NADA”) argued that a requirement for financial institutions to report events in order to facilitate enforcement against them is “unprecedented”  28 and “raises serious questions,” including “potential First Amendment and potentially even Fifth Amendment concerns.”  29 The Commission disagrees. Far from being unique, the requirement to report security events to law enforcement agencies that might result in enforcement actions against the notifying company is common. Many Federal agencies  30 require regulated entities to report data breaches to them, and most States require that companies report breaches to State attorneys general or other State law enforcement and have done so for years. 31

NADA also argued that requiring reporting security events to assist the Commission to enforce the Safeguards Rule is inappropriate because not every breach is the result of a failure to comply with the Safeguards Rule. 32 NADA suggested that the reporting requirement should only “apply after a series of security events,” because only multiple events can be “suggestive of compliance failures,” while any single breach “certainly . . . is not.”  33 While the Commission acknowledges that not every notification event is necessarily the result of a failure to comply with the Safeguards Rule, it disagrees that a single breach cannot be “suggestive of compliance failures.”  34 Indeed, the fact that an institution has not experienced a breach does not necessarily mean that the institution is in compliance with the Rule's requirements. The Commission believes that taking action to correct a potential Safeguards Rule violation before additional security events can harm consumers is appropriate and desirable. The American Financial Services Association (“AFSA”) contended that “the FTC should clarify what factors in a report could lead to enforcement concerns,” arguing that otherwise “institutions may seek to minimize all risks associated with a report.”  35 The Commission does not believe that providing a guide to when a report could possibly lead to enforcement is either possible or desirable because the reports are unlikely to contain all of the information that the Commission would need to determine that law enforcement is appropriate or necessary. Such determinations are typically made following investigations that afford entities the opportunity to provide context and information.

In addition, the Commission notes that requiring a financial institution to report an event is not suggesting that every notification event is the result of a violation of the Rule and will result in an enforcement action or even investigation. Rather, the reporting requirement will provide the Commission with valuable information about security threats to financial institutions and assist in the determination of whether any individual event should be investigated further. This will improve the Commission's ability to respond to data breaches and may enable the Commission to issue business and consumer education about emerging threats.

Other commenters argued that the reporting requirement would be unduly burdensome. 36 Some of these commenters suggested that because the Rule's requirement may differ from State notification laws' requirements, complying with the Rule will be burdensome. 37 Other commenters disagreed, noting that the information required is limited to basic information about the company and the notification event. 38 The Commission agrees with these commenters. The information required to be reported is minimal and is very similar to the information required by many State notification laws. 39 The company will have this information as the result of even a basic investigation of the security event, an investigation that would be required in any event to comply with the Rule and basic security practices. The fact that some State laws may be triggered under different circumstances and may require different information does not render this simple report burdensome.

In addition to addressing the proposed amendment in general, commenters also addressed specific elements of the proposed amendments. These comments are addressed in the following detailed discussion.

The Commission adopts proposed § 314.4(j) as originally proposed, with minor changes. Proposed paragraph (j) would have required financial institutions that become aware of a security event to promptly determine the likelihood that customer information has been or will be misused. Under the provision as originally proposed, financial institutions would have been required to make a report to the Commission upon determining that, among other conditions, “misuse of customer information ha[d] occurred or . . . [was] reasonably likely [to occur].” However, upon consideration of the comments, Commission is clarifying the triggering language by adding a new paragraph (m) in § 314.2, which defines the term “notification event” as the “acquisition of . . . [unencrypted customer] information without the authorization of the individual to which the information pertains.” Section 314.2(m) further clarifies that: (1) “[c]ustomer information is considered unencrypted . . . if the encryption key was accessed by an unauthorized person;” and (2) “[u]nauthorized acquisition will be presumed to include unauthorized access to unencrypted customer information unless you have reliable evidence showing that there has not been, or could not reasonably have been, unauthorized acquisition of such information.”

Several commenters addressed whether becoming aware of a security event is an appropriate trigger for the notification process. In a joint comment, the Securities Industry and Financial Markets Association (“SIFMA”) and the Bank Policy Institute (“BPI”) argued that the notification process should not begin when a financial institution becomes aware of an event, but instead begin when the financial institution “determines” a security event has occurred. SIFMA and BPI suggested that “determination” takes place sometime after “discovery,” and that financial institutions should have 30 days to notify the Commission after making this determination rather than after discovery. SIFMA and BPI argued that “determination” “connotes a higher standard of certainty than `discovery,' ” and would include determining whether any further requirements for notice, such as number of consumers affected, had been met. The Commission disagrees that 30 days after discovery of a notification event is insufficient time to determine whether the event meets the requirements for notification and to prepare the notice. The Commission expects that companies will be able to decide quickly whether a notification event has occurred by determining whether unencrypted customer information has been acquired and, if so, how many consumers are affected, so there will not be a significant difference between “determination” and “discovery.”  40 In addition, the notification to the Commission requires minimal details and will not take significant time to prepare and, as discussed above, many States require reports containing similar information, so the financial institutions will need to prepare such a report in any event.

Other commenters argued the term “security event” is too broad a term to act as a trigger for the notification process, stating that the term encompasses types of incidents that pose little risk of consumer harm and for which notification is unnecessary. 41 Some commenters felt notification should be required only when harm to consumers has occurred or is likely to occur, rather than when “misuse” has occurred or is reasonably likely. 42 Some commenters argued a trigger that requires consumer harm would be more in accord with State notification laws. 43 Similarly, several commenters argued the notification requirement should exclude security events that involve only encrypted customer information, because there is little chance of consumer harm in such cases. 44 Others argued requiring financial institutions to report breaches that do not involve possible harm to consumers would be unduly burdensome on financial institutions and would produce an overwhelming number of reports to the Commission. 45 Conversely, EPIC argued notice should be required for all security events regardless of whether misuse had occurred or was likely. 46 EPIC argued that removing the analysis of whether misuse was likely would lower the burden of determining whether a report should be made and would prevent attempts by financial institutions to avoid reporting to the Commission. 47

The Commission agrees with EPIC that the trigger for notification requires clarification. The meaning of the term “misuse” in the proposed rule was ambiguous. It was not clear if acquisition of customer information alone constituted misuse, or if other forms of misuse, such as alteration of data, would fall within the notification requirement. Given this ambiguity, financial institutions would have had difficulty evaluating the likelihood of misuse of customer information that has been acquired without authorization. At the same time, the ambiguity could have been used as an opportunity to circumvent the reporting requirement. Specifically, because the proposed rule required the financial institution to assess the likelihood of misuse, it would have allowed financial institutions to underestimate the likelihood of misuse, and, thereby, the need to report the security event.

Accordingly, the Final Rule requires notification where customer information has been acquired, rather than when misuse is considered likely. Specifically, the Commission is adding a new § 314.2(m) that defines the term “[n]otification event” to mean the acquisition of unencrypted customer information without the authorization of the individual to which the information pertains. Section 314.2(m) also provides that unauthorized access of information will be presumed to result in unauthorized acquisition unless the financial institution can show that there has not been, or could not reasonably have been, unauthorized acquisition of such information. This rebuttable presumption is consistent with the Health Breach Notification Rule. See 16 CFR 318.2(a) (“Unauthorized acquisition will be presumed to include unauthorized access to unsecured PHR [personal health record] identifiable health information unless the vendor of personal health records, PHR related entity, or third party service provider that experienced the breach has reliable evidence showing that there has not been, or could not reasonably have been, unauthorized acquisition of such information.”). 48 Here, too, the presumption is “intended to address the difficulty of determining whether access to data ( i.e., the opportunity to view the data) did or did not lead to acquisition ( i.e., the actual viewing or reading of the data).”  49

The Commission also agrees notification should not be required when harm to consumers is rendered extremely unlikely because the customer information is encrypted. Accordingly, the Final Rule does not require notification if the customer information acquired is encrypted, so long as the encryption key was not accessed by an unauthorized person. See § 314.2(m). By requiring notice relating to unauthorized acquisition only of unencrypted customer information, this change brings the Rule into accord with most State breach notification laws. If customer information was encrypted but the encryption key was also accessed without authorization, then the customer information will be considered to be unencrypted. Someone who has both the encrypted information and the encryption key can easily decrypt the information. 50

In summary, the Final Rule requires notification if the financial institution discovers that unencrypted customer information has been acquired without authorization. See § 314.2(m). Unlike under the proposed rule, notification is not conditioned on the assessment of likelihood of misuse. The Commission believes that determining whether acquisition has occurred simplifies the requirement and will enable financial institutions to more speedily determine whether a notification event has occurred. In addition, the Commission believes this change will reduce the number of notifications by excluding events where encrypted information was acquired, while ensuring it receives notice of events that are more likely to result in harm. As noted earlier, the Rule also includes a rebuttable presumption stating that when there is unauthorized access to data, unauthorized acquisition will be presumed unless the entity that experienced the breach “has reliable evidence showing that there has not been, or could not reasonably have been, unauthorized acquisition of such information.” See § 314.2(m).

Some commenters argued the notification requirement should trigger only when especially “sensitive” information is involved. 51 These commenters argue that requiring notification when any kind of customer information is involved would result in notifications when there is no risk of harm to consumers. 52 The Commission disagrees with this contention. The definition of “customer information” in the Rule does not encompass all information that a financial institution has about consumers. “Customer information” is defined as records containing “non-public personal information” about a customer. 53 “Non-public personal information” is, in turn, defined as “personally identifiable financial information,” and excludes information that is publicly available or not “personally identifiable.”  54 The Commission believes security events that trigger the notification requirement—where customers' non-public personally identifiable, unencrypted financial information has been acquired without authorization—are serious and support the need for Commission notification.

In the SNPRM, the Commission asked whether, rather than having a stand-alone reporting requirement, the Rule should require reporting only when another State or Federal statute, rule, or regulation requires a financial institution to provide notice of a security event or similar event to a governmental entity. Some commenters supported this suggestion, arguing that such a requirement would reduce duplicative notice and consumer confusion. 55 Other commenters opposed it, arguing that because of the varied nature of State notification laws, this would produce inconsistent reporting to the Commission. 56 The Commission agrees that a stand-alone requirement will help ensure the Commission receives consistent information regarding security events.

After a financial institution becomes aware of a security event, the proposed rule would have required it to determine whether at least 1,000 consumers have been affected or reasonably may be affected and, if so, to notify the Commission.

A number of commenters expressed views pertaining to the minimum threshold for the number of affected customers. Some commenters agreed that notification of security events should not be required if the number of consumers that could be affected fell below the proposed threshold (1,000 consumers). 57 The Clearing House, however, suggested that notification should be required in all cases, regardless of the number of consumers potentially affected. 58

AFSA suggested there should be a higher threshold of affected consumers before notice is required. 59 AFSA argued that the thousand consumer threshold was too low because of “the large number of financial institutions with many more customers.”  60 The Commission disagrees that the fact that some financial institutions hold the information of millions of consumers suggests a higher threshold is appropriate. The Clearing House, conversely, argues the Rule should require that the Commission receive notice whenever any consumer is affected, because otherwise consumers whose information was involved in smaller breaches would have no notice of the breach and would be “without the benefit of important notices” if financial institutions were not required to report breaches affecting fewer consumers. 61 The Commission does not agree that setting a minimum threshold of consumers affected before requiring notification would leave consumers involved in smaller breaches without notice, as consumers will typically receive direct notification under State breach notification laws, regardless of whether notice to the Commission is required. In determining the proper threshold, the Commission notes that numerous State laws require notification of breaches either with no minimum threshold, or with a threshold of 250 or 500 people. The Commission's own Health Breach Notification Rule, and the Health Insurance Portability and Accountability Act (HIPAA) Breach Notification Rule, 62 also require notification of breaches involving 500 or more people. The Commission concludes that a lower threshold than in the proposed rule is appropriate. Accordingly, the Commission is adopting a minimum threshold of 500 consumers, rather than the minimum threshold of 1,000 consumers that was in proposed § 314.4(j). The Commission believes a security event that involves the acquisition of unencrypted customer information involving at least 500 consumers is significant enough to warrant notification of the Commission, regardless of the size of the financial institution.

The proposed Rule would have required Commission notification within 30 days from discovery of the notification event. Some commenters that addressed this deadline agreed that this would provide financial institutions sufficient time to make the required determinations and to notify the Commission. 63 Other commenters argued that financial institutions should be given significantly less time to notify the Commission. 64 Other commenters argued that financial institutions should be given more time to notify the Commission. 65 The Commission believes that a 30-day deadline properly balances the need for prompt notification with the need to allow financial institutions to investigate a security event, determine whether the information was acquired without authorization and how many consumers were affected, and learn enough about the event to make the notification to the Commission meaningful. Accordingly, finalized § 314.2(j)(1) retains the 30-day deadline from the SNPRM.

Some commenters argued that financial institutions should be permitted to delay or withhold notification of a security event to the Commission at the request of a law-enforcement agency or if notification would interfere with a law enforcement investigation. 66 Alternatively, EPIC suggested the Commission should not allow companies to delay reporting in cases of a law enforcement investigation, but should instead delay publication of the notice in cases where publication would interfere with an investigation. 67 The Commission agrees that, while notifications to the Commission should not be made public if law enforcement has requested a delay, there is no reason to delay notice to the Commission itself on that basis. This conclusion is consistent with the approach taken by the Securities and Exchange Commission and by other Federal financial regulators in rulemakings that require notice of cyber incidents to a regulator, as opposed to notice directly to consumers. 68 Accordingly, § 314.4(j)(1)(vi) of the Final Rule provides that a financial institution's notice must (1) indicate whether any law enforcement official has provided the institution with a written determination that public disclosure of the breach would impede a criminal investigation or cause damage to national security, and (2) provide a means for the Commission to contact the law enforcement official. In order that notice to the public is not delayed indefinitely, the provision also provides that a law enforcement official may request an initial delay of up to 30 days following the date when the disclosure is filed with the Commission. The delay may be extended for an additional period of up to 60 days if the law enforcement official seeks such an extension in writing. Additional delay may be permitted only if the Commission staff determines that public disclosure of a notification event continues to impede a criminal investigation or cause damage to national security.

The proposed § 314.4(j) did not address when a security event should be treated as discovered. The Commission believes adding such a provision will clarify the rule and prevent confusion. Accordingly, under the Final Rule, a notification event shall be treated as discovered as of the first day on which such event is known. Financial institutions will be deemed to have knowledge of a notification event if the event is known to any person, other than the person committing the breach, who is the financial institution's employee, officer, or other agent. Therefore, in instances where an employee, officer, or other agent of the financial institution accesses customer information without authorization, a financial institution will be deemed to have knowledge of a notification event if the event is known to another employee, officer, or other agent of the financial institution.

The proposed Rule required that a notice be made electronically on a form on the FTC's website, 69 and that such notice must include the following information: (1) the name and contact information of the reporting financial institution; (2) a description of the types of information that were involved in the notification event; (3) if the information is possible to determine, the date or date range of the notification event; and (4) a general description of the notification event.

Several commenters supported these elements as an appropriate level of detail. 70 However, NADA was opposed to the requirement that the report include a description of the security event, 71 while EPIC suggested the Rule should require a more detailed description of the security event. 72 EPIC argued that financial institutions should also be required to provide a comprehensive description of the types of information involved in the security event and a comprehensive description of the security event, because “it is critical that financial institutions provide a sufficiently detailed account of each security event to enable the FTC and affected consumers to assess whether and how personal information is at risk.”  73 The Commission believes that, with the exception noted below, the proposed elements generally provide sufficient information to the Commission and the public without imposing undue burdens on reporting financial institutions. If the Commission determines more information is needed, it will obtain that information from the financial institution. The Commission believes, however, that knowing the number of consumers affected or potentially affected by the notification event would allow it to better evaluate the impact of a particular event. Providing this information, which financial institutions will typically determine in the course of responding to a breach, will not significantly add to the burden to financial institutions. Accordingly, the Final Rule retains the proposed elements, while adding a requirement to provide the number of consumers affected or potentially affected by the notification event. 74

The SNPRM requested public comment on whether submitted reports should be made public. Several commenters argued that making the reports public would benefit consumers by helping them to make informed decisions about which financial institutions to entrust with their financial information or to determine whether they might have been affected by a security event. 75 Other commenters argued the reports should be confidential and not shared with the public. 76 Some commenters argued that making the reports public could encourage further cybersecurity attacks on affected financial institutions by making potential attackers aware of vulnerabilities that have not been remedied by the time the notice is made public. 77 NADA argued that the description of the event in particular should not be made public, suggesting the description provided no benefit to consumers and would not improve data security. 78 The Commission disagrees that making the reports public will increase risk to financial institutions' data security. As discussed above, most financial institutions are already subject to State breach notification laws, many of which require notification to a State agency that then makes the notification public. In addition, the general nature of the information required to be included in the report is unlikely to provide potential attackers any advantage in comprising the financial institution's security.

Other commenters argued that publication of the notices could create undue media coverage and that the information would be too general to assist consumers in making informed decisions. 79 Similarly, CDIA argued that because State law requires direct consumer notification to those affected by the breach, making the information public to all consumers would cause “consumer confusion and angst about whether the consumer's information has been compromised.”  80 CTIA also argued that financial institutions that have suffered a security event should not be subject to the punishment of “name and shame.”  81 SIFMA and BPI suggested that making the reports public would limit the information financial institutions are willing to share in the reports in order to avoid public revelation of the details of the breach. 82

As discussed above, the Commission acknowledges not all security events at financial institutions are the result of a failure to comply with the Safeguards Rule. Nevertheless, the Commission believes providing more information to consumers about these events will both benefit consumers and incentivize companies to better protect that information. The Commission is not persuaded that attention given to breaches is “undue” or otherwise inappropriate, as suggested by some commenters. Apart from providing actionable information for individuals who are directly affected, reporting provides a broader value to the general public to consider proactive measures, such as implementing a credit freeze, prioritizing methods to secure their own data, and determining where to do business. The Commission does not believe a confidential reporting system is needed in order to incentivize more comprehensive reporting by financial institutions. The general level of detail required to be reported under § 314.4(j)(1) will not compromise a financial institution's security posture going forward—the report requires only the most general information and cannot provide a meaningful roadmap for attackers. Accordingly, the Commission intends to enter notification event reports into a publicly available database.

The SNPRM also asked for comment on whether the Commission should require financial institutions that suffer a security event to directly notify affected consumers, as well as the Commission. Some commenters were in favor of requiring consumer notification, at least when notification of the Commission was required. 83 Most commenters who addressed the issue, however, opposed such a requirement, pointing to the existing regime of State consumer notification laws and arguing that a separate FTC notification requirement would be duplicative and unduly burdensome. 84 The Commission agrees that, because all States have some form of consumer notification requirement, a direct consumer notification requirement in the Safeguards Rule would be largely duplicative of those State laws. Therefore, the Commission has not included such a requirement in the Final Rule.

Finally, the Commission is revising § 314.4(c) to correct a typographical error. As originally promulgated, that section required a financial institution to “[d]esign and implement safeguards to control the risks you identity through risk assessment. . . .” Actually, a financial institution must “[d]esign and implement safeguards to control the risks you identify through risk assessment. . . .” In the Final Rule, this error is corrected.

The proposed rule revised § 314.5 so that the reporting requirement in § 314.4(j) would not go into effect until six months after the publication of a final rule. As proposed, finalized § 314.5 provides that § 314.4(j) will become effective on May 13, 2024.

The Paperwork Reduction Act (“PRA”), 44 U.S.C. 3501 et seq., requires Federal agencies to obtain Office of Management and Budget (“OMB”) approval before undertaking a collection of information directed to ten or more persons. Pursuant to the regulations implementing the PRA (5 CFR 1320.8(b)(3)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement, unless it displays a currently valid OMB control number.

The amendment requiring financial institutions to report certain security events to the Commission discussed above constitutes a “collection of information” for purposes of the PRA. 85 As required by the PRA, the FTC submitted the proposed information collection requirement to OMB for its review at the time of the publication of the SNPRM. OMB directed the Commission to resubmit the requirement at the time the Final Rule is published. Accordingly, FTC staff has estimated the information collection burden for this requirement as set forth below.

The amendment will affect only those financial institutions that suffer a security event in which unencrypted customer information affecting at least 500 consumers is acquired without authorization. Although the SNPRM proposed a 1,000-consumer cut-off for notification, the Commission believes that the reducing the reporting threshold by 500 consumers will likely make only a small difference in the number of breaches reported. 86 Assuming that reducing the reporting threshold by 500 individuals will lead an additional 5% of financial institutions to report—a generous estimate—FTC staff estimates the reporting requirement will affect approximately 115 financial institutions each year. 87 FTC staff anticipates the burden associated with the reporting requirement will consist of the time necessary to compile the requested information and report it via the electronic form located on the Commission's website. FTC staff estimates this will require approximately five hours for affected financial institutions, for a total annual burden of approximately 575 hours (115 responses × 5 hours).

The Commission does not believe the reporting requirement would impose any new investigative costs on financial institutions. The information about notification events required by the reporting requirement is information the Commission believes financial institutions would acquire in the normal course of responding to a notification event. In addition, in many cases, the information requested by the reporting requirement is similar to information entities are required to disclose under various States' data breach notification laws. 88 As a result, FTC staff estimates the additional costs imposed by the reporting requirement will be limited to the administrative costs of compiling the requested information and reporting it to the Commission on an electronic form located on the Commission's website.

FTC staff derives the associated labor cost by calculating the hourly wages necessary to prepare the required reports. FTC staff anticipates that required information will be compiled by information security analysts in the course of assessing and responding to a notification event, resulting in 3 hours of labor at a mean hourly wage of $57.63 (3 hours × $57.63 = $172.89). 89 FTC staff also anticipates that affected financial institutions may use attorneys to formulate and submit the required report, resulting in 2 hours of labor at a mean hourly wage of $78.74 (2 hours × $78.74 = $157.48). 90 Accordingly, FTC staff estimates the approximate labor cost to be $330 per report (rounded to the nearest dollar). This yields a total annual cost burden of $37,950 (115 annual responses × $330).

The Commission is providing an online reporting form on the Commission's website to facilitate reporting of qualifying notification events. As a result, the Commission does not anticipate covered financial institutions will incur any new capital or non-labor costs in complying with the reporting requirement.

Pursuant to Section 3506(c)(2)(A) of the PRA, the FTC invited comments on: (1) whether the disclosure requirements are necessary, including whether the information will be practically useful; (2) the accuracy of our burden estimates, including whether the methodology and assumptions used are valid; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of providing the required information to the Commission. Although the Commission received several comments that argued that the required notifications would be burdensome for businesses, none addressed the accuracy of the Commission's burden estimate. 91 Other commenters argued that the reporting requirement would create little burden. 92 For the reasons discussed above, the Commission agrees with these commenters and does not believe that reporting requirement will create a significant burden for businesses.

The Regulatory Flexibility Act (“RFA”)  93 requires that the Commission provide an Initial Regulatory Flexibility Analysis (“IRFA”) with a proposed rule, and a Final Regulatory Flexibility Analysis (“FRFA”) with the final rule, unless the Commission certifies that the Rule will not have a significant economic impact on a substantial number of small entities. 94 As discussed in the IRFA, the Commission does not believe this amendment to the Safeguards Rule has the threshold impact on small entities. The reporting requirement will apply to financial institutions that, in most cases, already have an obligation to disclose similar information under certain Federal and State laws and regulations and will not require additional investigation or preparation.

In this document, the Commission adopts the amendments proposed in its SNPRM with only minimal modifications. In its IRFA, the Commission determined that the proposed rule would not have a significant impact on small entities because of the minimal information being requested. Although the Commission certifies under the RFA that the rule will not have a significant impact on a substantial number of small entities, and hereby provides notice of that certification to the Small Business Administration, the Commission nonetheless has determined that publishing a FRFA is appropriate to ensure that the impact of the rule is fully addressed. Therefore, the Commission has prepared the following analysis:

The need for and the objective of the Final Rule is to ensure the Commission is aware of notification events that could suggest a financial institution's security program does not comply with the Rule's requirements, thus facilitating Commission enforcement of the Rule. To the extent the reported information is made public, the information will also assist consumers by providing information as to notification events experienced by various financial institutions.

Although the Commission received several comments that argued that the required notifications would be burdensome for businesses, 95 none argued specifically that smaller businesses in particular would be subject to special burden. Other commenters argued that the reporting requirement would create little burden. 96 One commenter specifically argued that the requirement would not create significant burden for small businesses. 97 As discussed above, the Commission does not anticipate that covered financial institutions will incur any new capital or non-labor costs in complying with the reporting requirement. Additionally, the average annual labor costs per covered financial institution are de minimis because most entities, including small entities, will only infrequently be required to file a report. Thus, the Commission does not believe that the reporting requirement will create a significant burden for financial institutions in general, including small businesses.

The Commission did not receive any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (“SBA”).

As explained in the IRFA, determining a precise estimate of the number of small entities  98 that would have to report a notification event in a given year is not readily feasible. No commenters addressed this issue. Both small entities and larger ones experience security incidents involving disclosure of consumer information. 99 However, other factors complicate the analysis. There are no estimates available reflecting the percentage of financial institutions under the Commission's jurisdiction that would be considered small entities, and small entities may be more likely to experience notification events that fall below the notification threshold, for example. Such factors are not reflected in industry and economic sector data, and, therefore, it is not possible to estimate the number of small entities covered by the Rule from such data. Projecting from entities' past experiences of actual breaches, however, as discussed in the section discussing the PRA, FTC staff estimates the Rule's reporting requirement would affect approximately 115 entities per year in the future. Accordingly, even if every financial institution required to report in a given year were a small entity, the reporting requirement would affect only approximately 115 such entities. Regardless, as discussed above, these amendments will not add any significant additional burdens on any covered small businesses.

The notification requirement imposes reporting requirements. As outlined above, the amendment will affect only those financial institutions that suffer a notification event in which unencrypted customer information affecting at least 500 consumers is acquired without authorization. If such an event occurs, the affected financial institution may expend costs to provide the Commission with the information required by the reporting requirement. As noted in the PRA analysis above, the total estimated annual cost burden for all entities subject to the reporting requirement will be approximately $37,950.

The Commission did not propose any specific small entity exemption or other significant alternatives because the burden imposed upon small businesses is minimal. In drafting the reporting requirement, the Commission has made every effort to avoid unduly burdensome requirements for entities. The reporting requirement only mandates that affected financial institutions provide the Commission with information necessary to assist it in its regulatory and enforcement efforts. The rule minimizes burden on all covered financial institutions, including small businesses, by providing for reporting through an online form on the Commission's website. In addition, the rule requires that only notification events involving at least 500 consumers must be reported, which will reduce potential burden on small businesses that retain information on fewer consumers. Therefore, the Commission does not believe that any alternatives for small entities are required or appropriate.

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).

For the reasons stated above, the Federal Trade Commission amends 16 CFR part 314 as follows:

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the San Diego Parade of Lights in San Diego Bay, CA in 33 CFR 100.1101, Table 1, Item 5 of that section from 5 p.m. until 8 p.m. on December 10, 2023, and on December 17, 2023. This enforcement action is being taken to provide for the safety of life on navigable waterways during the event. The Coast Guard's regulation for recurring marine events in the San Diego Captain of the Port Zone identifies the regulated entities and area for this event. During the enforcement periods and under the provisions of 33 CFR 100.1101, persons and vessels are prohibited from anchoring, blocking, loitering, or impeding within this regulated area, unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

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

The Coast Guard will enforce the special local regulations in 33 CFR 100.1101 for the location identified in Item No. 6 in Table 1 to § 100.1101, from 5:30 p.m. until 8 p.m. on December 10, 2023, and December 17, 2023, for the Mission Bay Parade of Lights in Mission Bay, CA. This action is being taken to provide for the safety of life on the navigable waterways during the event. Our regulation for recurring marine events in the San Diego Captain of the Port Zone, § 100.1101, Item No. 6 in table 1 to § 100.1101, specifies the location of the regulated area for the Mission Bay Parade of Lights, which encompasses portions of Mission Bay. Under the provisions of § 100.1101, persons and vessels are prohibited from entering into, transiting through, or anchoring within this regulated area unless authorized by the Captain of the Port, or his designated representative. The Coast Guard may be assisted by other Federal, State, or local law enforcement agencies in enforcing this regulation.

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

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 October 31, 2023. It is impracticable to go through the full notice and comment rulemaking process because the Coast Guard must establish this safety zone by November 15, 2023, and lacks sufficient time to provide a reasonable comment period and to 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 action is necessary to protect personnel, vessels, and the marine environment from the potential safety hazards associated with the scheduled fireworks display in San Francisco, CA on November 15, 2023.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port San Francisco (COTP) has determined that potential hazards associated with scheduled fireworks display on November 15, 2023, will be a safety concern for anyone within a 100-foot radius of the fireworks vessel during loading and staging. For this reason, this temporary safety zone is needed to protect personnel, vessels, and the marine environment on the navigable waters around the fireworks vessel.

This rule establishes a temporary safety zone from 8 a.m. until 7:30 p.m. on November 15, 2023, during the loading, staging, and transit of the fireworks vessel from Westar Marine Service Pier 50, San Francisco, CA. During the loading, staging, and transit of the fireworks vessel scheduled to take place between 8 a.m. and 7:30 p.m. on November 15, 2023, the safety zone will encompass the navigable waters around and under the fireworks vessel, from surface to bottom, within a circle formed by connecting all points 100 feet out from the fireworks vessel. The safety zone will terminate at 7:30 p.m. on November 15, 2023, or as announced via Marine Information Broadcast.

This regulation is necessary to keep persons and vessels away from the immediate vicinity of the fireworks vessel during loading, staging, and transit. Except for persons or vessels authorized by the COTP or the COTP's designated representative, no person or vessel may enter or remain in a restricted area. A “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer, or other officer operating a Coast Guard vessel, or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the safety zone. This regulation is necessary to ensure the safety of transiting vessels.

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 section 3(f) of 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 limited duration and narrowly tailored geographic area of the safety zone. Although this rule restricts access to the waters encompassed by the safety zone, the effect of this rule will not be significant because the local waterways users will be notified to ensure the safety zone will result in minimum impact. Vessels desiring to transit through or around the temporary safety zone may do so upon receiving express permission from the COTP or the COTP's designated representative.

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 in the navigable waters of the San Francisco Bay around the loading, staging, and transit of fireworks at Westar Marine Services Pier 50. 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 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. Establishing the safety zone is necessary to facilitate safe construction of a bridge that is in a location frequented by commercial and recreational vessel traffic. Immediate action is needed to respond to the potential safety hazards associated with bridge construction operations. We must establish the safety zone by November 8, 2023, and 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 impracticable because immediate action is needed to respond to the potential safety hazards associated with construction of the Airport Road Bridge.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Marine Safety Unit Houma (COTP) has determined that potential hazards associated with the bridge construction operations continuing through November 15, 2023, will be a safety concern for anyone within 440 yards north or south around position 29°25′28.6″ N 90°17′31.5″ W in Bayou Lafourche, Galliano, LA. This rule is needed to protect life and property on the navigable waters while bridge construction operations are being conducted.

This rule establishes a temporary safety zone from November 8, 2023, through November 15, 2023. This temporary safety zone encompasses an area 440 yards north and 440 yards south of position 29°25′28.6″ N 90°17′31.5″ W, in Bayou Lafourche, Galliano, LA. The duration of the zone is intended to protect life and property on these navigable waters for the duration of bridge construction. No vessel or person will be permitted to enter and move within the safety zone without obtaining permission from the COTP or a designated representative. A designated representative is a commissioned, warrant, or petty officer of the U.S. Coast Guard assigned to units under the operational control of USCG Marine Safety Unit Houma. Vessels requiring entry into this safety zone must request permission from the COTP or a designated representative. They may be contacted on VHF-FM Channel 16 or 67. Persons and vessels permitted to enter or to move within this safety zone must transit at their slowest safe speed and comply with all lawful directions issued by the COTP or the designated representative. The COTP or a designated representative will inform the public of the enforcement periods and changes through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), 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 section 3(f) of 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 location of the safety zone. Vessel traffic will have alternate routes of navigation to reach their desired destinations. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule allows vessels to seek 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 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 the establishment of a safety zone that will prohibit entry within 440 yards north and 440 yards south of vessels and machinery being used for bridge construction operations. It is categorically excluded from further review under paragraph L60(c) of 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 call or email the person listed in the FOR FURTHER INFORMATION CONTACT section to coordinate protest activities so that your message can be received without jeopardizing the safety or security of people, places, or vessels.

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

On February 4, 2022, VA published a proposed rule in the Federal Register (87 FR 6456) to revise its medical regulations to establish the Pilot Program on Graduate Medical Education and Residency (PPGMER) in §§ 17.243 through 17.248 of title 38, Code of Federal Regulations (CFR). The proposed rule provided a framework to establish additional medical residency positions at certain covered facilities, consistent with the John S. McCain III, Daniel K. Akaka, and Samuel R. Johnson VA Maintaining Internal Systems and Strengthening Integrated Outside Network Act of 2018 (the Act), Public Law (Pub. L.) 115-182. Section 403 of the Act, codified as a note to section 7302 of title 38 United States Code (U.S.C.), establishes parameters for VA to determine the covered facilities in which residents will be placed (including prioritization of certain covered facilities such as those operated by an Indian Tribe or tribal organization), and authorizes VA to pay resident stipends and benefits as well as certain startup costs of new residency programs when residents are placed in such programs. VA provided a 60-day comment period.

On March 25, 2022, prior to the end of the 60-day comment period, VA published a second proposed rule (87 FR 17050) to extend the comment period by 90 days to end on July 5, 2022, to ensure tribal stakeholders were aware of the proposed rule and had sufficient time to provide meaningful input. On March 30, 2022, VA sent a letter to tribal leaders and tribal health program leadership to inform them of the rulemaking and to provide information for a virtual information session for tribal leaders on April 19, 2022, and a virtual tribal consultation on May 10, 2022. The transcripts from those events are available as part of this rulemaking docket on www.regulations.gov.

VA received 19 comments on the proposed rule from four large professional medical organizations, six tribes and tribal organizations, and numerous members of the public. All 19 comments were supportive of the rule, and we thank the commenters for their thoughtful and detailed feedback. We address the substantive recommendations and clarify certain aspects about the program below. We adopt the proposed rule as final with two substantive changes and one minor technical change as described in more detail below.

Section 17.243, as proposed, provided a broad overview of the authority for the PPGMER as well as general description of the function and scope of the PPGMER. One commenter recommended revising § 17.243 to include a description from the regulatory impact analysis that accompanied the proposed rule of the “numerous benefits the program will offer to both veterans and non-veterans” and the explanation of how the PPGMER will “fulfill the VA's broader missions.” The commenter stated that including this information in the purpose and scope at 38 CFR 17.243 would “strengthen the VA's argument for both the compelling need and the statutory authority of this regulation.” Because the purpose and scope section is a broad overview of the authority for the PPGMER, not a detailed explanation of the many benefits it may provide, we make no changes to the rule based on this comment.

Section 17.245, as proposed, listed the covered facilities in which residents may be placed under the PPGMER, consistent with section 403(a)(2) of the Act. Multiple commenters recommended VA add additional facilities to the covered facilities explicitly listed in § 17.245. In particular, they suggested the inclusion of Rural Health Clinics, rural training sites, “non-VA facilities with ACGME-accredited GME programs in non-contiguous areas,” Urban Indian Organization facilities, and consortia of Indian Health Service, Tribal, and Urban Indian Organization (“I/T/U”) facilities. The commenters stated that the inclusion of these additional covered facilities would improve access to health care for either underserved populations and/or individuals in rural locations.

We make no changes to the rule based on these comments. As proposed, the language in § 17.245(f) already allows VA to consider those types of facilities as covered facilities for the purposes of the PPGMER. The language proposed by VA to describe the six categories of covered facilities in § 17.245(a) through (f) is almost identical to the language Congress used to describe the covered facilities in section 403(a)(2)(A) through (F) of the Act. The first five paragraphs of both the statute and the regulation enumerate five specific categories of health care facilities that are considered covered facilities for purposes of the PPGMER. Both authorities then provide a sixth and final category allowing VA to consider any other health care facilities deemed by VA to be appropriate for participation.

As stated in the proposed rule, the language of 38 CFR 17.245(f) provides VA the ability to place residents in a variety of facilities without curtailing the discretion given to VA in section 403(a)(2)(F) of the Act. Explicitly listing the five facilities suggested by the commenters as additional covered facilities in 38 CFR 17.245 does not provide additional flexibility beyond what is provided in paragraph (f). VA intends to use the inclusive authority of paragraph (f) to the maximum extent possible, which will allow for potential resident placements at all facilities meeting the intent of the pilot program; we do not anticipate placing limitations on which facilities may be considered. Therefore, further specificity in the regulation does not substantively impact whether these five additional categories of facilities may be deemed appropriate covered facilities by VA.

Prior to addressing certain comments on proposed §§ 17.246 through 17.248 that concern the placement of residents under the PPGMER, we first clarify VA's role in such placements under both its traditional graduate medical education (GME) programming and the new PPGMER. In administering traditional GME programming, VA forms relationships with non-VA institutions that sponsor GME programs (most often medical schools or teaching hospitals), and it is those sponsoring institutions that provide the residents that would be available for placement in VA facilities. The same would be true for the PPGMER.

VA, therefore, does not control the pool of participating educational programs or available residents, although VA does assess the requirements for traditional GME placements under 3 U.S.C. 7302(e) to determine the best placement locations for such residents in VA facilities, and VA will do similarly for the PPGMER in accordance with the provisions in 38 CFR 17.246 and 17.247. VA in effect then does not place residents but does provide for resident positions to be filled in VA facilities under its traditional GME programming and will similarly provide for resident positions to be filled in covered facilities as defined in § 17.245 under the PPGMER.

Section 17.246, as proposed, established factors that VA would consider when determining in which covered facilities residents would be placed under the pilot, consistent with section 403(a)(4) of the Act. We received multiple comments requesting modifications and additions to the consideration factors for placement of residents found in 38 CFR 17.246(a). Paragraphs (a)(1) through (6) of § 17.246 enumerate six specific factors VA will consider in determining the clinical need for health care providers before determining resident placements. These six factors use almost identical language to the language used in section 403(a)(4)(A) through (G) of the Act. Additionally, the final factor listed in 38 CFR 17.246(a)(7) gives VA the ability to consider any other criteria important in determining which covered facilities are not adequately serving area veterans, consistent with section 403(a)(4)(G) of the Act.

We considered each comment related to 38 CFR 17.246(a) and address each individually below. However, we make no changes to 38 CFR 17.246(a) due to the flexibility provided in paragraph (a)(7), which equips VA to consider all other important criteria not otherwise specifically listed in paragraphs (a)(1) through (a)(6) when determining resident placement (and further provides a non-exhaustive list of such other criteria as examples in (a)(7)(i) and (ii)). VA intends to use the broad consideration permitted by paragraph (a)(7), along with the six specific factors in paragraphs (a)(1) through (6), to ensure that every covered entity submitting a proposal for resident placement receives consideration to the maximum extent authorized by section 403(a)(4) of the Act.

§ 17.246(a)(1). One commenter recommended that the term “general practitioners and specialists” be changed to “primary care physicians and other specialists.” This commenter also requested that, when determining the ratio of veterans to VA providers under this paragraph, VA calculate separate ratios for internal medicine and for family medicine. The commenter stated that the term “primary care physicians and specialists” would be inclusive of family medicine practitioners who provide women's health care and young adult care and are well-positioned to serve the entire veteran population, while internal medicine focuses exclusively on adult medicine. We do not make changes based on this comment. We believe the term “general practitioners” captures the category of “primary care physicians” suggested by the commenter, and further, we would not want to unduly restrict consideration only to “primary care physicians,” which would be in conflict with the clear language of the statute as stated in section 403(a)(4)(A) of the Act. We also do not believe that further distinguishing the ratios of primary care providers between internal medicine and family medicine will have a significant impact on the success of the PPGMER, although any important criteria related to these distinctions may be considered under 38 CFR 17.246(a)(7).

§ 17.246(a)(1)(i). Two commenters expressed concern with VA's decision to use “county” to define a “standardized geographic area” for the placement factors enumerated in § 17.246(a)(1) and (2). One commenter believed that using “county” as the standard would not account for “truly remote areas such as non-contiguous states.” This commenter did not offer a recommendation for an alternate standard, but emphasized that Hawaii has unique healthcare challenges in a non-contiguous area with a high population of Native Hawaiians and Pacific Islanders and would like VA to include them to the extent authorized by law. Another commenter asked VA to apply a standard similar to the one used to designate a health professional shortage area (HPSA) under 42 U.S.C. 254e(a)(1), “which need not conform to the geographic boundaries of a political subdivision and which is a rational area for the delivery of health services,” as justification for removing the requirement to rely on geographic area based on county in this paragraph.

VA believes that a “county” can both account for truly remote areas and serve as a “rational area for the delivery of health services” in line with the standard established in 42 U.S.C. 254e(a)(1). Further, a “county” is a simple standard in the context of § 17.246(a)(1) and (2) to provide clarity to covered facilities submitting proposals as well as to VA in evaluating proposals. As stated in the proposed rule, the factors in 38 CFR 17.246(a)(1) and (2) that use the “county” standard are only two of six enumerated factors VA will consider in determining the clinical need for health care providers in an area. VA may therefore consider all other important criteria using the authority in paragraph (a)(7) to ensure consideration of these commenters' concerns, to include being in a non-contiguous State. We make no change to the rule based on these comments.

§ 17.246(a)(3). One commenter requested that VA “draw upon a combination of resources beyond the OIG [Office of Inspector General] report” to assess whether the specialty of a provider is included in the most recent staffing shortage determination in 38 CFR 17.246(a)(3). We make no changes to the rule based on this comment. The language used in the regulation for this factor is almost identical to the language in section 403(a)(4)(C) of the Act. Additionally, the OIG report has consistently been the manner in which VA determines its yearly staffing shortages and we have no reason to believe this data will be insufficient. VA may further consider all other important criteria using the authority of 38 CFR 17.246(a)(7), including any relevant information derived from sources beyond the OIG report.

§ 17.246(a)(5). One commenter stated that HPSA designations may not be an adequate measure of the clinical need for health care providers in a non-contiguous area. The commenter specifically requested that VA use its authority under section 403(a)(4)(G) of the Act to grant special allowance for non-contiguous areas to be considered as an important criterion for determining resident placement. We make no change to the rule based on this comment. The HPSA standard used in 38 CFR 17.246(a)(5) is directed by section 403(a)(4)(E) of the Act. However, as mentioned previously, 38 CFR 17.246(a)(7) provides VA the ability to consider the unique situation of all covered facilities submitting proposals, including the clinical need for health care providers in a non-contiguous area. The HPSA standard in § 17.246(a)(7) will not limit VA's ability to consider non-contiguous areas when determining resident placement.

Additional Specific Criteria. Two commenters suggested VA add additional consideration factors when determining the placement of residents. One commenter recommended that VA explicitly include “the accessibility of gender and sexual orientation services” to the “other criteria” in § 17.246(a)(7). Another commenter recommended we add “availability of culturally sensitive healthcare options” and “ongoing healthcare shortages at a covered facility.” Because these factors may be considered using the authority in 38 CFR 17.246(a)(7), we make no changes to the rule to explicitly include them.

Consistent with section 403(a)(5) of the Act, § 17.246(b), as proposed, established that there would be a prioritized placement of at least 100 residents under the PPGMER. In the proposed rule, we clarified that VA would interpret the term “residents” to refer to the unique, individual physicians participating in the PPGMER and would not interpret the term “residents” to refer to each individual residency position (or “slot”) in which an individual physician participating in the PPGMER would be placed. We further explained that multiple PPGMER participants could occupy a single residency position while individually counting toward the priority placement mandate. Multiple commenters expressed disagreement with our proposed interpretation, stating VA should interpret “residents” to mean “residency positions” and should aim to place more than 100 individual physicians into these priority placements. The commenters expressed concern that VA's interpretation in the proposed rule was indicative of VA's intention only to place 100 individual physicians and no more.

We make no changes to the rule based on these comments. The term “resident” is commonly understood as a reference to a unique, individual person in the medical context, as Merriam-Webster defines “resident” (in the medical context) to mean a physician serving a residency. See Merriam-Webster Dictionary Online, “resident,” www.merriam-webster.com. This definition aligns with VA's interpretation that in the medical context, “resident” refers to the individual physician participating in a residency program. As we noted in the proposed rule, interpreting “residents” to refer to the unique, individual physicians participating in the PPGMER, not the residency positions themselves, is also consistent with a plain reading of section 403(a)(5) of the Act. That plain reading, both on its own and when using the aforementioned medical definition of “resident”, supports VA's decision to consider priority placement of “no fewer than 100 residents,” not 100 resident positions. Counting the unique, individual physicians who are placed in covered facilities given priority is the most logical way to ensure we meet Congressional intent.

We emphasize that we do not interpret anything in section 403 of the Act nor this rulemaking to limit how many unique, individual physicians may serve in covered facilities given priority in placements. That is, VA may exceed the minimum requirement for priority in placements in the PPGMER.

We received a related comment requesting that VA “reserve” a minimum of ten percent of resident positions created by the PPGMER for Indian Health Service and tribal health care facilities. We make no change to the rule based on this comment. As an initial matter, it is unclear from the comment whether the ten percent would be ten percent of the minimum 100 residents placed in prioritized facilities under section 403(a)(5) of the Act, or ten percent of the total resident positions created by the PPGMER. Regardless, we do not read any authority in section 403 of the Act allowing VA to reserve a percentage of residents for a particular covered facility. Subsection (a)(5) is the sole provision in section 403 of the Act related to prioritization of resident placement in particular covered facilities. While it does not expressly require VA to reserve any percentage of resident placement to Indian Health Service and tribal care facilities, we note that three of the four enumerated categories of covered facilities in which no fewer than 100 residents must be placed are those operated by the Indian Health Service, an Indian tribe, or a tribal organization.

We further believe that regulating additional criteria in § 17.246(b) to place no fewer than 100 residents under section 403(a)(5) the Act would be arbitrary and unnecessarily restrictive because the need for residents among the four types of prioritized facilities could shift over the life of the PPGMER, and VA's selection of facilities for resident placement will be based on information VA receives pursuant to the request for proposal (where that information will vary each cycle that VA issues the request for proposal).

Section 17.246, as proposed, did not specify any particular weighting of consideration factors for placement of residents under the PPGMER. We received multiple comments stating VA should specify the weighting to be given to each consideration factor for placement of residents. Some commenters believed that VA should be transparent about how it will weigh factors and another commenter stated that VA's decision directly contradicts Congressional intent to give priority to placements in covered facilities operated by the Indian Health Service, an Indian Tribe, a tribal organization, or located in communities designated as undeserved. We make no changes based on these comments. The consideration factors and priority in placements listed in § 17.246 are a restating of the factors listed in section 403(a)(4) and (5) of the Act, and section 403 of the Act does not otherwise establish any weighting of the factors. As stated in the proposed rule, weighting is not further included in the regulatory text itself so that VA maintains flexibility to adjust the relative importance of each consideration factor throughout the duration of the PPGMER. Consistent with 38 CFR 17.247(a)(1), each request for proposal will describe the specific consideration factors that will be used to evaluate responses, along with the relative importance of each factor.

Because this is a pilot program, it is imperative that VA retain the ability to make crucial changes from year to year, addressing the outcome and lessons learned from prior resident placements and accounting for any changes in the medical and educational landscape. The decision not to include weighting in the regulation ensures VA can fully meet the intent of the PPGMER.

Section 17.247, as proposed, stated that a request for proposal (RFP) would be issued by VA Central Office to VA health care facilities announcing opportunities for residents to be placed in covered facilities and to have costs paid or reimbursed in accordance with § 17.248. The proposed rule further stated that VA health care facilities, in collaboration with covered facilities, would submit responses to the RFP directly to VA Central Office. Multiple commenters stated that establishing a process where the RFP is issued directly to VA health care facilities, and subsequently entrusting those facilities to announce the RFP and collect responses from potential covered facilities, could prevent consideration of facilities that do not currently have an affiliate relationship with VA. The commenters recommended that VA publicly announce the RFP and allow proposals to be submitted directly by covered facilities.

We agree that the RFP process contemplated in the proposed rule could limit VA's ability to reach the facilities intended for participation the PPGMER. Therefore, we will change proposed § 17.247(a), which states that “VA Central Office will issue a request for proposal (RFP) to VA health care facilities to announce opportunities for residents to be placed in covered facilities and to have costs paid or reimbursed under § 17.248” and remove the phrase “to VA health care facilities,” so the sentence states that “VA Central Office will issue a request for proposal (RFP) to announce opportunities for residents to be placed in covered facilities and to have costs paid or reimbursed under § 17.248.” This change will ensure there is no limitation on how VA Central Office may issue the RFP.

We make two similar changes to clarify that covered facilities will submit responses to the RFP directly to VA Central Office. We will change proposed § 17.247(b), which states that “VA health care facilities, in collaboration with covered facilities, will submit responses to the RFP to VA Central Office” and remove the phrase “VA health care facilities, in collaboration with” so the paragraph states that “covered facilities will submit responses to the RFP to VA Central Office.” We also change proposed paragraph (c), which states that “consistent with paragraph (a) of this section, VA Central Office will evaluate responses to the RFP from VA health care facilities and will determine those covered facilities where residents may be placed and costs under § 17.248 are paid or reimbursed” and remove the phrase “from VA health care facilities” so it states, “consistent with paragraph (a) of this section, VA Central Office will evaluate responses to the RFP and will determine those covered facilities where residents may be placed and costs under § 17.248 are paid or reimbursed.”

These changes to § 17.247 ensure that all potential covered facilities may be considered for participation in the PPGMER and alleviate any burden on VA health care facilities to serve as an intermediary to announce, collect, and submit responses to the RFP to VA Central Office. VA believes these changes to the RFP process address the commenters' concerns, meet the intent of the PPGMER to reach underserved areas, and clarify that the PPGMER is not a public funding opportunity or grant program.

Section 403(a)(6) of the Act authorizes VA to pay the proportionate cost of stipends and benefits for residents participating in the PPGMER. In addition to stipends and benefits, if a covered facility establishes a new residency program and is selected for PPGMER participation, section 403(b) of the Act authorizes VA to reimburse certain initial costs associated with establishing that program. The statutory provisions related to these costs are codified and further clarified in 38 CFR 17.248.

Multiple commenters requested that VA amend the regulation to allow covered facilities with established residency programs to be eligible for reimbursement of costs associated with program operation. Specifically, these commenters requested VA cover expenses such as incremental costs for additional residents or slots, costs associated with expanding an existing GME program, costs for a “wide range of necessities” in operating residency programs, and costs that support tribes in attracting high quality providers (and setting aside a tribal allocation for this purpose).

We make no change to the rule based on these comments. The statutory authority is clear—unlike section 403(a)(2)(F) and (a)(4)(G), which provide VA the authority to consider “such other” covered facilities and consideration criteria when determining resident placements, the cost provisions in section 403(a)(6) and (b) of the Act are finite. Congress has not authorized VA to expand payment or reimbursement of costs beyond those expenses specifically enumerated in statute.

Additionally, one commenter suggested that VA offer scholarships to residents participating in the PPGMER. We do not believe VA has authority under section 403 of the Act to offer any type of PPGMER-specific scholarship to residents placed under the PPGMER. PPGMER costs related to support of residents (as opposed to support of new residency programs) are provided in section 403(a)(6) of the Act, which limits payments to only stipends and benefits for residents placed under the PPGMER program.

Additionally, one commenter provided recommendations for how VA should execute funding principles during administration of the PPGMER. Although these suggestions are administrative in nature and do not directly impact the regulation, we address each to provide further information to stakeholders. The commenter suggested VA should fund actual costs, rather than a predetermined amount per resident; should make awards of no less than five years in duration; and should allow participation in any other Federal GME program if no costs were duplicated among the funding agencies. While not specifically stated, we believe these recommendations are related to the reimbursable expenses permitted for new residency programs in accordance with 17.248(b)(1) (since the commenter stated these expenses are “above and beyond” the stipends and benefits permitted under 17.248(a)). First, section 403(b) of the Act provides specific and limited authority for the types of expenses that can be reimbursed under the PPGMER. VA will treat the PPGMER equitably with its existing GME programming and will not exceed VA's established maximum amounts for these types of payments under any existing GME agreements. Second, the authority for the PPGMER ends in 2031, which would provide a very limited window to make awards no less than five years in duration. Finally, participation in the PPGMER will not preclude participating in other Federal GME programs provided no costs are duplicated among the funding agencies. We make no changes based on these comments.

Multiple commenters provided input related to the reporting requirement contained in section 403(c) of the Act requiring VA to provide yearly reports to Congress on the implementation of the PPGMER. While these reports will be submitted by VA directly to Congress, the data used to compile these reports must be collected by the covered facilities and residents participating in the PPGMER.

One commenter requested that VA ensure that reporting requirements are not burdensome and only include data required by section 403(c) of the Act. Two commenters requested that VA explicitly include any reporting requirements in regulation, and one of those commenters also requested that VA outline how it will store the collected data. One commenter further requested that VA include three questions for evaluation of the pilot program in the final regulation, specifically: (1) was the PPGMER successful in accomplishing a predetermined goal; (2) does the PPGMER provide increased access for veterans to comprehensive primary care and needed specialty care; and (3) are the physicians trained under the PPGMER continuing to provide access to veterans after training, and in areas of greatest need? We thank these commenters for their feedback, but we make no changes to the rule based on these comments. VA intends to collect only the data explicitly required by section 403(c) of the Act and will provide those statutory requirements in the RFP, which is in line with the commenter's suggestion to only request data required by section 403(c) of the Act and would not be more burdensome than required. VA will not include additional questions evaluating the PPGMER in regulation, as it would be unnecessary. The aim of the Paperwork Reduction Act (PRA) is to reduce the total amount of paperwork burden the Federal government imposes on private businesses and citizens, and VA does not want to add any additional burden when we do not believe the commenter's suggested questions would provide additional value in evaluating the PPGMER. VA will use only the reporting requirements stated in the Act. Additionally, VA will not provide information on data storage in regulation because requirements for the handling of Federal records are contained in 36 CFR chapter XII, subchapter B, parts 1220 through 1234, and further detailed in VA Directive 6300, Records Information and Management (September 21, 2018). Further information on data collection and the estimated paperwork burden for the PPGMER is outlined in the PRA section of this rulemaking.

Additionally, one commenter pointed out that VA did not outline a plan for data collection in the proposed rulemaking. After publication of the proposed rule, VA published a Federal Register notice detailing the information collection related to this rulemaking. See 87 FR 65852 (November 1, 2022). That Federal Register notice is available as part of this rulemaking docket on www.regulations.gov.

One commenter provided extensive feedback on the regulatory impact analysis (RIA) associated with the rulemaking. Much of the commenter's input focused on the methodology and costing used to formulate the RIA, and did not relate to the regulatory framework proposed by VA. However, the commenter stated that the RIA provided information on the benefits of the PPGMER and how it will fulfill VA's broader mission, which should be included in the purpose and scope in 38 CFR 17.243. We thank the commenter for this feedback but make no changes to the rule. It would be unnecessary to describe the PPGMER's potential benefits in regulation, and VA will keep the purpose and scope focused on the framework of the rulemaking. Regarding the commenter's input on the RIA itself, the RIA details the anticipated need for rulemaking and sets out the assumptions and methodology used to determine the estimated financial impact of the PPGMER and the associated rulemaking. This estimate was created using regular VA business practices for its current GME programming.

We received multiple comments that we believe warrant clarification. Most importantly, multiple comments urged VA to conduct a tribal consultation prior to publishing a final rule. As mentioned at the beginning of this rulemaking, VA extended the public comment period by 90 days in order to conduct both an information session with tribal leaders and a full tribal consultation as required by VA policy and Executive Order 13175. We received comments from six tribes and tribal organizations, and all of the input we received was carefully considered as part of this final rulemaking.

Many commenters seemed to have a general misunderstanding that the PPGMER was focused on increasing access to medical care for veterans specifically. We reiterate that the focus of this program is on the placement of residents who will provide medical care, not on the specific demographics of the individuals who will receive medical care from such residents. Neither the regulation nor section 403 of the Act contain any criteria or curtailments regarding the individuals eligible to receive medical care from residents participating in the PPGMER.

While 38 CFR 17.245(a) allows for resident placements at a VA health care facility consistent with section 403(a)(2)(A) of the Act, we do not anticipate using the PPGMER to supplement the resident positions permanently authorized under VA's existing GME authority. Instead, we intend to prioritize placements at non-VA facilities outlined in 38 CFR 17.245(b) through (f). While we believe it is possible that a veteran could end up receiving medical care from a resident participating in the PPGMER, we imagine this situation would occur at a non-VA facility and involve a veteran eligible for health care through another (non-VA) source.

Additionally, some comments indicated a misunderstanding that VA is involved in the actual selection and placement process of individual residents for participation in the PPGMER. One commenter stated that VA should clarify how residents are selected for participation, one commenter requested VA fill positions with rural and American Indian/Alaska Native residents, and one commenter provided recommendations for how to better incentivize participation in the program.

As stated in the proposed rule, residents apply to and are hired directly by GME institutions, which are most often medical schools or teaching hospitals. VA forms relationships with non-VA institutions sponsoring GME programs, and it is those sponsoring institutions that will provide residents to participate in the PPGMER. VA does not select residents for its GME programming authorized under 38 U.S.C. 7302, and VA will not deviate from that process in the administration of the PPGMER. While VA maintains an affiliate relationship with certain GME institutions, placement of residents at VA and non-VA facilities lies solely within the discretion of the affiliate institution, not VA. Once VA has selected the covered entities where residents will be placed, those affiliate institutions will select individual residents to fill those PPGMER resident positions.

One commenter provided multiple recommendations related to the actual substance of the training residents participating in the PPGMER will receive. Consistent with section 403 of the Act, the regulation mentions training only in reference to the standard medical educational process and in referencing certain reimbursable costs for new residency programs. Because the substantive training of residents is beyond the scope of this rulemaking, we do not specifically address these comments.

One commenter asked for clarification as to what VA considers “medically underserved.” VA must consider five or more factors under section 401 of the Act, one of which is “whether the local community is medically underserved.” Under 38 CFR 17.246(a)(4), VA will consider whether the local community of a covered entity is designated as “underserved,” and both the statute and the regulation state that VA will make the “underserved” determination using criteria developed under section 401 of the Act. The determination of whether a VA facility is underserved is led by VA's Partnered Evidence-Based Policy Resource Center (PEPReC). Each year PEPReC, in coordination with VA's Office of Veterans Access to Care and various program offices, uses intricate statistical modeling to generate a list of potentially underserved VA facilities to help local and national leaders provide better access to care for veterans. Further detailed information on the methodology and model variables used to make this determination is available on PEPReC's website at www.peprec.research.va.gov under “Our Projects.”

We received multiple comments requesting VA take certain actions in conjunction with the PPGMER. While these comments are not within the scope of the rulemaking itself, we want to acknowledge and briefly address the thoughtful input provided by the commenters. We note that while these comments are administrative in nature, they could be appropriate for inclusion in a covered facility's proposal.

We received multiple comments urging VA to support residency programs at covered facilities already in existence, to include tribal-affiliated residency programs. We make no changes based on these comments. While there is no preference for existing programs over new programs in the regulation or in section 403 of the Act, we believe existing residency programs at covered facilities will be strong candidates for PPGMER resident placements, and tribal-affiliated covered facilities will receive priority in placements under 38 CFR 17.246(b).

One commenter urged VA to consider how we can provide long-term support for small and new residency programs after completion of the pilot program. We make no changes based on this comment. Once the pilot concludes, VA may only rely on its existing GME authority to fund resident salary and benefits for residents placed in VA facilities. Certain additional costs, such as VA's share of accreditation fees, may be reimbursed using an Educational Cost Contract between VA and the sponsoring institution. However, the authority in section 403 of the Act is not intended to provide “long-term support” as suggested by the commenter.

One commenter suggested VA collaborate with IHS and tribal health facilities directly to “determine specialty specific needs for medical residents” to better serve tribes, and another commenter suggested VA engage the VA Advisory Committee on Tribal and Indian Affairs to develop and implement the PPGMER, especially the reimbursement mechanism. We make no changes based on these comments. VA plans to work through its Office of Tribal and Government Relations (OTGR) and the VA Advisory Committee on Tribal and Indian Affairs to ensure widest dissemination of the RFP to tribal stakeholders, including IHS and tribal health facilities.

One commenter urged VA to “consider recent successes in residency programs at urban facilities as an indicator of the need and impact residency programs have in urban AI/AN [American Indian/Alaska Native] communities.” Another commenter requested VA collaborate directly with and increase funding to GME programs with high rates of AI/AN graduates. We make no changes based on these comments. VA will use the statutory criteria to prioritize locations for resident placements under 38 CFR 17.246(b), which would include urban AI/AN facilities operated by IHS, an Indian tribe, or a tribal organization.

One commenter wanted VA to provide specific guidance on how rural communities will be targeted, and another commenter similarly urged VA to expand the pilot in ways that will support the training of more physicians in rural communities. We make no changes based on these comments. VA will use the statutory criteria to prioritize locations for resident placements under 38 CFR 17.246(b), which would include facilities located in the same areas as VA facilities designated as underserved under 38 CFR 17.246(b).

Finally, one commenter requested that VA provide a public report to inform future policymaking. The commenter suggested that the report contain information about the PPGMER such as the VA health care facilities that submitted proposals, the covered facilities chosen for resident placements, the participating GME affiliates, and the specialties of residents participating in the PPGMER. We make no changes based on this comment. VA intends to make certain PPGMER information available on the Office of Academic Affiliations website ( www.va.gov/oaa ).

VA makes one minor technical change to the definition of “VA health care facility” in 38 CFR 17.244 to remove the capitalization of “Veteran,” changing the term to “veteran.” This change maintains consistency of the term's usage throughout these and other VA regulations.

Executive Order 12866 (Regulatory Planning and Review) directs agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 (Executive Order on Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in Executive Order 12866 of September 30, 1993 (Regulatory Planning and Review), and Executive Order 13563 of January 18, 2011 (Improving Regulation and Regulatory Review). The Office of Information and Regulatory Affairs has determined that this rulemaking is a significant regulatory action under Executive Order 12866, as amended by Executive Order 14094. The Regulatory Impact Analysis associated with this rulemaking can be found as a supporting document at www.regulations.gov.

The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act (5 U.S.C. 601 through 612). The residents who will be placed in covered facilities and have certain stipends and benefits paid for by VA are individuals and not small entities. To the extent that any covered facilities are small entities, there is no significant economic impact because the rulemaking only permits VA's reimbursement of certain start-up costs associated with new residency programs. Additionally, there is no funding opportunity for which covered facilities may apply to be considered and otherwise no economic gain or loss for covered facilities associated with this rule. Therefore, pursuant to 5 U.S.C. 605(b), the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604 do not apply.

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

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

This rule includes provisions constituting collections of information under the Paperwork Reduction Act of 1995 that require approval by OMB. Accordingly, pursuant to 44 U.S.C. 3507(d), VA is submitting a copy of this rulemaking action to OMB for review. The proposed rule did not include a PRA notice, and the 60-day notice was published separately in the Federal Register on November 1, 2022 (Vol. 87, No. 210, pages 65852-65853). VA did not receive any public comments on the proposed information collection in response to this notice. OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. If OMB does not approve the collection of information as requested, VA will immediately remove the provisions containing a collection of information or take such other action as is directed by OMB.

Participants in the PPGMER must collect and provide VA with certain programmatic data to enable VA to report to Congress on the pilot program, as required by statute, until the program terminates on August 7, 2031. This information would be collected by the residents placed in covered facilities under the PPGMER and their GME sponsoring institutions. The sponsors themselves will determine the best method for collection of the necessary data depending on their own resources and staffing. The information to be collected will include required elements, such as number of patients seen per day by each resident placed in a covered facility under the PPGMER, for the annual report on the pilot program submitted to Congress by VA.

Title: Physician Resident Data Collection.

• Summary of collection of information: This collection of information is used to determine the number of patients seen by physician residents each day/month under the PPGMER, pursuant to § 17.243. The information would be collected by residents placed in covered facilities under the PPGMER.

• Description of the need for information and proposed use of information: This information is needed to calculate the total number patients seen by residents placed in covered facilities under the PPGMER.

• Description of likely respondents: Participating residents.

• Estimated number of respondents per year: 100.

• Estimated frequency of responses per year: 1 time per year.

• Estimated average burden per response: 6 hours.

• Estimated total annual reporting and recordkeeping burden: 600 hours.

• Total estimated cost to respondents per year: VA estimates the total annual cost to respondents will be $23,006. The mean hourly wage for a resident is $38.34 (for data collection). The estimated wage information was taken from VA's internal data systems, using average salary data for physician residents in post-graduate years 1 to 3.

Title: GME Sponsor Annual Data Consolidation.

• Summary of collection of information: This collection of information is used to consolidate physician resident data and compile an annual report to Congress, pursuant to § 17.243. The GME sponsoring institutions will collect the data and provide it to VA for inclusion in the report to Congress.

• Description of the need for information and proposed use of information: This information is needed to provide data for the annual report to Congress.

• Description of likely respondents: GME sponsoring institutions.

• Estimated number of respondents per year: 10.

• Estimated frequency of responses per year: 1 time per year.

• Estimated average burden per response: 120 hours.

• Estimated total annual reporting and recordkeeping burden: 1,200 hours.

• Total estimated cost to respondents per year: VA estimates the total annual cost to respondents will be $30,708. The mean hourly wage for a health information technologist is $25.59 (for data consolidation and reporting). The estimated wage information was taken from the Bureau of Labor Statistics from the following website: https://www.bls.gov/oes/current/oes_nat.htm.

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).

Denis McDonough, Secretary of Veterans Affairs, signed and approved this document on September 14, 2023, and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs.

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

This document announces that, on September 25, 2023, OMB approved the information collection requirements relating to the E-Rate rules contained in the Commission's Order, FCC 23-56, published at 88 FR 55410, August 15, 2023. The OMB Control Number is 3060-0806. The Commission publishes this document as an announcement of the effective date of the rules. If you have any comments on the burden estimates listed below, or how the Commission can improve the collections and reduce any burdens caused thereby, please contact Nicole Ongele, Federal Communications Commission, 45 L Street NE, Washington, DC 20554. Please include the OMB Control Number, 3060-0806, in your correspondence. The Commission will also accept your comments via email at PRA@fcc.gov.

To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to fcc504@fcc.gov or call the Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), the Commission is notifying the public that it received OMB approval on September 25, 2023, for the information collection requirements contained in 47 CFR 54.503(c)(2)(i)(B) and 54.504(a)(1)(ii) published at 88 FR 55410, August 15, 2023. Under 5 CFR part 1320, an agency may not conduct or sponsor a collection of information unless it displays a current, valid OMB Control Number.

No person shall be subject to any penalty for failing to comply with a collection of information subject to the Paperwork Reduction Act that does not display a current, valid OMB Control Number. The OMB Control Number is 3060-0806.

The foregoing notice is required by the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, and 44 U.S.C. 3507.

The total annual reporting burdens and costs for the respondents are as follows:

OMB Control Number: 3060-0806.

OMB Approval Date: September 25, 2023.

OMB Expiration Date: November 30, 2024.

Title: Universal Service—Schools and Libraries Universal Service Program, FCC Forms 470 and 471.

Form Number: FCC Form 470 and FCC Form 471.

Respondents: State, local or tribal government institutions, and other not-for-profit institutions.

Number of Respondents and Responses: 43,000 respondents; 67,100 responses.

Estimated Time per Response: 3.5 hours for FCC Form 470 (3 hours for response; 0.5 hours for recordkeeping; 4.5 hours for FCC Form 471 (4 hours for response; 0.5 hours for recordkeeping).

Frequency of Response: On occasion and annual reporting requirements, and recordkeeping requirement.

Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in sections 1, 4(i), 4(j), 201-205, 214, 254, and 403 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201-205, 218-220, 254, 303(r), 403 and 405.

Total Annual Burden: 273,950 hours.

Total Annual Cost: No Cost.

Needs and Uses: The Commission received approval from OMB for this information collection. On July 21, 2023, the Commission released the Schools and Libraries Universal Service Support Mechanism, Federal-State Joint Board on Universal Service, and Changes to the Board of Directors of the National Exchange Carrier Association, Inc. Report and Order in CC Docket Nos. 02-6, 96-45, and 97-21; FCC 23-56 (Order) amending E-Rate rules. This information collection addresses program certifications in the Schools and Libraries Universal Service Description of Services Requested and Certification Forms 470 (E-Rate FCC Form 470) and 471 (E-Rate FCC Form 471), and makes other non-substantive changes to certain fields to the E-Rate FCC Form 471. Collection of the information on FCC Forms 470 and 471 is necessary so that the Commission and USAC have sufficient information to determine if entities are eligible for funding pursuant to the schools and libraries support mechanism, to determine if entities are complying with the Commission's rules, and to prevent waste, fraud, and abuse. In addition, the information is necessary for the Commission to evaluate the extent to which the E-Rate program is meeting the statutory objectives specified in section 254(h) of the 1996 Act, and the Commission's performance goals established in the E-Rate Modernization Order and Second E-Rate Modernization Order.

On December 29, 2021, NHTSA published a final rule that established FMVSS No. 227, “Bus Rollover Structural Integrity,” (86 FR 74270, Docket No. NHTSA-2021-0088). The purpose of this safety standard is to enhance the rollover structural integrity of over-the-road buses (motorcoaches) regardless of GVWR, and other buses with a GVWR greater than 11,793 kg (26,000 lb). Issued pursuant to the Moving Ahead for Progress in the 21st Century Act (MAP-21), this final rule requires covered buses to provide a “survival space” in a rollover test to protect the occupants from possible collapse of the bus structure around them. This final rule also prohibits emergency exits from opening in the rollover test to reduce the likelihood of ejection and requires no part of the vehicle originally outside the survival space pretest to enter the survival space during testing.

The test adopted in FMVSS No. 227 by the December 2021 final rule is based on the complete vehicle rollover test of United Nations Economic Commission for Europe Regulation 66 (ECE R.66), “Uniform Technical Prescriptions Concerning the Approval for Large Passenger Vehicles with Regard to the Strength of their Superstructure,” ECE R.66. 1 The test simulates a real-world rollover crash of a large bus. The test bus is placed on a tilting platform that is 800 mm (24 inches) above a smooth and level concrete surface. One side of the tilting platform along the length of the bus is raised at a steady rate of not more than 5 degrees/second until the vehicle becomes unstable, rolls off the platform, and impacts the concrete surface below. During this rollover test, FMVSS No. 227 requires there be no intrusion into the “survival space” by any part of the vehicle outside the survival space, except for minute objects weighing less than 15.0 grams, such as pebbles of glazing, bolts, or screws, which do not pose an unreasonable risk to safety for occupants. Additionally, emergency exits must not open during the movement of the tilting platform or as a result of the impact of the vehicle on the impact surface.

This final rule applies to high-occupancy vehicles, which was Congress's focus in the Motorcoach Enhanced Safety Act, part of MAP-21, 2 due to an unreasonably high involvement in fatal rollovers. After accounting for Electronic Stability Control and seat belt use in these bus types, we estimate this rule will save 2-3 lives per year. The material and fuel costs per vehicle range from approximately $2,200 to $5,400. The cost per equivalent life saved is estimated to range from $2.48 million (15 percent seat belt usage) to $6.38 million (90 percent seat belt usage).

The agency received petitions for reconsideration of the December 29, 2021, final rule from five respondents: Van Hool, New Flyer of America Inc. (NFA), ABC Companies (ABC), School Bus Safety Advocates (SBSA), and DEVCO Design and Development (DEVCO). The issues raised by the petitioners are summarized below.

The final rule applies to over-the-road buses (OTRBs) regardless of GVWR and buses other than OTRBs (non-OTRBs) with a GVWR greater than 11,793 kg (26,000 lb) with the following exceptions: school buses, school bus derivative buses, transit buses, prison buses, and perimeter seating buses. Several commenters petitioned NHTSA to reconsider the types of buses that are subject to this final rule. SBSA requested that the rule include all medium-size buses (buses with a GVWR greater than 4,536 kg (10,000 lb) and less than or equal to 11,793 kg (26,000 lb)). 3 DEVCO also requested that tour buses be included, since it believes most tour buses are less than 26,000 lb and would therefore be excluded from the final rule. NFA requested NHTSA to clarify and refine the definition of transit bus to include physically identical buses designed, built, and marketed as transit buses, but sold to private entities or Federal agencies. Van Hool and ABC requested NHTSA to exclude privately owned non-OTRB that are equivalent in design to transit buses (with low floor construction and allowance for standing passengers).

The final rule does not expressly specify requirements related to floor or seating system strength. SBSA petitioned NHTSA to include floor strength requirements in FMVSS No. 227 and DEVCO requested including seating system strength to further control the survival space.

The final rule requires that no part of the vehicle which is originally outside the survival space shall intrude into the survival space during the movement of the tilting platform or resulting from impact of the vehicle on the impact surface, except for items separated from the bus with a mass less than 15.0 grams. Van Hool and ABC petitioned that this mass limit is too low and should be increased. Van Hool and ABC also requested permitting laminated glazing to enter into the survival space, regardless of its mass.

The final rule outlines the ballasting procedure to prepare the bus for the rollover test in section S6.2.5. Van Hool and ABC petitioned that this procedure is not well-defined and should include more details such as where load packages will be placed, how much the load packages will weigh, where the center of gravity of each load package will be positioned, and whether any of the load packages will be restrained.

The final rule specifies a compliance date of 3 years after publication of the final rule for FMVSS No. 227 as per MAP-21. 4 Van Hool and ABC requested a lead time of 5 years, which, they stated, would allow the industry to cope with financial hardship and supply chain delays resulting from the COVID pandemic. Van Hool and ABC also argued that the additional lead time would allow them to synchronize with traditional development cycles of new OTRBs to avoid excessive development peaks as the industry recovers from the pandemic driven economic downturn in the next few years.

Three respondents petitioned NHTSA to adjust the applicability of the final rule, specifically regarding the definition of transit buses. Van Hool, ABC, and NFA pointed out that under the current definition, buses that are manufactured as transit buses but sold to entities that are not State or local governments (or operated on behalf of State or local governments) are not considered transit buses. In this document, “transit-type buses” means buses that have features of transit buses but that are sold to entities that are not State or local governments (or operated on behalf of State or local governments). Some examples provided by NFA of transit-type buses that would not be excluded from the final rule are National Park Service buses, private campus buses, 5 and buses sold to the General Services Administration for use on military bases. NFA stated these bus types do not fit the definition for transit bus because they are not used “for public transportation provided by, or on behalf of, a State or local government . . . .” Van Hool added that “(d)ue to the low floor construction of these non-OTRBs and the fact that many passengers are standing inside the vehicle . . . we see a lot of complications in order to have FMVSS No. 227 fulfilled.” NFA petitioned NHTSA to adjust the definition of transit bus to include buses purchased by these entities. Further, NFA noted these buses are often the same bus models purchased by State and local government agencies for public transportation, and are being used for similar fixed route, low speed service. NFA stated their “low speed, and frequent stop duty cycle” usage means they should be held to the same rollover standards as transit buses purchased by State and local government agencies for public transportation.

NFA noted that NHTSA calculated compliance costs in the August 6, 2014, notice of proposed rulemaking (NPRM) (79 FR 46090) and final rule under the assumption that some bus manufacturers are already building their buses to conform to ECE R.66, which results in reduced costs to comply with FMVSS No. 227 due to their similar testing methods. NFA stated there is no reason to believe any transit bus manufacturer would be manufacturing transit-type buses to comply with ECE R.66. Since they would need to develop a new design, the petitioners stated this would result in a significant cost increase for the manufacturers of transit buses to comply with FMVSS No. 227, compared to the calculations in the Final Regulatory Evaluation (FRE) and final rule. 6

Agency Response: Based on the reasons outlined in the paragraphs below, the agency agrees in part with the requests of NFA, Van Hool, and ABC. Transit buses operated by or on behalf of Federal agencies such as the U.S National Park Service (NPS) and the General Services Administration (GSA) are likely to be operated in similar low risk driving patterns when compared to transit buses operated by or on behalf of State or local governments. The agency does not have enough data to conclude whether privately owned or operated transit-type buses operate under these same low risk driving patterns. Therefore, NHTSA will amend the transit bus definition to additionally include only buses that are operated by or on behalf of the Federal government. Any transit-type bus that is sold to operators not affiliated with a Federal, State, or local government will still need to comply with FMVSS No. 227.

NHTSA's proposal to apply FMVSS No. 227 to high-occupancy vehicles was based on NHTSA's and Congress's concern about the involvement of high-occupancy vehicles in fatal rollover crashes. Furthermore, NHTSA generally intended the final rule to cover the same buses covered in the agency's November 25, 2013, final rule that required lap/shoulder seat belts for each passenger seating position in over-the-road buses (FMVSS No. 208, “Occupant crash protection,” 78 FR 70416). The agency's general view in the FMVSS No. 227 final rule was that FMVSS No. 227 should apply to those buses with seat belts, so that a survival space could be provided to belted occupants. Transit buses were excluded from FMVSS No. 227 for the same reason they were excluded from the belt requirement. Based on the agency's analysis of the Fatality Analysis Reporting System (FARS) data, the bus type with the lowest percentage of fatalities for all buses with a GVWR greater than 26,000 lb was the transit bus. 7

As stated in the final rule, FMVSS No. 227 will ensure that belted passengers will be significantly protected against unreasonable risk of injury in frontal crashes and significantly protected against the risk of ejection in rollovers. Hand-in-hand with the seat belt rule, FMVSS No. 227 enhances the safety of these belted passengers by providing a “survival space” in a rollover, a space where the belted occupants are protected from intruding structures such as a collapsing roof or a detached luggage rack. The benefits of FMVSS No. 227 are maximized when implemented in the same buses that are equipped with seat belts. The seat belt requirements in FMVSS No. 208 for large buses provided a means for belted bus occupants to remain within the survival space in a crash. Transit buses are not required to be equipped with seat belts in the absence of a safety need for the belts, and they are likewise not required to comply with the structural integrity requirements of FMVSS No. 227 in the absence of a safety need warranting coverage by the standard.

The definition of “transit bus” in the FMVSS No. 227 final rule is “a bus that is equipped with a stop-request system sold for public transportation provided by, or on behalf of, a State or local government and that is not an over-the-road bus.” This definition is also used in both FMVSS Nos. 208, “Occupant crash protection,” and FMVSS No. 136, “Electronic stability control systems for heavy vehicles.”

NHTSA is denying the petition based on available use information and crash data. The exclusion of transit buses from FMVSS No. 227 is based on the safety record of buses used as transit buses. NHTSA acknowledges that there are private entities operating the same style buses that are used by public transit agencies, but “transit buses” are excluded because of data reflecting the lower risk of involvement in rollovers given, among other matters, the fixed-route nature of their use and how their travel is characterized by frequent bus stops. Based on the information the agency has received from manufacturers, 8 private entities make up approximately 10 percent of large transit-type bus sales, meaning the vast majority of transit-type buses on American roads are operated by or on behalf of State or local governments. The data the agency possesses indicate that the number of fatalities resulting from transit-type bus rollover crashes is lower than the number of fatalities from OTRBs. After analyzing these data and researching a number of State and local transit bus routes, the agency concluded in the final rule that public transit agencies typically operate transit buses in urban areas at low speeds over fixed routes with frequent stops, which likely explains why fatalities are lower relative to other large bus types as observed over the past 20 years. Additionally, the fact that State and local governments operate a vast majority of transit-type buses further explains why the risk of fatal rollover crashes is generally low for transit-type buses, as an overwhelming majority of transit-type buses are operated on low speed, fixed route, frequent stop service by trained drivers familiar with the routes.

On the other hand, privately owned or operated bus services may use transit-type buses for higher risk driving practices that deviate from the typical low speed, fixed route, frequent stop service. When analyzing use by State and local governments, the agency accessed and analyzed route descriptions on local and State transit authorities' websites. The agency simply does not have access to that kind of information for buses used by private entities. Without sufficient data about typical operating practices of private operators, NHTSA cannot confirm whether the risk of a fatal rollover crash is as low as it is for the operating environment of public transportation provided by or on behalf of State or local governments. Excluding all transit-type vehicles from compliance with FMVSS No. 227 would not be in the best interest of safety since these private operators may use the buses for higher risk driving than the typical public transportation service provided by or on behalf of State or local governments.

Based on sound inferences made from the data, the agency can say with confidence that the rollover fatality risk is low when a transit-type bus is being operated by or on behalf of a State or local government. Without sufficient, specific use-based data, the agency cannot say the same about transit-type buses operated by private entities. If sufficient data were provided to the agency showing private transit-type bus operators use the buses in the same low-risk manner, the agency would take it under consideration for future updates to FMVSS No. 227.

Conversely, there are data about transit-type bus use in National Parks that support NHTSA's partial granting of the request to consider buses sold to the Federal government as transit buses. NPS offers public transportation in the form of shuttle buses at many National Parks. These buses are often used to transport passengers throughout the parks and to neighboring park-and-ride locations or visitor centers. 9 10 11 12 13 These applications are typically on fixed routes at low speeds. Buses operated by the NPS are not likely to be used for any purposes other than their intended shuttle routes. Further, NHTSA would consider transportation provided to patrons of a National Park to be public transportation as National Parks are open to the general public. However, buses operated by NPS, which is a Federal agency, or its contractors, are not operated “by, or on behalf of, a State or local government.” These buses are often operated by contractors on behalf of the NPS, so an amendment to include “Federal” in the transit bus definition is warranted to include these NPS buses as transit buses.

As mentioned by petitioner NFA, GSA purchases buses for various uses, including transit-type buses for use on military bases. The GSA's Ground Transportation Services provide time-definite pickup and delivery of government personnel in a variety of applications. 14 According to NFA, they expect to sell transit-type buses to the GSA “for lease to various federal agencies, as on military bases or national parks.” The most likely use for a transit-type bus on a military base would be operating a bus on fixed routes at low speeds with frequent stops, which is similar to the use by public transportation agencies in other urban areas. The agency acknowledges that it is possible that the military may use transit-type buses for purposes other than the fixed route style service listed above, but the agency did not uncover any data indicating higher rates of rollover crashes for military operated transit-type buses. Additionally, NHTSA explicitly states that no standard applies to a vehicle manufactured for, and sold directly to, the Armed forces of the United States in conformity with contractual specification. 15 Because the regulations are clear when it comes to regulating vehicles produced for use by the military, the agency believes including Federal government in the transit bus definition is consistent with NHTSA's regulations and the Safety Act.

In their petition for reconsideration, NFA challenged NHTSA's cost estimates in the FRE based on the number of “non-exempt transit buses.” Specifically, NFA stated that NHTSA underestimated the costs to comply with FMVSS No. 227 because the FRE did not include costs incurred by transit bus manufacturers to update their “non-exempt transit buses” to meet the structural integrity requirements. 16

NHTSA developed the cost estimations in the FRE to determine the costs that would result from updating the applicable buses to comply with the requirements of FMVSS No. 227. Since transit buses are excluded from compliance with FMVSS No. 227, they were not included in the cost estimations. NHTSA did not include cost estimations in the FRE for updating bus types other than the bus types that are required to comply with FMVSS No. 227. As discussed in the FRE, NHTSA estimated a market size of 2,200 buses sold annually that are applicable to FMVSS No. 227. These buses include all OTRBs and other large buses operated by both public and private entities. NFA estimated there are approximately 80 to 120 “non-exempt transit buses” per year that are sold to private entities or the Federal Government that would not fit the definition of transit buses. After revising the transit bus definition to include buses operated by or on behalf of the Federal Government, there are even fewer “non-exempt transit buses,” representing less than 3 to 5 percent of the estimated 2,200 applicable buses sold annually. Therefore, the cost estimations in the FRE do not need to be adjusted to account for transit buses as requested by NFA.

NFA stated in their March 16, 2023, memo, they estimate it would be cost-prohibitive for them to manufacture transit buses that comply with FMVSS No. 227 due in part to the small market size of “non-exempt transit buses.” Further, NFA stated that if their petition is not granted, they will not sell transit buses to private parties due to high engineering and tooling costs, and “[t]here is no reason to believe that other manufacturers will reach a different conclusion.” In response, if bus manufacturers decide not to reconfigure transit buses to comply with FMVSS No. 227, the buses would be noncomplying and could not be sold to private bus operators as currently configured. The buses do not provide the requisite level of safety that is needed to protect occupants of high occupancy vehicles from unreasonable risks of injury and fatality in crashes. When the buses are subject to non-transit use, the standard ensures the occupants are protected from risks associated with such use. However, there are alternative bus options for private entities seeking to purchase a high occupancy bus, such as a school bus derivative bus, 17 an over-the-road bus, or a bus type with a GVWR less than or equal to 26,000 lb. Additionally, it is possible that a transit-style bus manufacturer may decide to produce a new complying bus in the future, as meeting the standard is practicable. Given the safety need for FMVSS No. 227, NHTSA believes it is consistent with the Safety Act and the public interest for the agency not to establish a carve-out that could potentially exclude every non-OTRB as a “transit bus,” regardless of the party to whom the bus is sold. Therefore, NHTSA will not further adjust the definition of transit bus to include private operators.

SBSA requested NHTSA to increase the scope of applicability of the final rule to include all buses with a GVWR greater than 4,536 kg (10,000 lb). This increase in scope would result in the inclusion of all buses with a GVWR greater than 4,536 kg (10,000 lb), without any exclusion for school buses, transit buses, and prison buses. The agency's response to including transit buses is discussed above. SBSA's request was specifically to adjust the discussion in the summary of the final rule, without mentioning any of the details to be altered in the remainder of the preamble or the regulatory text. SBSA did not provide any data to support their request.

Agency Response: NHTSA's proposal to apply FMVSS No. 227 to high-occupancy vehicles was based on NHTSA's and Congress's concern about the involvement of high-occupancy vehicles in fatal rollover crashes. Furthermore, NHTSA intended the final rule to cover the same buses covered in the agency's November 25, 2013, final rule, which required lap/shoulder seat belts for each passenger seating position in over-the-road buses. The agency's view in the NPRM and final rule was that FMVSS No. 227 should apply to those buses with seat belts, so that a survival space could be provided to belted occupants.

In the final rule, NHTSA stated FMVSS No. 227 shall not be applicable to medium-size non-OTRB buses. NHTSA based the decision on an analysis of crash data for medium-size buses. Examining FARS data from 2006-2019, there were 136 occupant fatalities in non-OTRBs with a GVWR between 4,536-11,793 kg (10,000-26,000 lb), of which 50 fatalities were a result of 24 rollover crashes. Over the 14-year period between 2006-2019, medium-size buses were associated with an average of 1.7 rollover crashes per year and 3.6 fatalities due to rollover crashes per year. These numbers are small when compared to large buses. Comparing to large buses and OTRBs, data from FARS 2006-2019 shows there was an annual average of 3.7 fatal rollover crashes involving large buses (GVWR greater than 11,793 kg (26,000 lb)) (including OTRBs), resulting in an average of 11.9 occupant fatalities per year. Additionally, there are an estimated 2,200 large buses (including OTRBs) produced annually, compared to an estimated 16,000 medium-size buses produced annually. 18 Table 1 below summarizes these data.

SBSA did not provide any data or information with their petition requesting that new medium-size buses meet the rollover structural requirements of FMVSS No. 227. Therefore, the agency reiterates the conclusion stated in the final rule that the data do not support a finding of a safety need to warrant application of FMVSS No. 227 to medium-size buses. 19 For the reasons above and in the final rule, NHTSA denies the petition to extend FMVSS No. 227 to medium-size buses.

Although not specifically stated in their petition, SBSA implied that school buses also be included in the scope of FMVSS No. 227. School buses are already required to meet roof strength requirements stated in FMVSS No. 220, “School bus rollover protection” (49 CFR 571.220  20 ). NHTSA stated in the final rule for FMVSS No. 227 that since school bus derivative buses already meet the roof crush resistance requirements in FMVSS No. 220, it would be redundant to require those buses to also meet FMVSS No. 227. 21

DEVCO stated that only including buses with a GVWR greater than 26,000 lb excludes most tour buses from this rule. DEVCO requested NHTSA include these bus types in the applicability of FMVSS No. 227, but did not provide any data to support its request.

Agency Response: FMVSS No. 227 is applicable to all over-the-road buses, regardless of GVWR, as well as all large buses with a GVWR greater than 11,793 kg (26,000 lb), except school buses, school bus derivative buses, transit buses, and prison buses. Also excluded from FMVSS No. 227 are buses with 7 or fewer designated seating positions rearward of the driver's seating position that are forward-facing or can convert to forward-facing without the use of tools. The FARS database does not define or use the term “tour bus” in reference to a bus body type. 22 However, the FARS database does include a bus use category for “Charter/Tour.” The term “tour bus” is not explicitly defined and could be described as different types of buses in different contexts. An internet search for “tour buses” includes results of traditional motorcoaches, double decker buses, and open-top buses for sight-seeing tours. Traditional motorcoaches would be included within the scope of FMVSS No. 227 due to their categorization as an OTRB. Double decker buses are generally much heavier than standard buses. Listed GVWRs for Volvo, 23 Wright Bus, 24 and Guleryuz  25 double decker buses range from 18,100 kg to 26,300 kg (40,000 lb to 58,000 lb). Therefore, these would be included within the scope of FMVSS No. 227 due to their GVWR being greater than 11,793 kg (26,000 lb). As stated in the final rule, “(t)he standard would not apply to a level of a bus that does not have a permanent roof over the level, such as the upper level of a double-decker bus that does not have a permanent roof over the upper level.” However, any portion of an open-top bus that does have a permanent roof, for example, the lower level of a double-decker open-top bus, is subject to the requirements of FMVSS No. 227.

The other type of bus that could be described as a tour bus is a van-based bus or body-on-frame bus that is less than 26,000 lb. These bus types are not included in the scope of this final rule because they are neither OTRBs nor with a GVWR greater than 11,793 kg (26,000 lb). Due to the reasons discussed above, there is not a safety need to extend applicability to medium-size buses. Therefore, NHTSA does not find any need to adjust any criteria of applicability for bus types based on DEVCO's suggestions.

SBSA requested that FMVSS No. 227 include requirements for increased floor strength to improve safety. They stated that “[s]ince roof and wall strength is also applicable to floor strength for controlling the survival space, improved floor strength should be added.” SBSA did not provide any minimum strength requirements, suggested procedures, or data to justify their request. DEVCO requested that NHTSA modernize the seating systems in buses in order to control survival space not only during rollovers, but also in other types of bus crashes. To specify the recommended updates, DEVCO suggested adjustments to FMVSS No. 207, “Seating Systems,” to increase the scope of applicability to include all buses and seating orientations.

Agency Response: NHTSA is denying these requests. The agency agrees that both floor strength and seating system strength are an integral part of protecting occupants within a bus. However, the rulemaking did not include specific floor strength requirements in FMVSS No. 227, so SBSA's suggestion to add specific floor strength requirements appears beyond the scope of the issues appropriate for a petition for reconsideration. In any event, NHTSA believes there is no need for specific floor strength requirements as the current standard accounts for floor strength. Under the requirements of FMVSS No. 227 the entire bus shell must have sufficient strength to keep the sidewall and roof from intruding into the survival space during the rollover test. Specifically, this means the lower corners where the sidewall connects to the floor, the upper corners where the sidewall meets the roof, the floor, and the roof itself will contribute to the survival space of the bus during vehicle rollovers. Thus, as a practical matter, the test of FMVSS No. 227 addresses floor strength, and bus designers will have to ensure the floor is sufficiently strong to work with the strengthened bus roofs and side wall panels to provide the survival space required by the standard.

Regarding the request to strengthen seating systems, as stated in the final rule notice promulgating FMVSS No. 227, “NHTSA has decided that the primary purpose of this rulemaking is to establish a roof strength and crush resistance standard that improves the resistance of roofs to deformation and intrusion, i.e., by providing a survival space to occupants in rollovers.”  26 With that determination, the agency decided not to adopt proposed requirements that each anchorage of the seats not completely separate from its mounting structure in the test. DEVCO did not provide any data in its petition to argue against this determination. With regard to seatbacks, DEVCO's request to modify seating systems by requiring strengthened seatbacks for all buses and seat belts for school buses is not within the scope of the rulemaking. For these reasons, NHTSA is denying the request to adjust the final rule to further account for floor strength and seating systems based on SBSA's and DEVCO's comments.

Van Hool and ABC requested that NHTSA revisit the mass of an object that is allowed to enter the survival space during the rollover test. Van Hool commented that the fact that something as small as a plastic cap weighing 20 grams would cause a rollover test to fail is out of balance with the consequences of the failure. Additionally, Van Hool and ABC expressed that the 15-gram criterion is too severe and unbalanced with real life situations, due to the fact that small items weighing 15 grams or more “will cause no or minimal bodily harm to occupants.” Van Hool also stated that “(d)ue to the deformation of the upper body (of the vehicle) at impact, the glazing at the front and end of the vehicle cracks diagonally due to shear forces, often ejecting greater parts of glass than allowed by the 15-gram criterium.” Therefore, they requested NHTSA exclude laminated glass from the 15-gram criterion, increase the maximum allowed weight up to a “more realistic level,” and consider a separate test methodology to determine whether intrusion into the survival space causes a failure.

Agency Response: The ECE R.66 rollover test, the standard on which this final rule is based, specifies that no part of the vehicle that is outside the survival space at the start of the test shall enter the survival space during the test. There is no specification for minimum size, which implies any object entering the survival space, regardless of mass, would cause a bus to fail the minimum survival zone requirements of the test. NHTSA believes such would not be a practical requirement, since it is likely for the bus to have small broken pieces of glazing, nuts, bolts, screws, etc., entering the survival space during a bus rollover. Further, none of the aforementioned objects would be likely to cause serious injury to passengers during a rollover unless they were sufficiently heavy. Therefore, in the final rule, NHTSA adopted a test procedure that permitted objects to enter the survival space if each object weighs an amount that is not likely to cause injury to passengers.

The 15-gram criterion stemmed from the maximum allowable mass of glazing to be separated from the laminate during the 227 g (0.5 lb), 9.14 m (30 feet) ball drop impact test as defined in ANSI Z26.1-1996. 27 Referring to ANSI Z26.1 provided a method to quantify the weight of small pieces of glazing material that could be expected to separate after an impact. However, as Van Hool mentions in its petition, there are objects other than small fasteners and pieces of glazing that may enter the survival space which ought not result in the failure of the rollover test. These objects may have a greater mass than the 15.0 grams calculated based on shards of glass, but still would not present a risk of injury to the occupants.

The purpose of the requirement is to not allow items large enough to injure occupants, such as glazing panels, handrails, or luggage racks, or a sufficiently heavy portion of these items, to enter the survival space. 28 NHTSA has estimated the approximate mass of fasteners and plastic trim pieces, such as end caps, that are likely to be used in areas of a motorcoach subjected to the impact force during the rollover test. Most plastic end caps are constructed of low-density polyethylene (LDPE) and are offered in a wide range of sizes and styles. Based on the common offerings of online end cap manufacturers and the sizes and styles of handrails, luggage racks, or seat frames likely to require use of plastic end caps, NHTSA has determined that the largest end caps are generally 30 grams or less. Most non-structural bolts and screws used on the interior of a bus would be small and would have to shear off in order to enter the survival space. NHTSA estimates a large, unbroken bolt likely to be used in a bus interior to be no more than 45 grams. 29

In contrast, a hard object greater than this mass has the potential to harm bus occupants if it impacts them at sufficient velocity, which is foreseeable in a bus rollover event. Further, metal fittings or brackets are typically used to anchor sizable components such as handrails or stanchions to the bus structure. These fittings, depending on geometry and manufacturer, can have a mass from approximately 55 grams  30 to over 200 grams. If a heavier bracket or fitting such as this breaks off the bus structure, not only can it injure an occupant, but its failure significantly increases the risk of the more massive component, which the bracket or fitting secured, intruding into the survival space. Factoring in a 5-gram tolerance due to the variability in weights and the use of different brackets and fittings by bus manufacturers, NHTSA is amending the test procedure adopted in the final rule, and the amended test procedure will permit individual objects with a mass less than 60 grams (0.13 lb) to enter the survival space.

One of the purposes of this rule is to prevent injurious objects from entering the survival space. Objects less than 60 grams ( e.g., fasteners, small glazing pieces, broken pieces of plastic trim, plastic caps) that separate from the bus are not likely to cause injury to the bus occupants. Objects with a mass greater than or equal to 60 grams ( e.g., handrail securement brackets, metal fittings, large sections of glazing panels) that break away from the bus are much more likely to result in occupant injury, either by striking an occupant or by failing to keep the more massive component from entering the survival space. Thus, for the reasons stated above, NHTSA will adjust the regulatory text of the final rule to increase the mass limit from 15 grams to 60 grams.

We disagree with the request to exempt large pieces of laminated glazing from the small object weight limit for items entering the survival space. First, as explained above, the large pieces of laminated glazing are massive and would likely injure an occupant when they fell into the survival space. Second, a purpose of FMVSS No. 227 is to ensure that buses maintain their structural integrity in a rollover to better retain ejection mitigation glazing in a rollover. 31 Under Van Hool and ABC's petition, a manufacturer choosing to use laminated glazing for side or roof windows would not be required to keep those large heavy panes of glazing from entering the survival space or from popping out. Accordingly, NHTSA is denying this request.

Van Hool and ABC state “(t)he final rule has no unambiguous definition of the installation of additional loads inside a vehicle to bring the vehicle weight up to its GVWR . . . .” They request details for the ballasting during the rollover test procedure such as specific locations where load packages will be placed, how much the load packages will weigh, where the center of gravity of each load package will be positioned, and whether any of the load packages will be restrained. They requested that NHTSA add a more precise procedure for the loading of the bus up to its GVWR prior to performing the rollover test. Van Hool also requested load package weight be reduced to 20 percent of its original mass to compensate for the fixation of load packages.

Agency Response: Section S6.2 of the regulatory text contains the preparations and procedures for the bus prior to NHTSA performing the rollover test. Section S6.2.5 describes the ballasting procedure, including where the load packages are placed in the bus, how much each load package weighs, and how they are restrained to the seats and bus frame. This section answers each of the questions Van Hool and ABC presented about the ballasting procedure, except the precise location of the center of gravity for each load package. Under the current procedure's terminology, the physical sizes of the load packages are not defined. For example, the load packages could be steel plates placed horizontally in the seat, resulting in a lower center of gravity, or they could be weighted anthropomorphic ballasts (commercially available “water dummies”), resulting in a higher center of gravity. NHTSA indicated in both the final rule and NPRM that the method of ballasting or type of ballast used are not of importance, as those factors will not markedly alter the forces imposed on the vehicle structure or the seat anchorages during compliance testing, so long as the ballast is 68 kg (150 lb) at each designated seating position (DSP). Additionally, in other Federal motor vehicle safety standards, such as FMVSS No. 214 “Side impact protection,” NHTSA does not specify the type of ballast that must be used in the applicable test. Therefore, NHTSA is remaining consistent with other standards and testing procedures by not specifying the type of ballast that must be used in the compliance test, as the type of ballast used does not affect test outcome.

Van Hool and ABC expressed specific concerns that if the ballasts are not restrained to the bus structure during testing, the tests would be non-reproducible due to many uncertainties. 32 As described in the final rule regulatory text and preamble, 33 all ballasts must be securely attached to the seat frames in order to replicate the forces imparted to the seat anchorages during a crash. The ballasts should be restrained to the seat frames regardless of the type of ballast used, so long as the ballast weight, including any attachment mechanisms, is 68 kg (150 lb) at each DSP.

Regarding Van Hool's request to reduce the ballast weight to 20 percent of its original mass, NHTSA is denying this request. NHTSA responded to similar requests in the final rule (86 FR 74293-74294). NHTSA explained that, as discussed in the NPRM (79 FR 46106), an Australian study that utilized bus section testing and computer simulations estimated that 93 percent of a lap/shoulder belt-restrained occupant mass, 75 percent of a lap belt-restrained occupant mass, and 18 percent of an unrestrained occupant mass are effectively coupled to the vehicle structure during a rollover. Further, a European Commission sponsored study in 2003 found that the percentage of occupant mass coupled to the vehicle structure during a rollover is 90 percent for lap/shoulder belted occupants and 70 percent for lap belted occupants. Available studies now uniformly agree that more than 90 percent of the occupant mass is coupled with the bus during a rollover crash. Therefore, we do not find any need to adjust the final rule or ballasting procedure based on Van Hool's petitions for reconsideration.

NHTSA adopted a compliance date of 3 years after publication of the final rule for FMVSS No. 227. Van Hool and ABC requested a lead time up to 5 years to adjust their developmental processes to account for a more stringent set of requirements than the ECE R.66 rollover requirements, align design improvement times with existing developmental cycles for their buses, and avoid unnecessary development peaks. Van Hool and ABC believed that a longer lead time was needed due to financial hardship, supply chain delays, and increase in material cost during the pandemic.

Agency Response: NHTSA is denying this request. The 2021 final rule adopted the 3-year compliance date as required by MAP-21. MAP-21 (in section 32703(e)) directs that the rulemaking shall apply to all motorcoaches manufactured more than 3 years after the date on which the regulation is published as a final rule. NHTSA evaluated and proposed a 3-year compliance date in the October 2014 NPRM and adopted it in the December 2021 final rule. To enable manufacturers to certify to the new requirements as early as possible, optional early compliance with the standard is permitted.

NHTSA believes that manufacturers whose buses do not already meet ECE R.66 will need to make structural design changes to their large bus models either by changing the strength of the sidewall and glazing frame material or the material's physical properties or dimensions ( i.e., thickness or width). Per the results of our test program conducted in support of this rulemaking, newer buses may need stronger side pillars to meet the glazing retention requirements, and redesigned latch mechanisms on roof exits and side window exits to ensure that they do not release during the impact. However, Van Hool already manufactures buses for the European market, therefore Van Hool should already have a good foundation for the ECE R.66 requirements. Research and development time should be less for manufacturers who already have a solution developed for the ECE R.66 requirements. No other bus manufacturer requested an extension for the compliance date, including manufacturers who do not currently produce buses for the European market or comply with ECE R.66. NHTSA is not convinced by ABC and Van Hool's argument for a later compliance date due to financial hardship and supply chain delays during the COVID pandemic because no other manufacturer requested such an extension in the compliance date, even though they were also affected by the pandemic. We believe that any design and manufacturing changes to comply with FMVSS No. 227 can be done within 3 years. Therefore, NHTSA declines to extend the lead time for the final rule.

While reviewing the final rule, NHTSA noticed a section reference in the regulatory text that needs to be updated. During development of the final rule, paragraph S6.3 of the regulatory text was renamed S7. Subsequently, S6.3.1 through S6.3.6 were renamed S7(a) through S7(f). In S6.1.4, there is a reference to what was originally named S6.3.1 but was not updated to reference the newly named S7(a). The agency is correcting S6.1.4 to change a reference from S6.3.1 to S7(a).

The agency has considered the impact of this rulemaking action under E.O. 12866, E.O. 13563, and the Department of Transportation's administrative rulemaking orders and procedures. This rulemaking was not reviewed by the Office of Management and Budget under E.O. 12866, “Regulatory Planning and Review.” The rulemaking action has also been determined to be not of “special note to the Department” under DOT Order 2100.6A.

This document makes a minor adjustment to the definition of “transit bus,” and slightly revises the maximum allowable weight of objects intruding into the survival space during the rollover test. The minimal impacts of today's amendment do not warrant preparation of a regulatory evaluation.

The policy statement in section 1 of E.O. 13609 provides, in part: The regulatory approaches taken by foreign governments may differ from those taken by U.S. regulatory agencies to address similar issues. In some cases, the differences between the regulatory approaches of U.S. agencies and those of their foreign counterparts might not be necessary and might impair the ability of American businesses to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can also reduce, eliminate, or prevent unnecessary differences in regulatory requirements.

As mentioned in this preamble, the agency has considered regulatory approaches taken by foreign governments (namely, the European Union in ECE R.66) and decided to base FMVSS No. 227 on ECE R.66. In addition to the goal of reducing unnecessary differences in regulatory requirements between the U.S. and its trading partners, the agency has found the ECE R.66 test to be the most suitable test available for ensuring a minimum reasonable level of protection for passengers traveling in buses that are associated with the highest crash risk. While NHTSA has determined that it is not able to adopt the entirety of ECE R.66 and has adjusted the weight of objects allowed to enter the survival space, which is not in ECE R.66, the agency has explained its rationale for its decisions in the relevant sections of the December 29, 2021, final Rule (86 FR 74270).

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA) of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities ( i.e., small businesses, small organizations, and small governmental jurisdictions). The Small Business Administration's regulations at 13 CFR part 121 define a small business, in part, as a business entity “which operates primarily within the United States.” (13 CFR 121.105(a)). No regulatory flexibility analysis is required if the head of an agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The SBREFA amended the Regulatory Flexibility Act to require Federal agencies to provide a statement of the factual basis for certifying that a rule will not have a significant economic impact on a substantial number of small entities.

NHTSA has considered the effects of this rulemaking action under the Regulatory Flexibility Act. Per 13 CFR 121.201, the Small Business Administration's size standards regulations used to define small business concerns, manufacturers of the vehicles covered by this rule fall under North American Industry Classification System No. 336111, Automobile Manufacturing, which has a size standard of 1,000 employees or fewer. NHTSA estimates that there are 26 manufacturers of these types of vehicles in the United States (including manufacturers of motorcoaches, cutaway buses, second-stage motorcoaches, and other types of large buses covered by this rule). Using the size standard of 1,000 employees or fewer, we estimate that approximately 10 of these 26 manufacturers are considered small businesses.

I certify that this final rule will not have a significant economic impact on small entities. The amendments made to the original final rule do not directly result in any increased costs to the manufacturers. The amended transit bus definition results in fewer buses needing to comply with the final rule, but NHTSA believes the number of affected buses would be small. Increasing the mass limit of objects permitted to enter the survival space from 15 grams to 60 grams permits more fragments to enter the survival space, but the 60-gram limit still ensures that injurious items are not permitted in the survival space.

NHTSA has examined today's final rule pursuant to E.O. 13132 (64 FR 43255, August 10, 1999) and concluded that no additional consultation with States, local governments, or their representatives is mandated beyond the rulemaking process. The agency has concluded that the rule does not have sufficient federalism implications to warrant either consultation with State and local officials or preparation of a federalism summary impact statement. The rule does 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 the responsibilities among the various levels of government.”

NHTSA rules can have preemptive effect in two ways. First, the National Traffic and Motor Vehicle Safety Act contains an express preemption provision that when a motor vehicle safety standard is in effect under this chapter, a State or a political subdivision of a State may prescribe or continue in effect a standard applicable to the same aspect of performance of a motor vehicle or motor vehicle equipment only if the standard is identical to the standard prescribed under the chapter. 49 U.S.C. 30103(b)(1). It is this statutory command by Congress that preempts any non-identical State legislative and administrative law addressing the same aspect of performance.

The express preemption provision described above is subject to a savings clause under which “[c]ompliance with a motor vehicle safety standard prescribed under this chapter does not exempt a person from liability at common law.” 49 U.S.C. 30103(e). Pursuant to this provision, State common law tort causes of action against motor vehicle manufacturers that might otherwise be preempted by the express preemption provision are generally preserved. However, the Supreme Court has recognized the possibility, in some instances, of implied preemption of State common law tort causes of action by virtue of NHTSA's rules—even if not expressly preempted.

This second way that NHTSA rules can preempt is dependent upon the existence of an actual conflict between an FMVSS and the higher standard that would effectively be imposed on motor vehicle manufacturers if someone obtained a State common law tort judgment against the manufacturer—notwithstanding the manufacturer's compliance with the NHTSA standard. Because most NHTSA standards established by an FMVSS are minimum standards, a State common law tort cause of action that seeks to impose a higher standard on motor vehicle manufacturers will generally not be preempted. However, if and when such a conflict does exist—for example, when the standard at issue is both a minimum and a maximum standard—the State common law tort cause of action is impliedly preempted. See Geier v. American Honda Motor Co., 529 U.S. 861 (2000).

Pursuant to E.O. 13132, NHTSA has considered whether this rule could or should preempt State common law causes of action. The agency's ability to announce its conclusion regarding the preemptive effect of one of its rules reduces the likelihood that preemption will be an issue in any subsequent tort litigation.

To this end, the agency has examined the nature ( e.g., the language and structure of the regulatory text) and objectives of this final rule and does not foresee any potential State requirements that might conflict with it. NHTSA does not intend that this final rule preempt state tort law that would effectively impose a higher standard on motor vehicle manufacturers than that established by this rule. Establishment of a higher standard by means of State tort law would not conflict with the standard issued by this final rule. Without any conflict, there could not be any implied preemption of a State common law tort cause of action.

The UMRA of 1995 requires Federal agencies to prepare a written assessment of the costs, benefits and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local or tribal governments, in the aggregate, or by the private sector, of more than $100 million annually (adjusted annually for inflation, with base year of 1995). This final rule will not result in expenditures by State, local or Tribal Governments, in the aggregate, or by the private sector in excess of $100 million annually.

NHTSA has analyzed this final rule for the purposes of the NEPA. The agency has determined that implementation of this action will not have any significant impact on the quality of the human environment.

With respect to the review of the promulgation of a new regulation, section 3(b) of E.O. 12988, “Civil Justice Reform” (61 FR 4729, February 7, 1996) requires that Executive agencies make every reasonable effort to ensure that the regulation: (1) Clearly specifies the preemptive effect; (2) clearly specifies the effect on existing Federal law or regulation; (3) provides a clear legal standard for affected conduct, while promoting simplification and burden reduction; (4) clearly specifies the retroactive effect, if any; (5) adequately defines key terms; and (6) addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. This document is consistent with that requirement.

Pursuant to this Order, NHTSA notes as follows. The issue of preemption is discussed above. NHTSA notes further that there is no requirement that individuals submit a petition for reconsideration or pursue other administrative proceeding before they may file suit in court.

Under the PRA of 1995, a person is not required to respond to a collection of information by a Federal agency unless the collection displays a valid Office of Management and Budget (OMB) control number. This rulemaking action would not establish any new information collection requirements.

Under the NTTAA of 1995 (Pub. L. 104-113), all Federal agencies and departments shall use technical standards that are developed or adopted by voluntary consensus standards bodies, using such technical standards as a means to carry out policy objectives or activities determined by the agencies and departments.

Voluntary consensus standards are technical standards ( e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies, such as the International Organization for Standardization and the Society of Automotive Engineers. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

There are no voluntary consensus standards applicable to this final rule that have not been previously discussed in the December 29, 2021 final rule.

Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

• Have we organized the material to suit the public's needs?

• Are the requirements in the rule clearly stated?

• Does the rule contain technical language or jargon that isn't clear?

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

• Would more (but shorter) sections be better?

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

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

If you have any responses to these questions, please write to us with your views.

In consideration of the foregoing, NHTSA amends 49 CFR part 571 as follows:

The Regional Administrator of the Greater Atlantic Regional Office monitors Atlantic herring fishery catch in each Management Area based on vessel and dealer reports, state data, and other available information. Regulations at 50 CFR 648.201(a)(1)(i)(A) require that NMFS implement a 2,000 lb (907.2 kg) possession limit for herring for Area 1A beginning on the date that catch is projected to reach 92 percent of the sub-annual catch limit (ACL) for that area.

Based on vessel reports, dealer reports, and other available information, the Regional Administrator projects that the herring fleet will have caught 92 percent of the Area 1A sub-ACL by November 6, 2023. Therefore, effective 00:01 hr local time November 8, 2023, through December 31, 2023, a person may not attempt or do any of the following: Fish for; possess; transfer; purchase; receive; land; or sell more than 2,000 lb (907.2 kg) of herring per trip or more than once per calendar day in or from Area 1A.

Vessels that enter port before 00:01 hr local time on November 8, 2023, may land and sell more than 2,000 lb (907.2 kg) of herring from Area 1A from that trip, provided that catch is landed in accordance with state management measures. Vessels may transit or land in Area 1A with more than 2,000 lb (907.2 kg) of herring on board, provided that: The herring were caught in an area not subject to a 2,000 lb (907.2 kg) limit; all fishing gear is stowed and not available for immediate use; and the vessel is issued a permit appropriate to the amount of herring on board and the area where the herring was harvested.

Also effective 00:01 hr local time, November 8, 2023, through 24:00 hr local time, December 31, federally permitted dealers may not attempt or do any of the following: Purchase; receive; possess; have custody or control of; sell; barter; trade; or transfer more than 2,000 lb (907.2 kg) of herring per trip or calendar day from Area 1A, unless it is from a vessel that enters port before 00:01 hr local time on November 8, 2023 and catch is landed in accordance with state management measures.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

NMFS finds good cause pursuant to 5 U.S.C. 553(b)(3)(B) to waive prior notice and the opportunity for public comment because it is unnecessary, contrary to the public interest, and impracticable. Ample prior notice and opportunity for public comment has been provided for the required implementation of this action. The requirement to implement this possession limit was developed by the New England Fishery Management Council using public meetings that invited public comment on the measures when they were developed and considered along with alternatives. Further, the regulations requiring NMFS to implement this possession limit also were subject to public notice and opportunity to comment, when they were first adopted in 2014. Herring fishing industry participants monitor catch closely and anticipate potential possession limit adjustments as catch totals approach Area sub-ACLs. The regulation provides NMFS with no discretion and is designed for implementation as quickly as possible to prevent catch from exceeding limits designed to prevent overfishing while allowing the fishery to achieve optimum yield.

The 2023 herring fishing year began on January 1, 2023, and Management Area 1A opened to fishing on June 1, 2023. Data indicating that the herring fleet will have landed at least 92 percent of the 2023 sub-ACL allocated to Area 1A only recently became available. High-volume catch and landings in this fishery can increase total catch relative to the sub-ACL quickly, especially in this fishing year where annual catch limits are unusually low. If implementation of this possession limit adjustment is delayed to solicit prior public comment, the 2023 sub-ACL for Area 1A will likely be exceeded; thereby undermining the conservation objectives of the Herring Fishery Management Plan (FMP). If sub-ACLs are exceeded, the excess must be deducted from a future sub-ACL and would reduce future fishing opportunities. The public expects these actions to occur in a timely way consistent with the FMP's objectives. For the reasons stated above, NMFS also finds good cause to waive the 30-day delayed effectiveness in accordance with 5 U.S.C. 553(d)(3).

The annual management measures for the 2023 and early 2024 ocean salmon fisheries (88 FR 30235, May 11, 2023) govern the commercial and recreational fisheries in the area from the U.S./Canada border to the U.S./Mexico border, effective from 0001 hours Pacific Daylight Time (PDT), May 16, 2023, until the effective date of the 2024 management measures, as published in the Federal Register . NMFS is authorized to implement inseason management actions to modify fishing seasons, catch limits, and quotas as necessary to provide fishing opportunity while meeting management objectives for the affected species (50 CFR 660.409). Inseason actions in the salmon fishery may be taken directly by NMFS (50 CFR 660.409(a)—Fixed inseason management provisions) or upon consultation with the Chairman of the Pacific Fishery Management Council (Council), and the appropriate State Directors (50 CFR 660.409(b)—Flexible inseason management provisions).

Management of the salmon fisheries is divided into two geographic areas: north of Cape Falcon (NOF) (U.S./Canada border to Cape Falcon, OR), and south of Cape Falcon (SOF) (Cape Falcon, OR, to the U.S./Mexico border). The actions described in this document affect the NOF commercial salmon troll and recreational fisheries and SOF recreational fisheries, as set out under the heading Inseason Actions below.

Consultation with the Council Chairman on these inseason actions occurred on September 6, 2023, September 13, 2023, and September 19, 2023. These consultations included representatives from NMFS, Washington Department of Fish and Wildlife, Oregon Department of Fish and Wildlife, and California Department of Fish and Wildlife. Representatives from the Salmon Advisory Subpanel and Salmon Technical Team (STT) were also present. A Council representative was present on September 13, 2023, and September 19, 2023.

These inseason actions were announced on NMFS' telephone hotline and U.S. Coast Guard radio broadcast on the date of the consultations (50 CFR 660.411(a)(2)).

Description of the action: Inseason action #27 modifies the NOF commercial salmon troll fishery. In the area between the U.S./Canada border and Cape Falcon, the landing and possession limit is increased from 7 Chinook salmon to 15 Chinook salmon and 100 coho salmon per vessel per landing week (Thursday-Wednesday).

Effective dates: Inseason action #27 takes effect on September 7, 2023, at 12:01 a.m., and remains in effect until superseded.

Reason and authorization for the action: Inseason action #27 is necessary to provide access to available Chinook and coho salmon quota without exceeding the Chinook salmon guideline and in order to maximize catch of the available coho salmon quota. The NMFS West Coast Regional Administrator (RA) determined that this inseason action is necessary to meet management and conservation goals for the 2023-early 2024 management measures after considering the best available information on the 2023 abundance forecasts for Chinook salmon stocks, landings and effort patterns to date, anticipated fishery effort and projected catch, the timing of the action relative to the length of the season, and the other factors and considerations set forth in 50 CFR 660.409. This inseason action modified quotas and/or fishing seasons under 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #28 modifies the SOF recreational fishery from Cape Falcon to Humbug Mountain. This action increases the non-mark selective coho salmon quota in the September 1, 2023, through September 30, 2023, recreational fishery from 25,000 to 40,500 through an impact-neutral rollover of unused quota from the June-August mark selective coho salmon recreational fishery.

Effective dates: Inseason action #28 takes effect on September 13, 2023, at 3:30 p.m., and remains in effect until the end of the recreational non-mark selective coho salmon season on September 30, 2023, at 11:59 p.m.

Reason and authorization for the action: Authority for this impact-neutral rollover of unutilized quota is specified in the 2023 ocean salmon regulations (88 FR 30235, May 11, 2023). The SOF June-August mark selective coho salmon recreational fishery had a quota of 110,000 marked coho salmon. Total catches for the mark selective season were 20,874 coho salmon, leaving a balance of 89,126. The STT calculated that an impact-neutral rollover of the unutilized coho salmon quota would add 15,500 coho salmon from the June-August mark-selective period to the September non-selective coho salmon fishery quota of 25,500 for an adjusted quota of 40,500 coho salmon. The RA determined that this inseason action is necessary to meet management and conservation goals for the 2023-early 2024 management measures after considering the best available information on the 2023 abundance forecasts for coho salmon stocks, remaining quota, effects on coho conservation objectives and the other factors and considerations set forth in 50 CFR 660.409. This inseason action modified quotas and/or fishing seasons under 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #29 modifies the SOF recreational fishery from Cape Falcon to Humbug Mountain. The recreational non-mark selective coho salmon season is closed. The season remains open for a daily bag limit of one Chinook salmon.

Effective dates: Inseason action #29 takes effect on September 17, 2023, at 11:59 p.m., and remains in effect until superseded.

Reason and authorization for the action: Inseason action #29 is necessary to close the fishery to the retention of coho salmon catch to preserve the length of the season while avoiding exceedance of the coho salmon quota for this area. The RA determined that this inseason action is necessary to meet management and conservation goals for the 2023-early 2024 management measures after considering the best available information on the 2023 abundance forecasts for coho salmon stocks, landings and effort patterns to date, anticipated fishery effort and projected catch, the timing of the action relative to the length of the season, and the other factors and considerations set forth in 50 CFR 660.409. This inseason action modified recreational bag limits under 50 CFR 660.409(b)(1)(iii).

Description of the action: Inseason action #30 modifies the recreational salmon fishery from Cape Falcon to Humbug Mountain. This action increased the non-mark selective coho salmon quota from 40,500 to 42,500 through an impact-neutral rollover of a portion of the unused quota from the June-August mark selective coho salmon recreational fishery.

Effective dates: Inseason action #30 takes effect on September 19, 2023, at 4:30 p.m., and remains in effect until the end of the non-mark selective recreational salmon season on September 30, 2023, at 11:59 p.m.

Reason and authorization for the action: Authority for this impact-neutral rollover of unutilized quota is specified in the 2023 ocean salmon regulations (88 FR 30235, May 11, 2023). The SOF June-August mark selective coho salmon recreational fishery had a quota of 110,000 marked coho salmon. An impact-neutral rollover of the unutilized coho salmon was made on September 13, 2023 (see Inseason Action #28 ) adjusting the September quota to 40,500. The most recent catches for the mark selective season brought the season total to 28,885 coho salmon, leaving a balance of 11,615. The STT calculated that an impact-neutral rollover of a portion of the unutilized coho salmon quota would add an additional 2,000 coho salmon from the June-August period to the September non-selective coho salmon fishery quota of 40,500 for an adjusted quota of 42,500 coho salmon. Managers took into account the uncertainty in the catch to date in rolling over a portion of the unutilized coho quota to insure that catch did not exceed the overall 2023 coho quota for the SOF area. The RA determined that this inseason action is necessary to meet management and conservation goals for the 2023-early 2024 management measures after considering the best available information on the 2023 abundance forecasts for coho salmon stocks, landings and effort patterns to date, anticipated fishery effort and projected catch, the timing of the action relative to the length of the season, and the other factors and considerations set forth in 50 CFR 660.409. This inseason action modified quotas and/or fishing seasons under 50 CFR 660.409(b)(1)(i).

Description of the action: Inseason action #31 modifies the recreational salmon fishery in the area from Cape Falcon to Humbug Mountain. The fishery is open to retention of coho salmon. Daily bag limit of two salmon, but no more than one Chinook salmon. Beginning October 1, 2023, at 12:01 a.m., open only shoreward of the 40-fathom regulatory line.

Effective dates: Inseason action #31 takes effect on September 21, 2023, at 12:01 a.m., and remains in effect until superseded.

Reason and authorization for the action: Inseason action #31 is necessary to open the fishery to the retention of coho salmon and provide access to available Chinook and coho salmon quota without exceeding the Chinook salmon guideline and maximize catch of the available coho salmon quota. The RA determined that this inseason action is necessary to meet management and conservation goals for the 2023-early 2024 management measures after considering the best available information on the 2023 abundance forecasts for coho salmon stocks, landings and effort patterns to date, anticipated fishery effort and projected catch, the timing of the action relative to the length of the season, and the other factors and considerations set forth in 50 CFR 660.409. This inseason action modified recreational bag limits under 50 CFR 660.409(b)(1)(iii).

All other restrictions and regulations remain in effect as announced for the 2023 ocean salmon fisheries (88 FR 30235, May 11, 2023; 88 FR 44737, July 13, 2023; 88 FR 51250, August 3, 2023; 88 FR 53813, August 9, 2023; 88 FR 58522, August 28, 2023; 88 FR 65824, September 26, 2023) except as previously modified by inseason actions.

The states and tribes manage the fisheries in state waters adjacent to the areas of the U.S. exclusive economic zone (3-200 nautical miles; 5.6-370.4 kilometers) off the coasts of the States of Washington, Oregon, and California consistent with these Federal actions. As provided by the inseason notice procedures at 50 CFR 660.411, actual notice of the described regulatory actions was given, prior to the time the actions became effective, by telephone hotline numbers 206-526-6667 and 800-662-9825, and by U.S. Coast Guard Notice to Mariners broadcasts on Channel 16 VHF-FM and 2182 kHz.

NMFS issues these actions pursuant to section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act (MSA). These actions are authorized by 50 CFR 660.409, which was issued pursuant to section 304(b) of the MSA, and are exempt from review under Executive Order 12866.

Pursuant to 5 U.S.C. 553(b)(3)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. Prior notice and opportunity for public comment on this action was impracticable because NMFS had insufficient time to provide for prior notice and the opportunity for public comment between the time Chinook and coho salmon abundance, catch, and effort information were developed and fisheries impacts were calculated, and the time the fishery modifications had to be implemented in order to ensure that fisheries are managed based on the best scientific information available. As previously noted, actual notice of the regulatory action was provided to fishers through telephone hotlines and radio notifications. These actions comply with the requirements of the annual management measures for ocean salmon fisheries (88 FR 30235, May 11, 2023), the Pacific Salmon Fishery Management Plan (FMP), and regulations implementing the FMP under 50 CFR 660.409 and 660.411.

There is good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date, as a delay in effectiveness of this action would allow fishing at levels inconsistent with the goals of the FMP and the current management measures.