Subsequent to the publication of the final rule on February 28, 2023 (88 FR 12541), it was discovered that during the final review and editing of the final rule, a comma was moved in the first sentence of § 3601.106(a) introductory text that changed the meaning of the sentence. The document corrects the CFR to reflect the intended version of this paragraph.

Accordingly, the Department of Defense amends 5 CFR part 3601 by making the following correcting amendment:

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-04-13, Amendment 39-22360 (88 FR 20741, April 7, 2023) (AD 2023-04-13). AD 2023-04-13 applied to certain Dassault Aviation Model FALCON 2000EX airplanes. AD 2023-04-13 required revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations. The FAA issued AD 2023-04-13 to address reduced structural integrity of the airplane. AD 2023-04-13 specifies that accomplishing the revision required by paragraph (g) or (j) of that AD terminates the requirements of paragraph (g)(1) of AD 2010-26-05, Amendment 39-16544 (75 FR 79952, December 21, 2010), for Dassault Aviation Model FALCON 2000EX airplanes. This AD therefore continues to allow that terminating action.

The NPRM published in the Federal Register on August 29, 2023 (88 FR 59476). The NPRM was prompted by AD 2023-0100, dated May 11, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0100) (also referred to as the MCAI). The MCAI states that new or more restrictive airworthiness limitations have been developed.

In the NPRM, the FAA proposed to continue to require the actions in AD 2023-04-13. The NPRM also proposed to require revising the existing maintenance or inspection program, as applicable, to incorporate new or more restrictive airworthiness limitations, as specified in EASA AD 2023-0100. The FAA is issuing this AD to address reduced structural integrity of the airplane.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1721.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

EASA AD 2023-0100 specifies new or more restrictive airworthiness limitations for airplane structures and safe life limits.

This AD also requires EASA AD 2022-0136, dated July 6, 2022, which the Director of the Federal Register approved for incorporation by reference as of May 12, 2023 (88 FR 20741, April 7, 2023).

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

The FAA estimates that this AD affects 245 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

The FAA estimates the total cost per operator for the retained actions from AD 2023-04-13 to be $7,650 (90 work-hours × $85 per work-hour).

The FAA has determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although the agency recognizes that this number may vary from operator to operator. In the past, the agency has estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), the FAA has determined that a per-operator estimate is more accurate than a per-airplane estimate.

The FAA estimates the total cost per operator for the new actions to be $7,650 (90 work-hours × $85 per work-hour).

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A321-111, -112, -131, -211, -212, -213, -231, and -232 airplanes. The NPRM published in the Federal Register on September 6, 2023 (88 FR 60908). The NPRM was prompted by AD 2023-0074, dated April 5, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0074) (also referred to as the MCAI). The MCAI states that stress analysis results from A321 XLR certification and fatigue and damage tolerance harmonization have revealed that cracks may appear in the center wing box at frame 42 and slanted junction areas of the affected airplanes. Cracks may appear due to the high fatigue stress in affected areas.

In the NPRM, the FAA proposed to require a one-time inspection of the center wing box at frame 42 and slanted junction areas, and applicable corrective actions, if necessary, as specified in EASA AD 2023-0074. The FAA is issuing this AD to detect potential cracks in the center wing box at frame 42 and slanted junction areas. The unsafe condition, if not addressed, could affect the structural integrity of the fuselage.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1815.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

EASA AD 2023-0074 specifies procedures for one-time rototest and high frequency eddy current inspections for cracks of the center wing box rear lower spar junction area at frame 42; a rototest inspection for cracks of the frame 42 slanted beam connection; a detailed visual inspection of certain fasteners for damage; and applicable corrective actions. Corrective actions include obtaining and following instructions for crack repair and replacing damaged fasteners. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The FAA considers that this AD is an interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 657 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Deutsche Aircraft GmbH (Type Certificate Previously Held by 328Support Services GmbH; AvCraft Aerospace GmbH; Fairchild Dornier GmbH; Dornier Luftfahrt GmbH) Model 328-100 and 328-300 airplanes. The NPRM published in the Federal Register on September 14, 2023 (88 FR 63036). The NPRM was prompted by AD 2023-0065, dated March 20, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0065) (also referred to as the MCAI). The MCAI states that during a design review of the rudder control architecture, it was discovered that the rudder control rod could buckle during operation with one engine inoperative during take-off and landing phases. This condition, if not detected and corrected, could result in reduced control of the airplane.

In the NPRM, the FAA proposed to require visually inspecting the rudder control rod, performing a one-time functional check of the rudder control rod, performing corrective actions if necessary, and reporting the inspection results, as specified in EASA AD 2023-0065. The NPRM also proposed to limit the installation of affected parts under certain conditions. The FAA is issuing this AD to address the potential failure of a rudder control rod.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1881.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

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

EASA AD 2023-0065 specifies procedures for a functional check and general visual inspection (GVI) of the rudder control rod (measuring the length of the rudder control rod, inspecting for signs of bending, ensuring both rudder control rod ends are symmetrically adjusted, and ensuring the threads of the rod end fully cover both inspection holes). Depending on the inspection results, EASA AD 2023-0065 also specifies corrective action, including obtaining and following instructions if any discrepancy is identified. EASA AD 2023-0065 also requires reporting the inspection results to Deutsche Aircraft GmbH and limits the installation of affected parts under certain conditions.

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

The FAA considers that this AD would be an interim action. If final action is later identified, the FAA might consider further rulemaking then.

The FAA estimates that this AD affects 54 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

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

Background

The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Airbus SAS Model A330-223F and -243F airplanes. The NPRM published in the Federal Register on August 31, 2023 (88 FR 60157). The NPRM was prompted by AD 2023-0053, dated March 14, 2023, issued by EASA, which is the Technical Agent for the Member States of the European Union (EASA AD 2023-0053) (also referred to as the MCAI). The MCAI states that within the scope of WFD evaluations on Model A330-200 Freighter series airplanes, it was determined that the circumferential joint at Frame 58 (near the rear fuselage) is susceptible to WFD. WFD, if not corrected, may lead to crack initiation and undetected propagation, which could affect the structural integrity of the airplane.

In the NPRM, the FAA proposed to require a modification to reinforce the circumferential joints at Frame 58 and, if necessary, corrective action, as specified in EASA AD 2023-0053. The FAA is issuing this AD to address the unsafe condition on these products.

You may examine the MCAI in the AD docket at regulations.gov under Docket No. FAA-2023-1723.

The FAA received no comments on the NPRM or on the determination of the cost to the public.

The FAA revised paragraph (h)(3) of this AD to clarify that if any discrepancy other than cracking is found, operators must obtain instructions and accomplish those instructions accordingly. If cracking is found, operators must obtain instructions and repair the cracking before further flight. In the NPRM, the FAA inadvertently specified only cracking as a discrepancy; however, incorrect hole diameters are also a possible discrepancy.

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

EASA AD 2023-0053 specifies procedures for a modification (including rotating probe inspections for discrepancies and measurement of the maximum hole diameter at any point in the fastener hole bores on the circumferential joints) to reinforce the circumferential joints at Frame 58 and, if any discrepancies (cracking or measurements that are outside the acceptable hole diameters) are found, corrective action (contacting the manufacturer for instructions and accomplishing those instructions). This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

The compliance time for the replacement specified in this AD for addressing WFD was established to ensure that certain structure is replaced before WFD develops in airplanes. Standard inspection techniques cannot be relied on to detect WFD before it becomes a hazard to flight. The FAA will not grant any extensions of the compliance time to complete any AD-mandated service bulletin related to WFD without extensive new data that would substantiate and clearly warrant such an extension.

The FAA estimates that this AD will affect 6 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:

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

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

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

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

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it updates airport names and airspace descriptions. This update is administrative change and does not change the airspace boundaries or operating requirements.

Class D and Class E airspace are published in paragraphs 5000, 6002, 6004, and 6005 of FAA Order JO 7400.11, Airspace Designations and Reporting Points, incorporated by reference in 14 CFR 71.1 annually. 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 FAA Order JO 7400.11 update. FAA Order JO 7400.11H lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

This amendment to 14 CFR part 71 amends the Class D airspace, Class E surface airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace extending upward from 700 feet above the surface for Fort Novosel, Ozark, AL, and Fort Moore, Columbus, GA by updating each airport's name (formerly Fort Rucker and Fort Benning, respectively), as well as updating the descriptions by making editorial changes, replacing the term Notice to Airmen with Notice to Air Missions, and replacing the term Airport/Facility Directory with Chart Supplement in the appropriate descriptions. This action is an administrative change and does not affect the airspace boundaries or operating requirements; therefore, notice and public procedure under 5 U.S.C. 553(b) is unnecessary.

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 so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will 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 warrant the preparation of an environmental assessment.

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

The Drug Enforcement Administration (DEA) issues a temporary scheduling order  1 (in the form of a temporary amendment) to add the following six substances, including their optical and geometric isomers, salts, and salts of isomers, whenever the existence of such isomers and salts is possible, to schedule I under the Controlled Substances Act (CSA):

• Methyl 3,3-dimethyl-2-(1-(pent-4-en-1-yl)-1 H -indazole-3-carboxamido)butanoate (Other name: MDMB-4en-PINACA),

• Methyl 2-[[1-(4-fluorobutyl)indole-3-carbonyl]amino]-3,3-dimethyl-butanoate (Other names: 4F-MDMB-BUTICA; 4F-MDMB-BICA),

• N -(1-amino-3,3-dimethyl-1-oxobutan-2-yl)-1-(pent-4-en-1-yl)-1 H -indazole-3-carboxamide (Other name: ADB-4en-PINACA),

• 5-Pentyl-2-(2-phenylpropan-2-yl)pyrido[4,3-b]indol-1-one (Other name: CUMYL-PEGACLONE; SGT-151),

• Ethyl 2-[[1-(5-fluoropentyl)indole-3-carbonyl]amino]-3,3-dimethyl-butanoate (Other names: 5F-EDMB-PICA; 5F-EDMB-2201), and

• Methyl 2-(1-(4-fluorobenzyl)-1 H -indole-3-carboxamido)-3-methyl butanoate (Other name: MMB-FUBICA).

The CSA provides the Attorney General, as delegated to the Administrator of DEA (Administrator) pursuant to 28 CFR 0.100, with the authority to temporarily place a substance in schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b), if the Administrator finds that such action is necessary to avoid an imminent hazard to the public safety. 2 In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1) while the substance is temporarily controlled under section 811(h), the Administrator may extend the temporary scheduling for up to one year. 3

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable and contrary to the public interest. The Coast Guard was unable to publish an NPRM and hold a reasonable comment period for this rulemaking due to the emergent nature and logistical coordination of salvage operations. It is impracticable to publish an NPRM because we must establish this safety zone by December 2, 2023.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register . Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to remove the existing threat to the environment and safeguard against future potential threat to the environment as well as safety hazards associated with emergency salvage operations of the Navy P8 aircraft.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Honolulu (COTP) has determined that potential hazards associated with emergency salvage operations starting December 2, 2023, will be a safety concern for anyone within a 0.5 nautical mile radius of the Navy P8 aircraft. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone while salvage operations take place.

This rule establishes a safety zone from 7 a.m. until 6 p.m. on December 2, 2023, through December 10, 2023. The Coast Guard is establishing a 0.5 nautical mile radius temporary safety zone for navigable waters in Kaneohe Bay, HI encompassing the partially submerged Navy P8 aircraft. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters while the aircraft is being salvaged. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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 size, location, and duration, of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small, designated area of the navigable waters Kaneohe Bay of Oahu, Hawaii, where vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 and publish a Marine Safety Information Bulletin (MSIB) on Homeport about the zone.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 11 hours per day for 10 days that will prohibit entry within 0.5 nautical miles of vessels and machinery being used by personnel to salvage the Navy P8 aircraft. It is categorically excluded from further review under paragraph L60(d) 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:

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

On August 15, 2023, the Hood River Fireworks, LLC notified the Coast Guard that it will be conducting a fireworks display from 8 to 8:30 p.m. on December 31, 2023. The fireworks are to be launched from Hood River Spit, approximately 1,000 feet south of the Columbia River in Hood River, OR. In response, on November 2, 2023, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Safety Zone; Fireworks Display; Hood River, Hood River, OR (88 FR 75244). There we stated why we issued the NPRM and invited comments on our proposed regulatory action related to this fireworks display. During the comment period that ended December 4, 2023, we received 8 comments, that are discussed in section IV below.

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 the fireworks display that will impact navigation along the Hood River.

The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034. The Captain of the Port Sector Columbia River (COTP) has determined that potential hazards associated with the fireworks to be used in this December 31, 2023, display will be a safety concern for anyone within a 1,000-foot radius of the barge. The purpose of this rule is to ensure safety of vessels and the navigable waters in the safety zone before, during, and after the scheduled event.

As noted above, we received eight comments on our NPRM published November 2, 2023. Of them, six were in support of the proposed rule while the remaining two were unrelated to the establishment of the safety zone. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

This rule establishes a safety zone from 7:30 to 9 p.m. on December 31, 2023. The safety zone will cover all navigable waters within 1,000 feet of the fireworks launch site in Hood River, OR. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 to 8:30 p.m. fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.

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

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. 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 size, location, duration and time of day of the regulated area. The safety zone impacts approximately a 1,000-foot area at the intersection of the Columbia and Hood Rivers and is not anticipated to exceed 1.5 hours in duration. Thus, restrictions on vessel movement within that particular area are expected to be minimal. Moreover, under certain conditions vessels may still transit through the safety zone when permitted by the COTP. The Coast Guard will issue a Notice to Mariners about the zone, and the rule will allow 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 received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting 1.5 hours that will prohibit entry within 1,000 feet of a launch site in Hood River, OR. 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:

Background Purpose and Significance of Ozark National Scenic Riverways

Congress established Ozark National Scenic Riverways (the Riverways) in 1964 to conserve and interpret the scenic, natural, scientific, ecological, and historic values and resources within the Riverways, and to provide for public outdoor recreational use and enjoyment of those resources. 16 U.S.C. 460m. The Riverways includes portions of the Current and Jacks Fork rivers, encompassing 134 miles of clear, free-flowing, spring-fed waterways. The impressive hydrogeological character of the Riverways' karst landscape supports an amazing variety of natural features, including a spring system unparalleled in North America. The cave system is equally impressive with one of the highest densities of caves in any unit of the National Park System.

The Riverways lies within the Ozark Highlands, an important center of biodiversity in North America. The Ozark Highlands are home to a rich array of wildlife and plants, including endemic species that exist nowhere else in the world. The Current and Jacks Fork rivers have been designated as Outstanding National Resource Waters in Missouri. The Riverways features archeological and historic structures, landscapes, and objects, reflecting ancient life in the Ozark Highlands. The extraordinary resources of the Riverways provide outstanding recreational opportunities and experiences on and along free-flowing rivers.

One of the recreational opportunities at the Riverways is the use of motorboats on the Current and Jacks Fork rivers. When the Riverways was created in 1964, the only outboard motorboats operating on the rivers were conventional propeller-driven motors with elongated shafts. The propellers of these motors could hit bottom in shallow water, resulting in propeller damage. As a result, operators outfitted their motors with a lever that would lift the propeller out of the water when the vessel skimmed across shallow areas. This naturally limited the size of most motorboats operating on the rivers to 20 horsepower (hp) or less because heavier motors were too difficult to lift. The only exception was the lower Current River, which is broader and deeper than the upper reaches of the Current and Jacks Fork rivers. In this lower section of the Current River, motorboats up to 40 hp could operate.

The status quo changed in 1976 when operators began to refit outboard motors with jet propulsion systems that could operate in inches of water. This eliminated the need to have the skills and experience to lift the propeller out of shallow water. As a consequence, the number of motorboats in the Riverways increased dramatically. The smaller traditional motors and shaft propellers were replaced with large outboard jet motors, some exceeding 250 hp. These larger motors generated greater speed (some in excess of 50 miles per hour) and larger wakes, and required more space to operate. This resulted in safety concerns and conflicts with other users of the rivers, including canoers, tube floaters, swimmers, and anglers.

In order to address these concerns, in 1991 the National Park Service (NPS) revised the special regulations for the Riverways at 36 CFR 7.83(a) to designate zones for motorboat operation, restrict horsepower, and limit the use of motorboats during certain seasons (56 FR 30694). The NPS also limited the use of motorboats to vessels equipped with outboard motors. The nature of the shallow, narrow rivers precludes the safe use of inboard motors. These motors are capable of much greater speeds and need more water depth to operate due to increased weight.

Motor boating continues to be a popular activity and means of travel on the Current and Jacks Fork rivers. Visitors use motorboats to access fishing areas, cruise the river, and enjoy scenic views. Despite the existing regulations that manage motorboats within the Riverways, there are concerns about motorboats in certain sections of river. One concern is the effect of noise on visitors seeking a quiet experience. Another concern arises during the summer, when the number of motorboats on the rivers poses a safety hazard due to conflicts between different user groups competing for the same resources. Many access points along the rivers have become popular for concessioners and private individuals to launch nonmotorized watercraft, such as tubes, rafts, canoes, and kayaks. Often, groups of visitors seeking motorized and nonmotorized access enter the river at the same time and place, which can lead to congestion and conflicts. Once in the water, people in tubes, rafts, kayaks, and canoes can be overwhelmed by the wakes of motorized vessels. Over the past 20 years, the number of visitors using nonmotorized vessels on the rivers has steadily increased. If this number continues to increase, so too will crowding and conflicts among user groups.

The NPS published a proposed rule in the Federal Register on January 5, 2022 (87 FR 413). The NPS accepted public comments on the proposed rule for 60 days via the mail, hand delivery, and the Federal eRulemaking Portal at https://www.regulations.gov. Comments were accepted through March 7, 2022. The NPS received 408 comments on the proposed rule. Comments generally focused on balancing appropriate visitor uses, types and levels of access, and desired resource conditions. Although many commenters agreed the rivers were too crowded and expressed concern about visitor behavior, there was no consensus about how the NPS should manage motorized vessels on the rivers. Many comments addressed the NPS's evaluation of the environmental impacts of the preferred and other alternatives in the GMP/EIS. These comments are not addressed in this final rule because they raise issues that the NPS already considered in the National Environmental Policy Act (NEPA) compliance process. The NPS evaluated the environmental impacts of each alternative in the GMP/EIS and explained why it selected the preferred alternative (Alternative B) in the ROD. The NPS did not identify any new significant environmental issues in the public comments on the proposed rule. After considering public comments and after additional review, the NPS made the following changes in the final rule.

1. In Table 1 to paragraph (b)(2), the NPS adjusted the northern boundary of the lower section on the Current River. This change will allow 150/105 hp motors from the lower end of the Van Buren Gap downstream to the southern boundary of the Riverways.

2. In Table 1 to paragraph (b)(2) and Table 2 to paragraph (b)(3), the NPS restated the geographic boundaries of the various sections of river as the ends of Van Buren and Eminence gaps, rather than as the intermediate boundaries of the Riverways at each gap. The NPS made these edits for clarity only; the edits did not change the actual boundaries of the sections of river.

3. In paragraph (b)(5), the NPS clarified that the designated access points do not mark the boundaries of the sections of river, which are identified in the tables. Instead, the final rule states that designated access points will have information about horsepower limits and seasonal closures in each section of river.

4. In paragraph (b)(7), the NPS added a statement that a violation of a restriction, condition, or closure implemented by the superintendent is prohibited.

5. In paragraph (b)(7), the NPS replaced a reference to paragraph (a) of 36 CFR 1.7 with a reference to section 1.7 in its entirety, to require that any restriction, condition, or closure on the use of motorized vessels that is established by the superintendent is included in the superintendent's compendium, as required by paragraph (b) of section 1.7.

A summary of the pertinent issues raised in the comments and NPS responses is provided below.

1. Comment: Several commenters objected to allowing motorized vessels anywhere in the Riverways. Some commenters argued that doing so violates the mandate in the NPS Organic Act that units of the National Park System be managed to conserve the scenery, natural and historic objects, and wild life in such manner and by such means as will leave them unimpaired for the enjoyment of future generations. 54 U.S.C. 100101.

NPS Response: Through the NPS Organic Act, Congress granted the NPS broad discretion to regulate activities within System units, and the NPS has concluded that the selected alternative in the ROD, as amended by the Errata, will not result in unacceptable impacts or an impairment of resources in the Riverways. When it established the Riverways, Congress directed the NPS to include provisions for the use and enjoyment of the Current and Jacks Fork rivers by the people of the United States. 16 U.S.C. 460m. The NPS believes that continuing to allow motorized vessels on the Current and Jacks Fork rivers, as managed by this rule, is consistent with the NPS Organic Act and the enabling act for the Riverways.

2. Comment: Some commenters asked the NPS to eliminate the seasonal closures. Others suggested that the NPS allow only trolling motors in the upper sections during peak season. Several commenters objected to any prohibition of motorized vessels on the entire length of the Current and Jacks Fork rivers at any time. Some of these commenters cited long-standing use of motorized vessels on the rivers and access they provide for subsistence by local residents through gigging, fishing, trapping, and hunting. Another commenter suggested the NPS revise the definition of “peak season” to allow motorized vessels to continue to operate on the Jacks Fork River into early May when water levels remain high enough and there are fewer floaters on the rivers.

NPS Response: The NPS believes this rule appropriately balances different types of recreation and access on the rivers by managing the power and location of motorized vessels. The seasonal closures on the upper sections of each river will create a quieter and safer recreational experience for visitors, as explained in the section-by-section analysis below. Although trolling motors are quieter and operate at lower speeds than gasoline-powered motors, they still create enough wake and potential for conflict with non-motorized uses to justify including them in the prohibition of all motorized use during peak season. They also utilize a propeller, which is ineffective in shallow areas of the upper stretches of the rivers and therefore limits their usefulness.

The NPS acknowledges there are strong cultural ties to gigging and trapping in the upper sections of the Current and Jacks Fork rivers. To accommodate these activities, the rule allows jet boats with engines rated up to 25 hp at the power head from the beginning of gigging season through the end of the statewide spring trapping season on public lands, as established by the Missouri Department of Conservation. For the 2024 season, those dates are September 1 through April 1. Rather than choose a fixed date each calendar year, aligning the rule with statewide gigging and spring trapping seasons will ensure that the use of motorized vessels has meaning for local residents.

While water levels are generally higher on the upper Jacks Fork River in the spring, this also is when that stretch becomes more heavily used by non-motorized vessels because water levels during the remainder of the year typically prevent floating activities.

3. Comment: Several commenters encouraged the NPS to establish a lower, more protective horsepower limit on the rivers, consistent with other federally protected rivers in the Ozarks, such as the Buffalo National River (limit of 10 hp) and the Eleven Point Wild and Scenic River (limit of 25 hp).

NPS Response: All federally protected rivers, such as the Current River, Jacks Fork River, Buffalo River, and Eleven Point River, must be managed in accordance with the laws establishing their protected status. Within the scope of these mandates, however, Federal agencies have discretion to establish rules for visitor use that are tailored to the characteristics of each river, such as size, location, cultural and natural resources present, and visitor use patterns. The combination of these characteristics is unique to each river, even if some rivers share similar traits. The horsepower limits established by this rule are consistent with the legal protections for the Current and Jacks Fork rivers found in the NPS Organic Act and the Riverways' enabling legislation, and will allow for diverse opportunities for river-based recreation and access. Lower horsepower limits on the upper sections of each river will help avoid conflicts between motorized and non-motorized uses that can lead to undesirable visitor experiences and unsafe outcomes. Increasing horsepower limits downriver correlate to less frequent and less concentrated non-motorized use and changing physical characteristics of the rivers, such as increasing width and depth, that can better accommodate the speed and wake created by larger motors.

4. Comment: One commenter suggested lowering the maximum horsepower in the middle sections of the Current and Jacks Fork rivers. Another commenter recommended prohibiting motorboats in the entire length of the Jacks Fork River during peak season. Several commenters stated the 150/105 hp limit below Big Spring on the Current River is too high and suggested the 60/40 hp limit be extended to the southern boundary of the Riverways. Other commenters asked the NPS to prohibit motorboats on various segments of the Current River. Commenters advocating for lower horsepower or no motorboats at all claimed that the wakes generated by faster, larger motors and the size of vessels equipped with those motors diminish the visitor experience and pose a greater safety risk to floaters compared to vessels with smaller motors. Other commenters stated that higher-powered vessels are loud, damage park resources, increase bank erosion, reduce water clarity, and negatively affect aquatic wildlife.

NPS Response: Alternative A in the GMP/EIS would have limited horsepower on the middle section of the Current River to 25 hp from Round Spring to Two Rivers, and prohibited motorboats on that segment of the river during peak season. Alternative A would have prohibited motorboats on the upper section of the Current River. It would have limited horsepower to 40 hp from Two Rivers to the southern boundary of the Riverways on the Current River, and prohibited motorboats year-round on the Jacks Fork River. The GMP/EIS did not evaluate an alternative that would have prohibited motorboats on the middle or lower sections of the Current River. The NPS believes that doing so would create significant adverse impacts to visitor access and recreation in the Riverways. The alternatives in the GMP/EIS were developed over several years through an iterative process that incorporated public input and new information at every step. The NPS evaluated potential impacts to the environment for each of the alternatives in the GMP/EIS and explained its decision to select Alternative B in the ROD.

5. Comment: One commenter expressed concern that the seasonal closure on the upper section of the Current River would prevent persons with disabilities from using motorized vessels to enjoy the river.

NPS Response: The NPS welcomes visitors of all types to the Riverways, including individuals with disabilities. The use of motorized vessels on the rivers is one of many recreational opportunities in the Riverways. In meeting the goal of accessibility, the NPS seeks to ensure that persons with disabilities are afforded experiences and opportunities along with other visitors to the extent practicable. For example, under the selected alternative in the ROD, the NPS will establish additional trails in the Riverways that are accessible to persons with disabilities. In 2021, the NPS completed an Accessibility Self-Evaluation and Transition Plan with specific targets for improving visitor accessibility at a variety of facilities, campsites, and program experiences.

6. Comment: Several commenters objected to the provision establishing the superintendent's authority to close sections of the rivers.

NPS Response: Superintendents of all National Park System units have a general authority to establish closures, restrictions and conditions on visitor use or activity under 36 CFR 1.5. This rule will specify that—with respect to the use of motorized vessels in the Riverways—the superintendent may restrict or impose conditions on the use of motorized vessels, or close any portion of the Riverways, after taking into consideration public safety, protection or park resources, weather conditions and park management objectives. This provision establishes that the superintendent may take action to address changing conditions on the rivers to help protect resources and keep visitors safe. The superintendent needs this management tool because dynamic river environments can create unforeseen conditions that need to be addressed quickly. The superintendent may not increase visitor use and activity on the rivers in a manner that goes beyond what is authorized by the rule. As examples, the superintendent may not increase the maximum horsepower of motorized vessels beyond what is stated in the rule, or allow motorized vessels on the upper sections of the rivers year-round. These types of changes would require amendments to the regulations following a public notice-and-comment rulemaking process. Similarly, if the superintendent determines that closures, restrictions and conditions implemented to address unforeseen conditions should be made permanent, the NPS should then amend the regulations in 36 CFR 7.83 to reflect those actions following a public rulemaking process.

The rule requires the superintendent to notify the public of any restrictions, conditions or closures to motorized vessels in accordance with 36 CFR 1.7, which includes publication of such actions in a written compilation that is referred to as the superintendent's compendium. The superintendent's compendium is available on the Riverway's website at https://www.nps.gov/ozar/index.htm.

7. Comment: One commenter suggested the NPS prohibit all motors with internal combustion engines and allow electric trolling motors only.

NPS Response: Electric trolling motors provide sufficient power and range to support certain types of motorized use on the rivers, such as drift fishing or moving boats for limited distances against the current. These types of motors, however, are not a reasonable alternative to gasoline-powered engines that are commonly used in johnboats for recreational purposes. Prohibiting gasoline-powered motors would result in a significant loss of recreational opportunities in the Riverways that the NPS did not consider in the planning process.

8. Comment: Several commenters stated that the 150 hp limit below Big Spring unnecessarily excludes a segment of the fishing and boating population and creates an undue burden on people who own vessels with larger horsepower motors. These commenters would allow unlimited horsepower in the lower section of the Current River. Several commenters questioned the correlation between maximum horsepower and wake. For example, some commenters asserted there is no difference in the wake created by jet boats with a 200 hp motors and 150 hp motors. One commenter stated that higher horsepower engines provide greater control and therefore a safer environment.

NPS Response: The NPS explains the reason for establishing a horsepower limit in the lower section of the Current River in the section-by-section analysis below. Many motors that exceed 150 hp are heavier, operated at higher speeds, and need more area to operate, which can create conflicts between other motorized and non-motorized vessels.

9. Comment: Several commenters stated a single horsepower limit throughout the rivers would be easier to communicate with visitors and easier to enforce, especially with limited law enforcement officers. Other commenters stated there is a need for increased law enforcement on the rivers to manage increased visitation and to enforce the seasonal closures and horsepower restrictions in the rule. In particular, one commenter suggested the use of cameras to monitor vessel operations as an aid to enforcement.

NPS Response: A single horsepower limit would be easier to communicate and enforce. The relative difficulty of understanding and enforcing the rules, however, is not the only factor the NPS must consider when deciding how to manage motorized vessels. The selected alternative (Alternative B) calls for the NPS to hire additional law enforcement officers in order to improve visitor compliance with regulations. The NPS has 14 commissioned officers working varied shifts to support law enforcement activities throughout the Riverways. All of them are trained to enforce violations on the rivers. NPS law enforcement officers work closely with the Missouri Water Patrol and the sheriff's departments of surrounding counties to coordinate law enforcement activities. These agencies support law enforcement efforts by communicating violations that are reported or observed within the Riverways. The NPS utilizes cameras for a multitude of law enforcement activities, which may include enforcement of horsepower or other boating regulations.

10. Comment: Several commenters recommended the NPS install signs on the rivers that identify the upper, middle, and lower sections and the closures and horsepower restrictions that apply in each section.

NPS Response: Designated boat access points will be signed with information about horsepower limits and seasonal closures, so that anyone launching at designated sites will be aware of the rules. Installing signs at the actual boundaries of each section of river, which do not correlate to designated access points in every case, is problematic due to challenging riverbank terrain and the tendency for signs to be lost or damaged in floods. Maps indicating the horsepower limits in the various sections of the rivers will be located at the Riverways headquarters in Van Buren, MO, and on the Riverways website.

11. Comment: One commenter suggested the NPS establish decibel and speed limits for motorized vessels.

NPS Response: Existing regulations address the noise and speed on vessels in the Riverways. NPS regulations at 36 CFR 3.15 limit the noise of vessels operating in all System units to 75 dB(A) measured using test procedures applicable to vessels underway (Society of Automotive Engineers SAE—J1970), or 88dB(A) measured using test procedures applicable to stationary vessels (Society of Automotive Engineers SAE—J2005). This section also authorizes NPS law enforcement officers to direct the operator of a vessel to submit the vessel to an on-site test to measure noise level.

Under 36 CFR 3.2(b), the NPS adopts certain State laws that restrict the speed of motorized vessels. Missouri law prohibits the operation of a vessel in excess of slow, no wake speed within 100 feet of a dock or any emergency vessel that has emergency lights displayed. Mo. Rev. Stat. §§ 306.125, 306.132. Missouri law also prohibits operating a motorboat in excess of 30 mph at any time from a half-hour after sunset until one hour before sunrise. Mo. Rev. Stat. § 306.125. NPS regulations at 36 CFR 3.8(b)(4) prohibit operating a vessel in excess of flat wake speed within 100 feet of a downed water skier, a person swimming, wading, fishing from shore or floating with the aid of a flotation device, a designated launch site, or from a manually propelled, anchored or drifting vessel. Speed also is a factor that can result in a violation of NPS regulations at 36 CFR 3.8(b)(8)-(9), which prohibit operating a vessel in a negligent or grossly negligent manner.

12. Comment: Several commenters opposed the seasonal closures on the upper sections of both rivers due to concerns that they would create economic hardship for local users, including fisherman and their families.

NPS Response: The NPS does not expect the seasonal closures to impact many visitors because of the physical characteristics of the upper sections of both rivers. The narrow and shallow nature of these sections prevents heavy motorized use, which the NPS believes to be approximately 5% of total visitation in those areas. The rule allows motorized vessels on the upper sections during State-defined trapping and gigging seasons so that local residents may continue to engage in those traditional activities for economic and recreational purposes. Fishing from riverbanks and while wading are allowed and popular on the upper stretches of the rivers where water is shallow.

13. Comment: Several commenters encouraged the NPS to move the northern boundary of the lower section of the Current River to allow 150/105 hp motors from the lower end of the Van Buren Gap to the southern boundary of the Riverways. Commenters stated that this change would allow visitors to launch bigger motors at the public and private launch sites in Van Buren, therefore decreasing pressure at Big Spring. Commenters also stated that this change would benefit residents who live along the river outside of the Riverways but within the Van Buren Gap, who own larger motors and keep their boats docked along the bank throughout the summer.

NPS Response: The NPS agrees with this recommendation and has changed the rule accordingly. The Errata Sheet amends the GMP/EIS to reflect the change to the northern boundary of the lower section of the Current River, which the NPS believes will make the horsepower limits easier to understand and enforce, and will relieve parking pressure on the Big Spring boat ramp.

14. Comment: One commenter suggested the NPS restrict the size of vessels rather than limit horsepower.

NPS Response: The NPS believes that limiting horsepower will achieve the desired result in the GMP/EIS and be easier to enforce than measuring boat size. NPS regulations at 36 CFR 3.8(a)(4) authorize superintendents of all System units to establish length and width restrictions in accordance with 36 CFR 1.5 and 1.7. If, in the future, the superintendent of the Riverways determines that length and width restrictions are necessary for the maintenance of public health and safety, protection of environmental or scenic values, protection of natural or cultural resources, aid to scientific research, implementation of management responsibilities, equitable allocation and use of facilities, or the avoidance of conflict among visitor use activities, the superintendent may establish such restrictions in the superintendent's compendium for the Riverways.

15. Comment: Several commenters suggested the NPS manage motorized vessels by limiting them to certain days of the week. One commenter suggested that motorized vessels should be allowed on the upper section of the Current River on weekdays, but not weekends, to provide access to local residents without contributing to overcrowding at peak times.

NPS Response: The rule prohibits motorized vessels on the upper sections of both rivers during peak season to help maintain the safety of visitors and relieve overcrowding throughout the week. The volume of non-motorized vessels remains high on weekdays during peak season.

16. Comment: Some commenters stated that education was preferable to regulation and supported more public education about boating safety. One commenter asked the NPS to require all visitors who engage in water-based recreation take a water safety class. Another commenter suggested that commercial visitor service providers educate seasonal floaters about water etiquette and rules of navigation.

NPS Response: Boating and floating safety information courses are available through the Missouri Water Patrol, United States Coast Guard, and other organizations. The NPS provides educational information to floaters through authorized concessions and through public programs and interactions, as well as the on the Riverways website.

17. Comment: One commenter recommended the NPS manage use of the rivers by determining the number of visitors from each user group ( e.g., motorized, non-motorized) that can be accommodated in different river locations. Other commenters recommended a permit system to manage motorized and non-motorized recreational use and suggested limits on the number of people that commercial outfitters can put into the rivers in specific locations on specific days.

NPS Response: Managing visitor use in the Riverways is inherently complex and depends not only on the number of visitors, but also on where the visitors go, what they do, and the impacts they have on resources and other visitors. In managing visitor use, NPS staff rely on a variety of management tools and strategies rather than relying solely on regulating the number of people in a specific area. Ever-changing visitor use patterns require a deliberate and adaptive approach to visitor capacity and visitor use management that would be hindered by placing strict limits on the number of user types in specific locations.

The NPS may develop an education outreach program to encourage voluntary dispersal of river users to reduce the number of watercraft in popular areas. The NPS may evaluate and modify concession contracts or operating plans to better distribute and manage the number of watercraft, both across times of day and by physical location. NPS staff also may consider a shuttle system to further disperse use on the rivers. Finally, if needed to ensure compliance with standards, the NPS may require watercraft permits. Implementation of some of these management actions may require additional planning, compliance and public involvement.

This rule will help accommodate a variety of desired river conditions and recreational uses, promote high quality visitor experiences, promote visitor safety, and minimize conflicts among different user groups. It does this by making the following changes to existing regulations.

Existing regulations, established in 1991, limit the horsepower of motorized vessels for the purpose of limiting the size and speed of motorized vessels to help ensure a safe and enjoyable experience for all visitor types. Larger motors generate greater speed, larger wakes, and require more space in proportion to their speed. The very nature of the shallow, narrow rivers, and channel and flow characteristics preclude the safe operation and navigation of oversized motorboats around obstacles and other users in certain sections of the Current and Jacks Fork rivers. Various combinations of channel depth and stream velocity sometimes require boaters to maintain sufficient momentum to get across the shallows, and into deeper waters, which poses a particular safety hazard to other visitors such as floaters and swimmers. Additionally, most vessels used on the Current and Jacks Forks rivers are not equipped with speedometers and are therefore unable to gauge their own speeds. Further, depending on whether a boat is traveling downstream or upstream, speedometers may not accurately gauge speed of travel. For these reasons, horsepower limits on outboard motors are the most effective means to ensure safety and achieve compliance.

Horsepower can be measured at the engine powerhead and at the final output. These measurements are virtually the same for outboard motors equipped with propellers. For motors equipped with jet propulsion systems, horsepower is approximately 30 percent less at the final output than at the powerhead. For purposes of complying with the horsepower limits, the existing regulations state that horsepower will be based upon power output at the propeller shaft as established by the manufacturer. 36 CFR 7.83(a)(2). This method of measuring power works well for motors with propellers that have not been modified to change final power output. This method is problematic, however, for motors that were manufactured with propellers but then retrofitted with jet propulsion systems that lower the final power output below the maximum horsepower that was established by the manufacturer at the propeller shaft. These types of motors are popular with visitors to the Riverways because they can operate in shallow waters and enable the use of longer and wider boats capable of transporting four or more adults against the current of the rivers. The problem is that the existing regulations prohibit many of these motors even though they have a final power output less than or equal to the maximum horsepower that the NPS has determined is appropriate. In this way, the regulations are overinclusive.

For example, the existing regulations prohibit the use of motors that exceed 40 hp in the middle sections of the Current and Jacks Fork rivers. 36 CFR 7.83(a)(3)(i). The most popular type of motors in these sections are known as 60/40 hp motors. This indicates that the motors produce 60 hp at the powerhead but only 40 hp at the final output because they are equipped with a jet propulsion system. Some of these motors were manufactured with propellers and rated at 60 hp by the manufacturer, only to be retrofitted with jets. Others were manufactured with jet propulsion systems and for this reason could be rated at either 60 hp or 40 hp depending upon where the manufacturer measured the power. Under the existing regulations, retrofitted motors rated by the manufacturer at 60 hp are prohibited even though they now only have 40 hp of usable power. The method of measurement in the existing regulations is impracticable for vessels manufactured with jet propulsion systems because there was never a propeller shaft. In order to address this unintended outcome, the NPS has allowed 60/40 hp motors in the Riverways since 1999 under a Superintendent's memorandum.

This rule officially allows these popular motors in the middle sections of each river. The rule clarifies that, for purposes of complying with the regulations, maximum horsepower means the maximum horsepower produced by the engine's powerhead. 1 The rule states that this measurement may be different than the maximum power measured at the final output or the maximum power rated by the manufacturer. The rule then adds tables that include maximum horsepower limits on each river that differ depending upon whether the motor has a jet propulsion system or a propeller. For the middle sections, 60 hp will be allowed for jet motors but only 40 hp will be allowed for propeller motors.

In the upper sections of the rivers, existing regulations prohibit the use of motors that exceed 25 hp measured at the propeller shaft by the manufacturer. 36 CFR 7.83(a)(3)(ii). In practice, the NPS has allowed 25 hp motors in the upper sections only if they are equipped with jet propulsion systems that lower the effective horsepower to 18 hp at the final output. The narrow and shallow nature of the upper sections make motors with more powerful outputs unsafe throughout the year. The rule changes the regulations to be consistent with this practice by allowing 25 hp motors with an attached jet unit and 18 hp motors fitted with a propeller.

Existing regulations allow 10 hp motors in the upper section of the Current River from May 1 through September 15, and in the upper section on the Jacks Fork River from March 1 to the Saturday before Memorial Day. 36 CFR 7.83(a)(3)(iii)-(iv). This rule prohibits motorized vessels in these sections during peak season. This includes vessels using only a trolling motor. This closure applies to the full extent of the upper sections of each river, from the northern boundary downstream to Round Spring on the Current River, and from the western boundary downstream to the western boundary of the Eminence Gap on the Jacks Fork River. Existing regulations apply the seasonal 10 hp limit above Akers Ferry on the Current River and above Bay Creek on the Jacks Fork River, even though during off-peak seasons the 25 hp limits on the upper sections of each river apply downstream to Round Spring on the Current River, and from the western boundary downstream to the boundary at West Eminence on the Jacks Fork River.

Peak season is defined as beginning on the day after the last day of the statewide spring trapping season on public lands (usually around April 1) and ending on the day before the first day of gigging season for nongame fish (usually around September 15). These dates are determined annually by the Missouri Department of Conservation. Defining peak season in this manner, rather than using fixed dates, would allow visitors to use motorboats for lawful trapping and gigging activities without interfering with nonmotorized vessels ( e.g., tubes, rafts, kayaks and canoes) when they are most popular. These upper sections of river are very narrow and shallow and do not receive heavy use from motorized vessels even during trapping and gigging seasons. A nonmotorized season provides opportunities for solitude and connection with nature that are not currently available during weekends and holidays in the summer. Visitors will be able to intimately experience conditions reminiscent of those that existed when the Riverways was established. The seasonal closures will also eliminate safety concerns and conflicts that arise when motorized and nonmotorized user groups are both present in these areas.

Existing regulations do not impose a horsepower limit on the lower section of the Current River. The rule establishes new horsepower limits in this section. The rule allows motors with propellers up to 105 hp. For the same reason that 60 hp motors will be allowed in the middle sections of the Current and Jacks Fork rivers if they are equipped with jet propulsion systems, the rule will allow 150 hp motors in the lower section of the Current River if they are similarly equipped. These limits are higher than the limits that will apply in the upper and middle sections of the rivers because the river below Big Spring is much broader and deeper. Currently, vessels with 225-300 hp motors are operating in this section of river. Motors such as these that are larger than the limits of 150/105 hp generate greater speed (some in excess of 50 mph), larger wakes, and require more space to operate. This results in serious safety concerns and conflicts with other users of the river, including canoers, tube floaters, swimmers, and anglers.

The rule revises § 7.83(a)(1) of the existing special regulations to clarify that motorized vessels on the Riverways may have only one outboard motor. The rule clarifies that the motor count does not include electric trolling motors, which could accompany a vessel with a single outboard motor. For clarity, the revisions define the terms “inboard motor” and “outboard motor” and state that the use of inboard motors and personal watercraft is prohibited.

The rule allows the Superintendent to issue a permit for the operation of vessels with motors more powerful than the horsepower limits established by the rule. This allows the Superintendent to make exceptions in limited circumstances, such as when the NPS issues permits to the Missouri Department of Conservation for research activities on the rivers that, for safety or other reasons, require more power than is allowed by the rule.

The rule also includes a provision establishing the Superintendent's authority to restrict or impose conditions on the use of motorized vessels, or close any portion of the Riverways to motorized vessels, after taking into consideration public safety, protection or park resources, weather conditions and park management objectives, provided public notice is given using one or more of the methods identified in 36 CFR 1.7. This clarifies the Superintendent's authority to respond to emerging technologies or other unforeseen circumstances in order to help maintain a safe and enjoyable experience for visitors to the Riverways.

Maps indicating the horsepower limits in the various portions of the rivers will be located at Riverways headquarters in Van Buren, MO and on the Riverways' website ( https://www.nps.gov/ozar/index.htm ). The Superintendent will notify the public of the start and end dates for peak season through one or more of the methods listed in 36 CFR 1.7. The rule also adds a table to the special regulations that identifies each section of river and the applicable horsepower restrictions for that section during peak and non-peak seasons.

Executive Order 12866, as amended by Executive Order 14094, provides that the Office of Information and Regulatory Affairs (OIRA) in the Office of Management and Budget will review all significant rules. OIRA has determined that this rule is not significant.

Executive Order 14094 amends Executive Order 12866 and reaffirms the principles of Executive Order 12866 and Executive Order 13563 and states that regulatory analysis should facilitate agency efforts to develop regulations that serve the public interest, advance statutory objectives, and be consistent with Executive Order 12866, Executive Order 13563, and the Presidential Memorandum of January 20, 2021 (Modernizing Regulatory Review). Regulatory analysis, as practicable and appropriate, shall recognize distributive impacts and equity, to the extent permitted by law.

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

This rule will not have a significant economic effect on a substantial number of small entities under the RFA (5 U.S.C. 601 et seq. ). This certification is based on the cost-benefit and regulatory flexibility analyses found in the report entitled “Draft Cost-Benefit and Regulatory Flexibility Threshold Analyses: Special Regulations Governing the Use of Motorized Vessels within Ozark National Scenic Riverways” that can be found on the Riverways' planning website at https://parkplanning.nps.gov/ozar, by clicking the link entitled “General Management Plan, Wilderness Study, Environmental Impact Statement” and then clicking the link entitled “Document List.”

This rule is not a major rule under 5 U.S.C. 804(2), the CRA. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S. based enterprises to compete with foreign-based enterprises.

This rule does not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or Tribal governments or the private sector. It addresses public use of NPS-administered waters, and imposes no requirements on other agencies or governments. A statement containing the information required by the UMRA (2 U.S.C. 1531 et seq. ) is not required.

This rule does not affect a taking of private property or otherwise have taking implications under Executive Order 12630. Access to private property adjacent to the Riverways will not be affected by this rule. A takings implication assessment is not required.

Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. The rule is limited in effect to Federal lands managed by the NPS and would not have a substantial direct effect on State and local government. A Federalism summary impact statement is not required.

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

This rule does not contain any new collections of information that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act. An agency 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.

The rule implements a portion of the preferred alternative (Alternative B) for the Riverways described in the GMP/EIS. The NPS released a draft of the GMP/EIS that was available for public review and comment from November 8, 2013, through February 7, 2014. The NPS released the final GMP/EIS in December 2014. On January 22, 2015, the Acting Regional Director, Midwest Region, signed the ROD identifying the preferred alternative as the selected action. In January 2023, the NPS issued the Errata Sheet, which amended the GMP/EIS to move the northern boundary of the lower section on the Current River. The GMP/EIS describes the purpose and need for the plan, the alternatives considered, the scoping process and public participation, the affected environment and environmental consequences, and consultation and coordination. Copies of the GMP/EIS, ROD and Errata Sheet are available online at https://parkplanning.nps.gov/ozar, by clicking the link entitled “General Management Plan, Wilderness Study, Environmental Impact Statement” and then clicking the link entitled “Document List.”

The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty. The NPS has evaluated this rule under the Department's consultation policy and under the criteria in Executive Order 13175 and has determined that it has no substantial direct effects on federally recognized Indian Tribes and that consultation under the Department's Tribal consultation policy is not required.

The NPS consulted with culturally affiliated American Indian Tribes on the development of the GMP/EIS, including meetings in Oklahoma and Missouri in 2003, 2006, 2010. The NPS invited all Tribal representatives to visit the Riverways and to actively participate in the GMP/EIS planning process. As part of ongoing government-to-government relations, NPS staff will continue to consult with affiliated Tribes about planning and other actions in the Riverways that could affect the Tribes. NPS staff will further consult with regard to specific actions and undertakings arising from the GMP/EIS that are proposed for future implementation. When appropriate, NPS staff provide technical assistance to the Tribes, including sharing information and resources, to address problems and issues of mutual concern.

This rule is not a significant energy action under the definition in Executive Order 13211. The rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy, and the Administrator of OIRA has not designated the rule as a significant energy action. A Statement of Energy Effects is not required.

In consideration of the foregoing, the National Park Service amends 36 CFR part 7 as follows:

Section 115 of the Copyright Act, title 17 of the United States Code, creates a statutory license for making and distributing phonorecords of nondramatic musical works. On December 16, 2022, the Copyright Royalty Judges (Judges) adopted final regulations that set rates and terms applicable for the statutory license for making and distributing phonorecords of nondramatic musical works. See 87 FR 76942.

Pursuant to those regulations, at least 25 days before January 1 of each year, the Judges shall publish in the Federal Register notice of a cost of living adjustment (COLA) applicable to the royalty fees for making and distributing physical phonorecords and Permanent Downloads. 37 CFR 385.11.

The royalty fee shall be adjusted to reflect any changes occurring in the cost of living as determined by the most recent Consumer Price Index for All Urban Consumers (U.S. City Average, all items) (CPI-U) published by the Secretary of Labor before December 1 of the preceding year. The calculation of the rate for each year shall be cumulative based on a calculation of the percentage increase in the CPI-U from the CPI-U published in November, 2022 (the Base Rate) and shall be made according to the following formulas: for the per-work rate, (1 + (Cy − Base Rate)/Base Rate) × 12¢, rounded to the nearest tenth of a cent; for the per-minute rate, (1 + (Cy − Base Rate)/Base Rate) × 2.31¢, rounded to the nearest hundredth of a cent; where Cy is the CPI-U published by the Secretary of Labor before December 1 of the preceding year. 37 CFR 385.11(a)(2).

In consideration of the foregoing, the Judges amend part 385 of title 37 of the Code of Federal Regulations as follows:

On April 19, 2019, VA published a proposed rule in the Federal Register at 84 FR 16421 to amend 38 CFR 3.103 and 3.654 to permit VA to suspend disability compensation payments upon receipt of notice from DoD that the veteran has received or is receiving active service pay and to clarify how VA adjudicates benefit adjustments based on receipt of active service pay for certain types of service. Section 5304(c) of title 38, United States Code, provides that pension, compensation, or retirement pay shall not be paid for any period in which a veteran receives active service pay. Currently, VA cannot take immediate action on DoD-provided information but rather must provide a veteran with notice of a proposed adverse action—such as suspension of disability compensation payments—and 60 days to provide evidence showing why the adverse action should not be taken. VA continues to pay benefits during this 60-day period. This becomes problematic for some veterans on active duty serving in remote locations, such as a combat zone or similarly austere environments, with infrequent mail service and no reasonable method for dealing with financial matters. As a result of this rulemaking, VA will be able to leverage technological advancements and process benefit adjustments based upon information received from DoD regarding a veteran's receipt of active service pay under certain circumstances, described in more detail below.

VA invited interested persons to submit written comments on or before June 18, 2019. VA received four comments in response to the proposed rule. VA received comments from two organizations, National Organization of Veterans' Advocates, Inc. (NOVA) and Disabled American Veterans (DAV), and two members of the public. Some comments addressed more than one issue. In those instances, VA reviewed and considered each issue independently. VA also grouped all of the issues raised by the commenters that concerned at least one portion of the rule together by topic. VA organized the responses to the comments by topic. The responses to the comments are as follows:

Two comments requested the removal of the phrase “will receive active service pay,” in the proposed regulatory text in 38 CFR 3.103(b)(3)(v). One commenter asserted that suspending compensation based on notice that a veteran will receive active service pay is inconsistent with 38 U.S.C. 5304(c). The commenter also contended that active duty dates could change, or receipt of active service pay could be delayed, potentially creating a situation where a veteran has his/her compensation suspended but does not receive active service pay. The other commenter asserted that including the language “will receive active service pay” increases the risk that someone will have benefits suspended before he or she is actually receiving active service pay.

Concerning notice from DoD, VA clarifies that DoD will not inform VA of prospective active service pay, only past and current pay. VA revises § 3.103(b)(3)(v) to clarify that veterans can submit notice concerning past, current, and future receipt of active service pay, and DoD notice will only pertain to past or current receipt of active service pay. Accordingly, changes will not be made on the basis of notice of prospective pay from DoD.

Concerning notice provided to VA by a veteran, VA will continue to take action, without any advance notice period, based on statements by a veteran indicating that the veteran will receive active service pay. Payments, however, are discontinued effective the day preceding reentrance on active duty, not as of the date of receipt of the notice. If a veteran informs VA prior to the discontinuance of payments that the dates of service have changed or the veteran will no longer return to service, VA will make the necessary adjustments prior to the discontinuance if time allows and will otherwise reinstate benefits the same day they were discontinued. In the case of training pay, benefits are withheld for the number of training days in the relevant time period. If a veteran provides timely notice that pay was not received for expected training duty, retroactive payments will be authorized. 38 CFR 3.654(c). Therefore, VA does not agree that dispensing with the 60-day notice period in this situation is inconsistent with 38 U.S.C. 5304(c), which precludes concurrent receipt of VA compensation and active service pay.

One comment recommended that VA provide an expedited review process for veterans who allege error in the suspension of compensation benefits based on notice of receipt of active service pay. VA points out that, due to the Veterans Appeals Improvement and Modernization Act of 2017, Public Law 115-55, veterans who disagree with a decision by VA have options including requesting a higher-level review if additional evidence is not needed to resolve the matter or filing a supplemental claim if additional evidence is needed. VA's goal for completing higher-level reviews and supplemental claims is 125 days. Therefore, there are avenues for review of such allegations of errors to receive expeditious processing in the current claims processing framework. VA makes no changes based on this comment.

VA received two general comments that were not associated with preventive efforts to reduce the financial burden on veterans of overpayments due to concurrent receipt of both VA disability compensation and DoD active service pay. One commenter expressed disagreement with the proposed rule, stating that veterans should be compensated more, not less. This rulemaking affects the process for making necessary adjustments based on receipt of active service pay, not the amount of compensation to which a veteran is entitled. Section 5304(c) of title 38, United States Code, clearly precludes concurrent receipt of VA compensation and active service pay. VA does not have authority to ignore this statutory command in order to provide veterans additional compensation. The commenter also discussed concerns for veterans with mental health symptoms. VA makes no changes based on this comment as it is beyond the scope of this rulemaking.

The other comment consisted of a consent agreement from a banking institution without any accompanying text describing why the document was submitted as a comment or how it pertains to active service pay. This comment is not relevant to the rule amendment; therefore, VA makes no changes based on this comment.

Based on further agency consideration, VA makes additional changes to the proposed rule. VA proposed amendments to allow VA to suspend disability compensation payments based on notice from DoD of receipt of active service pay, explaining that the regulatory change would reduce the financial impact on veterans associated with receipt of VA disability compensation and DoD active service pay as well as reducing the reporting burden on veterans in cases where VA receives information directly from DoD. 84 FR 16421 (April 19, 2019). VA also explained that VA and DoD were discussing changes to the way VA receives notification that a veteran has received active service pay. 84 FR at 16423. VA has determined that, in addition to discontinuing payments based on DoD notice under certain circumstances, described in more detail below, it will be possible in many cases to resume payments based on information received from DoD. This will reduce the reporting burden on veterans in cases where VA receives information directly from DoD. There may be cases, however, where VA does not receive timely notice of a veteran's release from active duty or active duty for training from DoD. Therefore, VA revises 38 CFR 3.654(b)(2) to allow VA to resume payments based on notice from DoD that a veteran has been released from active duty or active duty for training while maintaining the option for the veteran to inform VA of such release by filing a claim to recommence payments. If VA receives notice from DoD or a claim for recommencement of payments within one year from the date of release from active duty or active duty for training, payments, if otherwise in order, will be resumed effective the day following release. Otherwise, payments will be resumed effective one year prior to the date of receipt of a new claim. Resuming payments based on notice from DoD is consistent with VA's goal, described in the proposed rule, of minimizing the financial impact and reporting burdens for veterans resulting from the prohibition on concurrent receipt of VA benefits and active service pay. VA therefore considers resuming benefit payments based on notice from DoD to be a logical outgrowth of the proposed rule. We emphasize that VA considers the automatic resumption of payments based on DoD notice to generally be a liberalizing change that should generally expedite access to benefits and reduce the need for administrative action on the part of both the veteran and VA.

As a corollary to this change, VA has added language clarifying that a claim for increase must be filed in order for additional benefits to be paid. This is not a change to existing requirements, as the relevant statute and regulation tie the effective date of an award of increased compensation to the date of receipt of claim. 38 U.S.C. 5110(b)(3); 38 CFR 3.400(o)(2). Rather, VA included the clarification as a reminder that, even if VA resumes payments based on receipt of notice from DoD that a veteran has been released from service, the veteran must still file a claim for increase if he or she seeks an increased rating.

In a similar manner, VA has revised the language regarding resumption of compensation payments to reflect that the resumption will be based on the combined evaluation in effect at the time payments were discontinued. If a reduction in disability evaluation is warranted that would not lower the combined evaluation, the reduction may be processed at the same time as the resumption of payments, as the overall payment will not be affected. If VA determines that a reduction in evaluation is warranted that would lower the combined evaluation, the reduction will be governed by 38 CFR 3.105(e), after payments are resumed at the level previously in effect. This will ensure that veterans receive notice of any proposed reductions to the compensation in effect at the time payments were discontinued, even if resumption of payments is based on notice from DoD.

Upon additional review it was determined that the proposed rule conflicted with the Privacy Act, specifically 5 U.S.C. 552a(p), which requires notice to an individual prior to an agency taking adverse action as a result of information produced by a matching program. To address this conflict, we have amended the rule so that VA will only suspend compensation based on information from DoD without additional advance notice when the veteran has previously received 30-day advance notice addressing concurrent receipt of compensation and payment for the type of service at issue as well as notice that suspension of compensation payments based on subsequent payments for the same type of service will be made without additional advance notice. We have also specified that in cases to which 38 CFR 3.700(a)(1)(iii) applies, in order for the exception to advance notice contained in § 3.103(b)(3)(v) to apply, VA must have received a waiver of VA benefits. A one-time advance notice with respect to the first instance of double payments would provide clear notice of the basis for the suspension of compensation payments, and an opportunity to contest the findings that led to the suspension, and could be applied to all subsequent payments of the same benefit during periods of receipt of active service pay for the same type of service. This change satisfies the notice requirements of the Privacy Act, and in particular 5 U.S.C. 552a(p)(1)(C)(ii), while still achieving the modernizing, pro-veteran goals of the proposed rule. While this solution will not eliminate the initial overpayment to an individual receiving both active service pay and disability compensation, it will eventually result in a dramatic decrease in the overall number of overpayments while providing each individual with the due process intended by the notice requirement. VA believes it is clear this result is a logical outgrowth of the proposed rule.

The proposed rule would have allowed for suspension of compensation without advance notice to the veteran based on information from DoD as long as the veteran had received prior notice that receipt of active service pay precludes concurrent receipt of VA benefits or VA had received a statement from the veteran indicating knowledge of such preclusion. The final rule will only allow for suspension of compensation without advance notice based on information from DoD if the veteran also received, on a previous occasion of concurrent receipt of compensation and payment for the type of service at issue, advance notice of the suspension and notice that suspension of compensation payments based on subsequent payments for the same type of service would be made without additional advance notice. In other words, the final rule provides greater protection to the individual, in terms of the suspension of running compensation payments. See Veterans Justice Grp., LLC v. Sec'y of Veterans Affairs, 818 F.3d 1336, 1344-45 (Fed. Cir. 2016) (finding a final rule that adopted a different, but more liberal approach than the proposed rule to be a logical outgrowth of the proposed rule).

We have updated the language in 38 CFR 3.103(b)(3)(v) to ensure that a written or electronic statement provided to VA by a veteran is consistently referred to as a statement. We have also updated the reference in 38 CFR 3.654(b)(2) to the second period of service, replacing that term with the most recent period of service, as veterans may have more than two periods of service. Finally, we made stylistic changes in 38 CFR 3.654, replacing references to “1 year” with “one year.” This document adopts as a final rule the proposed rule published in the Federal Register on April 19, 2019 with changes as set forth below.

Executive Order 12866 (Regulatory Planning and Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. 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 not 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. 601-612). The factual basis for this certification is based on based on the fact that no small entities or businesses make decisions regarding payments or overpayments of VA service-connected disability compensation. 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.

This final rule includes provisions constituting a revised collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that require approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), the collection of information for OMB is assigned control number 2900-0463, and must be paired with this rulemaking action for OMB review and approval.

There are no provisions associated with this rulemaking constituting any new collection of information, but there are anticipated burden changes to the existing collection of information. The respondent population for VA Form 21-8951-2 is composed of individuals filing a waiver of either VA disability benefits or military pay and allowances. VA currently batch sends pre-populated, optional forms to those identified as possible dual recipients and receives back approximately 12.4% for manual processing (71% are electronically processed without a form after notice and expiration of the due process period and the remaining 16.6% cannot be processed by the batch program due to expired addresses, returns to active duty, death, etc.). VA expects this process to continue unchanged for 1-2 years (with a simultaneous communication plan to spread knowledge of the new program), then the number of batch forms being mailed will significantly decrease due to the number of veterans who have responded (currently 12.4%) and who will no longer receive the initial letter with the VA Form 21-8951-2, with a concomitant reduction in the burden.

VA estimates the total annual reporting and recordkeeping burden to be 207 hours. (Estimated 1,240 respondents × (multiplied by) 10 (burden minutes)/(divided by) 60 = 207 burden hours.) VA estimates the total information collection burden cost to be $6,160.32 per year (207 burden hours × $29.76 per hour). The Bureau of Labor Statistics (BLS) gathers information on full-time wage and salary workers. According to the latest available BLS data, the mean hourly wage is $29.76 based on the BLS wage code—“00-0000 All Occupations.” This information was taken from the following website: https://www.bls.gov/oes/current/oes_nat.htm.

The currently approved OMB control number 2900-0463 burden costs are $65,293.44 (2,194 burden hours × $29.76 per hour). The projected annual burden savings from implementation of this regulation are $55,655.87.

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, approved and signed this document on December 6, 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 3 as set forth below:

This rule makes editorial changes to various environmental regulations in title 40 of the Code of Federal Regulations (CFR) to update addresses and names for air quality agencies in EPA Region IX. It does not otherwise impose or amend any requirements. Pursuant to 5 U.S.C. 533 (b)(3)(B) of the Administrative Procedure Act (APA), the EPA has found that the public notice and comment provisions of the APA, found at 5 U.S.C. 553(b), do not apply to this rulemaking as public notice and comment is unnecessary because this amendment to the regulations provides only technical changes to update an address or name of air quality agencies. The EPA has also determined that there is good cause to waive the requirement of publication 30 days in advance of the rule's effective date pursuant to 5 U.S.C. 553(d)(3) in order for the public to have the correct addresses and names for air quality agencies in EPA Region IX. As this action updates the CFR and does not otherwise impose or amend any requirements, the EPA has determined it does not trigger any requirements of the statutes and Executive Orders that govern rulemaking procedures. This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

For the reasons stated in the preamble, the Environmental Protection Agency amends title 40 of the Code of Federal Regulations as follows:

The proposed rule was published at 88 FR 68557 on October 4, 2023. The Petitioner filed comments in support of the petition reaffirming its commitment to apply for channel *4. No other comments were received.

The Bureau believes the public interest would be served by allotting channel *4 at Jacksonville, which, as of the 2020 Census, has a population of 3,020 and clearly qualifies for community of license status for allotment purposes. Jacksonville has a mayor and six council members, as well as its own police, fire, public works, planning, and other government departments. Jacksonville also has an elementary school, historic district, and a chamber of commerce. The proposal would also result in a first local service to Jacksonville under the Commission's second allotment priority. The Petitioner demonstrates, and a staff engineering analysis confirms, that channel *4 can be allotted to Jacksonville consistent with the minimum geographic spacing requirements for new DTV allotments in section 73.623(d) of the rules, at 42°17′56″ N and 122°45′00″ W (allotment point). In addition, the allotment point complies with section 73.625(a)(1) of the rules as the entire community of Jacksonville is encompassed by the 35 dBμ contour.

This is a synopsis of the Commission's Report and Order, MB Docket No. 23-285; RM-11959; DA 23-1134, adopted December 5, 2023, and released December 5, 2023. The full text of this document is available for download at https://www.fcc.gov/edocs. 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 & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. In addition, therefore, it does not contain any proposed information collection burden “for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4). Provisions of the Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, do not apply to this proceeding.

The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows: