Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-0940; Project Identifier AD-2022-01521-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend the proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Carol Nguyen, Aviation Safety Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA issued AD 2018-21-11, Amendment 39-19469 (83 FR 54663, October 31, 2018), (“AD 2018-21-11”), for all Pratt & Whitney Division (PW) PW4074D, PW4077D, PW4084D, PW4090, and PW4090-3 turbofan engines with low-pressure compressor (LPC) fan hub assembly, part number (P/N) 51B821 or P/N 52B521, installed. AD 2018-21-11 was prompted by low-cycle fatigue analysis techniques, updated by the engine manufacturer, which indicated certain LPC fan hub assemblies could crack before their published life limit. AD 2018-21-11 requires performing initial and repetitive FPI and ECIs of the LPC fan hub assembly and removing the LPC fan hub assembly from service if it fails any inspection. The agency issued AD 2018-21-11 to prevent failure of the LPC fan hub assembly.

Since the FAA issued AD 2018-21-11, the FAA determined that affected LPC fan hub assemblies can meet the published certificated life limit without the need for the required repetitive FPI inspections in AD 2018-21-11, and the repetitive ECI inspections require shortened intervals. The FAA also received a report of an uncontained failure of the fan hub assembly on an Engine Alliance GP7270 engine on an Air France flight. Investigation of this uncontained failure revealed that, due to the similarity of design and material processing for the LPC fan hub assembly, the ECI inspections should be done on all LPC fan hub assembly part numbers installed on PW Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines.

This condition, if not addressed, could result in uncontained debris release, damage to the engine, and damage to the aircraft.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

The FAA reviewed Pratt & Whitney Division Alert Service Bulletin PW4G-112-A72-362, Revision 1 dated January 20, 2023. This service information specifies procedures for ECIs of the LPC fan hub assembly for cracks. This service information also specifies reporting inspection results to PW.

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

This proposed AD would retain none of the requirements of AD 2018-21-11. This proposed AD would expand the applicability to include Model PW4074, PW4074D, PW4077, PW4077D, PW4084D, PW4090, and PW4090-3 engines with any P/N LPC fan hub assembly installed. This proposed AD would also require performing repetitive ECIs of the LPC fan hub assembly and, depending on the results of the inspections, removing the LPC fan hub assembly from service.

Where the service information specifies reporting certain information to PW, this proposed AD does not include that requirement.

The FAA estimates that this AD, if adopted as proposed, would affect 65 engines installed on airplanes of U.S. registry.

The FAA estimates the following costs to comply with this proposed AD:

The FAA estimates the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. The agency has no way of determining the number of engines that might need this replacement:

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.

The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would 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 the proposed regulation:

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

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

(3) Would 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 proposes to amend 14 CFR part 39 as follows:

Comments Invited

The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under ADDRESSES . Include “Docket No. FAA-2023-1050; Project Identifier AD-2022-00602-E” at the beginning of your comments. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. The FAA will consider all comments received by the closing date and may amend this proposal because of those comments.

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

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Joseph Costa, Aviation Safety Engineer, West Certification Branch, FAA, 3960 Paramount Boulevard, Lakewood, CA 90712. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.

The FAA was notified of several reports that Honeywell International Inc. (Honeywell) Model AS907-1-1A and AS907-2-1G engines experienced compressor surge, including an AS907-1-1A dual engine compressor surge, during takeoff climb out through a steep temperature inversion, which resulted in loss of engine thrust control. The FAA determined that the installed ECU software version logic locked the engine inlet total temperature (Tt2) at 60 knots on a takeoff roll and that reference Tt2 remained locked until the aircraft reached 400 feet above ground level (AGL) or the pilot moved the throttle before reaching 400 AGL. The locked Tt2 is mathematically adjusted by the ECU software for altitude and Mach number changes as the takeoff progresses. During the climb to 400 feet AGL with a thermal inversion, the actual engine Tt2 can increase above the Tt2 that is being calculated by the ECU, which causes the compressor guide vanes' (CGVs) position to be off-schedule for the actual ambient conditions. Significant off-scheduling of the CGVs can lead to a compressor surge event. The compressor surge margin is decreased when scheduling is based on a colder Tt2 temperature than what the engine is actually running. Engine deterioration impacts compressor surge margin and can increase the likelihood of a dual engine compressor surge as the AS907-1-1A and AS907-2-1G engine fleets age. Dual engine power loss due to a temperature inversion occurring within 75 feet AGL during takeoff climb out may cause the loss of thrust control of an airplane. This condition, if not addressed, could result in reduced controllability of the airplane, loss of control of the airplane, reduced ability of the flight crew to maintain the safe flight and landing of the airplane, and loss of the airplane.

The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.

This proposed AD would require either the replacement of a certain ECU software version installed on AS907-1-1A engines with a software version eligible for installation or the replacement of certain ECUs installed on AS907-1-1A engines with ECUs eligible for installation. This proposed AD would also require the replacement of certain ECUs installed on AS907-2-1G engines with ECUs eligible for installation. ECUs with P/N 2119576-3001 or P/N 2119576-3002 installed in AS907-2-1G engines would be eligible for reinstallation on the AS907-2-1G engines until exceeding the compliance time specified in Table 2 to paragraph (g)(2) of this AD.

The FAA estimates that this AD, if adopted as proposed, would affect 853 engines installed on airplanes of U.S. registry. The FAA estimates that 175 engines installed on AS907-2-1G engines will require replacing two ECUs.

The FAA estimates the following costs to comply with this proposed AD:

Table of Contents I. Executive Summary II. Authority for This Rulemaking III. Discussion of the Proposal A. Expiration, Renewal, and Reinstatement Requirements for Flight Instructor Certificates B. Conforming Amendments (§§ 61.2, 61.56, 61.425, 61.427, and SFAR 100-2) C. Instructor Qualifications for Training Initial Flight Instructor Applicants IV. Regulatory Notices and Analyses A. Regulatory Evaluation B. Regulatory Flexibility Determination C. International Trade Impact Assessment D. Unfunded Mandates Assessment E. Paperwork Reduction Act F. International Compatibility G. Environmental Analysis V. Executive Order Determinations A. Executive Order 13132, Federalism B. Executive Order 13211, Regulations That Significantly Affect Energy Supply, Distribution, or Use C. Executive Order 13609, International Cooperation VI. How To Obtain Additional Information A. Comments Invited B. Availability of Rulemaking Documents C. Small Business Regulatory Enforcement Fairness Act List of Abbreviations and Acronyms Frequently Used In This Document Advanced Aviation Training Device (AATD) Aviation Training Device (ATD) Basic Aviation Training Device (BATD) FAA's Pilot Proficiency Program (WINGS) Flight Instructor Refresher Course (FIRC) Flight Instructor Enhanced Qualification Training Program (FIEQTP) Flight Simulator Training Device (FSTD) Flight Training Device (FTD) Full Flight Simulator (FFS) I. Executive Summary

This rulemaking would amend part 61 of title 14 of the Code of Federal Regulations (14 CFR) by revising the expiration, renewal, and reinstatement requirements for flight instructor certificates and revising the qualifications for flight instructors seeking to train initial flight instructor applicants.

As explained in section III.A. of the preamble, the FAA proposes to remove the expiration date on flight instructor certificates to align with other airmen certificates. As part of this rulemaking, the flight instructor certificate renewal requirements would become recent experience requirements. The FAA proposes to require flight instructors to establish recent experience at least once every 24 calendar months. The FAA also proposes to add a new method for flight instructors to establish recent experience by serving as a flight instructor in an FAA-sponsored pilot proficiency program. Additionally, while the FAA is not removing any existing allowances to renew a flight instructor certificate, as is discussed in section III.A., the FAA proposes to amend the reinstatement requirements of § 61.199 by allowing flight instructors to reinstate their flight instructor privileges by taking an approved flight instructor refresher course (FIRC), provided the flight instructor's recent experience has not lapsed for more than three calendar months.

As explained in section III.B. of the preamble, the FAA is also proposing to revise the qualifications for instructors seeking to train initial flight instructor applicants. More specifically, the FAA proposes to add two new qualification methods. Currently, to train initial flight instructor applicants, 1 a flight instructor under part 61 must meet the eligibility requirements of § 61.183, hold the appropriate flight instructor certificate and rating, have held a flight instructor certificate for at least 24 calendar months, and have given at least 200 hours of flight training as a flight instructor if training in preparation for an airplane, rotorcraft, or powered-lift rating. 2 In addition to retaining this current requirement, the FAA proposes two new options for flight instructors to qualify to provide flight training to initial flight instructor applicants. Under the first proposed method, a flight instructor would be required to have trained and endorsed at least five applicants for a practical test for a pilot certificate or rating, and at least 80 percent of those applicants passed that test on their first attempt. Under the second proposed method, a flight instructor would be required to have graduated from an FAA-approved flight instructor enhanced qualification training program (FIEQTP) and have given at least 200 hours of flight training as a flight instructor if training in preparation for an airplane, rotorcraft, or powered-lift rating (or 80 hours in the case of glider instruction). The FAA proposes to make these three qualification methods available to all flight instructors, including those serving under part 61 and those serving under an FAA-approved course under part 141 or 142.

Finally, the FAA proposes to relocate and codify Special Federal Aviation Regulation (SFAR) 100-2, Relief for U.S. Military and Civilian Personnel who are Assigned Outside the United States in Support of U.S. Armed Forces Operations, into parts 61, 63, and 65, respectively. The proposed codification of SFAR 100-2 is further discussed in section III.B.2.

The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code (49 U.S.C.). 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 proposed rulemaking under the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules; 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and setting minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security; and 49 U.S.C. 44703(a), which requires the Administrator to prescribe regulations for the issuance of airman certificates when the Administrator finds, after investigation, that an individual is qualified for and physically able to perform the duties related to the position authorized by the certificate. This proposed rulemaking is within the scope of that authority.

Section 61.19 prescribes the duration of pilot and instructor certificates and privileges. Currently, under § 61.19(d), a flight instructor certificate expires 24 calendar months from the month in which it was issued, renewed, or reinstated, as appropriate. 3 The FAA's current practice is to print the expiration date on the flight instructor certificate. To continue exercising flight instructor privileges, a person must renew their flight instructor certificate prior to its expiration date by passing a practical test or by submitting a completed and signed application with the FAA and satisfactorily completing one of the renewal requirements specified in § 61.197(a)(2). This renewal process occurs at least once every 24 calendar months from the date of issuance on the person's flight instructor certificate; however, flight instructors may renew their flight instructor certificates more frequently. If a person allows their flight instructor certificate to expire, the only method to reinstate that certificate is by passing a flight instructor practical test in accordance with § 61.199.

Industry advocates have expressed support for removing the expiration date on a flight instructor certificate and amending the renewal and reinstatement requirements. These industry advocates asserted that requiring an expiration date on a flight instructor certificate is overly burdensome, costly, and provides no safety benefits. Specifically, on September 14, 1999, and again on March 13, 2000, the Aircraft Owners and Pilots Association (AOPA) petitioned the FAA to remove the expiration on a flight instructor certificate. AOPA expressed concern that many current and former flight instructors perceive the existing FAA regulatory requirement for certificate expiration and reinstatement as a significant disincentive to renewing an expired certificated flight instructor certificate. AOPA's petition also asserted that flight instructor certificate expirations have substantially reduced the number of otherwise qualified and experienced part-time flight instructors.

AOPA asked the FAA to eliminate the expiration date on a flight instructor certificate and add a three-month grace period to allow a flight instructor to reestablish recent experience by completing a FIRC within those three months. AOPA asserted that these changes would directly benefit the public, encourage many flight instructors with expired certificates to rejoin the instructional community, and eliminate the need for over 9,700 salary hours of unnecessary administrative processing at the Airman Certification Branch of the Civil Aviation Registry Division. AOPA also maintained that these changes would not adversely affect the quality of flight training or flight safety.

On February 7, 2007, the FAA published a notice of proposed rulemaking (NPRM) in the Federal Register proposing to amend §§ 61.19(d), 61.197(a), and 61.199 to allow the issuance of flight instructor certificates without expiration dates. 4 However, in the final rule published on August 21, 2009, 5 the FAA decided to withdraw this proposal and continue issuing flight instructor certificates with expiration dates after determining that revising its application procedures could achieve equivalent results. The new application process, which allowed a FIRC provider to submit applications directly to the FAA's Airman Certification Branch, may have incentivized some flight instructors to renew their flight instructor certificates due to its streamlined and simplified characteristics. However, the FAA concludes that this simplified application process has not sufficiently addressed the administrative burden on the FAA and flight instructors of renewing flight instructor certificates. Additionally, retaining the expiration dates on flight instructor certificates is inconsistent with most airman certificates issued under part 61, which do not have expiration dates. With most airman certificates, a person may continue to exercise airman privileges so long as the person meets the appropriate airman and medical recent experience requirements. Furthermore, the reinstatement requirements continue to provide a disincentive for flight instructors to reinstate their flight instructor certificates shortly after expiration because the only option available to reinstate a flight instructor certificate is to pass a flight instructor practical test.

Therefore, the FAA is proposing to amend the expiration, renewal, and reinstatement requirements for flight instructors, which are found in §§ 61.19(d), 61.197, and 61.199, respectively. The FAA notes that this proposed rulemaking would also make several conforming amendments in part 61 to accommodate the amendments to §§ 61.19(d), 61.197, and 61.199. The following sections discuss the FAA's proposal in more detail.

Currently, under § 61.19(d), the flight instructor certificate expires 24 calendar months from the month in which it was issued, renewed, or reinstated, as appropriate, except as provided in § 61.197(b). Section 61.197(b) prescribes requirements for determining the expiration month of a renewed flight instructor certificate. 6

The FAA is currently required to reissue physical certificates every time a flight instructor renews or reinstates their flight instructor certificate. This requirement leads to the FAA issuing many certificates each year. 7 Moreover, while flight instructors are required to renew their flight instructor certificates once every 24 calendar months, flight instructors often renew them more frequently ( i.e., the regulations do not prevent a flight instructor from renewing at an earlier date than their expiration), which results in a higher processing workload for the FAA. The FAA finds that removing the expiration date from the flight instructor certificate would reduce the financial and administrative burdens without degrading safety because the current renewal requirements would become recent experience requirements, which flight instructors would continue to meet at least once every 24 calendar months to retain their flight instructor privileges.

The FAA's proposal to remove the expiration date from flight instructor certificates is also intended to align the flight instructor certificate requirements with other airman certificates. Most airman certificates issued under part 61 do not have expiration dates. Instead, a person may exercise the privileges of an airman certificate only if that person meets the appropriate recent experience requirements of part 61, specific to the operation or activity. 8 Therefore, removing the expiration date on flight instructor certificates and changing the renewal requirements to recent experience requirements, which is discussed in the next section, would provide consistency in how airman certificates are issued and maintained under part 61.

For these reasons, the FAA proposes to remove the expiration date from flight instructor certificates by revising § 61.19(d). Because flight instructor certificates with expiration dates would continue to exist on the final rule's effective date, if this proposal is finalized, the FAA is proposing to create two subparagraphs under § 61.19(d). Section 61.19(d)(1) would remove the expiration date for flight instructor certificates issued on or after the final rule's effective date. Section 61.19(d)(2) would retain the current requirement and state that flight instructor certificates issued before the final rule's effective date would expire 24 calendar months from the month in which they were issued, renewed, or reinstated, as appropriate. In light of the proposed amendments to remove the expiration date from a flight instructor certificate, the FAA finds a revision is necessary to § 61.19(a)(2) to include flight instructor certificates to those certificates considered valid unless surrendered, suspended, or revoked. In addition, the exception to § 61.197(b) would be removed from § 61.19(d) as unnecessary because, under this proposal, flight instructors would no longer have to determine the expiration month of a renewed flight instructor certificate.

Currently, § 61.197(a) provides five mechanisms by which a person who holds a flight instructor certificate that has not expired may renew that flight instructor certificate. Under the first option, a person may renew their flight instructor certificate by passing a practical test under § 61.197(a)(1). Under the second option, a person may demonstrate that, within the preceding 24 calendar months, the person has endorsed at least five students for a practical test and at least 80 percent of those students passed that test on the first attempt. 9 The third option allows a person to show, within the preceding 24 calendar months, that the flight instructor has served as a company check pilot, chief flight instructor, company check airman, or flight instructor in a part 121 or part 135 operation, or in a position involving the regular evaluation of pilots. 10 Under the fourth option, a person may demonstrate that the person has successfully completed an approved FIRC within the preceding 3 calendar months. 11 Lastly, a person may present a record showing that, within the preceding 24 calendar months, the person passed an official U.S. Armed Forces military instructor pilot or pilot examiner proficiency check in an aircraft for which the military instructor already holds a rating or in an aircraft for an additional rating. 12 The second through fifth options require a person to submit a completed and signed application with the FAA evidencing satisfactory completion of the chosen renewal option.

On April 2, 1964, the FAA published an NPRM that proposed to establish biennial renewal requirements for flight instructor certificates. 13 In the NPRM, the FAA proposed to require flight instructor certificates to be renewed every 24 months and to prohibit the exercise of the flight instructor privileges if the certificate expired without being renewed. 14 In the preamble, the FAA explained that these requirements were intended to increase safety through a higher standard of flight instruction by ensuring that flight instruction was being given by flight instructors who were familiar with current flight training standards and procedures. 15 The final rule was published on June 29, 1965, and the FAA adopted biennial requirements for flight instructor certificates in § 61.177. 16 In a final rule published on February 1, 1973, 17 the FAA recodified the flight instructor renewal requirements in § 61.197 and added additional options for flight instructors to renew, which were consistent with the intent of the original rule. 18

As previously discussed, the FAA is proposing to remove the expiration date from the flight instructor certificate, which would eliminate the need to renew that certificate under current § 61.197. However, because the methods by which a person may renew a flight instructor certificate were adopted to ensure a high standard of flight training, the FAA finds it necessary to retain these methods under the new process. 19 Therefore, to continue the high quality of flight training in general aviation, the FAA proposes to amend § 61.197 by changing the flight instructor renewal requirements to flight instructor recent experience requirements. More specifically, under this proposal, the FAA would retain the current methods for renewal, which are specified in § 61.197(a) but would refer to them as recent experience requirements. Instead of a flight instructor renewing their flight instructor certificate every 24 calendar months, a flight instructor would need to establish recent experience at least once every 24 calendar months. This proposed change would ensure the quality of flight training is not adversely affected by the removal of the expiration date from the flight instructor certificate and would also align the flight instructor certificate with the majority of airman certificates in part 61, which are recent experience-based. The FAA notes that proposed § 61.197 would not impose new requirements on flight instructors. As with the current rule, flight instructors would have the option to choose one of several methods to satisfy the recent experience requirements.

Additionally, the FAA proposes to expand the regulatory options available to flight instructors to satisfy recent experience under § 61.197. Current § 61.197(a) identifies five methods for a flight instructor to renew a flight instructor certificate. FAA Order 8900.1, Volume 5, Chapter 2, Section 11 contains guidance about these methods. In this guidance, the FAA identifies the FAA's WINGS—Pilot Proficiency Program as an approved program that flight instructors can use to satisfy flight instructor certificate renewal requirements. 20

The WINGS Program is a voluntary pilot education and proficiency program. The program consists of learning activities and tasks selected to address the documented causal factors of aircraft accidents. The WINGS Program provides the opportunity, the structure, and the recognition for pilots and flight instructors to continue their aviation education. The WINGS Program also provides a vast and cost-free array of tools to help flight instructors perform their job more effectively, both when instructing on the ground and in flight. These tools include, but are not limited to, online lessons specifically designed to present critical information, updates, and activities to flight instructors concerning flight training and safety. Flight instructors are an integral part of the aviation community and play an important role in reducing the number of general aviation accidents by providing training and modeling best practices. Lessons and activities provided to flight instructors by the WINGS curriculum help to ensure flight instructors are familiar with current flight training standards and procedures. For these reasons, the FAA has determined that § 61.197 should include a standalone method that would allow persons to renew their flight instructor certificates or establish recent experience, as proposed, by serving as a flight instructor and participating in the WINGS program.

Because the WINGS Program is currently accepted as a certificate renewal method for flight instructors and the FAA finds that the program familiarizes flight instructors with current flight training standards and procedures, the FAA proposes to add regulatory text to § 61.197(b)(2) to expressly allow participation in the program as a method for meeting recent experience. 21 Rather than codifying the WINGS Program itself, the FAA proposes to adopt language in § 61.197(b)(2)(v) that would allow a flight instructor to satisfy recent experience by serving as a flight instructor in an FAA-sponsored pilot proficiency program, provided certain proposed requirements are met. The phrase “FAA-sponsored pilot proficiency program” is intended to provide flexibility in the regulation to account for programs comparable to the WINGS Program that may be developed in the future. Among the proposed requirements, the flight instructor would be required to hold a flight instructor certificate and meet the appropriate flight instructor recent experience requirements of part 61. Additionally, the proposed rule would require the flight instructor to complete at least one phase of the FAA-sponsored pilot proficiency program in the preceding 12 calendar months from the time of application. The FAA finds that requiring a flight instructor to participate in the program by completing at least one phase in the preceding 12 months would ensure that the flight instructor maintains pilot proficiency while gaining first-hand knowledge of the program and its benefits. 22 Lastly, the flight instructor would be required to have given at least 15 hours of flight training under the FAA-sponsored pilot proficiency program to at least 5 pilots and to have made appropriate endorsements in those pilots' logbooks. 23 A person serving as a flight instructor under the WINGS Program would satisfy this proposed requirement by giving flight training during at least 15 WINGS-accredited flight activities at any level to at least five different pilots. The FAA is proposing to require flight instructors to provide flight training to various individuals under the WINGS Program to ensure that the flight instructor encounters different experiences and familiarizes themselves with current flight training standards and procedures. Due to the proposed reorganization of § 61.197, which is discussed next, these proposed requirements are contained in § 61.197(b)(2)(v).

In changing the flight instructor renewal requirements to flight instructor recent experience requirements, the FAA proposes to reorganize the requirements of § 61.197 for clarity. Proposed § 61.197(a) would prohibit a person from exercising flight instructor privileges if that person has not satisfied the flight instructor recent experience requirements within the preceding 24 calendar months. Proposed § 61.197(a) would also specify how to determine when the 24 calendar month period begins. Initially, as proposed in § 61.197(a)(1), the 24 calendar month period would begin the month the FAA issues the flight instructor certificate without an expiration date to the person. 24 This would be the case for persons who are being issued the flight instructor certificate for the first time and also for persons renewing their flight instructor certificate upon completing the recent experience requirements to obtain a flight instructor certificate without an expiration date. As discussed further below, persons who currently hold a flight instructor certificate with an expiration date would be required to meet the recent experience requirements prior to the expiration date listed on their certificate. After the initial 24 calendar month period following the issuance of the flight instructor certificate without an expiration date, persons would determine the beginning of the subsequent 24 calendar month period based on when they accomplish the recent experience event. For example, if a person accomplishes recency during the first 20 months of their current recent experience period, that person's next 24 calendar month period would begin the month the recent experience requirements are accomplished. However, consistent with what the FAA currently allows, 25 if a person accomplishes recency within the 3 calendar months preceding the last month of the person's current recent experience period ( i.e., the 24th calendar month), the next 24 calendar month period would begin the last month of the flight instructor's current recent experience period ( i.e., the 24th calendar month).

The FAA proposes to relocate the current renewal requirements, which would become recent experience requirements, from § 61.197(a) to § 61.197(b). Current § 61.197(b), which prescribes requirements for determining the expiration month of a renewed flight instructor certificate, would be removed as unnecessary. Current § 61.197(c), which allows the practical test required by § 61.197(a)(1) to be accomplished in a full flight simulator or flight training device if the test is accomplished under an approved course conducted by a part 142 training center, would be re-designated as § 61.197(d). 26

The FAA also proposes to add two new paragraphs to § 61.197 to accommodate the change from renewal requirements to recent experience requirements. First, the FAA proposes to add § 61.197(c) to prohibit a person who fails to establish recent experience in accordance with the proposed requirements from exercising flight instructor privileges until that person reinstates their flight instructor privileges in accordance with proposed § 61.199. Second, the FAA proposes to add § 61.197(e) to address persons who currently hold flight instructor certificates with expiration dates. Under this proposal, a person who holds a flight instructor certificate with an expiration date would be required to renew that certificate by establishing recent experience in accordance with proposed § 61.197(b). Upon completing recent experience, that person would submit an Airman Certificate and/or Rating Application and associated documentation to the Airman Certification Branch to document experience and obtain a flight instructor certificate without an expiration date. If a person who holds a flight instructor certificate with an expiration date fails to establish recent experience prior to the expiration of their flight instructor certificate, that person may not exercise flight instructor privileges until those privileges are reinstated in accordance with § 61.199. Upon reinstating flight instructor privileges, that person would be issued a flight instructor certificate without an expiration date.

Currently, when a person renews their flight instructor certificate, that person is required to submit an Airman Certificate and/or Rating Application (FAA Form 8710-1 or 8710-11, as applicable) to the FAA along with associated documentation that shows the flight instructor satisfactorily completed one of the renewal requirements. 27 The airman submits FAA Form 8710-1 or 8710-11, as applicable, through the Integrated Airman Certification and Rating Application (IACRA) or by conventional mail to the Airman Certification Branch. Maintaining these records enables the FAA to keep track of how many flight instructor certificates have been renewed. The FAA notes that it is frequently asked to provide this data from many sources, such as governmental offices and industry. Under the proposed amendments, § 61.197 would continue to require persons to submit an Airman Certificate and/or Rating Application and associated documentation  28 to the FAA upon completion of the recent experience requirements. Submission of FAA Forms 8710-1 or 8710-11, as applicable, would remain the exclusive form and manner acceptable to the Administrator to submit flight instructor data to identify, validate, and track the flight instructor's recent experience period.

This process would allow the FAA to track and record the status of flight instructor certificates by capturing the events in which an applicant satisfies the proposed recent experience requirements of § 61.197. While the flight instructor would not be applying to renew a certificate, the FAA finds it is necessary to maintain Forms 8710-1 and 8710-11 as the collection mechanism because it would allow the FAA to continue to track the number of flight instructors who are eligible to exercise the privileges of their flight instructor certificates in a manner that flight instructors are accustomed. Additionally, utilizing Forms 8710-1 and 8710-11 would allow the FAA to validate that the flight instructor does, in fact, satisfy the recent experience requirements. Should the FAA find that the flight instructor either does not sufficiently show a recent experience requirement has been met, or does not meet the recent experience requirements, the FAA would deny the applicant's 8710-1, and direct the appropriate Flight Standards District Office (FSDO) to issue a Letter of Disapproval to the flight instructor. To ensure the flight instructor is prepared to show satisfactory evidence of meeting recent experience, the FAA recommends that flight instructors record the date and method used to establish recent experience in their logbooks or records to track their eligibility to exercise flight instructor privileges. The FAA notes that a flight instructor would be able to verify the status of their flight instructor certificate online at Airmen On-Line Services or by contacting the FAA Airman Certification Branch. 29

The FAA has revised FAA Forms 8710-1 and 8710-11 to account for recent experience for flight instructors and has placed a draft of each revised form in the docket for this rulemaking. The FAA notes that, in addition to the recent experience revisions, the FAA has also modified the form to clarify certain information. Specifically, and unrelated to this rulemaking, the FAA published a notice in the Federal Register inviting public comment on an information collection renewal for Forms 8130-15, 8710-11, and 8710-12 on April 7, 2022 (87 FR 20497, Docket. No. FAA-2022-0455). AOPA commented in response to the notice recommending Question I.Za. on Form 8710-11 be amended to clarify whether alcohol offenses (generally) and those involving motor vehicle actions (specifically) should be reported on the form. The FAA has clarified this question and added requisite instructions in response to AOPA's comment on both draft forms. While revising the form, the FAA also clarified question M. to restate from the instructions page that a student pilot certificate is considered a pilot certificate for purposes of the question. Finally, the FAA has also removed references to inspection authorization in both draft forms, as the FAA does not use these forms for initial or renewal inspection authorization applications. Rather, mechanics applying for an inspection authorization utilize Form 8610-1, which contains the requisite information. The FAA has analyzed these changes and determined that they do not affect the collection of information expected of the public such that any burden would increase.

Currently, § 61.199 prescribes the reinstatement requirements for flight instructors who have allowed their flight instructor certificates to expire. To reinstate a flight instructor certificate, a person must either satisfactorily complete a flight instructor practical test or satisfy the reinstatement requirements for military instructor pilots. More specifically, a person who is not a military instructor pilot must satisfactorily complete either a flight instructor practical test for one of the ratings held on the expired flight instructor certificate or a flight instructor certification practical test for an additional rating. Military instructor pilots may either complete a flight instructor practical test or satisfy the requirements prescribed specifically for military instructor pilots in § 61.199(a)(3). 30 The reinstatement requirements of § 61.199 apply regardless of how recently the flight instructor certificate expired.

The FAA adopted the requirement for a flight instructor to take a practical test upon expiration of their flight instructor certificate in 1965  31 when the FAA adopted the biennial renewal requirements for flight instructor certificates, as previously discussed in section III.A.2 of this preamble. For the renewal or reinstatement of a flight instructor certificate, the FAA required a person to satisfactorily demonstrate to the Administrator the applicant's ability to give flight instruction by passing a practical test. However, the final rule allowed the Administrator to limit the test to those items necessary to determine continued competency of the applicant if the certificate was unexpired and the person's record of flight instruction warranted it. The FAA adopted the biennial expiration and renewal requirements to create a higher standard of flight instruction and ensure that flight instructors were familiar with current flight training standards and procedures.

Today, a flight instructor may renew a flight instructor certificate by completing an approved FIRC prior to the expiration date listed on their certificate. The FAA is retaining this method of renewal. However, a flight instructor who allows their flight instructor certificate to expire must pass a practical test regardless of how recently the flight instructor certificate expired. The FAA finds that the knowledge and skills of a person who renews their flight instructor certificate by completing an approved FIRC within the 24 month renewal window are comparable to the knowledge and skills of a person whose flight instructor certificate expired less than three calendar months after that period. Therefore, the FAA finds it unnecessary to require a person to take a flight instructor practical test during the first three calendar months following the expiration of the person's flight instructor certificate, or following the person's lapse in recent experience as proposed, because the flight instructor's knowledge and skills will not have degraded significantly during that time.

Furthermore, the FAA finds that the current reinstatement requirements of § 61.199 ( i.e., successful completion of a practical test) discourages many flight instructors who would otherwise renew their certificates shortly after expiration when there is little degradation in knowledge and experience. For example, a person whose flight instructor certificate has been expired for only one day is still required to take a practical test even though the completion of an approved FIRC and submission of the documents required under § 61.197(a)(2) a few days sooner would have been sufficient. The FAA has determined that requiring a flight instructor to take a practical test shortly after their flight instructor certificate expires imposes unnecessary personal and financial burdens on that flight instructor. Taking a practical test is a time and cost-intensive endeavor. This expenditure generally includes the applicant's personal time to prepare for, arrange, and take the test; the cost of a designated examiner to conduct the test; and the aircraft operational or rental costs incurred while taking the test. These costs are significantly higher than the cost of completing an approved FIRC  32 under current § 61.197(a)(2)(iii). 33

An approved FIRC informs flight instructors of the recent changes in general aviation flight training; provides flight instructors with the necessary refresher training; and exposes flight instructors to the latest in-flight training techniques, the newest technologies, and the latest operational safety procedures. FIRCs also emphasize development and improvement of the instructor skills necessary to effectively convey information to pilots-in-training and build a foundational culture of safety within them. 34 The FAA finds that allowing a flight instructor to complete an approved FIRC during the first three months following the flight instructor's lapse in recent experience would achieve the same level of safety as the current reinstatement requirements by ensuring flight instructors have the necessary level of aeronautical knowledge to perform their job effectively.

The FAA understands that a flight instructor's technical knowledge and instructional proficiency diminishes over prolonged inactivity; however, a flight instructor's knowledge and proficiency is not diminished on the day, or shortly after the day, the instructor's recent experience period has lapsed. Therefore, the FAA determined that mandating a practical test, as the only means to reinstate a flight instructor's recent experience and privileges, is unwarranted shortly after a flight instructor's recent experience lapses. As discussed earlier, AOPA also asked the FAA to add a three-month period to allow a flight instructor to reestablish recent experience by completing a FIRC within those three months. The FAA finds that three-calendar-months following the flight instructor's lapse of recent experience is an appropriate period to reinstate the privileges of their flight instructor certificate by completing a FIRC without adversely affecting the quality of flight training or flight safety. For the reasons discussed above, the FAA determined that there is good cause to propose a three-calendar-month period to allow flight instructors to reinstate their privileges to instruct by completing an approved FIRC.

The FAA's proposal to add a three-calendar-month reinstatement period that would allow flight instructors to take an approved FIRC rather than a practical test is intended to encourage flight instructors to reinstate their flight instructor privileges during the three calendar months following their lapse in recent experience. The FAA notes that a flight instructor may not exercise the privileges of their flight instructor certificate when their recent experience has lapsed. Furthermore, this option would accommodate flight instructors who have encountered unique circumstances, such as national disasters, that may have prevented them from renewing their certificates before the expiration date.

As explained in the previous sections, flight instructor certificates would not expire under this proposal, and flight instructors would be required to satisfy recent experience requirements rather than renewal requirements. As a result, the FAA proposes to make conforming amendments to § 61.199. More specifically, § 61.199 would contain the requirements for reinstating flight instructor privileges for persons who have allowed their recent experience to lapse, rather than reinstatement requirements for expired flight instructor certificates.

Accordingly, the FAA proposes to amend § 61.199(a) by adding a three-calendar-month reinstatement period that would immediately follow the flight instructor's lapse in recent experience, during which a person would have the option to reinstate their flight instructor privileges by completing an approved FIRC. This new reinstatement option would be contained in § 61.199(a)(1). The FAA notes that proposed § 61.199(a)(1) would also retain the option for a person to reinstate their flight instructor privileges during the first three calendar months by passing a practical test in accordance with proposed § 61.199(a)(2) because this option is currently allowed today. Proposed § 61.199(a)(2) would contain the current requirements and would apply if more than three calendar months have passed since the last month of the flight instructor's recent experience period. Therefore, under proposed § 61.199(a)(2), a person would be required to pass either a flight instructor practical test for one of the ratings held on their flight instructor certificate or a flight instructor practical test for an additional rating. 35

Additionally, in a 2018 final rule, the FAA added a temporary provision to § 61.199(c) to allow military instructors who obtained their initial flight instructor certificate under subpart H prior to October 20, 2009, to reinstate that instructor certificate based on military experience rather than by completing a practical test. 36 Per § 61.199(d), this temporary provision expired on August 26, 2019. As this expiration date has passed and this method of reinstatement for expired flight instructor certificates is no longer permitted, the FAA proposes to remove § 61.199(c) and (d) from the regulations.

The FAA proposes to make conforming amendments to §§ 61.2, 61.56, 61.425, 61.427, and Special Federal Aviation Regulation (SFAR) No. 100-2 to ensure consistency with the FAA's proposal to amend §§ 61.197 and 61.199. For reasons discussed in more detail below, the FAA also proposes to relocate and codify the requirements of SFAR 100-2 in the regulations.

Section 61.2(b) requires persons to meet the appropriate airman and medical recent experience requirements to exercise privileges of an airman certificate, rating, endorsement, authorization, or foreign pilot license. Currently, § 61.2(b) refers to the recent experience requirements of part 61 as “recency” requirements rather than “recent experience” requirements. The FAA recognizes that it uses the terms “recency,” “recent flight experience,” and “recent experience” requirements interchangeably in the regulations. However, the terms “recent flight experience” and “recent experience” are used more frequently than “recency.” The FAA proposes to revise § 61.2(b) to use the term “recent experience” requirements to create consistency within part 61 and conform to the proposed changes to § 61.197, which would create recent experience requirements for flight instructors. The FAA notes that the term “recent experience” is more appropriate than “recent flight experience” because § 61.2(b) requires a person to meet the appropriate airman and medical recent experience requirements of part 61, which contain more than flight experience requirements.

Section 61.56 prescribes the requirements for a flight review, which must consist of a minimum of 1 hour of flight training and 1 hour of ground training. Except as specified in § 61.56(d), (e), and (g), a person may not act as pilot-in-command (PIC) of an aircraft unless that person has accomplished a flight review in the 24 calendar months preceding the month in which the pilot acts as PIC. 37 Therefore, § 61.56(d) contains certain exceptions to the flight review requirements. Under § 61.56(d)(2), a person need not accomplish a flight review if the person has passed a practical test conducted by an examiner for one of the following: the issuance of a flight instructor certificate, an additional rating on a flight instructor certificate, renewal of a flight instructor certificate, or the reinstatement of a flight instructor certificate.

Under the proposal, flight instructor certificates would no longer expire, and flight instructors would no longer be required to renew their flight instructor certificates under § 61.197. Instead, § 61.197 would contain flight instructor recent experience requirements and allow a person to establish recent experience by passing a practical test for one of the ratings listed on the flight instructor certificate or for an additional flight instructor rating. Additionally, § 61.199 would contain requirements for reinstating flight instructor privileges rather than requirements for reinstating an expired flight instructor certificate. Among the options for reinstatement, a person may pass a flight instructor practical test. Therefore, the FAA is proposing to revise the language of § 61.56(d)(2) to conform to the changes proposed in §§ 61.197 and 61.199.

Additionally, the FAA is proposing a minor editorial change to § 61.56(e) to remove the word “award” in the description of the FAA-sponsored pilot proficiency program. The FAA currently sponsors a pilot proficiency program termed WINGS, which was previously described as an “awards” program. However, the FAA no longer assigns this terminology to WINGS, as the WINGS program is more properly described simply as a proficiency program designed to help improve pilot skills and knowledge. Further, the removal of the term “award” more accurately encompasses the general objectives of a pilot proficiency program to meet the flight renewal provision of § 61.56(e) should the FAA sponsor additional programs.

Section 61.56(f) provides an exception to the ground training portion of the flight review requirement. Under current § 61.56(f), a person who has satisfactorily renewed their flight instructor certificate under current § 61.197 is not required to accomplish the one hour of ground training required for a flight review. Because proposed § 61.197 would contain recent experience requirements for a flight instructor certificate rather than renewal requirements, the FAA is proposing to make conforming amendments to § 61.56(f). Therefore, § 61.56(f) would except a flight instructor from the ground training requirements of a flight review if that flight instructor has met the recent experience requirements for a flight instructor certificate under § 61.197.

In addition, the FAA proposes to revise § 61.56(f) to except any persons who reinstate their flight instructor privileges from the ground training portion of the flight review by completing an approved FIRC within the three calendar month reinstatement period proposed in § 61.199(a)(1). Under the proposal, a person who reinstates their flight instructor privileges by completing a practical test under § 61.199(a)(2) would be excepted from the entire flight review. However, a person who satisfies recent flight instructor experience by satisfactorily completing an approved FIRC would be excepted from only the ground training portion of the flight review. The FAA finds that a person who reinstates their flight instructor privileges by completing an approved FIRC during the three-calendar-month reinstatement period should be given the same relief as a person who establishes recent experience by completing an approved FIRC. The FAA proposes to revise § 61.56(f) accordingly.

Currently, §§ 61.425 and 61.427 prescribe renewal and reinstatement requirements for persons who hold a flight instructor certificate with a sport pilot rating. Under § 61.425, a person who holds a flight instructor certificate with a sport pilot rating may renew that certificate in accordance with § 61.197. Section 61.427 allows a person to exchange their expired flight instructor certificate with a sport pilot rating for a new certificate with a sport pilot rating and any rating on that certificate by passing a practical test as prescribed in § 61.405(b) or § 61.183(h) for one of the ratings listed on their expired flight instructor certificate.

To ensure consistency with the proposed amendments to §§ 61.197 and 61.199, the FAA proposes to make conforming amendments to §§ 61.425 and 61.427. The FAA proposes to bifurcate § 61.425 into two paragraphs. Section 61.425(a) would govern flight instructor certificates issued without expiration dates. Section 61.425(b) would govern flight instructor certificates issued prior to the final rule becoming effective, which would contain expiration dates. Thus, § 61.425(a) would require a person who holds a flight instructor certificate with a sport pilot rating issued after the final rule's effective date to establish recent experience in accordance with § 61.197 ( i.e., within the 24 preceding months, the person has satisfied one of the recent experience requirements in § 61.197(b)). For persons who hold unexpired flight instructor certificates with a sport pilot rating issued before the final rule becomes effective, § 61.425(b) would allow those persons to renew their certificate by establishing recent experience in accordance with § 61.197 prior to the expiration month listed on their flight instructor certificate.

In addition, the FAA proposes to revise § 61.427 to align with the proposed amendments to § 61.199. Therefore, proposed § 61.427 would address how to reinstate flight instructor privileges if a person fails to establish recent experience for a flight instructor certificate with a sport pilot rating. Consistent with proposed § 61.199, a person who holds a flight instructor certificate with a sport pilot rating must reinstate their flight instructor privileges by successfully completing an approved FIRC if three calendar months or less have passed since the last month of their recent experience period. Section 61.427(a) would contain this proposed requirement. If more than three calendar months have passed since the last month of the flight instructor's recent experience period, the flight instructor with a sport pilot rating would be required to pass a practical test in accordance with proposed § 61.427(b) to reinstate their flight instructor privileges.

Currently, SFAR No. 100-2 provides relief to U.S. military and civilian personnel who have served outside the United States in support of U.S. Armed Forces operations during some period of time beginning on or after September 11, 2001. To be eligible for the relief under SFAR No. 100-2, the person's flight instructor certificate, airman written test report, or inspection authorization must have expired sometime between September 11, 2001, and six calendar months after returning to the United States. SFAR No. 100-2 allows these persons to present an expired flight instructor certificate to show eligibility for renewal of a flight instructor certificate under § 61.197; an expired written test report to show eligibility to take a practical test under parts 61, 63, and 65; and an expired inspection authorization to show eligibility for renewal under § 65.93. To exercise the relief provided by SFAR No. 100-2, the person must renew their flight instructor certificate or inspection authorization, as appropriate, or pass the appropriate practical test within six calendar months after returning to the United States. The FAA recognizes that a person could have multiple deployments. The FAA, therefore, notes that this SFAR provision does not allow a person to exercise the relief within six calendar months after returning from the United States following any deployment. Instead, a person must exercise the relief within the six calendar months after returning to the United States following the deployment where the flight instructor certificate, written test report, or inspection authorization expired. In addition, a person must submit required documentation to the FAA with their Airman Certificate and/or Rating Application. Currently, SFAR No. 100-2 is “effective until further notice.”

The relief provided by SFAR No. 100-2 has existed since the FAA issued SFAR No. 96 on May 6, 2002. After the terrorist attacks of September 11, 2001, many U.S. military and civilian personnel were assigned outside the United States in support of Operation Enduring Freedom. For this reason, the FAA adopted SFAR No. 96 to provide relief to a narrow range of individuals in a narrow set of circumstances. 38 As a result of the continuing conflicts, the FAA superseded SFAR No. 96 with SFAR No. 100, which applied to all military and civilian personnel assigned overseas in support of any and all U.S. Armed Forces operations. 39 On June 30, 2005, the FAA extended SFAR No. 100 by issuing SFAR No. 100-1 with an expiration date of June 20, 2010. 40 The FAA subsequently replaced SFAR No. 100-1 with SFAR No. 100-2 on March 4, 2010. 41 The FAA issued SFAR No. 100-2 without an expiration date to ensure the U.S. personnel assigned outside of the United States, who continue to preserve, protect, and defend the American public, can obtain additional time for renewal of their flight instructor certificates, inspection authorizations, and airman written test reports.

As evident from the history of the SFAR, there is an ongoing need to retain the relief provided by SFAR No. 100-2. The relief has existed for over 19 years, and the FAA is unable to determine an expiration date for the relief because of ongoing overseas operations. Because SFAR No. 100-2 is not temporary, the FAA finds that the content of SFAR No. 100-2 would be more appropriately addressed as a new section in part 61. Therefore, the FAA is proposing to relocate and codify the contents of SFAR No. 100-2 into the regulations. Because SFAR No. 100-2 provides relief to persons under parts 61, 63, and 65, the FAA proposes to codify the contents of SFAR No. 100-2 by amending parts 61, 63, and 65.

Specifically, the FAA proposes to add new § 61.40, which would codify the general contents of SFAR No. 100-2. Then, the FAA proposes to revise various sections of parts 61, 63, and 65 by including cross-references to § 61.40 where necessary to ensure the relief of SFAR No. 100-2 is appropriately codified in the appropriate part. The FAA emphasizes that it is not proposing any substantive changes to the content of SFAR No. 100-2 other than extending the relief to include persons who have failed to establish recent flight instructor experience requirements in accordance with proposed § 61.197, which is discussed in more detail below. However, the FAA has contemplated revising the provisions that reference the September 11, 2001 date because more than 20 years have passed since that date occurred.

The FAA proposes to relocate the content of SFAR No. 100-2 to new § 61.40. Proposed § 61.40(a) would prescribe the documents that must be presented to show eligibility to renew a flight instructor certificate, establish recent flight instructor experience, take a practical test, or renew an inspection authorization, as appropriate. Proposed § 61.40(b) would contain the requirements for a person to be deemed eligible for the relief specified in § 61.40(a). Lastly, proposed § 61.40(c) would contain the documentation requirements. The FAA notes that paragraph 3 of SFAR No. 100-2, which contains the current documentation requirements, requires a person to submit  42 the Airman Certificate/or Rating Application, FAA Form 8710-1 or 8710-11, as applicable, to the appropriate Flight Standards office. However, FAA Form 8710-1 is not the appropriate application for every person seeking relief under SFAR No. 100-2. 43 Therefore, in addition to its proposal to relocate the documentation requirements to § 61.40(c), the FAA proposes to revise the provision to require a person to complete the application appropriate to the relief sought.

Depending on the date the flight instructor certificate was issued, proposed § 61.40(a)(1) through (3) would allow flight instructors to either renew their expired flight instructor certificate or establish recent flight instructor experience in accordance with § 61.197. As previously mentioned, SFAR No. 100-2 currently provides relief to a person whose flight instructor certificate expires as a result of the person's service overseas. Because the FAA's proposal would remove the expiration dates from flight instructor certificates and convert the flight instructor renewal requirements of § 61.197 to recent experience requirements, the FAA proposes to make conforming amendments to the existing requirements in SFAR No. 100-2. More specifically, the FAA proposes to extend the relief to persons who fail to establish the recent experience requirements of proposed § 61.197 as a result of their service in support of U.S. Armed Forces' operations. For flight instructor certificates issued after the final rule becomes effective, the person would be required to present a record demonstrating the last recent experience event accomplished under § 61.197 to show eligibility to reestablish recent experience under § 61.197. However, the FAA recognizes that there may be persons who are issued a flight instructor certificate for the first time after the final rule becomes effective that are unable to establish recent experience during their first 24 months as a flight instructor. For these persons, the FAA proposes to allow them to present a flight instructor certificate demonstrating the date of issuance to show eligibility to establish recent experience under § 61.197. The FAA proposes to codify this relief by adding new § 61.40(a)(2) and (3) and by including the necessary cross-references in proposed § 61.197(c) and (e). Proposed § 61.40(a)(1) would contain the existing relief for persons holding expired flight instructor certificates.

Proposed § 61.40(a)(4) through (6) would allow eligible persons to take a practical test under parts 61, 63, and 65 with expired written test reports. The FAA recognizes that there are several regulations throughout parts 61, 63, and 65 that require the applicant to have passed the knowledge test within the 24-calendar-month period preceding the month the applicant completes the practical test. Therefore, the FAA proposes to revise certain sections of parts 61, 63, and 65 to enable persons to exercise the relief provided by proposed § 61.40. More specifically, the FAA proposes to revise § 61.39, which contains the prerequisites for practical tests under part 61, by adding new § 61.39(e) to allow applicants for an airman certificate or rating under part 61 to take a practical test with an expired knowledge test if that applicant meets the requirements of proposed § 61.40. The FAA also proposes to include exception language referencing new § 61.39(e) in § 61.39(a), (b), and (c), which would implement the relief provided by proposed § 61.40. With respect to part 63, the FAA proposes to revise §§ 63.35(d) and 63.53 to allow applicants for flight engineer certificates or ratings and applicants for flight navigator certificates to take their practical tests under part 63 with expired written test reports in accordance with § 61.40. 44 With respect to part 65, the FAA proposes to revise §§ 65.55 and 65.71  45 to allow applicants for aircraft dispatcher certificates and mechanic certificates or ratings to take their practical tests under part 65 with expired written test reports in accordance with § 61.40. Proposed § 65.55(b) and (c) add an exception to allow eligible persons to take a practical test for an aircraft dispatcher certificate under part 65 with an expired written test report in accordance with § 61.40. Proposed § 65.75(d) excepts eligible persons from the requirement that a certificated mechanic must pass the required tests within a period of 24 months. These revisions would ensure the relief currently provided by SFAR No. 100-2 would remain unchanged under the FAA's proposal to relocate and codify the relief in the regulations.

Lastly, proposed § 61.40(a)(6) would allow persons to renew an expired inspection authorization under § 65.93. Because § 65.93 does not currently allow for this relief, the FAA proposes to add new paragraph (d) and to include exception language in current § 65.93(a) to expressly allow an eligible person to renew an expired inspection authorization under part 65 in accordance with § 61.40.

The following table shows which regulations the FAA proposes to revise to enable the codification of SFAR No. 100-2. The table also shows where the FAA proposes to codify each provision of SFAR No. 100-2.

The FAA recognizes that its proposed relocation and codification of SFAR No. 100-2 may not be the best approach because part 61 does not apply to persons taking practical tests under parts 63 or 65 or to a person renewing an authorization inspection under § 65.93. The FAA proposes to include the substantive requirements of current SFAR No. 100-2 in § 61.40 and then cross-reference those requirements in parts 63 and 65 because current SFAR No. 100-2 is located in part 61. Parts 63 and 65 currently contain editorial notes leading persons to the relief provided in SFAR No. 100-2 under part 61.

The FAA considered an alternative approach to codify the relief currently provided by SFAR No. 100-2 under parts 61, 63, and 65. More specifically, parts 61, 63, and 65 would each contain a new section that would codify the relief currently provided by SFAR No. 100-2 appropriate to the persons regulated under the respective part. For example, § 61.40 would allow persons to renew an expired flight instructor certificate, establish recent flight instructor experience, and take practical tests for airmen certificates under part 61, provided the eligibility and documentation requirements are satisfied. Part 63 would contain a new section that would allow a person to take a practical test under part 63 with an expired written test report, provided the eligibility and documentation requirements are satisfied. Lastly, part 65 would contain a new section that would allow a person to renew an expired inspection authorization under § 65.93 or take a practical test under part 65 with an expired written test report, provided the eligibility and documentation requirements are satisfied. While the FAA considered this approach, the FAA has determined that the proposal integrates the relief set forth in SFAR 100-2 into the permanent regulations in the most effective and streamlined manner.

Section 61.195(h) contains the qualifications for flight instructors seeking to instruct initial flight instructor applicants. Currently, under § 61.195(h)(2), to provide flight training to an initial flight instructor applicant under part 61, the flight instructor must, in addition to other requirements, 46 have held a flight instructor certificate for at least 24 months and have given at least 200 hours of flight training as a flight instructor for an airplane, rotorcraft, or powered-lift rating (or 80 hours in the case of glider instruction). A person serving as a flight instructor in an FAA-approved course for initial flight instructor applicants has the option of meeting either the aforementioned requirements or the requirements of § 61.195(h)(3). Currently, § 61.195(h)(3) allows a person to serve as a flight instructor in an FAA-approved course for initial flight instructor applicants if that person has trained and endorsed at least five applicants for a practical test, 47 at least 80 percent of those applicants passed the practical test on their first attempt, and the flight instructor has given at least 400 hours of flight training for training in an airplane, rotorcraft, or powered lift rating (or 100 hours of flight training for training in a glider rating).

The FAA initially adopted the 24-month experience requirement in 1973. 48 In the NPRM that published on March 23, 1972, the FAA proposed to require an applicant for a flight instructor certificate to receive training from either a person holding a gold seal flight instructor certificate or a person who has held a flight instructor certificate for 24 months and who has given at least 200 hours of flight instruction (or 80 hours in the case of glider instruction). 49 In proposing these experience requirements, the FAA explained that these qualifications were comparable to having a gold seal flight instructor certificate. 50 However, in the 1973 final rule, the FAA withdrew the proposal to establish a gold seal flight instructor certificate in the regulations. 51 In that final rule, the FAA adopted § 61.187, which required an applicant for a flight instructor certificate to receive training from a flight instructor who has held a flight instructor certificate for 24 months and who has given at least 200 hours of flight instruction (or 80 hours in the case of glider instruction). 52

In 1997, the FAA adopted a final rule that relocated the qualifications for flight instructors seeking to train initial flight instructor applicants from § 61.187 to § 61.195(h). 53 The 1997 final rule added qualification requirements for ground instructors in § 61.195(h)(1), placed the existing 24 month experience and requisite flight hour requirements in § 61.195(h)(2), and added a new qualification option in § 61.195(h)(3) for flight instructors serving in an FAA-approved course. The alternative qualifications of § 61.195(h)(3) required a flight instructor to have trained and endorsed at least five persons for a pilot certificate or rating practical test; have a record reflecting that at least 80 percent of those persons passed that practical test on their first attempt; and have given a minimum amount of flight training. In the case of airplanes, the minimum amount of flight training given must have been 400 hours; in the case of gliders, the minimum amount of flight training given must have been 100 hours. The FAA intended for § 61.195(h)(3) to allow persons who held a flight instructor certificate for less than 24 months to give training to flight instructor candidates. 54 The FAA explained that some full-time flight instructors may meet the 400-hour requirement before accumulating 24 months of training experience, and such instructors should be allowed to train flight instructor candidates within the structure of an approved training program. The FAA determined that the alternative qualifications of § 61.195(h)(3) provided at least an equivalent level of safety to the 24 month experience and minimum flight time requirements.

On April 20, 2017, the FAA assigned the Aviation Rulemaking Advisory Committee (ARAC) the task to evaluate the FAA's regulations in 14 CFR to determine any and all regulations that should be repealed, replaced, or modified and to provide feedback on the regulatory actions identified in the FAA's regulatory agenda. 55 The ARAC submitted its Addendum Recommendation Report to the FAA on September 12, 2017. 56 As part of this report, the ARAC recommended the FAA modify § 61.195(h)(2)(iii) because the current requirement that the flight instructor must have held their flight instructor certificate for at least 24 months is outdated, unnecessary, ineffective, and inhibits job creation. The ARAC recommended the FAA revise § 61.195(h)(2)(iii) by adding the option for a flight instructor to complete an FAA-approved standardization course at a part 141 pilot school that provides instruction on the intricacies of training a flight instructor applicant. The FAA notes that the ARAC's primary rationale for changing the requirement was based on the shortage of flight instructors qualified to instruct initial flight instructor applicants. 57 The ARAC explained that the flight instructor profession is a transient position for the vast majority of pilots on their way to fly jets professionally and the turnover is approaching 90% annually.

The National Air Disaster Foundation (NADF) and the Air Line Pilots Association International (ALPA) submitted dissenting opinions, strongly opposing the ARAC recommendation to eliminate the existing regulation that requires at least 24 months of flight instructor experience. The NADF explained that flight instructors must be experienced and should not be students teaching and supervising other students. ALPA stressed that the ARAC's proposal is based upon an economic basis and makes no mention of what safety impacts were considered. ALPA stated that the 24-month experience requirement is a time-proven regulation that helps ensure flight instructor candidates are taught how to instruct others only by pilots who have a level of experience and competence serving as flight instructors themselves. ALPA believed the 24-month experience requirement leads to experience, knowledge, professionalism, expertise, and skill that make an individual a better instructor. In addition, ALPA stated that any real or perceived shortage of instructors is an inappropriate justification for reducing instructor qualifications and reduces the quality of training and, ultimately, safety.

The FAA recognizes that the current 24-month experience requirement may lead some flight instructors to gain the experience, knowledge, and skill necessary to instruct initial flight instructor candidates during that 24-month timeframe. However, the FAA finds that the 24-month experience requirement is limiting because it does not account for persons who may have achieved the level of proficiency required to instruct initial flight instructor applicants prior to those 24 months. For example, before accumulating 24 months of experience, some full-time flight instructors may have provided an extensive amount of flight training that exceeds the 200-hour flight time requirement, established a successful record of training as demonstrated by the passage rate on practical tests by those applicants the instructor has trained, and obtained more experience than part-time instructors who have held their certificate for 24 months. The FAA has determined there are alternative methods to assess whether a flight instructor is qualified to instruct initial flight instructor applicants.

Accordingly, the FAA proposes adding two new qualification options for persons seeking to instruct initial flight instructor applicants. The first option would allow flight instructors to satisfy the qualification requirements by training and endorsing, during the preceding 24 calendar months, at least five applicants for a practical test, with at least 80 percent passing the practical test on their first attempt. The second option would allow flight instructors to attain qualification by successfully completing an FAA-approved flight instructor enhanced qualification training program (FIEQTP) after giving a requisite amount of flight training to pilot applicants. The following sections discuss the proposed qualification requirements and the proposed curriculum requirements for an approved FIEQTP.

Currently, § 61.195(h)(2) contains the qualification requirements for persons instructing initial flight instructor applicants under part 61, and § 61.195(h)(3) contains the qualification requirements for persons serving as flight instructors under FAA-approved courses. The FAA finds it is unnecessary to make the qualification requirements dependent on whether the flight instructor provides training under part 61, 141, or 142. Flight instructors are either qualified to instruct initial flight instructor applicants or they are not, regardless of which 14 CFR part they are instructing under. Therefore, unlike the current qualification requirements, 58 the FAA proposes to apply the same qualification requirements to all flight instructors. As a result, the FAA proposes to restructure current § 61.195(h). Proposed § 61.195(h)(1) would contain the qualifications for persons providing ground training. 59 Proposed § 61.195(h)(2) would contain the qualifications for persons providing flight training, including persons serving as flight instructors under FAA-approved courses. In addition, as discussed in more detail below, proposed § 61.195(h)(3) would contain the requirements for an FAA-approved FIEQTP.

Consistent with the current regulations, § 61.195(h)(2) would require a flight instructor who provides flight training to an initial applicant for a flight instructor certificate to meet the eligibility requirements of § 61.183 and hold the appropriate flight instructor certificate and rating. The FAA also proposes to require the flight instructor to meet the requirements of the part under which the flight training is conducted. The FAA notes that flight instructors are already required to comply with the requirements of the part under which they are providing flight training. However, because § 61.195(h)(2) would apply to persons serving as flight instructors under parts 61, 141, and 142, including such language in the regulation would add clarity. In addition to meeting these qualifications, a flight instructor would be required to meet one of the qualification options prescribed in § 61.195(h)(2)(i) through (iii).

The first qualification option, in proposed § 61.195(h)(2)(i), would contain the requirements that currently exist in § 61.195(h)(2). Thus, under § 61.195(h)(2)(i), a flight instructor would be qualified to instruct an initial flight instructor applicant if that flight instructor has held their flight instructor certificate for at least 24 calendar months and has given at least 200 hours of flight training as a flight instructor (or 80 hours in the case of glider instruction). The FAA proposes to specify “calendar” months for clarity and consistency with the requirement that a ground instructor has held their certificate for at least 24 calendar months in current and retained § 61.195(h)(1)(i).

The FAA recognizes industry's concerns about these requirements. As previously mentioned, the ARAC believed the experience requirements are ineffective and outdated; however, dissenting opinions emphasized the importance of having experienced flight instructors train initial flight instructor applicants. Furthermore, in the 1997 final rule, AOPA and National Association of Flight Instructors (NAFI) opposed the existing requirement that a pilot be a flight instructor for at least 24 months before qualifying to teach an initial flight instructor applicant. 60 These commenters stated that a minimum amount of instructional experience requirement may be appropriate, but the FAA had failed to prove the need for the specified 200 hours or 24 months of experience required. The FAA acknowledged these comments but explained that they were out of scope because the FAA did not propose changes to the provisions in the existing rule. In this NPRM, the FAA proposes to add alternatives to the 24-calendar-month experience requirement.

The second qualification option, in proposed § 61.195(h)(2)(ii), would contain the first proposed alternative to the fixed 24 calendar month experience requirement discussed above. Under proposed § 61.195(h)(2)(ii), a flight instructor would be qualified to instruct an initial flight instructor applicant if that flight instructor has trained and endorsed, during the preceding 24 calendar months, at least five applicants for a practical test and at least 80 percent of those applicants passed that test on their first attempt. The FAA recognizes that this option is currently available to persons serving as flight instructors under FAA-approved courses, provided they have also given at least 400 hours of flight training as a flight instructor (or 100 hours in the case of glider instruction). 61 Under this proposal, however, the FAA finds it unnecessary to require flight instructors to have given a certain amount of flight training in addition to meeting the standard described above. The FAA finds that any flight instructor who has trained and endorsed at least five applicants for a practical test will have given an extensive amount of flight training that surpasses the 200-hour requirement (or 80 hours in the case of glider instruction), which the FAA proposes to require in the other qualification options. Furthermore, the FAA concludes that the proposed standard of training at least five applicants for a practical test and having at least 80 percent of those applicants pass on their first attempt would more adequately measure a flight instructor's proficiency and instructional ability. For example, rather than holding a flight instructor certificate for 24 calendar months, a flight instructor would be required to have a demonstrated record of success training flight students, which could be attained in the same or less time ( i.e., 24 calendar months). Additionally, that flight instructor will have attained sufficient experience by providing flight training to at least five applicants  62 for a practical test. The FAA notes that all applicants that the flight instructor has trained and endorsed in that time period will be counted for the purposes of calculating the pass rate. 63

The third qualification option, in proposed § 61.195(h)(2)(iii), would contain the second proposed alternative to the 24 calendar month experience requirement. Under this qualification option, a flight instructor may qualify to instruct initial flight instructor applicants if the flight instructor has given at least 200 hours of flight training as a flight instructor (or 80 hours in the case of glider instruction) and has graduated from an FAA-approved FIEQTP conducted under parts 141 or 142.

Prior to taking the FIEQTP, the flight instructor would be required to have given at least 200 hours of flight training in an airplane, rotorcraft, or powered-lift (80 hours if training in a glider). The FAA finds it necessary to require flight instructors to have given a minimum amount of flight training to ensure the flight instructor has obtained a sufficient amount of experience flight instructing. For example, a new flight instructor with no experience would gain little value from taking only the approved FIEQTP as the new flight instructor would have no real world experience to inform the training. Furthermore, the FAA finds that flight instructors who have given at least 200 hours of flight training as a flight instructor before taking the FIEQTP would have established a teaching foundation that would reinforce and contribute to the positive transfer of knowledge and skills associated with the course. Therefore, before taking the FIEQTP, the new flight instructor must have acquired hands-on experience during which the new flight instructor served as a flight instructor in the aircraft. The experience obtained from providing 200 hours of flight training (or 80 hours in the case of glider instruction) and the knowledge and skills acquired from completing the FIEQTP would, together, prepare and qualify the flight instructor to instruct initial flight instructor applicants.

The FAA-approved FIEQTP would be required to satisfy the requirements proposed in § 61.195(h)(3), which are discussed below. This proposed training program would be focused on developing a flight instructor's ability to instruct initial flight instructor applicants. The FAA notes that a person who completes this course would be required to hold a flight instructor certificate. Therefore, persons who take this course will have already obtained the training and aeronautical experience required for and will have already passed the flight instructor practical test. The FIEQTP is not intended to simply repeat the foundational training a person receives in preparation for the flight instructor practical test. The FAA notes that when a person is training in preparation for the flight instructor practical test, that person is learning how to teach other pilots how to fly. The intent of the FIEQTP is to train persons who already hold their flight instructor certificate how to teach other pilots how to provide instruction. Therefore, the FIEQTP would be designed to enhance the flight instructor's instructional ability and to prepare that flight instructor on how to instruct initial flight instructor applicants how to flight instruct, not simply how to fly. The specific requirements for the training program are discussed in the next section.

The FAA notes that a flight instructor who chooses to meet the qualification method in either § 61.195(h)(2)(i) or (iii) is required to have given at least 200 hours of flight training if training for an airplane, helicopter, or powered-lift rating and at least 80 hours of flight training if training for a glider rating. The FAA recognizes that flight instructors may hold multiple category and/or class ratings on their flight instructor certificates. The provisions in proposed § 61.195(h)(2)(i)(A) and (B), which require a flight instructor to have given at least 200 hours of flight training and 80 hours of flight training, respectively, currently exist in § 61.195(h)(2)(iv) and (v). The current provisions, and thus the proposed provisions, do not expressly require the flight training to have been given in a specific category and/or class of aircraft. 64 Instead, the 200-hour and 80-hour requirements are based on experience given as a flight instructor regardless of the category or class of aircraft in which the training was provided. Therefore, a flight instructor with multiple category and/or class ratings on their flight instructor certificate may use the total hours of flight training given as a flight instructor to meet the 200-hour requirement in proposed § 61.195(h)(2)(i)(A) and the 80-hour requirement in proposed § 61.195(h)(2)(i)(B).

I. Introduction

The Commission issued the Funeral Rule on September 24, 1982, and it became fully effective on April 30, 1984. 1 The Funeral Rule's goals are to lower barriers to price competition in the funeral goods and services market and to facilitate informed consumer choice. 2 The Rule helps to achieve these goals by ensuring that: (1) consumers have access to sufficient information to permit them to make informed decisions; (2) consumers are not required to purchase goods and services they do not want and are not required to purchase by law; and (3) misrepresentations are not used to influence consumers' decisions. 3

Among other things, the Rule specifies it is an unfair or deceptive act or practice for a funeral provider to: (1) fail to furnish accurate price information to the purchaser disclosing the cost for each of the specific funeral goods or services used in connection with the disposition of deceased human remains;  4 (2) condition the furnishing of any funeral good or funeral service upon the purchase of any other funeral good or funeral service, or charge a fee as a condition for furnishing any goods or services ( e.g., a “casket handling” fee to consumers who provide their own casket);  5 or (3) embalm the deceased for a fee without authorization when embalming is not required by law. 6 The Rule also specifies it is an unfair or deceptive act or practice for a funeral provider to misrepresent certain legal or cemetery requirements, including those for embalming, caskets or burial containers, or any other funeral good or service. 7

The Rule sets forth preventative requirements in the form of itemized price and information disclosures to ensure funeral providers do not engage in the unfair or deceptive acts or practices described in the foregoing paragraph. First, the Rule requires funeral providers to provide persons inquiring in-person about funeral goods or services with a GPL, which lists the goods and services they offer and their itemized prices, along with specific disclosures. 8 Second, the Rule requires funeral providers to show persons inquiring in-person a Casket Price List (“CPL”) identifying the caskets and alternative containers they offer, and an Outer Burial Container Price List (“OBCPL”) listing the vaults and grave liners they offer, along with specific disclosures. 9 Third, funeral providers are required to tell persons “who ask by telephone about the funeral provider's offerings or prices . . . any accurate information” from the GPL, CPL, or OBCPL, “and any other readily available information that reasonably answers the question.”  10 Fourth, the Rule requires that, at the conclusion of the discussion of arrangements, funeral providers provide consumers with an itemized statement showing all the items selected by the customer and the itemized and total costs for those goods and services, along with other specific disclosures. 11

On February 14, 2020, the Commission initiated a review of the Rule as part of its periodic review of its rules and guides, and solicited comments on, among other issues, the continued usefulness of the Rule. 12 In response to its request for comments, the Commission received 785 comments from a diverse group of respondents. Most commenters supported the retention of the Rule, with many commenters proposing changes to its requirements.

On November 2, 2022, the Commission published an advance notice of proposed rulemaking (“ANPR”) in the Federal Register , announcing the Commission was considering several potential amendments to the Rule. 13 The Commission sought comment about seven topic areas: (1) whether and how funeral providers should be required to display or distribute their price information online or through electronic media; (2) whether funeral providers should be required to disclose third party crematory or other fees on the GPL; (3) whether the Rule's requirements regarding reduced basic services fees should be amended; (4) whether the Rule should be amended to account for new forms of disposition of human remains; (5) whether the Rule's embalming disclosure requirements should be amended; (6) whether the Rule should be changed to improve the readability of the price lists; and (7) whether changes should be made to the Rule to avoid negatively impacting underserved communities. 14 The comment period, as extended, closed on January 17, 2023. 15 In response to the ANPR, the Commission received over 663 comments, including comments from consumers, consumer advocates, funeral homes, and industry advocates.

As part of its rulemaking, the FTC is hosting an in-person public workshop to seek information about the potential amendments described in the 2022 ANPR. The workshop may cover such topics as:

(1) Online or electronic disclosures of price information;

(2) New forms of disposition of human remains; and

(3) The GPL, including the readability of the GPL, the Rule's embalming disclosure requirement and other mandatory disclosures, whether third-party crematory fees and other third-party fees should be disclosed in the GPL, and whether funeral providers should be required or permitted to give out GPLs in languages other than English in any circumstances.

A more detailed agenda will be published at a later date, in advance of the scheduled workshop.

The in-person workshop, which is free and open to the public, will be conducted in a roundtable format and will be held at the Constitution Center, 400 7th Street SW, Washington, DC 20024. For admittance to the Constitution Center, all attendees must show valid government-issued photo identification, such as a driver's license. Please arrive early enough to allow adequate time for this process. The workshop will also be available for viewing via live webcast on the FTC's website at https://www.ftc.gov/news-events/events/2023/09/funeral-rule-workshop.

A court reporter will be present to record the proceedings so a transcription can be made for the public record. This event may also be photographed, videotaped, webcast, or otherwise recorded. By participating in this event, you are agreeing that your image—and anything you say or submit—may be posted indefinitely at https://www.ftc.gov or on one of the Commission's publicly available social media sites.

The workshop will be organized into one or more panels, which will address the designated topics. Panelists will be selected by FTC staff. Other attendees will have an opportunity to comment and ask questions. The Commission will place a transcript of the proceeding on the public record. Requests to participate as a panelist must be received on or before June 19, 2023, as explained in Section IV below. Persons selected as panelists will be notified on or before August 16, 2023.

Disclosing funding sources promotes transparency, ensures objectivity, and maintains the public's trust. If chosen, prospective panelists will be required to disclose the source of any support they received in connection with their participation in the workshop. This information will be included in the published panelist bios as part of the workshop record.

The submission of comments is not required for participation in the workshop. If a person wishes to submit paper or electronic comments related to the issues discussed at the workshop, such comments should be filed as prescribed in Section IV of this document and must be received on or before October 10, 2023. The Commission invites comments only on the specific issues discussed at the workshop.

You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or before October 10, 2023. Write “Funeral Rule Workshop, Project No. P034410” on your comment. Your comment—including your name and your state—will be placed on the public record of this proceeding, including, to the extent practicable, on the publicly available website, https://www.regulations.gov.

Postal mail addressed to the Commission is subject to delay due to heightened security screening. As a result, we encourage you to submit your comments online, or to send them to the Commission by overnight service. To make sure the Commission considers your online comment, you must file it through the https://www.regulations.gov website by following the instructions on the web-based form provided.

Because your comment will be placed on the public record, you are solely responsible for making sure your comment does not include any sensitive or confidential information. In particular, your comment should not include any sensitive personal information, such as your or anyone else's Social Security number; date of birth; driver's license number or other state identification number, or foreign country equivalent; passport number, financial account number, or credit or debit card number. You are also solely responsible for making sure your comment does not include any sensitive health information, such as medical records or other individually identifiable health information. In addition, your comment should not include any “trade secret or any commercial or financial information which . . . is privileged or confidential”—as provided by Section 6(f) of the FTC Act, 15 U.S.C. 46(f), and FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2)—including, in particular, competitively sensitive information, such as costs, sales statistics, inventories, formulas, patterns, devices, manufacturing processes, or customer names.

Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule 4.9(c). In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comments to be withheld from the public record. 16 Your comment will be kept confidential only if the General Counsel grants your request in accordance with the law and the public interest. Once your comment has been posted on the https://www.regulations.gov website, we cannot redact or remove your comment, unless you submit a confidentiality request that meets the requirements for such treatment under FTC Rule 4.9(c), and the General Counsel grants that request.

Requests to participate as a panelist at the workshop should be submitted electronically to funeralrule@ftc.gov, or, if mailed, should be submitted in the manner detailed below. For the Commission to consider your request to participate as a panelist, we must receive it by June 19, 2023. Parties are asked to include in their requests a brief statement setting forth their expertise in or knowledge of the issues on which the workshop will focus, as well as their contact information, including a telephone number and email address (if available), to enable FTC staff to notify them if they are selected.

If you file request to participate on paper, write “Funeral Rule Workshop, Project No. P034410” on your request to participate, and on the envelope, and mail your request to participate to the Federal Trade Commission, Office of the Secretary, 600 Pennsylvania Avenue NW, Suite CC-5610 (Annex F), Washington, DC 20580. If possible, submit your request to participate to the Commission by overnight service.

Visit the Commission website at https://www.ftc.gov to read this document and the news release describing it. The FTC Act and other laws the Commission administers permit the collection of public comments to consider and use in this proceeding as appropriate. The Commission will consider all timely and responsive public comments it receives on or before October 10, 2023. The Commission will consider all timely requests to participate as a panelist in the workshop it receives by June 19, 2023. For information on the Commission's privacy policy, including routine uses permitted by the Privacy Act, see https://www.ftc.gov/site-information/privacy-policy.

In accordance with the Privacy Act of 1974, OPCL is establishing a new system of records, Data Protection Review Court Records System, JUSTICE/OPCL-001, to maintain an accurate record of the Data Protection Review Court (DPRC) review of determinations made by the Civil Liberties Protection Officer of the Office of the Director of National Intelligence (ODNI CLPO) in response to complaints that allege certain violations of United States law in the conduct of United States signals intelligence activities.

On October 7, 2022, the President of the United States issued Executive Order (E.O.) 14086, Enhancing Safeguards for United States Signals Intelligence Activities, 87 FR 62283 (Oct. 14, 2022), which directed the Attorney General to establish the Data Protection Review Court (DPRC) as the second level of a two-level redress mechanism for alleged violations of law regarding signals intelligence activities. The Attorney General issued the regulation on October 7, 2022, now at 28 CFR 201, “Data Protection Review Court.” 87 FR 628303 (Oct. 14, 2022).

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

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

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

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

The Privacy Act allows Federal agencies to exempt eligible records in a system of records from certain provisions of the Act, including those that provide individuals with a right to request access to and amendment of records about the individual. If an agency intends to exempt a particular system of records, it must first issue a rulemaking pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed rule explains why an exemption is being claimed for this system of records and invites public comment, which the Department will consider before the issuance of a final rule implementing the exemptions.

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

The Department also proposes to exempt this system of records because these records relate to criminal law enforcement activities, and certain requirements of the Privacy Act may interfere with the effective execution of these activities and undermine good order and discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), authorizes agencies with a principal law enforcement function pertaining to the enforcement of criminal laws (including activities of prosecutors, courts, etc.) to claim an exemption for systems of records that contain information identifying criminal offenders and alleged offenders, information compiled for the purpose of criminal investigation, or reports compiled for the purpose of criminal law enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2), agencies may exempt a system of records from certain provisions of the Privacy Act if it contains investigatory material compiled for law enforcement purposes, other than materials within the scope of 5 U.S.C. 552a(j)(2). The Department is proposing to claim exemptions from several provisions of the Privacy Act, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to prevent the harms articulated in this rule from occurring. Records in this system of records are only exempt from the Privacy Act to the extent the purposes underlying the exemption pertain to the record. A notice of a new system of records, Data Protection Review Court Records System, JUSTICE/OPCL-001, is published in this issue of the Federal Register .

In accordance with 5 U.S.C. 552a(j) and 552a(k), this proposed action is subject to formal rulemaking procedures by giving interested persons an opportunity to participate in the rulemaking process “through submission of written data, views, or arguments,” pursuant to 5 U.S.C. 553. This proposed rulemaking proposes to exempt this system of records from certain provisions of the Privacy Act to protect national security and law enforcement sensitive information, preserve judicial independence and to ensure the integrity of adjudicatory records in cases before the Data Protection Review Court (“DPRC”). This proposed rule is not a “significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866. OPCL anticipates no costs or benefits accruing from this proposal.

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

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

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

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

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

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

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

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

I. Background on the Kentucky Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Statutory and Executive Order Reviews I. Background on the Kentucky Program

Subject to OSMRE's oversight, section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior conditionally approved the Kentucky program effective May 18, 1982. You can find background information on the Kentucky program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Kentucky program in the May 18, 1982, Federal Register (47 FR 21434). You can also find later actions concerning the Kentucky program and program amendments at 30 CFR 917.11, 917.12, 917.13, 917.15, 917.16, and 917.17.

By letter dated April 18, 2022, (Administrative Record No. KY-2008), Kentucky sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). This submission proposes to revise the qualifications necessary for members to be appointed to the seven-person Reclamation Guaranty Fund Commission. Currently, the governor appoints three members to the commission that are representatives of the coal industry. Representatives are selected based on the amount of coal produced annually by the permittees they represent. Three tiers are created based on the amount of production with one member being selected from each tier. The proposed revisions would allow the governor to appoint a member from a lower tier when no permittee that participates in the fund meets the production level of an upper tier. This submission also removes, and proposes minor revisions to, requirements that are no longer relevant to the operation of the Commission. The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

The proposed amendment would make the following changes to KRS 350.506:

A. Deleting the date “July 1, 2013” in section 1.

B. The word “industry” is replaced in 1(a) with “permittees that participate in the fund” and adds the language “tiered to represent the size of the operator measured in tons of coal sold”.

C. The numbering has been updated in section 1(a)(3).

D. Section 1(a)(3)(b), which read as follows “If no permittee which participates in the fund has mined and sold more the five million (5,000,000) tons of coal in the twelve (12) months preceding appointment, the member shall be selected from permittees which meet the criteria for appointment set out in subparagraph 2. of this paragraph”, is being deleted.

E. The following language is being added section 1(a) “If no permittee that participates in the fund meets the qualifications stated in subparagraph 2 or in subparagraph 3, of this paragraph, then a qualified permittee shall be selected in a lower tier.”

F. Section 2(a ) is being deleted, and subsequent paragraphs are renumbered accordingly.

G. The following language in section 5, “commission shall meet no less than once a month with the first meeting to be held on or before July 1, 2013, during the first year. Commencing with the second year, the” is being deleted and replaced with, “The commission shall meet no less than once every three (3) months. Four (4) members of the commission shall constitute a quorum at any meeting”.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If approved, the amendment will become part of the State program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EDT on June 7, 2023. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and Executive orders governing the rulemaking process and include them in the final rule.

I. Background on the Montana Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Statutory and Executive Order Reviews I. Background on the Montana Program

Subject to OSMRE's oversight, Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved, State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7).

On the basis of these criteria, the Secretary of the Interior approved the Montana program on October 24, 1980. You can find background information on the Montana program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Montana program a in the October 24, 1980, Federal Register (45 FR 70445). You can also find later actions concerning the Montana program and program amendments at 30 CFR 926.25.

By letter dated February 16, 2023 (Administrative Record No. MT-040-01), Montana sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). We found Montana's proposed amendment to be administratively complete on February 17, 2023. Montana submitted the proposed amendment to us, on its own volition, following changes to its statutes in 2019. During the 2019 legislative session, the Montana legislature passed Senate Bill 201 (SB 201). SB 201 updated the Montana Strip and Underground Mine Reclamation Act and § 82-4-222, Montana Code Annotated (MCA).

Montana first proposes to add language, at MCA 82-4-222(1)(g)(i), that would require an applicant for a permit to update their ownership or compliance history with the Montana Department of Environmental Quality (DEQ) if bankruptcy or reorganization results in changes to ownership parties specified in this section. The proposed language also requires that DEQ approve these changes.

Second, the amendment proposes to add language, at MCA 82-4-222(1)(g)(iii), that would require the DEQ to develop rules for permit owners to provide bonding or other financial assurance necessary to meet their financial obligations for employee pensions and reclamation obligations. Furthermore, operators are prohibited from passing associated costs onto purchasers who are dependent on the operator to generate electricity for customers. Lastly, Montana proposes a typographical correction at MCA 82-4-222(1)(q). The full text of the program and/or plan amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4:00 p.m., MDT on June 7, 2023. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and executive orders governing the rulemaking process and include them in the final rule.

I. Background on the Pennsylvania Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Statutory Orders and Executive Reviews I. Background on the Pennsylvania Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved, State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982, Federal Register (47 FR 33050). You can also find later actions concerning the Pennsylvania program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

By letter dated November 15, 2021, (Administrative Record No. PA 908.00), Pennsylvania sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ).

The proposed amendment includes changes to the Pennsylvania regulatory program regulations. The following chapters are revised: 52 P.S. 1396 section 4, Subsections (g.1)(g.2) and (g.3), definition relating to Minimal-Impact Post-mining discharge and definition of Post-mining pollution discharge. In a letter dated December 23, 2003, Pennsylvania requested that we remove the statutory provisions of 1396.4(g.1), (g.2), and (g.3) from the PA- 124 program amendment submission because its statutory definition of minimal-impact post-mining discharge at 52 P.S. section 1396.3 and the regulations for post-mining pollutional discharges [*71256] were not included in the proposed program amendment (Administrative Record No. 853.23). We granted that request and did not take any action with respect to proposed sections 4(g.1), (g.2), and (g.3). We deferred our decision on the inclusion of minimal impact post-mining discharges in the definition of post-mining pollutional discharge until such time as the State submitted the definition of minimal-impact post-mining discharge to us as a proposed program amendment.

The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EDT on June 7, 2023. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and Executive orders governing the rulemaking process and include them in the final rule.

I. Background on the Pennsylvania Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Statutory Orders and Executive Reviews I. Background on the Pennsylvania Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). Based on these criteria, the Secretary of the Interior conditionally approved the Pennsylvania program on July 30, 1982. You can find background information on the Pennsylvania program, including the Secretary's findings, the disposition of comments, and conditions of approval of the Pennsylvania program in the July 30, 1982 Federal Register (47 FR 33050). You can also find later actions concerning the Pennsylvania program and program amendments at 30 CFR 938.11, 938.12, 938.13, 938.15, and 938.16.

By letter dated August 5, 2021, (Administrative Record No. PA 907.00), Pennsylvania sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). This submission addresses several previously not approved items relating to inconsistencies between Pennsylvania's Surface Coal Mining Program (Program) and Federal regulatory requirements relating to water supply replacement as specified at 30 CFR 938.12(c). On May 13, 2005, we published a final rule notice that disapproved five provisions submitted by Pennsylvania pertaining to their water replacement provisions (70 FR 25472). This submission proposes to address those disapprovals. Pennsylvania has submitted several proposed revisions to their water replacement provisions intended to ensure that their water replacement requirements are consistent with SMCRA.

Pennsylvania determined that 25 Pa. Code sections 87. 119 and 88.107 require extensive reorganization for clarity. Therefore, for ease of reference, Pennsylvania has reserved these section numbers in their entirety and adopted sections 87.119a and 88.107a respectively. Several minor editorial changes were made throughout. Substantive changes are summarized as follows:

1. Section 4.2(f)(4) of PA SMCRA was not approved because it allowed for final bond release when there is an outstanding Pennsylvania Department of Environmental Protection (Department) water supply replacement order. See 30 CFR 938.12(c)(1). Sections 87.119(i) and 88.107(i) (relating to hydrologic balance: water rights and replacement) were not approved for the same reason of allowing for final bond release when there is an outstanding Department order. See 30 CFR 938.12(c)(7). The program amendment proposes to eliminate the ability to release bond when a Department order issued under the water supply replacement section is under appeal.

2. 25 Pa. Code Sections 87.1 and 88.1 (Relating to definitions) and 25 Pa. Code Sections 87.119(a)(1)(v) and 88.107(a)(1)(v) (requiring that a restored or replaced water supply shall not result in more than a “de minimis cost increase” to operate and maintain) were also not approved in 2005. This is because it established a less stringent standard than is required by the Federal regulations. 30 CFR 938.12(c)(4) and (5) require that no additional costs be passed along to the water supply owner. This amendment proposes to delete the term “de minimis cost increase” and references thereto making it just as effective as the regulations. See 30 CFR 938.12(c)(4) and (5).

3. 25 Pa. Code Sections 87.119(a) and 88.107(a) were not approved in 2005 because they did not include a requirement to provide temporary replacement water supply. Furthermore, they allowed for the replacement supply to be of a lesser quantity and quality than the pre-mining water supply. See 30 CFR 938.12(c)(5). The proposed revisions amend the Pennsylvania Surface Mining Regulations to render them consistent, where possible, with existing Underground Coal Mining Regulations, specifically 25 Pa. Code Chapter 89.145, which sets forth program provisions that define circumstances where a temporary replacement water supply is required and direct that the supplied temporary or permanent replacement water supply is not of a lower quantity or quality.

4. 25 Pa. Code Section 87.119(a)(3) and 88.107(a)(3) were not approved because they allowed persons with an ownership interest in the water supply to waive the requirements to restore or replace the water supply. The program amendment proposes that the Department may waive the restoration or replacement water supply requirement, if is determined by the Department that the affected water supply is to be abandoned. All persons who possess an ownership interest in the water supply would be required to submit a notarized written statement of knowingly and willingly agreeing to said abandonment.

5. Sections 87.119(g) and 88.107(g) were not approved because they allowed for operators to recover costs in the event that an operator successfully appeals a Department order to restore or replace water supply. OSMRE did not approve these regulations because section 4.2(f)(5) of PASMCRA which provided statutory authority for the regulations was repealed in 2000. As a result, there was no statutory authority for these regulations. The program amendment proposes to allow an operator or mine owner to pursue recovery costs if they prevail in an appeal of a Department order to replace a water supply in accordance with 27 Pa.C.S. section 7708.

In its August 5, 2021 submission (Administrative Record No. PA 907.00), the Department explained that the changes it was proposing to 87.119 and 88.107 required extensive reorganization, and that, to facilitate this, the sections were replaced by the new sections 87.119a and 88.107a. Additional detail on these and other changes proposed in the Department's amendment are discussed below.

i. “ De minimis cost increase ” is proposed to be deleted as required by OSMRE.

ii. “ Alternative water supply information ” proposes revision to sections 87.47 and 88.27 to specify that any affected “water supply” be identified and include water supplies replacement cost calculations be included in the permit application. Additionally, the Department will provide notice to water supply owners for said supplies.

iii. “ Operation and maintenance costs ” is proposed to be included to ensure consistency with State law.

iv. “ Water supply ” is proposed revised to specify that natural soil moisture is not a water supply.

v. “ Water supply owner ” is proposed to be included and that the term be used throughout each provision to avoid repetition of using both “landowner” and “water supply company” terms.

vi. “ Water supply surveys ” is proposed relocated from definitions to the specific section in each chapter.

b. Sections 87.119a and 88.107a propose language setting out requirements for the operator or mine owner, who affects a water supply to any demonstrable extent by contamination, pollution, diminution or interruption, to promptly provide temporary replacement water supplies as defined at 30 CFR 701.5.

c. Sections 87.119a(a) and 88.107a(a) (Water supply surveys), proposes language expanding the detailed requirements for a water supply survey.

d. Sections 87.119a(a)(1) and 88.107a(a)(1) propose expanding existing requirements for the water supply survey, drawing provisions from 25 Pa. Code 89.145a, which govern water supply surveys for underground coal mining. The resulting proposed regulation would address the following requirements:

i. location and type of the water supply;

ii. uses of the water supply, both existing and reasonably foreseeable future uses;

iii. the chemical and physical characteristics of the water;

iv. historic and recent quantity measurements and other hydrologic data;

v. physical description of the water supply;

vi. sufficient sampling and other measurements to document the seasonal variation in hydrologic conditions of the water supply.

e. Sections 87.119a(a)(2) and 88.107a(a)(2) propose the requirements for operators or mine owners to submit the water supply survey to the Department, to the water supply owner, and the water supply user, prior to permit issuance.

f. Sections 87.119a(a)(3) and 88.107a(a)(3) propose the requirements for operators or mine owners to complete a water supply survey prior to the time a water supply is susceptible to mining-related effects and that the survey shall be included as part of the application for a surface mining permit.

g. Sections 87.119a(a)(4) and 88.107a(a)(4) regarding rejection of pre-mining or post-mining surveys by the water supply owner, reorganize the requirements with regard to “defenses to presumption of liability” and “notification to the Department.”

h. Sections 87.119a(b) and 88.107a(b) (Water supply replacement obligation), propose language amending, through enhanced specificity, the existing requirement that an operator or mine owner to restore or replace an affected water supply, no matter how minimal, with a permanent alternative source to meet reasonably foreseeable uses of the existing water supply and that for any water supply that will, with a reasonable degree of certainty establish by supporting evidence, be affected by contamination, pollution, diminution or interruption by the proposed mining, the operator or mine owner shall provide a replacement supply prior to commencing the activity. In addition, it proposes to require that the operator or mine owner provide to the Department, in writing, a description of the locations of a restored or replaced water supply.

i. Sections 87.119a(c) and 88.107a(c) (Temporary water supplies) propose requirements that, if the Department has determined in a preliminary review that the water loss is related to mining activity, a temporary water supply, adequate to meet pre-mining needs, must be provided within 24 hours if no alternate source of water is readily available to the water supply owner or user.

j. Sections 87.119a(d) and 88.107a(d) (Immediate replacement of water supply by the Department) propose language addressing the immediate replacement of a water supply and the Department's authority to recover costs from the responsible operator or mine owner, as relocated verbatim from sections 87.119(e) and 88.107(f).

k. Sections 87.119a(e) and 88.107a(e) (Reimbursement), propose new requirements addressing reimbursement of a water supply owner or user based on a negotiation in circumstances where a water supply owner or user has replaced a water supply that an operator or mine owner is responsible for replacing. This requirement includes a process should disputes arise and the determination by the Department of the fair cost reimbursement. This requirement also imposes a 5-year reimbursement claim period until final bond release.

l. Sections 87.119a(f) and 88.107a(f) (Adequacy of permanently restored or replaced water supply) propose language expanding the concepts of “adequate quality” and “adequate quantity” in permanently restored or replaced water supplies and eliminates references to the concept of de minimis costs of operation and maintenance.

m. Sections 87.119a(g) and 88.107a(g) (Increased operation and maintenance costs) propose language describing the procedure for determining annual operation and maintenance costs and providing for these costs so that the restored or replaced water supply is no more costly to operate and maintain than the original water supply.

n. Sections 87.119a(h) and 88.107a(h) (Special provisions for operation and maintenance costs) propose language clarifying two provisions for operation and maintenance costs: when the ownership of the supply changes; and when there are multiple supplies that have been replaced with associated increases in costs.

o. Sections 87.119a(i) and 88.107a(i) (Waivers) propose to address compensation as an alternative to replacement and would provide that only a water supply owner may waive the operator's or mine owner's responsibility to replace a water supply, which may occur only when replacement is not necessary to achieve the approved post-mining land use.

p. Sections 87.119a(j) and 88.107a(j) (Presumption of liability) propose to restate provisions in PASMCRA that provide that the operator or mine owner is presumed liable for water supply pollution and diminution within 1,000 feet of areas affected by mining and restate the five defenses to the presumption of liability that exist in PASMCRA. This revision does not propose to make any changes to the statutory defenses but clarifies the criteria for the operator or mine owner to be excluded from the presumption of responsibility.

q. Sections 87.119a(k) and 88.107a(k) (Operator cost recovery) propose replacement of language disapproved in 2005 due to the repeal of section 4.2(f)(5) of PASMCRA. They address an operator's or mine owner's ability to recover costs by referencing the current statute related to cost for mining proceedings at 27 Pa.C.S. section 7708.

r. Sections 87.119a(l) and 88.107a(l) (Other remedies) propose language clarifying that nothing in the regulations would prevent a water supply owner or user from pursuing any other remedy provided in law or equity when claiming pollution or diminution of a water supply. The language also clarifies that nothing in the regulations prevents an operator or mine owner from pursuing other legal remedies should they incur costs in restoring or replacing a supply that experienced pollution or diminution caused by third parties.

s. Sections 87.119a(m) and 88.107a(m) (Issuance of new permits) propose the removal of language from previous sections that indicated that a Department order to restore or replace a water supply would not affect final bond release.

The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at https://www.regulations.gov.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EDT on June 7, 2023. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program amendments is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and Executive orders governing the rulemaking process and include them in the final rule.

I. Background on the West Virginia Program II. Description of the Proposed Amendment III. Public Comment Procedures IV. Statutory and Executive Order Reviews I. Background on the West Virginia Program

Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its approved State program includes, among other things, State laws and regulations that govern surface coal mining and reclamation operations in accordance with the Act and consistent with the Federal regulations. See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find additional background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, Federal Register (46 FR 5915-5956). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16.

By letter dated August 23, 2021 (Administrative Record No. 1658), we required WVDEP to submit a program amendment to ensure appropriate tracking of existing reclamation liabilities (including water treatment) at coal mining operations. This tracking must ensure that reclamation liabilities are accurate and up-to-date. Tracking will enable an accurate assessment of West Virginia's alternative bonding system's reclamation liabilities so that solvency of the State's Special Reclamation Fund and the Special Reclamation Water Trust Fund can be determined. To comply with our request, West Virginia, by letter dated March 29, 2022 (Administrative Record No. 1666), sent us an amendment to its program under SMCRA (30 U.S.C. 1201 et seq. ). The State seeks to amend its statutory program to develop and maintain a database to track reclamation liabilities in the WVDEP Special Reclamation Program.

House Bill 4758 (HB 4758) was signed by the Governor on March 28, 2022, and will become effective under State Law on June 6, 2022. HB 4758 amends WVSMCRA at WV 22-3-11(i)(2) and proposes to develop and maintain a database to track existing reclamation liabilities, including water treatment, at coal mining operation in the state of West Virginia that were permitted after August 3, 1977. This information is to be updated on a quarterly basis beginning July 2022, to ensure that actuarial studies of the special reclamation fund and special reclamation water trust fund are informed by current data.

The full text of the program amendment is available for you to read at the locations listed above under ADDRESSES or at www.regulations.gov.

Under the provisions of 30 CFR 732.17(h), we are seeking your comments on whether the amendment satisfies the applicable program approval criteria of 30 CFR 732.15. If we approve the amendment, it will become part of the State program.

If you submit written or electronic comments on the proposed rule during the 30-day comment period, they should be specific, confined to issues pertinent to the proposed regulations, and explain the reason for any recommended change(s). We appreciate any and all comments, but those most useful and likely to influence decisions on the final regulations will be those that either involve personal experience or include citations to and analyses of SMCRA, its legislative history, its implementing regulations, case law, other pertinent State or Federal laws or regulations, technical literature, or other relevant publications.

We cannot ensure that comments received after the close of the comment period (see DATES ) or sent to an address other than those listed (see ADDRESSES ) will be included in the docket for this rulemaking and considered.

Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment including your personal identifying information, may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.

If you wish to speak at the public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT by 4 p.m., EDT on June 7, 2023. If you are disabled and need reasonable accommodations to attend a public hearing, contact the person listed under FOR FURTHER INFORMATION CONTACT . We will arrange the location and time of the hearing with those persons requesting the hearing. If no one requests an opportunity to speak, we will not hold a hearing.

To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue on the specified date until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard.

If only one person requests an opportunity to speak, we may hold a public meeting rather than a public hearing. If you wish to meet with us to discuss the amendment, please request a meeting by contacting the person listed under FOR FURTHER INFORMATION CONTACT . All such meetings are open to the public and, if possible, we will post notices of meetings at the locations listed under ADDRESSES . We will make a written summary of each meeting a part of the administrative record.

Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget (OMB) will review all significant rules. Pursuant to OMB guidance, dated October 12, 1993, the approval of State program and is exempted from OMB review under Executive Order 12866. Executive Order 13563, which reaffirms and supplements Executive Order 12866, retains this exemption.

When a State submits a program amendment to OSMRE for review, our regulations at 30 CFR 732.17(h) require us to publish a notice in the Federal Register indicating receipt of the proposed amendment, its text or a summary of its terms, and an opportunity for public comment. We conclude our review of the proposed amendment after the close of the public comment period and determine whether the amendment should be approved, approved in part, or not approved. At that time, we will also make the determinations and certifications required by the various laws and Executive orders governing the rulemaking process and include them in the final rule.

Table of Contents for Preamble I. Public Participation and Request for Comments II. Abbreviations III. Basis and Purpose IV. Background V. Discussion of Proposed Rule VI. Incorporation by Reference VII. Regulatory Analyses A. Regulatory Planning and Review B. Small Entities C. Assistance for Small Entities D. Collection of Information E. Federalism F. Unfunded Mandates G. Taking of Private Property H. Civil Justice Reform I. Protection of Children J. Indian Tribal Governments K. Energy Effects L. Technical Standards M. Environment I. Public Participation and Request for Comments

The Coast Guard views public participation as essential to effective rulemaking and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

Submitting comments. We encourage you to submit comments through the Federal Decision Making Portal at www.regulations.gov. To do so, go to www.regulations.gov, type USCG-2020-0519 in the search box and click “Search.” Next, look for this document in the Search Results column, and click on it. Then click on the Comment option. If you cannot submit your material by using www.regulations.gov, email the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule for alternate instructions.

Viewing material in docket. To view documents mentioned in this proposed rule as being available in the docket, find the docket as described in the previous paragraph, and then select “Supporting & Related Material” in the Document Type column. Public comments will also be placed in our online docket and can be viewed by following instructions on the www.regulations.gov Frequently Asked Questions web page. That web page also explains how to subscribe for email alerts that will notify you when comments are posted or if a final rule is published. We review all comments received, but we will only post comments that address the topic of the proposed rule. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive.

Personal information. We accept anonymous comments. Comments we post to www.regulations.gov will include any personal information you have provided. For more about privacy and submissions to the docket in response to this document, see the Department of Homeland Security's eRulemaking System of Records notice (85 FR 14226, March 11, 2020).

Public meeting. We do not plan to hold a public meeting but we will consider doing so if we determine from public comments that a meeting would be helpful. We would issue a separate Federal Register notice to announce the date, time, and location of such a meeting.

The statutory authority for these regulations can be found in Title 46 of the United States Code (U.S.C.), Sections 3306 and 3703. The authority to issue regulations, pursuant to these sections, is delegated to the Commandant of the Coast Guard under Department of Homeland Security (DHS) Delegation No. 00170.1, Revision No. 01.3, paragraph (II)(92).

Under 46 U.S.C. 3306, the Secretary of DHS is required to prescribe necessary regulations to ensure safety of individuals and property on board vessels subject to inspection. This proposed rule would ensure the proper design, construction, alteration, repair, and operation of vessels subject to inspection.

Under 46 U.S.C. 3703, the Secretary is required to prescribe regulations for the design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of tank and cargo vessels that may be necessary for increased protection against hazards to life and property, navigation and vessel safety, and enhanced protection of the marine environment.

This proposed rule would revise titles 33 of the Code of Federal Regulations (CFR), chapter I, subchapters NN, and 46 CFR, chapter I, subchapters A, D, F, H, I, I-A, K, L, N, Q, R, T, U, and W. These subchapters are associated with approving, carrying, and maintaining certain safety equipment required on board vessels and offshore units or facilities. The proposed revisions in this notice of proposed rulemaking (NPRM) would eliminate outdated requirements, reduce inspection and testing requirements, modify submission requirements for equipment approval to allow materials to be submitted electronically, and update standards incorporated by reference. Additionally, this proposed rule would remove numerous obsolete sections and update sections to bring them into compliance with the International Convention for the Safety of Life at Sea (SOLAS) and related regulations.

The Coast Guard conducted a comprehensive review of regulations regarding the approval, carriage, and maintenance of marine equipment on U.S.-flagged vessels. The Coast Guard continues to review regulations with the goals of updating the references to incorporated standards that have been modified, clarifying language, and, where possible, providing additional regulatory flexibility and to minimize the regulatory burden on the affected vessels, and removing obsolete rules to ensure marine equipment requirements are current with emerging technology and industry standards.

In general, this proposed rule would make the following changes to various subchapters in titles 33 and 46 of the CFR:

(1) Modify equipment approval submission requirements to allow for materials to be submitted electronically to typeapproval@uscg.mil, instead of the existing requirement of paper submissions in triplicate;

(2) Remove obsolete regulations for pilot hoists that are no longer allowed on U.S.-flagged vessels;

(3) Allow vessel owners and operators to use a third party to test the properties and quality of their firefighting foam;

(4) Revise the requirements for pressure vacuum relief valves to align with international consensus standards;

(5) Update requirements for lifeboat and rescue boat releasing mechanisms on board mobile offshore drilling units (MODUs) and Outer Continental Shelf (OCS) facilities to allow for lifeboats that serve as rescue boats to carry lifeboat releasing mechanisms;

(6) Remove prescriptive design requirements for lifeboat, rescue boat, and liferaft winch limit switches and align requirements with the Life-Saving Appliances (LSA) Code;

(7) Remove a redundant flame-spread testing requirement for nonmetallic piping used in certain vessels;

(8) Revise the “end-for-ending” requirement for launching appliance falls (wire ropes) to align with SOLAS, which allows for a fall replacement interval of 5 years without end-for-ending;

(9) Change the interval for hydrostatic testing of all inert gas firefighting extinguishing system bottles to align with the hydrostatic testing intervals for carbon dioxide and Halon firefighting extinguishing systems. The interval would change from at least once every 5 or 10 years (depending on bottle size) to once every 12 years;

(10) Remove the Mine Safety and Health Administration's (MSHA) approval requirement for self-contained breathing apparatuses (SCBAs) because MSHA no longer certifies this type of equipment for marine use;

(11) Revise the standards of fire-resistant fiber-reinforced plastic resin used to manufacture survival craft and rescue boats to allow the use of additional international standards;

(12) Remove the requirement for Coast Guard approval of Emergency Position Indicating Radio Beacons (EPIRBs) and codify the current policy in which the Coast Guard reviews test data, instruction manuals, drawings and specifications of the EPIRB and issues a letter to the manufacturer stating whether the EPIRB satisfies all Radio Technical Commission for Maritime Services (RTCM) Recommended Standards. This aligns with the requirements as set out in 47 CFR 80.1061.

(13) Add an option for the use of fire detection systems as excess equipment for MODUs, and a grandfathering clause for fire extinguishers on board nautical school vessels;

(14) Make editorial changes to clarify language, correct typographical errors, and delete repetitive words;

(15) Update incorporations by reference (IBRs), remove outdated IBRs, and revise CFR cite references to the correct IBRs;

(16) Correct errors in fire extinguisher quantities and ratings from a previous rulemaking; and

(17) Clarify structural fire protection requirements for means of egress on 46 CFR subchapter K vessels.

Table 1 provides a list of the types of changes, summaries of the proposed changes, and the subparts affected by this proposed rule. Further explanation for each of these categories can be found after the table.

This rule proposes to delete references to outdated IBR material in regulation text, delete corresponding IBR titles and information listed in the centralized IBR section(s), correct improper IBR cites in regulatory text, and correct improper CFR references as outlined in table 1. See table 3 for additional information.

Editorial changes in this proposed rule would clarify language, correct typographical errors, and delete repetitive language in various subchapters in titles 33 and 46 of the CFR as noted in table 1.

Current regulations require manufacturers that produce marine safety equipment needing approval to mail their paper application and supporting documentation in triplicate. The requirement for submitting paper plans in triplicate allows the office reviewing the plans to mark the plans as “approved” and return one copy to the submitter, retain one copy in the office's files, and forward the third copy to the cognizant Officer in Charge, Marine Inspection (OCMI). However, in current practice, manufacturers submit their applications electronically via typeapproval@uscg.mil. When plans are submitted electronically, they can be stamped electronically and filed or distributed, as described above, without the need for printing or duplication. According to internal mail tracking data, in the last 5 years, 99.2 percent of all submissions related to applications for equipment approval were submitted electronically. This proposed rule would modify the submission requirements for equipment approval to codify the use of electronic submissions. The CFR sections listed in table 1 would be updated to include optional electronic submissions and remove requirements to submit multiple copies of plans or test reports. If a manufacturer desires a stamped hard copy of plans, the hard copy plans may be submitted in triplicate, or accompanied by electronic plans, so that the copies may be filed or distributed as described above.

Currently, 46 CFR 109.301(j) and 199.190(j) require that falls for launching appliances be replaced when necessary due to deterioration or at least every 5 years, whichever is earlier. Additionally, the falls must be turned end-for-end not more than 30 months after installation (the phrase, “turned end-for-end” means rotating the wire ropes so the ropes wear evenly). These regulations allow an alternative to the end-for-ending requirements; however, in that case, the falls must be replaced at least every 4 years. This rule proposes to remove the “end-for-ending” requirement for these launching appliance falls and require falls to be replaced at least every 5 years to align with SOLAS Chapter III, which allows for a fall replacement interval of 5 years without end-for-ending. This proposed rule would keep the requirement to replace falls when they show signs of deterioration. It has been Coast Guard policy per Commandant Instruction (COMDTINST) M16000.7B, USCG Marine Safety Manual Vol. II B1 P.3.a(1)(c)   1 that falls may be replaced in 5-year intervals if they are serviced in accordance with SOLAS Chapter III, Regulation 20.4.

Section 161.011-5 of title 46 of the CFR requires Coast Guard approval of EPRIBs. However, the FCC in its “Maritime Communications” final rule (68 Federal Register (FR) 46974, August 7, 2003), changed the approval process for EPIRBs in 47 CFR 80.1061. This update, which is still in effect, required FCC approval for EPIRBs, but required the Coast Guard to accept EPIRBs compliant to COSPAS, SARSAT, and RTCM standards before the FCC's review. Currently, the Coast Guard issues a letter stating compliance with these standards and does not issue approval for EPIRBs. This rule proposes to remove the requirement for Coast Guard approval of EPIRBs and align the Coast Guard's responsibility in title 46 of the CFR with the process in title 47 of the CFR.

This rule proposes to delete references to pilot hoists as approved equipment in 46 CFR subpart 163.002 by removing this subpart from the CFR. In 2010, an International Maritime Organization (IMO) Resolution of the Marine Safety Committee (MSC), Resolution MSC.308(88), 2 banned the use of pilot hoists on SOLAS vessels and updated SOLAS Chapter V requirements accordingly. Further, pilots in the United States do not use pilot hoists to embark a vessel. There are currently no Coast Guard-approved pilot hoists and there has not been a Coast Guard-approved pilot hoist since 2000. This proposed rule would also remove references to pilot hoists in 46 CFR subchapters D, H, I, I-A, and U.

Navigation and Vessel Inspection Circular (NVIC) 7-80, Use of Fire Detection Systems Which are Not Approved Under 46 CFR 161.002, 3 allows the use of non-approved fire detection systems as excess equipment on board vessels if the system is listed and labeled by an NRTL. This proposed rule would add the allowance for a fire detection system listed and labeled by an NRTL to be used as excess equipment for 46 CFR subchapter I-A aligned with the guidance set forth in NVIC 7-80.

Also, the 2016 final rule, “Harmonization of Standards for Fire Protection, Detection, and Extinguishing Equipment” (81 FR 48219, July 22, 2016), updated the design and approval standards for fire extinguishing equipment by changing the portable fire extinguisher ratings system from a weight-based rating system to the Underwriters Laboratories, Inc. (UL) performance-based rating system. That 2016 rule added a grandfathering clause to several sections in titles 33 and 46 of the CFR;  4 however, this clause was mistakenly left out for public nautical school ships and sailing school ships in 46 CFR subchapter R. This proposed rule would correct the oversight.

The previously mentioned “Harmonization of Standards for Fire Protection, Detection, and Extinguishing Equipment” rule also updated the portable fire extinguisher ratings system throughout title 46 of the CFR. In implementing that complex rule, there were errors in extinguisher quantities and ratings in 46 CFR subchapters H, I, K, and R as listed in table 1. This proposed rule would correct those errors.

Tank vessels and MODUs fitted with deck foam systems are required by 46 CFR 31.10-18(c) and 46 CFR 107.235(b)(4) to submit a representative sample of foam concentrate to the foam manufacturer to test foam gravity, pH, percentage of water dilution, and solid content. There are numerous laboratories other than those owned by foam manufacturers that can test firefighting foam concentrates. This proposed rule would add an option to allow third-party testing for firefighting foam concentrate. Allowing third parties that are accepted by the Coast Guard to test firefighting foam concentrates could be less burdensome to the vessel owners and operators and provide a level of safety similar to the current requirements that the manufacturer of the firefighting foam be the sole tester. Additionally, using a third party to test the properties of firefighting foam would increase the number of companies available to test firefighting foam properties. This proposed rule would also align with SOLAS requirements and codify CG-ENG Policy Letter 01-20, Third Party Foam Concentration Analysis. 5

This proposed rule would change the interval for hydrostatic testing of all inert gas fire extinguishing system bottles in 46 CFR 147.66 from at least once in every 5 or 10 years (depending on bottle size) to once in every 12 years. This change would align the hydrostatic testing intervals for inert gas fire extinguishing system bottles with the intervals for carbon dioxide and halon fire extinguishing system bottles in 46 CFR 147.65 and 147.67, respectively. The Coast Guard is not aware of any data or studies that demonstrate the need for a shorter hydrostatic testing interval for inert gas extinguishing system bottles compared to carbon dioxide extinguishing system bottles. Further, this proposed change would reduce servicing costs for vessel owners or operators without increasing risk.

Per 46 CFR 108.570(c)(3), single fall lifeboats, which also serve as rescue boats on board MODUs and OCS facilities, are required to have an automatic release mechanism approved under approval series 46 CFR subpart 160.170. This proposed rule would add an option in 46 CFR 108.570(c)(3) to allow lifeboats also serving as a rescue boat to have lifeboat release mechanisms instead of rescue boat release mechanisms. This would allow owners and operators of MODUs and OCS facilities the choice to select from a broader range of equipment options available to non-SOLAS lifeboat and rescue boat-releasing mechanisms. This change would align this regulation with a similar regulation in 46 CFR 199.160(d)(2). There is no reason to treat lifeboats that also serve as rescue boats on offshore units differently than those units installed on board ships.

Title 46 CFR 116.405(f) requires that nonmetallic (that is, plastic) piping in concealed spaces of small passenger vessels subject to 46 CFR subchapter K be tested under the American Society for Testing and Materials (ASTM) E84 standard and meet a certain set of performance criteria. However, plastic piping is already required to be approved by the Coast Guard under 46 CFR subpart 164.141. The testing standard to gain this approval is a different test standard than the ASTM E84 test. Requiring two different testing standards is redundant and provides no additional benefits, adds confusion by preventing approved piping from being used, and increases the cost for pipe manufacturers and purchasers. The Coast Guard is proposing to remove the requirement to test nonmetallic pipes to ASTM E84 and clarify that if nonmetallic piping is used in concealed spaces, it must be approved under approval series 46 CFR 164.141.

Pressure-vacuum relief valves for tank vessels required in 46 CFR 32.20-5 and 39.2011(b) must be Coast Guard-approved to approval series 46 CFR subpart 162.017. Currently, in 46 CFR subpart 162.017, International Organization for Standardization (ISO) standard 15364 is incorporated by reference and is an alternative standard to the prescriptive requirements in 46 CFR subpart 162.017 for approval of pressure-vacuum relief valves. This proposed rule would amend 46 CFR 39.2011(b) to allow ISO 15364 valves, or valves otherwise accepted by foreign-flag Administrations, as acceptable alternatives to the type-approval requirements of 46 CFR subpart 162.017. This proposed rule would better align our regulations for pressure-vacuum relief valves with SOLAS requirements. This proposed rule would also amend 46 CFR 162.017-3(g) to replace the words “overhauling and repairs” with “maintenance,” 46 CFR 162.017-3(n) to correct an editorial error, and 46 CFR 162.017-6 to clarify the application process.

Manufacturers of fiber-reinforced plastic survival craft and rescue boats who seek Coast Guard equipment approval are required to use resin accepted in 46 CFR subpart 164.120. This rule proposes to revise the regulations for survival craft and rescue boats (46 CFR subparts 160.135 and 160.156) to incorporate by reference MSC/Circular 1006, “Guidelines on Fire Test Procedures for Acceptance of Fire-Retardant Materials for the Construction of Lifeboats,”  6 an international standard for fire retardant resins that is already incorporated by reference in 46 CFR subpart 164.120. This proposed rule would delete 46 CFR subpart 164.120 and add a review of fire-retardant resins in 46 CFR subparts 160.135 and 160.156. The Coast Guard would no longer maintain a list of accepted resins. Currently, there are 15 standards (4 ISO and 11 ASTM) incorporated by reference in subpart 164.120 that are out of date. There is no indication that using the standards for resins specified in the regulations, instead of other standards, is necessary for safely constructing fiberglass-reinforced plastic survival craft and rescue boats.

All vessels regulated in 46 CFR subchapters D, K, I, I-A, L, R, and U are required to carry an SCBA as a part of a firefighting or emergency outfit. Currently, the regulations require these SCBAs to hold a MSHA approval. However, MSHA has not approved this equipment since 1995, when the Public Health Service (PHS) published the “Respiratory Protective Devices” final rule (60 FR 30336, June 8, 1995). This proposed rule would delete the obsolete requirement for SCBAs on inspected vessels to be approved by MSHA and would align title 46 of the CFR with MSHA and PHS regulations.

The “Harmonization of Standards for Fire Protection, Detection, and Extinguishing Equipment” rule added an option for inspected domestic vessels to meet either the structural fire protection requirements of SOLAS Chapter II-2, or the structural protection requirements found in the subchapter under which the vessel is inspected. The 2016 rule was intended to allow any U.S.-flagged vessel to be built to the requirements in SOLAS Chapter II-2, even if it is not certificated to SOLAS, which allows greater flexibility in design. However, the Coast Guard believes the 2016 rule used ambiguous language regarding the means of egress requirements for 46 CFR subchapter K vessels that used the SOLAS Chapter II-2 option for structural fire protection. This proposed rule would add language to clarify the means of egress requirements if subchapter K vessels use the SOLAS Chapter II-2 structural fire protection requirements for a design basis. This proposed rule would also harmonize stairways and ladders that meet SOLAS's structural and nonstructural fire protection requirements with U.S. design, structural, and nonstructural fire protection requirements.

This proposed rule would remove prescriptive design requirements of safety devices for lifeboat, rescue boat, and liferaft winches, and align the safety device requirement with the LSA Code. Currently, 46 CFR 160.115-7(b)(6)(vi) requires that winches for survival craft or rescue boats have a limit switch on each davit arm to prevent damage to the launching equipment. However, requiring one limit switch for each davit arm is inconsistent with the IMO's LSA Code. The Coast Guard is proposing to remove this prescriptive design requirement and align the safety device requirement with the LSA Code. This proposed rule would allow launching appliance manufacturers to use different technologies to achieve the safety performance criteria of the LSA Code.

Material proposed for IBR appears in 46 CFR 39.1005, 39.2011, 160.135-5, 160.135-7, 160.156-5, and 160.156-7. The standards are summarized in section VIII. L. Technical Standards, of this preamble. For information about how to view this material, see the ADDRESSES section of this preamble. Copies of the material are reasonably available from the sources listed in §§ 39.1005, 160.135-5, and 160.156-5. The following standards have already been approved for the locations where they appear in the proposed amendatory text and no change to the incorporation by reference is proposed: SOLAS, Chapter II-2, NFPA 2001, and FTP Code. Before publishing a final rule, we will submit this material to the Director of the Federal Register for approval of the IBR.

We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.

Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) 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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility.

The Office of Management and Budget (OMB) has not designated this proposed rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed this proposed rule. The Coast Guard estimates this proposed rule would have no additional costs. The Coast Guard estimates this proposed rule would result in additional cost savings to industry with no reduction or change in safety benefits. Details on the estimated cost savings of this proposed rule can be found in the regulatory analysis that follows.

The Coast Guard is proposing to revise the requirements in 33 CFR subchapter NN, and 46 CFR subchapters A, D, F, H, I, I-A, K, L, N, Q, R, T, U, and W. These subchapters are associated with approving, carrying, and maintaining certain safety equipment required on board vessels, offshore units, deepwater ports, and recreational vessels. These proposed revisions would eliminate outdated requirements, update standards incorporated by reference, and reduce the frequency of inspection and testing requirements for foam fire-extinguishing systems, inert gas cylinders, and lifeboat wire falls. Additionally, this proposed rule would remove obsolete sections and align conflicting sections with codes associated with the SOLAS of 1974 and the SOLAS Protocol of 1978: articles, annexes, and certificates. We expect the cost savings of this proposed rule to be associated with three items: hydrostatic testing of inert gas bottles, testing firefighting foam concentrates for fixed foam fire extinguishing systems, and replacing the fall wire ropes associated with lifeboats. Table 2 provides a summary of the impacts of the proposed rule.

Table 3 presents proposed regulatory changes with an assessment of the economic impact of the changes proposed to titles 33 and 46 of the CFR. The table shows the category of each proposed change, proposed affected CFR subparts and sections and descriptions of their changes, and whether there would be cost savings or no economic impact from the changes.

For this proposed rule, we obtained the affected population of vessels and the items they carry primarily from our Marine Information for Safety and Law Enforcement (MISLE) database and from supplemental information provided to us by subject matter experts (SMEs) in CG-ENG. The affected population is the total number of U.S.-flagged vessels carrying foam fire extinguishing systems, lifeboat wire falls, and inert gas bottles for extinguishing fires. We estimate the total number of affected vessels as 581, made up of 132 vessels carrying foam fire systems, 14 vessels carrying inert gas bottles, and 435 vessels carrying lifeboats. Vessels can be carrying more than one type of equipment at a time, so there is some overlap in the number of vessels that, for example, carry a foam fire extinguishing system and lifeboats. For the purposes of our cost analysis, however, we assume there is no overlap.

This proposed rule would have a cost savings associated with reducing the maintenance intervals for hydrostatic testing of inert gas bottles and lifeboat wire falls, and expanding testing parties for fixed-foam fire extinguishing systems.

To obtain the cost savings associated with this proposed rule, we first calculated the current costs to mariners for firefighting foam testing, hydrostatic testing of inert gas bottles, and lifeboat wire falls. Then, we compared the current and the proposed costs to obtain the cost savings. The baseline costs for these items are as follows:

Owners and operators of vessels that carry foam fire extinguishing systems are required in 46 CFR 31.10-18(c) and 46 CFR 107.235(b)(4) to submit a representative sample of firefighting foam concentrate, if carried, to the manufacturer to test for specific properties such as gravity, pH, percentage of water dilution, and solid content. Currently, the frequency of this testing is twice in a 5-year period. From information obtained in MISLE and discussions with SMEs, there are a total of 132 vessels carrying foam fire systems in our affected population because each vessel carries 1 foam fire extinguishing system on board.

Based on information we obtained from a Coast Guard-approved third-party company that tests foam fire extinguishing systems and from consultations with SMEs, the cost to perform the test is about $150, which includes the cost for a vessel owner or operator to submit a foam sample to a manufacturer for testing. We estimate the total annual undiscounted cost for foam testing to be approximately $7,920. We calculate this by assuming that in any given year, 40 percent (or 2 divided by 5 to represent the testing interval of 2 tests every 5 years) of the 132 foam systems require testing. We then multiply the result (132 × 0.40) by the cost per test ($150). Table 4 presents the baseline total undiscounted cost for fire extinguishing foam testing.

Under 46 CFR subpart 147.66, vessel owners or operators for vessels that carry inert gas fire extinguishing bottles must have the bottles hydrostatically tested at least once every 10 years for bottles with an equivalent water capacity of 125 pounds or less, or 5 years for larger bottles with an equivalent water capacity of greater than 125 pounds (the water capacity of a bottle is used to obtain the volumetric size of the bottle for testing purposes because testing cannot be performed when the bottle contains an inert gas). This is necessary to ensure the integrity of the bottles. The Coast Guard contacted a company that hydrostatically tests inert gas bottles to obtain the costs associated with testing and discharging these bottles, recharging the bottles with an inert gas, and delivering the bottles to a vessel when the testing is completed. 7

The cost to discharge and test the bottle, rebuild the valve on the bottle, and recharge the bottle with an inert gas is about $1,220-a lump-sum amount provided to us by the testing company. The pickup and delivery costs are about $600. The company we contacted for this cost estimate provided a lump-sum figure, which includes the time it takes to drive to a vessel, disconnect the bottles, load the bottles onto the delivery vehicle, and transport the bottles to the testing facility and back to the vessel.

Therefore, the total cost a testing company charges a vessel owner or operator is about $1,820 ($1,220 + $600) to hydrostatically test inert gas bottles. Based on MISLE data and discussions with SMEs, the total number of inert gas bottles for the 14 vessels that have inert gas bottles on board is approximately 169, or approximately 12 bottles per vessel. As a result, the testing cost once in a 10-year period is about $307,580 (169 bottles × $1,820). We estimate the total annual undiscounted cost for inert gas testing to be approximately $30,758. We calculate this by assuming that 10 percent (or 1 divided by 10 to represent the testing interval of 1 test every 10 years) of the 169 inert gas cylinders require testing over a 10-year period. We then multiply the result (169 × 0.10) by the cost per test ($1,820). Table 5 presents the baseline total undiscounted cost for inert gas cylinders.

U.S.-flagged vessel owners and operators are required to replace lifeboat launching appliance falls every 5 years according to 46 CFR 109.301 and 199.190. According to current regulations, these falls (wire ropes) must be turned end-for-end not more than 30 months, or 2.5 years, after installation during a 5-year period (the phrase “turned end-for-end” means rotating the wire ropes so the ropes wear evenly). There are two falls for each lifeboat and there are two lifeboats per vessel. Using the MISLE database, we identified 435 U.S.-flagged vessels that carry lifeboats. Each affected vessel has 2 lifeboats on board; therefore, we estimate there are 870 lifeboats that have fall wire ropes.

For cost savings purposes, we assume that each lifeboat has two fall wire ropes. The cost to turn two falls end-for-end on each launching appliance is about $2,000, based on information provided to us from a company that performs this function. Because there are 2 lifeboats per vessel, the population of lifeboat wire rope falls is 870. The total annual cost to turn falls end-for-end 2.5 years after installation for 870 lifeboat wire falls is about $348,000. We calculate this by assuming that in any given year 20 percent (or 2 divided by 10 to represent the turning interval of 1 turn every 5 years) of the 870 lifeboat wire falls require turning. We then multiply the result (870 × 0.20) by the cost per turning ($2,000). Table 6 presents the baseline total undiscounted cost for lifeboat wire falls.

We estimate the baseline total undiscounted cost to owners and operators of U.S.-flagged vessels for all three items to be about $3,866,780 ($79,200 + $3,480,000 + $307,580) (see table 7).

This proposed rule would generate cost savings as follows:

The cost savings would originate from eliminating outdated requirements, reducing inspection and testing requirements, and updating standards. The cost savings of this proposed rule are associated with three items: testing concentrates for fixed foam fire systems, hydrostatic testing for inert gas bottles, and eliminating the end-for-ending requirement for launching appliance falls (wire ropes) when replaced at an interval of 5 years.

There are numerous laboratories, other than those owned by foam manufacturers, that can test foam concentrates used for firefighting. Allowing a Coast Guard-accepted independent laboratory to test foam concentrates provides a similar level of safety to the current requirements and may be less burdensome to the vessel owners or operators. Additionally, the use of a third party to test the properties of the firefighting foam would allow for increased availability in the number of companies who can test firefighting foam systems.

In this proposed rule, a Coast Guard-accepted independent laboratory, in place of a manufacturer, would be permitted to perform the foam firefighting concentrates test. We estimate a charge for this service would be about $115 per system. 8 This would result in a total annual cost of $6,072. We calculate this by assuming that, in any given year, 40 percent (or 2 divided by 5 to represent the testing interval of 2 tests every 5 years) of the 132 foam systems require testing. We then multiply the result (132 × 0.40) by the projected cost per test ($115) (see table 8).

We compared the current unit cost for firefighting foam testing of $150 when performed by a manufacturer with the projected unit cost of $115 when performed by a third party. We estimate the unit cost savings to be $35 ($150—$115). As we presented earlier in this analysis, the baseline and the projected costs for firefighting foam testing are $7,920 and $6,072, respectively (see tables 4 and 7). Therefore, the cost savings per year would be $1,848 ($7,920—$6,072), and the total cost savings for the firefighting foam testing part of this proposed rule would be about $18,480 ($79,200—$60,720), undiscounted (see table 9).

We are proposing to change the hydrostatic testing interval of all inert gas firefighting extinguishing system bottles from the current requirement of once every 10 years to at least once every 12 years, which aligns with the hydrostatic testing intervals for carbon dioxide and halon firefighting extinguishing system bottles in 46 CFR 147.65.

The cost savings would be from less-frequent testing of inert gas bottles. For vessels with inert gas bottles less than 125 pounds, the test interval would change from at least once in every 10 years to at least once in every 12 years. For large bottles with inert gas bottles equal or greater than 125 pounds, the test interval would change from once in every 5 years to once in every 12 years. We found no bottles that had a capacity of more than 125 pounds of equivalent water capacity in our population; therefore, for the purpose of this analysis, the relevant change in testing interval is from once every 10 to once every 12 years. We estimate the total annual cost of hydrostatic testing for inert gas cylinders would be approximately $25,632. We calculate this by assuming that in any given year 8.3 percent (or 1 divided by 12 to represent the testing interval of 1 test every 12 years) of the 169 inert gas cylinders would require testing. We then multiply the result (169 × 0.083) by the cost per test ($1,820) (see table 10). As a result, vessel owners and operators would save $51,260 ($307,580−$256,320) in testing costs over a 10-year period (see table 11).

The Coast Guard proposes to revise the “end-for-ending” requirement for lifeboat launching appliance falls to align with SOLAS, which allows for a fall replacement interval of 5 years without turning the wires end-for-end. Current regulations require that falls must be replaced in 5-year intervals if they are serviced in accordance with IMO Circular MSC.1/Circ.1206 (Rev.1) and MSC.402(96).

The cost saving would be from eliminating the requirement to turn the ropes end-for-end every 2.5 years over a 10-year period of analysis. This would result in cost savings for vessel owners and operators of about $3,480,000 for the 435 U.S.-flagged vessels that have lifeboats on board. See table 12.

Table 13 shows the total cost savings for owners and operators of U.S.-flagged vessels to be about $3 million, undiscounted, over a 10-year period of analysis. We estimate the total present value or discounted cost savings of the proposed rule over a 10-year period of analysis to be between $2.5 and $3 million, at 7- and 3-percent discount rates, respectively. We estimate the annualized cost savings to be about $354,974 at each discount rate.

Current regulations require manufacturers that produce marine safety equipment needing approval to mail their paper application and supporting documentation in triplicate. The requirement for submitting paper plans in triplicate allows the office reviewing them to mark the approved plans and return one copy to the submitter, retain one copy in our files, and to forward the third copy to the cognizant OCMI. It is current industry practice for manufacturers to submit their applications electronically, get them stamped electronically and distributed as described above. The Coast Guard is providing an option for submitting plans electronically. There are several places in the CFR where we are removing the “in triplicate” requirement for submissions for equipment approval if the manufacturer wishes to submit plans electronically (see the table 3 for the affected CFR sections). It is current industry practice for manufacturers to submit their applications electronically. According to data from the Coast Guard's Work Management System, 99.2 percent of all submissions related to applications for equipment approval were submitted electronically over the last 5 years. So, this proposed rule would add an option for manufacturers to submit their applications and type approval materials electronically to codify the current industry practice. Therefore, there would be no change in the hourly burden estimate and no impact to the information collection request.

We expect this proposed rule would generate qualitative benefits. The proposed rule would reduce confusion and provide flexibility to industry by allowing third-party testing for certain safety equipment required on board vessels and offshore units or facilities. It would provide regulatory clarity by removing obsolete regulations, such as the MSHA approval for SCBAs for firefighters, and through updating standards to align with SOLAS.

Under this alternative, the Coast Guard would retain the status quo and would not incorporate by reference industry standards into the CFR. This alternative would not align conflicting sections of the CFR with SOLAS and related regulations. Furthermore, it would not reduce the burden to industry. This alternative would not allow the Coast Guard to perform retrospective review and updates to the regulations. We rejected this alternative because it would not generate cost savings for the marine industry, nor update standards in 33 CFR chapter I or 46 CFR chapter I.

Under this alternative, the Coast Guard would issue a NVIC or policy letter instead of proposing changes through an NPRM. As voluntary documents, neither NVICs nor policy letters are legally enforceable by the agency. A NVIC or a policy letter would not update the CFR, and the process of obtaining an equivalency test still would be needed. The Coast Guard rejected this alternative because industry would not benefit from current references and the public would not be given the opportunity to comment on current industry practice and standards.

With this alternative, the Coast Guard would revise the regulations associated with 33 CFR chapter I and 46 CFR chapter I. This is the preferred alternative because it would update current references and align conflicting sections of the CFR with SOLAS and related regulations, eliminate outdated standards, and reduce inspection and testing requirements. This alternative also allows the Coast Guard to perform retrospective reviews and updates to the regulations.

This alternative would also reduce the workload for vessel owners and operators by extending testing or maintenance intervals or expanding the range of allowable testers for three items: inert gas bottles, foam fire systems, and lifeboat launching appliances falls (wire ropes). In turn, this alternative would generate cost savings for vessel owners and operators and manufacturers of marine equipment. We presented the cost saving impacts of this alternative earlier in this analysis.

Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. 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.

We expect this proposed rule to generate cost savings to vessel owners and operators who own vessels that carry lifeboats, bottles of inert gas, and foam fire systems for extinguishing fires. The cost savings would be the result of reducing the maintenance intervals for hydrostatic testing for inert gas bottles and testing and maintaining lifeboat falls (wire ropes). The cost savings associated with vessel owners and operators who own vessels that carry foam fire systems for extinguishing fires would be from allowing a third party to test the firefighting foam concentrates.

Using the Coast Guard's MISLE database, we found this proposed rule would affect 390 companies that own 531 distinct vessels. Of the 390 companies, 235 companies did not have company names in our MISLE database; therefore, we assumed these 235 companies to be small entities. We found the remaining 155 companies own 296 vessels. Based on publicly available information from the online database “ReferenceUSAgov” and other online searches of companies, 9 we found revenue or employee information on 74 of the 155 companies. Using the Small Business Administration's “Table of Size Standards” and the North American Industry Classification System codes listed in the table, we identified 51 of the 74 companies to be small entities. We determined the other 23 companies were not small entities. 10 We did not find information on the remaining 81 companies; therefore, we assumed these companies were small entities.

Overall, we assume there are a total of 132 small entities (51 + 81) out of 155 companies for which were named in the MISLE database, or approximately 85 percent. If we add the number of small entities that we could confirm are small based on revenue or employee information (51) to the number of companies without company information (235 + 81), we assume the total number of small entities to be 367 out of the 390 companies affected by this proposed rule.

For cost savings purposes, we needed to differentiate the vessels that have different combinations of the equipment on board. MISLE's database offers data on company names, vessels, and equipment types. From MISLE's data and our small entity analysis, we found that there are six different combinations of equipment that would affect the savings for each vessel (see table 14). As a result, the affected small entities overlap and are not exclusive throughout this analysis.

Based on MISLE's data and our small entity analysis discussed earlier, we determined that the number of small entities would be 367. Out of 367 small entities, we found that 68 small entities own vessels that carry only foam fire systems. As described in the regulatory analysis above, we estimate the cost savings for foam fire systems to be about $35 for each vessel, and we assume the foam fire systems would be tested four times during the analysis period. These small entities would save about $952 annually per vessel (68 small entities × $35 savings per vessel × 0.4 systems tested per year), or about $14 per entity ($952 ÷ 68 small entities).

Using MISLE's data and the small entity analysis, we identified 251 small entities that own vessels carrying lifeboats that have fall wire ropes. Each small entity would save about $800 annually per vessel it owns (0.2 turns per year × $2,000 cost per turn × 2 lifeboats per vessel).

Based on MISLE's database, we found that only eight small entities own vessels carrying only inert gas bottles; there are 58 inert gas bottles on these vessels. 11 As presented in the regulatory analysis above, the annual cost savings on inert gas tests would be $30 [($1,820 (cost savings per inert gas test) ÷ 10 years−$1,820 (cost savings per inert gas test) ÷ 12 years) = $30], and the cost savings for the 8 entities that would be $1,740 [58 (number of inert gas bottles) × $30 (annual cost savings per inert gas bottle)]. These 8 small entities would save, on average, about $218 ($1,740 ÷ 8) annually per entity per vessel.

Using MISLE's data and the small entity analysis, we identified 36 small entities that own vessels carrying foam fire systems and lifeboats. As presented in the previous paragraphs, the annual cost savings per entity for the foam fire systems would be $14 and the annual cost saving per entity for fall wire ropes would be $800. Therefore, we estimate these 36 small entities would save about $814 ($14 + $800) annually per entity per vessel.

Using MISLE's data and the small entity analysis described earlier, we identified two small entities that own vessels carrying inert gas bottles and lifeboats that have fall wire ropes that need to be turned periodically. As presented in the previous paragraphs, the annual cost savings for these 2 entities that own vessels carrying inert gas bottles would be $180 [6 (number of inert gas bottles carried on board vessels for both entities) × $30 (annual cost savings per inert gas bottle) = $180] and the annual cost savings for these 2 entities on fall wire ropes would be $1,600 [2 (number of entities) × $800 (cost saving per entity for fall wire ropes) = $1,600]. Therefore, the annual cost savings for these 2 entities would be $1,780 ($180 + $1,600) and these 2 small entities would save each, on average, about $890 ($1,780 ÷2).

Lastly, based on MISLE's data and the small entity analysis we presented previously, we identified two small entities that carry all three items. The annual cost savings for these 2 entities that own vessels carrying inert gas bottles would be $3,000 [100 (number of inert gas bottles carried on board vessels for both entities) × $30 (annual cost savings per inert gas bottle) = $3,000]; the annual cost savings for these 2 entities for fall wire ropes would be $1,600 [2 (number of entities) × $800 (cost saving per fall wire ropes) = $1,600]; and the annual cost savings for these 2 entities for foam fire systems would be $28 [2 (number of entities) × $14 (cost savings per foam fire systems) = $28]. Therefore, the annual cost savings for these 2 entities would be $4,628 ($3,000 + $1,600 + $28), and we estimate these 2 small entities would save, on average, about $2,314 ($4,628 ÷ 2 entities) annually per entity per vessel.

Table 14 shows the cost savings for small entities with each of the six different combinations of equipment described in the previous paragraphs.

From these 6 different combinations, the range of the annual proposed cost savings that we estimate for small entities per vessel in this analysis is between $14 and $2,314, and the total proposed annual cost savings for the small entities would be about $239,208. Table 15 shows the cost savings per revenue for the small entities for which we had revenue information.

Using MISLE's data, we found that 51 small entities, where we found revenue and employee information, own 92 vessels. Therefore, each small entity owns, on average, two vessels. Multiplying the cost savings per entity per vessel (see table 15) by the number of vessels owned by each entity or 2, yielded the following cost savings per entity: $28 for foam testing ($14 × 2 vessels per entity = $28); $1,600 for lifeboat wire falls ($800 × 2 vessels per entity = $1,600); $436 for inert gas testing ($218 × 2 vessels per entity = $436); $1,628 for foam testing and lifeboats wire falls ($814 × 2 vessels per entity = $1,628); and $1,780 for lifeboat wire falls and inert gas testing ($890 × 2 vessels per entity = $1,780). For each of the 51 small entities with known revenue, the average annual cost savings per equipment type per small entity would be less than 1 percent of annual revenue. Based on this analysis, we found that 100 percent of the small entities with known revenues that would be impacted by this proposed rule (all 51 entities) would have a cost savings that is less than 1 percent of their annual revenue. The Coast Guard's economic analysis concluded that these changes would generate cost savings and would not impose a burden on any entities affected by this proposed rule.

Therefore, the Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment to the docket at the address listed in the ADDRESSES section of this preamble. In your comment, explain why you think it qualifies and how and to what degree this proposed rule would economically affect it.

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person in the FOR FURTHER INFORMATION CONTACT section of this proposed rule. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

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).

This proposed rule would call for no new or revised 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 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 proposed rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132. Our analysis follows.

It is well settled that States may not regulate in categories reserved for regulation by the Coast Guard. It is also well settled that all of the categories covered in 46 U.S.C. 3306, 3703 (involving design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels) and any other category in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, are within the field foreclosed from regulation by the States. See United States v. Locke, 529 U.S. 89 (2000) (finding that the states are foreclosed from regulating tank vessels); see also Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978) (State regulation is preempted where “the scheme of federal regulation may be so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it [or where] the Act of Congress may touch a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject” (citations omitted)). Because this proposed rule involves approving, carrying, and maintaining certain safety equipment required on board vessels and offshore units or facilities, it is part of a pervasive scheme of Federal regulation that forecloses regulation by the States. Because the States may not regulate within this field, this proposed rule is consistent with the principles of federalism and preemption requirements in Executive Order 13132.

While it is well settled that States may not regulate in categories in which Congress intended the Coast Guard to be the sole source of a vessel's obligations, the Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. If you believe this proposed rule would have implications for federalism under Executive Order 13132, please contact the person listed in the FOR FURTHER INFORMATION section of this preamble.

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 million (adjusted for inflation) or more in any one year. Although this proposed rule would not result in such an expenditure, we do discuss the effects of this proposed rule elsewhere in this preamble.

This proposed rule would not cause a taking of private property or otherwise have taking implications under Executive Order 12630 (Governmental Actions and Interference with Constitutionally Protected Property Rights).

This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, (Civil Justice Reform), to minimize litigation, eliminate ambiguity, and reduce burden.

We have analyzed this proposed rule under Executive Order 13045 (Protection of Children from Environmental Health Risks and Safety Risks). This proposed rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.

This proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it would 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.

We have analyzed this proposed rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that Order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies.

This proposed rule uses the following technical and voluntary consensus standards: ASTM D975-14, IMO MSC Circ. 1006, and ISO 15364. The proposed sections that reference these standards and the locations where these standards are available are listed in §§ 39.1005, 160.135-5, 160.156-5, 160.171-3, and 160.174-3.

These standards provide internationally accepted and recognized parameters that equipment, material, etc. must meet to ensure its safety, proper usage, and preservation on the seas. The standards that would be incorporated were developed by either the ASTM, IMO, or ISO, which are voluntary consensus standard-setting organizations.

One ASTM standard would be incorporated by reference in this rulemaking: ASTM D975-14, “Standard Specification for Diesel Fuel Oils” (July 30, 2014). This ASTM specification classifies grades of diesel fuel oils suitable for various types of diesel engines. As incorporated, it would define the grade of fuel necessary to perform a test for oil resistance.

One IMO standard would be incorporated by reference in this rulemaking: IMO MSC/Circular.1006 “Guidelines on Fire Test Procedures for Acceptance of Fire-Retardant Materials for the Construction of Lifeboats” (adopted on June 8, 2001). This test procedure is used for the acceptance of fire-retardant and flame-resistant materials used for the construction of lifeboats, which are required to be fire-retardant by the International Life-saving Code.

One ISO standard would be incorporated by reference in this rulemaking: ISO 15364:2021(E) (February 2021)—“Ships and marine technology—Pressure-vacuum valves for cargo tanks and devices to prevent the passage of flame into cargo tanks.” This international standard specifies the minimum requirements for performance and testing of pressure-vacuum relief valves, with emphasis on selection of materials, internal finish, and surface requirements for pressure-vacuum relief valves installed on cargo tanks in tankers.

Consistent with incorporation by reference provisions in 1 CFR part 51, this material is reasonably available. Interested persons have access to it through their normal course of business; can purchase it from the organizations identified in 46 CFR 39.1005, 160.135-5, 160.156-5, 160.171-3, and 160.174-3; or may view a copy using the methods identified in those sections.

If you disagree with our analysis of these voluntary consensus standards or are aware of voluntary consensus standards that might apply but are not listed, please send a comment explaining your disagreement or identifying additional standards to the docket using one of the methods under ADDRESSES .

We have analyzed this proposed rule under DHS Management 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. A preliminary 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. This proposed rule would be categorically excluded under paragraphs L52, L54, and L57 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Paragraph L52 pertains to regulations concerning vessel safety standards; Paragraph L54 pertains to regulations which are editorial and procedural; and Paragraph L57 pertains to regulations concerning manning, documentation, admeasurement, inspection, and equipping of vessels.

This proposed rule involves revising regulations associated with the approval, carriage, and maintenance of certain safety equipment required on board vessels and offshore units or facilities. Some of these proposed revisions are editorial or procedural actions that would eliminate outdated requirements, reduce inspection and testing requirements, update standards incorporated by reference, remove obsolete sections, and align conflicting sections with codes associated with SOLAS. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 149 and 46 CFR parts 2, 31, 32, 34, 35, 39, 56, 76, 77, 95, 96, 105, 107, 108, 109, 115, 116, 118, 132, 147, 159, 160, 161, 162, 163, 164, 167, 169, 181, 195, and 199 as follows:

The revisions and additions read as follows: